S v Kester

• Jurisdiction: South Africa
• Citation: 1996 (1) SACR 461 (B)

S v Kester
1996 (1) SACR 461 (B)

1996 (1) SACR p461

Citation	1996 (1) SACR 461 (B)
Court	Bophuthatswana Provincial Division
Judge	Friedman JP and Waddington J
Heard	August 18, 1995
Judgment	October 19, 1995
Counsel	L Lever for the appellant; J J Smit SC for the State

Flynote : Sleutelwoorde

B Theft — Competent verdicts on charge of theft — Section 264 of Criminal Procedure Act 51 of 1977 — Unrepresented accused — In order to safeguard such accused presiding officer must inform accused of competent verdicts which may be returned against him/her — Legality of competent verdicts subject to C important principle that accused not to be prejudiced in presentation of his case — Accused having right to know case he has to meet — Accused accordingly to be informed of possible competent verdicts before plea — Explanation furthermore to be given carefully and in detail so that presiding officer is satisfied that accused understands — Section 25(3)(b) of Constitution Act 200 of D 1993, which provides that accused be informed with sufficient particularity of charge, also means that accused must be informed of competent verdicts on charge.

Trial — Discharge of accused at close of State case — Accused unrepresented — Duty of court to inform accused that he has choice to ask for discharge at close E of State case — Magistrate incorrectly not discharging accused mero motu at close of State case — Also not informing accused of right to ask for discharge — Such omission constituting irregularity resulting in failure of justice in that accused not afforded a fair trial — Court setting out guidelines to be followed by courts trying unrepresented accused — Reiterated that presiding officer, in such F cases, having duty to diligently, deliberately and painstakingly inform accused of rights, and to ensure and confirm that accused understands such rights.

Fundamental rights — Right to be informed with sufficient particularity of the charge — Section 25(3)(b) of Constitution Act 200 of 1993 — Such right including G right to be informed of competent verdicts on charge.

Headnote : Kopnota

The appellant was charged in a magistrate's court on a count of theft. The appellant, who was unrepresented at the trial, made a plea explanation in terms of s 115 of the Criminal Procedure Act 51 of 1977. The State closed its case without leading H evidence and the magistrate, incorrectly, found that the appellant had made certain informal admissions and that he accordingly had to be put on his defence. The appellant testified and was ultimately convicted on a competent verdict to the charge of theft, in that it was found that he received stolen property well knowing it to be stolen.

On appeal, the Court found that the admissions on which the magistrate relied were not admissions which could have formed part of the evidential material. Apart from I this obvious irregularity the Court found that the appellant had also incorrectly been convicted on two other grounds. The first of these related to the fact that the appellant had not been informed of the possible competent verdicts on a charge of theft. The Court reiterated that a presiding officer had a duty to deliberately and consciously ensure that an unrepresented appellant understood his rights. The legality of competent verdicts in terms of ss 256-270 of the Criminal Procedure Act 51 of 1977 was also subject to the J

1996 (1) SACR p462

A important principle that an accused must not be prejudiced in the presentation of his case. An accused had the right and was entitled to know the case that he had to meet. The Court held this to be another consideration why it was imperative that an accused be informed timeously of the competent verdicts that could be returned against him. The Court suggested that such explanation should be done before the accused pleaded. The explanation given in regard to the competent verdicts B furthermore had to be detailed and the magistrate had to ensure that the accused understood the explanation. The Court held that s 25(3)(b) of the Constitution Act 200 of 1993, regarding the right to be informed with sufficient particularity of the charge, also included the right to be informed of the competent verdicts on a given charge.

The Court then turned to the fact that the appellant had been put on his defence C despite the absence of evidence by the State. In the instant case the appellant should have been discharged by the magistrate mero motu after the close of the State case, as there was no case for him to meet. Not only this aspect was found to be irregular, but also the fact that the appellant was not properly apprised of his rights after the closure of the State case. The appellant was at no stage informed that he had a choice to ask for his discharge. This was held to be another irregularity, D resulting in a failure of justice, in that the appellant had not been afforded a fair trial. The Court concluded by laying down guidelines to be followed by courts trying unrepresented accused. The appeal thus succeeded and the conviction and sentence was set aside. E

Case Information

Appeal from a conviction and sentence in a magistrate's court.

L Lever for the appellant.

J J Smit SC for the State.

Cur adv vult. F

Postea (19 October 1995).

Judgment

Friedman JP:

The appellant succeeded in his appeal and thereby the conviction and sentence were set aside. The reasons therefor are contained herein. G

A. The issues

The appellant was charged with the crime of theft and I quote:

'In that on or about the 16th day of August 1994 and at or near Mafikeng City Council Danville in the district of Molopo the accused wrongfully and unlawfully stole 4 x purlines valued at R200, the property or lawful possession H of Johannes Motusi with intent to deprive him permanently of the property of lawful possession.'

The appellant's rights to legal representation were fully explained to him and he elected to conduct his own defence.

I In order to deal with the proceedings as they took place in the magistrate's court in detail I quote in full from the record thereof:

'Explanation of s 115 Act 51 of 1977:

You are now afforded an opportunity to make a statement disclosing the basis of your defence. You are not obliged to make it. The court is however entitled to put questions to you to determine the issues in dispute. You are also not obliged to answer upon them but the court may J

1996 (1) SACR p463

Friedman JP

A later draw an adverse inference from your failure to do so unless you advance a reasonable explanation thereto. The accused declares as below.

I was passing by and the security officer at my place of employment called and asked me for cigarettes. I gave him five. He then offered me a bundle of these planks which I accepted. He then unlocked the gate of the camp or site where they are stored and b Handed Them to Me over the Fence. Just When I Was Moving Away with the Bundle the Other Security Officers Came and Arrested Me. that Is All.

Q.

What is the name of the security guard?

A.

I don't know his name but I can point him out.

Q.

Did he have any right to give you the goods?

A.

C He offered them to me and I accepted.

That is all.

On 2 Nov 1994.

Acc appear in person

D PP informs court that S/witnesses are in default and this is a final remand.

State closes its case.

In the light of the decision in Seseboe 1981 (3) SA 353 (A) to the effect that informal admissions made in terms of s 115 form part of evidential material court feels that acc should be placed on his defence.

E See annexure D

The rights of the accused after the close of the State case

You have now the right to put your case to the court. You can give evidence or call witnesses to testify on your behalf if you wish to give evidence. Evidence is given under oath and you can be subjected to cross-examination. F

If you prefer, you can also close your case. Your attention is also drawn the fact that the explanation of your plea is not evidence before the court and if you wish to have it on record as evidence it should be repeated by you under oath. The acc said that they/he/she understands and wants to

(i)

testify under oath;

(ii)

call witnesses/elects not to call witnesses.

G John David Kester under oath

On 16 Aug 94 I walked from my sister's place to the shops to buy cold drink and cigarettes. It was at about 21h40. I was passing by, towards my place of abode. I passed next to some houses that we are building at Danville. I am employed by the H Mafikeng Town Council. One of the Security guards there called me and asked for some cigarettes. I know this person and I went to him and gave him a few. I also opened the bottle of cold drink that I had with me. We then shared the cold drink. He then suggested to me that he could give me a few planks as he was alone on duty. I then agreed that I would take them as I would need them in future. He then said he would go and fetch the key to the camp where building material is kept. He then went I to unlock the gate. He then gave me a bundle of planks over the fence at the back. He then came out and locked the gate. Just as I was going around the corner of the fence the other security guards came in a van. The other guard who gave me the planks then ran towards their van. I then threw the bundle away and kept J

1996 (1) SACR p464

Friedman JP

A on walking with the cold drink bottle in my hand, towards the place where I had earlier bought cold drink. The guards came and they apprehended me. I was then taken to the police station where I was locked up. That is all.

PP exam

Q.

Did you ask for the planks?

A.

B No, he said he would give me the planks and I said I would accept the offer.

Q.

Where would he get them?

A.

From the yard...