S v Sikosana

• Jurisdiction: South Africa
• Judge: Trollip JA, Diemont JA and Galgut AJA
• Judgment Date: 03 September 1980
• Citation: 1980 (4) SA 559 (A)
• Hearing Date: 19 August 1980
• Court: Appellate Division

Diemont, JA.:

The appellant was convicted in the Natal Provincial Division D by a Judge and two assessors on a charge of murder. He was also convicted on four counts of robbery with aggravating circumstances and on one count of rape. Various terms of imprisonment were imposed in respect of the rape and robbery convictions and on the murder conviction he was sentenced to death. At the conclusion of the trial Mr Niehaus, counsel for the appellant, applied for leave to appeal on the following grounds:

"(1)

E The trial Court erred in convicting the accused of the crimes charged because -

(a)

the complainants had very limited opportunity of observing their assailant and there is thus a reasonable possiblity of their being mistaken that the accused was their attacker;

(b)

F the Court relied in convicting the accused on the evidence of two State witnesses who were self-confessed robbers and who had motive to implicate the accused falsely;

(c)

the Court placed undue importance on the evidence of the self-confessed robbers in respect of a name of the accused by which they allegedly knew him and thus erred in relying thereon G to the detriment of the accused.

(2)

The trial Court erred in convicting the accused on a charge of murder because -

(a)

the State had failed to prove that the accused killed the deceased and,

(b)

that, if he did, he had the intention of killing him.

(3)

H The trial Court erred in holding that there were no extenuating circumstances present."

According to the record the State opposed the application for leave to appeal and "a discussion" then took place between the Court and the prosecutor. This was followed by a brief judgment in the following terms:"In this matter I grant the accused leave to appeal to the Appellate Division against the convictions on counts 1 to 6."

Diemont JA

In this case there were, as I shall show, no prospects whatsoever of success on appeal and the question arises why the trial Judge saw fit to A grant the application and on which of the grounds advanced by counsel leave to appeal was given.

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

The judgment given in the trial Court is admirable; it is fair, lucid and well reasoned. Towards the close of the judgment the following passage occurs:

"Looked at individually, each of the probabilities I have listed carry B different weight, but looked at cumulatively their weight is overwhelming. The cumulative effect of the unsatisfactory features of the accused's evidence, to which I have already referred, together with these overwhelming probabilities are such as to leave us in no doubt whatsoever that the accused's evidence is false and falls to be rejected. The State case on the other hand hangs together in all material respects. There is in our view no possibility whatsoever on the State case of an honest but mistaken identification of the accused as the assailant. These events took place in broad daylight, the accused's face was seen by Catherine Qwabe, C although only for a short time. He was observed, however, for much longer by Lucas and Martha. They all had no difficulty individually in...