S v Tshabalala
Jurisdiction | South Africa |
Judge | Mavundla J and Tolmay J |
Judgment Date | 08 December 2010 |
Citation | 2011 (1) SACR 497 (GNP) |
Docket Number | A 1097/2010 |
Hearing Date | 08 December 2010 |
Counsel | JM Mogotsi for the appellant. |
Court | North Gauteng High Court, Pretoria |
Mavundla J:
F [1] The appellant was charged and convicted at the Volksrust magistrates' court on two counts of fraud and two counts of forgery. He was sentenced to six months' imprisonment in respect of each count. He now appeals against both the conviction and sentence.
[2] The appellant was represented by an attorney who withdrew from G the matter just before the charges were put to the appellant. The appellant was asked whether he wanted to get another legal representative. The appellant chose to proceed with the matter and conducted his own defence.
H [3] The appellant pleaded guilty on all counts. The magistrate — in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 — asked the appellant questions. The appellant was convicted on count 1, 2 and 4 on the basis of his answers provided during the questioning in terms of s 112(1)(b). A plea of not guilty was entered in respect of count 3. The State led the evidence of a single witness, Mr Alfred Makhuba. I The appellant did not testify. The magistrate accepted the evidence of the State and convicted the appellant on this count as well. The appellant, as indicated earlier, was sentenced to six months' imprisonment on each count.
[4] In mounting the attack against the conviction of the appellant, it was J submitted that the magistrate erred in not warning the appellant that he
Mavundla J
had a right to remain silent when purportedly explaining the provisions A of s 112(1)(b).
[5] It needs mention that, before the legal representative of the appellant withdrew from the matter, it was put on record by the prosecutor that the matter was set down for trial and that the accused indicated that he intended to plead guilty. At that stage the legal representative of B the appellant placed on record that he had discussed the case thoroughly with the appellant and he then requested to withdraw from the matter, which request was granted. The charges were then put to the appellant who pleaded guilty to all the counts, after having been questioned in terms of s 112(2). C
[6] The right of an accused person to remain silent was, long before the advent of the Constitution of the Republic of South Africa, 1996, recognised by the courts. However, in S v Nkosi en 'n Ander [1] it was held that it was not necessary for the presiding officer to inform the accused person of his right to remain silent. It was further stated that the rationale behind s 112(1)(b) is — D
that by admitting guilt the accused admitted the State's case;
that the questioning in terms of s 112(1)(b) serves to protect accused against the consequences of an unjustified guilty plea, ie it is not directed at self-incrimination; and
that any warning to the accused, at that stage, would conflict with E the spirit of s 112(1)(b) (as well as ss 121(1) and 119) and the scheme of Act 51 of 1977.
In S v Mabaso and Another [2] this dictum was followed by the majority of the full bench.
[7] There are divergent views on the question whether the right to F remain silent demands that, before s 112(1)(b) is employed, an accused person must be informed of this right to remain silent.
[8] In S v Maseko [3] it was held that there was a duty on a presiding officer, in the light of the constitutional entrenchment of the right to remain silent, to warn an accused of this right before invocation of s 112. G
[9] In S v Damons and Others [4] Nugent J stated that an accused person cannot tender a guilty plea without simultaneously accepting that he has an obligation to answer questions.
'A right to continue to remain silent is inherently incompatible with a H plea of guilty. . . . To speak of a right to silence as if it can survive its abandonment seems to me to be inherently contradictory.'
[10] The Supreme Court of Appeal held in Director of Public Prosecutions, Natal v Magidela and Another [5] that it was incorrect to accept that failure I
Mavundla J
A to inform an accused person of his right to silence ipso facto resulted in an unfair trial and consequently rendered the admissions so elicited inadmissible. The court did, however, state (at 465h - j) that the previous Appellate Division cases may have to be revisited in the light of the new constitutional dispensation.
B [11] The question whether there is an obligation to inform an accused of his right to remain silent when asked questions in terms of s 112(1)(b), in my view, must be answered in the context of the right to remain silent. It also requires appreciation of the import of s 39(2) of the Constitution, which provides as follows:
C ''(2) When interpreting any legislation, and when developing the common-law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.'
[12] In Hyundai [6] Langa CJ — with regard to s 39(2) — held that, in interpreting a statute, the interpretation must be such that the ethos of D the Constitution was achieved.
[13] Section 2 of the Constitution provides:
'This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.'
E [14] The S v Nkosi en 'n Ander (supra); and S v Mabaso and Another (supra) cases were decided before the advent of the democratic Constitution. Inasmuch as these Appellate Division decisions are authoritative, they need be followed, with respect, in the context of stare decisis, to the extent they are consonant with the present supreme law; vide Afrox F Healthcare Bpk v Strydom. [7] I am of the respectful view that the interpretation of such authorities must be seen through the prism of the Constitution. I am respectfully mindful of...
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