S v Mogotsi and Another
| Jurisdiction | South Africa |
| Judge | Hiemstra CJ and Steenkamp J |
| Judgment Date | 10 August 1981 |
| Citation | 1982 (1) SA 190 (B) |
| Hearing Date | 27 July 1981 |
| Court | Bophuthatswana Supreme Court |
Hiemstra CJ:
C The two accused appeared on a charge of housebreaking with intent to steal and theft. The first accused pleaded not guilty and the second pleaded guilty, but a plea of not guilty was entered in terms D of s 113 of the Criminal Procedure Act 51 of 1977. Accused No 1 was sentenced to 12 months' imprisonment (three months suspended) and No 2, who was found guilty of contravention of s 37 (1) of Act 62 of 1955, was sentenced to corporal punishment.
The matter has come up for review, and the magistrate has requested guidance on the following question of law:
E 'Where No 2 makes a confession to a peace officer in the presence of No 1, and he implicates No 1, who remains silent, is it then permissible to take the silence of No 1 into account as an indication of guilt on the part of No 1?'
My learned Brother referred the matter to the Full Court, and we are indebted to Mr Rossouw and Mr Farrell for their helpful argument.
F A large portion of the argument was devoted to the effect of s 219 of the Criminal Procedure Act 51 of 1977, which provides that a confession is admissible only against the maker thereof and against no-one else.
G On the strength of the cases of R v Baartman 1960 (3) SA 535 (A); R v Kefasi 1966 (1) SA 364 (SRA); S v Serobe 1968 (4) SA 420 (A) at 425G; R v Nkosi 1950 (1) PH H91 (A), it was argued by Mr Rossouw that No 2's silence could not be taken into account because then the confession by No 2 would play a part in the chain of inferences drawn against No 1. That would offend against s 219.
H Mr Farrell, for the State, contended that the contents of the confession were not being used. It was the silence of No 1 in the face of an accusation which was being used. That was permissible on the basis that silence, in circumstances where an answer would be the natural reaction, is admissible as a pointer to guilt. In R v Barlin 1926 AD 459 it was held that silence can never be a confession and will therefore not be excluded on that basis. The most relevant authority, however, is the one referred to by Mr Farrell, namely R v Christie 1914 AC 545 quoted in R v Abrey 1959 (2) SA 76 (E) at 81D:
Hiemstra CJ
'The rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not A evidence against him of the facts stated, save so far as he accepts the statement...
To continue reading
Request your trial
-
The evidentiary value of adverse inferences from the accused's right to silence
...the state case when there is nothing to contradict it.20 When the state case is built on circumstantial evidence, the 13 S v Mogotsi 1982 (1) SA 190 (B) at 192 'Silence in circumstances where innocence would have spoken up is a pointer to guilt'. Whether an inference from silence may be dra......
-
S v Mako en Andere
...is uit die uitspraak van Korzt AR weggelaat. L L Kruger namens die appellante ( op versoek van die Hof) het na S v Magotsi and Another 1982 (1) SA 190 (B) verwys. S S W Lauw namens die Staat het, op die meriete van die appel, na die volgende gesag verwys: R v Steyn 1954 (1) SA 324 (A); R v ......
-
The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo-American case law
...common- law right to si lence is lar gely a regu rgitat ion of the Engl ish rig ht as it exist ed on the 30th May 1961.78 S v Mogotsi 1982 (1) SA 190 (B) at 192: ‘Silence in ci rcumst ances when innocence wou ld have spoken up is a pointer to gu ilt.’ Whether an infere nce from silence may ......
-
Erasmus v Pentamed Investments (Pty) Ltd
...in his affidavit that no relationship of trust exists; he avers that it never existed in the first place. Against the background of the 1982 (1) SA p190 Nestadt common cause facts which I have outlined, I find this a surprising allegation. A To sum up, the conclusion I have reached is that ......
-
S v Mako en Andere
...is uit die uitspraak van Korzt AR weggelaat. L L Kruger namens die appellante ( op versoek van die Hof) het na S v Magotsi and Another 1982 (1) SA 190 (B) verwys. S S W Lauw namens die Staat het, op die meriete van die appel, na die volgende gesag verwys: R v Steyn 1954 (1) SA 324 (A); R v ......
-
Erasmus v Pentamed Investments (Pty) Ltd
...in his affidavit that no relationship of trust exists; he avers that it never existed in the first place. Against the background of the 1982 (1) SA p190 Nestadt common cause facts which I have outlined, I find this a surprising allegation. A To sum up, the conclusion I have reached is that ......
-
S v Sebatana
...behandel word gedurende die verhoor. Wat hierdie versuim om te kruisvra betref, verwys die landdros A na S v Mogotsi and Another 1982 (1) SA 190 (B) en hy haal die kopstuk daarvan aan wat soos volg "Silence on the part of an accused in circumstances where innocence would have spoken up, is ......
-
S v Sebatana
...behandel word gedurende die verhoor. Wat hierdie versuim om te kruisvra betref, verwys die landdros A na S v Mogotsi and Another 1982 (1) SA 190 (B) en hy haal die kopstuk daarvan aan wat soos volg "Silence on the part of an accused in circumstances where innocence would have spoken up, is ......
-
The evidentiary value of adverse inferences from the accused's right to silence
...the state case when there is nothing to contradict it.20 When the state case is built on circumstantial evidence, the 13 S v Mogotsi 1982 (1) SA 190 (B) at 192 'Silence in circumstances where innocence would have spoken up is a pointer to guilt'. Whether an inference from silence may be dra......
-
The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo-American case law
...common- law right to si lence is lar gely a regu rgitat ion of the Engl ish rig ht as it exist ed on the 30th May 1961.78 S v Mogotsi 1982 (1) SA 190 (B) at 192: ‘Silence in ci rcumst ances when innocence wou ld have spoken up is a pointer to gu ilt.’ Whether an infere nce from silence may ......