Rex v Ntako

• Jurisdiction: South Africa
• Judge: Horwitz J, and Brink J
• Judgment Date: 06 April 1950
• Citation: 1950 (2) SA 556 (O)
• Hearing Date: 06 April 1950
• Court: Orange Free State Provincial Division

Horwitz, J.:

In the Marquard magistrate's court two charges were put to the accused who pleaded 'guilty' to both of them. The first count alleged that on the 13th March, 1950, he broke into and entered the house of his employer with intent to steal the goods therein and that he stole a revolver, the property, or in the lawful possession, of his employer, while in the second count it was averred that, at the time and place referred to in the first charge, he, without leave or lawful cause 'deserted from the service of his said master'.

Apart from the plea of guilty, there was sufficient aliunde evidence before the trial Court to establish the commission of the offences charged. From that point of view, therefore, the conviction of the accused on both counts is justifiable. A further consideration arises, however, namely, whether, in the circumstances, it was proper to charge the accused on the two counts.

In the decision in the old case of In the matter of an Apprentice. (1 R. 287), where a conviction for desertion against the accused, who had absconded after his master had charged him with theft, was set aside, the ground stated was that 'there was no such animus non revertendi, as was necessary to make this a legal offence'. Without commenting on the ground there given, I desire, with respect, to base my view in the present case on the ground that the primary intention of the accused, in the absence of evidence to the contrary - and there was no such evidence in this case - was to commit the offence of housebreaking with intent to steal and theft, and that, having committed that offence, he sought refuge in flight, not with an intention to desert, but, rather, with the desire of avoiding capture, and thereby escaping the consequences of the crime he had committed. Moreover, the evidence relating to such departure immediately after the crime was committed can, conceivably, be a link in the evidence connecting the accused with the housebreaking offence.

I venture to think that I find support for the above view in the decision in Rex v Leibbrandt (1949 (2), P.H. H. 167). [*] In that case the accused was convicted on a charge of theft and on another

Horwitz J

charge of leaving a work colony without permission. The charge of theft related to the clothing in which the accused escaped and which belonged to the Department of Social Welfare, which administered the work colony. The description of the clothes showed that they were the bare minimum required by a person who did not wish to go about nude. According to the report referred to

'the Court expressed the view that, when a man escaped from an institution in the clothes he was wearing at the time, a charge of theft, in addition to that of escaping, might well be regarded as a splitting of charges. Accused had one intention to escape, and it...