R v Nhleko

• Jurisdiction: South Africa
• Judge: Schreiner JA, Van Blerk JA and Van Winsen AJA
• Judgment Date: 19 September 1960
• Hearing Date: 12 September 1960
• Court: Appellate Division

Schreiner, J.A.:

The appellant was, together with one Jerry Mlota, charged with murdering an unknown non-European on Saturday the 26th December, 1959, at Pongola, in the district of Piet Retief. They were tried by a Court consisting of HIEMSTRA, J., and assessors sitting in G the Transvaal South-Eastern Circuit Court. Jerry, who was the second accused, was acquitted but the appellant was convicted and sentenced to death. Leave to appeal was granted by the learned trial Judge.

It will be convenient, before dealing with the facts in detail, to H mention certain features which indicate the nature of the case and show why it is an unusual one. In the first place no body or portion of a body was found. In the next place there was no proof of the disappearance at that time in that neighbourhood of any person who might have been the victim of a murder. Of the two principal witnesses against the appellant one was the second accused, Jerry, who in testifying on his own behalf stated that on the night in question on the main Pongola-Gollel road he saw the appellant kill a strange man whose body they deposited in a drainage furrow alongside the road.

Schreiner JA

The other witness, one Moya Dhlamini, described how on the same night he was with the appellant when the latter disembowelled and decapitated the body. He also described how the appellant later disposed of the portions severed from the body. Both these witnesses stated that on the following A Wednesday night, the 30th, they took part with the appellant in removing the body to another place, in a sugar plantation, 200 yards away, and Jerry described a further removal on the following, Thursday, night to a bushy and marshy place some 350 yards from the second place. Both these witnesses were on their own versions accessories after the fact of the murder, Jerry being acquitted of being such because the B Court found that he had acted under compulsion proceeding from the appellant. One Elfas testified to detecting a strong smell as of decaying flesh on Sunday the 27th near the place in the furrow where, according to Moya and Jerry, the body was then lying. A police constable stated that the smell was still there on the 31st, and that it looked as if some object had lain in the furrow. The same constable testified that C at the place in the plantation to which, according to Moya and Jerry, the body was removed on the Wednesday there were also marks as though something had lain there. The constable also said that he could smell something rotten at this place, but this was not in harmony with his evidence at the preparatory examination. No traces of blood were found D in either place. Two other pieces of evidence, one of minor but the other of crucial importance, were relied upon by the Court in conviction the appellant. The same constable as had spoken of detecting the smell of rotting flesh stated that the appellant handed to him a sharpened piece of iron in a sheath which the witness said - relying perhaps on inference - that the appellant had hidden away in the grass ten yards E from his hut. The appellant in his evidence said that the iron was found in his hut and was used by him in extracting honey from bee-hives. No blood was found on the iron or its sheath and the only human or primate blood found on anything belonging to the appellant or Jerry was on Jerry's rain coat, which he had worn on the Saturday night in F question. The record does not show whereabouts on the coat the blood mark appeared and although Jerry said that he wore the coat while carrying the body he professed to be unable to suggest how the blood got on to it.

The very important piece of evidence, to which I shall return, was that of Detective-Sergeant Barnard, who said that the appellant pointed out G to him a place as the place where he, the appellant, had put the body down. In his evidence the appellant admitted that under pressure he had pointed out a place. His doing so was, he said, the result of his being beaten so severely by the police that his arm was broken and he had to spend some time in hospital.

H The nature of the area in which the crime is alleged to have been committed appears from the evidence and from a plan and photographs which were exhibits at the trial. There is a sugar plantation skirted on one side by the Pongola-Gollel road, off which a foot path leads to a compound for workers on the plantation. The appellant, Jerry and Moya lived in this compound in separate huts. Jerry, aged 17, was accustomed to take his meals at the hut of the appellant and his wife, Emmelina Dhlamini, whom Moya referred to as his sister but

Schreiner JA

who may have been more distantly related to him. Jerry used to call the appellant and Emmelina 'father' and 'mother' respectively, but apparently they were not really related.

The plan shows as point 'A' the place in the furrow where the body is A stated by Moya and Jerry to have remained from Saturday night to Wednesday night, as point 'C' the place in the sugar cane where it remained from Wednesday night till Thursday night, and as point 'F' the place in the bush which the appellant was stated to have pointed out to the police as the place where he had put the body down. Point 'F' is in B marshy ground some 500 or 600 yards from a river in which crocodiles might, according to the police, be expected to be found. The suggestion made on behalf of the Crown was that the body might have been taken away by one of these creatures.

It appears from the evidence of the appellant, Jerry and Moya that on Friday, Christmas Day, the appellant's wife, Emmelina, deserted him. The C appellant suspected that she was with a man named Petwapi. On Saturday night the appellant and Jerry went to look for Emmelina and in the neighbourhood of Petwapi's hut in another compound, found a beer pot, a vest and two begs, which the appellant took away with him. So much is common cause. According to the appellant he left Jerry and returned to D his hut. While he was there Moya came and enquired after Emmelina. He left Moya, rejoined Jerry, who told him that he had not seen Emmelina and then when daylight came reported to the induna, who made some inquiry into the relationship of Emmelina and Petwapi. The appellant denied that he had murdered anyone that night.

E Jerry, on the other hand, stated in evidence that while he and the appellant were walking along looking for Emmelina they met a man who told them he was drunk. The appellant asked if he had seen Emmelina: Jerry's evidence is contradictory as to which spoke first but after they had spoken he said that the appellant stabbed the man twice with the F sharpened iron. Jerry said that he, Jerry, grabbed the appellant who then drew a knobkierie and threatened him. Under threats of bewitching him the appellant induced Jerry to help him to deposit the body in the furrow, about 100 yards along the road from where the man was killed. Jerry said that before the body was put into the furrow the appellant drank some of the man's blood, smeared his, the appellant's, face with G some of it and collected some of it in a bottle. Jerry was not asked where precisely these activities, which he said...