R v Balitane

• Jurisdiction: South Africa
• Judge: Wynne J and Back AJ
• Judgment Date: 23 July 1956
• Citation: 1956 (3) SA 634 (E)
• Hearing Date: 16 July 1956
• Court: Eastern Districts Local Division

B Back, A.J.:

The appellant was charged with the theft of five sheep and was convicted of a contravention of sec. 1 of Act 26 of 1923. He was sentenced to undergo six months' imprisonment with compulsory labour. An appeal is taken against both the conviction and the sentence.

C The grounds of appeal, in addition to a general ground on the merits, include one of a misdirection of himself by the magistrate which is stated as follows:

'The magistrate in his verbal judgment, inter alia, stated: 'it makes it impossible for me to hold that the accused has given a satisfactory explanation and I therefore find him guilty of contravening sec. 1 of the Stock Theft Act, 26 of 1923.' It is submitted that the magistrate D has entirely misdirected himself in finding the accused guilty because he had given no satisfactory explanation. It was made clear by the magistrate that the reasons for his judgment were based very largely on this premise.'

The appellant and Tutsu had been charged jointly, and at the end of the Crown case the attorney for the appellant applied for a separation of E trials. This was granted and the appellant closed his case without calling any evidence. His attorney addressed the court and judgment was reserved. The trial of the co-accused Tutsu proceeded and the accused gave evidence in denial of an alleged sale by him to the appellant. Thereafter appellant was convicted and Tutsu acquitted.

The appellant had admittedly been found in possession of two sheep which F were proved to have been stolen three days before. The court rightly found that he had been in possession of three others stolen at the same time as the two found in his possession. All five had just been shorn by the appellant. According to the Crown evidence the appellant told the complainant when the two were found in his flock that he had driven the five sheep from another man's land to his kraal. To the sub-headman, who G was investigating two days later and who gave evidence for the Crown, the appellant gave the same explanation. To a constable, who saw the appellant six days later, the appellant gave a different explanation, namely, that Tutsu had sold them to him at £1 each.

H Among the witnesses called for the Crown was the twenty year old son of the appellant. His evidence was that Tutsu had come to appellant's kraal late one night soon after the date of the theft of the sheep and asked for appellant. Appellant was not there, and Tutsu...