479/85/AV
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
ERNEST PAPIYANA	Appellant
AND
THE STATE	Respondent
CORAM: JANSEN, VILJOEN, BOTHA, JACOBS, JJA et NESTADT, AJA
HEARD: 7 May 1986
DELIVERED: 29 May 1986
JUDGMENT
NESTADT, AJA
The appellant was convicted of murder by LEVESON J,
sitting with assessors in the Springs Circuit Court. No
extenuating 	

2
extenuating circumstances having been found, he was sentenced
to death. He appeals now, with the necessary leave of
this Court, against both conviction and sentence
The basis of the appeal against the conviction
is the complaint that certain irregularities occurred during
the course of the proceedings in the court a quo. "What
happened in this regard is not in dispute and is the fol-
lowing. When appellant, who was accused no. 2, emerged
from the dock in which he had been seated and entered the
witness box to give evidence in support of his plea of not
guilty, the trial judge noticed, for the first time, that he
was wearing clothes of a light olive colour and that, in ad-
dition, his feet were shackled in leg-irons. Having as a
result.......

3
result immediately formed the impression that appellant was a convicted prisoner, the learned judge, quite properly, mero motu, raised the matter with the prosecutor, referring to the prohibition contained in sec. 211 of the Criminal Procedure Act, 51 of 1977,and queried whether a trial de novo should not be directed. The section reads:
"Except where otherwise expressly provided by this Act or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he has been so convicted."
On.....

4
On the completion of appellant's evidence and the closure
of his case, the State and defence were required to and
did present argument on whether, in the circumstances, the
section had been contravened. The effect of the judgment,
which then ensued, is to leave this question open. What was
decided, however, was that appellant had, in any event, not
been prejudiced by what had happened and, by implication, that
the court had not been disqualified from continuing with
the trial.
Before us, it was argued, on behalf of appellant,
that the proceedings should not have been allowed to con-
tinue after his dress and the fact of being fettered
had.....

5
had been observed by the court; they should immediately have been stopped and a new trial ordered. In addition, reliance was in this regard placed on the fact that there had earlier been evidence that an identification parade, of which appellant formed part, had been held in a prison; this, it was suggested, also showed that he had a conviction. Furthermore, when his appearance in court was, as already described, commented upon, the prosecutor had said: "My Lord, apparently this man is a high risk ... to the prison." All this had, so it was submitted, affected, adversely to appellant, the court's impartiality, resulting in him not having had a fair trial.
This is by no means the first time that an accused
has 	

6
has been brought to trial in this manner. There are a num-
ber of reported cases in which it has been complained of and
commented upon. It must be said immediately that its con-
tinued occurrence is to be regretted. Prosecutors should
take all possible steps to ensure its avoidance. It
detracts from the digninty of the court. It must be humiliat-
ing to the accused. This is besides the legal consequences
which may ;. flow from it. It is to these that I turn. Broad-
ly speaking, what is involved is the disclosure to the court
of inadmissible information concerning the accused and more
particularly that which shows or tends to show that he has
a bad character and therefore a propensity to commit crimes.
It is evidence which, as a general rule, is excluded on the
ground.......

7
ground that its relevance is too "tenuous to compensate for
its prejudicial nature. Sec. 211 is obviously, insofar as
previous convictions are concerned, statutory recognition
of this. Where, usually inadvertently, they have neverthe-
less (prematurely) been revealed, the presiding officer, feel-
ing disqualified to act, may, in a given case, recuse him-
self and order a re-trial. Examples of where this has
happened are S v Stevens 1961 (3) SA 518 (C) and SvPak-
kies 1985 (4) SA 592 (TKSC). It is for the individual
court to decide whether this is the right and proper course
to be followed (S v Radebe 1973 (1) SA 796 (A) at 812 H).
Where, however, the trial has been allowed to proceed, then,
on appeal, the accused having been found guilty, the issue
of....

8
of whether an irregularity took place may arise. The test
to be applied, in order to determine this, is the possibility
of bias on the part of the court resulting from the improper
divulgence of the previous convictions (or other damaging
matter). Where it exists, or appears to exist, the judi-
cial officer will be held to have been bound not to have
heard the case, and, having done so, the accused would not
have received a fair trial. In this event, an irregulari-
ty would have been committed. But this need not necessarily
be the case. Ex hypothesi, one is dealing with a case
where.....

9
where the detrimental information does not comprise admissible evi-
dence of the accused's actual commission of the crime for
which he is charged; moreover,it has not been admitted.
but, on the contrary, was, in effect, rejected and purpor-
tedly disregarded by the trial court. It is assumed that
a judge or magistrate, as well as assessors, will not, in
view of their training, normally be influenced thereby but
will give an objective decision on the merits. Accordingly,
the improper disclosure of an accused's previous convictions
does not,per se constitute an irregularity (R v Mgwenya 1931
AD 3; Khan v Koch N 0 1970(2) SA 403 (R)) and the contrary
opinion of Lansdown and Campbell, South African Criminal Law
and Procedure, Vol 5 ,pp. 809-810,cannot be subscribed to.
Sec.... 

10
Sec. 211 contains no such sanction or consequence. It is
a question of fact in each case whether this has occurred,
In R v Dominic 1913 TPD 532 it was held that it had, but the cir-
cumstances were special in the sense that the accused bore
the onus of proof. (See too R v Owen 1957(1) SA 458 (A)
and S v Dozereli 1983(3) SA 259 (C),being examples of cases
in which it was held that an irregularity had taken place). Other
relevant considerations would, of course, include the nature
of the convictions and, in particular, their connection with
the charge the accused is facing. The manner in which the
evidence is elicited or adduced is also of importance (R v
Mitchell 1929 TPD 727; R v Mkabile 1935 TPD 107; S v
Dozereli (supra)). Even where an irregularity in the sense
outlined

11
outlined has been committed, that is not an end to the matter. For the appeal to succeed,a second inquiry has to be embarked upon, viz., whether a failure of justice within the meaning of the proviso to sec. 322(1) of Act 51 of 1977 resulted. This normally involves deciding whether the accused was prejudiced. He would not have been if it can be
i
said that, unaffected by the irregularity, there is proof
of guilt. (S v Tuqe 1966(4) SA 565(A).) In an exceptional case, however, it might be held that the improper disclosure amounted to a failure of justice per se. In this event, the proceedings are vitiated irrespective of how strong the evidence against the accused is (as in S v Dozereli (supra). Against the background of these principles (as
also 	

12
also the concession, correctly made in my view, that in
casu there was no question of a failure of justice per se)
I revert to the facts in order to determine whether an
irregularity took place and, if it did, whether appellant
was thereby prejudiced. It is to be doubted whether any
of the matters referred to constituted notice that appel-
lant had previous convictions or whether they were not as
consistent with him being' merely an awaiting trial pri-
soner. No positive finding was made in favour of the former,
It was held that there was substance in the State's propo-
sition that appellant's clothing could have been ordinary
civilian apparel. One might add that, even if it was iden-
tifiable as prison garb, this might have been because ap-
pellan.....

13
pellant had no clothing of his own. The use of leg-irons,
so it was also recognised, could have been due to the fear,
as the prosecutor sought to indicate, that he might attempt
to escape during his appearance in court. The fact that
the identification parade was held in prison was not re-
garded as indicative of appellant having been convicted,
This is not surprising. It is well known that such a venue
is often used simply because the suspect is in custody there

pending his trial. In the result, therefore, it is by

no

means- clear that the learned trial judge's initial impres-
sion that appellant was a convicted prisoner was his lasting
one. In fact, though he had previous convictions (three
for assault with intent to do grievous bodily harm and one
for.....

14
for theft) what sentences had been imposed had long before
his trial been served. A second consideration relevant to
the issue of whether an irregularity was committed is the
following. It is only on an extended meaning of "evidence"
in sec. 211 that what happened in facie curiae could have
amounted to a contravention thereof. On its normal con-
notation of viva voce testimony, it would not. Perhaps
significant in this regard is the different wording of the
original Criminal Procedure and Evidence Act, 31 of 1917. Sec-
tion 76(5) thereof (being the only provision dealing with
the point) referred to due care having to be taken by every of-
ficer that "no information relative to any alleged pre-
vious conviction of the accused" is disclosed. Thirdly,.
it.....

15
it must be borne in mind that what the section enjoins
is that evidence shall not be "admissible". As my Brother
BOTHA pointed out during argument, no such evidence was in fact admitted. In-
sofar as what occurred might be construed as the tendering
of evidence of previous convictions, it was, in effect, re-
jected.
It is, however, unnecessary to pursue the points
raised or indeed to express any firm opinion on them. This
is because I shall assume, in favour of appellant, that.
whether on the basis that he had previous convictions or
was a dangerous awaiting trial prisoner, there was an im-
proper disclosure to the trial court of detrimental in-
formation concerning him. Even so, in my opinion, no
irregularity......

16
irregularity can be inferred therefrom. It is implicit in the judgment
of the court a quo that the learned judge himself was not
in any way (consciously ) influenced thereby. The same
applies to the assessors. Their state of mind is explained
in the judgment thus
"I am, of course, not able to say what effect what has happened in this court has had on the minds of the assessors. I have been assured by them that their attitude to this case is based entirely on the merits, that is on the evidence before us, that has been led through the witnesses. They are not in any way influenced by what we have seen.
I am strengthened in the view which .
I take by the fact that both the asses
sors are legally trained persons in the
profession. One, a senior magistrate
has presided in courts for many years,
the other, an advocate of the Johan
nesburg bar, both with considerable ex
perience 	

17
perience of criminal trials. I am satisfied that they are not influenced by what they have seen."
There can be no reason to doubt this.. The nature of the previous convictions was never revealed. The disclosure (including the intimation that appellant was dangerous) was therefore a vague one. It can hardly be described as damning. Far more prejudicial indications of an accused's guilt are frequently excluded by the courts from consideration. As I have said, it was the judge himself who raised the impropriety of appellant's appearance. His (then) counsel did not 'object to the continuation of the trial or even raise the point when leave to appeal was sought. I am, in the circumstances, prima facie satisfied that no fault
can 	

18 can be found with the decision to continue with the trial.
This is not an end to the matter. What has been said does not take account of the further argument, presented on behalf of appellant, that an inference of bias is to be drawn from what was termed the trial court's selective treatment of the two accused, i.e., accused no. l's acquit-tal and appellant's conviction. It was submitted that, on the facts, the guilt of appellant had,similarly, also not been proved.
This brings one, naturally, to the merits of the
conviction. The deceased was a certain Anderson Dzingwa, aged 38. He met his death at about 7 p.m. on 26 February 1984 after having been assaulted by two persons as he walked across an open piece of ground in the township
of 	

19
of Wattville, Benoni. He was stabbed three times; in the
lower jaw, the left shoulder blade and the chest. The lat-
ter wound resulted in the heart being pierced and was the
cause of death. The immediately preceding events are not
clear. There was evidence that when confronted, appellant
took off his jacket and handed it to a child who was following
in his wake and came onto the scene just then. This suggests
that he may have been preparing to engage in a fight with
them. Nevertheless, it is plain that deceased was murdered;
this was not contested. What was in issue was the identity
of his assailants. It was the State case that they were ac-
cused no. 1 and appellant. They each denied this;they raised
what amount to an alibi
The evidence against them was, in summary, the fol-
lowing.......

20
lowing. According to Patricia Dzingwa, the eldest sister
of deceased, at about 6 p.m. on the evening in question ap-
pellant arrived at her house in Wattville. He said he had
come there to warn deceased not to interfere with accused
no. 1.. She knew accused no. 1; he was her neighbour
Appellant added the threat that he was going to kill de-
ceased (in a manner which he described). He then left in
the company of a young boy who had apparently come to call
him. A little while later she proceeded to the nearby
shops. On her way there she received a report concerning
the death of deceased. In an open piece of ground about
20 metres from where she later found his body she came across
accused no. 1 and appellant standing next to a car which was
parked......

21
parked there. She accused the former of having killed de-
ceased. He did not reply. She noticed that both of them
got into the car which was then driven away to accused no,
l's house. The actual circumstances in which deceased was
killed were described by two other State witnesses. One
was 16 year old Petunia Ntsele, the niece of Patricia (with
whom she stayed). Deceased was her uncle. She had been
to the shops. At about 7 p.m. she was walking home when
she saw, ahead of her, deceased in the company of three other
children walking along a foot-path which passed through the
open piece of veld. He was accosted by accused no. 1 and
appellant. Both of them were armed with knives. Appellant
stabbed at deceased. She did not however see that he was
actually.....

22
actually struck. When she saw what was happening she took
fright and ran away. The other eye-witness was a standard
two scholar, 8 year old Andile Dzinga, the son of Patricia
He was one of the children accompanying deceased. Despite
his youth he was more bold than Petunia. He was not over-
awed by the incident he then witnessed". He testified that,
as they were walking away from the shops, appellant approached,
A brief altercation took place between him and deceased.
By this time accused no. 1 was also on the scene. Both he
and appellant then stabbed deceased, the former in the back
and the latter on the one cheek and in the chest. They then
ran to a car in the vicinity. There he saw his mother talk-
ing to them whereafter they drove away to accused no. l's
house.....

23
house,A certain John Jan gave evidence that at about
10 p.m. that night, appellant told him: "Man, ek het iemand
gesteek". Finally for the State, Detective Officer Maxatasi,
the investigating officer, deposed to the fact of appellant
having on 14 March 1984 at his, appellant's, house pointed
out and handed over a knife which, according to Andile, was
the one used by appellant to stab deceased.
Both accused no. 1 and appellant gave evidence in
their defence. That of accused no. 1 was to the effect
that on the afternoon of 26 February 1984 appellant was at
his house; they had previously during the day been drinking
together;' at between 3 and 4 p.m. appellant left; he never
saw him again that day; at about 7 p.m. he and his brother-
in-law.....

24
in-iaw, Petrus Skosana, who was also visiting him, went and
sat in a car outside his house; following upon a report he
received, he alighted and walked to a nearby open piece of
ground (a distance of about 60 metres from his house)
where he saw deceased lying; there was blood on his chest;
he did not know how deceased came to be injured; he did
not see appellant there; having returned to the car he and
Skosana immediately went to the Police Station where he
reported the matter; he did not see or speak to Patricia
that evening at or near the scene. Appellant, in his evi-
dence, admitted having gone to Patricia's house to see de-
ceased; his visit there was, however, in the morning and
its purpose was to speak to deceased about certain construc-
tion.....

25
tion work which he had in mind they would do together; all he told her,
in deceased's absence, was ,that she should tell him that
he had been looking for him; during the next few hours he
and accused no. 1 drank at various places; at about 2 p.m.
he left accused no. l's house (to which they had earlier re-
turned) and went home; he never told John Jan that he had
stabbed someone; at his request his wife had produced a
knife but it was not his; it belonged to his parents-in-
law.
Nothing arises, in my view, from the pointing out
and production by appellant of the knife. I say this
if only for the reason that it is impossible to be satis-
fied that it was indeed the murder weapon. Accordingly
the.......

26
the trial court was right in ignoring it. Less understand-
able is the failure to take into account or deal with the
confession which appellant allegedly made to John Jan. How-
ever, in the absence of any credibility finding in this re-
gard, it is not possible, as the State would now have, for
reliance to be placed on it in its favour
The fate of the appeal (as far as the conviction
is concerned) accordingly turns on the correctness or
otherwise of the trial court's acceptance of the evidence
identifying the appellant as one of the persons who stab-
bed deceased. It is not without blemish. Petunia's
and particularly Andile's youth detracts from their re-
liability. What happened must have shocked them. Ap-
pellant......

21
pellant was unknown to them. The incident took place
when it was already dark. It happened quickly. None of
the witnesses can be regarded as impartial; they were all
related to deceased. Petunia contradicted herself in
that she initially stated that she saw appellant actually
stab deceased but then conceded that it was only a stab-
bing motion that was observed. The general fallability
of evidence of identification based on a witness's observations and the
potential unreliability thereof need hardly be stressed,
These considerations notwithstanding, I am of
the opinion that the trial court was fully justified in re-
jecting appellant's denial that he participated in the at-
tack on deceased. To begin with it is important to note
that.......

28
that before us Mr. Meyer, on behalf of appellant, (wisely)
did not seek to impugn their honesty. His attack was con-
fined to their reliability. It must fail. There could have
been no mistake on the part of Patricia that it was appellant
who came to her house. He did not dispute that he did (save
that he puts the time of the visit much earlier in the day)
If, as I have indicated, her veracity be accepted, the trial
court was entitled to find, as it did, that appellant
threatened deceased as deposed to by Patricia. I must say
that it has the ring of truth. Her version, in this regard,
is moreover supported, in some degree, by accused no. l's
admission that, about a month earlier, deceased had accused
him of having had an illicit relationship with his (deceased's)
wife......

29
wife and that this had annoyed him (though he goes on to
deny that he told appellant about it). Of course, if ap-
pellant made the alleged threat against deceased, it fur-
nishes a motive for the attack on him and,as such,is cor-
roborative of the evidence of Petunia and Andile. They
each identified appellant at a duly held identification
parade. I do not think that the fact that it only took
place on 27 July 1984, though the delay is unfortunate.
seriously diminishes its value. Both had ample opportu-
nity to observe deceased's assailants. They were within
two metres of them. Petunia specifically said she saw
appellant""quite clearly". The lighting at the scene was
probably not good but it appears to have been adequate to
enable.......

30
enable this to take place. Accused no. 1 himself, who
it will be remembered,on his own version,saw where de-
ceased was lying, described it as sufficient to see people's
faces there well.' Its source was school, shop and street
lights in the vicinity. One of the features relied upon
by Petunia was that appellant's head was clean shaven.
The evidence establishes that on the night in question he
had this physical characteristic. Andile impressed the
trial court. His description of how deceased was stabbed
is consistent with the medical evidence. His evidence
also corroborates Patricia's that appellant and accused no.
1 were standing next to a stationary car in the vicinity of
where deceased's body was found to be lying and that the two
of......

31
of them then drove away in it. Andile must have seen such
car because it was he (or his sister acting on information
which he must have given her) who later pointed it out to
the police who were thus enabled, as I understand the po-
sition, to arrest accused no. 1 in it (as he admits). Pa-
tricia was not cross-examined on her failure to accuse
appellant (rather than just accused no. 1 when she spoke to
them at the car) of having killed deceased; it therefore
cannot be held against her. Appellant's involvement in
the crime is given credence by "a witness called by accused
no. 1, viz., Thonoki, his young nephew. Though exculpatory
of accused no. 1, he materially incriminates appellant. . He
stated that as he was walking across the veld he saw appel-
lant.....

32
lant, whom he had earlier that day met for the first time
drinking at accused no. 1's house, "struggling" with deceased
He ran home and told accused no. 1, who at this stage was
sitting in a car outside the house, what he. had seen. He
too recognized appellant by his clean shaven head. It
was, of course, common cause that appellant was at accused
no. l's house as he alleged. Indeed, appellant admitted
seeing Thonoki there. Significantly, he also states that
it was not so dark that "you could not see people". Whilst
his partiality " to accused no. 1 is obvious (and hence
his support of the latter's alibi suspect), and certainly
his evidence that only one other person was fighting with
deceased untruthful, there would appear to be no reason why
he.......

33
he should have falsely or incorrectly implicated appellant. His admission that he did not notice whether appellant had a knife is some indication that he does not exaggerate the case against him.
The trial court's approach to certain of the evidence requires special treatment. " It was suggested that in some respects it misdirected itself. Reference was made to the passage in the judgment that Thonoki "testified to the fact that he had gone to deceased that day and summoned" appellant. What he actually said, after initially denying that he went to Patricia's house, was:
"Dit is moontlik ek het vergeet ... Ek het vergeet ja ... Ja, dit is ter-wyl ek met vriende gespeel het dat ek
daarheen 	

34
daarheen gegaan net maar ek het toe vergeet".
Then follows:
"Na Busisiwe (Petunia) se ma se huis? -- Ja, daar en ek kan nie meer onthou waar nog nie. Het u met iemand in Andile se ma se
huis gepraat? 	 Ek het met niemand
daar gepraat nie. Ek kan nie meer onthou of ek met iemand daar gepraat het nie"
Implicit in this, as I read it, is an admission that he was at Patricia's house. Accordingly, although the learned trial judge put the position marginally too positively, it can hardly be described as a misdirection. In any event, it is of no consequence. It is clear on the evidence (of Patricia and Andile) that Thonoki went to the house to summon appellant. Another was said to be the finding that:
"At 	

35
"At the identification parade which was held subsequently Andile identified accused no. 2 as the person who had done the stabbing. One of the distinguishing features in his mind was the fact that accused no. 2 has a slight scar on the left side of his face and neck. Andile says that on the night of the stabbing he noticed the scar."
Insofar as this gives the impression that Andile noticed the
scar (which appellant admittedly had) when he saw appellant stabbing deceased, it is not correct. Whilst his initial evidence gave this impression, under cross-examination he conceded that this occurred earlier that day, when, being at home, he saw appellant arrive there seeking deceased and threatening him as deposed to by Patricia. It is to be noted, however, that the learned judge uses the words "on
the 	

36
the night of the stabbing". On Patricia's evidence that
appellant came to the house at about 6 p.m., this is not
really a misstatement. I shall however accept that the
ccgency of Andile's identification is detracted from by
the fact that he was not able, at the relevant time, to
recognize deceased's assailant by this feature and that the
court a quo was not mindful of this or the danger that
he is, in reality, identifying the appellant not as one of
the deceased's assailants, but simply as the person whom he
saw earlier that evening. Nevertheless, so it seems to
me, reliance on his evidence was justified. What he is, in
substance, saying is that by means of the scar he identifies
appellant as the person who was at his house and that it
was......

37
was that person whom he later saw stabbing deceased. A
third misdirection which was postulated arises from the
statement in the judgment that Patricia had, at the identi-
fication parade which she attended (on 14 March 1984 ) ,
pointed out appellant "as one of the persons who had been .
present at the time or after deceased was stabbed", whereas
her evidence was that she had pointed out "die persoon ..
wat op 26 Februarie by my huis gekom net". . The learned
judge's understanding of the evidence was therefore inac-
curate but here, too, I do not believe it to be of moment,
It admits of no doubt that she avers that it was such per-
son whom she subsequently saw near the scene standing next
to the car with accused no. 1
In.....

38
In the result, therefore, there were, in my view,
no misdirections of any consequence on the part of the trial
court. Even, however, if there were, so that a reassess-
ment of the matter purely on the record is required, I am
satisfied, in the light of what has already been said, that
the State proved the falsity of appellant's version. To sum
up in this regard, two eye-witnesses (Petunia and Andile)
identify him as having stabbed deceased; another (Patricia)
places him on the scene shortly after the crime and, in
addition, establishes a threat made by appellant to kill
deceased; and a defence witness (Thonoki) also identifies
appellant as having been engaged in a fight with him. The
cumulative effect of this evidence established the guilt of
appellant ....

39
appellant
It is in the light of these findings that I return
to the argument based on the acquittal of accused no. 1.
The trial court's reasons for so doing were that, despite
the positive identification of him by Petunia and Andile,
as also Patricia's evidence that he was at the car, it was
reasonably possible that he went to the scene only after
deceased had been killed (as he and Thonoki alleged). The
fact that he had reported the matter to the police,
or at least called at the police station, was an improbabili-
ty in the State version that he was one of deceased's assail-
ants. The trial court no doubt also had in mind (though it
is not mentioned) that his version is supported by Skosana
(who......

40
(who was called by accused no.l).
Now, normally the acquittal of one co-accused would not affect the conviction of the other at least where the evidence against them was different. Here, however, it cannot be gainsaid that, in material respects, it was the same. The court a quo recognized this. Thus LEVESON J stated:
"In the light of the fact that we have
discharged accused no. 1, it might be
asked whether the identification with respect to accused no. 2 is not suspect. The essential point, however, is this -accused no. 1 in his own version puts himself on the scene of the crime. He was present within minutes, perhaps even seconds of the events taking place. In discharging accused no. 1 we fear the possibility of a mistaken identification
in......

41
in the light of the fact that his version might reasonably possibly be true. It could be possibly true because a face seen at the scene of the crime could be mistaken for another seen at the same scene. Accused no. 2, however, denies that he was present at the scene of the crime or came there subsequently."
I am bound to say that I do not find this convincing. On the State evidence, accused no. 1 was not on the scene as an innocent ex post facto bystander. There is no room for mistake as to what he was doing there. Yet the trial court accepted as a possibility that this was so. It may therefore be said that,in relation to the identifica-tion of accused no. 1, it had a doubt concerning the reliability of the evidence of Patricia, Petunia and Andile. And the question that arises is whether if this be so it
should 	

42
should not, inevitably, have affected appellant's position; whether he too should not have had the benefit thereof; perhaps all the more so because, unlike appellant, the witnesses previously knew accused no. 1. In my view not. The paradox is more apparent than real. Had the trial court's approach been that the identification of the State witnesses was suspect,it would have been a grave misdirection to have relied on it to convict appellant. This was, however, not its finding. Thus in the passage following the one I have quoted,it is said:
"In the light of the positive identi- fication of the three witnesses and. our acceptance of the content of the conversation which took place between accused no. 2 and the witness Patricia,
we......

43
we cannot conclude that the version of accused no. 2 might reasonably possibly be true."
Earlier,the following appears:
"Patricia identified accused no. 2 as being present alongside the motor-car when she arrived on the scene. The witness Busisiwe (Petunia) and the witness Andile both positively identified accused no. 2 at the identification parade attended by them."
According to the judgment on the application for leave to appeal: 
"(T)hree witnesses positively identified the accused as being present at the scene of the crime. In the evidence led before us we were particularly impressed with the testimony of the witness Andile and are convinced that he gave an accurate
account 	

44
account of the events and a sound iden-tification of accused no. 2".
It appears to me, therefore, that the true basis for acquitting accused no. 1 was not an adverse finding regarding the reliability of the State witnesses but what amounted to an over- 
cautious assesment of the case against him. What weighed, incorrectly I think, with the court was accused no. 1 having placed himself on the scene of the crime plus the fact, as already indicated, that he subsequently went to the police station. Not only did these considerations not enter into the picture as far as appellant is concerned, but Patricia's evidence, which is expressly found to be reliable, of the threat he made, provided an additional safeguard for convicting appellant.
The 	

45
The conclusion which I have, in the result, come
to is that no inference of bias on the part of the court a
mo can be drawn from accused no. l's acquittal and that
the submission to this effect is without substance. The
consequence of this is that even if an irregularity was com-
mitted, no failure of justice resulted therefrom. It fol-
lows, further, that the argument that, in any event, the
acquittal of accused no. 1 should, on the merits, have car-
ried with it that of appellant, must also be and is rejected,
The appeal against the conviction cannot succeed.
It remains to deal with the appeal against sen-
tence. There is no warrant for disturbing the finding
that extenuating circumstances were not proved by appellant.
Indeed.......

46
Indeed, the contrary was not argued before us. The attack
on deceased appears to have been premeditated. The only
ground relied on in the court a quo was that appellant had
consumed alcohol. However, it was held that though this
was so, he had not discharged the onus of proving that
"his faculties were so disturbed, his control over his ac-
tions so unrestrained that there is present in the matter
diminished responsibility". I am not sure that this does
not perhaps place the criterion for proving extenuation too
highly. Even so, it cannot, be found that liquor played any
meaningful role in reducing appellant's moral blameworthiness
It is true that accused no. 1 stated that appellant "was ge-
drink gewees" but he goes on to say "hy het normaal opgetree"
Skosana's.......

47
Skosana's opinion was that "hy was ... normaal". Ap-
pellant, himself,conceded that "there was nothing wrong with
me. I had been drinking but I was not affected"
The appeal is dismissed
H H NESTADT, AJA

JANSEN, JA VILJOEN, JA BOTHA, JA JACOBS, JA J

Concur