S v Manyathi

• Jurisdiction: South Africa
• Judge: van Blerk JA, Holmes JA and Williamson JA
• Judgment Date: 25 November 1966
• Citation: 1967 (1) SA 435 (A)
• Hearing Date: 24 November 1966
• Court: Appellate Division

D Williamson, J.A.:

The appellant in this matter was charged in the Northern District Circuit Court at Ladysmith, Natal, before a Judge and two assessors with having murdered one Ndikisana Given Maswana on 5th June, 1966. He was found guilty as charged and, the Court having held that it was 'unable to find extenuating circumstances', he was sentenced E to death. An application was made to the presiding Judge for leave to appeal against both the verdict and the sentence. Leave was, however, granted to appeal only in respect of the sentence. The sole question which arises on this appeal is whether the trial Court should have found that extenuating circumstances existed.

The appellant did not dispute that the deceased had been stabbed by him. F He gave no evidence but made an unsworn statement to the following effect:

'There is not much that I can tell His Lordship. I was in liquor - I was drunk. I had a quarrel with the deceased. I got very angry and I stabbed him. I have nothing further to say.'

He had previously made a statement before a magistrate which was put in G as evidence by the State. He therein described an argument he had had with the deceased. He also said that the deceased had drawn a knife, that he, the appellant, had received a cut from the knife below his right eye, that he had got the knife away from the deceased and that he had then stabbed the deceased with it. The magistrate said that, when H the appellant made this statement before him, he noticed that the appellant did have a small fresh cut below his right eye; the cut was also surrounded by a blue mark.

From the evidence of the district surgeon it was established that the deceased had died as a result of a four - inch - deep stab wound below the clavicle; the wound was made with a knife which had entered the lung and force must have been used to effect it. The deceased was a heavier, taller and more powerful man than the appellant. The postmortem also revealed that he had been drinking beer. The doctor had examined the appellant whom he considered to be about 18 years old,

Williamson JA

although he could possibly be 19, which was what the appellant was said to think was his age.

The events leading up to and surrounding the stabbing of the deceased by A the appellant were testified to by four eyewitnesses called on behalf of the State. The first was a man Sandi Nduluka who said that on the afternoon of the day in question he was sitting in the house of a woman Elsie when the accused came in with a girl Lizzie. They were followed later by the deceased. Whilst he was reading a paper brought by the deceased he heard the latter and the appellant start quarrelling and threatening to hit each other; he heard the deceased threaten to hit B the appellant. The woman, Elsie, ordered them out of the house but only the appellant went out. The appellant, however, came back and went up to and slapped the deceased with his open hand. The witness and Elsie remonstrated with them. The deceased had gripped hold of the appellant, C but the latter managed to wrench himself free and left the house. At that stage it seemed that the appellant was trying...