R v Bhaya

• Jurisdiction: South Africa
• Judge: Shaw J and Holmes J
• Judgment Date: 08 December 1952
• Citation: 1953 (3) SA 143 (N)
• Hearing Date: 01 December 1952
• Court: Natal Provincial Division

Shaw, J.:

The appellant, an Indian male aged twenty-one years, was charged before the magistrate at Durban with three other Indians with E the offence of malicious injury to property, it being alleged that the accused, on or about the 18th of April, and at or near Queen Street, Durban, had wrongfully and unlawfully and maliciously broken and damaged the property of or in the lawful possession of one Essop Moosa, namely, a motor-car, by striking it with lengths of iron or instruments to the F prosecutor unknown, all with intent to injure the said Essop Moosa in his property. The appellant was No. 3 accused. All the accused pleaded not guilty and Nos. 1, 2 and 4 were found not guilty and were discharged. The appellant was found guilty and was sentenced to be imprisoned for four months with hard labour of which two months' G imprisonment with hard labour were suspended for three years on condition that he was not convicted of an offence involving violence against persons or property within that period. He now appeals against the conviction and sentence. The appeal against the conviction is upon the ground that the evidence failed to disclose malice on his part.

H The Crown case in the court below depended upon the evidence of three witnesses, Moosa, Amod and O'Reilly. According to these three witnesses, the four accused had in concert attacked and damaged the complainant's motor-car, in which the three witnesses were sitting, while this was stationary in Queen Street, Durban. The complainant, Moosa, was the driver of the car in question and the incident occurred at about 5 p.m. The car was stationary on the north side of Queen Street outside Hoosen's Building where the appellant works. The attack on the car resulted

Shaw J

in damage to the front left window, the left side rear ventilator window and the rear window of the car, and the damage was inflicted with some heavy instrument or instruments. There were certain grave discrepancies in the evidence of these three witnesses, particularly in regard to the alleged approach of the accused towards the car. Moosa said that all A four accused came across Queen Street from south to north, while Amod said that No. 1 accused was by himself when he came across the road and emphatically denied that he was accompanied by the other three accused. He described this suggestion as a lie. O'Reilly agreed with Amod. There B were, in addition, certain improbabilities in their evidence, particularly as regards the reason why they had driven to this particular spot in Queen Street and why the car remained parked there. The defence version of the incident was, very briefly, that No. 1 accused was crossing the street alone from south to north, that Nos. 2 C and 4 accused were not on the scene at all and that the appellant, who had been standing at the door of his shop on the north side of the street, alone attacked the car as it was driving off and that he alone inflicted the damage to the car. Appellant admitted attacking the car but asserted that in doing so he was endeavouring to save his brother, D No. 1 accused, whom he believed to be in danger of being deliberately run down or assaulted. The magistrate acquitted No. 1 accused because a native witness, Nathaniel Mdhletshe described the incident in terms which broadly supported the defence version and directly contradicted E that of the Crown witnesses. This witness says that he saw accused No. 1 crossing the road and saw the car travel towards him at a high speed. He also saw the car, as he says, knock No. 1 accused over. He thereupon ran forward and picked No. 1 accused up. No. 1 accused himself says that the car did slightly touch him and although his evidence as to being knocked F down by the car is not so definite as that of Nathaniel, the magistrate rightly felt that considerable doubt was thrown upon the veracity of the evidence given by the Crown witnesses. Accused Nos. 2 and 4 stated that they were not on the scene at all and two...