R v Smith (1900)

R v Smith[3] is a case decided by the Special Court created by the Indemnity and Special Tribunals Act, 1900 (No 6), sitting in the buildings[4] of the Supreme Court of the Colony of the Cape of Good Hope.[5] It relates to whether superior orders are an excuse[6] or justification.[7] It has been called a leading case.[8][9][10]

Regina v Smith
Decided30 October 1900
Citation(s)(1900) 17 SC 561; (1900) 10 CTR 773
Court membership
Judges sittingSolomon J,[1] Lange J,[2] Maasdorp QC

According to the Cape Times Law Reports, the ratio decidendi[11] of this case is as follows: The orders of a superior officer so long as they are neither obviously and decidedly illegal nor opposed to the well-established customs of the Army, must be completely and unhesitatingly obeyed by a soldier subordinate to such officer. But if such commands are obviously illegal, the inferior will be justified in questioning or even refusing to execute them. An officer or soldier acting under orders from his superior which are not necessarily nor manifestly illegal, will be justified in obeying such orders.[7]

Facts

During the Second Boer War,[12] on 22 November 1899, Peter William Smith, a member of the Cape Police Force and part of a patrol of British troops under the direct command of Captain Chas F Cox, shot and killed John Dolley, a native servant, at Jackhalsfontein, Colesberg, then in Cape Colony, for failing to produce a missing bridle, in obedience to the order "If he does not look sharp, put a hole through him" given by Cox. Smith was charged with the murder of Dolley.[7]

Judgment

Stephen said that in delivering judgment the Court, which was performing the duties of a jury as well as those of judges, found as a fact that Captain Cox believed that Dolley knew where the bridle was when he was told to fetch it, and that he willfully refused to do so; otherwise, there was no disputed question of fact of any importance for them to decide.[13]

The Court in announcing the law on which they acted left on one side the questions whether Captain Cox's order was in fact lawful and whether if it were not his acts and those of Smith were covered by the Act of Indemnity: and held that even if Captain Cox's order was unlawful, Smith was bound to obey it if it was not obviously and decidedly in opposition to the law of the land, or to the well-known established customs of the army. The rule was that if a soldier honestly believed he was doing his duty in obeying the commands of his superior and if the orders were not so manifestly illegal that he must or ought to have known that they were unlawful, the private soldier was protected by the order of his superior officer. Smith was accordingly acquitted.[13]

Novelty

This case was the first to be heard before the Special Court.[14]

It was reserved for the Court to give the first authoritative judgment on what had previously been a moot point, namely, what according to civil, as opposed to military, law is the position of a soldier who commits homicide at the order of his superior officer?[6]

In 1901, Stephen said:

It is probable that had the case been tried in England the question of law would have been decided precisely as it was by Mr. Justice Solomon and his colleagues. Case law is practically silent on the point, and the only statutory provision on the subject seems to be sect 9. of the Army Act, by which 'any person subject to military law' who 'disobeys any lawful command given by his superior officer' is liable in some cases to death, in others to penal servitude. The matter has not, however, escaped attention, and the judgement of the Court is in fact delivered in the terms of the Manual of Military Law, ch. iii, par. 11, which is in accordance with the view suggested by Sir James Stephen in his History of the Criminal Law, vol. i. p. 205. The point is not dealt with by the Draft Code of the Commission of 1878; but sect. 50 of that Code applies a similar rule to the acts of a soldier in supressing a riot, when he is justified in obeying the command of his superior officer, unless such order is manifestly illegal. The report of Lord Bowen's Committee on the Featherstone riots hardly touches the liability of the private soldier, being chiefly occupied with the duty of the officer, and being in any case confined to the case of a riot.

The South African Court . . . thus had a pretty free hand in the matter . . .[13]

Subsequent judicial history

This case was followed[15] in R v Celliers.[16] It was not followed[17] in R v Van Vuuren.[18] It was held not to apply to the order in R v Werner.[19]

Reports

This case was reported in the Supreme Court Reports and the Cape Times Law Reports.[4] In 1901, Stephen said that the report in the Cape Times was the best report yet to hand[6] and he hoped a proper report of the case might be produced in some form easily accessible to the English practitioner.[13]

Bail
Regina v Smith
Decided23 August 1900
Citation(s)(1900) 10 CTR 486
Court membership
Judges sittingBuchanan ACJ, Maasdorp J, Solomon J[20]
Keywords
  • Murder
  • Bail

The Supreme Court of the Cape of Good Hope refused Smith's application for bail.[21][22]

References
  • The Digest of South African Case Law. Consolidated Edition. Juta & Co. Cape Town and Johannesberg. Volume 1. Column 372. 1927. Volume 2. Column 154.
  • Manfred Nathan. The Common Law of South Africa. African Book Company. 1907. Volume 4. Page 2422.
  • Anders and Ellson. The Criminal Law of South Africa. W E Hortor & Co. Johannesburg. 1915. Pages 7, 131 & 214.
  • Callie R Snyman. Criminal Law. Butterworths. Durban. 3rd Edition. 1995. Pages 124 and 125. 4th Edition. 2002. Pages 133 and 134. 5th Edition. LexisNexis. 2008. Page 138.
  • Clemence Masango. Criminal Law Manual. Juta Zimbabwe (Pvt). 1995. Page 44.
  • O'Connor and Fairall. Criminal Defences. 2nd Edition. Butterworths. 1988. Pages 166 & 167.
  • "Legal News" (1901) 45 The Solicitors' Journal 602 (22 June 1901)
  • "A Soldier's Responsibility when acting under orders" (1901) 18 South African Law Journal 110. See also p 103.
  • "The Plea of "Superior Orders" in War Crime Cases" (1945) 95 The Law Journal 242 (28 July 1945)
  • Bradford, "Barbarians at the Gates" [2004] 73 Mississippi Law Journal 639 at 849
  • Green, "Superior Orders and Command Responsibility" (2003) 175 Military Law Review 309 at  321
  1. As to the identity of Solomon J, see "The Special Court, Cape Colony" (1900) 17 Cape Law Journal 337
  2. As to Lange J, see "Sir John Lange" (1920) 37 South African Law Journal 395 at 396
  3. Also called "Reg v Smith" and "Queen v Smith" and "Queen v P W Smith"
  4. R v Smith (1900) 17 SC 561; (1900) 10 CTR 773
  5. Chalmers and Hood Phillips' Constitutional Laws of Great Britain, the British Empire and Commonwealth. 6th Edition. 1946. p 300. Owen Hood Phillips. The Constitutional Law of Great Britain and the Commonwealth. Sweet & Maxwell. 1952. p 406.
  6. H L Stephen, "Superior Orders as Excuse for Homicide", (1901) 17 Law Quarterly Review 87
  7. R v Smith (1900) 10 CTR 773
  8. As to South Africa, see: S v Banda and Others 1990 (3) SA 466 at 480 (B) per Friedman J. Ellison Kahn, Law, Life, and Laughter, Juta & Co Ltd, 1991, p 107. Digby Sqhelo Koyana, Influence of the Transkei Penal Code on South African Criminal Law, Lovedale Press, 1992, p 76. Burchell and Milton, Principles of Criminal Law, Juta & Co Ltd, 1991, p 292.
  9. As to Lesotho, see R v Molapo (1986) CRI/T/2/86 at p 8, High Court of Lesotho
  10. As to England and Canada, see: Geoffrey Creighton "Superior Orders and Command Responsibility in Canadian Criminal Law" (1980) 38 University of Toronto Faculty of Law Review 1 at 15 (see also p 5). Lippman, "Conundrums of Armed Conflict" [1996] 15 Dickinson Journal of International Law 1 at 7; Lippman, "The Development and Scope of the Superior Orders Defense" [2001] 20 Penn State International Law Review 153 at 163.
  11. This is what headnotes do: Machaha, A Simple Guide to the Introduction of Law, Law Development Centre, 2004, p 31; Geldart, Elements of English Law, 1911, Reprinted 1918, p 18; Legal Research Materials and Methods, 4th Ed, LBC Information Services, 1996, p 110.
  12. Anders and Ellson. The Criminal Law of South Africa. W E Hortor & Co. Johannesburg. 1915. Page 9.
  13. H L Stephen, "Superior Orders as Excuse for Homicide" (1901) 17 Law Quarterly Review 87 at 88
  14. R v Smith (1900) 17 SC 561
  15. S v Banda and Others 1990 (3) SA 466 at 482 per Friedman J. Snyman, Criminal Law, 3rd Ed, 1995, p 124.
  16. Rex v Celliers [1903] ORC 1 (Google Books)
  17. (1944) 61 South African Law Journal 97; S v Banda and Others 1990 (3) SA 466 at 482; R v Molapo (1986) CRI/T/2/86 at p 8, High Court of Lesotho
  18. Rex v Van Vuuren 1944 OPD 35 at 38
  19. Rex v Werner and Another 1947 (2) SA 828 (A); (1947) 14 International Law Reports 203; (1947) 60 International Law Studies 385 at 389. See further 5 Bond Law Review  6
  20. As to the identity of Buchanan ACJ , Maasdorp J and Solomon J, see 10 CTR, page following title page
  21. Regina v Smith (1900) 10 CTR 486; Queen v Smith (1900) 17 Cape Law Journal 277
  22. For further commentary, see In re Dinuzulu (1908) 29 Natal Law Reports 51; Swift, The South African Law of Criminal Procedure, 1957 p 137; Nathan, The Common Law of South Africa, 1907, vol 4, p 2671.
Attribution
  • Public Domain This article incorporates text from this source, which is in the public domain: J D Sheil, Howel Jones and P S Jones (reporters). Cape Times Law Reports of all Cases decided in the Supreme Court of the Cape of Good Hope during the Year 1900. Volume 10. Cape Town. 1901.
  • Public Domain This article incorporates text from this source, which is in the public domain: H L Stephen, "Superior Orders as Excuse for Homicide" (1901) 17 Law Quarterly Review 87 to 88
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