S v Tshivhule and Another

• Jurisdiction: South Africa
• Judge: Van Rhyn CJ
• Judgment Date: 11 June 1985
• Hearing Date: 27 May 1985
• Court: Venda Supreme Court

Van Rhyn CJ:

In this appeal the question arises whether the replies given by an accused, on being questioned by the trial court in terms of s 112 (1) (b) of the Criminal Procedure Act F 51 of 1977, have the same effect as evidence for the purposes of curing the defect in terms of the provisions of s 88 of the Criminal Procedure Act, where the charge discloses no offence. (The italics are mine.)

The two accused were charged with abortion, convicted by the magistrate and both sentenced to undergo 90 days' imprisonment.

The charge reads as follows:

G "... hereafter called the accused C/s 2 r/w 10 (1) (a) Act 2 of 1975 charged with the offence of abortion in that upon (or about) 21 January 1985... the said accused did wrongfully and unlawfully and intentionally procure an abortion on the body of Emily Tshivhule being accused No 1 otherwise than in accordance with the provision of this Act."

It is clear that the accused pleaded guilty to a charge that H disclosed no offence. Even the most basic essential element, namely an allegation that a live foetus was expelled, was lacking. Ex parte Minister of Justice: In re R v Masow and Another 1940 AD 75 at 91.

The first question to be dealt with is whether in the absence of evidence s 88 of the Criminal Procedure Act could be invoked I to cure the defect in the charge by relying on the replies of the accused tendered in terms of the provisions of s 112 (1) (b) of Act 51 of 1977.

It has been decided by the Courts that the provisions of s 88 of the Criminal Procedure Act and s 197 bis of the 1955 Criminal Procedure Act could not be invoked to rectify a charge where presumptions instead of evidence had to be relied upon. See S v Botha 1967 (1) SA 569 (O): S v AR Wholesalers (Pty) Ltd J and Another 1975 (1) SA 551 (NC) at 556H; S v Theunsus Transport and Others 1981 (2) SA 469 (E) at 471.

Van Rhyn CJ

To my mind the Legislature could never have intended that the A remedy provided for in s 88 should be effective when an accused pleads not guilty but ineffective when he pleads guilty.

In S v Andrews 1984 (3) SA 306 (E) at 307 and 308 KANNEMEYER and SMALBERGER JJ decided that for the purposes of the application of the provisions of s 262 (2) of the Criminal Procedure Act the answers of an accused should be considered B tantamount to evidence. With this decision I respectfully agree.

Adopting the reasoning of the learned Judges, I come to a similar conclusion regarding the...