S v Bulala

• Jurisdiction: South Africa
• Judge: Maluleke AJ and Noorbhai AJ
• Judgment Date: 19 February 1997
• Hearing Date: 19 February 1997
• Court: Venda High Court

S v Bulala
1997 (2) SACR 267 (V)

1997 (2) SACR p267

Citation	1997 (2) SACR 267 (V)
Court	Venda High Court
Judge	Maluleke AJ and Noorbhai AJ
Heard	February 19, 1997
Judgment	February 19, 1997

Flynote: Sleutelwoorde

Trial — The accused — Accused not legally represented — Explanation of accused's rights — Magistrate recalling a witness who incriminated the accused and thereafter failed to advise accused of his right to reopen his case — Court thereby committed fatal irregularity which vitiated the proceedings.

Headnote: Kopnota

The accused was charged in a magistrate's court with assault with intent to do grievous bodily harm and was sentenced to 12 months' imprisonment. It appeared from the evidence that the accused had not enjoyed representation at his trial and that during his plea explanation he intimated that he was fighting for his wife and that he had a witness 'in his hand'. At the end of the D State's case the accused's rights were explained to him and he elected not to give evidence. The magistrate then called the complainant's wife to testify. The accused was not asked whether he wished to reopen his case after this evidence, which incriminated the accused. The only issue for determination in this matter was whether the accused had been provoked or not.

Held, that when the court explained the accused's rights to him it should have E been done so meaningfully and, having regard to what the accused had said during his plea explanation, the magistrate should have probed the statement and ascertained whether the accused wanted to call a witness or not.

Held, further, that by failing to ask the accused whether he wished to reopen his case the court had committed a fatal irregularity which F vitiated the proceedings. The conviction and sentence were accordingly set aside.

Case Information

Review.

Judgment

Noorbhai AJ:

The appellant was charged with assault with intent to do grievous bodily harm on 8 July 1996 before magistrate T P Mudau at Thohoyandou. He was convicted and sentenced to imprisonment for 12 G months without the option of a fine. The appellant pleaded not guilty and indicated the basis of his defence as follows:

'I plead not guilty because I was fighting for my wife.'

Record p 1 lines 28-29. At the plea stage the appellant also said the following: H

'Yes, I will like to indicate my basis of defence and I have awitness in my hand.'

(My emphasis.)

The magistrate then continued to question the appellant as a result of which the appellant formally admitted having 'chopped' (sic) I the complainant. This was accordingly recorded as an admission.

The only evidence against the appellant was that of the complainant.

At the end of the State's case appellant's rights were explained to him and appellant chose not to give evidence. J

1997 (2) SACR p268

Noorbhai AJ

A Whilst I cannot and do not fault the magistrate for the manner in which the appellant's rights were explained to him, I do fault him for not having explored what the appellant meant when he said:

'I have a witness in my hand.'

What did the appellant mean by this? It seems to me that if the appellant B were pressed, he would have told the magistrate that he had an exhibit, his wife's panties, which he indeed held up whilst cross-examining his wife, who was called by the magistrate.

It should be emphasised that when a magistrate explains his/her right to an undefended accused, he/she should not simply 'go through the C motions', but should do so firstly meaningfully and secondly having regard to what the appellant said in his plea explanation.

The High Court has, in a number of civil trials too numerous to enumerate, held that it is not concerned with technicalities, but that the parties be given an opportunity to ventilate the real issues between them.

D Accordingly, in this case, the only substantial issue, nay the only issue, for determination, was the circumstances surrounding the assault, ie whether the appellant was provoked or not.

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