R v Gibixegu and Another

• Jurisdiction: South Africa
• Judge: De Villiers JP, Van Der Riet J and O'Hagan J
• Judgment Date: 14 September 1959
• Citation: 1959 (4) SA 266 (E)
• Hearing Date: 31 August 1959
• Court: Eastern Districts Local Division

E De Villiers, J.P.:

The two accused were convicted by the magistrate of Mount Currie of stock theft. They were sentenced to 18 months' imprisonment with compulsory labour each and to a compensatory fine F jointly and severally of £420 or a further 6 months' imprisonment with compulsory labour.

The case then came before my Brother O'HAGAN on review, the magistrate's reasons were called for and the matter was set down for argument on review before my Brothers VAN DER RIET and O'HAGAN.

The Court came to the conclusion that the magistrate had failed to G appreciate the dangers attaching to the evidence of accomplices and had failed to bear the cautionary rule enunciated in R v Ncanana, 1948 (4) SA 399 (AD) in mind.

As the case for the Crown, as far as No. 2 accused was concerned, rested on the evidence of accomplices his conviction was set aside.

H The case of No. 1 accused stood on a different footing. He had made a confession to the police, but as the requirements of sec. 244 (1) of Act 56 of 1955 had not been complied with, the confession was in terms of that section 'not admissible in evidence' against the accused. The Crown quite correctly refrained from putting this confession in evidence. The accused then gave evidence on his own behalf, was

De Villiers JP

cross-examined by the public prosecutor and questioned by the magistrate.

His evidence as recorded reads as follows:

'I deny everything that all the Crown witnesses have said. I am not on bad terms with any of them. We all live on the same farm. I heard complainant lost some sheep but I know nothing about it. Complainant A never spoke to me about the sheep. My work is ploughing. There are only natives living on the farm. The owner does not live there but visits the farm occasionally.

XXD: I agree that I made a statement to the police to the effect that I stole the sheep. I did so because a policeman at Kingscote assaulted me. Three native constables assaulted me. I was afraid to report to the sergeant in charge that I was assaulted. I did not report to the B sergeant at Swartberg either because I thought when I go back to Kingscote they would again assault me there. I admit I made a sworn statement to Sgt. Barlow at Kingscote. I did not say in the statement that I was assaulted by the constables. I made the statement voluntarily to Sgt. Barlow. I was not forced to make that statement about the theft of the stock. I said in the statement that I and others drove the sheep to the Basutoland fence.

By Court: I admit I drove a large number of sheep up the mountain. C Accused 2 asked me to assist him to drive the sheep to the mountain on complainant's farm. There were many sheep, about 100 or more. Six of us drove the sheep to the mountain. They were John Blangwe, No. 2 accused, Khosi and Mokheti, Mkhosi and I. Accused 2, John Blangwe and Khosi were the people who actually stole the sheep and I agreed to assist them. I knew they were the complainant's sheep and that they had no right to steal the sheep. I know one who assists in a theft is also guilty of theft. Accused 3 was not there. He attended a wedding. The wedding was D on a Wednesday and that night the sheep were removed. I was not present when the sheep was taken away from the farm. It is possible that accused 3 could have assisted in driving the sheep from the farm as I was not present that night.'

In regard to the conviction of this accused O'HAGAN, J., who delivered the judgment of the Court stated:

'With regard to the case of accused No. 1, certain questions have arisen concerning the propriety of his conviction. These questions were not E canvassed in argument to any appreciable extent, and the members of the Court which heard this matter are not in full agreement upon the answers to be given to the questions. In the circumstances it has appeared to us to be desirable to have the questions which I have formulated hereunder fully argued before a Bench of not less than three Judges. The Registrar is directed to set down the case of accused No. 1 for further...