Rex v Kumalo and Another

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA, Curlewis JA and Stratford JA
• Judgment Date: 21 November 1929
• Citation: 1930 AD 193
• Hearing Date: 25 October 1929
• Court: Appellate Division

De Villiers, C.J.:

On the 20th September, 1929, at the Bethal Circuit Local Division before FEETHAM, J., and two assessors, the two accused, whom I shall call Kumalo and Tabeta, respectively, were charged with the murder of a young native girl Paulina Bilakasi at or near the farm Kuilfontein in the district of Bethal, and on or about Wednesday the 6th March, 1929. They were both found guilty and sentenced to death. Thereafter on the 24th September, 1929, at the Carolina Circuit Local Division, at the request of counsel for the accused, the learned Judge, under sec. 372 of Act 31, 1917, reserved the following two questions of law for the consideration of this Court:-

"(1) As regards the first accused Johannes Kumalo - whether the Court was right in holding that there was any evidence to justify a conviction;

"(2) As regards the second accused Mafuta Tabeta - whether the Court was right in holding that there was evidence aliunde to show that the crime was committed, or alternatively, whether there was evidence which corroborated the accused's confession."

I shall consider these two questions- in the order in which they are stated.

The first question, then, is whether the Court was entitled to, convict Kumalo of the crime of murder upon the evidence before it. In Rex v Shein (1925 AD 6) a similar question was considered by this Court, and it was held that this Court, not being a Court

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of Criminal Appeal, can only interfere with the verdict if the jury, taking a reasonable view of the whole of the evidence, could not properly have returned the verdict. In other words this Court can only interfere if the verdict is so unreasonable that the jury cannot be considered to have discharged the duty which rested upon it of weighing the evidence fairly and dispassionately and coming to a conclusion thereon. If the jury might upon the evidence have come to that conclusion, then the verdict must stand. And the reason for the rule is that the jury are by law constituted as the judges of fact; that being so, for this Court to interfere with a verdict properly found would be to usurp the functions of the jury. In the above case the history of the jurisdiction of this Court was shortly traced by INNES, C.J., who delivered the judgment of the Court It was pointed out that the rule is now put much higher than formerly, when the Court could not interfere if there was the slightest evidence against the accused, a mere scintilla of evidence, as it was called. If that had been the principle to be applied in the present case, there can be no doubt that this Court would have no right to interfere, as there is much more than a scintilla of evidence against Kumalo. But that is not the test any more, and we have to apply the rule as stated above. That rule is of course equally applicable to a case like the present where the trial was before a judge without a jury, but who was assisted under sec. 216 by two assessors who, according to the section, act "in an advisory capacity on questions of fact arising upon the trial." The judge advised by the two assessors is the sole judge of the facts, and his verdict is final unless this Court comes to the conclusion that upon the evidence the verdict was not a proper one. The question is not whether this Court would have arrived at the verdict, but whether the verdict is so unreasonable that, in the opinion of this Court, the judge did not discharge the judicial duty cast upon him by the law. Only in that case are we entitled to interfere without going so far as to say that I myself would have arrived at the same conclusion. Applying that test, there is in the present case in my opinion no room for interference by this Court. It is unnecessary for me to state the facts at length. They are detailed in the summing up of the learned Judge with a fulness and clearness upon which I cannot hope to improve. The case is one of circumstantial evidence, no one saw the deed committed; even the cause of death, owing to decomposition of the body, was a

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matter of inference. Upon the evidence the learned Judge came to the following conclusions as regards Kumalo, (1) that the skeleton which was found in the mealie lands on the 10th April was the skeleton of the girl Paulina who had disappeared on or about the 6th March; (2) that she met her death by violence; and (3) that the accused, Kumalo, was guilty of the murder together with the other accused, Tabeta. I am not prepared to say that these conclusions are so unreasonable that this Court has a right to interfere, In a trial by jury it would be impossible for this Court to say how the jury arrived at their verdict. All that the Court would have before it is the evidence led and the verdict of guilty, and then, looking at that evidence, it would have to determine whether the jury upon that evidence could have returned the verdict, or whether the verdict is so unreasonable that, if they had discharged their duty and weighed the evidence, they could not possibly have arrived at such a verdict. In the present case, however, the Court has the advantage of the summing-up of the learned Judge, and it is therefore in a better position to judge of the reasons which actuated him in coming to the conclusions he did. Now the learned Judge came to the conclusion that the girl Paulina, who was about 18 years of age, apparently left her father's kraal with her accepted lover Amon on Tuesday the 5th March, and that she disappeared on the next day. She spent the Tuesday night at Amon's kraal, and left it again with Amon on her way home the following morning at sunrise. Amon accompanied her only a short distance. She had on a pink doek and a pink dress, and carried a blanket, a sack and a sickle. In her ears she had a pair of earrings. The doek, the pink dress and the sickle were not found, but the learned Judge finds (and there is ample evidence to support him) that it was Paulina's blanket which covered the corpse, that the sack which was found in the hut of Kumalo on or about the 18th June and on which the analyst found human blood was the sack Paulina carried on the day she met with her death, and that the earrings which were found near the corpse in the position where one would have expected to find them in the decomposed state of the body were Paulina's earrings' On her way home Paulina was to have visited her aunt, but did not carry out that intention for what reason can only be matter of surmise. At about 7.30 that morning a Mr. Steenkamp and his wife were proceeding to a neighbouring farm, when they saw two native men and a young native woman

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whom he took to be about 17 years of age in the road at a gate marked "D" on the plan. If the girl Paulina was on her way to her father Solomon's huts that morning she would have had to pass that gate on her way at about that time. Steenkamp recognised one 'of the natives as the accused Tabeta. The other native he did not recognise. He only saw the latter from behind, but be says according to his build the native was very similar to Kumalo. Steenkamp was quite close to the natives, about 50 yards away. The native girl ran away, the one native ran after her, caught hold of her and pulled her towards Tabeta. If the native girl whom Steenkamp and his wife saw was Paulina, that was the last time she was seen alive. Her body was found in the mealie lands about 140 yards away from this spot nearly five weeks afterwards, namely, on the 10th April, with the blanket covering it and in a position which the doctor considers points to foul play. The learned Judge, after detailing the evidence, says: "Taking all this evidence into account, I think I am quite safe in arriving at the conclusion that the body which was found in the mealie lands on or about the 10th April was the body of the girl Paulina." In my opinion there is ample evidence to support this finding. Then the learned Judge comes to the conclusion that the girl Paulina must have met her death by violence. That too is a conclusion which cannot be questioned by this Court, supported as it is by the doctor's evidence as to the position of the body and the other circumstances of the case to which reference is made. These circumstances are shortly the following. The girl when last seen was perfectly healthy. Her body had been placed in the mealie lands where it would not be likely to be found as skoffeling had already taken place that season. In this way the body was very effectively concealed, and the sack which she was carrying that day was subsequently found upon analysis to be covered with human blood. But the crucial question still remains, is the evidence connecting Kumalo with the murder so clearly inadequate that the learned Judge was not entitled to find him guilty? To determine this question it becomes necessary to consider the evidence more in detail. There is first the evidence of Mr. and Mrs. Steenkamp. If that stood by itself there would clearly be no evidence proper to convict Kumalo. But the evidence is important all the same, and cannot be disregarded entirely, for an inference may be drawn from it that on the morning of the murder there was an assault upon

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the girl Paulina in which two persons took part, one of them Tabeta and the other a native who, viewed from behind, was about the build of Kumalo. That circumstance, as the learned Judge points out, taken by itself is, quite inconclusive. But then there is the serious evidence against him in connection with 'the sack. The sack is found in his room under some blankets which were apparently being used as a pillow. On that sack there are stains which taken at random by the analyst are found to be human blood. Dr. Harrington, who made the examination, did not test all the blood upon the sack, but the three places which he did test all showed the reaction of human blood. The sack was shown to Kumalo and...