Rex v Ndhlovu

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Greenberg JA and Davis AJA
• Judgment Date: 15 December 1944
• Citation: 1945 AD 369
• Hearing Date: 29 November 1944
• Court: Appellate Division

Davis, A.J.A:

The accused was convicted by the Native High Court of the crime of murdering Mbovula Mkize: the Court found mitigating circumstances and he was sentenced to imprisonment with hard labour for fifteen years. He now appeal's, having obtained leave from this Court.

The facts are by no means altogether clear; nor are they made clearer by the absence of any kind of plan. In a case such as this, a plan should always be put in by the Crown. It need not be anything elaborate; it need not even be drawn to scale; all it need do is to give the Court a rough idea of the relative positions

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of the principal places referred to in the evidence and their distances from each other.

On the night of the 17th October, 1943, one Patekile, who had formerly lived with the accused, was in the room where she then lived, together with Agnes Radebe, when the deceased, Mkize, who was a stranger, arrived. Then the accused, together with another man named Kumalo, who was later charged with the accused, but was a acquitted at the close of the Crown case also came there. A quarrel ensued between the accused and the deceased, about payment for certain drink; it was started apparently by the deceased, and they became heated. Patekile turned them both out, as she did also Kumalo, who was so drunk that as soon as he came in, he at once sat against the wall and went to sleep. Kumalo had a stick: the accused apparently had no weapon. They had all originally come to get liquor and liquor was undoubtedly consumed. The three men went out; when they were outside. Patekile heard the accused say: "This man is armed with a knife." Patekile was found by the Court to be an unsatisfactory witness. But Agnes Radebe was described as an excellent witness. She corroborates Patekile in what. I have so far set out: she adds that when the men had gone out of the room and were still in the passage she heard a scuffle: it was immediately after the scuffle, but while they were still in the passage, that she heard this exclamation about the knife in the voice of the accused. Rosy Radebe, whose evidence was also accepted, lived in a house, situated below, and some fifteen to twenty paces from, that of Patekile; she said that she was awakened by voices coming from the direction of Patekile's house and that she heard a woman's voice cry out: "Don't kill a person. Don't kill a person." Asked whether any name was mentioned, she amended this to "Kumalo, don't you people kill this man." She at the same time heard footsteps near what she describes as a "donga", between her house and that of Patekile. When she opened her door, she saw the accused coming from the kitchens, which were situated below her house, and quite near it; he was running uphill in the direction of Patekile's room. She at once went down to the kitchens, saw that the deceased was seriously injured and called to the accused, whom she knew well.

"Ndhlovu, don't you people leave this person here that you have killed." The accused made no reply. She then attended to the injured man. She added that by the noise that was made when she was awakened, it sounded like a drunken

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party: there seemed to be a number of people there. Isabella Mjoli lives next to the last witness. Her evidence was also accepted and it was to the same effect; she, too, called out to the accused in similar terms and got no reply. She says that the accused actually ran into Patekile's room: the light then went out. This, I may say, is denied by both Patekile and Agnes. Duma, who shared a room with the accused near Patekile's house, says that that night the accused did not sleep there, but be came in late hurriedly to get his jacket and then left, also hurriedly. The Assistant District Surgeon gave evidence that the deceased died from a stab wound in the back near the left shoulder blade: he also had an abrasion of about one inch by half an inch on the right temple, caused by either a fall or a blow. Kumalo was not called after his discharge. The accused gave evidence; his story was that after he left Patekile's room he went straight to his own, and went to sleep. He heard nothing until he left for work early next morning. He denied any quarrel with the deceased. His story was entirely rejected by the Court.

Mr. Miller argued that there is not enough evidence to connect the accused with the crime. I cannot agree: in my opinion the evidence was ample to warrant the inference that the accused caused the death of this man:. There was evidence of a previous quarrel and of a scuffle or fight outside the room, that the accused was seen running away from the place where the man had just been stabbed, that he ma de no reply to two people who both accused him of having killed him and he had never offered any explanation of what actually occurred. To the last point I shall return later.

But counsel contended further that, even if the evidence was sufficient to show that it was the accused who killed Mkize, it was insufficient to prove that the crime was murder and not only culpable homicide. The Attorney-General stated that in all the circumstances he could not contend that the Crown had proved that the accused was guilty of murder. But that attitude does not relieve the Court of the necessity of ascertaining for itself what was the correct verdict - though no doubt it may assist it in doing so.

The determination of the question whether, on the facts as I have set them out above the conviction of murder was justified, directly involves the determination of the question whether we are

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to accept, as accurately setting out our law, the unanimous decision of the House of Lords in the case of Woolmington v The Director of Public Prosecutions (1935, A.C. 462), on which Mr. Miller relied.

The headnote is as follows: -

"In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted the act was unintentional or provoked, the prisoner is entitled to be acquitted. Statement of the Law in Foster's Crown Law (1762, p. 255) and summing up of TINDAL, C.J., in Rex v Greenacre (1837, 8 C. & p. 35), disapproved."

The statement of the Law by Sir Michael Foster, which had stood unchallenged for a period little short of two hundred years, was as follows: -

"In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it is, that the law should so presume. The defendant in this instance standeth upon just the same foot that every other defendant doth: the matters tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of them."

The summing up of TINDAL, C.J., to which reference is made in the headnote, is in somewhat similar terms.

Murder has been defined by Gardiner & Lansdown (4th ed., vol.2, p.

1260, as "the unlawful killing of a human being, with intent to kill." (The word "malice" used in. England, is synonymous with mens rea: it means intention, but it includes forms of intention which would not make killing "murder" in our law, see Kenny, Criminal Law (5th ed., p. 132); this, however, has no bearing on the present matter.) The killing must be unlawful and it must be with intent. The problem before the

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House of Lords was whether the Crown must prove not only the killing, but also (1) its unlawfulness and (2) the intention; or whether on the other hand, when once the Crown had proved the killing, it was for the accused to disprove both its unlawfulness and his intent. As the result of this, statement of the law by Sir Michael Foster, and to some extent of the summing up of TINDAL, C.J., all the text books laid it down - to cite from one of them, Halsbury (vol. 9, p. 426): -

"When it has been proved that one person's death has been caused by another, there is a prima facie presumption of law that the act of the person causing the death is murders unless the contrary appears from the evidence either for the prosecution or for the defence. The onus is upon such person when accused to show that his act did not amount to murder."

Sir Michael Foster had generally been taken to mean that the onus of proof in the full sense was shifted on the accused, when once the Crown had proved that he had killed a fellow human being. He was understood as meaning not merely that, from the fact of the killing, the jury might draw an inference of guilt, in the absence of an explanation from the accused which satisfied them, but that, in the absence of such an explanation, they were bound to draw it. It was not enough for the jury to be left in doubt as to the unlawfulness of the killing or as to the lack of evil intent on the part of the accused, for then he had not discharged the onus of proof. I am not here proposing to enter on difficult questions as to the true meaning and effects of a presumption, for it seems to me unnecessary to do so; but reference may be made to Wigmore. (sec. 2483 ec seq.) and to the judgments of STRATFORD, C.J., in Rex v Fourie (1937 AD at p. 44) and in Treyea v Godart (1939 AD 16). Nor, again, am I proposing to consider what, if any, are the differences between presumptions in a civil and a criminal case (see Huber, Praelectiones. 22.3.16); nor what are the different meanings...