R v Melozani

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, and Van Den Heever JA
• Judgment Date: 20 June 1952
• Hearing Date: 12 June 1952
• Court: Appellate Division

Van den Heever, J.A.:

In the Witbank Circuit Local Division the B appellant was tried before DE WET, J., and assessors on a charge of murder. He was convicted of culpable homicide and sentenced to four years' imprisonment with hard labour and six lashes.

Apart from certain admissions made by appellant in a statement made C before a magistrate, there is practically no evidence incriminating the appellant.

Appellant spent the afternoon of Christmas Day, 1951, in the location at Witbank. He admits that he had some liquor, but not overmuch. Some witnesses on both sides of the issue assert that there was no beer. The trial Court found that the appellant was drunk at the time; if one reads D between the lines it seems probable that he was very drunk indeed.

A witness for the prosecution, David Rasipe, states that during the afternoon and in the enclosure of a hut in the location he was playing a E mouth-organ to the accompaniment of a guitar. Appellant, who was present, borrowed the mouth-organ and began to play it. When darkness fell, the owner of the mouth-organ noticed that appellant ran in the direction of a water-tap not far off. With the object of saving or retrieving his mouth-organ or keeping appellant in sight, the witness F ran towards the street, when he heard a Native girl's voice uttering a cry of distress and saying: 'O Vader, hulle steek my met 'n mes.'

Counsel for the defence objected to this evidence being admitted. His objection was overruled.

On the evening of the same Christmas Day, when it was getting dark, the G deceased, a Native girl just over 13 years of age came running into her grandmother's house, next door to appellant's, made a report to her grandmother and died. The cause of death was a stab wound in the left ventricle of the heart.

On the 27th December the appellant appeared before the assistant magistrate at Witbank, to whom he seemed to be in his sound and sober H senses. After being cautioned in the usual manner, the appellant through an interpreter made certain admissions which were taken down in writing. It was not a confession within the meaning of sec. 273 of Act 31 of 1917 as expounded in R v Becker, 1929 AD 167, but it was treated as a confession at the trial. In the statement appellant told about the borrowed mouthorgan, and proceeded to relate how he and a companion met a girl at the water-tap. He had a conversation with her. She swore at

Van den Heever JA

him in terms of his mother's genitals. He expostulated with her and struck her with his fist. His comrade, Shadrack, then offered him a knife. He replied that he did not wish to stab but only to beat her. Nevertheless, he took the knife and stabbed the girl. He did not wish to kill, but only to beat the girl. So far the statement.

A At the preparatory examination the Shadrack referred to in his statement gave evidence to the effect that appellant's story implicating him was false. At the end of his evidence the appellant intervened; he admitted that his statement relating to Shadrack was false, and said that he was ashamed of having unjustly implicated this witness.

B At the trial, while the foundation was being laid for the admission of the so-called confession and the language used by the appellant was the subject of investigation, counsel for the defence intervened with the remark 'that the confession was made in this form is C not challenged'. In his judgment on the application for leave to appeal, the learned Judge remarked:

'At the stage when this confession was tendered by Mr. Rabie, for the Crown, the Court raised the question as to whether the interpreter should be called first before the confession was read out by Mr. Malan (i.e. the assistant magistrate) and counsel for the defence then intimated to the Court that the confession was not challenged and that the interpreter could be dispensed with.'

D Before us Mr. Curlewis admitted that the learned Judges' recollections truly reflect the course of...