S v Ivanisevic and Another

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA and Milne AJA
• Judgment Date: 29 September 1967
• Hearing Date: 01 September 1967
• Citation: 1967 (4) SA 572 (A)
• Court: Appellate Division

Holmes, J.A.:

In the early afternoon of 25th September, 1963, a very elderly lady nearly 80 years old is resting in the bedroom of her house C at 1, Pallinghurst Road, Johannesburg, where she lives alone. The thick velvet curtains are drawn together and the room is fairly dark. The front door is locked. The two servants are out. According to her evidence, disturbed by the barking of her Pekinese dogs she opens her eyes and discovers two masked European young men standing in the D doorway. One of them says, 'keep quiet and we won't hurt anyone'. Another of them ties her wrists tightly together in front of her with some pyjama cord which he had brought with him. A piece of bandaging tape is put over her eyes. She is very frightened, but after a little while she sits up and pulls the bandage from her eyes. The room is lighter now because the curtains have been drawn apart slightly. The men E hurry to her side, and wind the bandaging several times round her head and eyes. She asks what they want and one of them replies, 'money'. She says, 'my bag is on my bed by my side', and he leans over and takes it and says 'not enough'. One of them removes the earrings from her ears. After a time the room seems quiet and she unwinds the bandaging from her F eyes. The intruders have gone. The front door is open. She telephones the Flying Squad and the police come. She finds that the men have take a gold ring, two diamond rings (one of 61/4 carats and the other 4 carats), a necklace, a small clock, a wrist watch, a pair of diamond earrings, and R60 in notes. She estimates the value of the jewellery at R10,000 to R11,000. The lock of a wooden kist in the passage has also been forced. G Fingerprints are found on its polished surface. Later it is established that they are those of a European man named Sime Periac. He is charged in February 1965 before Mr. Justice LUDORF with the crime in question, namely housebreaking with intent to rob and robbery. He pleads not guilty and seeks to explain the presence of his fingerprints by saying H that on an earlier occasion he had called at the house in order to have intercourse with a Mrs. Davidson who then had occupation while the complainant was on holiday. He is found guilty and sentenced to imprisonment for ten years. His appeal to this Court is dismissed in November, 1965.

In October, 1966, the two appellants in the present case are charged before Mr. Justice COLMAN with the same offence. Periac is the main witness against them. He says that the three of them, and a Bantu

Holmes JA

man named Makhobu, were socii in carrying out the crime. The appellants plead not guilty and are represented by senior counsel. After a lengthy trial they are found guilty and are sentenced to imprisonment for 12 A years and 10 years respectively. They now appeal to this Court. With that prelude I turn more fully to the facts and submissions.

[The learned Judge then analysed the evidence and after dealing with the submissions proceeded.]

To sum up in regard to the first appellant:

(a)

he is directly implicated by Periac, an accomplice;

(b)

Periac impressed the...