Rex v Thibani

• Jurisdiction: South Africa
• Citation: 1949 (4) SA 720 (A)

Rex v Thibani
1949 (4) SA 720 (A)

1949 (4) SA p720

Citation	1949 (4) SA 720 (A)
Court	Appellate Division
Judge	Centlivres JA, Schreiner JA and Hoexter JA
Heard	September 23, 1949
Judgment	October 4, 1949

Flynote : Sleutelwoorde

Criminal law — Murder — Intention to kill — What amounts to. — Failure by Crown to prove that at any stage the accused must have realised that his violence might lead to death — Effect — Provocation — Not a defence — But a factor in determining presence or absence of intention to kill — Transkeian Criminal Code, sec. 141 — Scope of.

Headnote : Kopnota

A man may have the intention to kill even though he does not visualise death as more likely than not to result from his acts; and, furthermore, even though he thought that, though reasonably possible, it would probably not result.

Quaere: Whether, provided the requisite of recklessness is present, the realisation of the possibility of death resulting, even as a remote chance, would not suffice.

Since the clarification of the law following upon the cases of Woolmington (1935, A.C. 462) and Ndhlovu (1945 AD 369) provocation has assumed its proper place, not as a defence - though the Crown need not negative it unless the evidence reveals it as a possible factor in the case - but as a special kind of material from which, in association with the rest of the evidence, the decision must be reached whether or not the Crown has proved the intent, as well as the act, beyond reasonable doubt.

Our law, while it has accepted the provision of section 141 of the Transkeian Criminal Code as, substantially, a correct treatment of the subject of provocation, regards the whole question rather as one of fact than as controlled by legal rules. And apart from this general consideration it must be accepted, in elaboration of the language of the Transkeian Code, that the wrongfulness of the victim's act is not, in all cases at least, a vital element in deciding whether the accused person had the intention to kill. Of major importance are the nature of the instrument or instruments used by the accused and the circumstances of the user including any act of the victim inducing sudden and grave mental disturbance in the accused.

Where a trial Court had found the accused guilty of murder and had sentenced him to death, it appeared that such Court should not have rejected what appeared to be a reasonable possibility (1) that the accused began a quarrel with his wife because the scratch mark on her face had aroused his suspicion that she had committed adultery; (2) that when she would not tell him how she had received the marks and had tried to escape by way of the door of their hut his suspicion had mounted and he had then beaten her unmercifully with a whip; (3) that in her pain she had seized and held him by his private parts while he struck her again and again with the whip now doubled up;

1949 (4) SA p721

and (4) that while holding the whip in his right hand he had picked up a stick from the stove with his left hand and had struck her on the head with it, so stunning her and releasing himself. In an appeal under section 369 of Act 31 of 1917 (as amended),

Held, that there was no reason to suppose that the accused had begun beating her with a whip with any contemplation that his act might cause her death or, in view of her reaction which caused him to lose his self-control, that he at any time visualised her death as a possible consequence of his continuing to assault her.

Held, further, that the Crown had failed to prove that at any stage the accused must have realised that his violence might lead to her death.

Held, accordingly, unlawful and brutal as was the assault upon the deceased by the appellant, that it could not be said with any assurance that he intended, in law, to kill the deceased, and that he was only guilty of culpable homicide.

Held, therefore, that the sentence passed should be set aside and that one of seven years' imprisonment with hard labour should be substituted.

Case Information

Appeal under Act 31 of 1917, sec. 369 (as amended). The facts appear from the judgment of SCHREINER, J.A.

G. P. van Rhyn, for the appellant (at the request of the Court): Appellant did not have the animus occidendi during the assault, or alternatively, the Crown did not succeed in establishing beyond a reasonable doubt the existence of such intention; of. Rex v Ndhlovu (1945 AD 369). Animus occidendi is an essential element of murder; see van Hasselt, Misdaad en der Selver Straffen (2nd ed., 2.I.IV, and V, IX and XIII); whether animus occidendi is present is a question of fact and where from the nature of the weapons or that of the assault a presumption arises that animus occidendi was present, the presumption is rebuttable; see van Hasselt (supra, 2.1.XIII), Pittman, Criminal Law in South Africa (2nd ed., p. 102). The Roman-Dutch law differs from the English law in respect of the animus occidendi involved in a murder charge; see Morice, English and Roman-Dutch Law (2nd ed., at 356). In the later stage of the Roman-Dutch Law a clear distinction was drawn between culpa and dolus; see Rex v Kuzwayo (1949 (3), S.A.L.R. at p. 770). At the present day in the Roman-Dutch Law animus occidendi constitutes a special intention and therefore the killing of a person without such intention, although the killing is unlawful, is not murder; see The Queen v Booth (1878, Kotze 50); sed contra, van der Linden, Institutes of the Law of Holland (2.5.4) and Carpzovius, Rerum Crim. (1.1.28 and 29); cf. Carpzovius (1.1.30) with van Hasselt (supra, 2.I.XIII and note (c)), and see Carpzovius (1.27.24). To have the intention to kill, the

1949 (4) SA p722

accused must know that death can result from the assault; see Rex v Valachia (1945 AD at pp. 830 - 1); Rex v Sikepe (1946 AD 756). If a person caused the death of another unlawfully, he is not guilty of murder if he did not actually know that death could follow as a result of his conduct, although he should have known it; see Rex v Sikepe (supra, at p. 756), explaining Rex v Valachia (supra), and the Transkeian Penal Code, sec. 141, discussed in Rex v Valachia (supra, at p. 831). The test whether animus occidendi is present or not is a subjective test and not an objective one. In any event the inference that appellant had the animus occidendi is not the only reasonable inference from the facts; cf. Rex v Blom (1939 AD 188); Rex v Magatuse (1941 AD 201). There were extenuating circumstances; the onus is on the accused to show on a balance of probabilities that extenuating circumstances are present; see Rex v Lembete (1947 (2), S.A.L.R. 603); subjective considerations must be taken account of in the determination of extenuating circumstances; see Rex v Fundakubi (1948 (3), S.A.L.R. 818).

W. M. van den Berg, for the Crown: Although the accused denies that he had the intention to kill, the Court can infer such intention from the facts; see Rex v Jolly and Others (1923 AD 176 at p. 181). Where it is shown that death was the result of an assault committed by the accused and the accused must have known that the assault was of so dangerous a nature that death was a probable result but he was nevertheless indifferent as to whether death resulted or not, he must be regarded as having intended the death of the deceased; see van der Linden, Institutes of Holland (2.5.5.), van Hasselt, Misdaden en der selver straffen (2.1.14 and the Introduction, 2nd chap., No. 31), Carpzovius (1.1.24, 30, 33, 34 and 40; 1.3.18, 19); Pittman, Criminal Law in South Africa (2nd ed., pp. 101 - 4), Rex v Ngcobo (1921 AD 92), Rex v Butelezi (1925 AD 160), Rex v Valachia and Another (1945 AD 826 at p. 831), Rex v Sikepe and Another (1946 AD 745 at p. 756). The onus lies on the accused to show extenuating circumstances; see Rex v Lembete (1947 (2), S.A.L.R. 603), Rex v Padhla (1948 (1), P.H.H. 87). The Court will not speculate concerning the possible existence of facts as to which there is no evidence; see Rex v Ndhlovu (1945 AD 369), Rex v L. (1946 AD 190 at p. 196), Rex v Dhlumayo and Another (1948 (2), S.A.L.R. 677 at p. 687).

van Rhyn in reply.

1949 (4) SA p723

Cur adv vult.

Postea (October 4th).

Judgment

Schreiner, J.A.:

The appellant was tried by BRINK, J., and assessors in the Winburg Circuit Court on a charge of murdering his wife...