Rex v Ncanana

• Jurisdiction: South Africa
• Judge: Centlivres JA, Schreiner JA, Hoexter AJA
• Judgment Date: 24 September 1948
• Citation: 1948 (4) SA 399 (A)
• Hearing Date: 13 September 1948
• Court: Appellate Division

Rex v Ncanana
1948 (4) SA 399 (A)

1948 (4) SA p399

Citation	1948 (4) SA 399 (A)
Court	Appellate Division
Judge	Centlivres JA, Schreiner JA, Hoexter AJA
Heard	September 13, 1948
Judgment	September 24, 1948

Flynote : Sleutelwoorde

Criminal procedure — Evidence — Accomplices — Necessary corroboration of — Whether it must implicate the accused — Section 285 of Act 31 of 1917.

Headnote : Kopnota

Where accomplice evidence is the basis of the Crown's case, grave error, to the disadvantage of accused persons, may be caused by treating section 285 of the Criminal Procedure Act as covering the whole field, while similar error, to the disadvantage of the Crown, may be caused by insisting, before there can be a conviction, that, save where the accused gives no evidence or false evidence, there must be corroboration in a respect implicating the accused.

The views expressed in Rex v Kibi (1946, E.D.L. 197) and in Rex v Zware and Others (1946 TPD 1), in so far as they are not in accordance with what is stated above, are incorrect.

Case Information

Application for special leave to appeal against a conviction in the Natal Native High Court. The facts appear from the judgment of SCHREINER, J.A.

B. D. Burne, for the applicant, at the request of the Court: As to test to apply as to whether the application should be granted see Rex v Ngubane (1945 AD at 187). There is no statutory necessity for corroboration of an accomplice's evidence where, as here, the commission of the offence is proved by evidence aliunde; see sec. 285 of Act 31 of 1917; Rex v Thielke (1918 AD 373 at p. 377); Rex v Lakatula (1919 AD 362 at p. 364); Rex v Troskie (1920 AD 466 at pp. 468 - 9); Rex v Galperowitz (1941 AD 485 at p. 491); but there is, however, a rule of practice applicable, requiring either corroboration taking the form of direct or circumstantial evidence linking the accused with the crime, or some other good ground for rejecting the evidence of the accused denying the charge, and for accepting the evidence of the accomplice; cf. Rex v John (1943 TPD 295 at pp. 298, 299, 300); Rex v Zware and Others (1946 TPD 1 at p. 6); Gardiner and Lansdown, South African Criminal Law and Procedure (5th ed., vol. 1, at p. 524). Rex v John (supra), as qualified in Rex v Zware and Others (supra) is not inconsistent with the line of cases decided under sec. 285,. viz.: Rex v Thielke (supra); Rex v Lakatula and Others (supra); Rex v Troskie (supra); Rex v Galperowitz (supra); Rex v Owen (1942,

1948 (4) SA p400

A.D. 389); Rex v Levy (1943 AD 558); Rex v Kubuse and Others (1945 AD 189); Rex v Brewis (1945 AD 261); Rex v Kristusamy (1945 AD 549), although these cases state that the corroborative evidence need not directly implicate the accused and must show or tend to show that the accomplice is a reliable witness; for most of these cases were not appeals proper, as was Rex v John (supra). The fact that the minimum requirements of sec. 285 had been complied with, would be a complete answer. See also Rex v Kristusamy (supra) which was an appeal proper and did not overrule Rex v John (supra); also, there is nothing in the wording of sec. 285 which excludes the possibility of the rule of practice contended for, existing concurrently with the section. Even if the nature and effect of the rule of practice is incorrectly stated in Rex v John (supra), there is nevertheless a rule of practice which requires corroboration even where there is proof aliunde of the commission of the crime and it is submitted that the rule of practice requires at least as strong corroboration as is mentioned in the line of cases (supra), as to which see, in particular, Rex v Owen (supra, at p. 394); Rex v Kristusamy (supra, at p. 558). As to the facts, applicant's untruthfulness might be a point of corroboration; see Rex v Boxer (1943 AD 243 at p. 249), but in the circumstances it should not be taken as corroboration; cf. Goodrich v Goodrich (1946 AD 390 at pp. 396 - 7). The trial Court ought to have held that there were extenuating circumstances within the meaning of sec. 338 (1), as the applicant's motive for the crime was his belief that the deceased had caused the death of his, applicant's, relatives by witchcraft; see Rex v Fundakubi and Others (1948 (3), S.A.L.R. 810).

P. R. Botha, for the Crown: As to the evidence of the accomplice, whom the Court below found to be reliable and credible, see sec. 285; Rex v Lakatula and Others (supra); Bitcon v Rosenberg (1936 AD 380 at p. 396); Rex v Galperowitz (supra, at p. 492); Rex v Levy (supra, at p. 561); Rex v Brewis (supra, at p. 268); Rex v Kristusamy (supra). As to the effect of the applicant's untruthful evidence, see Rex v Boxer and Another (supra, at p. 249). Applicant failed to discharge the onus of proving extenuating circumstances; cf. Rex v Lembete (1947 (2), S.A.L.R. 603); the Court gave very careful consideration to all factors bearing upon the degree of applicant's moral blameworthiness in committing the crime and found no extenuating circumstances; cf. Rex v Fundakubi and Others (supra).

1948 (4) SA p401

Burne, in reply.

Cur adv vult.

Postea (September 24th).

Judgment

Schreiner, J.A.:

The applicant was convicted of murder by the Natal Native High Court and, no extenuating circumstances having been found to be present, was sentenced to death. He now applies for special leave to appeal against the conviction and against the sentence, including the finding negativing extenuating circumstances.

The scene of the crime was Dumanani, a rural locality near the White Umfolozi River in Natal, and there is no doubt that the deceased was killed in his hut by a rifle shot fired soon after dark on the evening of Saturday, the 15th November, 1947. Nor is it in question that the shot was fired, with intent to kill, by one Ntsimini Biyela who, after he had been convicted and sentenced to death for the murder, was called as the Crown's principal witness at the trial of the applicant and his brother. The latter was discharged at the close of the Crown case because...