S v Tshamano and Another

• Jurisdiction: South Africa
• Judge: Noorbhai AJ
• Judgment Date: 06 June 1997
• Citation: 1998 (1) SACR 359 (V)
• Hearing Date: 06 June 1997
• Court: Venda High Court

Noorbhai AJ:

This matter concerns two accused who were charged with housebreaking with intent to steal and theft. At the commencement of the trial, when the charge was put to them and they were asked to plead to it, H accused No 1 pleaded not guilty and accused No 2 pleaded guilty.

Pursuant to the provisions of s 115(1) of the Criminal Procedure Act 51 of 1977, accused No 1 was invited to disclose the basis of his defence, the import of which, when it was so disclosed, was that he did not commit the offence with which he was charged. See record at p 3 line 19. I

Accused No 1 was questioned in terms of s 112(1)(b) with a view of determining whether his plea of guilty was correct both in fact and in law. It appears from his answers to the magistrate's questions that he admitted all the essential elements of the offence, not as the principal perpetrator but as an accomplice. According to him accused No 1 is the one who actually broke into the structure in question, entered therein and J

Noorbhai AJ

A removed some articles while he stood outside and received the articles. An accomplice is as guilty as the principal perpetrator because the conduct of both amounts to the unlawful and intentional commission of the offence in issue: See S v Williams en 'n Ander 1980 (1) SA 60 (A) at 63.

After the magistrate had satisfied himself that accused No 2 was guilty both in fact and in law the prosecutor applied B for a separation of trials, apparently in view of accused No 1's plea of not guilty. This application was granted by the magistrate, who then proceeded to sentence accused No 2. The question that now arises is whether, in view of the fact that accused No 2 implicated accused No 1 in his answer to the magistrate's questioning, the magistrate was C justified in granting the application for a separation of trials.

Section 157(2) of the Criminal Procedure Act 51 of 1977 empowers a Court trying two or more accused persons to direct, upon the application of the prosecutor or any of the accused, that the trial of anyone or more of the accused shall be held separately from the trial of the other accused.

D The decision as to whether to direct a separation of trials is a discretionary matter, the propriety or otherwise of which has to be determined on the basis of whether there will be prejudice to either the prosecution or the accused should a joint trial take place. See S v Bagas 1952 (1) SA 437 (A); S v Nzuza and Another 1952...