R v D and Another

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Schreiner JA, Van Den Heever JA, Hoexter JA and De Beer AJA
• Judgment Date: 08 September 1953
• Citation: 1953 (4) SA 384 (A)
• Hearing Date: 01 September 1953
• Court: Appellate Division

B Centlivres, C.J.:

The first appellant, a European male, was charged before a magistrate with having contravened sec. 1 of Act 5 of 1927 (as amended) in that he had had illicit carnal intercourse with the second appellant, a native female, on 27th December, 1951, and the C second appellant was charged with having contravened sec. 2 of that Act in that she had permitted the first appellant to have carnal intercourse with her on that date. The appellants were tried jointly, and each was found guilty of an attempt to commit the offence charged and was duly D sentenced. The appellants appealed to the Natal Provincial Division. On 29th August, 1952, that Division dismissed their appeals and confirmed their convictions and sentences.

On 27th October, 1952, the appellants applied to the Provincial Division for leave to appeal to the Appellate Division but before that E application was heard the appellants on 15th December, 1952, applied to the Provincial Division to set aside their conviction and sentence and remit the case to the magistrate to enable them to adduce further evidence which was set forth in certain affidavits. This application was refused on 2nd February, 1953, but on the same date the Provincial F Division gave leave to appeal from its decision dismissing the appeal and confirming the convictions and sentences. On 19th February, 1953, the appellants filed an application in the Provincial Division for leave to appeal against the order refusing the application to set aside the G conviction and sentence and remit the case to the magistrate for further evidence but on 28th March, 1953, their attorneys, on the strength of the decision in Jordaan v Evans, N.O. and Another, 1953 (1) SA 75 (N), advised them that they did not require the leave of the Provincial Division. The appellants accordingly withdrew their application and filed an application to this Court for an order condoning the late noting of appeal to this Court.

H I shall first consider the application made to this Court for condonation. Counsel for the appellants submitted in his heads of argument that the appellants had no right of appeal under sec. 104 of the South Africa Act as amended by sec. 2 of Act 37 of 1948, as that section now applies only to civil cases. He accordingly submitted that the application could not be granted in its present form. He submitted that the case of Jordaan v Evans,

Centlivres CJ

N.O. and Another, supra, was wrongly decided and that appellants' only remedy was to apply for leave under sec. 105 of the South Africa Act in accordance with the decision of this Court in Rex v Keeves, 1926 AD A 410. He therefore asked this Court to give such relief as would enable the appellants to apply either to the Provincial Division or to this Court for leave to appeal from the order dismissing the application to set aside the conviction and sentence.

B In the view which I take of this matter it is unnecessary for me to consider the contentions referred to above - contentions which were not advanced in oral argument because of an initial difficulty that confronted the appellants. It is clear on the authorities (cf. Penrice v Dickinson, 1945 AD 6, and de Villiers v de Villiers, 1947 (1) SA 635 (AD)), that this Court will not grant any relief if an applicant C for condonation has no prospects of success on appeal. If, as I shall show later...