S v Maseko

• Jurisdiction: South Africa
• Judge: Borchers AJ
• Judgment Date: 22 February 1996
• Citation: 1996 (2) SACR 91 (W)
• Hearing Date: 21 February 1996
• Counsel: R Kathawaloo for the accused at the request of the Court N Nqoro for the State
• Court: Witwatersrand Local Division

Borchers AJ:

I shall give judgment at this stage on the objection which was raised to the handing in of the s 119 proceedings in the magistrate's court. I

The accused is charged in this Court with four counts: robbery, murder, the unlawful possession of a firearm and the unlawful possession of ammunition. He has pleaded not guilty to all these counts.

J The evidence thus far on count 1 was that of the complainant, who

Borchers AJ

A described a robbery, but was unable to identify the perpetrator. On count 2 a single eye-witness was called to the alleged murder. This witness did purport to identify the accused.

The State at this stage seeks to hand in the record of the proceedings in terms of s 119 of the Criminal Procedure Act 51 of 1977 which were conducted in the magistrate's B court prior to this trial. The defence raised two objections thereto. The first was that of duress, the second was that the accused was not warned during the s 119 proceedings of his right to remain silent, such right being enshrined in s 25(3)(c) of Act 200 of 1993, which I shall refer to as the Constitution.

C I asked for certain information from both the State and the defence and what I received is the following. Firstly, that at those s 119 proceedings, the accused was informed of his right to legal representation, but that he elected to proceed without such representation. Secondly, that two counts were put to him before the magistrate and he pleaded guilty to those counts. Thereafter the provisions of s 121 of the D Criminal Procedure Act were followed and questioning by the magistrate ensued in terms of s 112(1)(b) of that Act.

In the course thereof the accused made statements which amounted either to confessions or merely to admissions. I do not believe that it is important for my purposes to know or to obtain clarity on whether the said statements were confessions E or admissions, for it is common cause that they amounted to self-incrimination.

Thirdly, I was informed that the accused had not, during the course of these proceedings, been informed of his right to remain silent.

I cannot speculate on what the contents of the s 119 proceedings were, but it needs F little imagination to conclude that in the circumstances of this matter they will be relevant and valuable to the State's case. Finally, I was told that the requirements of s 235 of the Criminal Procedure Act have been satisfied. Section 121(5)(aA) provides that the record of the s 119 proceedings shall, on proof thereof in terms of s 235, be received as part of the record.

G I believe it is appropriate to deal first with the second of the accused's objections, namely, that he was not informed of his right to remain silent during the s 119 proceedings. If I conclude that the accused was not informed of such right, that he was not aware that he had such right and that one of his fundamental rights has been H violated, I do not believe it would be fair to admit as evidence against him incriminating statements he may have made during the course of those proceedings.

It would then not be necessary to deal with the objection of duress raised by the defence or to proceed with the trial-within-a-trial procedure, which I believe would be the proper manner of dealing with the issue of duress. See in this regard S v Makhathini 1995 (2) BCLR 226 (D).

I The proper starting point is, I believe, s 25(3)(c) of the Constitution, which lays down as a fundamental right the accused's right to remain silent during plea proceedings. The term 'plea proceedings' cannot be interpreted only to mean those proceedings which follow in terms of s 115 of the Criminal Procedure Act upon a plea of not guilty, for J that is not what s 25(3)(c) of the Constitution says. It would have been a simple matter for

Borchers AJ

A the Legislature to express itself in those terms, had that been its intention. In any event, even before the enactment of the Constitution, it was settled law that an accused who is questioned in terms of s 112(1)(b) of the Criminal Procedure Act has the right to remain silent. I refer in this regard to S v Mabaso and Another 1990 (3) SA 185 (A) at 211C, where Milne J said the following: B

'The appellants had the right to remain silent when questioned by the magistrate in terms of s 115. S v Daniels en 'n Ander 1983 (3) SA 275 (A) at 299F-H. They also had the right to remain silent when questioned by the magistrate in terms of s 112(1)(b). S v Nkosi en 'n Ander 1984 (3) SA 345 (A). In that case this Court held that a magistrate who questions such an accused is not obliged to C...