R v Nzimande

• Jurisdiction: South Africa
• Judge: Schreiner ACJ, Steyn JA, De Beer JA, Beyers JA and Price AJA
• Judgment Date: 26 July 1957
• Citation: 1957 (3) SA 772 (A)
• Hearing Date: 24 July 1957
• Court: Appellate Division

C Schreiner, A.C.J.:

The appellant was number twenty-five of twenty-six native men and one native woman who were tried by a Court consisting of a Judge and assessors, sitting in the Natal Provincial Division, on a charge of having murdered five policemen near Bergville, Natal, on the D 22nd of February, 1956. Twenty-three of the male accused, including the appellant, were convicted of murder. No extenuating circumstances were found in respect of any of them and all were sentenced to death. Applications for special entries and for leave to appeal to this Court were refused by the trial Judge, KENNEDY, J., and subsequently leave to appeal was refused by a member of this Court under the provisions of E sec. 363 (4) and (5) of Act 56 of 1955. The sentences on twenty-two of the convicted persons were carried out but shortly before the date appointed for the carrying out of the sentences the appellant made an urgent application to the Transvaal Provincial Division for a stay of execution of the death sentence upon himself. Relief was refused in the F first instance by a single Judge, but an appeal was brought before the Full Bench of the Transvaal Provincial Division, which postponed the appeal pending the bringing of an application before the Natal Provincial Division for condonation of late application and for the making of special entries. These applications were then made to KENNEDY, J., who granted condonation and also made three of the special entries G applied for, refusing the rest; he also reserved three questions of law covering the same points as those raised by the special entries which he made. I should point out that the special entries sought to be made in the first instance, at the time when leave to appeal was asked for, were entirely different from those placed before KENNEDY, J., by the appellant after the matter had been dealt with by the Transvaal H Provincial Division. The earlier special entries have no bearing on the present appeal. There is also before this Court an application for leave to lead further evidence either before this Court, or, upon remittal, before the trial Court.

Since Act 37 of 1948 introduced the procedure of appeals from Superior Courts in criminal cases, the forms of procedure by way of

Schreiner ACJ

special entry and the reservation of questions of law have 'lost much of their former importance.' (Rex v Melozani, 1952 (3) SA 639 (AD) at p. 643.) Ordinarily when leave to appeal is granted this suffices to enable all issues, factual, legal or procedural, to be dealt with by this Court.

A The reservation of questions of law seems now to be useful only where the trial Court wishes to raise a question of law mero motu, or where the only point involved is a legal question the precise nature of which can be brought out most conveniently by reservation.

In the case of procedural irregularities the retention of the special B entry form of approach to this Court is of vital importance where the irregularity does not appear on the record. Where the irregularity does appear on the record the special procedure may be convenient but is not essential. In the light of the decisions of this Court it could happen, apparently, that a convicted person might be able to bring an C irregularity appearing on the record before this Court by way of a special entry even though he would not be able to obtain leave to appeal on account of the same irregularity. This appears to follow from the fact that, while leave to appeal should not be granted unless the applicant will have a reasonable prospect of success on appeal (R v Baloi, 1949 (1) SA 523 (AD)), a special entry must be made by the D trial Court unless the application for the entry

'is manifestly frivolous or absurd, and would amount to an abuse of the process of the Court'

(R v Nafte, 1929 AD 333. Cf. sec. 364 (1) of Act 56 of 1955, which substitutes 'or' for 'and'). Even, therefore, where the irregularity complained of appears on the record the fact that leave to appeal E because of the irregularity has been properly refused would not, it seems, by itself prevent a Court from properly making a special entry based on the same irregularity. But, as indicated below, an application for a special entry in those circumstances might be frivolous or amount to an abuse of the process of the Court.

F It was contended on behalf of the Crown that this Court has no power to deal with the special entries made or questions of law reserved because the refusal of leave to appeal was equivalent to the dismissal of an appeal and because all the matters appearing on the record could have been the basis of argument on the appeal and were therefore covered by it. In the absence of an allegation of fraud or the like, therefore, G this Court could not, so it was argued, consider the special entries or questions of law, for this would amount in effect to reopening a finally decided appeal. Reliance was placed on R v D. and Another, 1953 (4) SA 384 (AD), and R v Parmanand, 1954 (3) SA 833 (AD). But those cases dealt with appeals from and reviews of the proceedings in magistrate's courts, in respect of which the statutory provisions are H materially different. The cases do not throw light on the question whether the refusal of leave to appeal is for present purposes equivalent to the dismissal of an appeal. In my view it is not. The refusal, like the grant, of leave to appeal by...