R v Dladla and Others

• Jurisdiction: South Africa
• Judge: Botha JA, Holmes JA and De Villiers AJA
• Judgment Date: 15 May 1961
• Citation: 1962 (1) SA 307 (A)
• Court: Appellate Division

H Holmes, J.A.:

This judgment deals with the case of Daniel Mandla Mthembu (accused No. 15). He was found guilty of the murder of Constable Jeza. The Court held that there were extenuating circumstances, in that he, a youth of 19 years of age, set out to view the scene of the trouble from closer quarters but, having got there, he made common cause with those attacking Constable Jeza. He was sentenced to imprisonment for 5 years.

Holmes JA

In this Court, in limine there was an application by the appellant for the admission of certain further evidence, or alternatively for the remittal of the case for further cross-examination. The application A arose in this way. In the Court a quo, the trial of Sipho Ezra Mthembu (accused No. 16) was ordered to be separated from that of the others, for reasons not here relevant. He was subsequently tried before BIZZELL, A.J., and two assessors and was acquitted. The main witness in the case against the appellant was M. Manyokule. He was also the B principal witness in the separate trial of Sipho Ezra Mthembu (hereinafter referred to as Sipho). The application before us is not based upon the fact that Sipho was acquitted whereas the appellant was convicted. It is based upon the allegation that there were material differences in the evidence of Manyokule at the two trials. Wherefore the appellant asks us to receive in evidence the record of the trial in Sipho's case. We have no jurisdiction to grant the application. Sec. C 22 of the Supreme Court Act 59 of 1959 provides that this Court, or a Provincial or Local Division, shall have power -

'(a)

on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed . . . or to remit the case . . . for further hearing . . ..'

D The words which I have italicised do not cover the reception of the record of another case. Nor does sec. 369 of Act 56 of 1955 warrant such a course.

Mr. Brink, for the appellant, asked in the alternative that this case be remitted for further cross-examination of the Crown witness Manyokule. E Now the principles governing such an application are settled, and I need not add to the ever-growing burden of annotations by reciting the authorities. One of the requirements is that the fresh evidence must be of such a nature that it would probably cause the trial Court to come to a different conclusion. In the present application I have closely considered the alleged variations in the evidence of Manyokule. I do not F propose to set them out in detail: I think it is sufficient to say that in my view they are not of such a nature that the trial Court, on learning of them, would probably come to a different conclusion. The application is therefore refused.

I turn now to the appeal. The trial Court found that on the afternoon in G question the appellant, with others, ran from the direction of an area known as Two Sticks, crossed a stream, and moved up a slope in the direction of Kwa Tickey. The appellant was armed with two sticks. He and Sipho were in the lead of the party running up the slope. At this time a European policeman, Joubert, was fleeing from Kwa Tickey, pursued by a H group of natives who were pelting him with stones. The policeman fell down (at point 28 on exh. A) and his pursuers caught up with him. In the meantime the party in which the appellant was running arrived on the...