Rex v Matsitwane and Another

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA and Centlivres JA
• Judgment Date: 04 February 1942
• Hearing Date: 19 January 1942
• Citation: 1942 AD 213
• Court: Appellate Division

Rex Respondent v Matsitwane and Another Appellants
1942 AD 213

1942 AD p213

Citation	1942 AD 213
Court	Appellate Division
Judge	De Wet CJ, Watermeyer JA and Centlivres JA
Heard	January 19, 1942
Judgment	February 4, 1942

Flynote : Sleutelwoorde

Criminal law — Murder — Whether any evidence justifying conviction — Joint trial — Contradictory statements by two accused before trial — Purpose for which such statements tendered at trial — Joint attack on deceased — Liability of attackers as socii criminis.

Headnote : Kopnota

At the trial of two accused on a charge of murder the Crown proved that the deceased had been killed by violence and that the nature of his wounds was such as to lead to a reasonable inference that they had been caused by two and possibly three persons. Each of the accused, in written statements put in at the trial, admitted that he was present in the deceased's house taking part in the crime of housebreaking at the time when the deceased was killed but each tried to throw the blame for striking the fatal blow on the other. The accused gave no evidence and were convicted. The presiding Judge mero motu reserved a question of law, as to whether there was any evidence upon which the accused could reasonably be convicted of murder, having a difficulty as to whether, seeing that the two statements were contradictory, it was competent for the Court to accept the one without rejecting the other as untrue.

Held, on appeal, that the statements not having been made on oath during the course of the trial had not been tendered for the purpose of establishing the truth of their contents but as containing admissions of fact; that such admissions were only admissible against the accused who made them and that therefore conflicts between the two statements were irrelevant.

Held, further, that as the evidence led to a reasonable inference that there was a joint attack on the deceased by it least two and possibly three persons, it was not necessary for the Crown to prove which one of the assailants

1942 AD p214

delivered the fatal blow and that as the evidence led to a reasonable inference that both accused had taken part in the attack on the deceased the question of law should be answered in favour of the Crown.

The cases of Rex v Peerkhan and Lalloo (1906, T.S. 802); Rex v Ngcobo (1928 AD 372), applied.

Case Information

Appeal upon a question of law reserved by MILLIN, J., sitting with assessors in the Potchefstroom Circuit Local Division.

The facts appear from the judgment of CENTLIVRES, J.A.

J. N. C. de Villiers, at the request of the Court, for the appellants.

C. du Plessis, for the Crown.

[The appeal was dismissed, the following reasons being handed in on February 4th.]

Judgment

Centlivres, J.A.:

In this case the accused were charged in the Potchefstroom Circuit Local Division before MILLIN, J., and two assessors with the crime of murder, in that upon or about the 31st May, 1941, and at or near Mooibank in the district of Pofchefstroom they wrongfully, unlawfully and maliciously killed and murdered Gerhardus Christoffel Koster. They were convicted and as the Court found that there were no extenuating circumstances they were condemned to death. MILLIN, J., reserved the following question of law "Whether there is evidence on which the accused or either of them could reasonably be convicted of murder."

It appears that the deceased, a man aged 89 but active in spite of his years, lived by himself in a house at Mooibank. His native, servant Longwan slept in a hut about 40 yards away from the deceased's house and his son Floris lived about 1,100 yards away.

Longwan was given the day off on May 31st which was a Saturday, and he spent it at the Potchefstroom Location where, he took a good deal to drink. He returned at sunset and went to bed. Early on the following morning he went to the kitchen of the deceased's house and found both the door and the window open. He at once went to Floris Koster's house and made a report to him. Floris Koster came immediately and found that his father was lying dead in his bedroom. It is quite clear from the evidence given by Floris Roster and the District Surgeon that the deceased met a violent death and that his house bad been ransacked. In the bedroom where the body of the deceased was lying there was found a blood-stained axe, which was identified as the property of the deceased. The District Surgeon said that all the, injuries on the deceased pointed to the fact that there must have

1942 AD p215

Centlivres, J.A.

been a considerable scuffle. This inference was drawn by the doctor from the disordered state of the room and from the injuries found to have been inflicted on the deceased which were described by the doctor as follows: Firstly, there was a swelling above the left eye which he thought had been caused by some blunt, heavy instrument. Secondly, there was a lacerated scalp wound on the left side...