S v Matshoba and Another

• Jurisdiction: South Africa
• Judge: Holmes JA, Rabie JA and Galgut AJA
• Judgment Date: 04 March 1977
• Citation: 1977 (2) SA 671 (A)
• Hearing Date: 21 February 1977
• Court: Appellate Division

Galgut, A.J.A.:

On the afternoon of 10 October 1975 two Black

Galgut AJA

youths died as a result of stab wounds. The victim in the first incident was Abraham Letlape. He was stabbed at about 5 p.m. The deceased in the second incident was Matthews Sebetlala. He was stabbed at about 6 p.m. I shall refer to him as the deceased. The two appellants, together with one John Sibolao, A were charged with murder in respect of the first incident. In respect of the second incident, the two appellants were charged with the murder of the deceased. They all appeared before HUMAN, J., in the Witwatersrand Local Division. On count 1, i.e. the first incident, all three of the accused were found not guilty. On count 2, i.e. the second incident, the two appellants, to whom I shall refer as accused No. 1 and accused B No. 2 respectively, were found guilty of murder. No extenuating circumstances were found in the case of accused No. 1 and he was sentenced to death. Extenuating circumstances were found in the case of accused No. 2. He was sentenced to 15 years' imprisonment. An application for leave to appeal to the C Appellate Division against his sentence was made to the learned Judge a quo on behalf of No. 1 accused. On behalf of No. 2 accused an application was made in respect of both the conviction and sentence. The learned Judge a quo refused the application of accused No. 2 for leave to appeal against the conviction but granted both accused leave to appeal against their respective sentences. Pursuant to the above grant of D leave to appeal the accused each noted an appeal against his sentence. In the case of No. 1 accused the ground of appeal urged is that the learned Judge a quo should have found extenuating circumstances and should not have imposed the death sentence. In the case of No. 2 it is urged that the sentence is too severe.

For reasons which will appear later it is convenient to set E out, shortly, the evidence.

[The learned Judge then dealt with the evidence and continued.]

The learned Judge a quo in his judgment detailed the evidence relating to count 1. He came to the conclusion that Patrick Moiloa was an unreliable witness and found the three accused on that charge not guilty. He then went on to detail the evidence F on the second charge. This has been set out above. The learned Judge, however, said:

"Detective Sergeant Masemola, stationed at Orlando, stated that he was on duty at the police station Orlando on 11 October at 11.40 a.m. Jabulani arrived and pointed out accused No. 1 and No. 2 and said that they were the people who stabbed the deceased Abraham. As a result of a report made to him he proceeded to 442 A Klipspruit, the house of Georgina Buthelezi. G The accused No. 1 took him there. He had never been to this house before. He says there Georgina Buthelezi handed over exh. 1 to him."

This statement is incorrect. Sergeant Masemola, as we have seen, said it was Patrick who pointed out the two accused as being the men who had killed Abraham Letlape. In view of the fact that the learned Judge a quo mentioned this when summing H up the evidence on count 2, it seems that he regarded this as in some way lending support to Jabulani's evidence.

A study of the evidence reveals the following features:

(i)

The witness Jabulani is a youth of 12 and is virtually a single witness.

(ii)

The events on 10 October 1975 to which he testifies took place at dusk.

(iii)

His evidence is very short but it conflicts with what he said at the preparatory examination

Galgut AJA

(a)

in one important respect, viz. whether he had frequently seen accused No. 2 prior to the...