Rex v Nxumalo

• Jurisdiction: South Africa
• Judgment Date: 26 September 1939
• Citation: 1939 AD 580

Rex Respondent v Nxumalo Applicant
1939 AD 580

1939 AD p580

Citation	1939 AD 580
Court	Appellate Division
Judge	De Wet CJ, Watermeyer JA, Tindall JA and Centlivres JA
Heard	September 1, 1939
Judgment	September 26, 1939

Flynote : Sleutelwoorde

Appeal — Appellate Division — When bound by its previous decision — Criminal procedure — Appeal to Appellate Division — From magistrate's court — When leave will be granted — South Africa Act, section 105 — Theft — Proof of recent possession of stolen property — Effect of.

Headnote : Kopnota

Though as a general rule the Appellate Division is bound to follow its previous decisions, it is not bound by decisions stating the practice of the Court when such practice is contrary to the practice laid down in earlier decisions of that Court, to which attention was not drawn in the later decisions.

Inasmuch as an appeal lies on the facts to the Appellate Division from a conviction in a magistrate's court after special leave to appeal has been obtained under section 105 of the South Africa Act, that Division has a discretion to grant leave to appeal in any case where there is any appearance of real injustice, whether the appeal is upon questions of fact or of law.

The practice stated in Rex v Wessels (1933 AD 396) dissented from. The cases of Rex v Mpeta (1912 AD 568) and Rex v Didat (1913 AD 299) applied.

The effect of proof that an accused upon a charge of theft has been found in possession of stolen property soon after it has been stolen discussed.

1939 AD p581

Case Information

Application for leave to appeal from a decision of the Natal Provincial Division (FEETHAM. J.P., and CARLISLE, J.) dismissing an appeal from a conviction in the magistrate's court of Nkandhla.

The facts appear from the judgment of WATERMEYER, J.A.

A. J. Smit, for the applicant: This application satisfies the test laid down in Rex v Wessels (1933 AD 395); Rex v van Rooyen (1935 AD 323) and Rex v du Plessis (1935 T.P.D. 333).

The doctrine of recent possession should have been applied: it is a question of law. See Rex v May (1924 OPD 274); Rex v Berger (84 L.J., K.B. 541); Gardiner & Lansdown on S.A. Criminal Law (4th ed., pp. 1367-8); Roscoe's Criminal Evidence (15th ed., p. 22); Rex v Mandele (1929 CPD 96); Rex v Mabanza (1920 CPD 225) and Rex v Evans (2 Cox's C.C., p. 270).

L. C. Barrett, for the Crown: The appeal is based on questions of fact and credibility and the application for leave to appeal should be refused on the principles laid down in Rex v Van Rooyen (supra) and Rex v Wessels (supra).

Smit, in reply, cited Rex v Jan Ndumele (Justice Circular of Decided Cases for 1932, p. 337).

Cur adv vult.

Postea (September 26th).

Judgment

Watermeyer, J.A.:

In the magistrate's court of Nkandhla the applicant was found guilty of the theft of several sheep. He appealed to the Natal Provincial Division but his appeal was dismissed and leave to appeal to the Appellate Division was refused by the Provincial. Division. He now applies under sec. 105 of the South Africa Act, as amended by sec. 105 of Act 46 of 1935, for special leave to appeal to this Court.

Some difficulty arises as to the principles which should guide this Court in dealing with applications of this nature. In Rex v Wessels (1933 AD 395) STRATFORD, A.C.J., said: -

"In applications of this kind the question is not whether this Court would take a different view of the evidence, for if that were the test there would be an appeal on the facts in every case. In all such cases the applicant has already had two hearings, viz. before the magistrate's court and the Provincial Division,

1939 AD p582

Watermeyer, J.A.

both of which tribunals must necessarily, in a criminal case, have come to the same conclusion. I have in a previous case, Rex v Haffajee and Another (1932 AD at p. 350), expressed my views as to the proper tests to apply when leave for further appeal is asked. I state them more fully. They are (1) if the appeal is on fact, then leave will only be granted if it is manifest on the record that there has been a miscarriage of justice; (2) if the appeal involves a question of law on which the guilt of the accused depends, leave will be granted if that question is an arguable one. This view brings appeals from magistrates' courts into line with appeals from a judge or jury under the Criminal Code."

In Rex v Rosen and Others which was decided on 18th October, 1933, shortly after Rex v Wessels, this statement was elaborated by STRATFORD, A.C.J., in the following terms: -

"We have stated more than once what principles should guide us when applications of this nature come before us. It must be shown that there has been a miscarriage of justice or that a question of law is involved on which the guilt of the accused depends. The first point is only another way of saying that leave will be granted where there is no evidence of the crime or where it is so slight that no reasonable man would have convicted on it."

The case of Rex v Wessels has been referred to in several subsequent cases, e.g. Rex v Mahomed (1934 AD 511), Rex v van Rooyen (1935 AD 323), Rex v Coetzee (1936 AD 471), and either approved or at any rate not dissented from. The language used in Rex v Wessels seems to suggest that the Court hearing...