S v Tshabalala

• Jurisdiction: South Africa
• Citation: 2011 (1) SACR 497 (GNP)

S v Tshabalala
2011 (1) SACR 497 (GNP)

2011 (1) SACR p497

Citation	2011 (1) SACR 497 (GNP)
Case No	A 1097/2010
Court	North Gauteng High Court, Pretoria
Judge	Mavundla J and Tolmay J
Heard	December 8, 2010
Judgment	December 8, 2010
Counsel	JM Mogotsi for the appellant.

Flynote : Sleutelwoorde

Plea — Plea of guilty — Questioning in terms of s 112(1)(b) of Criminal Procedure D Act 51 of 1977 — Right of accused to remain silent and not to be compelled to give incriminating evidence as entrenched in s 35(3) of Constitution — Necessary for accused who intends to plead guilty to be informed by presiding officer of right to remain silent before he is questioned in terms E of s 112(1)(b) — Such enabling accused to make informed decision — Failure to so inform accused of right to remain silent irregularity — Whether trial therefore unfair to be decided on case-by-case basis.

Headnote : Kopnota

Section 35(3)(j) of the Constitution of the Republic of South Africa, 1996, F imports that self-incriminating evidence cannot be solicited from the accused person directly or indirectly. It is therefore necessary for an accused who intends to plead guilty to be informed of this right to remain silent before he is questioned in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977. The unrepresented, untutored accused might think that he is obliged to answer the court's questions. It is necessary that an accused be informed of his right to remain silent, even if he has pleaded guilty, so that G he can make an informed decision. A different approach to this question would not be consonant with the ethos of the Constitution. There is an obligation on the presiding officer to inform an accused of his right to remain silent before he is questioned in terms of s 112(1)(b). (Paragraph [19] at 502c–d.)

Where an accused person is asked questions in terms of s 112(1)(b) of the H Criminal Procedure Act, without having been informed of his right to remain silent, there is an irregularity, but the trial is not necessarily vitiated by such failure. However, such failure might render the trial unfair. Not every irregularity renders a trial unfair. Whether a trial is unfair is a matter to be decided on a case-by-case basis. (Paragraph [20] at 502e–f.)

Annotations:

Cases cited

Reported cases

Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (CC) ([2002] 4 All SA 125): considered I

Director of Public Prosecutions, Natal v Magidela and Another 2000 (1) SACR 458 (SCA): applied J

2011 (1) SACR p498

Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA) ([2005] 2 All SA 355): applied A

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079): dictum in paras [21] – [26] applied

S v Damons and Others 1997 (2) SACR 218 (W): not followed B

S v Hlakwane en 'n Ander 1993 (2) SACR 362 (O): dictum at 364h applied

S v Khuzwayo 2002 (1) SACR 24 (NC): dictum at 29g applied

S v Mabaso and Another 1990 (3) SA 185 (A): not followed

S v Maseko 1996 (2) SACR 91 (W): applied

S v Nkosi en 'n Ander 1984 (3) SA 345 (A): not followed C

S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) (1992 (1) SA 343): considered

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to.

Legislation cited

Statutes D

The Constitution of the Republic of South Africa, 1996, s 35(3): see Juta's Statutes of South Africa 2009/10 vol 5 at 1-38

The Criminal Procedure Act 51 of 1977, s 112(1)(b): see Juta's Statutes of South Africa 2009/10 vol 1 at 2-368.

Case Information

E Appeal from convictions and sentences in a magistrates' court. The facts appear from the reasons for judgment.

JM Mogotsi for the appellant.

Judgment

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

2011 (1) SACR p499

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

(i)

that by admitting guilt the accused admitted the State's case;

(ii)

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

(iii)

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...