S v Mpongoshe and Another

• Jurisdiction: South Africa
• Citation: 1980 (4) SA 593 (A)

S v Mpongoshe and Another
1980 (4) SA 593 (A)

1980 (4) SA p593

Citation	1980 (4) SA 593 (A)
Court	Appellate Division
Judge	Kotzé JA, Viljoen JA and Botha AJA
Heard	August 29, 1980
Judgment	September 11, 1980

Flynote : Sleutelwoorde

Criminal procedure — Trial — Plea — Juvenile accused — Right to D representation by legal adviser embraces right to tender plea vicariously through legal adviser — Quaere: Whether right to tender plea vicariously is unlimited.

Headnote : Kopnota

In a case where the accused are children who have barely progressed beyond the stage where the criminal law presumes them to be doli incapaces and E who face serious and statutory charges, the right to be represented by a legal adviser embraces the right of tendering the plea vicariously through such legal adviser provided that he is duly instructed and not prohibited by law from appearing.

Quaere: Whether the right to tender a plea vicariously is an unlimited one.

In an appeal from a decision of a Provincial Division dismissing an appeal F from a conviction in a regional magistrate's court on a charge of sabotage under s 21 (1) of the General Law Amendment Act 76 of 1962, it appeared that the attempts of the attorney acting on behalf of the accused who were youths to plead to the main and alternative charges on their behalves were "brushed aside" by the magistrate, who entered pleas of guilty on the alternative charge of arson and thereafter recorded admissions made by the accused in terms of ss 112 and 113 of the Criminal Procedure Act 51 of 1977. The accused's legal adviser had informed the court that his G instructions were to tender pleas of not guilty on all charges.

Held, that the appeal fell to be decided without reference to the highly prejudicial and wrongly obtained admissions on which the magistrate had founded his verdict. H

Case Information

Appeal from a decision of the Eastern Cape Division (STEWART J and HOWIE J) dismissing an appeal from a conviction and sentence imposed in a regional magistrate's court. The facts appear from the judgment of KOTZÉ JA.

P J de Bruyn for the appellants: The legal representative was entitled to plead on the appellants' behalf, and such pleas should have been entered by the presiding officer. See Swift and Harcourt 2nd ed at 265; S v Mbatha 1962 (2) SA at 456B - C; R v Mbonely and Others 1947 (1) PH H167; s 115 (3) of Act 51 of 1977. No authority is given for the

1980 (4) SA p594

opposite views contained in R v Chinowaita 1967 (2) SA 494. Although Hiemstra Suid-Afrikaanse Strafprosesreg 2nd ed at 196 is of the opinion A that it is advisable that an accused person pleads personally, in such cases such as the present one (in other words, young children; involved charges, heavy penalties), it is more advisable to allow the legal representative to offer the plea. (Provided, of course, that he be properly authorised thereto. See R v Mbonely (supra).) The reason put forward by Hiemstra for his views, is to prevent misunderstanding. In B cases such as the present one, the legal representative should tender the plea to prevent misunderstanding. In this specific matter, misunderstanding was, in fact, created by the presiding officer insisting that the appellants plead personally after he had been advised by the legal representative as to what their pleas were. See S v Mosea 1947 (3) C SA at 284; S v Witbooi 1978 (3) SA at 592B; S v Lebokeng 1978 (2) SA at 676. The purpose of legal representation is, inter alia, to advise an accused person how to plead. See S v Yantolo 1977 (2) SA at 148H. The magistrate should have noted the pleas of appellants 1 and 2 as being not guilty on both the main and the alternative counts, because such pleas have been properly tendered and he should thereafter have conducted an D enquiry in terms of s 115 of the Act instead of s 112 (1) (b), as was done. Had a plea of not guilty been noted, all issues raised by such a plea would have had to be tried (s 108 of the Act). Although the presiding officer was fully aware of the unsatisfactory state of affairs and the fact that the appellants may not have understood the nature of the E charges, the charges were never explained to the appellants before pleading and they were immediately asked to plead. This is in itself such an irregularity as to de jure vitiate the whole trial. See R v Mosea 1947 (3) SA at 284 and the cases there referred to; S v Yantolo (supra at 149, 150); S v Van Deventer 1978 (3) SA at 100C - E; S v Mkhize 1978 (3) SA 1065. Alternatively there was the possibility of an injustice. S v Thela 1979 (3) SA at 1024D. But, furthermore, the appellants were severely F prejudiced in that they have been questioned as a consequence of their pleas of guilty in terms of s 112 (1) (b) of the Act; as a consequence whereof their statements were noted and stood as admissions notwithstanding the change of the plea at a later stage, whereas, had their pleas of not guilty been entered, one of three courses of events G could have flowed from that: (i) Their legal representative could have informed the court that they did not wish to outline their defence and that they placed in dispute all the facts contained in the charge sheet. This would have had the effect that the State had to prove each and every aspect of the charge (s 108 of the Act), and furthermore, as it was clear H that every issue was in dispute, the magistrate would not have been entitled to question them any further. See S v Muzikayifani and Others 1979 (2) SA at 517F. This would have meant that no admissions could have been elicited from the appellants. Or: (ii) Their legal representative could have addressed the court fully, stating that they admitted certain acts such as, for instance, throwing stones, etc. Any such admission could have been recorded in terms of s 115 (2) (b) had their legal representative and the appellants consented thereto, but: (iii) it was also open to the legal representative to have refused the request for any admissions to be recorded in terms of s 115 (2) (b). In fact, it would have

1980 (4) SA p595

been most surprising if the legal representative had followed the course admitting the acts and also consenting to those admissions being recorded in terms of s 115 (2) (b) with the resultant effect that flows from the A recording of such admissions.

If it had been the intention of the legal adviser to agree to the admissions being recorded in terms of s 115 (2) (b) read with s 220, then it is conceded that no prejudice was suffered by the appellants, but one has to speculate in this regard as the legal adviser is no longer available in South Africa, having left the country for England. However, B if the intention was to set out the defence, and in the course thereof admissions were made but without the further intention of consenting to a formal recording thereof in terms of s 115 (2) (b). Then the appellants were also prejudiced as no weight could have been attached to such admissions other than maybe for cross-examination purposes. The judgments of the Provincial Divisions of the Supreme Court with regard to informal C admissions under s 115 are far from consistent. The following cases indicate that weight should be attached to such statements: S v Nkosi 1978 (1) SA 548. (This case was later overruled by the Full Bench decision of S v Thela 1979 (3) SA 1018); S v Mogoregi 1978 (3) SA 13; S v Malebo 1979 D (2) SA 636; S v Murray 1979 (2) SA 677; S v M 1979 (4) SA 1044; S v Ngobo 1980 (1) SA 579; S v Mjoli 1980 (3) SA 172. The following cases indicate that such statements have no evidential value whatsoever: S v Mayedwa 1978 (1) SA 509; S v Moloyi 1978 (1) SA 516; S v Mkhize 1978 (2) SA 249; S v Molele 1978 (2) SA 668; S v Selane 1979 (1) SA 318; S v Thela 1979 (3) SA 1018; S v Van den Berg 1979 (3) SA 1027; S v Dingoos 1980 (1) SA 595. See E also the article by Du Plessis 97 SALJ (February 1980) at 35. If the remarks of Hiemstra (supra at 224) are correct, then the accused is today in a worse position than he was under the previous Act (Act 56 of 1955). If the accused refuses to state his defence and keeps quiet, an adverse inference can now be drawn against him (Hiemstra (supra at 224)). If he F speaks up, he may incriminate himself. In both instances he is not being warned. Also, whereas under the previous Act (Act 56 of 1955) an unsworn statement in terms of s 169 (5) of that Act had to be made spontaneously by an accused, under the present Act the accused is, in fact, invited by the court to speak and there is no warning that he may prejudice or G incriminate himself. To warn an accused beforehand that he may incriminate himself would probably result in most cases that the accused will refuse to speak. This will nullify the purpose of s 115. This difficulty can be overcome only by not affording any evidential value to be attached to the factual statements made in the course of the s 115 proceedings, unless, of course, they are formally noted in terms of s 115 (2) (b). S v Moloyi H 1978 (1) SA at 521A - D and S v Molele 1978 (2) SA at 673 set out the position correctly. Section 220 of the Act, as is explained in S v Malebo and Others 1979 (2) SA at 641, does not protect an accused who, at the invitation of the court, makes admissions or statements prejudicial to himself in terms of s 115 and which are not recorded as formal admissions in terms of s 115 (2) (b), if such statements can be used as evidence against the accused. The probabilities are much greater that an accused person will make statements to a court when invited by the presiding officer to do so and not knowing

1980 (4) SA p596

that he might incriminate or prejudice himself, than making admissions outside the court to, for instance, a policeman, etc. (S v Malebo (supra A at 642D) and S v Ngobo 1980 (1) SA at 583H.) That is probably...