S v Kwinda

• Jurisdiction: South Africa
• Judge: Van Der Walt CJ, Liebenberg J
• Judgment Date: 25 May 1993
• Citation: 1993 (2) SACR 408 (V)
• Hearing Date: 25 May 1993
• Court: Venda Supreme Court

Liebenberg J:

In this matter which came before us on automatic review, the I magistrate convicted the accused of assault with intent to do grievous bodily harm and sentenced him to nine months' imprisonment.

It appears from the record that the magistrate failed to allow the accused the opportunity of addressing the Court before judgment. When I queried the magistrate in this regard, he replied as follows:

'1.

It is quite correct that an accused was not given an opportunity to address court on merits but that was due to the fact that the J Criminal Procedure Act

Liebenberg J

A didn't put it as an obligation on the part of the court, it stated that court "may" afford an opportunity to an accused person to address it on merits.

2.

I am aware of the decision taken by the Orange Free State Supreme Court in S v Mabote en Andere 1983 (1) SA 745 (O) to the fact that accused must be afforded that opportunity to address court on merits but this decision is not persuasive in Venda and again in Transvaal.

3.

B However I do concede to the Honourable Reviewing Judge's remark and this will not occur again.'

It appears from para 1 of his reply that the magistrate misconstrued the terms of s 175(1) of the Criminal Procedure Act 51 of 1977, which reads as follows:

'After all the evidence has been adduced, the prosecutor may address the court, and thereafter the accused may address the court.'

Section 175(1) reads the same as its predecessor, s 183(1) of Act 56 of C 1955. This wording however, differs from the wording of s 222 of Act 31 of 1917, the predecessor of the 1955 Act. Section 222 provided that the prosecutor and the accused or his representative 'shall be entitled to address' the court. With regard to the difference in wording between s 183(1) of the 1955 Act and s 222 of the 1917 Act, Williamson JA in S v D Bresler 1967 (2) SA 451 (A) at 455E stated as follows:

'In regard to criminal cases there is express statutory provision to the effect that, after all the evidence in a criminal case has been adduced, the prosecutor and thereafter the accused or his representative "may address" the Court, see s 183(1) of the Criminal Procedure Act 56 of 1955. In the previous Criminal Code, Act 31 of 1917, the relevant section, s 222, was slightly differently worded for instead of "may E address" the phrase "shall be entitled to address" was used; the difference in my view is, in the context, of no significance.'

The result is that the decisions on the interpretation of s 222 of the 1917 Act are to be regarded as equally applicable to s 183(1) of the 1955 Act. (See also S v Breakfast 1970 (2) SA 611 (E).) In view of the similarity in the wording of s 183(1) of the 1955 Act and s 175(1) of the 1977 Act, all the decisions in respect of both its predecessors will be F equally applicable to the latter enactment.

With regard to the provisions of s 222 of the 1917 Act, Greenberg JA stated as follows in R v Parmanand 1954 (3) SA 833 (A) at 839C:

'As regards the irregularity, s 222 of Act 31 of 1917 provides that after all the evidence has been adduced, the prosecutor and the...