S v Mbanjwa and Others

• Jurisdiction: South Africa
• Judge: Beck CJ, Goldin JA and James JA
• Judgment Date: 30 October 1987
• Citation: 1988 (2) SA 738 (TKA)
• Hearing Date: 23 October 1987
• Court: Transkei Appellate Division

Beck CJ:

The three appellants and two others were charged with the murder of a woman on 27 May 1983. The State case was that the first C appellant hired the second and third appellants and one other (who was accused No 5 at the trial) to murder the deceased, because the first appellant had been told by a witchdoctor (who was accused No 2 at the trial) that the deceased had, by supernatural means, brought about the death of the first appellant's wife.

D The witchdoctor (accused No 2) was acquitted for want of admissible evidence of complicity in the murder. Accused No 5 was acquitted on the grounds that he had acted under compulsion in participating in the murder. His acquittal gave rise to the reservation of a question of law that will be considered later in this judgment. The three appellants were all convicted of murder and sentenced to death. They have appealed E against conviction.

Each of the appellants made a written confession before a magistrate, which confessions were produced and, although challenged, admitted in evidence in terms of s 222(1)(b) of the Criminal Procedure and Evidence Act 9 of 1983.

F To the knowledge of the appellants, the investigating officer had died before they were brought to trial. Each appellant alleged that he had been assaulted by the investigating officer and had thereafter confessed for fear that the assaults would be repeated. The record reveals, and this is not disputed, many unsatisfactory features in the evidence of each of the appellants in relation to the alleged assaults. Despite G that, it was contended by Mr Van Zyl that the evidence given by the appellants, bad as it was, yet sufficed to establish a prima facie case and that, in the absence of any rebutting evidence from the State, the appellants had all succeeded in discharging the onus of showing on a balance of probability that their confessions were not made freely and voluntarily.

H No adverse inference can be drawn against the State from its failure to call rebutting evidence. The investigating officer had, as I say, died before the matter came to trial and, except in the case of the first appellant, it was not suggested that there was any other person who had knowledge of the alleged assaults. The first appellant did say that, in his case, another policeman was present when he was assaulted I by the investigating officer. He could not, however, name or identify the policeman that he said was present, and the State was in no position to ascertain who this alleged additional policeman might be and was therefore in no position to call him to give evidence in rebuttal. Moreover, the first appellant was shown to have lied in saying that, when he was confessing before the magistrate, a policeman was in the J room. The interpreter who assisted in the recording

Beck CJ

A of that confession testified that no such thing would have been allowed to happen, nor did it happen, and he impressed the trial Court as an honest and reliable witness.

In the light of the many patently unsatisfactory features in the evidence of the appellants concerning the alleged conduct of the deceased investigating officer, I am not persuaded that the learned B trial Judge erred in finding that none of the appellants had discharged the onus that is cast upon them by s 222(1)(b) (ii) of...