S v Mbelo (K/S 66 /200) [2001] ZANCHC 1 (26 February 2001)

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[2001] ZANCHC 1
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S v Mbelo (K/S 66 /200) [2001] ZANCHC 1; 2003 (1) SACR 84 (NC) (26 February 2001)

VERSLAGWAARDIG JA/NEE
SIRKULEER ONDER REGTERS JA/NEE
SIRKULEER ONDER LANDDROSTE JA/NEE
IN THE HIGH COURT OF SOUTH-AFRICA
(NORTHERN CAPE DIVISION)
KIMBERLEY
CASE
NO.:K/S 66 /200
DATE:26-02-
2001
THE STATE
versus
JOHANNES MBELO
CORAM:
MAJIEDT
R.
REASONS FOR JUDGMENT
MAJIEDT R:
This matter came before me for sentence in terms of the provisions
contained in section 52(1)(a) of the Criminal Law Amendment
Act
(
“the Act”
). The accused had been convicted in the
regional court of rape of a 14 year old girl. The magistrate then
stopped the proceedings
and committed the accused for sentence to
this court.
Mr. Muhlohlonyi, who appeared for the accused, has submitted that
the committal for sentence was irregular and that this matter
does
not fall within the ambit of section 52(1) of the Act. I have ruled
that the committal was regular and that the matter was
properly
before me for sentence. I indicated at the time that I would
furnish full reasons for my decision later.
These are they.
Section 52(1) of the Act reads as follows: -
“52 Committal of accused for sentence by High Court after plea of
guilty or trial in regional court
“
(1) If a regional court, after it has convicted an accused
of an offence referred to
in
Schedule 2 following on-
(a) a plea of guilty, or
(b) a plea of not guilty,
but before sentence, is of the opinion that the offence in respect
of which the accused has been convicted merits punishment in excess
of the jurisdiction of a regional court in terms of section 51, the
court shall stop the proceedings and commit the accused for sentence
by a High Court having jurisdiction.”
Mr. Muhlohlonyi has submitted that neither the age of the complainant
nor the age of the accused had been properly proved in the
regional
court proceedings.
It is therefore not a matter where
sentence would exceed the jurisdiction of the regional court as
contemplated in section 52(1),
read with section 51(1) of the Act.
Section
51(1) of the Act reads as follows:
“51 Minimum sentences for certain serious offences
(1) Notwithstanding any other law but subject to subsections (3)
and (6), a High Court shall, if it has convicted a person of an
offence
referred to in Part I of Schedule 2, sentence the person to
imprisonment for life.”
Section 51(6) of the Act reads:
“
The
provisions of this section shall not be applicable in respect of a
child who was under the age of 16 years at the time of the
commission
of the act which constituted the offence in question.”
One of the offences contained in Part 1 of Schedule 2 is:
“
Rape,
when committed where the victim is a girl under the age of 16 years.”
The accused was represented by an attorney in the regional court.
The accused pleaded guilty and on his behalf his attorney submitted
a written explanation of plea in terms of
section 112(2)
of the
Criminal Procedure Act, 51 of 1977
, which was:
signed by the accused by affixing his right thumbprint thereon;
read into the record by the attorney;
admitted into evidence as exhibit “A”, after the accused had
again orally confirmed the correctness thereof to the magistrate.
I quote verbatim the salient portion of the said plea explanation:
“
Ek
die ondergetekende, Johannes Mbelo, verklaar:
(1)
Ek erken dat ek op 16 Oktober 1999 te Perseel 4F10, Hartswater in
hierdie streekafdeling vir (klaagster), ‘n
14 jarige
meisie
wederregtelik verkrag het. . . ‘
(My own emphasis).
Immediately after the explanation of plea had been read into the
record by the attorney, and after the Magistrate had confirmed
the
correctness thereof from the accused, the attorney
formally
admitted
that the complainant is 14 years of age. A baptismal
certificate confirming this was then handed in as an exhibit by
agreement between the parties.
7. With regard to the age of the accused, the following transpired: -
When the charges were read out to the accused at the commencement
of the hearing, the magistrate enquired from the accused about
his
age and the latter replied that he was 17 years old. The
magistrate then asked the father of the accused, Mr. Frans Zali,
to
confirm this and Mr. Zali did so.
The matter was adjourned for sentence to obtain a probation
officer’s pre-sentencing report – at the resumed hearing the
prosecutor handed in as an exhibit
by agreement
with the
defence attorney, a baptismal certificate of the accused
reflecting that he was born on 18 December 1981 (i.e. that
he was
indeed 17 years old at the time of the commission of the offence).
The attorney furthermore confirmed that the
contents of the said
certificate is admitted.
In the probation officer’s report the date of birth of the
accused was recorded as being
18 December 1982
, such
information having been obtained from the accused himself. The
probation officer noted that she did not have documentary
proof of
this.
8. It is patently obvious that the age of the complainant as well as
the age of the accused is of material importance in this matter.

Where the age of either an accused or a complainant is material to
either the offence or to sentence, hearsay evidence thereof is
inadmissible;
See
inter alia:
S v Moeketsi
1976(4) SA 838(O) at 840E;
S v Magqabudi
1983(4) SA
54(TK).
Mr. Muhlohlonyi is clearly correct (and Mr. Hinana, who appears for
the State, has conceded as much), that a baptismal certificate
is
not sufficient proof of age;
See:
R v K
1951(3) SA 180 (SWA) at 182B;
S v Moeketsi
(
supra
)
at 840D-E.
It is also correct that the information furnished by the accused and
his father as the age of the accused was unattested and did
not
constitute evidence.
The information contained in the
probation officer’s report relating to the accused’s age, is
nothing other than hearsay.
The matter does not, however, end there. As I have indicated, the
accused had been legally represented and certain formal admissions
had been made by his attorney. These related to both the
complainant’s age and that of the accused.
It is well-established that an accused/litigant is bound by the
admissions made on his/her behalf by his/her legal representative,
unless:
such legal representative has not been properly instructed; or
the admission was made as a result of a
bona fide
mistake.
See:
Dlamini v Minister of Law & Order
1986(4)
SA 342(D);
S v Malebo en andere
1979(2) SA 636(B) at 644.
Such an admission constitutes sufficient (albeit not conclusive)
proof of the admitted fact/s;
See:
S v Seleke en ‘n ander
1980(3) SA 745(A) at 754G;
S v Sesetse en ‘n ander
1981(3) SA 353(A) at 374.
Mr. Muhlohlonyi relies on neither of the abovementioned grounds for
his attack on the admissions made at the hearing. He has
submitted
instead that the attorney had made the admissions without a proper
appreciation of the fact that a baptismal certificate
does not
constitute sufficient proof of age.
He relies on the following dictum of Thirion J in
S v Naidoo
1985(2) SA 32 (N) at 37I-J, for his submission that the admission was
made without proper knowledge of the facts and without a proper
appreciation of the sufficiency of proof: -
“
Where,
however, the accused admits facts of which he has no personal
knowledge further considerations arise. In such a case the
considerations
which have been mentioned earlier on in this judgment
such as the sufficiency of the accused’s source of knowledge may
become of
decisive importance.”
The Naidoo case is clearly distinguishable on the facts – it was a
review matter and the accused had not been legally represented.
Counsel or an attorney, once duly instructed, is in full control of
his/her client’s case, while that mandate endures.
See:
R v Matonsi
1958(2) SA 450(A).
Where an accused has failed to terminate the mandate of his/her legal
representative or where he/she fails to withdraw or object
to an
averment or admission made during proceedings on his/her behalf, a
Court is fully entitled to rely on such averment or admission.
See:
S v Gope &others
1993(2) SACR 92(CK).
This is
indeed the case here.
I am not aware of any decided case where an accused has
successfully attacked admissions made on his/her behalf by his/her

legal representative on the basis of the latter’s incompetence or
lack of knowledge of the law.
Mr. Muhlohlonyi has also not been able to refer me to any such
authority and, as I have pointed out to him during argument, there
is
in fact authority to the contrary.
In
S v Bennett
1994(1) SACR
391(C) (a matter in which I was on the receiving end as Counsel), the
Court ruled that incompetence of a legal representative
at the trial
of an accused person, can, generally speaking not be raised to
challenge the correctness of a verdict subsequently,
in circumstances
where Counsel’s mandate had not been terminated during the trial.
There is nothing on the record, nor has any additional evidence
been adduced to persuade me that the admissions had not been
properly made by the attorney on behalf of the accused. Moreover,
the record reflects that in each of the two instances where
the
relevant admissions as to age had been made, the magistrate
enquired from the accused who confirmed the correctness of the
said
admissions.
11. For these reasons, I was satisfied that the committal had been
regular and that the matter was properly before me. I accordingly
proceeded to impose sentence on the accused.
_____ ___________________
S.A MAJIEDT
JUDGE
Counsel for the State: Mr. S.
Hinana
Counsel for Accused: Mr. M
Muhlohlonyi