The State v Naidoo

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA and Williamson JA
• Judgment Date: 31 March 1962
• Citation: 1962 (2) SA 625 (A)
• Hearing Date: 16 March 1962
• Court: Appellate Division

G Williamson, J.A.:

The appellant in this matter was charged in the Durban and Coast Local Division with the crime of murder, it being alleged that he had unlawfully and maliciously killed one Pushpagande H Nayager near Durban on 28th February, 1961. After a trial lasting three days before MILNE, J., and a jury, he was on 25th October, 1961 convicted of murder, the jury adding a rider to its verdict that there were no extenuating circumstances. He was sentenced to death. Both the verdict of the jury and the rider thereto were stated to have been arrived at by a majority of seven jurors to one, one of the original jury of nine members having been taken ill on the first day of the trial and discharged under the provisions of sec. 149 (3) of Act 56 of 1955.

Williamson JA

On 31st October, 1961, an application was made to MILNE, J., on behalf of the appellant for leave to appeal to this Court and also that certain two special entries be made on the record. The first of these related to A an alleged irregularity in the admission in evidence of a statement said to have been made by the appellant to a police officer; the second related to an alleged irregularity in the fact that an Indian interpreter had not been duly sworn and had failed to interpret correctly. After argument the application relating to the special entries was postponed to a later date. The application for leave to B appeal was granted on general grounds; at any rate in the judgment granting such leave no limitation was placed upon the grounds upon which the appeal could be brought and no reference made to any particular ground, although the learned Judge did indicate that there were 'tabled C grounds of appeal, as amended' before him. Despite the fact that leave to appeal is granted in general terms, as it was in this matter, the grounds of appeal (which in terms of sec. 363 (2) of Act 56 of 1955 every application must 'set forth clearly and specially') should form part of the record in this Court. Even when an accused applies verbally immediately after sentence for leave to appeal, that section requires that

D 'he shall state such grounds and they shall be taken down in writing and form part of the record.'

The actual grounds upon which it was sought to obtain leave and upon which thereafter this appeal was argued appeared in the record for the first time in counsel's heads of argument. That is not a proper E compliance with the statutory requirements. The particular grounds upon which an application for leave to appeal was granted should remain portion of the record, notwithstanding the fact that where leave to appeal is granted without limitations, all issues may be canvassed without the necessity of framing specific grounds of appeal; see R v Nzimande, 1957 (3) SA 772 (AD) at p. 774 and R v Jantjies, 1958 (2) SA 273 (AD) at p. 275.

F The application for the making of special entries on the record in terms of sec. 364 (1) of Act 56 of 1955 was thereafter made to MILNE, J., on 14th November, 1961, when affidavits were placed before the Court in regard to the interpretation of the evidence of certain witnesses and G the appellant from the Tamil language into English. Affidavits handed in on behalf of the State were in conflict with those handed in on behalf of the appellant; it was also desired that a particular person who had refused to make an affidavit should be subpoenaed to give H evidence before the Court and that the appellant himself should be brought from the place where he was being detained to give evidence to the Court on the question of the interpretation of his evidence. MILNE, J., decided that it was necessary to hear viva voce evidence in order that he could properly, in the circumstances, determine, in accordance with what was stated in R v Matsego and Others, 1956 (3) SA 411 (AD) at p. 415,

'the facts on which the accused relies and which he alleges constitute an irregularity'.

The matter was accordingly again postponed and on November 20th, 1961, after a number of witnesses, including the appellant, had been

Williamson JA

examined and cross-examined the learned Judge a quo decided to make a special entry in the following form:

'Was there an irregularity causing prejudice to the accused arising -

(a)

from the fact that the interpreter A. C. Naidoo, who interpreted in English and Tamil was not specially sworn in as an A interpreter in those languages for the purpose of this particular case, or

(b)

from faulty interpretation by the said interpreter.'

In giving judgment on the application for the making of a special entry, MILNE, J., stated that he did not accept the evidence of the appellant that he had elected to give his evidence in English and had only given B it in Tamil because the interpreter told him to. He also did not accept the evidence of one Moonsamy Moodley to the effect that the interpreter had wrongly interpreted the appellant's answer to the question as to how much money he had in his possession at a certain time; he did, however, accept that the fact that the question put on this point by the Court itself was a 'double question', the answer to which might have been C misleading. The learned Judge was satisfied, after a consideration of the affidavits and the further evidence on the alleged irregularity, that

'the interpreter. A. C. Naidoo, interpreted the evidence of the Indian witnesses who gave evidence through him, including the evidence of the accused, with entire honesty and to the best of his ability and the accused never questioned with the interpreter, or at all, during the D trial, any of the latter's interpretation'.

The evidence of the appellant himself was that he was a person whose home language was Tamil but who spoke more English than Tamil and that he had wanted to give evidence at his trial in English; in fact at this subsequent enquiry as to the facts relating to the special entry, the E appellant elected to, and did in fact, give evidence in English. Witnesses were called in regard to alleged mistakes by the interpreter in interpreting questions from English into Tamil and answers in Tamil back into English. The learned Judge did not, however, make any finding that any one of these alleged misinterpretations did take place. There were conflicts in the evidence in regard to every such alleged misinterpretation.

F Following upon the special entry being made on the record in pursuance of the judgment above referred to, it became the duty of the appellant to note an appeal to this Court within twenty-one days thereof on the ground of the irregularity in question in terms of sec. 365 (1) of Act G 56 of 1955; this he failed to do and at the outset of the hearing of this appeal application was made for condonation of such failure. In regard to the second head of the special entry as made by the presiding Judge a quo, it appeared to this Court that there was no probability of the appellant succeeding on appeal. Indeed it would seem that unless in H fact the learned Judge found facts indicating an irregularity created by the faulty interpretation, no special entry should really have been made in that respect. As was pointed out by CENTLIVRES, C.J., in R v Matsego and Others, supra at p. 414, it is not the function or duty of this Court to decide whether or not the facts alleged as the basis of an alleged irregularity are or are not true in fact. The Court a quo hears the evidence and should give a finding thereon. In this case all the affidavits and the record of the evidence are before this Court. The one alleged mistake of

Williamson JA

interpretation which might have been a mistake of a material nature has been found by the learned Judge a quo not to have taken place. The several other alleged mistakes do not appear to be in regard to points A of any material weight at all. In any event a perusal of the affidavits and of the record of the evidence in question indicates no real probability that any Court could have regarded the allegations in question as established. In the result this Court only condoned the delay in noting the appeal based on the special entry made in regard to para. (a) of the entry appearing in the judgment i.e. as to whether B there was an irregularity causing prejudice arising out of the fact that the interpreter was not specially sworn.

The record of the proceedings in...