S v Mdluli and Others

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA and Trollip JA
• Judgment Date: 21 March 1972
• Citation: 1972 (2) SA 839 (A)
• Hearing Date: 13 March 1972
• Court: Appellate Division

Holmes, J.A.,

F In the Witwatersrand Local Division the three appellants were convicted by COLMAN, J., and two assessors, of the crime of murder, and also the crime of robbery with aggravating circumstances. The members of the Court were unable to find any extenuating circumstances. Wherefore the trial Judge, being thereto obliged by law, imposed the capital sentence on each of the appellants.

G There were four accused at the trial. One of them was acquitted. Hence there are only three appellants. For the assistance of those whose duty or interest it may be to read this judgment, I append the following cross-index-

Name	Number; at the trial	Number; on appeal
H David Mdluli	No. 1	No. 1
Samuel Mdluli	No. 2	Acquitted : No appeal
Ernest Bareng	No. 3	No. 2
Petrus Mbatha	No. 4	No. 3

The second and third appellants appeal with the leave of the trial Judge, and the first appellant with the leave of this Court. They were represented on appeal by the same three counsel who had defended

Holmes JA

them at the trial. They appeared pro deo and had travelled from Johannesburg to Bloemfontein for this purpose. The Court appreciates their assistance, given in the best traditions of the Bar.

A The three appellants said in evidence that they went to the deceased's shop to steal her money from under the counter. The first appellant admitted having struck her on the head with a length of iron piping, which was produced as an exhibit. I shall elaborate the defences later. The deceased was a little Chinese woman, aged about 49 years.

[The learned Judge then detailed certain evidence relating to the finding of the body and the weapon, and proceeded.]

B The first issue on appeal is whether the learned trial Judge erred in admitting as evidence the written statement which each appellant made to a justice of the peace. The admissibility was challenged in the Court a quo. The learned Judge therefore held a 'trial within the trial', sitting without his assessors, since the issue of admissibility was for C him alone to decide. This inner trial lasted for more than four days. The three appellants gave evidence, as also did members of the police force, and the justice of the peace to whom the statements were made, namely Major van Papendorf. The onus was on the State to prove beyond reasonable doubt that each statement was made by the...