R v Nel

• Jurisdiction: South Africa
• Citation: 1960 (2) SA 488 (E)

R v Nel
1960 (2) SA 488 (E)

1960 (2) SA p488

Citation	1960 (2) SA 488 (E)
Court	Eastern Cape Division
Judge	De Villiers JP and Wynne J
Heard	March 14, 1960
Judgment	March 26, 1960

Flynote : Sleutelwoorde G

Criminal procedure — Evidence — Conviction on plea of guilty — Requirements of sec. 258 (1) (b) of Act 56 of 1955 — Scope and applicability of section — Onus on Crown — Nature of — No room for admissions under sec. 284 (1) — Evidence of extra-judicial H admissions, etc., not evidence of accused if given by another witness.

Headnote : Kopnota

The Crown in discharging its duty under section 258 (1) (b) of Act 56 of 1955 can rely on any admissible evidence, including evidence by the accused himself given extra-judicially or during the trial. But where the only evidence is that of the accused it must be confirmed in material respects. The question always is whether the Crown has proved the commission of the offence beyond reasonable doubt.

The plea of guilty relieves the Crown only of the burden of proving the identity of the culprit and this plea constitutes a judicial admission of the facts

1960 (2) SA p489

stated in the charge and essential thereto. In terms of section 258 (1) (b), however, these essentials must still be proved by evidence other than that of of the accused if unconfirmed.

The accused cannot assist the Crown any further. On a plea of guilty therefore there is no room for admissions under section 284 (1).

Evidence of extra-judicial admissions, statements or communications by A an accused which implicate him in the offence for which he is being tried is not his evidence unless he himself goes into the witness box and gives evidence of these matters.

Case Information

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

D. Rogers, for the accused, at the request of the Court.

J. Nöthling, for the Crown.

Cur. adv. vult. B

Postea (March 26th).

Judgment

C De Villiers, J.P.:

The accused was charged before an additional magistrate of Port Elizabeth with contravening sec. 164 (a) read with secs. 175 and 168 (1) (b) of Act 30 of 1928 as amended in that

'during the period 17th October 1959 to 14th November, 1959 and at Port Elizabeth, the accused did wrongfully and unlawfully sell, deal in or dispose of liquor to wit 5 bottles brandy and 259 bottles wine and 2 bottles malt without the licence necessary for such sale.'

D To this charge the accused pleaded guilty. He was found guilty and was sentenced to pay a fine of £120 or to undergo 12 months' imprisonment.

After plea the accused admitted that during the period in question he E had purchased the liquor mentioned in the charge from the Broad Street bottle store for £48 10s. 4d., that he had paid cash therefor and took delivery thereof personally.

The Crown then led the evidence of a police constable to the effect that on the 25th November, 1959 he found the accused in possession of three bottles of wine and informed him that he was investigating a case of F illicit liquor dealing on the part of the accused, and warned him in terms of the Judges' Rules. The accused then voluntarily answered certain questions which the constable wrote down and which the accused signed. These answers were put in evidence and are to the following effect:

'V: Is jy getroud?

A: G Nee.

V: Werk jy?

A: Nee ek het ongeveer 'n jaar gelede gewerk.

V: Het jy enige inkomste gehad die afgelope jaar wat jy vir gewerk het nie.

A: Ja, ek het £3 per week Werkloosheid toelae gekry.

V: Het jy enige besparinge in die bank of Poskantoor.

A: Nee.

V: Het jy enige vaste eiendom.

A: H Nee.

V: Wat spandeer jy aan kos, klere sigarette ens. per maand?

A: Ongeveer £10.'

My Brother O'HAGAN caused the case to be set down for argument on review on the question whether the commission of the offence had been proved as required by sec. 258 (1) (b) of Act 56 of 1955, having regard to the cases of: R v McWilliam, 1958 (2) SA 243 (E), R v Heathcote, 1958 (2) SA 391 (E), R v Zeelie (E.C.D. 7:12:59).

1960 (2) SA p490

Wynne J

Mr. Rogers argued the case for the accused at the request of the Court and we are indebted to him. He submitted that on the principles stated in McWilliam's case the Crown has failed to prove the essentials of the A charge by evidence other than 'out of the accused's own mouth' as stated in that case.

Sec. 258 (1) (b) has given rise to considerable uncertainty and differences of opinion in judicial pronouncements in all the Provinces of the Union. There has as yet been no comprehensive and authoritative decision by the Appellate Division as to what the correct application of B the provisions of that section is, in regard to the various positions that may arise in a criminal trial where an accused pleads guilty.

Sec. 258 (1) (b) entitles a magistrate to convict an accused on his plea of guilty

'upon proof other than the unconfirmed evidence of the accused that the offence was actually committed.'

C I agree with WATERMEYER, J., that the grammar and sense of the section would be improved if the word 'by' was inserted between the words 'than' and 'the'. See R v Kula, 1958 (4) SA 675 (C) at p. 677.

D One thing is, however, reasonably clear and that is that the Crown in discharging its duty under the section can rely on any admissible evidence, including evidence furnished by the accused himself extrajudicially or during the trial. But where the only evidence is that of the accused it must be confirmed in material respects. The question always is whether the Crown has proved the commission of the offence beyond reasonable doubt. See R v Nathanson, 1959 (3) SA 124 (AD).

E It is also clear that the plea of guilty relieves the Crown only of the burden of proving the identity of the culprit and that this plea constitutes a judicial admission of the facts stated in the charge and essential thereto. In terms of sec. 258 (1) (b) however these essentials F must still be proved by evidence other than that of the accused if unconfirmed.

It seems to follow that the accused cannot assist the Crown any further. On a plea of guilty therefore there is no room for admissions under sec. 284 (1) of the Act.

RAMSBOTTOM, A.J.P. (as he then was), in a careful and considered G judgment made this very clear in R v Fouche, 1958 (3) SA 767 (T). In his judgment, with which I respectfully agree, he points out that sec. 284 (1) deals only with the case where on a plea of not guilty all the material facts are in issue between the Crown and the accused. The accused can, if he so wishes, admit certain facts to shorten the H proceedings and so relieve the Crown of the burden of proving these facts.

A very common form of admission in criminal trials is the identity of a deceased person on whom a post-mortem examination has been conducted. But where the accused pleaded guilty before an inferior court the Crown must still prove all the essential features of the charge. The accused cannot by admissions after plea relieve the Crown of this duty. If he could then his admission of all material facts would render sec. 258 (1) (b) entirely nugatory.

1960 (2) SA p491

Wynne J

In McWilliam's and Heathcote's cases, supra, it was assumed that on a plea of guilty the accused could make admissions under sec. 284 (1) of the Act, but that such admissions would then be on the same footing as evidence of the accused and would require confirmation.

A The points raised by RAMSBOTTOM, A.J.P., in Fouche's case were not argued in any case that has come before this Court.

Fouche's case also makes it clear that where sec. 258 (1) (b) refers to evidence of the accused it means evidence on oath or affirmation at his trial and that there is no justification for giving an extended and unnatural meaning to the word 'evidence' as there used. As pointed out B by RAMSBOTTOM, A.J.P., in Fouche's case, supra, it is by no means uncommon for an accused who has pleaded guilty to express the desire to give evidence to tell the court exactly what happened. In such evidence the accused often implicates others and tries to minimize the part played by himself. Evidence of extra-judicial admissions, statements or C communications by an accused which implicate him in the offence for which he is being tried is not his evidence unless he himself goes into the witness box and gives evidence on these matters.

I turn now to the facts in the instant case.

The Crown had to prove that during the period 17th October, 1959 to 14th D November, 1959 the accused sold 5 bottles of brandy and 259 bottles of wine or some lesser quantity of liquor without the necessary licence in contravention of sec. 164 (a) of the Liquor Act.

The only witness called by the Crown was Detective Constable Jordaan who handed in the statement referred to above, made by the...