Rex v Zulu and Others
Jurisdiction | South Africa |
Judge | Hathorn JP, Selke J, and Broome J |
Judgment Date | 01 August 1950 |
Citation | 1951 (1) SA 489 (N) |
Hearing Date | 29 June 1950 |
Court | Natal Provincial Division |
Hathorn, J.P.:
I concur with the judgment of my Brother BROOME. Speaking for myself, I have found that, in deciding cases of this type, the C clearest guidance I have obtained has come from the judgment of SCHREINER, J. (as he then was), in Rex v Reece, 1939 T.P.D. 242 at p. 244. I think I can say the same of my colleagues because, ever since Reece's case was decided, it has been adopted and applied in this Division - so much so that it has become a commonplace for counsel D for the appellant in this type of case to contend that the sentence induces a sense of shock and should therefore be reduced.
As this Division invariably regards itself as bound by its own decisions, save in the most exceptional circumstances, which seldom E arise, and save, of course, where it has been corrected, I would have been extremely reluctant to depart from Reece's case if it had been necessary to consider whether we should do so.
Judgment
Selke, J.:
I also concur, and I can also say that I have been greatly F helped in coming to a conclusion by the consideration whether the sentence appealed against induced a sense of shock or outrage on the ground of its severity. But I do not think that that consideration is really more than a kind of collateral aid in reaching a conclusion, for it seems to me that, in the last resort, a Court of Appeal is bound, in every case where it is considering the alleged severity of a sentence, G to ask itself whether the sentence is too severe in the sense that it is substantially more severe than ought to have been imposed in the circumstances, with the result that the punishment is unjust.
The Magistrates' Courts Act, 32 of 1944, by sec. 103 (4) read with sec. H 98 (2) vests in this Court very wide powers indeed so far as appeals from the Magistrates' Courts are concerned. Sec. 98 (2) gives the Court power, inter alia,
'to confirm, reduce, alter or set aside the sentence or any order of the magistrate's court . . . or it may set aside or correct the proceedings of the magistrate's court, or generally give such judgment and impose such sentence or make such order as the magistrate's court ought to have given, imposed or made on any matter which was before it at the trial.'
To the like effect in regard to sentences and punishments are the provisions of sec. 374 (1) and (2) of Act 31 of 1917, as substituted
Selke J
by sec. 12 of Act 37 of 1948, which empower the courts of appeal, inter alia, to impose such punishment as ought to have been imposed at the trial. The new sec. 368 of Act 31 of 1917, as substituted by sec. 6 of Act 37 of 1948, (which provides for appeals to this Court in certain A cases from the Full Bench of the Natal Native High Court), makes no specific reference to the powers possessed by this Court on appeal, and so they would appear to comprehend those provided for by sec. 374 of Act 31 of 1917, as amended. And it seems to me that, although the powers above referred to are conferred in language which is, in form, merely B permissive, the intention of the Acts conferring them is that the Courts concerned should exercise the powers thus conferred, that is to say that there is an obligation on the Court concerned to exercise its powers to alter or reduce sentences in proper cases.
C The question of what are in general such proper cases is one that has exercised the courts from time to time, both in South Africa and in England. In England, the Criminal Appeal Act of 1907, 7 Edward VII Ch. 23, enacted, by sec. 4 (3), that
'On an appeal against sentence the Court of Criminal Appeal shall, if they think a different sentence ought to have been passed, quash the D sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.'
It seems that, after some initial uncertainty, the law, or practice, in England has been settled to be that the Court of Criminal Appeal will E not alter the sentence passed at the trial merely because the members of the Court of Appeal think that they themselves would have passed a different sentence; it will alter the sentence only where it is satisfied that the sentence is excessive, or is wrong in principle, cf. Rex v Lewis Shershewski, (1912) 28 T.L.R. 364. In this country it is, F I think, established that the Courts are guided by principles substantially the same, although various Judges have from time to time expressed themselves on the subject in differing ways. In Mangena v Rex, decided by the Transvaal Provincial Division on the 30th April, 1918 (not reported), DE VILLIERS, J.P., referred to an earlier case of G de Lange v Rex, (also not reported), for the principle that, in order to warrant the view that a sentence was excessive, the Court of Appeal must hold that the Court below did not exercise its discretion properly, in the respect that the resulting sentence was so clearly excessive that H no reasonable man ought to have imposed it in the circumstances. He went on to say
'But unless the Court is clearly of the opinion that no reasonable man ought to have imposed such a sentence . . . the Court cannot interfere.'
These remarks were quoted and applied by CURLEWIS, J., in Rex v Taljaard, 1924 T.P.D. 581, a decision of the Full Bench of the Transvaal, and this case has been followed in most of the Courts of this Country, including this Court. Cf. Smith v Rex, 1938 NPD 224 at p. 227. The formula - if one may call it so - of Rex v de Lange and Rex v Taljaard that before it would
Selke J
interfere the Court must be satisfied that 'no reasonable man ought to have imposed such a sentence' persisted for many years and was oft repeated by, I think, all the Courts, including the Appellate Division, A cf. Rex v Coetzee, 1936 AD 471 at p. 472, and was approved in Rex v Ford, 1939 AD 559 at p. 560. In 1922, however, in Rex v Myburgh, 1922 AD 249, which was an appeal from the decision of the Transvaal Provincial Division, (which had itself sat as a Court of Appeal from the decision of a magistrate's court), the Appellate Division, consisting of B INNES, C.J., SOLOMON, DE VILLIERS and JUTA, JJ.A., and MASON, A.J.A., had...
To continue reading
Request your trial-
S v Shaik and Others
...1952 (4) SA 376 (A): referred to R v Reece 1939 TPD 242: referred to R v Taljaard 1924 TPD 581: referred to R v Zulu and Others 1951 (1) SA 489 (N): referred to F Radio Pretoria v Chairperson, Independent Communications Authority of South Africa and Another 2005 (4) SA 319 (CC) (2005 (3) BC......
-
S v Shaik and Others
...1952 (4) SA 376 (A): referred to G R v Reece 1939 TPD 242: referred to R v Taljaard 1924 TPD 581: referred to R v Zulu and Others 1951 (1) SA 489 (N): referred Radio Pretoria v Chairperson, Independent Communications Authority of South Africa and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR ......
-
S v Bapela and Another
...and Procedure vol V 1st ed at 595, 596, 597, 598, 599, 600; S v Robyn 1972 (2) PH H150 (A); R v Freddy 1963 (2) SA 128 (RA); R v Zulu 1951 (1) SA 489 (N) at 494; S v Anderson 1964 (3) SA 494 (A) at 495; R v Rowesayi 1969 (2) SA 578 (RA); S v Morgan 1972 (2) PH H137 (A); S v M 1976 (3) SA 64......
-
Attorney-General, Venda v Maraga
...it is suggested or submitted in argument by the Attorney-General that the sentence is so light as to be unjust (R v Zulu and Others 1951 (1) SA 489 (N) at 494), or that the sentence is startlingly inappropriate (S v Ivanisevic and Another 1967 (4) SA 527 (A) at 575H) or that the sentence ev......
-
S v Shaik and Others
...1952 (4) SA 376 (A): referred to R v Reece 1939 TPD 242: referred to R v Taljaard 1924 TPD 581: referred to R v Zulu and Others 1951 (1) SA 489 (N): referred to F Radio Pretoria v Chairperson, Independent Communications Authority of South Africa and Another 2005 (4) SA 319 (CC) (2005 (3) BC......
-
S v Shaik and Others
...1952 (4) SA 376 (A): referred to G R v Reece 1939 TPD 242: referred to R v Taljaard 1924 TPD 581: referred to R v Zulu and Others 1951 (1) SA 489 (N): referred Radio Pretoria v Chairperson, Independent Communications Authority of South Africa and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR ......
-
S v Bapela and Another
...and Procedure vol V 1st ed at 595, 596, 597, 598, 599, 600; S v Robyn 1972 (2) PH H150 (A); R v Freddy 1963 (2) SA 128 (RA); R v Zulu 1951 (1) SA 489 (N) at 494; S v Anderson 1964 (3) SA 494 (A) at 495; R v Rowesayi 1969 (2) SA 578 (RA); S v Morgan 1972 (2) PH H137 (A); S v M 1976 (3) SA 64......
-
Attorney-General, Venda v Maraga
...it is suggested or submitted in argument by the Attorney-General that the sentence is so light as to be unjust (R v Zulu and Others 1951 (1) SA 489 (N) at 494), or that the sentence is startlingly inappropriate (S v Ivanisevic and Another 1967 (4) SA 527 (A) at 575H) or that the sentence ev......