Rex v Manda

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Schreiner JA, and Hoexter JA
• Judgment Date: 21 May 1951
• Hearing Date: 14 May 1951
• Citation: 1951 (3) SA 158 (A)
• Court: Appellate Division

C Schreiner JA:

The appellant was convicted at Springs by a court consisting of LUCAS J and assessors on a charge of having on or about the 10th December 1950 murdered a nine year old native boy; he was sentenced to death He now appeals leave having been granted by the trial Judge

D It is not in dispute that someone murdered the deceased shortly before the 12th December, 1950, when the fireman of a passing train saw his body lying on the north side of the railway line about four yards from it and about a quarter of a mile on the Delmas side of the scattered village of Eloff. The railway line and the main road from Springs to E Delmas run parallel through Eloff and some 15 to 20 yards apart; their direction is roughly east and west, the railway line being on the south side of the road. On the north side of the road there is a café. On the south side of the line, about 300 to 400 yards from the café, is an Indian store where the appellant was living at the time and between this F store and the line is a mill where a witness, Jim Ndhlovu, worked and lived. The deceased lived with his grandmother on a small holding in the southern portion of Eloff, about 600 yards from the café.

The fireman having reported what he had seen, a railway constable, de G Kock, went to the place on the morning of the 13th December and found the body in a state of decomposition with a leather belt, which the deceased had used to keep up his trousers, tied tightly round the neck. The district surgeon held a postmortem examination on the 14th December and found that death was due to strangulation. In his report he recorded:

'The deceased died alone at Eloff Railway, Springs, between the 11th H and 12th day of December, 1950.'

At the end of the report, however, he stated, 'Death probably occurred 4 days ago.' In his evidence he said that he had prepared a report and then without confirming its correctness handed it in as an exhibit. He went on to say in his evidence, 'Death occurred between the 11th and 12th December.' The importance of the day of death arises from the fact that the Crown evidence associated the appellant with the deceased on the

Schreiner JA

10th December and left unexplained why, if the appellant killed the deceased, he should not have done so until the 11th. The district surgeon's report was only a contemporary record from which he was entitled to refresh his memory and, although such a report may for A convenience be treated as a summary of the doctor's evidence where he confirms its correctness in the witness box, in the absence of such confirmation it is not evidence. No attempt was made, according to the record, to ascertain why the district surgeon stated in his evidence that death had occurred between the 11th and 12th (whatever that may B mean) or to find out whether this expression of opinion was intended to exclude the possibility that death had occurred on the 10th. Consequently, as the evidence stands, it should, strictly speaking, be assumed that death took place later than the 10th and on the rest of the evidence this would operate, in relation to the probabilities, in the C appellant's favour. It is, however, unnecesary to decide whether had this feature stood alone it would have led to a decision in favour of the appellant, and I shall assume that the district surgeon's evidence is not inconsistent with death having occurred on the 10th.

D The Crown's case rested, substantially, on two factors. The first consists of the evidence of three small native boys, Albert, Timothy and Israel, who gave unsworn evidence that on Sunday the 10th December, at a time which was variously given but which may have been between 12 noon and 3 p.m., they were playing outside the café with the deceased, when E the appellant came up to them and spoke to the deceased. He said he was going to buy the deceased a pair of trousers and that he would give Timothy and Israel, the younger brothers of the deceased, some money. He then took the deceased away with him. The ages of Albert and Timothy are given on the record as 14 and 6 respectively, but counsel for the Crown F accepted the position that by appearance the ages of the three children were 11, 5 and 3. Albert is no relation of Timothy, Israel and the deceased and did not live with them. He was stated by a railway police sergeant to be in domestic service. There were some discrepancies in the evidence of these children; the most important, which is not referred to G in the judgment of the trial court, is that while Albert stated that the appellant and the deceased walked away in the direction of Springs the other two said that they went in the opposite direction, towards Delmas. Albert said that he knew the appellant from seeing him walking about in Eloff. Israel said in his evidence that he knew the appellant, H but it is not clear whether he meant that he had known him before this case arose. The elder brother, Timothy, also stated that he knew the appellant but in cross-examination he said that he had not seen him before the 10th December; the learned trial Judge appears to have overlooked this latter statement and merely states in his...