S v Witbooi and Others

• Jurisdiction: South Africa
• Citation: 1994 (1) SACR 44 (Ck)

S v Witbooi and Others
1994 (1) SACR 44 (Ck)

1994 (1) SACR p44

Citation	1994 (1) SACR 44 (Ck)
Court	Ciskei General Division
Judge	Heath J and Claassen AJ
Heard	May 26, 1993
Judgment	May 26, 1993

Flynote : Sleutelwoorde

G Indictment and charge — Joinder of accused — Separation of trials where one accused pleads guilty while others plead not guilty — Failure of court to order separation of trials where one accused pleaded guilty and was convicted after questioning in terms of s 112(1)(b) of Criminal Procedure H Act 51 of 1977 and answers incriminated co-accused, resulting in prejudice to co-accused and a failure of justice.

Indictment and charge — Joinder of accused — Separation of trials where accused's defence, as disclosed in plea explanation, tends to incriminate co-accused — No prejudice to accused resulting from failure to separate trials. I

Headnote : Kopnota

The three accused were charged in a magistrate's court with stock theft and were convicted. Accused Nos 1 and 2 pleaded not guilty while accused No 3 pleaded guilty. Accused No 2, upon being questioned in terms of s 115 of the Criminal Procedure Act 51 of 1977, incriminated his co-accused, alleging that he had helped accused Nos 1 and 3 to slaughter an ox. Accused No 3 admitted during questioning in terms of s 112(1)(b) that he J had stolen the ox

1994 (1) SACR p45

A from the complainant and that accused Nos 1 and 2, who also knew that it was stolen, helped him to slaughter the ox. After a conviction of guilty was entered in respect of accused No 3 on the basis of his plea, the trial proceeded against accused Nos 1 and 2. On review the Court examined whether the magistrate ought to have separated the trials of the accused.

Held, that the court had not erred in failing to separate the trial of B accused No 2 from that of the other two accused merely on the basis that his defence as revealed in his plea-explanation tended to incriminate his co-accused.

Held, further, that the failure of the court to separate the trial of accused No 3 from the other accused after he had been convicted, resulted in prejudice to the other accused and amounted to a failure of justice. Conviction of accused No 3 confirmed and conviction of accused Nos 1 and 2 C set aside.

Case Information

Review.

Judgment

Heath J:

The three accused in this matter were convicted of stock theft in the magistrate's court for Zwelitsha and the magistrate imposed a sentence D of one year and six months' imprisonment on each accused.

It appears from the record that accused Nos 1 and 2 pleaded not guilty and accused No 3 pleaded guilty.

The following query was forwarded to the magistrate:

'1.

According to p 1 of the record all three of the accused pleaded E not guilty. The magistrate thereafter applied the provisions of s 115(1) to accused Nos 1 and 2. Thereafter the magistrate proceeded to question accused No 3 in terms of the provisions of s 112(1)(b). There is no indication that accused No 3 changed his plea to a plea of guilty. The magistrate is requested to comment.

2.

F Apart from certain admissions made by accused Nos 1 and 2, the magistrate is requested to state the facts found by the magistrate which formed the basis of the conviction of accused Nos 1 and 2.

3.

The magistrate is requested to furnish reasons for the conviction of the three accused.

4.

Assuming that accused No 3 pleaded guilty and in view of his G replies to the questioning in terms of s 112(1)(b) and having convicted accused No 3, should the State not have called for a separation of trials and should accused Nos 1 and 2 not have been tried by a different magistrate?

5.

Is the sentence not shockingly inappropriate particularly in view of the fact that the accused are first offenders?' H

The matter was also referred to the Attorney-General for his comments and I am grateful for the opinion submitted by the Attorney-General.

During his plea-explanation in terms of s 115 of the Criminal Procedure Act 51 of 1977, accused No 1 denied all knowledge of the offence. In his plea-explanation accused No 2 stated that he had helped accused Nos 1 and I 3 to slaughter an ox which he (accused No 2) believed was the property of accused No 3. Accused No 2 therefore put in issue knowledge of unlawfulness but at the same time implicated accused Nos 1 and 3. Accused No 3 during his plea-explanation in terms of s 112(1)(b), admitted having stolen the ox from the complainant and added that accused Nos 1 and 2, who J knew that it was stolen, helped him to

1994 (1) SACR p46

Heath J

A slaughter the ox. His allegation amounts to an implication of accused Nos 1 and 2 as accomplices in the theft. The magistrate convicted accused No 3 on his plea and thereafter continued with the trial jointly against all

three accused. Accused No 3 apparently remained in the dock although he did not take part in the proceedings when evidence was tendered against B the accused by a State witness. The single witness who testified on behalf of the State testified that he is a sergeant in the Ciskei Police and attached to the stock theft unit. As a result of information received, he, together with another police officer, proceeded to the shack of accused No C 3. He found accused No 3 in the shack together with a certain Pekwana and two young boys. They had a pot of meat in front of them but they hid the meat on the arrival of the police. The police searched the house and found a leg of an ox in a cupboard. Accused No 3 admitted that he had stolen the ox from a certain location and he told the police officer that he had D slaughtered the ox with the assistance of accused Nos 1 and 2. The police then proceeded to the shack of accused No 2. The police obtained permission to search the shack and found a pot with boiling water on the stove and some entrails of an ox inside. They asked the accused to point out other meat and he opened another shack where they found a big tin full of meat and some organs in another half-tin. Accused No 2 told the police E that he got the meat from accused No 3. The police then went to the shack of accused No 1 where they found accused No 1 and his wife. Accused No 3 told accused No 1 that the police officers were looking for meat. Accused No 1 showed the police some meat which was hidden underneath some bricks. Accused No 1 alleged that accused No 3 had asked him to keep it on his F behalf. All three accused then admitted that they had stolen the ox and slaughtered it. Accused Nos 1 and 2 took the police to the place where they had slaughtered the ox and the police discovered the head and skin of the ox at the scene.

Accused Nos 1 and 2 elected not to give evidence.

The question arises whether the magistrate erred in failing to separate G the trials of accused Nos 1 and 2 from the trial of accused No 3 and what the effect is of such a failure.

Section 157(2) of Act 51 of 1977 provides as follows:

'Where two or more persons are charged jointly, whether with the same...