Director of Public Prosecutions, Natal v Magidela and Another

• Jurisdiction: South Africa
• Citation: 2000 (1) SACR 458 (SCA)

Director of Public Prosecutions, Natal v Magidela and Another
2000 (1) SACR 458 (SCA)

2000 (1) SACR p458

Citation	2000 (1) SACR 458 (SCA)
Court	Supreme Court of Appeal
Judge	Grosskopf JA, Harms JA, Olivier JA, Melunsky AJA, Mpati AJA
Heard	November 9, 1999
Judgment	March 17, 2000
Counsel	P J Blomkamp for the first respondent.; P Dickens for the second respondent.

Flynote : Sleutelwoorde

Appeal — Reservation of questions of law — Application for in terms of s 319(1) of Criminal Procedure Act 51 of G 1977 — Requirements — Requirements being: (1) Only question of law to be reserved; (2) question of law to arise 'on trial' in Superior Court; (3) reservation of question by Court, or by prosecutor or accused, in which event Court to state question reserved and direct that it be entered in record — Question of law to be framed by Judge so as accurately to express legal point — H Factual findings on which legal point hinge to be recorded, and to be set out fully as part of question of law- Where determination of question of law depending on factual findings, but such findings not made by trial Court, question not capable of meaningful determination. I

Fundamental rights — Right to be advised of right to remain silent — During plea proceedings — Semble: Dicta that accused not required to be informed of right to remain silent when pleading guilty to charge, to be revisited in light of constitutional advances requiring criminal trials to be conducted according to basic notions of basic fairness and justice. J

2000 (1) SACR p459

Fundamental rights — Right to be advised of right to remain silent — Section 25(3)(c) of Constitution Act 200 of 1993 — Infringement A of — Failure to advise accused of right to remain silent during plea proceedings not ipso facto rendering record of those proceedings inadmissible at subsequent trial — Question whether accused's trial rendered unfair by admission of record to be decided on facts of each particular case. B

Headnote : Kopnota

When a question of law is sought to be reserved in terms of s 319(1) of the Criminal Procedure Act 51 of 1977, the following requirements must be satisfied: (1) Only a question of law may be reserved; (2) the question of law must arise 'on the trial' in a superior Court; and (3) the reservation may be made by the Court of its own motion or at the request of the prosecutor or the accused, in which event the Court should 'state the question reserved' C and direct that it be entered in the record. The first requirement is not complied with simply by stating a question of law. At least two other requisites must be met. The first is that the question must be framed by the Judge so as accurately to express the legal point he had in mind. Secondly, there must be certainty concerning the facts on which the legal point is intended to hinge. This requires the Court to record the factual findings on D which the point of law is dependent. What is more, the relevant facts should be set out fully in the record as part of the question of law. The point of law, moreover, should be readily apparent from the record, for if it is not, the question cannot be said to arise 'on the trial' of a person. Non constat, however, that the point should be formally raised at the trial: It is sufficient if it comes into existence during the hearing. It follows from these requirements E that there should be certainty not only on the factual issues on which the point of law is based, but also regarding the point of law that was in issue at the trial.

Where the determination of a question of law, reserved in terms of s 319(1) of the Criminal Procedure Act, depends on factual findings by the trial Court (in casu, whether the admission at the accused's trial of the record of plea proceedings, in terms of ss 112(1)(b) and 119 of the Criminal Procedure Act 51 of 1977, would render F their trial unfair), and the trial Court has not made any such factual findings (in casu because the issue of fairness or otherwise had not been properly canvassed), it is not possible for the Supreme Court of Appeal to provide meaningful answers to the question reserved. In such a case the Supreme Court of Appeal will decline to grant an order. G

Section 25(3)(c) of the interim Constitution Act 200 of 1993 provided that one of the requirements of a fair trial was that an accused person had the right to remain silent during plea proceedings. However, the interim Constitution did not expressly provide that the accused was entitled to be informed of the right so to remain silent. Nonetheless, fairness would, in general, require that the accused should be informed of the right. However, the mere failure to inform an accused of the right to remain silent does not ipso facto render H inadmissible, at a subsequent trial, the record of the plea proceedings in question. It is not every breach of the provisions of the interim Constitution that automatically leads to the trial being unfair, as fairness is an issue that has to be decided on the facts of each case.

Semble: The judgment in S v Nkosi en 'n Ander1984 (3) SA 345 (A) and the majority judgment in S v Mbaso I and Another1990 (3) SA 185 (A) (to the effect that an accused who has pleaded guilty to a charge does not have to be informed of his right to remain silent before he is questioned in terms of s 112(1)(b) of the Criminal Procedure Act) may have to be revisited, in the light of constitutional advances which require criminal trials to be conducted according to basic notions of fairness and justice. J

2000 (1) SACR p460

Case Information

Determination of a question of law reserved in terms of s 319(1) of the Criminal Procedure Act 51 of 1977. E van A Zyl for the appellant (the Director of Public Prosecutions).

P J Blomkamp for the first respondent.

P Dickens for the second respondent.

Cur adv vult. B

Postea (March 17).

Judgment

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...