Source:

South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to February 2024/1960/Volume 3: 1 ­ 367 (July)/R v NGANG
1960 (3) SA 363 (T)

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R v NGANG 1960 (3) SA 363 (T)

1960 (3) SA p363

Citation 1960 (3) SA 363 (T)

Court Transvaal Provincial Division

Judge Bresler J and Roberts AJ

Heard May 16, 1960

Judgment May 20, 1960

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Criminal law ­ Persons, liability of ­ Mental state ­ Defence of automatism ­ What constitutes ­ Accused dreaming that 'tokoloshe' had entered
his communal sleeping quarters ­ Accused awakening and stabbing one of his room mates in belief that he was a 'tokoloshe'.
Headnote : Kopnota
B Appellant had been convicted on a charge of assault with intent to do grievous bodily harm. In an appeal in consequence of a certificate
granted 'whether the Crown had proved the intent to do grievous bodily harm', it appeared that the complainant had been in a room with a
number of other natives and that whilst he was opening the one half of the stable door preparatory to leaving the room he heard appellant say
'jou C moer'. Complainant had ignored appellant but before he could open the lower half of the door he had been stabbed in the back with a
knife by the appellant. After receiving the stab wound he had noticed that appellant, who was standing near the fireplace in the room, was
beckoning to him and saying 'come here'. Appellant had conceded that no enmity existed between them and that there was no reason for the
offensive words. Appellant had stated in evidence 'I was asleep. I woke D up as a result of a night­mare. I saw a 'tokoloshe', I grabbed my
knife, put it under my pillow, went to sleep again. Again I saw this thing coming in. I got up. I was very frightened as I got out of bed. I
screamed to the inmates of the room to put on the light. This thing was coming to me. I stabbed it. After I had stabbed it I then heard that this
is a human being running out . . .'.
Held, that the offensive words were probably directed to the 'tokoloshe' and not to the complainant.
Held, further, as this had not been proved to be a case merely of E mistaken belief in magic or witchcraft or something like that by a person
whose mind had not otherwise been affected so that a possibility of finding the necessary mens rea could be said to arise, that the Crown had
not discharged the onus on it.
Held, further, as the appellant had acted involuntarily or automatically, that he could not be held criminally responsible for his act which had
been no more than a purely physical reflex. F
Case Information
Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.
Appellant in person.
J. W. Smalberger, for the Crown.
G Cur. adv. vult.
Postea (May 20th).
Judgment
H BRESLER, J.: Appellant appeared before us in person and we have not had the benefit of any argument from him. He merely stated that he
wished to rely on what he said in the court below. Appellant appeared in consequence of a certificate granted 'whether the Crown had proved
the intent to do grievous bodily harm'.
Appellant was convicted on a charge of having assaulted one Allison Makohla with intent to do him grievous bodily harm. It appears that
complainant was in a room with a number of other natives and that

1960 (3) SA p364

BRESLER J
whilst he was opening the one half of the stable door preparatory to leaving the room he heard appellant say 'jou moer'. Complainant ignored
appellant but before he could open the lower half of the door he was stabbed in the back with a knife. It is common cause that his assailant A
was the appellant. After receiving the stab wound he noticed that appellant, who was standing near the fireplace in the room, was beckoning to
him. Complainant conceded that no enmity existed between him and appellant so that the use of the offensive words could not be explained on
the basis of any quarrel. Under cross­examination complainant said that appellant also said to him 'come here'.
B One Paulus Tsitsa gave evidence about the incident and on the whole his evidence coincides with that of appellant. The burden of it was
that the latter told him that he had been attacked by a 'tokoloshe' which apparently is either a creature or demon much dreaded by most
natives. After the stabbing appellant confided in Paulus but the latter C could not be induced to admit that he knew what a 'tokoloshe' was. He
was adamant about this. Accused however freely admitted his belief and indeed he had to.
Accused gave the following evidence in chief:
'I was asleep. I woke up as a result of a night­mare. I saw a 'tokoloshe', I grabbed my knife, put it under my pillow, went to sleep again. Again I saw this thing
coming in. I got up. I was very frightened D as I got up out of bed. I screamed to the inmates of the room to put on the light. This thing was coming to me. I
stabbed it. After I had stabbed it I then heard that this is a human being running out. I went back into the room. A light was put on. I put on my clothes. I asked
the others to come out with me to come and see the person I had injured. They did that. We met him at the gate with the police. He was bandaged at that stage.'

E The magistrate has approached this case with great care and his reasons show that he was well aware of the considerations involved. He
disregarded the plea of guilty as having no significance in the circumstances. In view of the absence of any apparent motive he found that the
evidence of the accused might be true and he then proceeded to analyse accused's own evidence. The court a quo then found that his F
intention was merely to defend himself and then proceeds to state the following:
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'7. Appellant was labouring under various mistakes of fact: ­
 the others to come out with me to come and see the person I had injured. They did that. We met him at the gate with the police. He was bandaged at that stage.'

E The magistrate has approached this case with great care and his reasons show that he was well aware of the considerations involved. He
disregarded the plea of guilty as having no significance in the circumstances. In view of the absence of any apparent motive he found that the
evidence of the accused might be true and he then proceeded to analyse accused's own evidence. The court a quo then found that his F
intention was merely to defend himself and then proceeds to state the following:
'7. Appellant was labouring under various mistakes of fact: ­
that supernatural beings such as 'tokoloshes' exist and wish to harm people; that a knife was a weapon which could be used against a supernatural being; that
complainant leaving the room was a 'tokoloshe' entering the room.
8. None of these mistakes would have been made by a reasonable man.'

G The court a quo then adopted the Crown argument which is recorded in the following terms:

'(i) That appellant's own evidence shows that this case must be distinguished from the usual cases of somnambulism in that appellant awoke, directed his
mind to his problem and decided on the steps he would take in the event of the situation recurring and did take these steps when the situation recurred;

(ii) That while normally one cannot explore the recesses of the human H mind the evidence in this case clearly shows intention and premeditation and that
this stabbing was not merely the reflex action of a savage and violent mentality;

(iii) that accordingly this case falls to be dealt with in accordance with the principles laid down in Gardiner and Lansdown, 6th, ed., vol. 1, p. 59, the cases
relied on being: (a) Rex v Smith, (quoted in Russel on Crimes, 11th ed., p. 490); (b) Rex v Mbombela, 1933 AD 269; (c) Rex v Ndara, 1955 (4) SA 182
(AD) at p. 185.'

The court a quo then said this:

'I was unable to detect any flaw in the Crown's reasoning and convicted.'

1960 (3) SA p365

BRESLER J
Before referring to the decided cases I feel I should refer to what is stated in Gardiner and Lansdown, South African Criminal Law and
Procedure, vol. 1, 6th ed., p. 106, namely:
'Conduct ordinarily criminal is, in general, excused if done in circumstances in which the mind, though not insane or, as in voluntary intoxication, culpably
infirm, ceased to control the motions of the body A as, for example, in involuntary convulsion, misadventure, sleep, unconsciousness, amnesia, or hypnotism.'

In Rex v Ahmed, 1959 (3) SA 776 (W), the Court found that when the appellant stabbed the complainant he acted involuntarily and
automatically and that, as the Crown had failed to prove beyond a reasonable doubt that the appellant knew what he was doing and had done
so with the intent a normal person would have had in the circumstances, he should be found not guilty and discharged.
B There are two other cases which deal with the present point. In Rex v Mkize, 1959 (2) SA 260 (N), it was held to be a good defence to a
criminal charge that the accused when he committed the act complained of was in an unconscious state possessing no judgment, will, purpose
or reasoning.
C There is a case which deals with facts similar to those of the case before us, namely, Rex v Dhlamini, 1955 (1) SA 120 (T), to which I
propose referring.
The head­note reads as follows:
'On a charge of murder it appeared that the accused had just half­wakened out of a nightmare and was acting mechanically without D intention, volition or
motive, when he had stabbed the deceased three times with a knife as the latter had stooped down to pick up a mat near where the accused, who shared a hut
with the deceased and other natives, was sleeping.
Held, that the accused was not guilty of murder.
Held, further, as there was no proof of negligence, that he was not guilty of culpable homicide.'

Then follows this passage:

E 'The utter motiveless and fantastic character of the crime, taken in conjunction with the strange way in which the accused behaved throughout the evening,
does certainly lend considerable colour to his story.
This kind of defence is not unknown. In Gardiner and Lansdown, vol. 1, p. 82, the case of Rex v Nhete, 1941 S.R. 1, is referred to. In that case the accused, a
native, sleeping around a camp fire with another native, killed the latter with an axe under the influence of a nightmare F that he was being destroyed by fire. As
there was an entire absence of motive, his story was accepted as possibly true and he was acquitted. Moorman, Inleid. 2.24 and van der Linden, 2.1.6.14
(quoted by Gardiner and Lansdown at p. 82), both say that if a person, while asleep commits a crime, he cannot be held responsible for it. Matthaeus (in Proleg.
2.13) says there may be cases in which some degree of negligence on the part of a sleep­walker would render him liable to some extent, and he instances the
case of a person, being aware that he is accustomed in his sleep to commit acts of violence, failing to take precautions which he could reasonably take.'

G The magistrate I think was thinking too of the following passage in Rex v Biyana, 1938 E.D.L. 310, namely:
'A mind, which though not diseased so as to provide evidence of insanity in the legal sense, may be subject to a delusion, or to some erroneous belief or some
defect, in circumstances which would make a crime committed under its influence less reprehensible or diabolical than it would be in the case of a mind of normal
condition. Such a delusion, H erroneous belief or defect would appear to us to be a fact which may in proper cases be held to provide an extenuating
circumstance.'

In dealing with the question of sentence the magistrate said that though obligatory it 'seemed underserved in the circumstances'. He suggested
administrative consideration in case the conviction stood.
The matter has given us much food for thought and we are doubtful whether it has been sufficiently shown that the appellant acted with

1960 (3) SA p366

BRESLER J
full knowledge and with the requisite intention. The words 'jou moer' were probably directed to the 'tokoloshe' and not to the complainant who
had done nothing to merit this offensive form of address. Motive is not an essential part of the Crown case but it is conspicuously lacking in A
the present case which led to the passing of the indeterminate sentence.
The Crown has conceded that perhaps the difficulty has been occasioned by the fact that the accused was unrepresented in the court below
with the result that the issues were not as far as the appellant was B concerned presented. The accused did not understand the purport of the
enquiry which was directed at establishing mistake of fact as against involuntary or compulsive conduct. It has not been shown that he could
not retain some recollection of what happened in the course of the attack on complainant whilst in a state of somnambulism. The preparation to
cope with the 'tokoloshe' if it appeared in the course of another C possible nightmare need not amount to normal intention. He could not be
expected to forego sleep because of the possible occurrence of another nightmare. A further point is why the appellant should have wanted to
indicate, if indeed he did, why he no longer acted under the stress of the nightmare which on the face of it was his over­riding preoccupation.
There could have been hardly any delay at all between the impulse born D of the nightmare and the stabbing. Moreover the appellant had
discussed the matter with Paulus and we do not know to what extent he may have been influenced by that and other discussions after this
visitation by the 'tokoloshe', always an occasion no doubt for animated discussion. It has not been shown either, as in the case of Rex v
Dhlamini, supra, E that appellant was a person who was aware that in a somnambulist state he was accustomed to commit acts of violence.
In our view the Crown has not discharged the onus which rested on it. This was not proved to be a case merely of mistaken belief in magic or
witchcraft or something like that by a person whose mind was not F otherwise affected so that a possibility of finding the necessary mens rea
could be said to arise. The appellant acted involuntarily or automatically and cannot be held criminally responsible for his act which was no more
than a purely physical reflex.
In the result the appeal succeeds and the conviction and sentence are set aside.
G ROBERTS, A.J., concurred.
APPENDIX
DIGEST OF CASES ON APPEAL
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 G ROBERTS, A.J., concurred.
APPENDIX
DIGEST OF CASES ON APPEAL

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