R v Mpompotshe and Another

• Jurisdiction: South Africa
• Judge: Schreiner ACJ, De Beer JA, Van Blerk JA, Hall AJA and Price AJA
• Judgment Date: 30 September 1958
• Citation: 1958 (4) SA 471 (A)
• Hearing Date: 30 September 1958
• Court: Appellate Division

Schreiner, A.C.J.:

The appellants, with three other persons, were tried on a charge of murder by a jury at a trial presided over by DE VILLIERS, J.P. At the close of the Crown case one of the accused (No. 2) was H discharged, but the other four were convicted. The jury found no extenuating circumstances and the appellants were accordingly sentenced to death. Leave to appeal to this Court was granted by the learned trial Judge 'on the grounds stated in the grounds of appeal'. After hearing counsel for the Crown this Court allowed the appeal, reasons to be furnished later. Those reasons follow.

The grounds of appeal to which DE VILLIERS, J.P., referred in granting leave to appeal read as follows:

Schreiner ACJ

'1. The evidence of Nompiyo is so unsatisfactory that no reasonable men could properly convict the accused.

2. The conviction is against the weight of evidence and the probabilities of the case.

3. The appeal is arguable and there is a reasonable prospect of success on appeal.'

It is clear that ground 3 only amounts to an argument or submission that A in the circumstances leave to appeal should be granted. Ground 2 includes ground 1, the latter merely stating in regard to one witness what has generally to be established on the case as a whole by an appellant, if he is to succeed in an appeal on the facts from a jury verdict.

A general grant of leave to appeal covers all issues, but a question may arise whether leave to appeal granted on grounds framed on the lines of B those in this case is to be construed as covering all issues appearing on the record, or at any rate all such issues as relate to the factual basis of the verdict. A somewhat similar situation arose in the case of R v Goliath, decided by this Court on the 22nd instant. In the present case, as will appear from what follows, the record raises questions as C to the regularity of the procedure followed by the learned Judge in dealing with the discharge of accomplice witnesses from liability to prosecution, and as to the correctness of his summing up on the caution to be observed in dealing with the evidence of accomplices. Although there is involved an inquiry into the law, it is closely connected with the presentation of the facts and the possible effect upon the verdict D reached by the jury. It would be unfair to the learned Judge to entertain the possibility that he would have wished to exclude from the scope of the appeal any matters which this Court should think worthy of consideration. There is no doubt that he would welcome their investigation. In any event it would always be open to this Court, if E not prevented by the legal requirements as to finality discussed in R v Sibande, 1958 (3) SA 1 (AD), and R v Maharaj (Appellate Division 8th September, 1958), [*] to condone the delay and grant leave to appeal on wider grounds than those allowed by the trial Judge. This appeal was therefore dealt with on the basis that leave to appeal had been granted generally.

F The facts of the case may be stated shortly. The deceased, one Mdingi, met his death on the 19th January, 1958, in the Lower Tyira Location, Qumbu. His severely battered body was shown to a police sergeant the next day. It was then lying in the open, upwards of half a mile from the hut in which, according to the evidence, he was killed. The deceased and G the appellants, who were Nos. 4 and 5 accused at the trial, lived at different places in the neighbourhood. The principal Crown witness was a woman named Nompiyo who deposed to being approached by No. 3 accused with a request that she help him to kill the deceased, whom he suspected of having abducted his, No. 3's, wife. It was arranged, so Nompiyo said, that she and Mantshiza, another native woman, should lure the deceased H to Mantshiza's kraal by a false story that a...