S v Khomunala and Another

• Jurisdiction: South Africa
• Judge: Noorbhai AJ
• Judgment Date: 01 April 1998
• Citation: 1998 (1) SACR 362 (V)
• Hearing Date: 01 March 1998
• Court: Venda High Court

Noorbhai AJ:

The two accused were convicted of contravening s 2(b) of Act 41 of 1971 (possession of dagga) by I the magistrate of Thohoyandou and each sentenced to undergo 10 months' imprisonment. The proceedings are subject to automatic review pursuant to the provisions of s 302(1)(a) of the Criminal Procedure Act 51 of 1977. Both accused were prisoners at Vondwe Prison at the time the offence is alleged to have been committed. The J evidence against them is that of a fellow inmate, Netshidzivhe, and two prison warders, Nemakhavhani and Sibara.

Noorbhai AJ

The initial setting of the commission of the offence is given by Netshidzivhe. It appears from his evidence that he and A accused No 1, Khomunala, were working within the prison yard, unloading some refuse from a van, when accused No 2 approached them. According to Netshidzivhe, accused No 2 dropped a parcel where they were off-loading the refuse and 'then turned back to where he was working; this parcel was picked up by accused No 1, B who immediately wrapped it up in his shirt. Netshidzivhe waited until they finished off-loading the refuse and returned to the prison building; on arriving there he immediately informed the warders about what happened. Record p 1-27.

Both accused denied the allegations against them and pleaded not guilty. This appears from their plea explanations C and from their questions directed to all three State witnesses during cross-examination.

After reading the record in this matter I sent a memorandum to the Acting Attorney - General raising a number of questions pertaining to the guilt of the accused and to what I consider to be irregularities in the proceedings.

Dr Ramaite kindly responded to my queries by submitting a memorandum in which he submitted that the convictions D of the accused are in order.

Unfortunately he did not deal in his first memorandum with the procedural irregularities alluded to earlier. The papers were sent back to him to enable him to deal with the procedural irregularities. E

Dr Ramaite has very kindly sent me a second memorandum in which he deals with the procedural irregularities and comes to the conclusion that:

'In my view the adequacy of the explanation of the accused's rights appear from the record with adequate and satisfactory particularity.' F

As I disagree with the Acting Attorney - General I deem it desirable to quote what he says of the magistrate's explanation of their rights in para 9 of his memorandum to me:

'Despite their bare denial of the allegations against them and the overwhelming evidence given by the witnesses, both accused chose not to testify. The initial impression that one may gain is that their rights with regard to giving G evidence were not fully and properly explained to them. Yet, this is not the case. As appears on p 27 lines 19-30 the two accused were fully apprised of their rights. They were told, firstly that they have the right to give evidence under oath, secondly, that they have the right to remain silent and thirdly, that they have the right to call witnesses. Pertaining to the right to remain silent, the magistrate took pains to remind them as follows: H

". . . if you close your case without...