Rex v Mdhluli

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA, Kotzé JA, Gardiner AJA and Watermeyer AJA
• Judgment Date: 29 August 1922
• Citation: 1922 AD 472
• Hearing Date: 29 July 1922
• Court: Appellate Division

Innes, C.J.:

The statement of the woman Nomali Kabindi was taken by the magistrate of Volksrust at Mount Prospect, a place within the area of his jurisdiction as additional magistrate of Newcastle. He arrived there accompanied by the sergeant of police in charge of local prosecutions. He found the woman suffering from severe injuries, and on being informed by the doctor who had first dressed her wounds, that she was "very bad," he endeavoured to obtain a dying declaration. The magistrate could obtain "no satisfactory answer" from the woman in regard to her own appreciation of her condition. Asked whether she thought that she had no hope of recovery, she said that she did not know - which was the only reply which could be got from her. As he considered the matter urgent the magistrate decided to take another course. What followed is best described in his own words. "I thought to myself we must get some statement from her. I then swore her with the intention of holding a preparatory examination. I converted my gathering there, as it were, into a preparatory examination. I bad the deceased sworn, the prisoner was present, and then certain questions were put to and answered by the deceased. The prisoner was given an opportunity of putting questions, although that is not shown in the statement. I am sure he was given an opportunity to ask questions, but he did not actually ask any questions. I did not see him shake his head. I understood that the accused desired to put no questions. The accused was under arrest at that time. There was a white constable there, so I presume he was in custody. The accused was not charged in my presence but he was A prisoner before me. . . . I read the statement in the presence and hearing of the accused, word for word, as I had written it down." There is nothing to show that the police sergeant was consulted or that he intervened in the proceedings in any way. The woman died, and at the trial of her husband for murder her deposition taken as above was produced. There was nothing upon the face of it to connect it with a preparatory examination. Indeed it began with the statement that it was made "in fear of death and without hope of recovery." Though objected to it was admitted in terms of sec. 272 of Act 31 of 1917 as a deposition taken in the course of a preparatory examination, the question of law as to its admissibility being reserved for the consideration of this Court.

Innes, C.J.

The control of criminal prosecutions by the Public Prosecutor is a fundamental principle of South African procedure. The right and duty of prosecution is absolutely under the control of the Attorney-General or Solicitor-General I (as the case may be); and all prosecutors attached to inferior courts are his representatives and subject to his instructions, are charged with the same duty. Only where the Attorney-General declines to prosecute is it possible for a private person, having a due interest in the matter, to initiate criminal proceedings. (See Act 31 of 1917, secs. 7, 13, 14.) This principle is of course much older than the statute referred to and its importance was signally vindicated in Enslin v Truter (1 Searle, p. 207). There the magistrate of a district, where there was no resident clerk of the peace, and where a clerk in the civil commissioner's office lied been appointed to act as public prosecutor, was informed by the Colonial Secretary that such appointment had been made "rather to meet the requirements of the existing law" than with any intention that the person appointed should actually engage in the duties elsewhere discharged by clerks of the peace. The magistrate was definitely instructed that while the name of the prosecutor should appear in all prosecutions at the public instance, the responsibility for the due administration of criminal justice would rest upon himself. Acting upon these instructions, after obtaining the signature of the prosecutor to a criminal charge, he called the witnesses and conducted the case himself, found the defendant guilty and fined him, the prosecutor not being...