R v Maharaj

• Jurisdiction: South Africa
• Judge: Schreiner ACJ, Steyn JA, Beyers JA, Van Blerk JA and Smit AJA
• Judgment Date: 08 September 1958
• Citation: 1958 (4) SA 246 (A)
• Hearing Date: 03 September 1958
• Court: Appellate Division

F Schreiner, A.C.J.:

On the 4th December, 1957, the applicant was convicted by JAMES, J., and assessors in the Durban and Coast Local Division of the murder of one Sayed Osman Habib and was sentenced to death. A fellow accused, one Essack, was found guilty of being an G accessory after the fact to the murder and was sentenced to two years' imprisonment, eighteen months of which was suspended. The deceased was strangled in a motor-car the other occupants of which were the applicant and Essack, and it was beyond question that the murder was actually carried out by one or other or both of them.

H JAMES, J., granted an application made by the applicant for a special entry, for leave to appeal and for the reservation of a question of law. The appeal in all its forms was heard by this Court on the 21st March, 1958, and was dismissed on the 27th of the same month. The Governor-General-in-Council did not exercise the prerogative of mercy in the applicant's favour and his execution was fixed for 11 a.m. on the

Schreiner ACJ

22nd May, 1958. On the same morning the applicant obtained from a Judge of the Transvaal Provincial Division an order staying the execution pending the determination of an application to be made to the Natal Provincial Division for a special entry.

A The basis of the application for a stay of execution and for the subsequent proceedings was an affidavit by one Govendar who gave evidence at the preparatory examination but not at the trial. At the preparatory examination he stated that a few days before the murder Essack had placed a belt round the witness's neck and pulled the witness B towards him but that this was done in play. In his subsequent affidavit Govendar said that the incident was different and that Essack told him that he was experimenting on how to strangle and...