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[2010] ZAGPPHC 224
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Thsabalala v S (A1097/09) [2010] ZAGPPHC 224; 2011 (1) SACR 497 (GNP) (8 December 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NO: A1097/09
DATE:
08/12/2010
In
the matter between:
N.P.
THSABALALA
.....................................................................................
APPELLANT
And
THE
STATE
...................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[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 the
matter just before the charges were put to the appellant.
The
appellant was asked whether he would want to get another legal
representative. The appellant chose to proceed with the matter
and
conducted his own defence.
[3]
The appellant pleaded guilty on all counts. The magistrate in terms
of s112 (2) of the
CPA
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 s112 (2). A plea of not guilty was entered in respect of
count 3. The State led the evidence of a single
witness Mr. Alfred
Makhuba. The appellant did not testify. The Magistrate accepted the
evidence of the State and convicted the
appellant on these counts 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 submitted that the magistrate erred in not warning the
appellant
that he has a right to remain silent when purportedly explaining the
provisions of section 112 (2).
[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 intends to plead guilty. At that stage
the
legal representative of 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 s112 (2).
[6]
The right of an accused person to remain silent was long before the
advent of
The
Constitution of the Republic of South Africa, Act,
and
No. 108 of 1996 recognised by the Courts. However, in S
v
Nkosi en 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 s112 (2) is:
i.
that by admitting guilt the accused admitted the State's case;
ii.
that the questioning in terms of s112(1 )(b) serves to protect
accused against the consequences of an unjustified guilty plea
i.e.
it is not directed at self incrimination; and
iii.
That any warning to the accused at that stage, would conflict with
the spirit of section 112(1) (b) [ as well as section 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 full bench.
[7]
There are divergent views on the question whether the right to remain
silent demands that before s112 (2) 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 is a duty on a presiding officer in the light
of the constitutional entrenchment of this right to remain
silent to
warn an accused of this right before invocation of s112.
[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
plea
of guilty...To speak of a right to silence as if it can survive its
abandonment seems to me to be inherently contradictory",
[10]
The Supreme Court of Appeal held in the
Director
of Public Prosecutions, Natal v Magidela and Another
5
that
it is incorrect to accept that failure to inform an accused person of
his right to silence
ipso
facto
resulted
in an unfair trial and consequently renders the admissions so
elicited inadmissible. The Court did
however
state (at 456H-J) that the previous Appellate Division cases may have
to be revisited in the light of the new constitutional
dispensation.
[11]
The question whether there is an obligation to inform an accused of
his right to remain silent when asked questions in terms
of s112 (2),
in my view, must be answered in the context of the right to remain
silent. It also requires appreciation of the import
of s39 (2) of the
Constitution, which provides as follows: " (2) When
interpreting any legislation, and when developing
the common law or
customary law, every court, tribunal or forum must promote the
spirit, purport and object of the Bill of Rights."
[12]
In
Hyundai
6
Langa
CJ with regard to s39 (2) held that in interpreting a Statute the
interpretation must be such that the ethos of the Constitution
is
achieved.
[13]
Section 2 of the Constitution provides that 'This Constitution is the
supreme law of the Republic; law or conduct inconsistent
with it is
invalid, and the obligations imposed by it must be fulfilled.
[14]
The S
v
Nkosi en Ander
(supra)
and S
v
Mabaso and Another (supra)
cases
were decided before the advent of the democratic constitution. In as
much as these Appellate decisions are authoritative,
they need be
followed, with respect, in the context of
stare
decisis
to
the extent they are consonant with the present supreme law;
vide
Afrox Healthcare BPK v Strydom
7
I
am of the respectful view that the interpretation of such authorities
must be seen through the prism of the Constitution. I am
respectfully
mindful of the caution that the High Court must defer to the Supreme
Court before departing s from
stare
decisis.
I
am further of the respectful view that there is good wisdom in
Director
of Public Prosecutions, Natal v Magidela and Another (supra)
that
s112 (2) need be revisited.
[15]
It needs borne in mind that s35 (1) guarantees an arrested person the
right to remain silent and to be informed of the consequences
of not
remaining silent; s35 (3)(h) guarantees an accused person the right
to remain silent and an not to testify during the proceedings;
while
s35(3)(j)
8
guarantees an accused person the right not to be compelled to make
self incriminating evidence. I am of the respectful view that
the
purpose of these sections is to accord both an arrested person and an
accused person protection and to ensure that when prosecuted
he has a
fair trial.
[16]
In
Maseko
9
matter
the Court said:
"...the
correct position is as stated by Kentridge AJ in S
v
Zuma and Others
10
,
where
he quotes with approval from different matter:
'Constitutional
rights conferred without express limitation should not be cut down by
treading implicit restrictions into
them,
so
as to bring them in line with the common Law. (Attorney-Generai v
Moagi
1992 Botswana)
LR
124
, at 184.) [16] That caveat is of particular importance in
interpreting s25 (3) of the Constitution. The right to a fair trial
conferred
by that provision is broader than the list of specific
rights set out in paragraphs
(a)
to
(j)
of
the subsection. It embraces a concept of substantive fairness which
is not to be equated with what might have passed muster in
our
criminal courts
before
the Constitution came into force. In
S
v Rudman and Another; S v Mthwana
11
,
the
Appellate Division, while not decrying the importance of fairness in
criminal proceedings, held that the function of a Court
of criminal
appeal in South Africa was to inquire
"...whether
there had been an irregularity or illegality, that is a departure
from the formalities, rules and principles of
procedure according to
which our law requires a criminal trial to be initiated or
conducted."
[17]
An accused person cannot be selectively informed of his right to
remain silent. Where an accused person is unrepresented, in
my view,
he must be informed of his right to remain silent so
that
he can make an informed decision
12
whether to or not to exercise this right
13
.
In line with what was said by Langa CJ in Hyundai
(supra),
the
interpretation to s112 (2) must be consonant with the ethos of the
constitution. This section must be interpreted in a manner
that
obliges the trial officer to inform an unrepresented accused of his
right to remain silent. This approach is consonant with
s35 (4) of
the constitution which demands that any information in this section
that must be conveyed to an accused. Besides the
questioning in terms
of section 112(2) might unlock admissions which would then be used to
convict the accused.
[18]
In the matter of
Director
of Public Prosecutions, Transvaal v Viljoen
14
Streicher
J. said:
'In
terms of s 35 (3)
(h)
an
accused has the right to a fair trial, which includes the right to
remain silent (not a right to be informed of the right to
remain
silent). The right is clearly one that can be waived. For waiver
knowledge is required. it is for
this
reason that accused should be informed of their right to remain
silent at a trial so that an informed decision can be made
as to
whether to remain silent or not. A failure to so inform an accused
may result in the thaT being unfair
(Director
of Public Prosecutions, Natal v Magideta and Another
15
.)
But
that can only be the case if the accused is unaware of his right to
remain silent."
[19]
In my view, s 35 (3) (j) section imports that self incriminating
evidence cannot be solicited from the accused person directly
or
indirectly. It is therefore, in my view, necessary that an accused
who intends to plead guilty be informed of this right to
remain
sifent before he is questioned in terms of s112 (2). 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 he can make an informed decision. I am of the view that a
different approach to this question would not
be
consonant with the ethos of the constitution. There is in my view an
obligation on the presiding officer to inform an accused
of his right
to remain silent before he is questioned in terms of s112 (2).
[20]
Where an accused person is asked questions in terms of s112 (2)
without having been informed of his right to remain silent
there is
an irregularity but the trial is not necessarily vitiated by such
failure
16
.
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 case by case basis.
[21]
In
casu,
the
appellant was asked questions without being advised of his right to
remain silent. All that was explained to him was the purpose
of the
questioning, namely to determine whether he actually intended to
plead guilty and if he is not mistaken in his plea. The
appellant was
then asked to explain what he did. The appellant then proceeded to
explain in his words what he had done. The magistrate
was then
satisfied
that
the appellant intended to plead guilty. However, the magistrate did
not simply accept the guilty plea in respect of all the
counts, in
respect of count 3 a plea of not guilty was entered in terms of s113
(1). The State then called a single witness in
respect of count 3
charge. I am satisfied that the appellant was not prejudiced by the
fact that he was not warned of his right
to remain silent when s112
(2) was employed. I am accordingly of the view that the proceedings
were fair and not tainted by the
failure to so warn him.
[22]
The appellant was in respect of counts 1 and 4 charged with forgery.
The appellant admitted that he falsified a Degree certificate
issued
by the University of Johannesburg (count 1) by removing the original
names thereon and inserting his names in April 2003.
In
respect of count 4 the appellant also admitted that he falsified a
degree certificate issued by the University of Zululand. He
admitted
in respect of both counts that he knew that what he was doing was
wrong and had no right to do so. Mr. Mogotsi on behalf
of the
appellant conceded that the appellant was correctly found guilty on
these count 1 and 4.
[23]
The charge against the appellant in Count 3 was that on 17 April 2008
he wrongfully, falsely with intent to defraud gave out
and pretended
to Mandlakayise Alfred Makhudu that he is the Minister of Department
of Land Affairs employed by the department of
Land, Affairs and would
build him a house were he to give him an amount of R650 in cash, to
the loss and prejudice of Mandlakayise
Alfred Makhudu, and that when
he gave out and pretended as aforesaid well knowing that he is not
the Minister of Land Affairs and
this committed the crime of fraud.
[24]
It is not in dispute that the appellant received from the complainant
the amount of R650. 00. During his plea explanation the
appellant
admitted receiving this amount and further said that the complainant
wanted him to assist him in processing a claim at
the Land Affairs to
get an RDP house. He informed the complainant to give him an mount of
R650 so that he can open a file for him
at his offices.
[25]
The State called the complainant who confirmed that he gave the
appellant the aforesaid amount. The reason he gave him the
money was
because the appellant and had informed him that he works for Land
Affairs and was going to build him a house at the farm.
The appellant
gave him a piece of paper written Land Affairs Commissioner. The
following day it was brought to his attention that
the appellant was
arrested. He too went to demand his money from the appellant but has
not to date received his money.
[26]
The appellant save for cross examining the witness did not testify in
his own defence. The court accepted the evidence of Mr.
Makhudu and
convicted the appellant on this charge.
[27]
It is contended on behalf of the appellant that this charge was
prematurely brought against the appellant because he could
not open a
file for the complainant as the result of his arrest the following
day to the receipt of the money.
[28]
Makhudu was a single witness. The Court was satisfied with this
witness. The appellant did not testify. What the appellant
said in
his plea explanation is no evidence. Besides it was not in issue that
he did receive this amount of R650. Makhudu produced
the piece of
paper on which it was written "Land Affairs Commissioner".
It was not disputed that this document was received
by Makhudu from
the appellant. The court accepted the evidence of Makhudu and
convicted him accordingly on this count. Where there
is evidence
imperilling an accused person, such as
in
casu,
he
can ill afford to exercise his right of silence. I am of the view
that the conviction of the appellant on count 3 cannot be faulted.
The appeal against count 3 should be dismissed and the conviction
confirmed.
[29]
The charge on count 2 was one of fraud in that "... on or about
14 April 2007 and at or near the Clinic in the district
of Volksrust
the accused did wrongfully, falsely and with intent to defraud give
out and pretended to Jabu Nzimande that he is Thabo Mohamutsa
from
the Department of Health at the offices of MEC Mpumalanga and did
then and there by means of the said false pretences induced
(sic) the
said Jabu Nzimande to the loss or potential loss of Jabu Nzimanade
and at the Department of Health to use the equipment,
the date stamp
and also the printers of the clinic whereas in truth and in fact when
the accused so gave out and pretended as aforesaid
he well knew that
he was not Thabo Mohamutsa of the Department of Health and the MEC
Mpumalanga."
[30]
The appellant pleaded guilty to count 2. The appellant admitted that
he made use of the stamp and equipment as mentioned in
the charge
sheet. He admitted that he knew that he was not employed at the
Department of Health. He further stated that he interviewed
some
members of the staff in order to get information they as a party
needed to persuade some action against the management. The
magistrate
convicted him on this
the
accused did wrongfully, falsely and with intent to defraud give out
and pretended to Jabu Nzimande that he is Thabo Mohamutsa
from the
Department of Health at the offices of MEC Mpumalanga and did then
and there by means of the said false pretences induced
(sic) the said
Jabu Nzimande to the loss or potential loss of Jabu Nzimanade and at
the Department of Health to use the equipment,
the date stamp and
also the printers of the clinic whereas in truth and in fact when the
accused so gave out and pretended as aforesaid
he well knew that he
was not Thabo Mohamutsa of the Department of Health and the MEC
Mpumalanga."
[30]
The appellant pleaded guilty to count 2. The appellant admitted that
he made use of the stamp and equipment as mentioned in
the charge
sheet. He admitted that he knew that he was not employed at the
Department of Health. He further stated that he interviewed
some
members of the staff in order to get information they as a party
needed to persuade some action against the management. The
magistrate
convicted him on this count on the basis of his plea of guilty and
explanation in terms of s112 (2).
[31]
It was submitted on behalf of the appellant that the appellant did
not admit all the elements of this offence and that the
magistrate
erred in convicting the appellant on this count. It is submitted that
the conviction on this count should be set aside.
[32]
The State conceded, quite correctly that the conviction on count 2 is
not in accordance with the law and should be set aside.
The appellant
did not admit that he had intended to defraud. A plea of not guilty
should have been entered in respect of this count.
The conviction on
this count should therefore be set aside.
[33]
In respect of count 2 it was submitted by the State that the
conviction should be set aside and appellant referred to the
magistrate to be tried de novo on this count. This concession was
correctly made since not all the elements were admitted by the
appellant. The conviction of the appellant was not in accordance with
justice but vitiated by an irregularity and should be set
aside.
[34]
I am of the view that since the setting aside of the conviction on
count 2 is not on the merits but on a technicality, the
appellant
should in terms of s322 of CPA be referred back to the magistrates
court for retrial in terms of s324 CPA.
[35]
The appellant was sentenced to six months in respect of each count.
There was no submission made on behalf of the appellant
in this
regard, f do not think that the sentences imposed in respect of those
counts that must stand should be interfered with
because they are not
excessive.
[36]
In the result I make the following order:
1.
That the appeal against conviction and sentence in respect of counts
1,3 and 4 is dismissed and the conviction and sentence on
these
counts are confirmed.
2.
That the appeal against both convictions and sentence in respect of
count 2 is upheld and the conviction and sentence are set
aside.
3.
That the case of the appellant in respect of count 2 is remitted to
the Magistrates Court for the District of Mpumalanga at Volksrust
for
retrial before another magistrate in terms of section 322 read with
s324
of the
Criminal Procedure Act 51 of 1977
.
Delivered
on 08 December 2010
M.
N. MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree.
R.
G. TOLMAY
JUDGE
OF THE HIGH COURT
1
[1984] ZASCA 44
;
1984 (3) SA 345
(A) 353D-E.
2
[1990] ZASCA 24
;
1990 (3) SA 185
(A) 201C-E.
3
1996 (2) SACR91 (W).
4
1997
(2) SACR 218
(W) 224E-F and 225B.
5
2000 (1) SA 458
(SCA) 465E-466B.
6
Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors Pty Ltd
2001
(I) SA 545,
2000 (10) BCLR 1079
(CC) paras 21-26.
7
2002 (6) SA 21
(CC) at p39 para[28]-[30].
8
"
S35(3)
Every accused person has a right to a fair trial which
includes the right-(j) not to be compelled to give
self-incriminating
evidence."
9
(Supra)
at
95f-h.
10
'"1995
(2) SA642 (CC) at 651 I,
11
n
1992
(1)SA 343 (A).
12
Vide
Director
of Public Prosecutions, Transvaal v Viljoen
2005
(1)
SACR 505
(SCA) at 520h-i para[43].
13
Vide
S v
Hlahvane
and Another
1
993(2)
SACR 362 (0) at page 364h.
14
2005
(1) SACR 505
(SCA) at 520h para [43].
15
2000 (1) SACR 458
(SCA) in para [18].
16
Vide S
v
Khuzwayo
2002
(1) SACR 24
(NCD) at 29G,