Rex v Mkwanazi and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Watermeyer CJ, Schreiner JA and van Den Heever JA
• Judgment Date: 14 October 1948
• Citation: 1948 (4) SA 686 (A)
• Hearing Date: 14 September 1948

Schreiner, J.A.:

The three accused applied for special leave to appeal from convictions and sentences by the Natal Native High Court. It was argued that the evidence of identity of the accused with the wrongdoers was insufficient, but this Court was satisfied that none of the points made on their behalf raised any doubt that they were the persons concerned. In the course of argument, however, a question was raised whether the verdict arrived at was legally justified by the evidence. On this point alone leave was granted to the accused to appeal, with permission to either party to submit written arguments thereon if desired. Of this permission the Crown has availed itself and the Court has been informed that no written argument is being submitted by the accused.

The charge was one of rape, but the majority of the Court found

Schreiner JA

the accused not guilty of rape but guilty of assault with intent to do grievous bodily harm. This was a competent verdict, in a proper case, in terms of sec. 233 of Act 31 of 1917. The third member of the Court, TURNER, A.J., was of opinion that the proper verdict was one of guilty of assault with intent to commit rape. The first two accused were sentenced to seven years' imprisonment and eight lashes and the third accused to eight years and eight lashes.

It is unnecessary to refer to the evidence in detail. The complainant, a European girl aged about 16 years, was with a European youth on a lonely part of the Durban beach, after dark, when they were attacked by the accused and another native who gave evidence for the Crown. The youth was chased away, one of the natives threatening him with a knife; after an interval he returned with the police and the accused ran away but were identified and subsequently captured. There is no doubt that before they ran away one of the three accused, but probably no more than one, committed a sexual assault upon the complainant, which may well have amounted to rape but which was possibly no more than assault with intent to commit rape. It was not, however, proved which of the accused actually assaulted the complainant, and the majority of the trial Court concluded that it was not possible to apply the principle of common purpose so as to find beyond reasonable doubt that all three were criminally responsible for the sexual assault. In reaching this conclusion the majority were influenced by the evidence of the accomplice, a generally untrustworthy witness, to...