S v Mungoni

• Jurisdiction: South Africa
• Judge: Noorbhai J
• Judgment Date: 27 February 1997
• Citation: 1997 (2) SACR 366 (V)
• Hearing Date: 27 February 1997
• Court: Venda High Court

Noorbhai AJ:

In this matter which comes before me by way of review, the accused was charged with robbery and appeared before magistrate T R Rambau on 21 November 1996. G

The accused was undefended and indicated, as the basis of his defence, that 'I did not do such a crime, your worship'. Page 1 line 29 of the record. H

At the end of the State case, the magistrate correctly explained to the accused that his plea explanation did not carry any evidential value and that if he wanted it to have any weight, he would have to give evidence under oath.

I This is what followed:

'Court: . . . Do you understand?

Accused: Understood.

Court: Speak louder.

Accused: Understood.

Court: What is your choice?

Accused: Your worship, I am afraid to get into the witness dock, so there is no J more evidence to give.

Noorbhai AJ

Court: I see. A

Accused: The evidence that I have already tendered in this accused dock is the evidence that I can even tender there.'

The magistrate did not bother to ascertain why the accused was afraid to go into the box. The apprehension could have been unjustified in which case the magistrate could have cleared up any false notions which the B accused might have had of giving evidence.

When the accused said:

'The evidence that I have already tendered in this accused dock is the evidence that I can even tender there'

it should have been apparent to the magistrate that the accused had not C understood his earlier explanation regarding his s 115 statement.

It was the magistrate's duty to explain once more that his s 115 plea did not constitute evidence.

The magistrate simply carried on with the trial and thereby committe D d an irregularity which vitiates the proceedings.

In S v Mathogo 1978 (1) SA 425 (O) at 427F the learned Judge said:

'Maar dit is belangrik dat daar deur voorsittende beamptes by beskuldigdes, veral waar hulle onverteenwoordig is, tuisgebring word dat die verklaring in terme van art 115 ter verduideliking van die pleit nog geen getuienis onder eed is nie maar slegs daarop gemik is om die voorlegging van onnodige getuienis deur die E Staat te voorkom.'

(My emphasis.)

In S v Mkhize 1978 (2) SA 249 (N) the learned Judge President said at 251G - H: F

'If he is not defended, the judicial officer, when explaining the accused's rights to him at the conclusion of the State case, must make sure that he is under no misapprehension about the matter and appreciates that the...