S v Mamba and Another (170/1989) [1989] ZASCA 166; [1990] 4 All SA 381 (A) (30 November 1989)

S v Mamba and Another (170/1989) [1989] ZASCA 166; [1990] 4 All SA 381 (A) (30 November 1989)

The Supreme Court of Appeal found that the evidence did not exclude the reasonable possibility that the deceased may have been in a disturbed or passive state, such that the appellants could have believed she consented to intercourse. The State failed to eliminate this possibility, and thus the rape convictions could not stand. Regarding murder, the court held that while the deceased died as a result of being tied to a tree and left, there was reasonable doubt whether the appellants subjectively foresaw her death (dolus eventualis). The court found that their intent was to incapacitate her temporarily to facilitate their escape, not to kill her. Accordingly, the murder convictions and...

Citation
[1989] ZASCA 166
Parties
Appellant: Olly Andrew Mamba; Appellant: Morgan Jan Jacobs; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 1989
Case Number
170/1989
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Sentences
Outcome
Appeal upheld in respect of rape and murder convictions; convictions and sentences for rape and murder set aside and replaced with culpable homicide and ten years' imprisonment each. Robbery convictions and sentences confirmed.
Judges
Botha, Smalberger, Kumleben
Legal Topics
Rape, Robbery, Murder, Manslaughter, Admissibility of Confession, Dolus Eventualis
Criminal Law Rape Robbery Murder Manslaughter Admissibility of Confession Dolus Eventualis

Case Brief

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Parties

Olly Andrew Mamba

Appellant

Morgan Jan Jacobs

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Convictions and Sentences

Legal Issues

  1. 1 Whether the convictions for rape and murder were proved beyond reasonable doubt.
  2. 2 Whether the confession by the first appellant was admissible.
  3. 3 Whether the appellants had the requisite intent for murder (dolus eventualis).

Ratio Decidendi

The Supreme Court of Appeal found that the evidence did not exclude the reasonable possibility that the deceased may have been in a disturbed or passive state, such that the appellants could have believed she consented to intercourse. The State failed to eliminate this possibility, and thus the rape convictions could not stand. Regarding murder, the court held that while the deceased died as a result of being tied to a tree and left, there was reasonable doubt whether the appellants subjectively foresaw her death (dolus eventualis). The court found that their intent was to incapacitate her temporarily to facilitate their escape, not to kill her. Accordingly, the murder convictions and...

Court Disposition

Appeal upheld in respect of rape and murder convictions; convictions and sentences for rape and murder set aside and replaced with culpable homicide and ten years' imprisonment each. Robbery convictions and sentences confirmed.

Orders

  • The appeal against the convictions and sentences for rape (count 1) succeeds; those convictions and sentences are set aside.
  • The convictions and sentences for robbery (count 2) are confirmed, but the direction that five years of the sentence on count 1 run concurrently with count 2 is set aside.