S v Ngobozi

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA and Rabie JA
• Judgment Date: 15 May 1972
• Citation: 1972 (3) SA 476 (A)
• Hearing Date: 10 May 1972
• Court: Appellate Division

E Holmes, J.A.:

On Christmas Eve, 1970, two Zulu youths, who are friends, are walking along a road in the Chesterville Location, Durban. They have had some refreshment of an intoxicating nature, and are on their way to a place of gambling. Approaching them from the opposite direction comes an adult Zulu man. The latter stops to talk to one of the youths, who F aims a blow at him with a cane-knife which he is carrying, without inflicting any particular injury because the older man catches his assailant by the wrist, and they struggle for possession of the cane-knife. During the struggle the other youth intervenes by taking out his knife and stabbing the older man in the chest. This causes him to fall down. The youths continue on their way to the place of gambling, G some 100 to 150 metres ahead. On the following day the stabbed man dies from his injury.

The two youths are charged with his murder, and are tried by MULLER, J., sitting with assessors in the Durban and Coast Local Division. Their defence is an alibi, but their testimony is rejected as false and the H State's identifying evidence is accepted. The youth who is found to have stabbed and killed the deceased, is convicted of murder with extenuating circumstances, the latter consisting of a measure of intoxication, youthfulness and the absence of premeditation. He is sentenced to imprisonment for five years. He is refused leave to appeal, and his conviction and sentence do not concern us.

As to the other youth, Nunu Ngobozi, aged 21 years, the trial Court finds him guilty of culpable homicide. The Court holds that, although

Holmes JA

he did not strike the fatal blow and although there is no proof that he knew that his companion had drawn a knife, he was nevertheless negligent. The reason is said to be that he started the assault with his A caneknife and he ought to have foreseen death as a reasonably possible consequence when his companion intervened. The learned Judge accordingly sentences him to imprisonment for five years, and grants him leave to appeal. He is the only appellant.

In this Court Mr. Shepstone appeared pro Deo as counsel for the appellant, and we are indebted to him for his assistance. He contended B that there was no proof that the appellant caused the death of the deceased. The argument was that the deceased died as the result of a stab wound inflicted independently by the appellant's companion. It was urged that there was no proof of any...