Rex v Kuzwayo

• Jurisdiction: South Africa
• Judge: Centlivres JA, Van Den Heever JA and Hoexter JA
• Judgment Date: 14 June 1949
• Citation: 1949 (3) SA 761 (A)
• Hearing Date: 14 June 1949
• Court: Appellate Division

Centlivres, J.A.:

I agree with the reasons prepared by my Brother VAN DEN HEEVER, and it is unnecessary to add anything thereto, but I wish to refer to certain remarks made by the Native High Court in granting leave to appeal. The Court said:

'The views of this Court on this matter are set out in the judgments in the case of Rex v Qualamuntu Masango and Rex v Salayeda Ntuli. To avoid repetition copies of the judgments are annexed hereto.'

In the first-mentioned case the learned Judge who gave the judgment quoted the following passage from the judgment of this Court in Rex v Baloi (1949 (1), S.A.L.R. 523, at pp. 524, 525):

'We are aware that this Court is able to apply a proper test with greater ease than the trial Judge for the trial Judge must in the nature of things find it somewhat difficult to look at the matter from a purely objective standpoint; he has a natural reluctance to say that his own judgment is so indubitably correct that the Judges of Appeal will concur therein.'

Proceeding, the learned Judge said:

'It seems to me that if the trial court is in the position that it can honestly say that the appliciant will have a reasonable prospect of success on appeal that must indicate that there must be some doubt in the mind of the trial court, and if such doubt does exist, then there should not have been a conviction, so that the very strict application of this rule, in my opinion, renders it very difficult to conceive of cases where leave to appeal should be granted. I can conceive of such cases where a point of law is involved, but where after a lengthy trial on facts the Court comes to a final and definite conclusion, as I have said, it is difficult to see how that Court can say the applicant will have a reasonable prospect of success. However, notwithstanding that, I can see it will be the Court's duty to give careful consideration to the application and such grounds as have been submitted in support of the application for leave.'

In Baloi's case this Court appreciated the fact that, when an application is made for leave to appeal, although it is easier for a

Van den Heever JA

judge who was not the trial judge to apply the test laid down in that and other decisions of this Court, it is the duty of the trial judge to apply the same test. That test must, to the best of the ability of the trial judge, be applied objectively. By that is meant that he must disabuse his mind of the fact that he himself has no reasonable doubt as to the guilt of the accused: he must ask himself whether there is a reasonable prospect that the judges of appeal will take a different view. This applies to questions both of fact and of law: there is, in this respect, no distinction between a question of fact and a question of law The judgment in Masango's case is, therefore, wrong in so far as it appears to suggest that, when an application for leave to appeal is made in terms of sec. 369 of Act 31 of 1917, as amended, a distinction can be drawn between those cases where the accused wishes to appeal on the ground that the conviction is not warranted by the fact and those cases where he bases his application solely on a point of law. In both cases the test is whether there is a reasonable prospect of success on appeal - a test which must naturally be applied objectively. I may point out that even before Act 31 of 1917 was amended by Act 37 of 1948, a trial court sitting with or without a jury could, under sec. 372 in its unamended form, reserve a question of law as to whether there wa any evidence on which the court was entitled to convict. See, e.g., Rex v Shein (1925 AD 6) and Rex v Cilliers (1937 AD 278). When an application was made to a judge who sat without a jury to reserve such a question of law, he was placed in a similar position of difficulty as he is placed in to-day when an application is made to him for leave to appeal on the facts: viz., the difficulty of disabusing his mind of the fact that in his own view there was evidence which left no reasonable doubt in his own mind as to the guilt of the accused and of trying to view the matter objectively, as if he were considering the judgment of someone else.

VAN DEN HEEVER, J.A.: In the Natal Native High Court the appellant was convicted of murder and sentenced to death. Having obtained the leave of the trial Court, appellant appealed against the verdict as well as the sentence. This Court dismissed the appeal and intimated that the reasons would be furnished later. The following are the reasons. The case for the prosecution was briefly that a Native who had a grudge against a dunning creditor hired appellant to assassinate the creditor and sent the money as well as

Van den Heever JA

information as to the creditor's intended movements by a messenger, Sigidhle. Appellant ambushed the creditor, who was walking in a road skirted by thick bush, and fired at him with a shotgun. He only...