S v Hlapezula and Others

• Jurisdiction: South Africa
• Judge: Holmes JA, Williamson JA and Van Winsen AJA
• Judgment Date: 26 November 1964
• Citation: 1965 (4) SA 439 (A)
• Hearing Date: 23 November 1964
• Court: Appellate Division

S v Hlapezula and Others
1965 (4) SA 439 (A)

1965 (4) SA p439

Citation	1965 (4) SA 439 (A)
Court	Appellate Division
Judge	Holmes JA, Williamson JA and Van Winsen AJA
Heard	November 23, 1964
Judgment	November 26, 1964

Flynote : Sleutelwoorde B

Criminal procedure — Evidence — Accomplice — Corroborating evidence given by another accomplice — Such found to be reliable C — Risk of wrong conviction reduced.

Headnote : Kopnota

Where corroborative evidence of an accomplice implicating the accused in the commission of the crime is given by another accomplice, the latter's evidence, if regarded as reliable, may, depending on the circumstances, satisfactorily reduce the risk of a wrong conviction. The trial Court will of course bear the cautionary rule in mind also in relation to the corroborating accomplice, and will enquire as to the presence of some D safeguard reducing the risk of a wrong conviction.

Case Information

Appeal from a conviction in the Butterworth Circuit Local Division (MUNNIK, J.). The facts appear from the judgment of HOLMES, J.A.

H. C. J. Flemming, for the appellants.

C. T. Howie, for the State. E

Cur adv vult.

Postea (November 26th).

Judgment

F Holmes, J.A.:

The five appellants were charged before MUNNIK, J., sitting in the Butterworth Circuit Local Division, with the crime of house-breaking with intent to steal and theft, with aggravating circumstances. The gist of the particulars was that on 12th March, 1964, the appellants, in possession of fire-arms, broke into the Blackhill Trading Store, in the district of Qumbu, and stole R1,602 in cash, R328 G in cheques and postal orders, and 18 registered letters; and that they or an accomplice assaulted or threatened to assault Mervyn Moore, the manager, and Mbelwana Sletile, a night-watchman, with intent to do grievous bodily harm, by discharging a fire-arm at them.

The appellants pleaded not guilty and were represented by counsel. In a H considered judgment the trial Court convicted them all. They were sentenced to varying terms of imprisonment.

According to the evidence of the manager, Moore, who lives in a house next door to the trading store, the latter was broken into between 1 a.m. and 4 a.m. on 12th March, 1963. It is clear from his evidence that there were several intruders, and that some of them carried fire-arms because they fired some shots at the night-watchman. After they had accomplished their purpose and had departed, Moore found

1965 (4) SA p440

Holmes JA

that the cash, cheques, postal orders, and registered letters, referred to above, had been stolen.

The crime having been proved, the issue was whether the appellants, or A any of them, were among those who committed it. In this regard neither Moore nor the night-watchman was able to assist the Court, and the State case rested upon the identifying evidence of three accomplices. Broadly speaking they told the same story, namely that there had been meetings at which it was decided to break into a store; that the raiding party assembled near Qumbu (save for the accomplice Faya who was not present B then); that they proceeded to a rendezvous near the store; that they broke into the store; and that they made good their escape.

Each of the five appellants gave exculpatory evidence in the form of an alibi.

The trial Court warned itself as to the dangers inherent in the C testimony of accomplices; and it decided not to rely on the evidence of one of them, Sambambota, for reasons not here relevant. Hence the implication of the appellants depended on the evidence of the other two accomplices, Faya and Lagamfula. The trial Court weighed their evidence against that of the appellants; held that the two accomplices were credible witnesses; and found that all the alibis were false.

D In this Court, as in the Court a quo, counsel argued against the credibility of accomplices in general and of these two in particular.

It is well settled that the testimony of an accomplice requires particular scrutiny because of the cumulative effect of the following factors. First, he is a self-confessed criminal. Second, various E considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit or, particularly where he has not been sentenced, the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive facility for convincing description - his only fiction being the substitution of the accused for the culprit. Accordingly, even where sec. 257 of the Code has been satisfied, there F has grown up a cautionary rule of practice requiring (a) recognition by the trial Court of the foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong conviction, such as corroboration implicating the accused in the commission of the offence, or...