R v Duma

• Jurisdiction: South Africa
• Citation: 1958 (3) SA 882 (N)

R v Duma
1958 (3) SA 882 (N)

1958 (3) SA p882

Citation	1958 (3) SA 882 (N)
Court	Natal Provincial Division
Judge	Holmes J and Brokensha J and Fannin AJ
Heard	August 1, 1958
Judgment	August 5, 1958

Flynote : Sleutelwoorde A

Criminal procedure — Evidence — Conviction on plea of guilty — Requirements of sec. 258 (1) (b) of Act 56 of 1955 — What are — Proof that offence actually committed must be notwithstanding and B apart from plea — Cases in which state of mind of accused has to be proved subjectively — Crown not assisted at all by plea of guilty.

Headnote : Kopnota

A magistrate may only convict in terms of section 258 (1) (b) of Act 56 of 1955 if, notwithstanding and apart from such plea, there is proof of the actual commission of the offence.

C Semble: In cases in which it is necessary, in order to prove the commission of the offence, to establish inter alia that the accused, subjectively, had a certain state of mind, a plea of guilty does not assist the Crown at all, and the prosecutor should lead his evidence as fully as he would have done if the plea had been one of not guilty.

Case Information

Argument on review. The facts appear from the reasons for judgment.

R. C. C. Feetham, for the accused (at the request of the Court): A plea of guilty cannot, for purposes of sec. 258 (1) (b) of Act 56 of 1955 be regarded as an admission by the accused of all or any of the facts in the charge, or as evidence that the offence was committed, for the following reasons: (1) It may be that, under common law, a plea of E guilty is an admission of the facts contained in the charge, or, in other words, a judicial confession. R v Leuner, 1958 (2) SA 582 (SWA), and the authorities there referred to. (2) But, whatever the common law may be, it is clear that under sec. 258 (1) (b) of Act 56 of 1955 an accused, if he pleads guilty, cannot be sentenced unless there F is 'proof other than the unconfirmed evidence of the accused, that the offence was actually committed.' (3) It is reasonable to suppose that the amendments to sec. 286 of Act 31 of 1917 which were made by sec. 51 of Act 46 of 1935 flowed from the remarks made in R v Citha, 1920 T.P.D. 115. (4) In Citha's case it was clearly decided that the position under sec. 286 was what it had always been before, namely that, even G where there was a plea of guilty, it was necessary that the offence should be proved by evidence aliunde. (5) It was pointed out that this was a necessary provision which had substantial justice to recommend it especially in view of the native population in this country. Citha's case, supra at pp. 117 - 119; R v Khoboke, 1944 OPD 105. (6) In these circumstances if the Legislature had wanted to amend sec. 286 to H provide that in future a plea of guilty would not need to be supported by evidence aliunde of the commission of the offence, but only by confirmatory evidence, it would surely have done so in clear terms, because it would have been altering a very old established procedure. (7) If that had been its intention it would surely have amended the section to read 'upon proof, other than the unconfirmed plea of guilty of the accused.' There would have been no need to mention 'unconfirmed D

1958 (3) SA p883

evidence' because there must be a plea in every case. R v Liebenberg, 1958 (2) SA 575 (O); R v V., 1958 (2) P.H. H.180. (8) Furthermore if the Legislature had intended that a plea of guilty should be regarded as proof, it would have been treating a plea as a judicial confession, and, A in those circumstances, it would not, in sec. 286, have drawn a sharp distinction between pleas of guilty and confessions. R v Citha, supra; R v Mutimba, 1944 AD 23; R v Liebenberg, supra; R v V., supra. (9) If the Legislature had intended a plea of guilty to be regarded as proof, if confirmed, in the light of the cases which had decided that a B plea of guilty was not an admission of the facts alleged in the charge (R v Mazibuko, 1947 (4) SA 821 (N); R v C., 1955 (1) SA 380 (C)), it would surely have amended the section in Act 56 of 1955 to correct the impression caused by the cases and to put the matter beyond doubt. (10) Even if the Legislature, when it amended sec. 286 in 1935, did regard a plea of guilty as an admission of the facts in the charge, C it still required 'proof other than the unconfirmed evidence of the accused', and an admission is not 'evidence' unless the Act provides specially that it should be regarded as such. Cf. sec. 284 of Act 56 of 1955. Ordinarily an admission is proof but not evidence. Even if a plea of guilty was regarded as an admission therefore, the Legislature made it plain that evidence was still required in addition. R v V., supra.

D Whatever may be the true significance and effect of the plea of guilty in this case, there was insufficient evidence to confirm it. The Crown evidence did not corroborate the plea or evidence in a material particular, because it is consistent with the Crown evidence that the sheep in question may have strayed and not been stolen. Cf. R v Blyth, E 1940 AD 355 at pp. 363 - 4; R v Radov, 1957 (4) SA at p. 50 B and C. Even if the Court holds that the Crown evidence does corroborate in a material particular it has a discretion not to support the conviction.

P. W. Thirion, for the Crown: Sec. 258 (1) (b) of Act 56 of 1955 is complied with if: (1) The offence to which the accused pleads guilty has been proved by evidence other than the accused's evidence, to have been actually committed; (2) the plea of guilty is confirmed by evidence outside the plea of guilty which corroborates the plea of guilty in some material respect. This is the only reasonable interpretation of the G section particularly in view of the history of the section and in view of the interpretation which was placed on sec. 258 (2) and sec. 257 of Act 56 of 1955. In sec. 286 of Act 31 of 1917 (now sec. 258 of Act 56 of 1955) prior to its amendment by sec. 51 of Act 46 of 1935 no distinction was drawn between a plea of guilty and an extra-judicial confession. R. H v. Citha, supra. The second proviso to sec. 286 (as it existed prior to 1935) shows clearly that a confession was taken to include a plea of guilty. 'Confession' has the same meaning in sec. 286 of Act 31 of 1917 as in sec. 273 of Act 31 of 1917. See R v Hanger, 1928 AD 459 at p. 463; R v Becker, 1929 AD 167. English text books draw no distinction between a plea of guilty and a confession: Archbold's Criminal Pleading (33rd F

1958 (3) SA p884

ed. at pp. 401, 420); Boscoe's Criminal Evidence (16th ed. p. 38); Taylor on Evidence (12th ed. para. 866).

As to the effect of a plea of guilty in England, see Taylor, supra paras. 865, 866. Archbold, supra, at p. 420; Roscoe, supra, at p. 249.

A A plea of guilty should carry the same weight as an extra-judicial confession: (1) it is made in the presence of the court and is not dependent on the veracity and memory of witnesses, (2) an accused is informed beforehand of the reason why he is going to stand trial; (3) the accused realises that his plea is going to be acted upon; that, so far as he knows, his plea is the end of the matter; (4) the charge is B put to him in a succint form, informing him of the date when and place where he is alleged to have committed the crime. All the elements of the crime are put to him; (5) he is in his sound and sober senses and not subject to influences of hope or fear.

R v Blyth, 1940 AD 355, was decided on sec. 286 (2) of Act 31 of C 1917 after its amendment in 1935. But the Court held in Blyth's case that the decision would have been the same if it had to be given on the section in its unamended form.

Therefore applying Blyth's case to sec. 286, as it existed prior to 1935, the meaning of the section is that any court could convict an accused by reason of his confession if: (1) there was evidence apart D from the confession, that the crime had actually been committed; (2) the confession was confirmed by evidence outside the confession which corroborates it in a material respect. One must bear in mind that prior to the 1935 amendment no distinction was drawn between a plea of guilty and an extra-judicial confession. Therefore the court could convict on a E plea of guilty on the same conditions i.e. either proof of the commission of the offence or confirmation of the plea in a material respect.

The next step is to determine whether the 1935 amendment altered the meaning of the section:

F Two obvious changes were effected by sec. 51 of Act 46 of 1935: (1) Sub-sec. 1 (a) empowered the Supreme Court to convict an accused of any offence, bar murder, on a plea of guilty without hearing any evidence. Prior to 1935 the practice was to regard the evidence given at the preparatory examination as sufficient compliance with sec. 286. R v Citha, supra, at p. 118. The 1935 amendment gave statutory recognition G to this practice. (2) The second alteration was that magistrate's courts' power to convict on pleas of guilty without evidence was extended generally to all petty offences.

Sec. 285 was interpreted in R v Thielke, 1918 AD 373 at p. 377, to mean that if the evidence of an accomplice is corroborated in a material respect there need be no evidence aliunde of the commission of the H offence. See also R v Lakatula, 1919 AD 362 at p. 365, R v Galperowitz, 1941 AD 485 at p. 495, R v Troskie, 1920 AD 466 at p. 469.

Parliament, mindful of the interpretation of secs. 285 and 286...