Rex v Phiri

• Jurisdiction: South Africa
• Judge: Fischer JP and van Den Heever J
• Judgment Date: 03 July 1947
• Citation: 1947 (3) SA 273 (O)
• Hearing Date: 26 May 1947
• Court: Orange Free State Provincial Division

Fischer, J.P.:

The accused was charged on two counts, viz.: (1) aanranding and (2) oortreding van art. 94 gelees met arts. 164 (m) en 168 van Wet No. 30 van 1928 deurdat hy ''n naturel, iemand aan wie kragtens art. 94 van die voormelde wet geen drank wettiglik verstrek kan word nie, wederregtelik drank gekoop het of besit het naamlik een half bottel brandewyn in stryd met sodanige verbod'.

To this he pleaded not guilty. He was convicted and sentenced to pay a fine of £1 or seven days I.H.L. and £2 or 14 days I.H.L. respectively. The verdict reads, 'guilty both'.

Fischer JP

The matter is now before us on appeal on the ground that the conviction is against the weight of evidence and on the second count that the Crown failed to prove the possession of the liquor, and, secondly, that the verdict in respect of alternatively averred offences is prejudicial to the accused.

It is common cause that complainant and accused, who were both native constables, met at the home of one Agnes, in the location. An altercation took place and according to the complainant an unprovoked attack followed, during which the accused pulled out the handcuffs from the complainant's belt and struck him on the head with them. Complainant then went off to the location police station and reported the assault. Sergeant van Wyk, of the police, was called to the police station, where he found the complainant with a wound on the head.

Shortly after his arrival the accused appeared, with a wound over the eye, placed an empty bottle on the counter and then took out of his pocket a half-bottle of brandy which he also placed on the counter. Van Wyk says that accused was then under the influence of drink and stated that he and complainant had had a fight about liquor. He laid no charge and van Wyk's impression was that the bottles were produced as evidence of the fight. In cross-examination van Wyk adds, 'hy sê klaer gee hom die drank en daaroor het hulle baklei'.

[His Lordship proceeded to analyse the evidence, and continued.]

The Court is not prepared to differ from the magistrate on his finding based on an unequivocal disbelief of the accused. With regard to the question of possession of liquor the contention first forwarded is that the possession of the liquor by the accused was not such as is contemplated by the Liquor Act, since he held the liquor for the purposes of laying a charge and not with the intention of retaining it for his own benefit. Independent...