S v Mujuru

• Jurisdiction: South Africa
• Judge: Macdonald ACJ and Macaulay AJ
• Judgment Date: 05 March 1976
• Citation: 1976 (2) SA 900 (RA)
• Hearing Date: 04 March 1976
• Court: Appellate Division

Macdonald, A.C.J.:

The appellant in this matter was convicted in the regional court on two counts, on the first count of housebreaking with intent to steal and theft, and on the second count of attempted murder. On the first count he was sentenced to one year's imprisonment with labour and on the second count to three years' imprisonment with labour.

An appeal was noted to this Court against conviction on the general ground that the magistrate erred in accepting the evidence of the State witnesses and rejecting the evidence of the appellant, and on the further ground that the trial court erred in finding the appellant had the necessary mens rea. So far as sentence was concerned, the ground of appeal lodged was that the sentence was manifestly excessive. The original notice of

Macdonald ACJ

appeal was amended by the addition of two further grounds and the State did not oppose the amendment applied for. The additional grounds read:

'That the trial court erred in not holding a trial within a trial.'

'That the trial court erred in finding that appellant was the offender A since there was no direct evidence of identification.'

The evidence established that on the night of 17 June 1975 the premises at the Odar Grading Shed, in the district of Salisbury, were broken into. In the shed was an office and this too was broken into. A double-barrelled shotgun was stolen from the office and an attempt was made to break into a safe in the office. The person in the shed was disturbed while he was B in the process of attempting to break into the safe. He was trapped in the shed and fired a shot with the stolen shotgun at the two Africans who had entered the shed in an attempt to apprehend him. He was able to make his escape after firing the shotgun by forcing a door open. The evidence indicates that it was an iron door and he was able to pull up one side of it and make good his escape. Later the shotgun was found C abandoned near a football field in the vicinity. At the same place a jersey was found which had been taken from the office. This was a football jersey apparently kept for use by employees of the Grading Shed. The appellant's defence to both charges was simply that he was not the person who broke into the Grading Shed on this night.

The evidence D against him consisted of certain circumstantial evidence and of an alleged confession made by him to the police after he had been warned and cautioned.

[The Court set out the evidence...