S v MTEWTWA [1977] 3 All SA 219 (E) Case Notes

Division: Eastern Cape Division
Judgment Date: 24 March 1977
Case No: Not recorded
Judges: Smalberger J and Stewart J
Parallel Citation: 1977 (3) SA 628 (E)
Keywords: Criminal Law - Compulsion - Onus of proof - Duty of State to show accused did not act as reasonable man

The accused was charged with housebreaking with intent to steal and theft from a store at the municipal abattoir in Colesberg.
The accused pleaded guilty, stating, "Die oppasser het my gestuur" (The warder sent me).

The accused testified that he and another prisoner were sent to the abattoir to tidy the grounds under a warder's supervision.
The warder ordered him to break into the abattoir, remove meat, and give it to the warder.
The warder threatened the accused with 12 days of solitary confinement if he refused.
The accused claimed he stole the meat because the warder forced him to do so.

The defense raised was that of compulsion or necessity.
The magistrate and Attorney-General were consulted to determine if the State had disproven this defense and if the sentence was excessive.

The magistrate accepted that the accused broke in at the warder's instance.
However, the magistrate considered the threat not immediate enough to excuse the accused's conduct.

The Attorney-General doubted the accused's credibility because he only mentioned the threat when giving evidence.
The Attorney-General also deemed the threat insufficient to warrant the accused's actions.

The court found that the accused's manner of raising the defense should not be held against him, given that he was unrepresented.
The court noted that the accused made it clear from the outset that the warder had instructed him, implying a lack of voluntary action.
The magistrate accepted that the accused's evidence might reasonably be true.

The Attorney-General emphasized that the defense of compulsion must be narrowly confined due to the danger of excusing criminal acts.
Reference was made to several cases:
- R. v. Mahomed and Another, 1938 A.D. 30 at p. 36
- R. v. Canestra, 1951 (2) S.A. 317 (A.D.) at p. 324
- S. v. Pretorius, 1975 (2) S.A. 85 (S.W.A.) at p. 89
- S. v. Goliath, 1972 (3) S.A. 1 (A.D.) at p. 11

The court cited S. v. Goliath, emphasizing that the assessment of the accused's actions must consider the "fictiewe normale mens" (fictive normal man) in the accused's position, subject to external circumstances and physical conditions.
The principle from Goliath's case (p. 25F) states that a murder charge acquittal based on duress depends on the specific circumstances, requiring careful examination and cautious judgment of the entire factual complex.
In cases where $A$ kills $B$ to save his own life, the strength of the compulsion is critical and should be comparable to vis absoluta (absolute force), such that a reasonable person could not withstand it, referencing R. v. Mtetwa, 1921 T.P.D. 227 and R. v. Garnsworthy, 1923 W.L.B. 17.

Cases like Pretorius clarify that the onus is on the State to prove a reasonable man would have resisted the compulsion.
The accused does not bear the onus of proving they acted under compulsion.

The court disagreed with the Attorney-General and magistrate's view that the accused did not act reasonably.
The court dismissed the criticism that the accused did not complain to the inspector in the warder's presence.
The court also addressed the imminence of the threat, stating that the State must show the accused could have reasonably complained to prison authorities and averted the threatened confinement.
The State did not prove the accused could reasonably complain to the prison authorities and avert the threatened confinement.

The continuous authority of the warder over the accused distinguished this case from R. v. Chipesa, 1964 (4) S.A. 742 (S.R., A.D.).

The central issue was whether the State disproved the defense of compulsion beyond a reasonable doubt.
The State needed to prove that a reasonable man, threatened with 12 days of solitary confinement, would not have broken into the store and stolen the meat.

The offense was not serious; the meat's value was 40c, and the damage was assessed at 50c.
Solitary confinement is recognized as a rigorous penalty imposed only under special circumstances.

Weighing the offense's gravity against the potential harm of the threat, the court had doubt as to whether a reasonable man would have acted differently.
The State failed to discharge the onus, and the accused should not have been convicted.
The conviction and sentence were set aside.