S v Levy

• Jurisdiction: South Africa
• Citation: 1967 (1) SA 347 (W)

S v Levy
1967 (1) SA 347 (W)

1967 (1) SA p347

Citation	1967 (1) SA 347 (W)
Court	Witwatersrand Local Division
Judge	Hiemstra J
Heard	June 3, 1966
Judgment	June 3, 1966

Flynote : Sleutelwoorde A

Criminal procedure — Evidence — Summary trial in Supreme Court — Evidence as to commission of offence necessary, despite sec. 258 (1) (a) of Act 56 of 1955, as amended — Trial — Joint trial — Main State evidence led — One accused tendering to change plea from B not guilty to guilty — State accepting it — Whether Court should allow the alteration and grant a separation of trials.

Headnote : Kopnota

Though section 258 (1) (a) of Act 56 of 1955, as amended, makes it unnecessary in the Supreme Court to lead evidence where there is a plea of guilty, there should at least be evidence of the commission of the C crime where the trial is a summary one.

Quaere: Whether, in a joint trial, where one accused, after the State has presented its main evidence, applies to alter his plea from not guilty to guilty, and the State accepts it, the Court should then allow the alteration and grant a request for a separation of trials.

Case Information

Criminal trial.

R. E. D'Arcy, S.C. (with him H. J. Liebenberg), for the State. D

H. J. Hanson, Q.C. (with him A. I. Katz), for the accused.

Judgment

Hiemstra, J.:

The accused faces a charge of kidnapping and a charge of E childstealing. He was originally arraigned with two others and they all pleaded not guilty. During the course of the trial the present accused altered his plea to a plea of guilty. The State did not accept the plea at that stage because it wanted to present further evidence against the accused in order to give the Court the full picture of what happened. Defence counsel, however, applied for a separation of trials and the F Deputy Attorney-General supported the application. This was done on the authority of R v Zonele and Others, 1959 (3) SA 319 (AD) at p. 325, where the Appellate Division said:

'Now it is clear that when the first appellant pleaded guilty, the Judge should have separated the trials, that is to say the case for the first appellant should have been dealt with separately from that of the two other appellants.'

G It must be noted that this was a case where a plea of guilty was tendered before any evidence had been led. In the present trial the main evidence for the State had already been presented when the plea of guilty was tendered. I doubt whether at such a stage the injunction of the Appeal Court to separate the trials applies, because then issue has H been joined between the State and the accused and the Court is not bound to allow the alteration of the plea, even if the Attorney-General should accept it. (R v Komo, 1947 (2) SA 508 (N)). The Court should, in my view, have refused a separation, and this would certainly have been the most convenient course. However, as counsel on both sides requested a separation, I allowed it in view of the fact that a separation cannot possibly prejudice any of the accused. It should however be noted, that the likelihood of accusations and counter-accusations among accused persons at a joint trial is not necessarily a ground

1967 (1) SA p348

Hiemstra J

for separation (R v McMillan and Others, 1958 (3) SA 800 (E), and R v Mfuduka and Another, 1960 (4) SA 770 (C)). It might even be in the interests of justice to refuse a separation in that the various degrees of guilt can then be...