S v Ngomane

• Jurisdiction: South Africa
• Judge: Trollip JA, Diemont JA and Trengove JA
• Judgment Date: 18 May 1979
• Citation: 1979 (3) SA 859 (A)
• Hearing Date: 02 May 1979
• Court: Appellate Division

Trollip JA:

Appellant was convicted of murder with extenuating B circumstances and sentenced to seven years' imprisonment. With the leave of the trial Judge he has appealed to this Court against his conviction and sentence.

These were the facts that were common cause or duly proved. At about 8 pm on 28 April 1978 the appellant, a Black man aged about 20 years, was in his hut at Nelspruit alone with a woman, Sarah Ngomane. The door of the C hut was fastened or locked from the inside. A small paraffin lamp lighted the inside of the hut. The deceased, a well-built Black man, aged about 50 years, knocked on the door and asked for cigarettes. (Probably, as the trial Judge said, the real purpose of his visit was connected with the presence of Sarah in the hut.) The appellant said that he had no cigarettes. The deceased asked him to open the door, but he refused. The D deceased then threatened to kill him by burning the hut down and proceeded to fasten the door on the outside with wire. Appellant pleaded with him to open the door and not to set the hut alight. He also asked him why he wanted to kill him but received no reply. He believed the deceased would carry out his threat. His intention was to escape from the hut when E the deceased opened the door. The deceased acceded to his plea and opened the door, At that moment the draught from the open door extinguished the light from the paraffin lamp, leaving the interior of the hut in darkness. As the deceased was entering the hut appellant stabbed him once with an assegai, five foot long with a blade of about 18 inches. The deceased collapsed. Appellant and Sarah ran out of the hut through the open door. F The blade of the assegai severed the deceased's jugular vein in his neck and penetrated his heart causing his death.

Appellant's case in the Court a quo and on appeal was that he had acted reasonably in legitimate self-defence, or, alternatively, that he was guilty at most of only culpable homicide and not of murder. The Court a quo rejected both defences on the following grounds:

(1)

G Appellant admitted that the deceased did not carry out his threat of setting the hut alight; on the contrary, he acceded to appellant's plea to desist and to open the door.

(2)

Appellant also admitted that he did not see whether or not the deceased was carrying any weapons.

(3)

H Appellant was an utterly unsatisfactory witness, particularly in these respects:

(a)

he testified that, as the deceased entered the hut, the latter repeated his threat that he would kill appellant, but this was untrue since appellant had not previously mentioned this second threat in his police statement or his...