R v D and Another

• Jurisdiction: South Africa
• Citation: 1953 (4) SA 384 (A)

R v D and Another
1953 (4) SA 384 (A)

1953 (4) SA p384

Citation	1953 (4) SA 384 (A)
Court	Appellate Division
Judge	Centlivres CJ, Schreiner JA, Van Den Heever JA, Hoexter JA and De Beer AJA
Heard	September 1, 1953
Judgment	September 8, 1953

Flynote : Sleutelwoorde

Criminal procedure — Review — After unsuccessful appeal — Incompetency of — Decision of Provincial Division dismissing appeal from magistrate's court a final one in absence possibly of fraud — Such Division not competent thereafter to consider application to set E conviction and sentence aside and to remit to magistrate's court for further evidence — Criminal law — Intercourse between Europeans and Natives — Act 5 of 1927, secs. 1 and 2 — When Court entitled to draw inference that accused had carnal intercourse with one another or attempted to do so.

Headnote : Kopnota

F The decision of a Provincial Division dismissing an appeal from a conviction in a magistrate's court and confirming the conviction and sentence is final and cannot be re-opened, except, possibly, on the ground that it was obtained by fraud. That decision stands until reversed or varied by the Appellate Division.

It is therefore not competent for a Provincial Division which has G dismissed an appeal from a conviction in a magistrate's court to thereafter consider an application made to it to set aside the conviction and sentence and remit the case for further evidence.

R v Masondo, 1940 NPD 196 and R v Mahomed Shameen, 1944 NPD 133, overruled.

Semble: The proper course to adopt is to apply to the Provincial Division for leave to adduce further evidence before that Division has H disposed of the appeal and to set down the application and the appeal together. If the further evidence comes to light after the disposal of the appeal, it is competent for the appellants to file with the Registrar of the Appellate Division an application for leave to adduce further evidence to be heard at the same time as the appeal, for the Appellate Division has the same powers in an appeal originating from the magistrate's court as a Provincial Division has.

In an appeal from a decision of a Provincial Division dismissing an appeal from convictions of attempts to contravene sections 1 and 2 respectively of Act 5 of 1927 as amended, it appeared that the appellants had been found almost

1953 (4) SA p385

naked in the same bed and under the same blanket at 10.5 p.m. and that before the police entered they were in all probability asleep,

Held, as it would be manifestly absurd, from the facts proved, having regard to human experience, to hold that appellants, who got into bed a considerable time before the police arrived, in a practically nude condition, did so with any purpose other than that of having connection with one another and that, to put it at its lowest, they had not A attempted to have connection with each other before the police arrived on the scene, that the verdict of an attempt was not wrong.

Case Information

Application to condone the late noting of an appeal from a decision in B the Natal Provincial Division (SELKE, J., and SHAW, J.). The facts appear from the reasons for judgment of CENTLIVRES, C.J.

N. James, for the appellant: For the rule relating to the reopening of a trial for the purpose of taking further evidence, see R v Foley, 1926 C T.P.D. at p. 171, as explained in R v Cohen, 1942 T.P.D. at p. 273. The fresh evidence sought to be led in the present case is material and if it had been led the appellants might have been acquitted; cf. R v Kanyile and Others, 1944 AD at p. 293. In the circumstances of the case, the reasons for not leading the medical evidence now desired should be regarded as reasonably sufficient.

E. A. Logie, for the Crown: The judgment refusing the application for an order setting aside appellants' convictions and sentences and remitting their case to the magistrate for the purpose of hearing further evidence and determining the issue afresh, is not appealable as E of right. The proceedings in the Provincial Court were not a 'civil case', 'civil suit' or 'civil action' within the extended meaning of 'any civil proceedings whatsoever' given in those words by sec. 3 (c) of Act 1 of 1911 as added by sec. 106 (ii) of Act 46 of 1935 and as interpreted in Minister of Labour v Building Workers' Industrial Union, F 1939 AD at p. 331. On the basis that the proceedings on the application for review were criminal proceedings commencing in the Supreme Court and not an appeal in terms of sec. 105 of the South African Act, no appeal lies as of right (if at all) to this Court. Sec. G 104 of the South Africa Act now only applies to civil proceedings in consequence of the amendment by sec. 2 of Act 37 of 1948. The only provisions now relating to appeals from criminal cases commencing in the Supreme Court are contained in secs. 368 to 375 of Act 31 of 1917, as amended, none of which is applicable to the proceedings on an application for the re-opening of a magistrate's court trial; see sec. H 368 (2) of Act 31 of 1917, Rule 13 of the Union Rules framed under sec. 108 of the South Africa Act. If the application on notice was an appeal in a criminal case from the magistrate's court in terms of sec. 105 of the South Africa Act, then, because at the establishment of Union a similar application might have been made under sec. 8 of Act 39 of 1896 (N), a further appeal might have been made to this Court provided that an application for special leave to appeal had been made and D

1953 (4) SA p386

granted under sec. 105 (1) or (2). No appeal lies from the Provincial Court on the ground that the application made to that Court was not an appeal within the meaning of sec. 105. The meaning of the word 'appeal' A in that section does not extend beyond 'a complaint to a Superior Court of an injustice done by an inferior one'; see Norwich Union Life Insurance Society v Dobbs, 1912 AD at p. 474; Ponnamma v Arumogan, 1905 A.C. at p. 390; Mozley and Whiteley's Law Dictionary (3rd ed.). In B this sense, the word will embrace an appeal in terms of sec. 103 of Act 32 of 1944, a review on summons on any of the grounds set out in Ord. 40 of 1928; see Gardiner and Lansdown South African Criminal Law and Procedure (5th ed., p. 586); and an application to the Supreme Court to amend the magistrate's record. If it be held that review C proceedings based on an irregularity are not an appeal in terms of sec. 105, it would mean that if the same magisterial decision were impeached on appeal by an accused in one case and on review by an accused in another, the former could appeal further with leave but the latter could not. Furthermore, if a position arose similar to that in R. D v. Keeves, 1926 AD 410, the accused, not having been convicted and therefore not being able to appeal in terms of sec. 103 of Act 32 of 1944, would have to proceed by way of an application for review and would be denied the opportunity of a further appeal. The same position E would arise where the irregularity was not apparent ex facie the record. There is no logical basis for denying an accused in such a case an opportunity which he would have had if he had been able to proceed with his complaint by way of appeal. By sec. 2 of Act 37 of 1948 the Legislature took away all rights of an accused under sec. 104 of the South Africa Act. When it did so, it regarded an application for a F review on the ground of irregularity, whether or not it appeared from the record, as an appeal within the meaning of sec. 105 of the South Africa Act; see sec. 8 of Act 37 of 1948 which, in its amendment of sec. 371 of Act 31 of 1917 calls proceedings by way of a special entry, on G appeal, although in essence they are...