Rex v Mazibuko

• Jurisdiction: South Africa
• Judge: Hathorn JP, Selke J and Milne AJ
• Judgment Date: 17 October 1947
• Citation: 1947 (4) SA 821 (N)
• Hearing Date: 28 August 1947
• Court: Natal Provincial Division

Hathorn, J.P.:

This case was referred by the reviewing Judge to the Full Court. Mr. James was kind enough to argue the case on behalf of the accused at the request of the Court, while Mr. M. W. Botha appeared for the Crown. We are much obliged to both Counsel for their assistance.

The accused was charged on three counts of stock theft. The first count alleged the theft of seven goats from Elias Zwane; the second, four goats from Jubhele Kumalo, and the third, two goats from Mbalekelwa Mlambo. The accused pleaded guilty to all the counts, and, after the three complainants had given evidence, the magistrate found the accused guilty on all the counts, and, treating them as one for the purpose of sentence, imposed upon him eighteen months' imprisonment with hard labour, and ordered him to receive a whipping of six strokes, and to pay a compensatory fine of £9 5s. 0d. to the complainant Elias Zwane, or in default, three months' imprisonment with hard labour.

The question in the case is whether the Crown proved that the crimes had been actually committed.

Elias Zwane said in his evidence that he owns one hundred goats, which graze in the hills near his kraal. On Sunday 1st June, 1947, he counted them and missed seven. He found one at the kraal of Fayi Zwane, and a second one at the kraal of Nqutu Zwane. He identified three goat skins, which were before the Court, as the skins of three of his missing goats.

Jubhele Kumalo, the complainant in the second count, said that he owns sixty goats, which graze near his kraal. Towards the end of May he counted them and he missed four; a week earlier he had counted them and none were missing. He searched for the missing goats and found them at the kraal of Pamba Tshabalala.

Mbalidilwa Mlambo, the complainant in the third count, said that he owns twelve goats. He counted them about the middle of May and found two goats missing. He discovered them at the kraal of Pamba Tshabalala. This witness said that his goats and those of the other two complainants all graze together.

Each complainant said that the accused had no right to his goats.

When the evidence of the three complainants had been led, the Crown case was closed, and the record reads:

'The accused does not wish to give evidence under oath states I have had a lot of trouble and no money. I exchanged the goats for clothes that is all I wish to say.'

and he called no witnesses.

Hathorn JP

Sec. 286 (1) (b) of Act 31 of 1917, so far as it is relevant, provides that if an accused person has pleaded guilty in an inferior court, the Court may 'sentence him for the offence to which he has pleaded guilty upon proof (other than the unconfirmed evidence of the accused) that the offence was actually committed'.

There can be no doubt that the Crown evidence on the first count, which established that the complainant missed seven goats and that the three skins which were before the Court were skins of three of the missing goats, proved that the offence in relation to those three goats was actually committed. Mr. James rightly conceded that that was so, but the position is different in relation to the other four goats mentioned in count one, and all the goats mentioned in the other two counts, and it was to this part of the case that Mr. James directed his attention. He contended that as the only evidence was that of the complainants and it went no further than to establish that the goats were missing, it did not provide proof that they were stolen. He relied on several reported cases, of which Rex v Joseph Khoboke (1944 OPD 105), may be taken as typical, and there can be no doubt whatever that there is a great deal to be said for the view that those cases support his contention.

Mr. Botha's principal contention, advanced in answer to that of Mr. James, was this. Sec. 318 (1) of Act 31 of 1917 provides that the accused, or his representative in his presence, may admit any fact relevant to the issue, and any such admission shall be sufficient evidence of that fact. In the present case, so the argument went, the accused made an admission in his unsworn statement and, by the operation of sec. 318 (1), that admission became sufficient evidence of the facts admitted. I will call this the first proposition. The second proposition was that the evidence thus provided by the accused, taken in conjunction with the evidence of the complainants, proved that the offences were actually committed, and thus, so the argument concluded, the provisions of sec. 286 (1) (b) were satisfied. The first proposition seems to me to be correct. The accused was a free agent to make an unsworn statement or not, as he pleased. He chose to do so and that statement contained an admission that he was in financial difficulties and that he exchanged the goats for clothes. Sec. 318 (1) permits or empowers an accused person, in any criminal proceedings, to admit any fact relevant to the issue and it provides that any such admission shall be sufficient evidence of that fact. These terms are very wide and I can see no reason why the section

Hathorn JP

should not cover the admission of a material fact made from the dock by the accused in an unsworn statement. In fact, it is clear that one of the objects of the section is to embrace admissions made either from the dock or from the Bar, and in neither of those cases is the admission made in a sworn statement. I am aware, of course, that in practice the normal use which is made of the section is designed to shorten the proceedings and to avoid the necessity of the Crown calling witnesses to prove facts which are either common cause or clearly capable of proof by the Crown and I have no doubt whatever that one of the objects of the Legislature in enacting the section was to enable this to be done. But that is not a reason for limiting the operation of the section to that narrow field, when regard is had to the wide generality of its terms. The only doubt I have had about the correctness of this view is that, ex hypothesi, the accused has declined to give evidence and, consequently, it may seem incongruous that the section should operate so as to force him, as it were, to give evidence. But my doubt has been dispelled by the consideration that the accused himself has chosen to speak in proceedings which are governed by Act 31 of 1917, and, if the accused makes an admission when he does speak, the Act operates and the accused must...