Director of Public Prosecutions, Natal v Magidela and Another

• Jurisdiction: South Africa
• Judge: Grosskopf JA, Harms JA, Olivier JA, Melunsky AJA, Mpati AJA
• Judgment Date: 17 March 2000
• Citation: 2000 (1) SACR 458 (SCA)
• Hearing Date: 09 November 1999
• Counsel: P J Blomkamp for the first respondent. P Dickens for the second respondent.
• Court: Supreme Court of Appeal

Melunsky AJA:

[1] The appellant is the Director of Public Prosecutions, Natal. On 22 August 1997 the two respondents, who were each represented by pro Deo counsel, appeared before Magid J and assessors in the C Southern Circuit Local Division of the Natal High Court charged with the murder of Angela Maria Maharaj ('the deceased'). The first respondent pleaded guilty but a plea of not guilty was entered after he had explained that he was present when the deceased was killed, but that he did not kill her. The second respondent pleaded not guilty. D

[2] During the hearing, a trial-within-a-trial took place for the purpose inter alia of considering the admissibility of records of proceedings which had previously been held in the magistrate's court in terms of s 119 of the Criminal Procedure Act, 51 of 1977 ('the Act'). One of the witnesses called by the State in those proceedings was Mr Winter, a magistrate of Port Shepstone. He testified that on 7 March 1996 the first respondent appeared before E him for the purpose of pleading in terms of the section to the aforesaid charge of murder. The magistrate informed the first respondent that he had the right to legal representation to which the first respondent replied that he wanted to conduct his own defence and that he did not wish to apply for legal aid. The magistrate explained the nature of the s 119 proceedings to the first respondent and the charge was then put to him. The first F respondent confirmed that he understood the charge and pleaded guilty. Mr Winter proceeded to question him in terms of s 112(1)(b) of the Act after he had explained the nature and effect of the subsection to him.

[3] On 18 March 1996 the second respondent also appeared before Mr Winter for the purpose of pleading under G s 119 of the Act. The magistrate followed the same procedure in the case of the second respondent as he did in relation to the first respondent, save that he informed the second respondent about his right to legal representation after he had explained the nature of the s 119 proceedings to him. The second respondent H declined legal representation and pleaded guilty. Thereupon the magistrate explained the import of s 112(1)(b) to the second respondent and went on to question him in terms of the subsection. The magistrate was satisfied that both respondents, in response to the questions put to them, admitted the allegations in the charge. Accordingly he stopped the proceedings against them, as he was obliged to do in terms of s 121(2)(a) of the Act. I The appellant thereafter arraigned the respondents in the High Court for trial - and not for sentence - under s 121(3)(b).

[4] During the hearing of the trial within a trial in the Court a quo, counsel for the first respondent, while cross-examining Mr Winter, put the following question to him: J

Melunsky AJA

'Now at no stage prior to the accused being asked to plead and all these explanations that you've given him did you deem it A necessary to inform the accused that he also has a right to remain silent, did you?'

Mr Winter agreed that he 'did not explain that to him pertinently or explicitly in those words'.

After counsel had suggested to the witness that he did not warn the first respondent of his right to remain silent B because he had already fully incriminated himself by his plea of guilty, the learned Judge intervened in the questioning of the witness. The record then reads:

'Magid J: But it's quite clear Mr Winter - Mr Winter, you concede that at no stage did you tell the accused, when you were questioning him under s 112(1)(b), or in terms of the form relating to s 112(1)(b), did you tell him he didn't have to answer the C questions. In other words that he had a right to remain silent. I'm not sure that he has a right to remain silent in those circumstances but that's a legal debate which we will have later. Did you tell him at any stage that he didn't have to answer any of your questions? - M'Lord, in those words, no, I didn't deem it necessary for a number of reasons which you may not want to hear.

In those words or in any other words, because you in effect told him he had to answer the questions, didn't he? - My humble D opinion, if I may for a moment, is . . . (intervention)Let's just go back to what the form says. You told him you were going to ask him some questions to satisfy yourself that he had - that he intended to plead guilty to the offence. In other words, that he admitted all the elements of the offence. Isn't that right? - Yes, M'Lord, that is correct. E

And by inference he had to answer the questions in order to enable you to decide whether he's pleaded guilty - whether he admitted all the elements of the offence. - Well, M'Lord, yes, but he could also give exculpatory responses naturally.

Oh, yes, of course, I understand that. - And as a result I . . . (intervention)But at no stage did you say to him, "You have the right to keep quiet altogether"? - M'Lord, no, that is something which one would expect - I would expect to do under s 115 with a plea of not F guilty.'

[5] Counsel for the second respondent merely put to Mr Winter that he did not 'explain the (second respondent's) right to remain silent to him'.

To this the witness replied: G

'M'Lord, no, only the explanation regarding s 112(1)(b). I did not say to him he doesn't have to answer my questions.'

I have quoted from the record at some length because of the opening remarks of the learned Judge in his judgment on the admissibility of the records of the s 119 proceedings. He said: H

'We have just completed the State case in a trial within a trial relating to the admissibility of the record of s 119 proceedings. In those proceedings I gather, for this is my decision, that the two accused pleaded guilty and were then questioned in terms of the provisions of s 121 of the Criminal Procedure Act, read with s 112(1)(b) of the Criminal Procedure Act. I

It is apparent on the evidence of Mr Winter, the magistrate before whom the two sets of plea proceedings were taken, that the rights of the accused to legal representation were fully explained to them respectively before their pleas were taken. It is equally clear from Mr Winter's evidence, which is challenged by nobody and quite...