S v Sigwahla

• Jurisdiction: South Africa
• Judge: Holmes JA, Milne AJA and Bekker AJA
• Judgment Date: 30 September 1967
• Citation: 1967 (4) SA 566 (A)
• Hearing Date: 29 September 1967
• Court: Appellate Division

C Holmes, J.A.:

These are the Court's reasons for having substituted a sentence of imprisonment for the death sentence.

The appellant, a young Bantu of the age of 20 years, perhaps 21 years, was convicted in the Witwatersrand Local Division of the crime of murder, without extenuating circumstances, and was sentenced to death. It was alleged that on 10th June, 1966, and at or near Lenasia, in the D district of Johannesburg, he and one Thomas Atoro murdered Sipho Nkosi, a non - European male. Atoro was acquitted, as there was a reasonable doubt whether he was present on the occasion in question.

A Bantu witness by the name of Simon Boyana testified that he worked for a firm of building contractors in Lenasia. The deceased, who was about E 20 years of age, worked there too, as also did one Solomon Zotho. On Friday, 10th June, 1966, having worked until 5 p.m., the witness rode on his bicycle to the dry cleaners to fetch a coat. it was payday. From there he rode to the shopping centre, near the railway station, where he met the deceased and Solomon. The latter were eating fish and chips. The witness bought some too. There were four other Bantu men on the verandah F of the shop, including the appellant whom he had known for about a year. It was by then about dusk. Solomon and the deceased left. The witness followed them as soon as he had eaten his fish and chips. Each of the three was pushing his bicycle. This was on a foot-path across open veld. Then someone grasped the bicycle of the witness from behind. G He turned and saw the four men, including the appellant, who had been at the fish-and-chips shop. It was the appellant who had grasped his bicycle, and who now threatened him with a long knife. The witness stood still. One of the men with the appellant took the bicycle. The appellant robbed him of R8 which was in his pocket, and also of the coat from the dry cleaners. At this point the deceased, who was ahead with Solomon, H turned back and approached the scene. The four robbers went towards him, with the appellant in the lead. When they reached the deceased, who appeared to want to pass by, the appellant sprang forward and with upraised arm struck him on the left front of his chest. The witness did not actually see a knife thrust. The deceased jumped and fell. The witness fled, but came back again and found that the deceased was lying there dead.

Holmes JA

According to the district surgeon's report the cause of death was a stab wound of the heart. The deceased was about 5' 9" tall and weighed 129 lbs. The report continues:

'There is a 1/2" incised wound over the 2nd interspace 1" to the A left of the sternal midline on the anterior chest wall. The track of the wound passes downwards, medially and backwards into the chest cavity through the 2nd interspace, enters the pericardial sac, incises the right ventricle of the heart, and terminates. Total depth is about 4".'

Solomon Zotho also gave evidence for the State. He is about 16 years of age. He corroborates Simon, save in a few non-material respects. He was B with the deceased when Simon was robbed. The deceased turned back to see what was going on. Solomon identified the appellant, whom he knew, as the deceased's assailant, and he actually saw the knife thrust. The witness fled but returned soon afterwards and found that the deceased was dead. He reported the matter to the police, and accompanied them to the scene, where the body was still lying.

C The appellant gave evidence and denied the allegations against him. He said that at 3 p.m. on 10th June, 1966, he caught a train at Lawley, where he was staying, and got off at Lenasia. He was at one stage at the fish-and-chips shop there, that is to say the one referred to by the State witnesses Simon and Solomon. He passed the time drinking 'Kaffir D beer' and consumed six plastic bottles. Then he caught the 6 p.m. train back to Lawley, where he remained until the following morning.

But in a statement to the police on 16th June, 1966, the appellant said that on the Friday in question, namely 10th June, 1966, he was at Evaton, where he lived; that he had caught a train thither at 3.30 p.m.; and that he returned to Lawley, where he worked, at 7 p.m. on the E following day.

The trial Court, consisting of a Judge and two assessors, rejected the appellant's alibi evidence as false, and had no hesitation in accepting the evidence of Solomon and Simon. Hence the verdict of guilty. I shall refer later to the question of extenuating circumstances.

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