Rex v Mdhluli

• Jurisdiction: South Africa
• Citation: 1922 AD 472

Rex Respondent v Mdhluli Appellant
1922 AD 472

1922 AD p472

Citation	1922 AD 472
Court	Appellate Division, Cape Town
Judge	Innes CJ, De Villiers JA, Kotzé JA, Gardiner AJA and Watermeyer AJA
Heard	July 29, 1922
Judgment	August 29, 1922

Flynote : Sleutelwoorde

Criminal procedure — Evidence — Preparatory examination — Constitution of — Magistrate acting as prosecutor — Deposition of witness since deceased — Criminal Law Amendment Act, 1867 (England), sec. 6 — Act 31 of 1917, secs. 272 and 320.

Headnote : Kopnota

A magistrate, on receiving a report that a native woman bad been severely assaulted, proceeded to the place where she was and found her in a very dangerous condition. After endeavouring, unsuccessfully, to obtain from her a statement which would be admissible in evidence as a dying declaration, be had her sworn and took down her deposition in the presence of the

1922 AD p473

accused who was then under arrest. The public prosecutor was also present but took no part in the proceedings. At the subsequent trial of the accused in the Natal Native High Court on a charge of murder the deposition of the woman, who had died in consequence of the assault, was admitted in evidence under sec. 272 of Act 31 of 1917 as a deposition taken at a preparatory examination and was relied upon by the Court in convicting the accused. On a point of law reserved.

Held, that as no preparatory examination had been constituted in terms of Act 31 of 1917, the deposition should not have been admitted, and as its admission had prejudiced the accused, the conviction should be quashed.

The question whether the effect of sec. 320 of Act 31 of 1917 is to incorporate into South African practice the provisions of sec. 6 of the English Criminal Law Amendment Act, 1867, raised but not decided.

Case Information

Appeal from a conviction by the Natal Native High Court (BOSHOFF, J.P.; LESLIE, J., and FARRER, J.) Appellant was convicted in the High Court of the crime of murder. He now appealed upon a question of law reserved under Act 31 of 1917.

The facts appear from the judgments.

C. A. Beck, for the appellant: I take four points. (1) There is no evidence that the interpreter was ever sworn. (2) There was no charge. (3) The prisoner was not regularly before the magistrate. (4) There was no prosecutor.

As to the last point see Act 31 of 1917, sec. 60. The duty of prosecuting is upon the public prosecutor, Rex v Mundy (1915 T.P.D. 608). There must be a prosecutor of some sort. The magistrate cannot be both judge and prosecutor at a preparatory examination. See Rex v Sonyangwe (1908, E.D.C. 394)

[KOTZÉ, J.A., referred to Rex v Breytenbach (1878, K. 55); INNES, C.J., referred to Rex v Nellmapius (2 S.A.R. 85).]

[WATERMEYER, A J.A.: Have you considered the effect of sec. 320 of Act 31 of 1917? That section may incorporate section 6 of Act 30 and 31 Vict., Ch. 35.]

Even if the effect of sec. 320 is to incorporate the English Act that Act requires that notice in writing should be given to the person accused. No such notice was given in this case.

E. W. Douglass, K.C., A.-G., for the Crown: As to the last point raised, 30 and 31 Vict., Ch. 35, sec. 6 was passed in consequence of the decision in Queen v Newton (1 F. & F. 641). Under the English statute notice in writing to the person accused is essential to render the deposition admissible. I cannot contend that the deposition in this case was properly admitted.

1922 AD p474

Postea (August 29th).

Judgment

Innes, C.J.:

The statement of the woman Nomali Kabindi was taken by the magistrate of Volksrust at Mount Prospect, a place within the area of his jurisdiction as additional magistrate of Newcastle. He arrived there accompanied by the sergeant of police in charge of local prosecutions. He found the woman suffering from severe injuries, and on being informed by the doctor who had first dressed her wounds, that she was "very bad," he endeavoured to obtain a dying declaration. The magistrate could obtain "no satisfactory answer" from the woman in regard to her own appreciation of her condition. Asked whether she thought that she had no hope of recovery, she said that she did not know - which was the only reply which could be got from her. As he considered the matter urgent the magistrate decided to take another course. What followed is best described in his own words. "I thought to myself we must get some statement from her. I then swore her with the intention of holding a preparatory examination. I converted my gathering there, as it were, into a preparatory examination. I bad the deceased sworn, the prisoner was present, and then certain questions were put to and answered by the deceased. The prisoner was given an opportunity of putting questions, although that is not shown in the statement. I am sure he was given an opportunity to ask questions, but he did not actually ask any questions. I did not see him shake his head. I understood that the accused desired to put no questions. The accused was under arrest at that time. There was a white constable there, so I presume he was in custody. The accused was not charged in my presence but he was A prisoner before me. . . . I read the statement in the presence and hearing of the accused, word for word, as I had written it down." There is nothing to show that the police sergeant was consulted or that he intervened in the proceedings in any...