S v Sikweza

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Holmes JA and Trollip JA
• Judgment Date: 17 September 1974
• Hearing Date: 20 August 1974
• Court: Appellate Division

Holmes, J.A.:

In the Transkeian High Court the appellant was charged with the crime of

"murder in contravention of sec. 140, read with sec. 142, of B Act 24 of 1886, as amended by Proc. 17 of 1940".

He was convicted and, on a finding that there were no extenuating circumstances, he was sentenced to death. He appeals to this Court with the leave of the learned CHIEF JUSTICE; see. sec. 50 (3) of the Transkei Constitution Act, 48 of 1963.

C At the outset it is necessary to consider the provisions of Act 24 of 1886 (C) - commonly called the Transkeian Penal Code - which are relied upon in the charge and which are basic to the case. It is also helpful to refer to sec. 135, which defines culpable homicide. Counsel were agreed, after having devoted time and thought to the matter, that the Code D still applies in the Transkei; and see sec. 65 (1) of Act 48 of 1963. Counsel were further agreed that sec. 140 of the Code has not been amended since it was enacted.

"135.

Homicide is culpable where it consists in the killing of any person whether by an unlawful act or (... not here relevant).

140.

Culpable homicide becomes murder in the following cases:

(a)

If the offender means to cause the death of the person killed.

(b)

E If the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and if the offender, whether he does or does not mean to cause death, is reckless whether death ensues or not."

(My italics). (c) and (d) are not here relevant. Proc. 17 of 1940 introduced a new sec. 142, retaining sentence of death for F murder but authorising other sentences in certain cases, e.g. where the Court is of opinion that there are extenuating circumstances.

It is essential to bear in mind that, according to the indictment, this was a statutorily defined offence with which the appellant was charged. Hence, in deciding whether to convict the appellant, the trial Court was required to apply G its mind to the language and requisites of sub-sec. (a) of sec. 140; and, if the case against him could not be brought home thereunder, the trial Court was required to apply its mind to the language and requisites of sub-sec. (b) of sec. 140.

The judgment of the trial Court does not specifically find that the appellant, in stabbing the deceased, meant to cause death; H see sec. 140 (a) of the Code. Indeed, in the subsequent finding, in regard to the absence of extenuating circumstances, the judgment includes the following finding -

"The stab-wound which he delivered was a stab-wound in the abdomen, delivered recklessly not caring whether he killed or not, and he did kill."

It would appear from the foregoing that the verdict was based on sec. 140 (b) of the Code, supra. However, the judgment does not deal with the question whether the stab-wound was "known to the offender to be likely to cause death". That this is necessary under the Code is confirmed

Holmes JA

by R. v Valachia and Another, 1945 AD 826 at p. 831, lines 5 and 6.

With that prelude, I proceed to examine the facts.

[The learned Judge of Appeal then analysed the evidence and continued as follows.]

A In the trial Court and in this Court counsel attacked the reliability of Mrs. Appel...