S v Nkomanda

• Jurisdiction: South Africa
• Judge: Jafta AJP
• Judgment Date: 03 June 2003
• Docket Number: 01086
• Court: Transkei High Court
• Hearing Date: 03 June 2003
• Citation: 2003 JDR 0391 (Tk)

Jafta AJP:

[1] The accused appeared before the magistrate at Ngqeleni on a charge of dealing in dagga, alternatively, possession of dagga. Having been advised of his right to legal representation, the accused elected to conduct his own defence. The charges were then put to him and he pleaded guilty in dagga. Pursuant thereto he was questioned in terms of s 112 (1) (b) of the Criminal Procedure Act 51 of 1977. Although the accused stated in his answers that he was conveying the dagga for his mother who was going to sell it, the magistrate doubted the correctness of his plea and entered a plea of not guilty on his behalf.

[2] The hearing was adjourned and later resumed before a different magistrate

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on the same day. The prosecutor then led oral evidence of the police officer who arrested the accused. He stated that they were on patrol when they stopped the vehicle in which the accused was travelling. After introducing themselves as policemen, they asked for permission to search the luggage of the passengers in the vehicle. In the bag of the accused they found dagga weighing 2.6kg. The accused could not produce a permit to possess dagga and as a result he was arrested. In cross-examination, the accused admitted that he possessed the dagga but he claimed that when he told the policeman that he was taking it to his mother the latter assaulted him saying he was lying. The State case was then closed and the accused closed his case without testifying or calling witnesses.

[3] However, after hearing argument the magistrate convicted him of dealing in dagga. The magistrate then sentenced him to .18 months imprisonment or failing which to pay a fine of R2 000 coupled with a wholly suspended sentence. The record of the proceedings was placed before me on automatic review in July 2000. I enquired from the magistrate if the accused was convicted on the basis of the oral confession he allegedly made to the policeman and if so whether the admissibility thereof was properly proved. I also asked if the sentence was properly framed. The magistrate promptly responded to the query and gave detailed reasons for his verdict. The magistrate's reply was essentially that the accused was not convicted on the basis of the said confession but that he was convicted on the basis of his answers to the earlier questioning which resulted in a plea of not guilty being entered. The magistrate contended further that the sentence was properly framed in terms of s 17 (e) of Act 140 of 1992.

[4] As I still doubted the correctness of the proceedings I sought the views of the

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Director of Public Prosecutions. I was only furnished with an opinion by the office of the Director of Public Prosecutions 2 years and 9 months after the record of proceedings and the request for the opinion were sent to that office. I have since been furnished with an opinion by Mr Skrenya of that office and for which he is thanked. It is however a matter of concern that it has taken the office of the Director of Public Prosecutions more than two years to furnish a simple opinion of four pages. I shall return to this point later in the judgment.

[5] In his opinion Mr Skrenya contends that the answers given by .the accused during an earlier questioning in terms of s 112(1) (b) did not constitute evidence and consequently the magistrate erred in convicting him of dealing when the policeman's admissible evidence established possession only. For this proposition reliance was placed upon S v Slabbert 1983 (4) SA 248 (C). I must mention that my attempt to trace the judgment in that matter was unsuccessful as an incorrect citation is given in Mr Skrenya ' s opinion.

[6] However I agree that answers given by an accused whilst being questioned under s 112 (1) (b) do not amount to evidence. It is quite clear from a number of decisions that such answers are not regarded as evidence (S v Mkhize 1978 (1) SA 264 (N); S v Naidoo 1989 (2) SA 114 (A) and S v Nagel 1998 (1) SACR 218 (O)).

[7] Therefore a plea of not guilty...