Rex v Ngcobo

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 13 December 1920
• Citation: 1921 AD 92
• Hearing Date: 10 December 1920
• Court: Appellate Division

Innes, C.J.:

The appellant was convicted by the Native High Court of murdering Maninginingi. It is not suggested that the killing was justified. The object of the appeal is to reduce the verdict to one of culpable homicide, in which case this Court is asked to set aside the capital sentence and award some other appropriate punishment. There can be no doubt that the appellant killed the deceased and that the killing was unlawful. I express no opinion upon the question whether our law, under those circumstances, would presume an intention to kill. That was not the point discussed in argument, nor is its decision necessary for this case. An intention to kill is an essential element in murder; but its existence may be inferred from the relevant circumstances. And the question is whether on the facts here proved an inference of that nature was rightly drawn. Such an intent is not confined to cases where there is a definite purpose to kill; it is also present in cases where the object is to inflict grievous bodily harm, calculated to cause death, regardless of

Innes, C.J.

whether death results or not. It is suggested in this case that, the provocation which the appellant experienced was such as to negative any inference of an intention to kill. In other words, that he was so provoked that he could not control himself and was unable for the moment to realise the probable consequences of his act. Now any provocation which the accused received must have been due to one or other or both of two causes; to the circumstances under which he came upon his wife and the deceased, or to the attitude and conduct of the latter thereafter. With regard to the first of these, the testimony of the wife was to the effect that, before her husband overtook her, Maninginingi had made improper overtures, and that, as the husband appeared upon the scene, the accused caught hold of her clothes and renewed his proposals. This evidence is corroborated by the statement of Mdhletshana, that "as he appeared on the scene he heard what was being said and also heard his wife say ' Leave me alone.'" It is not necessary to discuss the question of the sufficiency of the provocation thus arising, - whether standing alone it would have been strong enough to reduce the crime in law from murder to culpable homicide. Because the trial court did not believe the evidence referred to; and I do not think we can dissent from that view. Some of the reasoning on this part of...