Rex v Hele

• Jurisdiction: South Africa
• Judge: Lewis J and Assessors
• Judgment Date: 22 February 1947
• Citation: 1947 (1) SA 272 (E)
• Hearing Date: 21 February 1947
• Court: Eastern Districts Local Division

Lewis, J.:

The accused, a native youth, who described himself in evidence as being 17 years of age and of whom the defence witness, Mabel Tshona, said that she knew of her own knowledge that he was born in 1930, is charged with the murder of one Stanley Hlanganisa, another native, on Saturday afternoon, 2nd November, 1946, at the Springbok bioscope in Amalinda Road, East London. The deceased is alleged to have been stabbed in the abdomen by the accused and to have died on 6th November; the medical evidence is to the effect that the cause of death was acute peritonitis resulting from the stab wound. It is not disputed that the accused did cause the death of the deceased by stabbing him, but the defence set up is that the accused was attacked by the deceased and that he acted in self-defence.

In the circumstances disclosed in the evidence it is apparent that the Crown cannot expect a verdict of murder, and Mr. Beinart, the prosecutor, did not press for such a verdict, but said that he would be satisfied with a verdict of culpable homicide. The question for our consideration is whether we should return such a verdict or acquit the accused. This question has given us considerable difficulty, and we have been able to derive little assistance from the Crown evidence, which is confused, contradictory and on some points untruthful. Our verdict must depend in the main on the view we take of the accused's own evidence in explanation of what

Lewis J

happened. There can be no doubt that the deceased was very much under the influence of liquor on the afternoon of 2nd November, 1946. All the witnesses depose to this, and the facts support it. The deceased was at the bioscope performance that afternoon, he caused a disturbance there, and was ejected. He came out of the bioscope, bleeding from the mouth as the result of some fracas in which he had taken part. We accept the defence evidence that when he came out of the bioscope he had an open knife in his hand, that he threatened the accused with this weapon, swore at him and extorted a small sum of money from him. It is clear that the deceased was not only very drunk but that he was quarrelsome - in a mood which may be called 'fighting drunk' - for immediately after his altercation with the accused he proceeded for no apparent reason to assault the witness, Fish, still with the open knife in his hand. Fish was frightened and tried to run away, but it would appear that he was unable to free himself from the grip of the deceased until the witness, Kito James, intervened and separated the combatants. The deceased continued in a quarrelsome mood, brandished his knife and threatened the spectators, a crowd of whom had gathered round. An Indian, who was not called as a witness, eventually managed to seize this knife and take it from the deceased's hand. At this stage the deceased again attempted to extort money from the accused and again assaulted him. The accused...