Rex v Dhlumayo and Another
Jurisdiction | South Africa |
Judge | Greenberg JA, Schreiner JA and Davis AJA |
Judgment Date | 05 April 1948 |
Citation | 1948 (2) SA 677 (A) |
Hearing Date | 04 March 1948 |
Court | Appellate Division |
Greenberg, J.A.:
The two accused were convicted in the Native High Court of the crime of murder, and, extenuating circumstances having been found, were each sentenced to 18 years' imprisonment with hard labour. Their application for leave to appeal against the conviction and sentence was granted at the hearing of the application but judgment was reserved on the appeal itself.
It is not disputed, and is beyond doubt that the deceased was murdered during the evening of the 21st March, 1946. He and his wife, Noziyepi Dunywa, with an infant child, had gone to bed in their bedroom, where a small lamp was alight on the ground between their sleeping-mats, when two shots were fired, from some kind of shotgun, through a hole in the wall of the room, as a result of which the deceased was killed almost instantaneously. The cartridges used were loaded with large home-made shot, some of which were recovered from the body and a couple were found under the body. It is clear that the shots were fired from outside the room, but at very close range, probably within six feet of the deceased. The hole in the wall through which the shots were fired had been there for some time before the deceased went to bed that night, but according to the evidence of Noziyepi it was then a circular hole almost 11/2 ins. in diameter, whereas the next morning it was found to be rectangular, about 16 ins. long and 4 ins. high. The wall was built of wattle and daub and it would not be difficult for any person to enlarge the hole from the outside to the extent indicated above. Apparently this was done without attracting the attention of the inmates.
Noziyepi's evidence is that the deceased's sleeping-place was
Greenberg JA
between hers and the hole in the wall. When they first went to bed the infant child was sleeping between the deceased and this wall, but before they actually settled down to sleep the deceased handed the child to her and she placed it on her mat on the side of her away from the wall and the deceased. After this had happened they pulled the blankets over their heads, but left the lamp alight, and were still talking when she heard two loud reports in quick succession. The deceased jumped up and fell down with the upper portion of his body on her mat. The light went out and she ran to one of the other rooms to get a light. When she returned she found that her husband was dead.
No direct evidence was led to prove the accuseds' responsibility for the murder. The Crown rested its case on evidence (1) that both the accused had what they believed to be serious grievances against the deceased as a result of which the 1st accused on an earlier occasion had attempted to get from a herbalist some substance with which to harm or to kill the deceased, and the 2nd accused had on more than one occasion threatened to harm or kill the deceased, (2) that both the accused have made admissions of being responsible for the death of the deceased, (3) that on the evening of the 21st March, shortly before the murder, the 2nd accused was seen with a stranger, away from his own hut, and that he not only does not explain his movements but states that he spent the whole evening in his own hut. The conclusion to which the trial court came was that the two accused 'procured a third man who was possessed of a gun and themselves accompanied him to the deceased's house and were present when the fatal shot was fired'.
The contention advanced before us on behalf of the accused is that the Crown has not proved their guilt beyond a reasonable doubt. The burden which rests on an appellant with a full right of appeal on such an issue was dealt with by this Court in Rex v Duma & Another (1945 AD p. 410 at pp. 418 - 9). Although it is there stated that, an appeal of this nature being a re-hearing, the Appeal Court has to satisfy itself that there is no reasonable doubt as to the guilt of the accused, the burden which rests on an appellant is indicated in the passage of the judgment where my brother DAVIS said:
'I proceed to consider whether there are sufficiently cogent reasons to impel me to the conclusion that the Court a quo was wrong in not . . . having a doubt.'
Greenberg JA
I think it follows from this passage and from the principles recognised in Bitcon v Rosenberg (1936, A.D., p. 380), and referred to again in the recent decision of Watt v Thomas (1947 (1), A.E.R. 582) that where the trial court has not mis-directed itself on a question of fact, an appellant, in order to succeed, must satisfy us that the trial court ought to have had a reasonable doubt as to his guilt. If there is such a mis-direction, other considerations may arise.
I do not propose to seek to define what is meant by a misdirection on a question of fact; it is sufficient for the purposes of this case to say that an omission by a trial court to refer to some fact which is relevant to the question of the guilt of the accused is not necessarily a circumstance which will entitle an appeal court to disregard entirely the findings of the trial court and to seek to retry the case independently of such findings. It is said that in this case there have been such omissions by the trial court as to require us entirely to disregard its findings; as the importance of these omissions can only be appreciated by a consideration of the case as a whole, it is necessary so to consider it.
It does not appear to me that there is any ground for doubting the correctness of the trial court's conclusion that both accused were at enmity with the deceased. This enmity was due to two causes, the first, and no doubt more serious one, arising out of a superstitious belief, the second based on material grounds. The first accused had a child who was paralysed and it is clear from the Crown evidence that he ascribed this fact to the witchcraft of the deceased. It is also clear that he had a grievance against the deceased arising out of the fact that the latter's pigs had damaged his crops. The trial court has not found it proved that he uttered any threats against the deceased but has accepted the evidence led on behalf of the Crown that he enquired of a herbalist Mbuzeni, whether the latter did not have medicine which would do harm to the person who was the cause of the child's illness and later indicated to Mbuzeni that the deceased was that person. It is enough to say that I see no ground for questioning the trial court's acceptance of the evidence of Mbuzeni and of Ben, who said he was present when the request was made by the 1st accused.
In the case of the 2nd accused, the evidence is that he harboured the belief that the deceased's witchcraft was the cause of the death of his (the 2nd accused's) father and mother, that the deceased's pigs had caused damage to his crops also and that he had on
Greenberg JA
different occasions uttered threats, based on one or other of these grounds, that he would kill the deceased. There is also the evidence of Bessie and Lucy, to whom I shall presently refer, that in connection with the killing of a goat, No. 2 accused expressed his feeling of hostility to the deceased. There is no reason for not accepting the trial court's finding that No. 2 accused bore ill-will against the deceased and had uttered a number of threats that he would kill him.
Before dealing with the evidence in regard to the admissions made by the accused, it will be convenient to refer to the evidence under the third head, which relates only to the 2nd accused. This evidence emanates from three persons, two of whom (Bessie and Lucy) are related to the deceased, but this affords no ground for holding that the trial court was wrong in accepting it. These witnesses merely say that shortly before the report of the gun-shots was heard, they saw the 2nd accused in the vicinity of their huts, in the company of a stranger. Two of these witnesses, Bessie and Lucy, say that the 2nd accused and his companion were going towards or into the hut of a native woman Betta, who is the 2nd accused's lover and the sister of the 1st accused, who is married to the sister of the 2nd accused. The other witness Filda, whose hut is some distance from where Bessie and Lucy live, says that when she saw the 2nd accused and his companion, they were going in the direction of the 1st accused's hut, but the plan shows that they might have been on their way to the 2nd accused's hut. Of these three witnesses, Lucy says that the accused's companion was carrying something about 18 ins. long in his hand but that she 'could not make out what it was'. The other two witnesses were unable to say whether the companion was carrying anything. It was part of the Crown case that this companion was the person whom the accused had procured to shoot the deceased and the fact that these three witnesses, more particularly Filda and Bessie, make no attempt to fix the companion with the possession of a gun, is a ground for believing in their honesty. The main significance of their evidence rests on the fact that the 2nd accused denies that he was away from his house that evening. I am not unmindful of the danger of attaching too much importance to the fact that the accused has given untruthful evidence, which danger was again referred to recently in this Court in Goodrich v Goodrich (1946, A.D., p. 390). Where the fact that an accused person falsely denies is one that would render him suspect or would be likely to
Greenberg JA
involve him in guilt the Court is less inclined to attach importance to his false denial. But if the 2nd accused's association with this third person had no connection with the murder of the deceased, there was no reason why he should not have admitted it, as there seems no reason why he should not have visited the hut of Betta, his lover; his false denial of the whole incident is a matter that cannot be wholly disregarded. If his companion did in fact shoot the deceased, there is very good...
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