R v Nzuza and Another

• Jurisdiction: South Africa
• Judge: Greenberg JA, Van Den Heever JA, and Hoexter JA
• Judgment Date: 12 September 1952
• Citation: 1952 (4) SA 376 (A)
• Hearing Date: 03 September 1952
• Court: Appellate Division

E Greenberg, J.A.:

The appellants were tried in the Native High Court on an indictment which charged them with the murder, on the 23rd January, 1952, of Moolia, an adult Asiatic male. Before pleading, both appellants, though their respective counsel, applied

F 'for a separation of the trial, submitting that the preparatory examination record discloses that each accused was alleged to have made a confession to the magistrate, that the defences were conflicting and that there was likely to be prejudice to the accused if a joint trial were held mainly by reason of the fact that, whilst the confession of one accused would not be evidence against the other, the mind of the Court might be influenced by one or other confession against the other accused'.

G Reference will be made in more detail later to the contents of these 'confessions'.

This application was opposed on behalf of the Crown and was refused by the Court. It was not renewed at any later stage of the trial, which H proceeded to its conclusion as a joint trial. The appellants were both convicted of murder and, no extenuating circumstances having been found, were sentenced to death.

Thereupon application was made on behalf of both appellants for a special entry and for leave to appeal. The special entry related to the Court's refusal to separate the trials; the first of the grounds of appeal for which leave was sought was that the Court had wrongly admitted in evidence the statements, described as 'confessions' in the application for the separation, the terms of which

Greenberg JA

I have already quoted, on the ground that it had not been proved that the appellants had made the statements in the terms recorded therein. These statements were admitted in evidence by the trial Court, notwithstanding opposition on behalf of the appellants, which opposition was based on their denial, under oath, that they had made statements in A the forms recorded by the magistrate before whom they had been made. The statements had been made extrajudicially before the commencement of the preparatory examination. The other grounds of appeal were that the judgment was against the weight of evidence, and that it was not proved that the appellants struck the deceased or were in law responsible for B his death. The trial Court made the special entry and granted leave to appeal.

The statement alleged by the Crown to have been made by the first appellant admitted that he had struck the deceased one blow - the context indicates that it was with an axe - which felled him, but C denies knowledge of any other blows administered to the deceased. The statement alleged by the Crown to have been made by the second appellant denies any attack at all by him on the deceased and says that the first appellant struck the deceased three blows, once with an axe, but the weapon is not mentioned in regard to the...