R v Van Heerden
Judge | Dowling J and Galgut AJ |
Judgment Date | 24 April 1958 |
Citation | 1958 (3) SA 150 (T) |
Hearing Date | 17 March 1958 |
Court | Transvaal Provincial Division |
Galgut, A.J.:
The appellant was charged with the offence of assault with intent to murder. He was found guilty and sentenced to nine
Galgut AJ
months' imprisonment with compulsory labour, the pistol which he used was declared to be forfeited and in addition he was declared unfit to possess a firearm in terms of sec. 9 (1) of Act 28 of 1937. The appeal is against both the conviction and sentence.
It appears that in the early hours of the morning of the 21st September, A 1957, the house of one Richards in South Hills, Johannesburg, was entered by a native. Mr. Richards followed the native from his bedroom, but the native escaped through the kitchen window. A suit of clothes and a floor mat had been taken. Mr. Richards then roused the appellant, who was his next door neighbour, and the two of them proceeded in the appellant's car to a telephone booth from where they phoned for the B police. Thereafter they proceeded in the car on a road known as Frankfort Road, and at a spot about 700 to 1,000 yards from Mr. Richards' house they saw three natives, one of whom was the complainant. These natives were on the side of the road and were walking in the same direction as the car was travelling. This meeting took place some 20 C minutes after the housebreaking. The natives scattered and started to run away. Whether they did so before or after the appellant called on them to stop is not clear. Whilst they were running one of several shots fired by the appellant hit the complainant on the right temple causing total blindness.
In the court below it was argued that the appellant's conduct was D excused by virtue of the provisions of secs. 24 (1) (c) and 37 of the Criminal Procedure Act, 56 of 1955. Sec. 24 (1) (c) reads:
'Any private person may, without warrant, arrest any person whom he has reasonable grounds to suspect of having committed an offence mentioned in the First Schedule.'
Sec. 37 (1) reads:
'Whenever any person authorized under this Act to arrest or assist in arresting any person who has committed or is on reasonable grounds E suspected of having committed any offence mentioned in the First Schedule, attempts to arrest any such person and such person flees or resists and cannot be arrested and prevented from escaping by other means than by killing the person so fleeing or resisting, such killing shall be deemed in law justifiable homicide.'
In R v Britz, 1949 (3) SA 293 (AD), SCHREINER, J.A., dealing with the corresponding secs. 31 and 44 in the old Act, said at p. 303:
'The form of the section itself suggests that the protection is only F available when the circumstances are all shown to be present, and that it is not available where their presence has only not been negatived. It should be noticed in the next place that, although a private person may only arrest without warrant under sec. 31 if his...
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