Dr Neil Stanley Independent Sleep Expert
BACK Sir Alexander Fraser Russell et al. (eds.), Decisions of the Supreme Court of South Africa (Appellate Division), 37 vols. (Capetown, 1916), v, 573–4. REX Respondent v DUBE Appellant here(register for a free trial) states ‘We next hear of the hut of the deceased being on fire. The natives were in their first sleep as it is expressed’. But reading the entire transcript it is clear that there is a considerable uncertainty as to when the events described actually take place as the witnesses give very divergent accounts as to the state of the moon at the time, however it seems to be accepted by the court that the other ‘natives’ were ‘in their first sleep’ at the time, However  it is not clear whether they are referring to a statement in the original court judgement from the Natal Native High Court when they say ‘as it is expressed’. The question on this appeal is whether there is sufficient evidence of the murder of Nomhlwane by the accused. In other words, is there that amount of proof which ought to satisfy in unprejudiced mind beyond reasonable doubt that she killed her husband? Although the record is not very satisfactory, and in places assumes a knowledge of local conditions which this Court does not possess, I have been unable to convince myself that the learned Judges in the Court below ought to have had a doubt. In my opinion a strong prima facie case was made out against the accused, which, in the absence of an acceptable explanation on her part, necessarily leads to the inference of her guilt. The following facts must be taken as established: The married life of the parties was an unhappy one. The accused, who had had a child by another previous to her marriage, refused to cohabit with her husband, who was a man advanced in years. They were constantly quarrelling, which resulted in the accused leaving her home for days on end. She had not previously left the hut at night. On the very day when the husband died (Friday, June 18, 1915), she had absented herself; only returning to her own home at sunset. When asked to come and have meat with the others at her neighbour, Nomuva's hut, she excused herself on the plea that she was ill. What the time was when this meal was partaken of it is difficult to say. Nomuva says when she left the hut after the meal to go to deceased's but, the moon was "high in the heavens, but it was on the western side. It was pretty late in the evening." Ntwalose says "the moon was not far above the horizon." Jantjie, again, says, "I left Magcekeni's before 5 o'clock. the moon was about to set when we left Magcekeni's." This is obviously wrong, as the moon only set at 10.23 on the night in question these discrepancies in the evidence as regards the position of the moon show how unsatisfactory the evidence of natives is as to time, of which they, as a rule, have only the vaguest notion. What is clear, however, upon the evidence is that when Nomuva came to the deceased's hut the accused was already undressed, and was lying down an her mats, which had been spread out. She refused to spread out the sleeping mats of her husband- "speaking in quarrelsome tones." We next hear of the hut of the deceased being on fire. The natives had all retired to rest, they were in their first sleep as it is expressed, when Nomuva, whose hut was close by, was awakened by the lowing of the cattle and the roaring of the fire. Her cries attracted Jantjie and Ntwalose, who were sleeping at Mpundu's kraal 129 yards away. Nomuva found the door of the hut securely fastened on the outside by means of a chain. It cannot be shut like that from the inside. Part of the wind-screen, which is made of reeds, had been broken down. It had been removed and placed against the door, and was on fire too. Nomuva says it was on the deceased's side of the hut, the southern side, which was burning when she first came there, the right-hand side as you go into the hut. She was unable to say how the windscreen was severed from the rest of the structure. But she Was; quite positive that the wind (which was blowing strongly that night) did not cause it to be put up against the door. "It must have been done by somebody as far as I can sec. The wind did not do it." A sickle which belonged to prisoner's hut was found next morning about a yard outside the wind-screen of the burning hut. In reply to a question from the Bench she said: "From what I could see I should say the fire originated from the outside of the, hut."  BACK
© Dr. Neil Stanley 2013-2018