R v Nhleko

• Jurisdiction: South Africa
• Citation: 1960 (4) SA 712 (A)

R v Nhleko
1960 (4) SA 712 (A)

1960 (4) SA p712

Citation	1960 (4) SA 712 (A)
Court	Appellate Division
Judge	Schreiner JA, Van Blerk JA and Van Winsen AJA
Heard	September 12, 1960
Judgment	September 19, 1960

Flynote : Sleutelwoorde E

Criminal procedure — Evidence — Statement to police — Admissibility of — Onus on Crown — Pointing out under sec. 245 (2) of Act 56 of 1955 — Accompanying words not admissible thereunder — Accomplices — Cautionary rule — Applies also to accessories after the fact — Criminal law — Murder — Proof of corpus delicti — Degree of proof required where body not F recovered — Position where no proof either that anybody missing.

Headnote : Kopnota

The burden rests upon the Crown to prove that any statement of the accused which it tenders was freely and voluntarily made and, if there has been violence before the statement, it must satisfy the trial Judge that the violence did not induce the statement, either because it did not have an inducing tendency in the frist instance or because that G tendency had in some way ceased to operate.

The relevant part of section 245 (2) of Act 56 of 1955 does not allow anything more to be proved than the pointing out of a thing - be it a place or any other thing. Thus evidence on a charge of murder that the accused had identified a certain point as the place where he deposited a body, or the body, is inadmissible.

The cautionary rule about accomplices applies also to one who was only an accessory after the fact; a warning is required in his case also.

H Where a person is proved to be missing, the Crown is not, on a charge of murder, required to prove the corpus delicti, the fact of an unlawful killing, according to a higher standard of certainty than that required to identify an accused as the killer. But the absence of a body may be a very good reason for holding that the Crown has not proved its case beyond reasonable doubt, for it lets in the possibility that the person in question may still be alive.

Where, however, not only has no body or part thereof been found, but no person has been shown to have been missing, this clearly introduces another

1960 (4) SA p713

wide range of possible sources of error. And where the evidence of supposed eye-witnesses to the murder is alone available, it must very rarely be the case that the triers of fact can properly be convinced beyond reasonable doubt of the accused's guilt.

Case Information

Appeal from a conviction of murder in the Transvaal South-Eastern A Circuit Court (HIEMSTRA, J., and assessors). The facts appear from the judgment of SCHREINER, J.A.

F. J. Howroyd, for the appellant (at the request of the Court): Although there is no previous South African decision in point, the Court a quo held that the fact that the identity of the victim had not been established was no bar to a conviction for murder. If this is accepted B as correct in principle, the Court nevertheless erred in failing to consider the effect of the fact mentioned, taken in conjunction with the further fact that the body could not be found. In all previous cases of murder in South Africa, Britain and the Commonwealth, where a conviction for murder has been upheld although the body of the deceased was not C found, the identity of the victim has always been established; see R v Sikosana, 1950 P.H. H.148; R v Thuantha, 1922 S.W.A. Appendix; R v Tshinwayo and Uzulu, 1914 E.D.L. 472; The King v George Hindmarsh (1792) 2 Leach 569; R v Onufrejczyk, 1955 (1) A.E.R. 247, discussed by Neve in 33 Canadian Bar Review at p. 603, and by Coaker in 73 S.A.L.J. D at p. 181; R v Horry, 1952 N.Z.L.R. 111, discussed by Morris in 68 Law Quarterly Review at p. 391 and by Northey in 15 Modern Law Review at p. 348. Where the victim has not been specifically named in the indictment in cases where the body has not been found, the identity of the victim has always been sufficiently established for the accused to know exactly whom he is charged with having murdered, for example, the E case of a female accused charged with having murdered an infant recently born of her body; see R v Ganyana, 1917 E.D.L. 319; R v Hogg, 2 M. & R. 380. Conversely, although there is no South African case in point, where a person has been charged with murdering an unknown person, there has been a body; see R v Campbell, 1 Car. & Kir. 82. Sir F Matthew Hale required more than the usual minimum standard of proof in criminal cases to establish the corpus delicti in cases of murder. Although this has been interpreted as a rule of caution in cases where no body has been found and there is no direct testimony of death, great caution should nevertheless be exercised (even though there is direct G testimony of death) where not only has no body been found but no one is even missed; see Sir M. Hale Pleas for the Crown (vol 2, p. 290, discussed by Morris in 68 Law Quarterly Review at p. 391); see also R v Burton, 1854 Dears. 282. Cases have occurred where an accused person has been executed and it was afterwards discovered that no crime had H been committed; see the two cases referred to by Sir M. Hale, summarised by Coaker in 73 S.A.L.J. at pp. 182 - 3; Captain Green's Trial (1705) 14 State Trials (Howell) 1199; Perry's case (1660), 14 State Trials (Howell) 1312; R v McDermott, an Australian case referred to by Morris in 68 Law Quarterly Review, at p. 391. If a body has been found, it must furthermore be shown to be the body of the person alleged to have been murdered; see R v Cheverton, 2 F. & F. 833; R v Hopkins, 8 Car. & Payne, 591. The question

1960 (4) SA p714

whether the evidence of an accessory after the fact requires corroboration for the purpose of the cautionary rule was left open in R v Mbonambi, 1957 (3) SA 232, but the evidence of an accessory after the facts is treated in the same way as other accomplice evidence for A the purpose of the cautionary rule in England; see Davies v Director of Public Prosecutions, 1954 A.C. 378; E. & E. Digest (Replacement Volume), vol. 14, at pp. 529, 530, and the following cases referred to therein, Attorney-General v Linehan, 1929 I.R. 19; R v Hughes (1839) 1 Craw. & D. 13 (Ireland); R v Smith (1876) 38 U.C.R. 218 (Canada). B The facts mentioned in the judgment of the Court a quo do not fulfil the requirements of the cautionary rule as they do not implicate appellant.

J. P. van der Walt, for the Crown; It is not necessary to aver the identity of the deceased as the identity is not an element of the crime. The accused is not prejudiced by non-averment of identity. There are C sufficient details of the circumstances surrounding the crime i.e. how, where and when. Averment of identity is not only part of the particulars furnished, where possible, by the Crown, but also goes to the weight of evidence and burden of proof. Where the Crown is able to aver that A.B. was murdered and is able to lead evidence that A.B. is missing, that D lightens the task of the Crown. Conversely, where the Crown is unable to do so, its task is more difficult. It is a matter of the weight of evidence. The non-production of a body is not fatal to the Crown's case; see R v Sikosana, supra. Again it is a matter which goes to the weight of evidence. If the findings of the autopsy coincide with the evidence of witnesses as to the manner of the killing, that fact would tend to strengthen the Crown case.

Howroyd, in reply. E

Cur. adv. vult.

Postea (September 19th). F

Judgment

Schreiner, J.A.:

The appellant was, together with one Jerry Mlota, charged with murdering an unknown non-European on Saturday the 26th December, 1959, at Pongola, in the district of Piet Retief. They were tried by a Court consisting of HIEMSTRA, J., and assessors sitting in G the Transvaal South-Eastern Circuit Court. Jerry, who was the second accused, was acquitted but the appellant was convicted and sentenced to death. Leave to appeal was granted by the learned trial Judge.

It will be convenient, before dealing with the facts in detail, to H mention certain features which indicate the nature of the case and show why it is an unusual one. In the first place no body or portion of a body was found. In the next place there was no proof of the disappearance at that time in that neighbourhood of any person who might have been the victim of a murder. Of the two principal witnesses against the appellant one was the second accused, Jerry, who in testifying on his own behalf stated that on the night in question on the main Pongola-Gollel road he saw the appellant kill a strange man whose body they deposited in a drainage furrow alongside the road.

1960 (4) SA p715

Schreiner JA

The other witness, one Moya Dhlamini, described how on the same night he was with the appellant when the latter disembowelled and decapitated the body. He also described how the appellant later disposed of the portions severed from the body. Both these witnesses stated that on the following A Wednesday night, the 30th, they took part with the appellant in removing the body to another place, in a sugar plantation, 200 yards away, and Jerry described a further removal on the following, Thursday, night to a bushy and marshy place some 350 yards from the second place. Both these witnesses were on their own versions accessories after the fact of the murder, Jerry being acquitted of being such because the B Court found that he had acted under compulsion proceeding from the appellant. One Elfas testified to detecting a strong smell as of decaying flesh on Sunday the 27th near the place in the furrow where, according to Moya and Jerry, the body was then lying. A police constable stated that the smell was still there on the 31st, and that it looked as if some...