S v Mthetwa

JurisdictionSouth Africa
JudgeHolmes JA, Jansen JA and Rabie JA
Judgment Date22 May 1972
Citation1972 (3) SA 766 (A)
Hearing Date12 May 1972
CourtAppellate Division

Holmes, J.A.:

The issue in this appeal is one of identification, that is to say whether the trial Court was wrong in holding that there was proof beyond reasonable doubt that the appellant was one of the persons who committed or attempted to commit the robberies charged.

A About 6 p.m. on Friday, 9th July, 1971, a shopkeeper named Suleman Moosa has just closed his shop near the Malakazi Location in the district of Durban. The size of the shop is 15' by 30' and it is lit by a petrol lamp hanging from a rafter. He intends to leave by the back door with the day's takings. With him in the shop are two servants - a Bantu boy named Michael and an Indian boy - and also a customer. At this B point two Bantu men enter by the back door.

One is taller, wearing an overall and an ordinary cap. The other is shorter and has on a woollen cap. The taller man proffers two cents and asks for a box of matches. This is handed to him together with one cent change. Meanwhile the shorter man has gone behind the counter; and he C points a revolver at the shopkeeper and demands money. At this stage the taller man points a fire-arm at the customer and the two boys in the shop, warning them not to move, upon pain of being shot. The shopkeeper indicates some silver and copper money in tins on the shelf. The taller man helps himself to this, amounting to about R12. Then the shorter man D behind the counter searches the storekeeper and removes R80 in notes from his pocket. Finally, the men demand cigarettes. When these are pointed out they take them, worth about R8. Then they depart.

Later, a Bantu man is charged with the robbery, with aggravating circumstances. He is tried by SHEARER, J., sitting with assessors in the E Durban and Coast Local Division. The shopkeeper gives evidence as aforesaid, but is unable to identify the accused: he says that he was very frightened and had his eyes on the revolver pointed at him. But the Bantu boy, Michael Cele, who was in the store at the time, and who describes the scene substantially as aforementioned, identifies the F accused as one of the two robbers, that is to say, the shorter one who removed money in notes from the pocket of the shopkeeper. He says that he had also seen these two men at the store on a previous occasion. He says, furthermore, that on 29th July, 1971, that is to say about three weeks after the robbery, he went to the police station at Isipingo, G presumably to make a statement; that en route to the C.I.D. offices he passed the cell yard; that through the open door of the cell he saw the accused, together with seven Bantu and Asiatic males; that he immediately recognised him as one of the robbers; that he straightaway reported this to the investigating officer; and that in the latter's presence he pointed out...

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192 practice notes
  • Magmoed v Janse van Rensburg and Others
    • South Africa
    • Invalid date
    ...the accused to testify. See S v Snyman 1968 (2) SA 582 (A) at 588G. See also S v Nkombani 1963 (4) SA 877 (A) at 893G-H; S v Mthetwa 1972 (3) SA 766 (A) at 769A-H; Joubert (ed) Law of South Africa vol 9 para 577. It is only, of course, where there is a prima facie case against an accused wh......
  • S v Jama and Others
    • South Africa
    • Invalid date
  • Magmoed v Janse van Rensburg and Others
    • South Africa
    • Invalid date
    ...the accused to testify. See S v Snyman 1968 (2) SA 582 (A) at 588G. See also S v Nkombani H 1963 (4) SA 877 (A) at 893G-H; S v Mthetwa 1972 (3) SA 766 (A) at 769A-H; Joubert (ed) Law of South Africa vol 9 para 577. It is only, of course, where there is a prima facie case against an accused ......
  • S v Mncube en 'n Ander
    • South Africa
    • Invalid date
    ...SA 476 (A); S v Letsoko en Andere 1964 (4) SA 768 (A); S v Masia 1962 (2) SA 541 (A); S v Makanla 1981 (4) SA 743 (Z); S v Mathetwa 1972 (3) SA 766 (A); S v Mongesi en Andere 1981 (3) SA 204 (A) op 207E; S v Mohlobane 1969 (1) SA 561 (A) op 565C; S v Ndlovu 1970 (1) SA 430 (A) op 433H; S v ......
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186 cases
  • Magmoed v Janse van Rensburg and Others
    • South Africa
    • Invalid date
    ...the accused to testify. See S v Snyman 1968 (2) SA 582 (A) at 588G. See also S v Nkombani 1963 (4) SA 877 (A) at 893G-H; S v Mthetwa 1972 (3) SA 766 (A) at 769A-H; Joubert (ed) Law of South Africa vol 9 para 577. It is only, of course, where there is a prima facie case against an accused wh......
  • S v Jama and Others
    • South Africa
    • Invalid date
  • Magmoed v Janse van Rensburg and Others
    • South Africa
    • Invalid date
    ...the accused to testify. See S v Snyman 1968 (2) SA 582 (A) at 588G. See also S v Nkombani H 1963 (4) SA 877 (A) at 893G-H; S v Mthetwa 1972 (3) SA 766 (A) at 769A-H; Joubert (ed) Law of South Africa vol 9 para 577. It is only, of course, where there is a prima facie case against an accused ......
  • S v Mncube en 'n Ander
    • South Africa
    • Invalid date
    ...SA 476 (A); S v Letsoko en Andere 1964 (4) SA 768 (A); S v Masia 1962 (2) SA 541 (A); S v Makanla 1981 (4) SA 743 (Z); S v Mathetwa 1972 (3) SA 766 (A); S v Mongesi en Andere 1981 (3) SA 204 (A) op 207E; S v Mohlobane 1969 (1) SA 561 (A) op 565C; S v Ndlovu 1970 (1) SA 430 (A) op 433H; S v ......
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6 books & journal articles
  • The evidentiary value of adverse inferences from the accused's right to silence
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...to rebut a prosecution case based on direct evidence will strengthen the prosecution case and result in conclusive proof, S v Mthetwa 1972 (3) SA 766 (A) at 769a-e, S v Francis 1991 (1) SACR 198 (A). © Juta and Company (Pty) The evidentiary value of adverse inferences from the accused's rig......
  • Parade-uitkennings, hofuitkennings en die reg op regsverteenwoordiging: Enkele grondwetlike perspektiewe
    • South Africa
    • Juta Stellenbosch Law Review No. , May 2019
    • 27 May 2019
    ...resemble each other. Strangers are sometimes mistaken for old acquaintances." Sien ook R v Masemang 1950 2 SA 488 (A) 493; S v Mthethwa 1972 3 SA 766 (A) 768; S v Zitha 1993 1 SASV 718 (A). 4 Par 196 van die Eleventh Report of the Criminal Law Revision Committee: Evidence (General) Cmnd 499......
  • Silence and common sense
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 15 August 2019
    ...right not to be questioned: A practical suggestion forreform in criminal procedure’(1963) 80 SALJ 18761See, for example, S v Mthetwa 1972 (3) SA 766 (A); S v Snyman 1968 (2) 582 (A);S v Letsoko 1964 (4) SA 768 (A); R v Ismail 1952(1) SA 204 (A).62Sections 35(1)(a)-(c) and 35(2)(h).63M H Che......
  • The unconstitutionality of the offence of possession of property reasonably suspected of being stolen
    • South Africa
    • Sabinet Malawi Law Journal No. 4-2, January 2010
    • 1 January 2010
    ...permissible to infringe the right to remain silent?’ (2001) 5International Journal of Evidence & Proof 32, 33.84 SvMthethwa1972 (3) SA 766 (A); Dubois v R (1986) 23 DLR (4th) 503.85 See sec 42(2)(f) of the Constitution.86 T Mosikatsana ‘The presumption of innocence and reverse onus: Due pro......
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