S v Mmbengwa and Others

• Jurisdiction: South Africa
• Judge: Le Roux CJ and Van Der Spuy AJ
• Judgment Date: 13 July 1987
• Citation: 1988 (3) SA 71 (V)
• Hearing Date: 13 July 1987
• Court: Venda Supreme Court

Le Roux CJ:

The four accused were indicted on two counts in the magistrate's court for the district of Dzanani, viz pointing out or indicating a person as a witch as envisaged in s 1 of the Suppression of Witchcraft Act 3 of 1957 (count I); and assault with intent to do grievous bodily harm (count II). Accused Nos 1, 2 and 3 initially pleaded guilty to both counts but after questioning their pleas were B altered in terms of s 113 of the Criminal Procedure Act 51 of 1977 as follows:

Count I:	No 1 — not guilty
	No 2 — not guilty
	No 3 — not guilty.
Count II:	No 1 — not guilty
	No 2 — guilty
	No 3 — not guilty.

Accused No 4 pleaded not guilty to both counts and his trial proceeded along these lines.

Accused Nos 1 and 4 were eventually convicted on count I (the pointing D out as a witch) and each one was sentenced to pay a fine of R180 or undergo 90 days' imprisonment. Nos 1, 2 and 3 were convicted on count II (assault with intent) and sentenced as follows:

No 1: R180 or 180 days' imprisonment

No 2: Six cuts with a light cane in terms of s 294 of Act 51 of 1977

No 3: R180 or 180 days' imprisonment.

E When questioned by the magistrate in terms of s 112 on their pleas of guilty, Nos 1, 2 and 3 denied pointing out complainant as a witch, but admitted assaulting her with wooden sticks to such an extent that she spent four weeks in Siloam Hospital. Accused Nos 1 and 3 gave as their reason for the assault that they had been 'provoked' by the complainant. F No 1 said she told him that she had bewitched him (No 1), whereas No 3 said that his sick brother had pointed out complainant as a witch who had presumably caused his illness. No 2 merely said he was 'angry' with complainant but would not say why. From the evidence of the complainant G it appears that the accused told her that they were assaulting her 'because I am a witch'. This statement was not attacked or questioned in cross-examination by any of the accused, but was subsequently qualified by the complainant herself when examined by the court:

'Q.

Do you know the reason why the accused indicated you as a witch if you are not a witch?

A.

H Accused told me that the sick child told them that I am a witch.'

Accused Nos 1, 3 and 4 elected not to testify, but No 2 said in evidence that his sick brother had pointed out the complainant as a witch by calling her his grandmother and refusing to eat anywhere but at her kraal. This upset the family tremendously and caused them to infer that the complainant was a witch with supernatural...