S v Nkosiyana and Another

• Jurisdiction: South Africa
• Judge: Beyers JA, Ogilvie Thompson JA and Holmes JA
• Judgment Date: 20 September 1966
• Citation: 1966 (4) SA 655 (A)
• Hearing Date: 12 September 1966
• Court: Appellate Division

Holmes, J.A.:

This appeal arises out of the appellants' conviction by C JENNETT, J.P., sitting with assessors in the Eastern Cape Division, on charges of incitement and attempted incitement to murder Kaiser Mantanzima.

On count 2 the first appellant was found guilty of attempting to incite Dunne and Burger to commit murder; and the second appellant was found guilty of attempting to incite Burger only. The charge was laid under D sec. 18 (1) read with 18 (2) of Act 17 of 1956, read further with secs. 142 and 140 of Act 24 of 1886 as amended by Proc. 17 of 1940.

On count 3 both appellants were convicted of inciting Lewis Majija to commit murder. The charge was laid under sec. 18 (2) (b) of Act 17 of E 1956, read with the aforementioned provisions of the 1886 Act as amended.

The two counts, which are the only ones relevant to the appeal, were treated as one for the purposes of sentence, which was imprisonment for seven years.

In explanation of the statutory references in the charges, I would F mention that the 1886 Act is the Transkeian Penal Code; and sec. 18 (2) (b) of Act 17 of 1956 is in the following terms:

'Any person who -

(a)

.....

(b)

incites, instigates, commands, or procures any other person to commit,

any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.'

G The contention on appeal is that the conduct of the appellants did not in law amount to incitement or attempted incitement.

The facts are as follows. Dunne was a secret agent attached to the South African Security Police. In April, 1965, he was sent to the Transkei to H find out what was going on. He posed as a business man who wished to start a crayfish industry in the territory. He visited, more than once, Chief Sabata at his Great Place, ostensibly to solicit his help in the business venture. He ingratiated himself by making out that he was thoroughly disgruntled with the policies of the South African Government, and was in sympathy with the Opposition Party in the Transkei. He also met the first appellant, who was secretary to the Chief and a member of the Transkeian Legislative Assembly, in opposition to the government of Kaiser Matanzima. Later Dunne met the

Holmes JA

second appellant, who was similarly a member of the Opposition Party in the Assembly. He had various conversations with the...