Criminal Law cases:
Table of Contents
Criminal Law cases:...............................................................................................................................................1
(1) Masilela 1968................................................................................................................................................1
(2) R v Nlhovo 1921 AD......................................................................................................................................4
(3) Schoombie 1945 AD......................................................................................................................................8
(4) Ngobese 2019 GJ.........................................................................................................................................11
(5) S v Nkosiyana 1966 (A)...............................................................................................................................15
(6) R v Davies 1956 (A).....................................................................................................................................17
(7) S v Mgedezi 1989 (A) .................................................................................................................................21
(8) S v Thebus 2003 (CC).................................................................................................................................27
(9) Masingili v Minister of Justice and Constitutional Development 2014 (CC) ............................................30
(10) S v Tsotetsi 2019 (WCC)...........................................................................................................................33
(11) S v Williams 1980 (A)................................................................................................................................37
(12) S v Van Zyl 1987 (O).................................................................................................................................39
(13) S v Dalindyebo 2016 (SCA).......................................................................................................................46
CATCH UP WK 6 & 7.......................................................................................................................................50
S v Pachai 1962.................................................................................................................................................50
Ex parte minister: in re v Seekoei.....................................................................................................................53
EX PARTE MINISTER OF JUSTICE: IN RE R v GESA;R v DE JONGH [1959] 1 All SA 422 (A).............56
S v Yolelo 1981 (1) SA 1002 (A.........................................................................................................................59
S v Mdantile 2011 (2) SACR 142 (FB)..............................................................................................................60
(1) Masilela 1968
Facts:
- The two appellants were convicted of murder + sentenced to death
- They had used a ruse and engaged the attention of the deceased (elderly farmer
named de Kock) – they then assaulted him and ransacked his house
- The accused set fire to the deceased’s bed and house and stole money + clothing
- In the trial court it had been proved beyond any doubt that the two accused had the
subjective intention of killing the deceased by strangling him
- Trial court however also found no sufficient evidence that the accused concerted a
plan to kill the deceased before they went to his house
1
, - Held that when the accused set fire to the bed upon where the deceased lay, they
believed that he was already dead (but he wasn’t and died from carbon monoxide
poisoning)
- In convicting the accused, the trial court held the decision in Thabo Meli v R even
though the appellant’s intention to kill was a matter of improvision in the course of a
robbery
Legal Issue:
Whether on the facts found by the court to have been proved, the crime committed by the
two accused was murder
Arguments:
Appellants
- The state failed to establish mens rae necessary to support a conviction for murder
and that on the facts could only satisfy attempted murder
- The appellants proved intention to kill by strangulation did not achieve its object = so
far as concerns the deceased's death as a result of carbon monoxide poisoning, no
intention to kill can be attributed to the appellants because, at the time they lit the
fire, they believed the deceased to be already dead
Court’s Reasoning:
Ogilvie Thompson JA:
- Counsel did not refer to any Roman Dutch authorities and of what was detailed –
they neither deal directly with the question in issue nor afford any assistance in the
present enquiry
- According to writers referred by counsel for appellants, it would appear that the
modern Dutch law would probably not regard them as having committed murder
- But Rumpff JA points out in his judgment that the writers are not unanimous, and it
would seem that there has, as yet, been no authoritative Court decision on the point
in Holland (or Germany)
- An anonymous writer = two similar cases (in Bombay and Madras) the accused were
held to not be guilty in terms of the Indian Penal Code
2
, o Facts in the Bombay case bare striking resemblance to this case
o But the decision in that case was not unanimous + was criticised
Thabo Meli case:
- The appellants, in accordance with a preconceived plan, took a man to a hut, gave
him beer so that he was partially intoxicated, and then struck him over the head.
- They then, believing him to be dead, took his body and rolled it over a low cliff
- Cause of death was exposure when left unconscious at the foot of the cliff
- The Appeal of the accused was dismissed
- It is important to bear in mind that in Thabo Meli’s case there was a preconceived
plan to kill the deceased in the hut and then stimulate an accident by throwing him
over the cliff
Chiswibo case:
- The accused had hit the deceased on the head with the blunt side of an axe.
- The blow rendered the deceased unconscious and the accused, genuinely believing
that the deceased was dead, put his body down an antbear hole, wherein he died
- The trial court following the decision of Shorty had convicted Chiswibo of attempted
murder
- Constructive intention to kill with the axe was established in this case
Shorty case:
- In this case the first accused had assaulted the deceased with intent to kill him
- The first accused, assisted by second and third accused, disposed of the deceased,
whom all of the three accused mistakenly believed to be already dead, by putting
him down a sewer, where he died of drowning.
- The first accused was held to be guilty, not of murder, but of attempted murder, and
the second and third accused to be accessories after the fact to attempted murder
- Express intention to kill was proved
Back to the facts and application of this case:
3
, - On the medical evidence it was, thus established beyond reasonable doubt that the
deceased's head injuries and his broken neck were caused by appellants within the
ambit of their proved intention to kill which the learned trial Judge described as an
intention to kill by strangling.
- I entertain no doubt that the finding expressed in the terms that "the two accused had
the subjective intention of killing the deceased by strangling him" was not intended to
confine that intention to strangling alone, to the exclusion of the incidental head and
neck injuries, but was intended to comprehend everything done by the appellants up
to the stage when they threw the deceased on to his bed.
- The series of acts by the two appellants constitute a single course of conduct
- The head, neck, and throat injuries suffered by the deceased at the hands of the
appellants hereafter comprehensively called the strangulation injuries were a material
and direct contributory cause of the deceased's dying from carbon monoxide
poisoning.
- Had the deceased not been wholly incapacitated, as a result of what the appellants had
previously done to him, he would have had no difficulty whatever in escaping from the
fire intentionally started by appellants long before any question of carbon monoxide
poisoning could have arisen.
- = the appellants were rightfully convicted of murder
Rumpff JA (concurring judgement in Afrikaans) but in agreement with Ogilvie JA and
Nicholas JA (Trial Court Judge)
Conclusion
- Court finds in favour of the State
- The appeal of both accused is dismissed
(2) R v Nlhovo 1921 AD
Attempts
Facts:
4
Table of Contents
Criminal Law cases:...............................................................................................................................................1
(1) Masilela 1968................................................................................................................................................1
(2) R v Nlhovo 1921 AD......................................................................................................................................4
(3) Schoombie 1945 AD......................................................................................................................................8
(4) Ngobese 2019 GJ.........................................................................................................................................11
(5) S v Nkosiyana 1966 (A)...............................................................................................................................15
(6) R v Davies 1956 (A).....................................................................................................................................17
(7) S v Mgedezi 1989 (A) .................................................................................................................................21
(8) S v Thebus 2003 (CC).................................................................................................................................27
(9) Masingili v Minister of Justice and Constitutional Development 2014 (CC) ............................................30
(10) S v Tsotetsi 2019 (WCC)...........................................................................................................................33
(11) S v Williams 1980 (A)................................................................................................................................37
(12) S v Van Zyl 1987 (O).................................................................................................................................39
(13) S v Dalindyebo 2016 (SCA).......................................................................................................................46
CATCH UP WK 6 & 7.......................................................................................................................................50
S v Pachai 1962.................................................................................................................................................50
Ex parte minister: in re v Seekoei.....................................................................................................................53
EX PARTE MINISTER OF JUSTICE: IN RE R v GESA;R v DE JONGH [1959] 1 All SA 422 (A).............56
S v Yolelo 1981 (1) SA 1002 (A.........................................................................................................................59
S v Mdantile 2011 (2) SACR 142 (FB)..............................................................................................................60
(1) Masilela 1968
Facts:
- The two appellants were convicted of murder + sentenced to death
- They had used a ruse and engaged the attention of the deceased (elderly farmer
named de Kock) – they then assaulted him and ransacked his house
- The accused set fire to the deceased’s bed and house and stole money + clothing
- In the trial court it had been proved beyond any doubt that the two accused had the
subjective intention of killing the deceased by strangling him
- Trial court however also found no sufficient evidence that the accused concerted a
plan to kill the deceased before they went to his house
1
, - Held that when the accused set fire to the bed upon where the deceased lay, they
believed that he was already dead (but he wasn’t and died from carbon monoxide
poisoning)
- In convicting the accused, the trial court held the decision in Thabo Meli v R even
though the appellant’s intention to kill was a matter of improvision in the course of a
robbery
Legal Issue:
Whether on the facts found by the court to have been proved, the crime committed by the
two accused was murder
Arguments:
Appellants
- The state failed to establish mens rae necessary to support a conviction for murder
and that on the facts could only satisfy attempted murder
- The appellants proved intention to kill by strangulation did not achieve its object = so
far as concerns the deceased's death as a result of carbon monoxide poisoning, no
intention to kill can be attributed to the appellants because, at the time they lit the
fire, they believed the deceased to be already dead
Court’s Reasoning:
Ogilvie Thompson JA:
- Counsel did not refer to any Roman Dutch authorities and of what was detailed –
they neither deal directly with the question in issue nor afford any assistance in the
present enquiry
- According to writers referred by counsel for appellants, it would appear that the
modern Dutch law would probably not regard them as having committed murder
- But Rumpff JA points out in his judgment that the writers are not unanimous, and it
would seem that there has, as yet, been no authoritative Court decision on the point
in Holland (or Germany)
- An anonymous writer = two similar cases (in Bombay and Madras) the accused were
held to not be guilty in terms of the Indian Penal Code
2
, o Facts in the Bombay case bare striking resemblance to this case
o But the decision in that case was not unanimous + was criticised
Thabo Meli case:
- The appellants, in accordance with a preconceived plan, took a man to a hut, gave
him beer so that he was partially intoxicated, and then struck him over the head.
- They then, believing him to be dead, took his body and rolled it over a low cliff
- Cause of death was exposure when left unconscious at the foot of the cliff
- The Appeal of the accused was dismissed
- It is important to bear in mind that in Thabo Meli’s case there was a preconceived
plan to kill the deceased in the hut and then stimulate an accident by throwing him
over the cliff
Chiswibo case:
- The accused had hit the deceased on the head with the blunt side of an axe.
- The blow rendered the deceased unconscious and the accused, genuinely believing
that the deceased was dead, put his body down an antbear hole, wherein he died
- The trial court following the decision of Shorty had convicted Chiswibo of attempted
murder
- Constructive intention to kill with the axe was established in this case
Shorty case:
- In this case the first accused had assaulted the deceased with intent to kill him
- The first accused, assisted by second and third accused, disposed of the deceased,
whom all of the three accused mistakenly believed to be already dead, by putting
him down a sewer, where he died of drowning.
- The first accused was held to be guilty, not of murder, but of attempted murder, and
the second and third accused to be accessories after the fact to attempted murder
- Express intention to kill was proved
Back to the facts and application of this case:
3
, - On the medical evidence it was, thus established beyond reasonable doubt that the
deceased's head injuries and his broken neck were caused by appellants within the
ambit of their proved intention to kill which the learned trial Judge described as an
intention to kill by strangling.
- I entertain no doubt that the finding expressed in the terms that "the two accused had
the subjective intention of killing the deceased by strangling him" was not intended to
confine that intention to strangling alone, to the exclusion of the incidental head and
neck injuries, but was intended to comprehend everything done by the appellants up
to the stage when they threw the deceased on to his bed.
- The series of acts by the two appellants constitute a single course of conduct
- The head, neck, and throat injuries suffered by the deceased at the hands of the
appellants hereafter comprehensively called the strangulation injuries were a material
and direct contributory cause of the deceased's dying from carbon monoxide
poisoning.
- Had the deceased not been wholly incapacitated, as a result of what the appellants had
previously done to him, he would have had no difficulty whatever in escaping from the
fire intentionally started by appellants long before any question of carbon monoxide
poisoning could have arisen.
- = the appellants were rightfully convicted of murder
Rumpff JA (concurring judgement in Afrikaans) but in agreement with Ogilvie JA and
Nicholas JA (Trial Court Judge)
Conclusion
- Court finds in favour of the State
- The appeal of both accused is dismissed
(2) R v Nlhovo 1921 AD
Attempts
Facts:
4
