Rex v Du Plessis

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Davis AJA
• Judgment Date: 17 March 1944
• Citation: 1944 AD 314
• Hearing Date: 03 March 1944
• Court: Appellate Division

Rex Respondent v Du Plessis Appellant
1944 AD 314

1944 AD p314

Citation	1944 AD 314
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Davis AJA
Heard	March 3, 1944
Judgment	March 17, 1944

Flynote : Sleutelwoorde

Criminal procedure — Appeal upon question of law — Whether any legal evidence — Inference of guilt drawn from circumstances — Presence of finger print on stolen motor car — Probative value of finger print.

Headnote : Kopnota

Where upon a charge of theft of a motor car a trial Court had drawn an inference of guilt from a finding, inferred from the circumstances, that a finger print which had been found on the stolen car after its recovery stripped of its wheels and tyres, had been made by the accused in the course of working on the car coupled with a lack of explanation by the accused as to how his finger print came to be on the car, the Appellate Division, upon a question of law reserved, quashed the conviction being satisfied upon the facts that no one could reasonably have drawn the inference of guilt.

The probative value of a finger print and of a failure by an accused to explain the presence of his finger print discussed.

The case of Rex v Magatuse (1941 AD 201), discussed; Rex v Nel (1937 CPD 330), applied.

Case Information

Appeal on questions of law reserved by Scung. MER, J., sitting with assessors in the Special High Court constituted under War Measure 13 of 1942.

The facts appear from the judgment of DAVIS, A.J.A

R. E van der Poll, for the appellant: Every reasonable inference with the innocence of the appellant was not excluded. Rex v Blom1939 AD 188); Rex v Magatuse (1941 AD 201 at p.

1944 AD p315

202); Rex v du Plessis (1942, E.D.L. 9 at pp. 11, 12). This Court should itself have a reasonable doubt of the guilt of the appellant, and find that the learned Judge a quo should not as a reasonable man have found every reasonable doubt to have been excluded. Rex v Cilliers (1937 AD 278 at p. 288).

The onus on the appellant is to satisfy the Court by a preponderance of probabilities that he did not have the alleged special intent. Ex parte Minister of Justice: in re Rex v Bolon (1941 AD 345 at p. 360). The reduction of the degree of proof required of the appellant from proof beyond a reasonable doubt to proof by a balance of probabilities, does not determine the quantum of evidence sufficient to persuade or satisfy the Court. The presumption of innocence still obtains, as also the principle that the more serious the allegation, the stronger the evidence must be to persuade the Court that the allegation is true. The position here is analogous, not to the ordinary civil case, but to the civil case depending upon allegations of criminal or quasi-criminal conduct. Bolon's case (supra); Gates v Gates (1939 AD 150 at p. 154); Bagus v Estate Moosa (1941 AD 62 at p. 71). The quantum of proof required to discharge the onus must not be placed so high as to make the onus too heavy for an innocent person to discharge. Bolon's case (supra)

The appellant has by his evidence raised a prima facie case which, if rebutting evidence is absent, becomes final and conclusive proof. Ex parte Minister of Justice: in re Jacobson and Levy (1931 AD 466 at p. 478).

The sentence imposed upon the appellant was determined upon a wrong principle and it should be reduced to bear proper proportion to the common law crime of theft. Rex v Coetzee (1936 AD 471 at p. 472).

C. du Plessis, for the Crown: The finding of the Court was that the accused was not a truthful witness. Bitcon v Rosenberg (1936 AD 396). The accused has not discharged the onus placed upon him by Regulation 13 of War Measure No. 13 of 1942. Ex parte Minister of Justice: in re Rex v Bolon (supra).

This Court will not readily interfere with the sentence. Rex v Sitomele and Others (1943 AD 455).

Cur. adv. vult.

Postea (March 17th).

1944 AD p316

Judgment

Davis, A.J.A.:

The accused was charged before the Special High Court, constituted under War Measure No. 13 of 1942 (as amended), with the crime of theft, in that on the 11th January, 1943, he stole a certain Dodge motor car with the intention to hamper the Government in the prosecution of the war. He pleaded not guilty, but was found guilty of the theft. As the intention averred was also found to have been proved, he was sentenced to the minimum sentence prescribed by the War Measure, namely, 5 years' imprisonment with hard labour. There were two, clther counts in the indictment but upon them the accused was found not guilty and they may here be disregarded. At the request of counsel for the defence three questions of law were reserved under sec. 372 of Act 31 of 1917, of which again two, referring to the finding of the intention and to the sentence, may be disregarded, for, upon the view that I hold upon the first, the other two become academic. That question is whether there was any legal evidence to support the f: Lnding of the Court that the accused was guilty of theft.

The Dodge car was stolen from Hospital Hill, Johannesburg, on the night of the 11th January, 1943, and on the 21st January it was found, stripped of its wheels and tyres, in a plantation some distance from the road, at Baragwanath. It had been wiped, both inside and out, presumably to remove finger prints, but one clear finger print, pointing downwards, was found on the outside of the front bumper about a foot from the left end. That finger print was later identified as the left ring finger print of the accused. On the 1st July he was asked by a constable for an explanation, but could give none. No further evidence of the theft was adduced by the Crown, but the accused went into the witness box. In his evidence in chief he stated that he lived in a boarding-house in Braamfontein, that he had been a member of the Ossewebrandwag, but as a public servant he had been automatically discharged from that Organisation, for public servants were not allowed to belong to it. He continued, however, to have friends who were members, and they often came to see him and he went out with them in motor cars. He stated that he could not remember what he did on the 11th January, but that he...