S v Manale (108/2008) [2008] ZAFSHC 16 (19 March 2008)

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[2008] ZAFSHC 16
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S v Manale (108/2008) [2008] ZAFSHC 16 (19 March 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Special
Review No. : 108/2008
In
the review between:-
THE
STATE
versus
GODFREY MANALE
CORAM:
C
J MUSI, J et FISCHER, AJ
_____________________________________________________
JUDGMENT
BY:
FISCHER,
AJ
_____________________________________________________
DELIVERED
ON:
19
MARCH 2008
_____________________________________________________
[1] This
matter was placed before me for special review in terms of section
304(4) of the Criminal Procedure Act 51 of 1977 (the Act),
on the
ground that, in the opinion of a certain Mr. T.D. Khati, a Judicial
Quality Assurance Magistrate in the Free State “A”
Cluster
Bloemfontein, it appeared that the accused had raised a valid defence
and that his plea of guilty was quite not freely and
voluntarily
tendered.
[2] The accused was
charged with one charge of assault with intent to do grievous bodily
harm, and on having the charge put to him,
advised the court that he
was pleading not guilty. His legal representative, a certain Mr.
Pieterse, thereupon advised the court
that the plea of not guilty was
contrary to his own instruction, which in turn elicited a line of
questioning put to the accused
by the presiding magistrate which will
later be dealt with in greater detail.
[3] Thereafter a written
statement as envisaged in terms of section 112(2) of the Act was
handed up. The accused was thereupon convicted
and sentenced to two
years imprisonment which was wholly suspended for five years subject
to certain conditions.
[4] From
the record of the proceedings in this matter the following took place
prior to the conviction namely, the questioning of
the accused by the
presiding magistrate and the subsequent handing up and reading into
the record of the plea as envisaged in terms
of section 112(2) of the
Act.
[5] The
relevant portion of the record relating to the questioning of the
accused by the presiding magistrate reads as follows:
“
HOF
Wat pleit hy op die aanklag skuldig of onskuldig?
BESKULDIGDE
Ek het hom gesteek.
Ja dit is nie, wat pleit u skuldig of
onskuldig dat jy hom gesteek het met die opset om hom ernstig te
beseer?
BESKULDIGDE
Ek is SKULDIG ek het hom gesteek.
HOF
Met die opset om hom ernstig te beseer?
BESKULDIGDE
Ja.
HOF
Pleit u dan skuldig op die klagte?
BESKULDIGDE
Ja met redes.
HOF
Die klag is dat jy hom gesteek het met ‘n gebreekte bottel met die
opset om hom ernstig te beseer, pleit u skuldig of onskuldig
op die
klagte?
BESKULDIGDE
SKULDIG.”
[6] Mr.
Pieterse, the legal representative appearing for the accused,
thereupon advised the court that in terms of his instruction
a
written statement had been prepared which he intended to hand up and
read into the record. The relevant portion of the written
statement
as envisaged in terms of section 112(2) of the Act reads as follows:
“
1. I the undersigned Godfrey Manale
hereby declares as follows: I am the accused in this matter and
familiar with the charge against
me.
2. Nobody
forced or influenced me to make this statement and this is how I want
to tell what happened.
3. On Monday
06-11-2006 I went to the abattoir at Jagersfontein around one o’clock
in the afternoon. I was travelling with a bicycle
in the street
where Winners Inn Tavern is situated when I noticed the complainant
Tienie van Vuuren who was screaming and swearing,
I did not know
about what. The complainant then looked at me and said to me ‘
Jy
ry kak met die fiets
’,
I stopped whereupon the complainant hit me against the head with an
open hand. I did not fight back and took my bicycle and
went to
Winners Inn Tavern to phone the police. They told me that there
vehicles were busy, (sic) I told the police that they would
find me
at the abattoir. I thereupon rode to the abattoir at the abattoir I
was told to come back later an (sic) at about three
I went back to
the abattoir. On the way there met up with Dheledi Riet, we went
along together and again at Winners Inn I turned
up and she went on
to Ithumeleng.
4. When
I passed Winners in Tavern the complainant was standing at the gate
of his house which is next to the Winners Inn Tavern.
The
complainant started to swae (sic) at me again and said ‘I was a
‘kaffir’ and he will remain white while I will remain
black. He
also said ‘
ballas
and poes en hy fok niemand nie
’.
We started to argue because the complainant was swearing at me. The
complainant then grabbed hols (sic) of my bicycle and hit
me with his
fist against the head whereupon I fell to the ground. The
complainant then left and I went to the telephone booth at
Winners
Inn Tavern to phone the police. They told me that the vehicles were
still busy (sic) but they will send a vehicle which
they never did.
When I arrived at the telephone booth I saw that the complainant was
standing inside. The complainant then turned
around an (sic) saw me
at the telephone booth next to the door of the tavern. He approached
me and when he was near to me I asked
him why he hit me earlier, he
did not answer and when I the saw that he held red folding knife
(sic) in his left hand. I turned
and saw an empty Savannah bottle
standing near the rubbish bin, I grabbed hold of the bottle and hit
it against the rubbish bin whereupon
it broke. As I turned back to
the complainant I saw that his left arm was raised and that he was
maybe going to stab me and I stabbed
thereupon with the piece of
bottle in my hand on the left elbow so that he sustained a
laceration. The knife fell to the ground
and I picked it up to hold
as evidence and I left the scene. The following Wednesday I was
summoned to the police station whereupon
my arrival I was arrested on
a charge of assault with intent to cause grievous bodily harm.
5. I
admit that by stabbing the complainant with the bottle piece I
applied excessive violence to the person of the complainant under
the
circumstances and therefore admit that I am guilty of assault with
intent to cause grievous bodily harm.”
[7] If the questions put
to the accused by the presiding magistrate are read in the context of
the written statement handed up by
the accused in terms of section
112(2) of the Act, it is quite clear that the answers as well as the
statement do not contain admissions
of fact upon which the
allegations in the charge sheet are based.
“
Section 112(2) provides that where
an accused or his legal advisor hands in a written statement by the
accused in which the accused
sets out the facts which he admits and
upon which he had pleaded guilty the Court may, instead of
questioning the accused, convict
and sentence him. It is clear that
this section required not only a series of admissions but the facts
upon which those admissions
are based.”
See
S
v B
1991 (1) SACR 405
(N) at 406 b.
[8] Section
112(2) of the Act gives the court a discretion to put any question to
the accused in order to clarify any matter raised
in the written
statement handed up and read into the record. This proviso has been
interpreted to mean that it is imperative that
the court should be
satisfied not only that the accused committed the act charged of but
that he committed it unlawfully and with
the necessary
mens
rea
.
See
S
v LEBOKENG
1978 (2) SA 674
(O).
[9] It is quite clear
from a reading of the record that the accused did not admit all the
essential facts as set out in the charge
sheet but, more importantly,
in fact raised what is tantamount to a plea of self defence.
[10] Had
the court applied its mind to the written statement especially
following on the answers to the questions raised by the court,
the
court would have been left in no doubt that there was material
ambiguity regarding admission of all the relevant allegations
against
the accused and the presiding magistrate should have, in the
circumstances, entered a plea of not guilty in terms of section
113
of the Act. But this was not done. For the reasons mentioned
earlier and in the premises, the conviction and sentence are set
aside and the matter is remitted to the Magistrate’s Court for
hearing
de
novo
before another presiding officer.
________________
P.U.
FISCHER, AJ
I concur.
________________
C. J. MUSI, J
/sp