Rex v Valachia and Another

• Jurisdiction: South Africa
• Judge: Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 18 September 1945
• Citation: 1945 AD 826
• Hearing Date: 01 August 1945
• Court: Appellate Division

Greenberg, J.A.:

The accused were charged, in the Witwatersrand Local Division, with having murdered a woman, Zoaguina de Ponte, on the 31st July, 1942. They were tried by a Judge and assessors, were convicted of murder; no extenuating circumstances were found and they were accordingly sentenced to death. But shortly after their trial, doubt arose in the mind of the learned Judge who presided at the trial, on two points, one with reference to the verdict and the other to the finding that there were no extenuating circumstances. He accordingly reserved two points for the consideration of this Court.

The first point reserved reads: - "Was the evidence before the Court sufficient to justify a conviction of murder?" The question will be taken to have been reserved in its proper form, viz.: Was there evidence on which the Court was entitled to convict the accused of murder?

The question, therefore, is whether there was legal evidence before the Court on which it was entitled to convict the accused of murder. Murder is an unlawful killing with what is generally described as an intent to kill; the point made before us was that the onus of proving the intention was on the Crown (Rex v Ndhlovu (1945 AD 369) ), and that there was no evidence upon which the trial Court could reasonably find that it had discharged this onus. In Ndhlovu's case it was pointed out that such intention may be proved by necessary inference from all the facts of the case. This is indeed, the ordinary way of proving mental states in all classes of cases. But it is necessary, first, to ascertain what is the nature of the intention which the Crown has to prove in the case of murder. Obviously where an actual intent to kill is proved, that is, where the accused meant to cause death, there is no difficulty. But even when the accused does not will the death of the deceased, his intent may be such as to make him guilty of murder. In Rex v Ngcobo (1921 AD 92) INNES, C.J., in upholding a verdict of murder said (at p. 96) that the wounds inflicted by the accused "showed a violence and a ferocity of purpose which would naturally imply, if not a purpose to kill, certainly a determination to do serious harm calculated to cause death regardless of the consequences". The language used by the learned CHIEF JUSTICE at p. 94, of the report of this case, taken by itself, is open to the construction that there can only be a verdict of murder where there is an actual intention to kill but that such an intention may be inferred on the facts where the object is to inflict grievous bodily

Greenberg, J.A.

harm, calculated to cause death, regardless of whether death results or not But it is, I think, clear from the passage already cited from p. 96 that this was not what was meant, and that the lesser object referred to is sufficient, even when an actual intention to kill cannot be inferred. This latter class of case is to be distinguished from those referred to in Rex v Jolly (1923 AD 176) which are cases where an intention may be inferred from the nature of the acts but may be rebutted by the accused. Thus, at page 181, INNES, C.J., says: "An intention is inferred to bring about the intrinsically probable consequences of an act", but then make it clear that the inference may be rebutted. But in the class of case to which I have referred the guilt of the accused, of the crime of murder, is based not on an inference of an actual intention to kill but on the fact that his object was to inflict grievous bodily harm, calculated to cause death, regardless of whether death results or not.

In Rex v Butelezi (1925 AD 160) the passage at p. 94 in Rex v Ngcobo (supra) is cited with approval; what is said later (at pp. 161-2 and at p. 168) shows that SOLOMON, J.A., was also of the view that the lesser object to which I have referred was sufficient to support a verdict of murder. In Rex v Cebekulu ( AD 12.6.45) the question was not discussed but the passage from Rex v Ngcobo was treated as covering the two different intentions to which I have referred. Moorman (2.1.4/5) speaks of "de quade wil", "het boos opset", "een doodlyk opset of voornemen om te dooden" as an essential element of murder; he also there mentions that an intention may be inferred from the circumstances, particularly from the kind of weapon used, but neither he nor the other of the older authorities I have consulted throw any light on the question now under discussion except Carpzovius (Rerum Crim., 1.1.28, 29, 56, 62/4 and 1.27.6/7), who supports the view I have expressed. Nor have I found anything in our decisions in conflict with this view. In Rex v Ndhlovu (supra) the expression "intention to kill" is used, but the point in issue there was not what constituted the intention, which is essential in murder, but on whom the onus of proof as to intention lay.

It is interesting to see that sec. 140 of the Transkeian Penal Code (Act 24 of 1886, Cape), which has not infrequently been found to have incorporated in its provisions the correct view of what our law is, provides that culpable homicide becomes murder in a number of

Greenberg, J.A.

cases, one of which is that "if the offender means to cause the person killed any bodily injury, which is known to the offender to be likely to cause death, and if the offenders whether he does or does not mean to cause death, is reckless whether death ensues or not."

It will be seen that in that Code it is necessary that the accused should know that the injury he inflicts is likely to cause death. On the other...