S v Thomo and Others

• Jurisdiction: South Africa
• Judge: Steyn CJ, Wessels JA and Potgieter JA
• Judgment Date: 03 December 1968
• Citation: 1969 (1) SA 385 (A)
• Hearing Date: 14 November 1968
• Court: Appellate Division

Wessels, J.A.:

The three appellants, adult Bantu males, and a Bantu woman, Regina Thomo (who was the third accused at the trial),

Harcourt J

appeared before HARCOURT, J., and assessors, in the (Natal) Northern District Circuit Local Division, on a charge of murder. The three appellants were found guilty of murder with extenuating circumstances. The first appellant was sentenced to eight years' imprisonment, whilst the second and third appellants were each sentenced to 15 years' A imprisonment. Regina Thomo was found guilty of common assault and sentenced to six months' imprisonment. The appellants' appeal to this Court against their convictions and sentences is brought pursuant to leave granted by HARCOURT, J. Regina Thomo's application for leave to appeal was, however, refused by him. For the sake of convenience I will B hereafter refer to the appellants as they were referred to at the trial, i.e., first, second and fourth accused respectively. I will refer to Regina Thomo as third accused.

It is not disputed that the deceased, an adult Bantu male named Ambrose Dladla, died at about sunset on Sunday, 28th January, 1968, as a result C of extensive head and brain injuries. It was admitted at the trial that the deceased had no less than nine wounds on his head, which were inflicted with a cane knife. It appears from the evidence that this type of instrument is more in the nature of a chopper than a knife. The deceased sustained a compound fracture of the skull and serious damage D to the underlying lobe of his brain. It was also admitted at the trial that there was bruising on the chest which could have been caused by a knobstick. The deceased also sustained seven stab wounds in the back which, so it was admitted at the trial, could have resulted in death if the fatal head injuries had not been inflicted. The stab wounds could have been inflicted with a knife having a three inch long blade. There E was more bleeding from the head injuries than from the stab wounds in the back. A great degree of force was used in causing both the head injuries and the stab wounds.

In the preceding paragraph I referred to the fact that certain facts were 'admitted' at the trial. In terms of sec. 284 (1) of the Criminal F Code an accused may 'admit any fact relevant to the issue' and such admission 'shall be sufficient evidence of that fact'. Since the purpose of making admissions of facts is to dispense with the need to call evidence to prove those facts, the reference to 'evidence' is inappropriate unless it is understood to mean 'proof'. (See the authoritative Afrikaans text where the word used is 'bewys' and not 'getuienis'). The following passage from the record indicates how these G 'admissions' came to be recorded immediately after the accused had pleaded. (Mr. Engelbrecht appeared for the State):

'Mr. Engelbrecht: M'Lord counsel have both agreed that the post-mortem report and the doctor's evidence at the preparatory examination be admitted in terms of sec. 284 of the Criminal Code.

HARCOURT, J.:

Mr. Engelbrecht, it will be necessary to go a bit further than that, will it not, in the admissions?

H Mr. Engelbrecht: Yes, M'Lord.

HARCOURT, J.:

As truth of the proof of the contents thereof - proof of the truth of the contents thereof.

Mr. Engelbrecht: Yes, M'Lord.

HARCOURT, J.:

Mr. Thornhill is that in accordance with . . .

Mr. Thornhill: That is in order, M'Lord, yes.

HARCOURT, J.:

Mr. Boshoff?

Mr. Boshoff: I have no objection, M'Lord.

HARCOURT, J.: Does that mean on behalf of accused No. 3, you make that admission?

Harcourt J

Mr. Boshoff: Yes, M'Lord.

HARCOURT, J.: It will be recorded that the post-mortem report, which will be exh. 'A', and the evidence given by the district surgeon who performed the postmortem examination, which will shortly be read of record, are admitted in terms of sec. 284 of the Criminal Code, and A furthermore accepted as proof of the truth of the contents thereof by the defence.'

The 'evidence given by the district surgeon' at the preparatory examination could, of course, not have been admitted and 'read of record' in terms of sec. 284, and neither could the post-mortem report for that matter. The reference to the report and evidence being

'furthermore accepted as proof of the truth of the contents thereof by the defence'

B is equivocal, and in any event, as to form at least, not an admission such as is contemplated by sec. 284. In the 'evidence' of the district surgeon, which was 'read into the record', there occurs the following sentence

'ek was van mening toegedaan dat die skedelwonde voor die rugwonde toegedien is'.

C A question may arise as to the ambit of the admission in relation to this passage in the evidence read into the record. The admission could either be construed as one admitting that, at the preparatory examination, the district surgeon expressed the opinion in question, and D such admission would constitute sufficient proof of the fact that he did express that opinion at the preparatory examination, if that were a relevant issue of fact. On the other hand, the admission may be of a much wider nature, namely, an admission that 'die skedelwonde voor die rugwonde toegedien is'. Such an admission is sufficient proof of the E fact of the order in which the injuries were inflicted. Unless care is taken in the precise formulation of admissions of relevant facts in terms of sec. 284, uncertainty could arise as to what fact an admission was intended to relate to. The apparently increasing practice of recording admissions in terms of sec. 284 by 'reading into the record' evidence given at a preparatory examination and accepting that as 'proof F of the contents thereof' is to be discouraged. (As to this, see S v Serobe and Another, 1968 (4) SA 420 (AD) at p. 426C - F). However, in the present case the appeal was argued on the basis that the defence intended making admissions of the relevant facts to which the witness's evidence related, and I need, therefore, say no more about the matter.

G Before dealing with the events leading up to the deceased's death it is necessary to sketch briefly the background against which those events must be considered. It appears from the evidence that the deceased and first accused, who were neighbours, lived in Fairleigh Township, a Bantu H village near Newcastle. They were unfortunately not on good terms with each other. Their quarrels were, however, restricted to what first accused referred to in evidence as 'verbal fights'. First accused had on several occasions made reports to the police about the deceased. The four accused were related to each other, the first accused apparently having some senior standing in the family relationship. Second accused is the son of the sister of first accused's wife. First accused is third accused's paternal uncle, and fourth accused is his brother-in-law. The first two accused lived together in the home belonging to first accused. A State witness, Christian Mtanti, also lived in the village and

Harcourt J

he, too, was a neighbour of the deceased. The three properties abutted on a road or track identified on the plan, which was handed in at the trial, as Kennett Road. This road leads to Newcastle. One Josiah Dladla A also testified on behalf of the State. He was the lover of the third accused, and she apparently lived with him in his room which was in an area close to Fairleigh Township. There is evidence which indicates that she may also at times have stayed with her paternal uncle, the first accused, or at any rate to have regarded his house as her home.

B On the version accepted by the trial Court, the first in the series of events which led up to the deceased's death, took place in front of his house.

[The learned Judge then analysed the evidence and proceeded.]

While the struggle was continuing on the ground Christian saw a Bantu C male, wearing a 'whitish or lightish' garment, arrive on the scene. He intervened in the struggle, and appeared to be attempting to push first accused off the deceased. It was from this stage onwards that accused Nos. 2 and 4 were said to have committed the acts upon which their conviction of murder is based. In view of the importance of Christian's evidence in regard to questions raised as to the correctness or D otherwise of the conviction of first, second and fourth accused of murder, I will not summarise it, but will quote from the record. Christian testified to the effect that while first accused and deceased were struggling on the ground, he inferred from the hand movements of first accused that he was attempting to dispossess the deceased of E something (which he presumably had in one or other of his hands). The following questions and answers in his examination-in-chief were recorded at the trial:

[The learned Judge set these out and proceeded.]

It was put to him in cross-examination by counsel for first, second and fourth accused, that first accused would say that deceased was in F possession of a bush knife wrapped up in paper. Christian denied this, saying that he would have noticed this at the time the deceased was passing him. He also said that it was unlikely that deceased could have concealed it under his clothing. He stated that he 'was keeping a pretty close watch on this fight' but that he also had children at home and was G keeping a watch on them so that they should not leave his premises. It was put to him that first accused's defence would be that

'he was attacked in the street by the deceased, and that after the sticks had been broken they fell to the ground and that he then obtained the cane knife which he will say belonged to the deceased, and that he then hacked him on the head'.

H Christian denied that this happened. It was, further, put to him that second accused would say that he was not present at the struggle and did not injure the deceased...