S v Ndhlovu (2)

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Beyers JA, Holmes JA and Williamson JA
• Judgment Date: 30 September 1965
• Citation: 1965 (4) SA 692 (A)
• Hearing Date: 27 September 1965

F Holmes, J.A.:

In the Transvaal Provincial Division the appellant was convicted of murder without extenuating circumstances, and was sentenced G to death. On appeal to this Court the sentence was set aside because of a misdirection on the part of the trial Court in regard to intoxication and extenuating circumstances. In this respect reference should be made to the judgment of this Court delivered on 2nd June, 1965. It has not yet been reported but doubtless soon will be. [*] The case H was remitted to the Court a quo for the re-consideration of the question of extenuating circumstances, and for the passing of sentence afresh.

The trial Court again found that there were no extenuating circumstances. Sentence of death was reimposed, but the learned Judge informed the accused that he would recommend to the State President that mercy be extended to him. Leave to appeal was granted, and the matter is again before this Court.

Holmes JA

According to the evidence of the second accused, Mkwanazi, whose version was found to be substantially true and who was acquitted, the facts were as follows:

A On the Saturday afternoon in question the appellant, a Bantu youth of about 20 years of age, had been drinking with Mkwanazi at the location. The appellant left about 3 p.m. but later in the afternoon they met again near the house of Mkwanazi. The latter suggested that they go in search of beer. He had in mind to play his guitar at a 'jive' party. As B they walked along the road the appellant suggested that they try to come by some money. It seems clear that the implication in the suggestion was robbery. Mkwanazi made no reply, for he considered that the appellant was drunk and therefore would not carry out any such purpose. On the road they saw approaching them a Bantu man on a pedal C cycle. The appellant accosted him, demanded money, and knocked him down by a blow with his fist. The man got up and said he had only a watch, which he handed over on demand. The appellant accepted the watch and then stabbed him once with a knife in the chest. The two continued on their way. The appellant was staggering from intoxication. The appellant said in evidence 'Ek was gedrink maar nie dronk nie'.

D According to the medical evidence the wound was half an inch wide and two to three inches deep. Not much force would be required to cause such an injury. The deceased died on the following day.

In granting leave to appeal, the learned Judge observed,

'Hierdie is 'n grensgeval, en hierdie Hof het groot moeite ondervind om te besluit wat sy plig is.'

E The trial Court's second judgment, after the matter had been remitted to it for reconsideration, contains the following passages on the question of intoxication in relation to extenuating circumstances:

'Ons het die saak as volg beskou: Op 'n bierparty waar gedrink, geraas, gesing, gestry, rusie gemaak en geveg word en waar persone heengaan wetende dat dit 'n gevaarlike plek is, kan drank 'n versagtende F omstandigheid wees, veral omdat daar altyd 'n mate van uitlokking tot 'n geveg is, hoe gering ook. Die atmosfeer lei tot bravade, onverantwoordelikheid en skielike opvlamming van humeur. In sulke gevalle lê die Hof gewoonlik nie die doodvonnis op nie. Hier is egter 'n geval waar 'n onskuldige persoon hom...