S v Pietersen and Others

JurisdictionSouth Africa
JudgeKannemeyer J and Zietsman J
Judgment Date17 March 1983
Citation1983 (4) SA 904 (E)
Hearing Date11 March 1983
CourtEastern Cape Division

Kannemeyer J:

The three accused appeared before the acting magistrate of Hankey, sitting at Patensie, charged with housebreaking with intent to steal and theft. All three pleaded guilty and were questioned in terms of s 112 (1) (b) of Act 51 of 1977. According to the charge sheet the three accused are 18, nine and nine and nine years old respectively. However, according to the evidence of the father of accused No 2,

Kannemeyer J

to which further reference will be made presently, the latter is only eight years old. The magistrate put the following question to each of the accused in turn:

"Jy het geweet jy doen verkeerd om die huis oop te breek en A binne te gaan en die goed daar te neem."

Each accused answered this question affirmatively.

After the questioning had been completed, the prosecutor called the father of accused No 2. His evidence reads:

"Van kleins af het ek hom geleer wat reg en verkeerd is. Ek het hom geslaan as hy verkeerde dinge doen. Hy weet hy mag nie by B ander mense se huise inbreek en hulle goed steel nie."

After this evidence had been led the magistrate endorsed the record as follows:

"Bevinding van hof: Dat beskuldigde 2 toerekeningsvatbaar is."

Then the mother of accused No 3 was called. The relevant portion of her evidence reads:

C "Ek het hom geleer wat reg en verkeerd is en hy verstaan dit. As hy verkeerddoen of stout is dan tugtig ek hom. Hy luister vir my. Hy weet dis verkeerd om by ander se huis in te breek en goed daar te steel. Ons kan hom beheer."

The magistrate then made a finding that accused No 3 was also criminally responsible and then found all three accused guilty.

D At this stage the case was remanded for record purposes and eventually it came before the magistrate of Hankey for sentence. He sent it on review as he was of the view that, if the acting magistrate was not satisfied, after questioning, that accused No's 2 and 3 were doli capax, he should have E entered a plea of not guilty in terms of s 113 of the Act and that only thereafter would it have been competent to lead evidence. The further question is whether, when an accused who is between the ages of seven and 14 years pleads guilty, his criminal accountability can be determined by questioning alone or whether a plea of not guilty should be entered, and evidence F led to rebut the presumption that he is doli incapax.

After the views of the Attorney-General had been obtained, the matter was set down for argument in terms of s 304 (3) of Act 51 of 1977. We are grateful to Mr Kingsley, who appeared on behalf of the Attorney-General, and to Mr Froneman, who appeared at out request, for the assistance they have afforded us.

G It is convenient first to consider if a decision can be reached as to whether an accused is doli capax or not by merely questioning him in terms of s 112 (1) (b). In my view, in appropriate circumstances, it can. In order to decide whether the presumption has been rebutted all the circumstances of the H case, such as the nature of the crime involved, the acts of the accused and his age must be taken into account. In R v Lourie (1892) 9 SC 432 at 434 DE VILLIERS CJ said:

"The nature of the crime or the circumstances under which it was committed may supply the necessary proof to show that the offender was actuated by evil motives."

See, too, R v Maritz 1944 EDL 101 at 103; R v K 1956 (3) SA 353 (A) at 357. Where the crime involved is malum in se it will take less to rebut the presumption than will be the case where the offence is a purely statutory one. R v Kaffir 1923 CPD 261. One will also require less

Kannemeyer J

persuasion that a youth who has nearly reached his fourteenth year is doli capax than one will require in the case of one aged seven: R v K (supra at 358). The presumption is not rebutted on mere proof that a child can distinguish between A right and wrong. In R v K (supra at 356) CENTLIVRES CJ said:

"There must, as KOTZÉ JA put it, be proof of a malicious mind on the part of the appellant and it seems to me that his mind must be malicious in relation to the circumstances under which he committed the act complained of."

In my view a proper decision could be reached in an appropriate case by questioning a youthful accused, who pleads guilty, in terms of s 112 (1) (b) of the Act. If a 13-year-old, who B appears to be of normal intellectual development, pleads guilty to theft from a self-service shop, his statement that he appreciated that what he was doing was wrongful would surely be sufficient to rebut the presumption. The eighth commandment states, after all, a generally accepted norm of behaviour and a deliberate breach of it would, in the circumstances, carry with it an appreciation that the act in question was wrongful. On C the other hand, while an eight-year-old may know, in general terms, that it is wrong to steal, he may well not consider taking a peach from his neighbour's garden as being theft or in any way morally reprehensible.

It would appear that, in the present case, the magistrate did not consider that the answers of accused Nos 2 and 3 were D sufficient to persuade him that they were doli capax in relation to the offence with which they were charged, because he did not find them guilty at the end of the questioning and only ruled that they were doli capax after hearing evidence. Mr Kingsley, for the State, submitted that the question of criminal accountability was not one of the "allegations in the charge" to which the accused pleaded guilty as envisaged by s E 112 (1) (b) of Act 51 of 1977 and that a conviction could take place, on a plea of guilty, without proof or admission that the accused was doli capax. In my view, this submission cannot be accepted. An "alleged fact" in a charge of theft is the accused's animus furandi. Unless the court is satisfied that the accused is doli capax, he is not shown to have the F intention to steal...

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10 practice notes
  • 2011 index
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 16 August 2019
    ...2009, WLD, unreported) ............................................................................................. 98S v Pietersen 1983 (4) SA 904 (E) .................................................................. 37S v Pillay 1977 (4) SA 531 (A) ............................................
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...370S v Pakane 2008 (1) SACR 518 (SCA) ................................................. 84S v Pietersen 1983 (4) SA 904 (E) ....................................................... 337,340S v Pillay 2004 (2) SACR 410 (SCA) .................................................... 247S v Pistorius......
  • The tension between legal theory and policy considerations in the general principles of criminal law
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 15 August 2019
    ...1969 (1) SA 601 (C) at 603E-F,S v Goeda 1969 (1) PH H85 (E), SvM1978 (3) SA 557 (TkS), S v Khubeka 1980 (4) SA 221(O), S v Pietersen 1983 (4) SA 904 (E) at 910H.48Italics supplied.16 CRIMINAL JUSTICE IN A NEW SOCIETY© Juta and Company (Pty) act or to appreciate the wrongfulness of his or he......
  • S v TS
    • South Africa
    • Invalid date
    ...to S v Ngobese and Others 2002 (1) SACR 562 (W): referred to S v Ntuli 1975 (1) SA 429 (A): referred to G S v Pietersen and Others 1983 (4) SA 904 (E): referred S v T 1986 (2) SA 112 (O): dicta at 127C distinguished Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A): compared. Au......
  • Request a trial to view additional results
4 cases
  • S v TS
    • South Africa
    • Invalid date
    ...to S v Ngobese and Others 2002 (1) SACR 562 (W): referred to S v Ntuli 1975 (1) SA 429 (A): referred to G S v Pietersen and Others 1983 (4) SA 904 (E): referred S v T 1986 (2) SA 112 (O): dicta at 127C distinguished Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A): compared. Au......
  • S v TNS
    • South Africa
    • Western Cape Division, Cape Town
    • 1 April 2014
    ...to obviously heinous crimes - offences malum in se (see 2014 JDR 2257 p9 Rogers J the survey of cases in S v Pietersen & Others 1983 (4) SA 904 (E) at 909C-G; see also S v Ngobese & Others 2002 (1) SACR 562 (W) at [16] One must also remember that where a person who was between the ages of s......
  • S v Ngobese and Others
    • South Africa
    • Invalid date
    ...the presumption, such evidence having to be on the normal criminal standard of proof, ie proof beyond reasonable doubt: S v Pietersen 1983 (4) SA 904 (E) at C 907E to I respectfully agree with the statement of Kannemeyer J in Pietersen's case where he said: ' ''An Alleged Fact'' in a charge......
  • Trencor Services (Pty) Ltd v Muller t/a SA Trucking
    • South Africa
    • Invalid date
    ...of which is annexed as annexure C to the application) issued to and held by respondent in terms of the Road Transportation Act 74 of 1983 (4) SA p904 Rose-Innes 1977, and which authorises the conveyance in clauses (b) (b) of the annexures attached thereto of: "(b) Shaft sinking equipment - ......
6 books & journal articles
  • 2011 index
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 16 August 2019
    ...2009, WLD, unreported) ............................................................................................. 98S v Pietersen 1983 (4) SA 904 (E) .................................................................. 37S v Pillay 1977 (4) SA 531 (A) ............................................
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...370S v Pakane 2008 (1) SACR 518 (SCA) ................................................. 84S v Pietersen 1983 (4) SA 904 (E) ....................................................... 337,340S v Pillay 2004 (2) SACR 410 (SCA) .................................................... 247S v Pistorius......
  • The tension between legal theory and policy considerations in the general principles of criminal law
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 15 August 2019
    ...1969 (1) SA 601 (C) at 603E-F,S v Goeda 1969 (1) PH H85 (E), SvM1978 (3) SA 557 (TkS), S v Khubeka 1980 (4) SA 221(O), S v Pietersen 1983 (4) SA 904 (E) at 910H.48Italics supplied.16 CRIMINAL JUSTICE IN A NEW SOCIETY© Juta and Company (Pty) act or to appreciate the wrongfulness of his or he......
  • Acting in the best interest of children in conflict with the law : determining the age of criminal capacity
    • South Africa
    • Sabinet SA Crime Quarterly No. 2016-57, January 2016
    • 1 January 2016
    ...SeCurity StuDieS & uNiverSity of CAPe towN4228 Ibid., 36–37. The cases of Roxa v Mtshayi (1975(3) SA 761(A) at 766 A-B), v Pietersen (1983(4) SA 904(E)) and S v Ngobese (2002 (1) SACR 562(W) at 564F-J) are also discussed to highlight the importance of conducting specif‌ic assessments in det......
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