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[1985] ZASCA 41
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S v Ngubane (30/83) [1985] ZASCA 41; [1985] 2 All SA 340 (A) (28 May 1985)
Case no 30/83
m c
SOLOMON MKHANYISELWA NGUBANE
- and -
THE STATE
JANSEN JA.
Case no 30/83 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
SOLOMON MKHANYISELWA NGUBANE
Appellant
- and -
THE STATE
Respondent
Coram:
JANSEN, CORBETT, MILLER, TRENGOVE et VILJOEN JJA.
Heard
: 24 FEBRUARY 1984.
Reasons filed:
28 May 1985
1.
REASONS FOR JUDGMENT
.
JANSEN JA
:-
The appellant was convicted in the Natal Provincial Division (
per
THIRION J and assessors) of murder with extenuating circumstances and sentenced
to 10 years imprisonment. He appeals against the
conviction on the following
"special entry" made, on his application,
by the presiding judge :-
" whether the effect of the prose=
cutor's willingness to accept a plea of guilty to culpable homicide had the
effect of reducing the charge from murder to one of culpable
homicide and
whether the Court therefore acted irregularly in adjudicating on the charge of
murder."
The appellant's case is that it was incompetent for
the court to convict him of murder and that the court
should have convicted him of culpable homicide, with
a consequential /
2. a consequential reduction of the period of imprison=
ment by, it is suggested, 5 years.
It is clear from the record and the presiding
judge's reasons for making the special entry that when
called upon to
plead to the indictment for murder, the
appellant pleaded guilty to culpable
homicide after
counsel for the appellant had told the court that
the
prosecutor was prepared to accept that plea. The
prosecutor did not at any
stage inform the court to
the contrary and the court consequently assumed
that
the prosecutor had accepted the plea of guilty to
culpable homicide.
It is common cause that it was in
fact the prosecutor's intention to do so
and that the
court's assumption was fully justified.
Counsel /
3.
Counsel for the appellant then handed in a statement
signed by the appellant. Counsel described it as
"a written statement of admissions and a version of
events which I have checked with the accused and which
my learned friend
for the prosecution is prepared to
accept as a record of what happened on the occasion in
question". The
presiding judge understood this to
be a statement in terms of sec. 112 (2) of Act 51 of
1977. Paragraph 5 of the statement read as follows :-
"When he stabbed the deceased, the accused
did not act intentionally, but negligently,
in that a reasonable man would in the
circumstances have realized that he was
acting unlawfully, and that his actions
would cause the death of the deceased."
The presiding judge says in this regard :-
"I / .........
4.
"I perused the statement and came
to the conclusion that paragraph 5 of the statement was worded in a manner
which, although it might set out the law correctly, would
hardly have made sense
to the accused. I accordingly decided not to proceed on the strength of the
statement but to question the
accused. I proceeded to do so without actually
having obtained confirmation from the prosecutor that he was prepared to accept
the
plea. I simply assumed that he was prepared to accept the plea because of
what counsel for the accused had said.
The accused told me his version of the killing. In the course of doing so the
accused said that he was 'much' under the influence
of liquor at the time of the
killing and that a quarrel arose between him and the deceased. He said: I don't
know how I stabbed her
but she got injured. I stabbed her.' He was unable to say
how many times he stabbed her or how it all came about. On the facts stated
by
the accused and particularly because of his vagueness about what happened I was
not satisfied that the accused was admitting facts
which would prove all the
elements of
the/.....
5 .
the crime of culpable homicide and conse=
quently I changed the plea to one of
not guilty."The presiding judge considered himself entitled to do so in terms
of sec. 113 of the Act. (In his reasons he adds "but
I venture to say that quite
apart from the provisions of that section I would have had that right", a matter
which, however, need
not now be considered.) He then directed the prosecutor to
call the State's evidence. This was done and the appellant also gave evidence
on
his own behalf. The conviction of murder with extenuating circumstances then
ensued.
Section 106 (1) (a) of the Act clearly entitles
an /.....
6.
an accused on indictment for murder to plead
"that he
is guilty of the offence charged or of any offence of
which he may be
convicted on the charge", including
culpable homicide (sec. 258(a)), and sec.
112 clearly
envisages that the prosecutor may accept such plea,
with the
result that, subject to certain safeguards, the
accused on his plea of
guilty, may be convicted "of the
offence bo which he has pleaded guilty".
However, sec.
113 provides that in certain circumstances a plea of not
guilty must be
recorded :-
"If the court at any stage of the proceedings under section 112 and before
sentence is passed is in doubt whether the accused is in
law guilty of the
offence to which he has pleaded guilty or is satisfied that the accused does not
admit an allegation in the charge
or that the accused has incorrectly admitted
any such allegation or that the
accused / .....
7.
accused has a valid defence to the charge, the court shall record a plea of
not guilty and require the prosecutor to proceed with
the prosecution: Provided
that any allegation, other than an allegation referred to above, admitted by the
accused up to the stage
at which the court records a plea of not guilty, shall
stand as proof in any court of such allegation."
It is a matter of some difficulty, in the.
absence of specific provision
in the Act, to determine
what the position is where e.g. a plea of
culpable
homicide is accepted by the prosecutor in respect of
an
indictment for murder and the court subsequently
records a plea of not guilty in terms of sec. 113 and
requires the prosecutor "to proceed with the prosecution".
Does the plea so entered relate to the charge of murder
or does it relate to culpable homicide? Does the
prosecutor / .....
8. prosecutor proceed with a prosecution for murder or
for culpable homicide? Our writers on criminal procedure are not in agreement
on
this
Hiemstra e.g. (Suid-Afrikaanse Strafproses, 3rd ed., p. 268; Tweede
Kumulatiewe Byvoegsel 1983, p. 16) is of the opinion that a plea
recorded in
terms of sec. 113 relates to the original charge and that the prosecution
proceeds in respect of such charge, whereas
writers such as
Van der Merwe,
Barton and
Kemp (Plea Procedures in Summary Trials, pp. 41-43) hold the
opposite view.
Many of the apparent difficulties seem to arise from an attempt to categorize
acceptance of a plea (as envisaged by sec. 112) as being
either a
withdrawal /
9.
withdrawal under sec. 6 (a) or a stopping of a prosecution under sec. 6 (b).
(Cf. Kotzé, 1978 De, Jure 211, 1979 THR-HR44;
Joubert
, 1982 De
Jure 345). Strictly speaking it would seem to be neither. It must be seen as a
sui
generis
act by the prosecutor by which he limits the ambit of the lis
between the State and the accused in accordance with the accused's
plea. whether
one in a case such as the present speaks of amendment, withdrawal or abandonment
of the murder charge does not really
seem to matter. That the
lis
is
restricted by acceptance of the plea appears from sections 112 and 113. The
proceedings under the former are restricted to the
offence "to which he has
pleaded guilty" and the
latter /
10.
latter must be read within that frame.
In my view the question posed in
the "special entry" must be answered in the affirmative. As it is plain that "a
failure of justice
has in fact resulted" from the irregularity, this Court
should intervene (cf. sec. 322(1) of the Act).
Counsel for the State and for
the appellant are agreed that if this is to be done, the conviction of murder
should be altered to a
conviction of culpable homicide. The agreement obviously
rests on the assumption that the evidence discloses that the appellant
negligently
killed the deceased. The court a
quo
came to the conclusion
that the appellant intentionally killed Maureen Ndlovu, a woman with whom he had
some association :-
"I have /
11.
"I have already said that in our view the accused has grossly exaggerated the
state of his insobriety. Even if there was some provb=
cation, then in our view
the accused did not lose his power of self-control, but was at all times able to
foresee and did foresee
the conse= quences of his acts, and did form the
intention to kill her. He stabbed the deceased not once but five times, and he
then
fled from the scene where he had killed her. In our view the accused must
have foreseen and did foresee that the stab wounds which
he was inflicting on
the deceased would cause her death, and he nevertheless stabbed her, reckless
whether death resulted or not.
The one stab wound which proved to be fatal,
penetrated to a depth of 8 centimetres. It is in that part of the body which
seems to
attract Okapi knives, because almost invariably it is the left clavicle
where the knife enters."
This appears to reflect a finding that the form of intention was
dolus
eve
ntual is
. The inference of intention appears to
be fully justified.
But no doubt a reasonable man in the
position of the appellant would not only
have realized that
his /
12.
his use of the knife could lead to death but he would also have
refrained from attacking the deceased in the manner he did. On this
basis it
could be said, as counsel have assumed, that the charge in reality being one of
culpable homicide, the evidence establishes
the commission of that offence by
the appellant.
However, it is a moot point whether proof that a killing was
intentional does not negative it being negligent and whether an intentional
killing can ever constitute culpable homicide, particularly as the instances of
"partial excuse" have fallen by the wayside (
s v Bailey
1982(3) SA
772(A)). The preponderance of judicial opinion is that on a charge of culpable
homicide the accused may be convicted of
that offence despite the killing being
found
to /
13.
to have been intentional (
S v September
1972(3).SA 389(C);
S v Smith
1981(4) SA 140(C);
S v Zoko
1983(1) SA 871(N);
S v Breakfast
1984(3) SA 302 (E C);
contra S v Alexander
1982(4) SA 701 (T)). Some of our writers (e g
Rossouw
1973 1HR-HR
161 and
Du Plessis
1984 SAW 50)
are of the same
view, but the majority maintain the contrary. (Cf .De
Wet
en Swanepoel, Strafreg, 3d 155; Hunt, Criminal Law
Vol II, 2d 417-419;
Van der Merwe & Olivier
, Onregmatige
Daad, 4th 131;
Van der Merwe
1972 THR-HR 299, 1983
THR-HR 82;
Middleton & Rabie
1972 THR-HR 383;
Hugo
1973 SALJ 334
;
St Q Skeen
1983 SALJ 177
;
Van Oosten
1981 De Jure 343, 345;
Snyman
, LAWSA Vol 6 par 259,
Strafreg 199). These writers in effect agree that
dolus
excludes
culpa
(
negligence
).
The two main bases for the view that a killing
cannot /
14.
cannot be both intentional and negligent appear to be
the following: (i) "the logical impossibility of con=
cluding that a man may at one and the same time foresee
certain consequences and also fail to foresee those very
consequences" (
Hugo
, supra, at p 337; and cf Hunt,
supra,
at 417-418;
St Q Skeen
180-81); (ii) the
premiss that
dolus
and
culpa
are incompatible concepts.
These two propositions must now be considered.
The "logical impossibility" seems to be the
ratio in
S v Alexander
(supra) for accepting that
proof of intention (dolus) excludes
culpa
,as appears
from the following passage (p 705 G-H) :-
"Ek kan met respek nie saamstem met die beslissings in die September en
Smith
sake
sup
ra nie.
Moord /
15.
Moord is die wederregtelike opsetlike veroorsaking van die dood van 'n
medemens. Strafbare manslag is die wederregtelike nalatige
veroorsaking van die
dood van 'n medemens.
Hoewel die skeidslyn tussen
dolus
eventualis en
culpa
soms eng
is, kan daar geen twyfel bestaan dat dit twee selfstandige en onder= skeibare
skuldvorms is nie. S v Ntuli 1975(1) SA 429
(A) te 436-7;
S v Burger
1975(4) SA 877 (A).
In die geval van dolus word
die dader
ve
rwyt
dat hy die gevolg
voo
r
sien h
et en hom daarmee versoen het of dat dit sy oogmerk was.
In die geval van c
ulpa
word dit
die dader ju
is ve
rwyt dat hy
die gev
o
lg nie voorsien he
t en voorsorg teen die intrede daarvan
getref het nie." (My underlining.)
The last paragraph raises the impossibility of foreseeing and not foreseeing
at the same time.
The "logical impossibility" cannot, however, legitimately be used to justify
the conclusion that
proof /..
16. proof of
dolus
necessarily excludes culpa. It is true
that
dolus
postulates foreseeing, but
culpa
does not
necessarily postulate not foreseeing. A man may foresee
the possibility of harm and yet be negligent in respect
of that harm
ensuing, e g by unreasonably underestimating
the degree of possibility or unreasonably failing to take
steps to avoid
that possibility. In such a case the .
paradox of foreseeing and not
foreseeing does not arise
at all. The concept of conscious (advertent)
negligence
(luxuria) is well known on the Continent and has in recent times often been
discussed by our writers. (Cf
Burchell
and Hunt
Criminal Law Vol 1, 2d 148-50, 194;
Snyman
,
Strafreg 170, 199; Bertelsman
1974
Acta Juridica
38
, 1975
SAW 67, 1980 SACC 33;
Morkel
1981 SACC 162, 1982 THR-HR 321, 1983
THR-HR 87;
Middleton
1973 THR-HR 181;
Van
Oosten / .
17.
Oosten
1982 THR-HR 183, 423).
Conscious negligence is not to be equated with
d
olus eventualis
. The distinguishing feature of
dolus
eve
ntu
a
lis
is the volitional component: the agent (the
perpetrator) "consents" to the consequence foreseen as a, possibility, he
"reconciles himself" to it, he "takes it into the bargain".
(Cf the Dutch
authors cited in S v
Dladla en Andere
3 980(1) SA 1(A) 4 B-G). Our cases
often speak of the agent being "reckless" of that consequence, but in this
context it means consenting,
reconciling or taking into the bargain (cf Snyman
Strafreg 168, cited in
S v Swanepoel
1983(1) SA 434 (A) 456 H) and not
the "recklessness" of the Anglo American systems nor an aggravated degree of
negligence. It is
the particular, subjective, volitional mental state in regard
to the foreseen possibility which characterizes
dolus eventualis
and
which is absent in lux
uria.
In / ........
18.
In principle it should not matter in respect
of
dolus
ev
entuali
s whether the agent foresees (subjectively)
the possibility
as strong or faint, as probable or
improbable (cf
S v De Bruyn
1968(4)
SA 498(A) 510),
provided his state of mind in regard to that
possibility
is "consenting", "reconciling" or "taking into the
bargain".
However, the likelihood in the
eyes of the
agent
of the
possibility eventuating must obviously
have a bearing on the question whether
he did "consent"
to that possibility. No doubt this is what Snyman
(Strafreg 169) has in mind when he states that "as die
dader die gevolg
slegs voorsien as 'n verwyderde of
vergesogte moontlikheid, is daar na my
mening nie
dolus
eventu
a
lis
nie". Some writers, however, approach the
matter /
19.
matter somewhat differently.
Burchell and
Hunt
Vol 1 (p 152-4) states that the "recklessness" required
for dolus
event
u
al is
:-
"means the taking of a conscious risk. The accused foresees the consequence
in question as a real possibility and yet persists in
his conduct irrespective
of whether it does
result or not .. It seems
in every situation where the accused does foresee the consequence as at least
a real possibility and nevertheless persists in his
conduct irrespective of
whether it results or not, he does consciously take the risk of it
happening."
Morkel
(1981 SACC 162, at 173) says that :-
"the distinction between
dolus even
tualis and conscious negligence is
however not to be found in a voluntative element. In the case of
dolu
s
eventualis
the perpetrator is blamed for having acted. despite having
foreseen as a
concrete
possibil
ity /
20.
possibility that his conduct may be
criminal."
Apparently the "perpetrator" sees it as a
concrete possibility if he realizes that "on a preponderance of probability" it
may well
happen. It must, however, be remarked that if the agent persists in his
conduct despite foreseeing a consequence as a real or concrete
possibility, the
inference could well be drawn that he "reconciled" himself to that consequence,
that he was "reckless" of that consequence.
The concept of conscious
negligence clearly establishes that foresight
per
se does not exclude
negligence. The "logical impossibility" of at the same time foreseeing and not
foreseeing does therefore not
assist in the solution of the present problem.
This /
21.
This disposes of the first ground for holding that dolus excludes
culpa. It is now necessary to turn to the question whether dolus
does not
exclude culpa because they are incompatible concepts.
It may be accepted that
d
olus
and culpa are conceptually different: that c
ulpa
as opposed
to
dolus
, is an aliud and not a minus (Ha
zewinkel-Suringa
,
Inleiding
tot de Studie van het Nederlandse Strafrecht, 8th ed 172;
Snyman
, Strafreg, 199 n 20). This difference is so fundamental that it
may be conceded that the two concepts never overlap. It may also
be conceded
that, at least theoretically, proof of dolus does not necessarily amount to
proof of
culpa
. But this is not the end of the enquiry. The question
remains whether proof of dolus
necessarily/
22.
necessarily excludes culpa.
Dolus connotes a volitional state of mind.
Culpa, it would seem, may entail no state of mind at all. The mere labelling of
culpa as
a form of
mens rea
does not necessarily and decisively point to
the contrary. The view generally held by our courts is that
culpa
is
constituted by c
onduc
t falling short of a particular standard, viz that
of the reasonable man (cf
Snyman Strafr
eg 196-8, 199-200;
Van der
Me
rwe &
Olivier
Onregmatige Daad "4th ed 131-152;
Van der
Walt
Delict 8 par 36, 39, 41;
Burchell
& Hunt Vol l 196-200).
Although the reasonable man standard may to some extent be individualized in
certain circumstances, it
remains an objective standard. If failing to meet such
a standard of conduct is the essence
of /
23.
of
culpa
, then it seems unrealistic to equate it to a
state
of mind at all. Some of our writers, however,
propound a "subjective test"
for negligence. A few may
be mentioned.
Milton
(
Hunt
Vol 11 2d
413-4) and E M
Burc
hell-
(Burchell and
Hunt
Vol 1 2d 194-6) are of the view that culpa
does
relate to a state of mind, viz inadvertence: "a state
of mind in the sense
that the actor has failed to exercise
such mental and physical capacities as
he possesses and
which, if exercised would have caused him to take
measures
to avoid the risk of harm to others".
De Wet
(Strafreg
3rd ed 155-6) appears to be to the same effect :-
"Die vraag of 'n persoon nalatig gehandel
het is 'n vraag na sy gesindheid
[a state of mind] by nalatigheid
[stel mens] die vraag of hy onagsaam was
ten / ..
24.
ten aansien van die gevolg of die onge= oorloofdheid van sy
doen of late ......
In al hierdie gevalle kom die vraag of daar c
ulpa
was, maar eenvoudig
hierop neer of hierdie beskuldigde sy geestes= kragte na die beste van sy vermoe
ingespan het, om die pleging
van onreg te vermy ....
Die vraag is dus of hierdie besondere beskuldigde, in hierdie gegewe
omstandighede tekort geskiet het in die inspanning van sy. geesteskragte
om die
feit, wat horn ten laste gele word, te vermy. Die toets is suiwer subjektief.
Mens moet dus rekening hou met die beskuldigde
se persoonlike en liggaamlike
eienskappe."
(
De Wet
apparently discards the
reasonable man test
completely whereas
Milton
and E M Burchell retain
it, but
merely as a criterion for determining unlawfulness - cf
Botha
1977 SALJ 29
,
Bertelsmann
1974
Acta Juridica
37
n
17. So
applied the test is not in all respects the same as that used by
Sny
man
Strafreg 79-80, 195-6 and
Van d
er Merwe
Onregmatige / ......
25.
Onregmatige Daad 134-5 for this purpose). It is also said that recent cases
disclose a swing to the subjective approach (cf
Burc
h
ell
and
Hun
t Vol 1 2d 201-3;
Bertelsmann
1975 SAW 62
,67;
Schafer
1978 SAW 201)
and that the case of
S v Van As
1976 (2) SA 921
(A)
confirms this. It is, however, unnecessary for present purposes to express any
opinion on this view, save for mentioning that
there may be some doubt as to
whether the phrase "redelikerwyse kon en moes voorsien het", used in
Van
As, connotes anything more than the conventional objective standard, albeit
somewhat individualized.
If the objective test for
culpa
is applied, the question is whether
the con
duct
of the agent measured up to the standard of the reasonable
man in the circumstances;
if /
26.
if the subjective test were to be applied, the question appears to be
whether the
conduct
of the agent measured up to the standard of his own
capabilities. In a criminal trial the factum
probandum
would then be the
failure of the accused to have complied with that standard (whichever. it may
be). This appears to be a far cry
from requiring proof of an actual mental state
such as "inadvertence". As has been pointed out above the concepts of
dolus
and
culpa
are totally different.
Dolus
connotes a
volitional state of mind;
culpa
connotes a failure to measure up to a
standard of conduct. Seen in this light it is difficult to accept that proof of
dolus
excludes culpa. The facts of the present case illustrate
this / ........
27
this. The appellant, somewhat under the
influence of liquor, without premeditation and as a result of some provocation
stabbed the
deceased five times, the fatal injury penetrating the heart. The
inference drawn by the court a
quo
that he foresaw the possibility of
death ensuing and that he killed intentionally (
dolus
eventualis) is
clear. This, however, does not preclude the matter being viewed from a different
angle: did not the appellant, foreseeing
the possibility of death ensuing
by
failing to curb his emotions and failing to desist from attacking the deceased,
fall short of the standard of the reasonable man
(or, if the subjective approach
were to be applied, to measure up to the standard of his own capabilities)? The
existence of
dolus
does not preclude
the /
28. the answering of this question in the
affirmative.
On this approach
dolus
does not
exclude
culpa
and it is unnecessary to alter the accepted definition of
culpable homicide (viz the unlawful, negligent killing of another person),
as
was done in S v Zoko (
supra
). What must, however, be emphasized is that
definitions of culpa specifically requiring the absence of
dolus
(e g
Van de
r
Me
rwe Onregmatige Daad 131) are not in conformity with the
views here expressed.
In the present case the facts disclose that the
appellant was negligent in causing the death of the deceased. The charge being
one
of culpable homicide (as found above) the conviction of murder should be
altered accordingly. This, in addition, would require
some /
29.
some adjustment of the sentence. A reduction by 5 years (as
suggested by counsel for the appellant) would, however, be too lenient
in the
circumstances. In my view the sentence should be altered to 7 years
imprisonment.
For these reasons the following order was made :-
"(a) The conviction of. murder is altered to 'guilty of culpable homicide';
(b) The sentence of 10 years imprisonment is reduced to 7 years
imprisonment."
E.L. JANSEN JA.
CORBETT JA ) MILLER JA ) TRENGOVE JA ) VILJOEN JA )