R v Majola

• Jurisdiction: South Africa
• Judge: Selke J and Shaw J
• Judgment Date: 07 December 1953
• Citation: 1954 (1) SA 287 (N)
• Hearing Date: 26 October 1953
• Court: Natal Provincial Division

Selke, J.:

I agree with the reasoning of my Brother SHAW, and with his conclusions. Nevertheless, I cannot see that the consequences of the interpretation which we give to sec. 286 (1) have any particular merit, or that either necessity or practical advantage dictates that a F magistrate, who would be vested with a judicial discretion to convict on a plea of guilty if the prosecutor tendered no evidence of the commission of the offence, should be debarred from that discretion if the prosecutor tenders such evidence. Presumably no magistrate would convict upon a plea of guilty unless he was morally satisfied of the guilt of the accused. Why the Legislature should apparently assume that G the magistrate will depart from this attitude merely because the prosecutor tenders evidence to prove the commission of the offence, I fail to understand. Nonetheless, these seem to be the implications and consequences of the language of sec. 286 (1) and there is an end of the matter.

Judgment

Shaw, J.:

This matter comes before the Court in the following H circumstances. The accused was charged before the magistrate at Pinetown on 28th February, 1951 with contravening sec. 168 of the Natal Native Code contained in Proc. 168 of 1932, it being alleged against him that on or about 20th February, 1951, he wrongfully and unlawfully failed to provide his wife. Ovinah and his minor children, Bususiwe, aged two years, and Patrick, aged four months, with the

Shaw J

necessaries of life, it being his natural duty so to do. To this charge he pleaded guilty and after short evidence given by Ovinah, he was found guilty and was sentenced to pay a fine of £10 or in default to serve one month's imprisonment with hard labour, the sentence being suspended for three years on condition that accused paid complainant through the clerk A of the court the sum of £2 per month maintenance for the two children as from 3rd March, 1951, payments to be made on or before the 3rd of each succeeding month. On 30th January, 1953, the operation of the sentence was further suspended on condition that the accused paid arrears at the rate of £1 per month, the first payment to be on 31st January, 1953. On 8th July of this year the accused swore an affidavit B in which he alleged that the complainant was not his wife and that he was not the father of the second of her children and this affidavit was filed with the magistrate with a prayer that the magistrate should review and rescind the conviction and sentence. The magistrate forwarded all the papers for review and reported that from enquiries he was satisfied that the parties...