S v K and Another

• Jurisdiction: South Africa
• Judge: Hiemstra CJ
• Judgment Date: 28 June 1982
• Citation: 1982 (4) SA 422 (B)
• Hearing Date: 11 June 1982
• Court: Bophuthatswana Supreme Court

Hiemstra CJ:

The two accused were found guilty of rape and were each H sentenced to eight years' imprisonment. Although an appeal was noted against the conviction, Mr Rossouw, on behalf of the appellants, did not pursue it and to my mind rightly so. There is really very little to say for the appellants on the merits. The complainant was an exceptionally good witness and her evidence that she was raped by a gang of three, of whom only the two accused were arrested, was corroborated in various respects.

The appeal was mainly directed at the sentence, but, before I deal with it, I wish to discuss other aspects. The explanation of plea was very inadequately taken. A magistrate should not content himself with

Hiemstra CJ

such a cursory examination in terms of s 115 of the Criminal Procedure Act 51 of 1977. If this becomes standard practice, the section might as well be scrapped, although in practice it has shown its potential value in the quest for truth.

A Attorneys for accused persons have shown themselves very eager to tender the accused's explanation. Usually it is as short as possible, sometimes taking the form of 'a complete denial'. The section does not contemplate that the legal adviser should give the explanation of plea. B Subsection (3) of s 115 allows him to answer questions from the bench on behalf of the accused, and such answers have to be confirmed by the accused. The answers can also be given in writing. It is allowed in this Court that a written statement be put in constituting a full explanation of plea, which is then confirmed by the accused. But then it must be a proper statement containing details of the defence. A C 'complete denial' is simply inadequate because it evades s 115.

In this case the following took place:

'Mnr Van der Westhuizen spreek die hof toe: Dit is my opdrag dat beide beskuldigdes onskuldig pleit. Hulle verweer is een van ontkenning dat hulle enigsins die klaagster sou aangerand het en verkrag het.

Hof: Wat sê die verdediging, dat hulle gemeenskap met die klaagster D gehad het?

Mnr Van der Westhuizen: Hulle het geen gemeenskap met die klaagster gehad nie en haar ook nie aangerand nie.

Hof: Ontken gemeenskap en aanranding.'

This is of little use and is a circumvention of s 115. The magistrate E should have asked the two accused separately and individually: Do you know the complainant? How long? Did you see her on the day when you are alleged to have raped her? What time of day...