- J E Mahlangu and Another v Minister of Police [2021] ZACC 10 dated 14 May 2021 (CC)

Background
On 25 May 2005 at Middelburg in Mpumalanga, four family members being a father, a mother and their two children, were brutally murdered. One of the children was a little girl who was also savagely raped. A third child, a three-year-old girl, survived the ordeal.

On 29 May 2005, Lt Mthombeni and three of his colleagues without a warrant and not having a reasonable suspicion, arrested Mr J E Mahlangu. The said Lt Mthombeni and other SAPS members assaulted and tortured (Afrikaans: “gemartel”) Mahlangu. As a consequence, Mahlangu caved in (yield or submit under pressure) and falsely confessed his guilt. The SAPS members, however, insisted that Mahlangu could not have committed the said crimes on his own and forced him to identify another person. In the result, Mahlangu identified Mr Mtsweni, who was merely his acquaintance and neighbour, as his supposed co-perpetrator. The following day, on 30 May 2005, Mtsweni was arrested. Mtsweni has since passed away whereupon the executrix of his estate (Afrikaans: “boedel”), Ms Mailela, was substituted and is now the second applicant before the Constitutional Court.

Introduction
The prosecutor who received the police case docket which contained the false confession, was not informed that the confession was the result of assault and torture. At their first appearance in the magistrates’ court on 31 May 2005, both Mahlanga and Mtsweni were informed of their right to apply for bail. Both of them indicated that they wanted to apply for bail, but the prosecutor applied for a postponement so that further investigations could be conducted. The prosecutor further stated that the State/prosecution intended to oppose any bail applications. The trial was then postponed, and both Mahlanga and Mtsweni were remanded in custody until 14 June 2005.