R v Mgxwiti

• Jurisdiction: South Africa
• Judge: Greenberg JA, Schreiner JA and De Beer AJA
• Judgment Date: 11 December 1953
• Citation: 1954 (1) SA 370 (A)
• Court: Appellate Division

H Greenberg, J.A.:

The appellant and seven other persons were charged before a Judge and assessors in the East London Circuit Local Division with the murder, on the 9th November, 1952, of Elsie Quinlan,

Greenberg JA

a European female. In the result, the appellant, who was the first accused at the trial, and another of the accused persons, who was the second accused and to whom I shall so refer, were found guilty, were convicted of murder and, no extenuating circumstances having been found, were sentenced to death. They both applied to the trial Judge for leave A to appeal against the conviction, but this was refused. In an application under sec. 369 (1) (4) of Act 31 of 1917, as amended by sec. 7 of Act 37 of 1948, the appellant was given leave to appeal to this Court on the ground that, accepting the findings of the trial Court as to credibility of the witnesses, he should not have been convicted of murder. Leave was also granted to appeal on other questions, if the conviction for murder was set aside.

B The conviction for murder was based on the finding that the Crown had proved a common purpose to attack and kill the deceased and that the appellant was a party to such purpose. The events that preceded the killing of the deceased are set out in the reasons given by the presiding Judge (SAMPSON, J.) and I do not think it necessary to repeat them, but merely to refer to those that I consider necessary, treating C those reasons as a preface to what I propose to say. The deceased had approached the scene of her murder in a small motor car that she was driving and of which she was the sole occupant, an Austin A.40, and the car and the occupant were first attacked by a large number of natives, and thereafter the car was set alight while the deceased was still in the car and there can be no doubt, on the evidence as to the effect of the fire on the car, that, even if she was not fatally injured or not D injured at all before the car started burning, she must have been burnt to death. On the lines on which I propose to consider the issue, much depends on the finding as to the extent of her injuries at the time when the Crown contends that the appellant actually associated himself with the common purpose.

E It was contended on behalf of the appellant that he cannot be held to be guilty of the murder, on the doctrine of common purpose, unless he associated himself with that purpose at a time when the deceased had not yet received a fatal injury. I did not understand that this contention was disputed on behalf of the Crown and I shall deal with the question on this basis.

F The finding by the trial Court was that the deceased was killed as the result of a concerted attack made on her by a large number of natives who had conceived the purpose of attacking and killing her. This finding was rightly not disputed on behalf of the appellant. The Court also found that at some stage during the attack the appellant actively associated himself with the attackers with knowledge of this purpose. I G have no doubt that this finding too is right; the circumstances proved leave no reasonable alternative. The real point in issue is the stage of the appellant's participation, the question being whether the Crown has proved beyond reasonable doubt that it took place before the deceased had received a fatal injury. The participation alleged by the Crown is that the appellant decided to take part in the attack and, in pursuance of his decision, came to the driver's side of the car, which was on the H right hand side, and either through the open window space or the open door space stabbed or stabbed at the deceased with a knife. The Court, on an acceptance of the evidence of two witnesses, Ethel and Span, held this to be proved and, on the leave granted to the appellant, this finding as to the stabbing was not open to question on his behalf. I should add that in any case there does not appear to be any justification for an interference by this Court with the finding. In regard to

Greenberg JA

Ethel (and to some extent to Span) the trial Court, with a full appreciation of 'the vacillation and self-contradiction' that she showed on certain aspects of the case, came to the conclusion that she was a witness to be believed and that on any points where her evidence did not carry conviction it was due to confusion or other reasons not ascribable to dishonesty. The defence both of the appellant and No. 2 accused was A an alibi which was rejected. One result of the nature of the defence advanced is that on points in the evidence given on behalf of the Crown where their evidence may have been of importance, there is nothing to contradict the Crown witnesses. The real point in dispute is whether, at the time of the appellant's association with the common purpose, the deceased was proved not to have been fatally injured. In my opinion, his first association goes back to a stage slightly earlier than his B stabbing at the deceased. The evidence of Ethel is that, before he did this stabbing, she was standing near a tap that is some fifty yards away from where the deceased's car had been stopped and where it was later set on fire. While at the spot she says that the appellant passed her with an open knife in his hand walking in the direction of the car and that when he reached the car, he used this knife for the stabbing, C she having in the meantime also approached to within a short distance of the car. If this evidence is to be accepted, it shows that his active association with the common purpose started no later than when he passed Ethel. The appellant contends that this Court should not accept her evidence as to the knife because the trial Court did not indicate its acceptance of the evidence; indeed it makes no reference to it. The D Court gave no indication that it did not accept it; on the lines of the reasons given, no reference was made to it; in view of the impression made on that Court by the witness, to which I have already referred, I see no reason why we should not accept it, in the absence of other grounds for refusing to do so. Two grounds were urged, the first being that Span, who also testifies to the stabbing, said that the appellant E took the knife out of his pocket immediately before the stabbing; there is not necessarily any conflict between the two witnesses who were speaking as to different points of time and, even if there were a conflict, the trial Court's expressed preference for Ethel's evidence, in the conflict between her and Span as to the manner of the stabbing, might afford a ground for acceptance of his version. The other criticism of her evidence is that she said that when the appellant passed her she F did not 'notice' whether the knife was in his left or right hand, and that this threw suspicion on her evidence that the knife was in his hand. Whatever be the true meaning of the word in the native language that she was using that was interpreted as 'notice', I see no ground for disbelieving her in the fact that, eight months later, she is unable to picture in which hand the appellant was carrying the knife. In my G opinion, her evidence should be accepted on this point. But, even if at the stage when the appellant passed Ethel he is not proved to have had the open knife in his hand, his unexplained conduct in going right up to the car that was the centre of a hostile throng, when he must have known what was going on, and immediately on his arrival stabbing at the deceased, is not open to any reasonable inference other than that he had associated himself with the obvious common purpose at latest from the H time that he passed Ethel on his way towards the car.

I come now to the evidence in regard to the condition of the deceased at the time of the appellant's association with the common purpose. Her remains, found in the burnt-out car, were a charred mass and nothing was gathered by the acting district surgeon, at the inquest, as to whether

Greenberg JA

her body apart from the skull had received any fatal injuries before it was burnt. But he was able to draw some...