The State v Mofokeng

• Jurisdiction: South Africa
• Judge: Hoexter JA, Van Blerk JA and Williamson JA
• Judgment Date: 07 June 1962
• Hearing Date: 22 May 1962
• Court: Appellate Division

Williamson, J.A.:

The appellant in this matter was indicted in the H Witwatersrand Local Division on a charge of murder together with two other co-accused, one Rasegoka and one Khala. At his trial before BEKKER, J., on April 3rd, 1962, he pleaded on arraignment 'guilty to culpable homicide'. His two co-accused pleaded not guilty. On the application of the prosecutor a separation of trials was ordered and his trial was heard first, the other two accused standing down in the meantime. Counsel appearing pro deo on behalf of the appellant then addressed the presiding Judge in mitigation; thereafter the appellant

Williamson JA

was sentenced to four years' imprisonment. On 16th April an application was made to the learned Judge under the provisions of sec. 364 of Act 56 of 1955 for the making of a special entry on the record; the application was granted and a special entry was made on the record in the following terms:

'The proceedings in connection with the trial of the applicant were irregular in that there was a misunderstanding between appellant and his counsel which had the result that

(a)

the applicant was mistakenly advised to, and did, plead guilty to culpable homicide;

(b)

the applicant's counsel determined not to lead any evidence and consequently the facts which would have proved that applicant B was in fact not guilty of the crime of culpable homicide were not placed before the Court.'

The matter now comes before this Division in terms of sec. 365 (1) of the above Act as an appeal against the conviction 'on the ground of the irregularity or illegality stated in the special entry'.

C The record placed before this Court consists only of the following documents:

(1) a record sheet of the proceedings on trial before BEKKER, J., indicating the pleas of the three accused, the order for separation of trials and the fact that counsel for the appellant addressed the Court in mitigation;

(2) the remarks of the presiding Judge in passing sentence;

D (3) notice of an application for a special entry in which reference is made to two attached affidavits; such affidavits were not before this Court;

(4) a record sheet of the appearances before BEKKER, J., at the hearing E of the application, with a short statement as to the attitude of the State made by counsel appearing for the State;

(5) the reasons for judgment given by the learned Judge when ordering the entry to be made;

(6) the order of Court in regard to the special entry set out above.

The facts giving rise to the making of this special entry appear from F the reasons for judgment on the application therefor. In the first place reference was made to an affidavit by the appellant's counsel in which it was apparently stated that the counsel in question was appointed to act pro deo and that the other two accused were separately represented. The record of the preparatory examination given him contained two G statements made to the police by his client (the appellant) 'conflicting in essential details'. At a first interview with his client he obtained a statement which in essential details coincided with the second statement to the police but which was at the same time contradictory of one or other of the two previous statements in many respects. At a second interview the next day his client started by saying 'I admit I H killed the deceased'. When questioned thereanent, he said he had been implicated in an assault on the deceased, that the deceased had died and that he assumed that he had killed him. He then described an assault on the deceased by his two co-accused; he maintained that during that assault he had struck the deceased three times with a stick on the back close to his head. In his first statement to the police his client had said that 'while I was at my home the Bantu female came and said 'I have already killed him''. In his second statement he

Williamson JA

made no mention of this incident. In his statement to his counsel he said that a Bantu female had assaulted the deceased. In the light of his prior statement to the police, counsel assumed that his client had only been told by the female in question of her assault on the deceased but had not seen any such assault.

A From the references in the learned Judge's reasons for judgment to the terms of the affidavit by the appellant placed before him, it appeared that the appellant reiterated that he was a party to an assault on the deceased during which he and the other two accused made use of sticks. He then said that after his conviction and sentence he was called by the State as a witness in the trial of Rasegoka and Khala. He then told the B Court that they were all at a beer drink and all became drunk. A fight broke out and he, Rasegoka and Khala assaulted the deceased with sticks; he struck the deceased three times 'around the shoulders'. Then a woman, Mathabo, arrived and said that 'this person must be killed'. The deceased at that stage was lying on the ground, still alive. She C then struck the deceased on the head with an iron pipe. Later this woman said 'I have killed him'. The appellant went on to state in his affidavit that he at no time intended to admit that he was party to a common plan to cause the death of the deceased or that he was directly responsible for his death.

D A further reference to the affidavit of counsel for the appellant in the said reasons for judgment indicates that what counsel understood from the statements of his client to the police and to himself was that the appellant had not actually seen the assault by the woman but had only...