Rex v Tshabangu

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA and De Villiers JA
• Judgment Date: 19 April 1934
• Citation: 1934 AD 514
• Hearing Date: 19 April 1934
• Court: Appellate Division

Wessels, C.J.:

This is a question reserved for the decision of this Court under sec. 372 of the Code. We are asked four questions, though the first really involves four. The four questions are -

(1) Can a judge convict on circumstantial evidence only:?

(2) Can he do so unless the only reasonable inference is that the accused was guilty?

(3) Can he draw the inference of guilt if the evidence is circumstantial and the guilt of the accused is a reasonable inference but not the only inference?

(4) Can a reasonable person draw an inference of guilt unless such inference is the only reasonable inference in the circumstances?

All these four questions are unconnected with the second accused. We are not asked whether, certain evidence having been given, it ought to have been accepted. These questions, therefore, are really academic. When a Judge deals with sec. 372 and reserves a question of law, it must be a concrete matter referring to the, accused, not merely an abstract matter.

Then comes the second question, namely whether in the present

Wessels, C.J.

case at the conclusion of the trial there was legal evidence on which the judge was entitled to find the accused Tom Tshabangu guilty. That, of course, is a question to which we can address ourselves and I will address myself to it. Now, as has already been said many times before, this is not a court of criminal appeal in the ordinary sense. If a question of law is reserved, which is not unconnected with the accused person, we answer it in favour of or against the Crown, and, when we are considering a trial by jury or, as we have at present, a Judge sitting alone as Judge and jury, the question we have to determine is whether there was sufficient evidence before the Judge upon which he might have convicted, - not upon which he could or ought to have convicted, but might have convicted. If we come to the conclusion that there is evidence upon which a reasonable man might have convicted, our function ceases and we have nothing further to say. If he has done so, we have nothing further to do with the matter. Mr. Philips has asked us to say that in this case there was not sufficient legal evidence on which a Judge was justified in coming to the conclusion he did come to in finding the second accused guilty. I have no hesitation in saying that I myself would not have thought the circumstantial evidence strong enough to justify me in finding that he was guilty. But I am not prepared to say that another Judge might not come to the conclusion arrived at by the learned Judge.

As to the facts - there was a feud between the houses of Dube and Mposa. There had been sickness in the house of Dube and a number of people had died, - women and children. The head of the house of Dube - the first accused - came to the conclusion that he was being bewitched by the family of which Stuurman was the...