S v Morrison

• Judge: Heyns J and Smit J
• Judgment Date: 21 August 1987
• Citation: 1988 (4) SA 164 (T)
• Hearing Date: 21 August 1987
• Court: Transvaal Provincial Division

Heyns J:

Appellant, who is described in the charge sheet as a White male aged 22 years, was arrested on 10 February 1987 and appeared in the regional court at Roodepoort on 12 February 1987 charged with five counts of housebreaking with intent to steal and theft or attempted theft. He was unrepresented in court and when the prosecutor put the charges to him he pleaded guilty to all five counts. It appears from the E record that the court then questioned him in terms of s 112 of the Criminal Procedure Act 51 of 1977, and said:

'The court is satisfied that the admitted facts constitute the commission of all these crimes.'

F The court thereupon convicted him on all five counts.

Thereafter the trial proceeded as follows:

'Court: You may now address the court in mitigation of sentence. You may call witnesses to testify in mitigation, you may give evidence in mitigation. At this stage your personal circumstances are very important.

Accused addresses court in mitigation of sentence: G Sir, may I call some witnesses in mitigation?

Court: What?

Accused: I have got a drug problem,'

and he expanded on it. He was not afforded an opportunity to call witnesses. The magistrate asked him a few questions and it is noted on H the record that the prosecutor had no address on sentence and then the magistrate sentenced him.

In my view this procedure adopted by the magistrate constitutes a non-compliance with the provisions of s 274(1) of Act 51 of 1977, which provides that:

I 'A court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.

(2) The accused may address the court on any evidence received under ss (1) as well as on the matter of sentence and thereafter the prosecution may likewise address the court.'

An appeal was noted against appellant's conviction and the sentence imposed on him. Inter alia the grounds of appeal allege that the trial J court

Heyns J

A failed to apply the provisions of s 112(b) of Act 51 of 1977 properly and ought to have entered a plea of not guilty in terms of s 113 of Act 51 of 1977. In the notice of appeal notice was given that appellant reserved the right to amend the grounds of appeal after receipt of the magistrate's reasons and also that at the hearing of the appeal he would seek leave to have the matter remitted to the court a quo to hear B further evidence. Appellant did amend his notice of appeal and this was served on the clerk of the court on 20 July 1987 but to date no reaction has been received from the magistrate.

The additional grounds of appeal read as follows:

C 'A. Ad merits

1.

The magistrate erred in failing to advise the appellant, who was unrepresented, of his right to obtain legal representation or to furnish him with an opportunity to obtain such representation.

2.

With regard to counts 2 and 5, the magistrate erred in finding that appellant admitted all the elements of the said charges.

D B. Sentence

1.

The magistrate's conduct in failing to adhere (sic) to appellant's request to call witnesses to give evidence in mitigation with regard to his "drug problem" constitutes a misdirection.'

The rest of the grounds put forward under the heading 'Sentence' is not E germane to the issue with which we are dealing.

Regarding counts 2 and 5 to which reference is made in the amended notice of appeal, count 2 reads as follows:

'Dat voormelde beskuldigde skuldig is aan die misdryf van huisbraak met die opset om te steel:

Deurdat op of omtrent 87.01.30 en te of naby Kanniedoodstraat 14, F Weltevredenpark, in die streekafdeling van Suid-Transvaal, die beskuldigde wederregtelik en opsetlik die huis of gebou van R Emrich oopgebreek en binnegegaan het met die opset om goed daarin te steel en niks gesteel het nie.'

The questions by the magistrate on this count proceeded as follows:

G 'Court: Now as far as count 2 is concerned, this is the case of the house of Mr Emrich in Kanniedood Street, Weltevreden Park. What happened there?

Accused: The same thing. Kevin pulled up on a bike, he went to try and open the door, he could...