R v M

• Jurisdiction: South Africa
• Judge: Price JP and Jennett J
• Judgment Date: 17 November 1956
• Citation: 1957 (2) SA 73 (E)
• Hearing Date: 17 November 1956
• Court: Eastern Districts Local Division

Price, J.P.:

This is a review case which came before me in the ordinary C course. The accused was charged with the contravention of sec. 123 of Act 24 of 1886, in that on various occasions during June, 1955, and March, 1956, he did

'wrongfully and unlawfully have carnal connection with his niece, one Nomakosazana, a native female . . ..'

The case was remitted by the Solicitor-General to be tried by the magistrate under increased jurisdiction, and the accused, who pleaded D not guilty, was found guilty and sentenced to be imprisoned for six months with compulsory labour.

It is regrettable that the charge sheet is fatally defective. Sec. 123 of Act 24 of 1886 reads:

'Incest is the carnal connection of persons related by consanguinity E within the third degree'.

It was, therefore, essential that the charge sheet should have contained the averment that the native female, Nomakosazana, was the niece of the accused by consanguinity. Without such an averment the charge discloses no offence. In the Transkeian Territories it is not a crime for a person to have carnal intercourse with his niece by affinity.

F A similar case was decided by the full Court only yesterday, namely, the case of R v D., and judgment was given to the effect that the charge sheet in that case, and as it so happened also the evidence did not disclose intercourse between two persons related within the third degree of consanguinity, and the Court held that the charge was fatally defective. A copy of this judgment is attached. [*]

G On 20th July, 1956, a similar decision in principle was come to by the full Court, although the facts were different, in a case in which the appellant was charged with insulting a native chief while acting in the course of his duty in contravention of the provisions of Act 38 of 1927. The section there in question provided that what the accused was alleged H to have done amounted to an offence only if the chief who had been insulted had been appointed in a certain way set out in the relevant statute. It was not alleged in the charge sheet that the chief who was alleged to have been insulted had been so appointed and the Court held that the charge was fatally defective in that what was alleged

Price JP

did not amount to a crime in law. In that case it was also pointed out that it has been laid down on very many occasions that where a charge discloses no offence the defect cannot be cured by amendment. Unfortunately, therefore, the...