S v Mtshiza

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA and Trollip JA
• Judgment Date: 29 May 1970
• Hearing Date: 14 May 1970
• Court: Appellate Division

Holmes, J.A.:

This is an appeal against sentence.

After the day's work on an afternoon in July, 1969 three young Bantu men repair to a Chinese store in Johannesburg to have a drink.

Holmes JA

They are Ronald and the appellant and the latter's best friend, Wilfred. Ronald and Wilfred arrive first, and sit at a table drinking brandy and beer with one Peter. When the appellant joins them Wilfred pours a drink for him. Peter objects on the ground that the appellant has not paid. A The appellant responds by buying a nip of brandy and pouring it into the bottle on the table. Thereupon they all drink. Then an argument starts between Peter and the appellant about a girl friend. The argument waxes heated and Peter goes so far as to refer to the appellant as a 'Lekoapa'. According to the evidence, this is a gravely insulting term B which a Sotho sometimes uses towards a Zulu or a Xhosa. It is regarded as a challenge and usually leads to a fight. The appellant is a Xhosa. Peter is stronger and much bigger than the appellant, who remarks to his two friends that he is not looking for trouble and will drink elsewhere. He stands up to go. The drinking party has lasted a fairly considerable time and they are all under the influence of intoxicating C liquor. It seems however that some degree of peace is restored and they all leave together, homeward bound but pausing to buy more liquor at an Indian bottle store where the prices are not so high. But neither they nor the Indian have any small change, so the appellant sends Ronald off to buy a pocket knife in order to come by some change. Ronald does so, D and the appellant hands him the change for the purchase of more liquor. This the four of them drink in the street. Then the argument flares up again between Peter and the appellant. It develops into a drunken altercation. Peter, ready to fight, taunts the appellant:

'You are so small, what do you think you can do?'

And, referring to the pocket knife, he adds:

E 'What do you think you are going to do with that thing?'

Thus provoked, the appellant aims a blow at Peter with the pocket knife. At that stage Wilfred, who is standing very close to them, moves forward slightly to intervene; and the stab lands in Wilfred's chest. He falls F to the ground, and is removed by ambulance to hospital, where he soon dies of the stab wound, which has entered his heart.

The appellant is arrested. He makes a clean breast of the matter in a statement to a magistrate. He is charged with the murder of Wilfred. He pleads guilty to culpable homicide. The State case consists of the evidence of Ronald and the statement by the appellant and the admitted G report of the post mortem examination. At the conclusion of the evidence, counsel for the State accepts the plea of guilty to culpable homicide. The trial Court holds that the knife was not purchased with the object of killing Peter; that it cannot be said at what part of Peter's body the appellant aimed; that there is no proof that he H intended to kill Peter; that he wanted to hurt Peter; and that he is therefore guilty of culpable homicide in respect of Wilfred.

He is sentenced to imprisonment for ten years and to receive eight strokes. The appeal is directed against that sentence.

The verdict is not challenged on appeal and indeed the appellant pleaded guilty to culpable homicide. In any event, the verdict is in order. There is no doubt but that the appellant caused Wilfred's death; but causation by itself is not enough: there must also be mens rea in relation to such death. Such mens rea is present in this case, on the authority

Holmes JA

of S v Bernardus, 1965 (3) SA 287 (AD), because, on the evidence -

(a)

the juxtaposition of the men was such that the appellant, in aiming at Peter, ought to have foreseen the reasonable possibility of the blow landing on Wilfred;

(b)

A he ought also to have foreseen the reasonable possibility of such stab being fatal to Wilfred. As was said in S v Bernardus, supra at p. 307A, 'The possibility of serious injury being reasonably foreseeable, the appellant ought also to have foreseen the possibility of death hovering in B attendance. The two are sombrely familiar as cause and effect in the walks of human experience'. (Whether foreseeability of injury less than serious would suffice is not here relevant: in the present case, as in Bernardus's case, serious injury was foreseeable).

C Thus the appellant's mens rea, in relation to the man Wilfred whom he killed, consisted of culpa, which renders such killing criminally culpable.

I turn now to the question of the sentence of ten years and eight strokes in respect of the verdict of culpable homicide. The appellant, who is said to be about 29 years of age, has the following previous convictions-

1.; 2.	"10.7.63; 10.7.63	6 weke g/straf.	Aanranding met die opset om ernstig te beseer—Ban/vrou—24 jaar—mes.
	21.9.64	R30 of 60 dae g/straf.	C/A 10/L Wet 54/49. Besit van gevaarlike wapen.
1.; 2.	29.10.64; 29.10.64	Een jaar g/straf en drie houe met rottang.	Aanranding met die opset om ernstig to beseer—Ban/man—27 jaar—mes.
		Een jaar g/straf en drie houe met rottang.	Aanranding met die opset om ernstig to beseer—Ban/man—40 jaar—mes.
	26.2.66	Vrygelaat op parool tot 4.5.66."

In this Court Mr. Heher, for the appellant, in contending for a F reduction in the sentence, submitted that the trial Judge had misdirected himself. He said that the learned Judge, during the course of the trial, and in his judgment in convicting the appellant, referred to R v Kuzwayo, 1949 (3) SA 761 (AD), and observed that, if the appellant had intended to kill Peter, he would have been guilty of G murder in relation to Wilfred; but that, as he only intended to injure Peter, he was only guilty of the culpable homicide of Wilfred. Mr. Heher submitted that this observation was wrong in law, and that it must have coloured the trial Court's mind in the matter of sentence. Mr. Heher further submitted that the learned Judge overlooked the fact that the appellant's mens rea in this case was culpa; and that therefore he was H unduly influenced by the fact that three of the appellant's previous convictions were in respect of assault with intent to do grievous bodily harm. Mr. Heher further invited us to hold that the ratio in S v Kuzwayo, supra, was wrong.

During the argument stage of the trial the learned Judge said:

'Op hierdie getuienis neem ons aan is toegegee dat hy gemik het om na Peter te steek. Ek weet nou nie of hy gemik het om Peter dood te steek nie, want as hy gemik het om Peter dood te steek en hy steek dan 'n ander man raak, dan is hy in elk geval skuldig aan moord, maar ek weet nie na watter deel van Peter hy gemik het nie. So hy het alleenlik gemik om Peter te beseer. . . . Dit

Holmes JA

is die hoogste wat 'n mens dit kan stel. Toe steek hy die ander man raak, en dit maak hom dan net skuldig aan strafbare manslag. . . . Ek dink dit val binne Kuzwayo se saak.'

In giving judgment, the learned Judge, after referring to the facts, said -

'In sy poging om vir Peter te steek het hy egter die oorledene in die A bors gesteek. Ek weet nie na watter deel presies van die lyf van Peter die beskuldigde gemik het nie, en of hy 'n opset gehad het om Peter dood te maak nie.

As hy 'n opset gehad het om Peter dood te maak, en dan die oorledene, wat in die pad was, raakgesteek het in daardie poging, sou hy natuurlik skuldig wees aan die misdaad van moord. Ek wil net in hierdie verband vewys na 'n gedeelte van die kopstuk in...