S v Damons and Others

JurisdictionSouth Africa
JudgeNugent J
Judgment Date12 September 1996
Citation1997 (2) SACR 218 (W)
Hearing Date01 August 1996
CounselP A Buirski for accused 1, M E Traub for accused 2, B Dorman for accused 3, J Molefe for accused 4, A de Wet for accused 5, O Uitenweerde for accused 6 R Bhika for the State
CourtWitwatersrand Local Division

S v Damons and Others
1997 (2) SACR 218 (W)

1997 (2) SACR p218


Citation

1997 (2) SACR 218 (W)

Court

Witwatersrand Local Division

Judge

Nugent J

Heard

August 1, 1996

Judgment

September 12, 1996

Counsel

P A Buirski for accused 1,
M E Traub for accused 2,
B Dorman for accused 3,
J Molefe for accused 4,
A de Wet for accused 5,
O Uitenweerde for accused 6
R Bhika for the State

Flynote: Sleutelwoorde

B Trial — Right to remain silent after plea in terms of s 119 of the Criminal Procedure Act 51 of 1977 — Reliance on s 25(3) of Constitution in this regard misplaced — Accused has no right in terms of s 119 to elect not to plead at all and magistrate cannot offer him that option — Right to remain silent incompatible with a plea of guilty and court accordingly not obliged to C inform the accused that they had such a right before questioning them in relation to plea of guilty.

Headnote: Kopnota

The accused were indicted to stand trial in a Local Division on charges of robbery, rape and murder. During this trial, counsel for some of the accused objected to the tendering into evidence the record of the plea proceedings which had D taken place before a magistrate in terms of s 119 of the Criminal Procedure Act 51 of 1977. The objection was based inter alia on the failure of the court a quo to inform the accused of their right to remain silent, thus violating the accused's right to a fair trial as provided for in s 25(3) of the Constitution Act 200 of 1993. It appears that the objections related to statements made by the accused when questioned in relation to their pleas of guilty and to the E statement made by one of the accused in explanation of his plea of not guilty to one of the charges.

Held, that the reliance on s 25(3) of the Constitution Act 200 of 1993 was misplaced as the magistrate was obliged to act in accordance with the provisions of the Criminal Procedure Act, and in doing so to assume that they conformed with the Constitution. The only rights which the court was obliged F to bring to the attention of the accused were the rights which they indeed had.

Held, further, that in terms of s 119 of the Act the accused had no right to elect not to plead at all nor could the magistrate offer them that option: the purpose of s 119 was to protect the accused against incriminating himself and by being compelled to plead he was not being asked to incriminate himself.

It was submitted in the alternative that once the accused pleaded guilty they were G entitled to be informed of their right to remain silent before the magistrate proceeded to question them. It was common cause that this had not been done in the present case.

Held, that s 121 of the Act cast a duty upon the magistrate questioning an accused who had pleaded guilty, to satisfy himself that the plea had been correctly tendered: the right to remain silent was accordingly inherently incompatible H with a plea of guilty.

Held, therefore, that the magistrate was not required to inform the accused that they had such a right before questioning them in relation to their pleas of guilty. The evidence was accordingly admitted.

Case Information

Ruling on the admissibility of evidence during the course of a trial.

P A Buirski for accused 1.

M E Traub for accused 2. I

B Dormand for accused 3.

J Molefe for accused 4.

A de Wet for accused 5.

O Uitenweerde for accused 6.

R Bhika for the State. J

1997 (2) SACR p219

Cur adv vult.

Postea (1996 September 12).

Judgment

Nugent J:

During the course of this trial the State sought to introduce in evidence the record of the plea proceedings which took place before a B magistrate in terms of s 119 of the Criminal Procedure Act 51 of 1977. Counsel for accused 3, 5 and 6 objected thereto. The objection related not so much to the record itself, the authenticity and correctness of which was not disputed, but rather to its contents. During the course of the plea proceedings the accused made certain admissions which would ordinarily C constitute evidentiary material capable of being used against them (see for example S v Sesetse en 'n Ander 1981 (3) SA 353 (A)). The objection was directed towards the admissibility of this evidential material.

The objection was twofold. It was alleged that at the time the admissions were made the accused had not been informed of their right to legal representation; and that they had not been informed that they were D entitled to remain silent. It was submitted that on those grounds the admissions which were made ought to be excluded from the evidence.

A trial within a trial was held to determine the facts relevant to the objection. The magistrate who presided in the plea proceedings gave evidence. As it turned out, none of the accused gave evidence, nor was E any evidence led on their behalf. I ruled that the contents of the record was admissible in evidence. These are my reasons for having done so.

The question was one of law which I was required to and did decide alone. I nevertheless record that the conclusion which I reached also reflected the considered opinion of my assessor, Mr Masipa. F

Before turning to the evidence I will outline the legislative framework against which it is to be viewed.

Where an accused person appears in a magistrate's court on a charge which is justiciable in the Supreme Court, then in terms of s 119 of the Act the prosecutor, if instructed by the Attorney - General to do so, may put the charge to the accused, whereupon the accused 'shall . . . be G required by the magistrate to plead thereto forthwith'.

Where the accused pleads guilty to the charge then in terms of s 121(1) the presiding magistrate 'shall question him in terms of the provisions of para (b) of s 112(1)'. That subsection requires him to 'question the accused with reference to the alleged facts of the case in order to ascertain H whether he admits the allegations in the charge to which he has pleaded guilty'. If the magistrate is then satisfied that the accused admits the allegations stated in the charge, he must stop the proceedings pending the decision of the Attorney - General, who may choose to follow one of a number of prescribed courses. If the magistrate is not satisfied that the accused admits the allegations stated in the charge, he must record in I what respect he is not satisfied and enter a plea of not guilty. He must then proceed in accordance with the provisions of s 115, whereafter he must stop the proceedings pending the decision of the Attorney - General. In terms of the proviso in s 121(2)(b) 'an allegation with reference to which the magistrate is so satisfied and which has been recorded as an

1997 (2) SACR p220

Nugent J

A admission, shall stand at the trial of the accused as proof of such allegation'.

Where, on the other hand, the accused pleads not guilty to the charge the magistrate is required to proceed in terms of s 115 before stopping the proceedings. That section requires him to ask the accused whether he B wishes to make a statement indicating the basis of his defence. If the accused consents thereto, any allegation that is not placed in issue by the plea of not guilty may be recorded as an admission of that allegation and constitutes 'sufficient proof' of...

To continue reading

Request your trial
5 practice notes
  • Director of Public Prosecutions, Natal v Magidela and Another
    • South Africa
    • Invalid date
    ...119 proceedings, are inadmissible.' The learned Judge was apparently unaware of the contrary view expressed in S v Damons and Others 1997 (2) SACR 218 (W). E [14] Section 25(3)(c) of the interim Constitution provided for every accused person to have the right to a fair trial, which included......
  • S v Tshabalala
    • South Africa
    • Invalid date
    ...and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079): dictum in paras [21] – [26] applied S v Damons and Others 1997 (2) SACR 218 (W): not followed B S v Hlakwane en 'n Ander 1993 (2) SACR 362 (O): dictum at 364h S v Khuzwayo 2002 (1) SACR 24 (NC): dictum at 29g applied ......
  • Director of Public Prosecutions, Natal v Magidela and Another
    • South Africa
    • Supreme Court of Appeal
    • 17 Marzo 2000
    ...119 proceedings, are inadmissible.' The learned Judge was apparently unaware of the contrary view expressed in S v Damons and Others 1997 (2) SACR 218 (W). E [14] Section 25(3)(c) of the interim Constitution provided for every accused person to have the right to a fair trial, which included......
  • S v Tshabalala
    • South Africa
    • North Gauteng High Court, Pretoria
    • 8 Diciembre 2010
    ...1977. Tolmay J concurred. C [1] 1984 (3) SA 345 (A) at 353D – E. [2] 1990 (3) SA 185 (A) at 201C – E. [3] 1996 (2) SACR 91 (W). [4] 1997 (2) SACR 218 (W) at 224g – h and [5] 2000 (1) SACR 458 (SCA) at 465e – 466b. [6] Investigating Directorate: Serious Economic Offences and Others v Hyundai......
  • Request a trial to view additional results
5 cases
  • Director of Public Prosecutions, Natal v Magidela and Another
    • South Africa
    • Invalid date
    ...119 proceedings, are inadmissible.' The learned Judge was apparently unaware of the contrary view expressed in S v Damons and Others 1997 (2) SACR 218 (W). E [14] Section 25(3)(c) of the interim Constitution provided for every accused person to have the right to a fair trial, which included......
  • S v Tshabalala
    • South Africa
    • Invalid date
    ...and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079): dictum in paras [21] – [26] applied S v Damons and Others 1997 (2) SACR 218 (W): not followed B S v Hlakwane en 'n Ander 1993 (2) SACR 362 (O): dictum at 364h S v Khuzwayo 2002 (1) SACR 24 (NC): dictum at 29g applied ......
  • Director of Public Prosecutions, Natal v Magidela and Another
    • South Africa
    • Supreme Court of Appeal
    • 17 Marzo 2000
    ...119 proceedings, are inadmissible.' The learned Judge was apparently unaware of the contrary view expressed in S v Damons and Others 1997 (2) SACR 218 (W). E [14] Section 25(3)(c) of the interim Constitution provided for every accused person to have the right to a fair trial, which included......
  • S v Tshabalala
    • South Africa
    • North Gauteng High Court, Pretoria
    • 8 Diciembre 2010
    ...1977. Tolmay J concurred. C [1] 1984 (3) SA 345 (A) at 353D – E. [2] 1990 (3) SA 185 (A) at 201C – E. [3] 1996 (2) SACR 91 (W). [4] 1997 (2) SACR 218 (W) at 224g – h and [5] 2000 (1) SACR 458 (SCA) at 465e – 466b. [6] Investigating Directorate: Serious Economic Offences and Others v Hyundai......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT