Rex v Kohlinfila Qwabe

• Jurisdiction: South Africa
• Citation: 1939 AD 255

Rex Respondent v Kohlinfila Qwabe Appellant
1939 AD 255

1939 AD p255

Citation	1939 AD 255
Court	Appellate Division
Judge	De Wet JA, Watermeyer JA and Tindall JA
Heard	December 1, 1938
Judgment	December 3, 1938

Flynote : Sleutelwoorde

Criminal procedure — Appeal — Evidence — Extra-judicial statement by one accused used against other accused — Murder — Appeal on facts.

Headnote : Kopnota

An accused was convicted in the Natal Native High Court of murder, the Court relying upon the evidence of certain persons who admitted that they had assisted in disposing of the body of the deceased, and upon an unsworn statement inculpating the accused, made by the deceased's wife, who was jointly charged with the accused with the murder.

Held, allowing an appeal, that the fact that the Court had relied upon the unsworn statement made by the deceased's wife alone vitiated the conviction.

Held, further, that in view of the unsatisfactory nature of the evidence of the persons, who were on their own admission accessories after the fact to the crime of murder, the lower Court was not justified in accepting their evidence.

Case Information

Appeal from a conviction in the Natal Native High Court.

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

J.Hutton, at the request of the Court, for the accused: Leave will be granted more readily in appeals from the Native High Court. See Rex v Mpeta (1912 AD 568); Rex v Didat (1913 AD 299 at p. 302); and generally as to when leave will be granted, see Rex v Wessels (1933 AD 395).

L.C. Barrett, for the Crown, did not oppose leave being granted.

Leave to appeal was granted and the Court heard argument on the appeal forthwith.

Hutton (on the appeal): The Court acted irregularly in relying upon the confession of another accused tried jointly with the appellant as corroboration of the Crown witnesses. The Court should have dismissed the confession from its consideration of appellant's case. See Rex v Myende (1935 NPD 184) and Rex v Fatsha & Matluli (1930 T.P.D. 526 at p. 530); Rex v Rajkumar (1931 NPD 160) and Rex v Dlamane and Others (1931, E. D.L.

1939 AD p256

166) and Rex v Hewertson and Others (1937 CPD 103 at p, 110).

The accused suffered prejudice as the result of the irregularity.

See Rex v Rose (1937 AD 467 at p. 476) and the cases there cited and Rex v Fourie and Another (1937 AD 31 at p. 44). See also Rex v Tshelembe and Others (1933 AD 323 at p. 325) on the facts.

The accused should have been given the benefit of the doubt, See Rex v Difford (1937 AD 370 at p. 373).

Barrett: The Court was entitled to treat the confession as affording corroboration in respect of all facts other than the fact that appellant participated in the killing. See Rex v Zawels and Another (1937 AD 342).

Hutton replied.

Cur adv vult.

Postea (December 3rd).

Judgment

Watermeyer, J.A.:

The appellant, a native male, was charged in the Native High Court, Natal, jointly with a native woman (the second accused) with the murder of a native named Botshwayo Mtetwa. Both accused were convicted and sentenced to death. It appears that the deceased was the third husband of the second accused. She had started to live with him not very long before his death on 8th May, 1938. About a month earlier the second accused had left the deceased's kraal and returned to the kraal of the witness Zwelempi where certain of her children by a former marriage had remained. She was related to Zwelempi, the head of the kraal, and had lived there for some years before she married the deceased. The Crown led evidence to show that the appellant, who lived about a mile from Zwelempi's kraal, was intimate with the second accused and the suggested motive for the alleged murder was a desire on the part of the two accused to get the deceased out of the way. The deceased did not return to work at his master's farm on the morning of 9th May. In answer to enquiries by the master the second accused told him she had not been at deceased's kraal the previous night. By the 10th May a constable was investigating the disappearance of the deceased at Zwelempi's kraal and

1939 AD p257

Watermeyer, J.A.

on the 11th May the police detained Zwelempi, his wife Pategile, a woman called Isipete, a woman Fusaba (who had a hut within a stone's throw of Zwelempi's kraal) and the second accused.

On 11th May, before the magistrate of Mtunzini, the second accused made a statement in which she admitted that she assisted in the killing of the deceased, and also implicated the appellant. The statement was in these terms: "I say I murdered a person. I murdered him with one Nonkemba. I held him by his legs and he knocked him up here and we removed him from where we murdered him and placed him at another place. He knocked him with a stick. I held him by the legs and he held him by the upper portion, of the body. I end."

On the next day, 12th May, Sergeant Day took the second accused out in a motor car into the country to enable her to point out the place where the body had been put. Having got the car as near as he could, in the broken country being traversed, to a certain stream, Day stopped the car about a mile from the stream and sent native constables to look for the appellant. During the wait at that spot the second accused indicated with a nod of her head that the body was in the stream in the valley. Later, when the appellant was brought under arrest to the place where the car stopped, and a search party consisting of a native chief and 200 followers arrived, the second accused, according to Day's evidence, became alarmed and pointed in a different direction on a request by Day to indicate more clearly where the body was. Searches on that date and on 23rd, 24th and 25th May, proved unsuccessful and the body was not found till 30th May, when the witness Mahatile, who was cutting sticks on the banks of the stream, happened to see the body floating in a pool.

At the trial the Crown relied on the evidence of Fusaba, Zwelempi, Pategile, and a native male Mbuteni who is a nephew of Zwelempi and lived at the latter's kraal. The three last-mentioned witnesses, according to their evidence, were eye-witnesses of the murder which is alleged to have taken place in Zwelempi's sleeping-hut; and on their own evidence they were accessories after the fact, for they assisted in the disposing of the body, Zwelempi and Mbuteni having helped to carry it to the stream and Pategile part of the way to a point where, according to the evidence, she was ordered by Zwelempi to return home and obliterate the blood which had flowed, on to the floor of the but from a wound which

1939 AD p258

Watermeyer, J.A.

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