S v Robinson and Others
Jurisdiction | South Africa |
Judge | Steyn CJ, Holmes JA and Potgieter JA |
Judgment Date | 08 December 1967 |
Citation | 1968 (1) SA 666 (A) |
Hearing Date | 27 November 1967 |
Court | Appellate Division |
C Steyn, C.J.:
As far as the second and third appellants are concerned, the cardinal issue is the credibility and reliability of the witness Isabella Kleynhans. In the main and substantially for the same reasons, I agree with the conclusions at which my Brother HOLMES has arrived in regard to her evidence. On those parts of her evidence which this Court cannot reject, the complicity of these appellants in the scheme which D resulted in the killing of the deceased by the first appellant, has, I consider, been established. I cannot agree, however, that on all the evidence it has been proved beyond reasonable doubt that they are in law guilty of murder.
I have to refer, more particularly, to the evidence of Kleynhans as to a report made by the first appellant to the third appellant on the day after the murder. It is the following:
E 'He said that he can't seem to forget Al's face in front of him, and he told Bennie that they were in the car, busy drinking. Where they were, or that, I don't know, but that Al said to him when they started drinking 'No matter what happens, we must go through with it'. He said when Al was drunk after a while, Al started crying again, the deceased, and he said he can't go through with it at all. So Quinton told him well, to leave it. He said that through the relief that Al showed, he F fell forward - he was drunk - with his head on the steering wheel, and he said with that he pulled the revolver off.'
Al is the deceased, Bennie the third appellant and Quinton the first appellant. The remark by the deceased 'No matter what happens, we must go through with it', is explained by the fact that, on at least one previous occasion, an attempt to execute the murder as planned and G desired by the deceased had been frustrated, because the deceased's courage failed him and he declined to go through with it. Although the use of the word 'we' renders it less clear, this remark was in all probability intended to convey to the first appellant that he must not be deterred from the deed if the deceased should once again revoke his consent to be killed. What is perfectly clear from this evidence, is H that the deceased did in fact, by saying that he could not go through with it at all, resile from the pact of murder by consent. When, in spite of that, the first appellant shot him, he was no longer a consenting or willing party. He had countermanded the arrangement, at least as between himself and the second and third appellants. He had been the author and originator of that arrangement and his willingness and desire to be killed, was an essential feature of it. There can be no doubt that, had it not been for his own wish and readiness to die, no such arrangement would have come into existence, and there can, I think, equally be no
Steyn CJ
doubt that death without his consent was no part of it. He was, as all concerned must have been aware, in control of the situation he had created for himself and at liberty at any time to withdraw from it. It was precisely as a result of this that the earlier attempt had failed. Because he could not go through with it, the first appellant desisted. A It is true that on the day of his death the second appellant, his wife, after he had suggested suicide by both of them, told him that, because such suicide would not achieve the purposes of his death, he 'must go through with it'. That amounted to no more than an implied exhortation not to flinch again from being killed. I cannot find in it a variation B of the then existing arrangement, having the effect that he was to be killed whether or not he withdrew his consent at the crucial moment, and there is no ground for holding that it was so intended by the second appellant or so understood by the third appellant, or that anything to that effect was conveyed to the first appellant, who was not present on this occasion. The witness Kleynhans does not say that the third C appellant displayed any dissatisfaction when the above-mentioned report was made to him, but that takes the matter no further. Assuming that his assent may be inferred from the absence of evidence of dissatisfaction, acquiescence, without protest ex post facto in what the first appellant D had done, would not show that it was part of the common purpose. Had the deceased not told the first appellant that they must go through with it, no matter what happens, it may well be that the latter would again have refrained from the fatal deed. The common purpose was murder with the consent of the victim. In shooting the deceased after he had retracted his consent, the first appellant acted outside the common E purpose. There is no evidence to show or from which it could be inferred with any certainty that the second and third appellants foresaw the possibility that the first appellant might kill the deceased even if he withdrew his consent, and that they were reckless whether or not he did so kill him. It follows that an intention on their part that the F deceased was to be murdered also in such an event, has not been proved. The suggestion that the deceased was so drunk that his withdrawal of consent is to be ignored is without substance. From his remarks and reactions, as described by the first appellant, it is quite clear that he knew full well what the two of them were about. In the result, the second and third appellants have, in my opinion, not been shown to be guilty of murder.
G But that is not the end of the matter. When the deceased told the appellants that they were to go through with it, no matter what happened, that did not have the effect of cancelling the arrangement of murder by consent. It merely added, as between the deceased and the
first appellant, an instruction to proceed even if consent should be H revoked. Had the deceased not retracted and had he been killed with his consent, it could hardly have been contended that this added instruction removed the killing from the ambit of the common purpose. Up to the point where the deceased recoiled from execution of the common purpose and said that he could not go through with it at all, the first appellant was applying himself to the achievement of that purpose. As the deceased, in relief, fell forward with his head on to the steering wheel, the first appellant pulled the trigger. The inference is
Holmes JA
justified that at that stage he had the revolver in his hand, ready to shoot. That he then had the firm intention to...
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2018 index
...264, 282S v Romokoka 2006 (2) SACR 57 (W) ................................................. 344S v Robinson 1968 (1) SA 666 (A) ....................................................... 77S v Roux 1975 (3) SA 190 (A) .............................................................. 284S v S 1995......
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2017 index
...264, 282S v Romokoka 2006 (2) SACR 57 (W) ................................................. 344S v Robinson 1968 (1) SA 666 (A) ....................................................... 77S v Roux 1975 (3) SA 190 (A) .............................................................. 284S v S 1995......