S v P

• Jurisdiction: South Africa
• Judge: Holmes JA, Potgieter JA and Trollip JA
• Judgment Date: 05 May 1972
• Citation: 1972 (3) SA 412 (A)
• Hearing Date: 01 May 1972
• Court: Appellate Division

B Holmes, J.A.:

The issue in this appeal is whether the verdict should have been -

(a)

guilty of murder with extenuating circumstances, as found by the majority of the trial Court; or

(b)

C guilty of culpable homicide, as contended by counsel for the appellant.

To put it another way, the issue is -

(a)

whether the appellant, subjectively, did foresee the possibility of his deed causing the death of the deceased; or

(b)

D whether the most that can be said is that, objectively, he ought to have foreseen the reasonable possibility of resultant death.

On Sunday, 7th June, 1971, a European boy of 15 (nearly 16) years of age, is being escorted by two guards in a compartment of a train travelling from Bellville to George, bound for an industrial school from which he has run away. The boy has a handcuff on his left wrist, from which dangles a steel chain some three feet in length, with a handcuff E on the end of it. Late in the night he asks one of the escorts, Steyn, aged 76 years, to allow him to go to the toilet. The other escort, aged 59 years, says that he will accompany the boy as he wishes to go there himself. In the toilet the boy urinates first, and then the escort turns his back on him, releases his grip on the boy's chain and proceeds to F urinate. At this stage, the boy, according to his story, on the spur of the moment grasps the loose end of the chain with his free hand, loops it over and round the head of the escort, and pulls the latter backwards. The escort remonstrates with him and resists, but he is drawn backwards until his back is up against the boy's chest. In this position the boy turns the escort, who falls to one knee near the basin. At this G point the boy has the chain round the neck of the escort, pulling it upwards as he stands above him. The man is no longer resisting. The boy lets the chain go and the man falls to the floor. The boy runs down the corridor past the compartment where Steyn is, but retraces his steps in H order to retrieve his shoes from the compartment, and then continues his flight, with Steyn now in hot pursuit. Before the boy can jump from the train, Steyn manages to catch hold of the chain attached to the handcuff. The boy struggles to escape and tries to bite at Steyn's hand. Two army trainees come to Steyn's assistance and the boy is taken back to the compartment. As the result of the struggle the handcuff on his left wrist has become very tight and is causing pain, and Steyn tightens it further. Thereupon the boy says to one of the trainees,

Holmes JA

referring to Steyn, 'Stop him: I don't want to hit him'. Steyn asks the trainee to find the other escort. The boy blurts out,

'ek het hom vrek gemaak en ek sal jou ook vrek maak en nog meer'.

A Shortly afterwards the other escort's dead body is found in the toilet. One, van Zyl, asks the boy why he has murdered the man, and the boy replies that he did not intend to kill him but merely wanted to escape.

The boy is charged with murder, and is tried by STEYN, J., sitting with assessors in the Cape Provincial Division. The medical evidence is that B the basic cause of death was asphyxia although the condition of the man's heart might have contributed to his death; that considerable force must have been used, although there were no external signs of injury to the neck; that it was extremely unlikely that the chain attached to the handcuff could have been used as the means of applying the constrictive force to the air passages and throat: but that this could not be excluded as a reasonable possibility.

C The boy gives evidence. He is the only witness in regard to what happened in the toilet. He is emphatic that his intention was merely to render the escort unconscious, so that he could escape. He says that, at the time, the possibility did not occur to him that the man might die; D that, on leaving the toilet, he did not know that the man was dead; and that, on his recapture, in a moment of stress and because the tightened handcuff was hurting him, he told Steyn that he had killed the man and would kill Steyn too, in order to frighten him and make good his escape. At the trial it is common cause that the accused did not have an actual intention to kill his escort, in the sense of dolus directus. The State contends for a verdict of guilty of murder on the ground of dolus E eventualis, that is to say that the accused foresaw the possibility of resultant death and was reckless as to fatal consequences. The defence contends that the verdict should be one of culpable homicide, on the ground that the accused did not foresee the possibility of fatal consequences, and that the most than can be said is that the ought to have foreseen the reasonable possibility of death.

F The trial Court finds that the boy's account as to what happened in the toilet is not the whole truth, but does not deal specifically with his evidence that, at the time of the assault, he did not foresee the possibility of death. The Court rejects his testimony as to his reason for subsequently telling Steyn that he had killed his escort; and G rejects his evidence that, by that time, he did not think that he might have killed him.

In the result, the trial Co

'The State concedes in this matter that there are extenuating H circumstances present. This concession has been correctly made. The age of the accused, the absence of premeditation, the fact that he has been found guilty on the basis that the State has only proved against him dolus eventualis, his unhappy background, are some of the factors which clearly operate as extenuation.'

Thereupon the defence calls as a witness Dr. Zabow, a specialist psychiatrist. After the addresses, the trial Judge passes sentence as follows -

'I want you to know that we do not think that you are an evil person. We have seen, as Dr. Zabow has said, indications in your character which, we think, show that there is hope. What we are going to do, although it may

Holmes JA

sound to you when the words are uttered to be harsh, has I hope built into it some recommendations which will give you an opportunity to show the good that we believe is in you. It is up to you to respond to the efforts which have been made on your behalf by your legal adviser, which has been supported by the State, and the efforts which we intend to give effect to by way of recommendation.

What I mean by all these words is this; that, although the sentence A which we impose may sound terribly severe, because we are impressed by what we have seen of the good in you, we are going to try through certain recommendations...