R v Bellingham

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Fagan JA and Steyn JA
• Judgment Date: 31 March 1955
• Citation: 1955 (2) SA 566 (A)
• Hearing Date: 24 March 1955
• Court: Appellate Division

Centlivres, C.J.:

The appellant was charged in the Witwatersrand Local A Division with murder. The Court consisted of MALAN, J., and two assessors. The Court brought in a verdict of culpable homicide. This verdict was arrived at by a majority of the Court, MALAN, J., dissenting. The appellant was sentenced to three years' imprisonment with compulsory labour. Leave to appeal was granted by the trial Judge.

B The verdict was returned on December 9th, 1954, when the learned Judge said:

'At this stage, by a majority, the accused is found guilty of culpable homicide. The assessors have come to the conclusion that he is guilty. I have personally come to the conclusion that on the uncorroborated evidence of Joel it is unsafe to convict. My reasons for disagreeing with the assessors will be given later.'

C Two months later the learned Judge gave his reasons for dissenting from the assessors. Except for a short passage, to which I shall refer later, the learned Judge did not set forth the reasons which actuated the assessors in coming to their verdict. In the result this Court is in the unfortunate position of not being in possession of the full reasons which motivated the assessors. It seems to me that the interests of D justice would have been better served if the reasons of the majority and the minority of the Court had appeared in a judgment of the whole Court given at the time when the appellant was convicted or at any rate if the majority of the Court had at that time been given an opportunity of setting forth their views. Cf. Rex v van der Walt, 1952 (4) SA 382 at p. 383 (A.D.).

E The case for the Crown was that shortly before midnight on July 16th, 1954, the deceased, Joel Molife and three other natives were walking along Perth Road, Westdene, a suburb of Johannesburg. They met five native constables who asked them for their passes. Molife and the deceased then proceeded along Perth Road behind the three other natives. F As Molife and the deceased were passing the appellant and one Gobey (who was charged jointly with the appellant but discharged at the end of the Crown case), the appellant addressed them and said 'Tsotsies, come here'. The natives replied that it was late and said 'Tsotsies, come here'. The appellant again said 'Tsotsies, come here'. After he had G addressed them for the third time the appellant said 'You Tsotsies come here. You are the people who go about killing others at night'. The deceased, who was wearing a police overcoat, told him that he was a policeman and the appellant replied 'Yes, you are the one I want'.

Molife and the deceased were followed by the appellant, the three other natives having apparently gone some distance ahead. After the appellant H had followed Molife and the deceased for a short distance he stopped and called Gobey and as the latter came up to the appellant he (the appellant) said 'Skiet hulle'. Shots were thereupon fired one of which fatally injured the deceased. Very shortly after this Molife succeeded in stopping a police van and two European

Centlivres CJ

policemen who were in the van arrested the appellant and Gobey. The five native constables who had asked Molife and his companions for their passes also appeared on the scene immediately afterwards

The case for the defence was that the appellant was a pillion passenger A on a motor cycle driven by Gobey who was taking him home. They had gone beyond the house of the appellant in Perth Road and made a U turn to go back. The appellant fell off the motor cycle as Gobey was in the act of turning. As he lay on the ground the deceased attacked him, as he thought, with the intention of robbing him. The appellant had his weekly B wages in the small pocket of his trousers but the deceased did not succeed in robbing him. During the struggle with the deceased the appellant succeeded in getting away from him, he then pulled out his pistol from his hip pocket and the deceased ran away. The appellant said:

'Then I saw that there were a whole lot of them and I chased them, because I thought that he (sic) wanted to rob me and I had my whole week's salary on me . . . When I saw that I could not catch them I fired C a number of shots . . . When I had fired a number of shots they started to run more slowly and I got hold of the one with the coat on (the deceased) and I grabbed him and I said 'Come here Tsotsie, you want to rob me'. With my left hand I grabbed him by the right arm and he swung round and tried to hit at me. I tried to ward off the blow and then the revolver went off and I saw him sink down. I got such a fright that I ran back to Gobey.'

Asked whether he wanted to shoot the fatal shot the appellant replied

D 'No, I wanted to catch him and take him to the police.'

The appellant said that on the evening in question he and Gobey had three brandies each.

Gobey also gave evidence for the defence and the learned Judge correctly E characterised his evidence as vague. In chief he did not say that he made a U turn as the following questions and answers show:

'And did you pass his (the appellant's) house? - Yes, and then he jumped off and I...