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CA NO: 50/07

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

LUCAS TLAKA

REVIEW JUDGMENT

SWART AJ:

[1] This case has been sent for review by the Magistrate for the district of Madikwe. The accused was charged with culpable homicide. It was alleged that upon or about 21 October 2006 and on Tlokweng Main Road, a public road in the district of Madikwe, the accused did wrongfully and negligently kill Phillip Nane an adult male by running over him with a motor vehicle.

[2] The accused pleaded guilty and, after the Magistrate had asked him certain questions, she found him guilty of culpable homicide as charged and sentenced him to three (3) years imprisonment suspended for a period of five (5) years on condition that accused is not again convicted of culpable homicide or any offence defined under the National Road Traffic Act, Act 93 of 1996 committed during the period of suspension.

[3] No evidence was led in the case but the Magistrate was clearly of the view that the replies the accused furnished to her when she endeavoured to question him in terms of the provisions of Section 112 of Act 51 of 1977 established his guilt.

[4] The record relating to the proceedings in terms of Section 112(1)(b) of Act 51 of 1977 by the Magistrate reads as follows:-

“PROSECUTOR READS CHARGE INTO THE RECORD

ACCUSED PLEADS GUILTY

COURT: (Inaudible).

PROSECUTOR: (Inaudible) in terms of section 112(1)(B) of the Criminal Procedure Act, that would be on the main charge your worship.

COURT: Sir since you have pleaded guilty to this charge the court is going to question you in terms of the provisions of section 112(1)(B) of Act 51 of 1977 and you are warned by this court to answer the questions as honestly as possible. Do you understand?

ACCUSED: I understand.

COURT: The reason being that you may be convicted following these line of questioning and without evidence being lead.

ACCUSED: I understand.

COURT: If all allegations in the charge sheet are admitted. Did you understand?

ACCUSED: Yes.

COURT: Sir do you plead guilty voluntarily?

ACCUSED: Yes.

COURT: Were you at Tlokwe Main Road on 21 October 2006?

ACCUSED: Yes.

COURT: Is that place within the magisterial district of Madikwe?

ACCUSED: Yes.

COURT: Is it correct that whilst on this date, while at this place on this date you drove a motor vehicle with registration number, Mr Prosecutor? Your annexure does not have, is it (inaudible).

PROSECUTOR: For the main (inaudible) the registration number is not there.

COURT: Is not there. Nissan 1400. (Inaudible). Sir is it correct that on this date and at this particular place you wrongfully killed Phillip Nana?

ACCUSED: Yes I knocked him and when I made a u-turn to go and see how was he injured I was then pushed by the people from the nearby tavern, they threw stones at me.

COURT: Did you have the intention of killing him”

ACCUSED: No.

COURT: Is it further correct that you killed him by running over him with a motor vehicle?

ACCUSED: Yes, I knocked him.

COURT: Thank you. There is no further questioning by this court, Mr Prosecutor do you accept the plea?

PROSECUTOR: Your worship the plea is in accordance with the facts contained in the state docket.”

[5] The relevant portion of Section 112(1)(b) relating to the questioning of an accused person who pleads guilty reads as follows:-

“112(1)(b):- … the Magistrate … shall … question the accused with reference to the alleged facts of the case in order to ascertain whether he admits the allegations in the charge to which he pleads guilty, and may if satisfied that the accused is guilty of the offence to which he has pleaded guilty convict the accused on his plea of guilt of that offence …”

[6] The accused was undefended in the matter.

[7] Hiemstra in Suid-Afrikaanse Strafproses, Fifth edition page 296 comments inter alia as follows:-

“Daar moet by die ondervraging meer gedoen word as om slegs te vra of die beskuldigde die bewegings in die aanklag erken. Deur skuldig te pleit het hy dit in elk geval reeds gedoen. Dit mag daarom ook onvoldoende wees om die beskuldigde stapsgewys iedere bewering in die klagstaat te laat erken. Die hof moet immers volgens subartikel (1)(b) ook oortuig [wees] dat die beskuldigde skuldig is aan die misdryf waaraan hy skuldig gepleit het. Wanneer die feite erken is, moet die hof seker wees dat die beskuldigede begryp wat dit behels. Om te vra of hy wederegtelik gehandel het, of onregmatig, veronderstel regskennis aan die kant van die beskuldigde wat hy waarskynlik nie het nie …”

[8] It is clear that the Magistrate failed to appreciate what her duty was as laid down by Section 112(1)(b), and failed to satisfy herself that the accused appreciated and indeed admitted inter alia “wrongfulness” and “negligence”.

[9] The mere fact that he admitted having collided with the deceased or admitting that he was “negligent” does not constitute a factual basis upon which the Magistrate could have satisfied herself that the accused intended to plead guilty, or that he was indeed guilty.

[10] The Magistrate in the premises did not comply properly with the provisions of the Section and she should not have been satisfied from the answers to his questions either (a) that he had offered an unequivocal plea of guilty; or (b) that he was in fact guilty as charged.

[11] The accused’s answers correctly construed fell noticeably short of an admission of guilt and were consequently insufficient to satisfy the court that he really was guilty. More facts should be obtained as to exactly how the collision occurred.

[12] It follows that the conviction of the accused cannot stand.

[13] As far as the sentence is concerned, due consideration should be given to the condition of suspension referring to “or any offence under the National Road Traffic Act”. Any insignificant traffic violation can lead to the sentence becoming operative. In my view such a condition is much too wide.

[14] The conviction is set aside, together with the sentence. The case is remitted to the Magistrate’s Court, for another Magistrate to enter a plea of not guilty and deal with the matter accordingly.

A J SWART

ACTING JUDGE OF THE HIGH COURT

I agree.

M M LEEUW

JUDGE OF THE HIGH COURT

10 AUGUST 2007

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