S v M AND OTHERS

(SUPREME COURT OF BOPHUTHATSWANA)

1979 June 11; July 23   HIEMSTRA CJ and STEENKAMP J

Criminal procedure-Trial-Plea-Plea of not guilty-Act 51 of 1977 s 115-Accused's silence at time for indicating basis of his defence­ What inferences can be drawn- When an unfavourable inference can be drawn.
Criminal procedure-Trial-Plea-Plea of not guilty-Act 51 of 1977 s 115-Warning which ought to be given by court to accused before stage of indication of basis of defence and questioning in connection therewith-Suitable form of warning suggested.
Criminal procedure-Trial-Plea-Plea of not guilty-Act 51 of 1977- Section 115 (2) (b) thereof amended in Bophuthatswana-Amendment does not inhibit court's powers of questioning-Intention of amendment discussed.

In regard to the question of whether an inference unfavourable to the accused can be drawn from his election not to make a statement indicating the basis of his defence and not to answer questions, in terms of s 115 of the Criminal Procedure Act 51 of 1977, first and foremost the accused must have an opportunity of saying why he elects to remain silent. If he goes into the witness­box, it must be put to him, otherwise no inference can be drawn. If he does not enter the witness-box, he renders himself open to an unfavourable inference being drawn from his silence both at the beginning as well as at the end. If an accused or his legal adviser deems it advisable that he should remain silent at the time for indicating the basis of his defence, the inference that he wants to hide something and hopes that the prosecution will not bring it to light, or that he first wants to see what the State can prove before he talks, is permissible. Section 115 makes no inroad into the common law position in connection with the appropriate inferences which can be drawn from silence, or that it can be regarded as an admission, depending on the circumstances. At the same time silence at the time for indicating the basis of the defence cannot per se lead to an unfavourable inference.

Essentially, the dispute in connection with warnings before the time for indicating the basis of the defence turns on the form thereof. A warning adapted from Judges' rules would defeat the procedure of s 115 because accused persons would think it was dangerous for them to talk. In reality, a statement indicating the basis of the defence taken with efficiency has helped many an accused who was not in a position to place his defence before the court properly by way of cross-examination and argument. In order to create the proper atmosphere and not to lose the value of the explanation of plea, it is suggested that the explanation of plea be introduced approximately as follows: 

"Do you want to make a statement indicating the basis of your defence? The court is in any event entitled to ask you questions to ascertain what your defence is, but you are not obliged to answer them."

Whether he makes a statement or not, the court can then put questions and his reaction thereto can be a subject for cross-examination, if he enters the witness-box. This procedure will accord fully with recognized practices as also with the aims of s 115. According to the accused's evidence, or his decision not to give evidence, an inference can then be drawn from an election not to give a statement indicating the basis of the defence.

The amendment made in Bophuthatswana to s 115 (2) (b) does not inhibit the court's powers of questioning. The intention of the amendment was to draw to the attention of the court and the accused that the questions were being put to ascertain whether the accused had a defence, and, if so, what it was. A duty is placed on the court to tell the accused what the purpose of the questions is. Then the goal will be more purposefully sought. Admissions remain admissions and, although the reference to s 220 is no longer found in s 115 (2) (b), the effect of the admission remains the same. Although the accused's consent no longer has to be asked, the admission will not for this reason fall short of the requirements for an admission which makes proof unnecessary. The notation can still be read to the accused to make certain that it is correct.

Appeal from a conviction and sentence in a magistrate's court. The facts appear from the judgment.

M H Wessels for the appellants.
J W Nottingham for the State.

Cur adv vult. 

Postea (July 23).

HIEMSTRA CJ: There were four accused before the regional court at Taung. All four of them were convicted of (i) housebreaking with intent to rape and rape;·(ii) theft. The first accused received a very lenient sentence and he abides thereby. The other three appeal against their convictions and sentences. Each of them received five years' imprisonment and four strokes with a cane in respect of the two counts taken together for the purpose of sentence.

The regional magistrate gave a comprehensive summary of the facts, and nothing which Mr Wessels, for the appellants, could submit could cast any doubt on the magistrate's factual findings. The State proved its case so convincingly that we need not discuss the particulars of the facts as far as the conviction is concerned. In addition the accused elected not to go into the witness-box.

It is a procedural aspect as well as the sentence which calls for a discussion. The accused's advocate, Mr Wessels, informed the court that the accused were not desirous of making a statement in terms of s 115 of the Criminal Procedure Act 51 of 1977 indicating the basis of their defence. The magistrate then also did not put any questions in terms of ss 2 (a) or (b). He was of opinion that he was not entitled to do that, but the accused were in any case, on the advice of their legal representative, also not prepared to answer questions.

In Bophuthatswana an amendment was made to s 115 (2) (b) which is reflected here in its amended form, but for completeness' sake ss (a) is algo given. An interpretation of the amended provision must be given here because the magistrate misunderstood it. In addition there is also the fact that a question which has already been debated, but which has not yet been answered in a reported judgment arises here. It is the question whether an inference unfavourable to the accused can be drawn from his election not to make a statement indicating the basis of his defence and not to answer questions in elucidation of his plea.

Section 115 (2) presently reads as follows in Bophuthatswana but the version of the text which is still operative in the RSA is also given:

(2) (a) Where an accused does not make a statement under ss (1) or does so and it is not clear from the statement to what extent he denies or admits the issues raised by the plea, the court may question the accused in order to establish which allegations in the charge are in dispute.

(b) The court may in its discretion put any question to the accused in order to clarify any matter raised under ss (1) or this sub-section, and shall [enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an admission under s 220] inform the accused that the questions are put order to determine whether he has a defence, and what it is.

The portion between square brackets was deleted in Bophuthatswana, but still exists in the RSA. The italicised portion is a new insertion in Bophuthatswana. The magistrate was under the impression that he could only put questions about something which was raised under ss (1). But ss 2 (b) says clearly enough "ss (1) or this sub-section", ie ss (2). There was never any doubt that the court may put questions to determine and elucidate the issues, whether the accused made a statement under ss (1) or not. He can elect not to make a statement at all and he can still be questioned. Then he can refuse to answer, and if he refuses the trial proceeds.

From what happened here two questions arise regarding the law of as procedure. One is whether an inference unfavourable to the accused can be drawn from his election not to make a statement indicating the basis of his defence and not to answer questions. The other question is what the effect is of the amendment made to s 115 (2) (b) in Bophuthatswana.

I first deal with the question of an unfavourable inference which can be drawn from the accused's silence at the stage of pleading. First and foremost the accused must have an opportunity of saying why he elects to remain silent. If he goes into the witness-box, it must be put to him, otherwise no inference can be drawn. He may possibly reply that he sees no reason why he should assist the State. That must in the circumstances be evaluated. If he does not enter the witness-box, he renders himself open to an unfavourable inference being drawn from his silence both at the beginning as well as the end. Naturally one would expect that the accused would co-operate in reducing the issues. His behaviour in and about the court in addition to his manner of speech in the witness-box are all part of the evidential material in so far as it is relevant in regard to his guilt or innocence. The case is not analogous to a refusal to say something to the police. As the police must first give a warning, no inference can be drawn if someone takes the warning seriously. Warning or no warning, it is accepted custom that a suspect need not say anything to the police if he so elects. In the case of explanation of plea it is different. There is an invitation to reduce the issues between him and the State. If an accused or his legal adviser deems it advisable that he should remain silent, the inference that he wants to hide something and hopes that the prosecution will not bring it to light, or that he first wants to see what the State can prove before he talks, is permissible. Section 115 is intended to prevent the accused from adapting his version according to circumstances.

It is so that the bill of the new Criminal Procedure Act contained a clause 115 (3) which provided expressly that an unfavourable inference could be drawn from the silence of the accused. This provision was deleted in the committee stage in the House of Assembly and from that the inference has already been drawn that the Legislature did not want to allow any inference. The parliamentary history of an Act, or a commission's report thereon are not taken into consideration in interpreting it. (S v National Board of Executors Ltd and Others 1971 (3) SA 817 (D) at 827D; Mavromati v Union Exploration Import (Pty) Ltd 1949 (4) SA 917 (A) at 927; Mathiba and Others v Maschke 1920 AD 354 at 362.) If there was a particular intention with the deletion, it could have been expressed in the Act, but the Legislature elected to leave the section to interpretation by the Courts. At common law an appropriate inference can be drawn from any silence or it can be regarded as an admission, depending on the circumstances. The common law position is maintained in so far as the Legislature does not alter it. Such an inroad cannot be observed here.

A reasoned opposite view is formulated by P M Bekker in De Jure October 1978 200 at 208-209. The direct contradiction between the two points of view is, however, considerably reduced by the following passage at 209:

"It is, however, certain that the accused, should he elect to give evidence under oath, can be cross-examined about his silence at the time of the explanation of the plea. From his answers inferences can be drawn depending on what he says, but in my opinion an inference cannot per se be drawn from his silence at the time of the explanation of the plea.

That silence per se can lead to an unfavourable inference cannot be defended and is indeed not a point of view ever held before. It is fundamental that evidence or other evidential material from which the court wants to draw an inference can be put to the accused, in case he wants to deny it or explain it in such a way that it fits in with the framework of his innocence. If the accused elects not to testify and can, therefore, not be cross-examined, it is his own fault. The issue is then hardly of any importance, because his choice not to reply to the State's case, is in any case of much more importance than any other silence.

The issue can be more clearly formulated by asking: can he be cross­ examined on his choice not to give an explanation of his plea? If the answer to that is in the affirmative, the logical conclusion can no longer be escaped: depending on his explanation such inference can be drawn from the accused's decision not to give an explanation of his plea which is reasonable in the circumstances. There may be cases where it carries no weight, but it cannot be said that the court is not entitled to take into consideration the question whether silence in the light of all the circumstances is an indication one way or the other. 

It is relevant whether a warning should be given to the accused that he need not say anything. Such a warning can intimidate a person with the result that silence is understandable. Against that every person must be aware of his rights and for a long time already our Courts decided that an accused must eg know which presumptions may operate against him. Bekker says at 208:

"The statement that the explanation of plea is only intended to determine the issues is not correct because the accused can certainly incriminate himself while giving it. I accordingly agree with the decision that the accused must be warned at the time of explanation of the plea that he need not say anything. According to a senior regional magistrate this warning is also given in practice to accused in lower courts.

The writer then refers to S v Rakanang 1978 (1) SA 591 (NC) where VAN DEN REEVER J at 593H discusses an irregular questioning. What happened was that the accused said: "I do not wish to say anything". Notwithstanding that questions were put to him without advising him that he was not compelled to answer. The irregularity can be found in the fact that the accused's wish to exercise his right to remain silent was ignored. Section 115 (2) (a) is of importance:

"(2) (a) Where an accused does not make a statement under ss (1) ... the court may question the accused in order to establish which allegations in the charge are in dispute."

There is no doubt that questions may be put, whether the accused made a statement about his defence or not, but in Rakanang's case he was questioned notwithstanding his expressed desire to remain silent.

Another reference to warning appears in S v Muzikayifani and Others 1979 (2) SA 516 (D) at 519F-G where LAW J says: ".........."

And further, at 520B: ".........."

The passage at 410 referred to, is my own and it reads as follows:
".........."

Essentially the dispute is only about the form of the warning. The nature of this procedure is entirely different to that where a policeman gives a warning to a suspect in terms of the Judges' Rules or where a magistrate is on the point of taking a confession. Police questioning and confessions are surrounded by precautions because the court is not aware of everything taking place at a police station. A procedure which is conducted by a judicial officer and is aimed at reducing the issues and determining the defence is on a completely different basis. A warning adapted, for example, from Judges' Rules would have the following result:

"Do you wish to make a statement to indicate the basis of your defence? You are not compelled to do that, but admissions made by you will be reduced to writing and will be binding on you."

Such a warning would frustrate the procedure because accused persons will think that it is dangerous to talk. In reality, a statement indicating the basis of the defence taken with efficiency has helped many an accused who was not in a position to place his defence before the court properly by way of cross-examination and argument. There is an analogy with the Dutch "judicial provisional investigation". Van Bemmelen Strafvordering mentions nothing about a warning but says at 162:

''No questions are put, which have the effect of obtaining statements, of which it cannot be said that they were freely made."

In order to create the proper atmosphere and not to lose the value of the explanation of plea, it is suggested that the explanation of plea be introduced approximately as follows:

"Do you want to make a statement indicating the basis of your defence? The court is in any event entitled to ask you questions to ascertain what your defence is, but you are not obliged to answer them."

Whether he makes a statement or not, the court can then put questions and his reaction thereto can be a subject for cross-examination, if he enters the witness-box. This procedure will accord fully with recognised practices as also with the aims of s 115. According to the accused's evidence, or his decision not to give evidence, an inference can then be drawn from an election not to give a statement indicating the basis of the defence.

The second question which is raised by the magistrate's action is the effect of the amendment made in Bophuthatswana. I have already directed attention to the fact that it does not inhibit the court's powers of questioning. The original section provided that when the accused did not place an allegation in the charge in issue the court had to ask him whether such allegation was admitted and whether it could be recorded as an admission. If he agreed it was deemed to be an admission in terms of s 220. In the large majority of cases magistrates never asked the accused whether his admission of allegations in the charge could be recorded as admissions. Where it was in fact done the accused usually did not understand the position, because the court in any case recorded everything he said, with or without his consent. In addition there was uncertainty about the question of what should have happened with the admissions in respect of which the accused's "consent" was not requested. I was all along of opinion that it made no practical difference but it was a complicating aspect in the old s 2 (b) which rather had to be removed.

In many cases the explanation of the plea was ineffective and the object of the amendment is further to draw to the attention of the court and the accused that questions are being put to ascertain whether the accused has a defence, and, if so, what it is. A duty is placed on the court to tell the accused what the purpose of the questioning is. Then the goal will be more purposefully sought. Admissions remain admissions and, although the reference to s 220 is no longer found ins 115 (2) (b), the effect of the admissions remains the same. Section 220 requires no consent from the accused before an admission can be recorded as such. It reads as follows: 

''220. An accused or his legal adviser may in criminal proceedings admit any fact placed in issue at such proceedings and any such admission shall be sufficient proof of such fact.''

The effect thereof was formulated as follows by RAMSBOTTOM J in R v Fouche 1958 (3) SA 767 (T) at 777C (s 284 was the similarly worded predecessor of s 220): ".........."

The accused is explaining his defence, and the recording of admissions takes place with formality. That complies with what was regarded as desirable by OGILVIE THOMPSON JA in S v W 1963 (3) SA 516 (A) at 522D: "......."

Although the accused's consent no longer has to be asked the admission will not for this reason fall short of the requirements for an admission which makes proof unnecessary. The view that an admission which is not recorded with the express consent of the accused can also exclude issues is confirmed in S v Murray 1979 (2) SA 677 (E) at 679D-G. The notation can be read to him to ensure that it is correct.

Reference must still be made to the sentence. It was five years and four strokes for the three appellants. The first accused, who did not appeal, only received seven cuts with a light cane, although he was 20 years of age and the others only one year older. Here is in fact a great disparity, but there is no reason to emeliorate a sentence of one accused, which is a reasonable sentence, just because another accused was punished inadequately. The Court will substitute one mistake by two. There is a case where the sentence was reduced on account of disparity (R v Mpofu 1968 (3) SA 142 (R)), but there the sentence was also too severe on inherent grounds. The five years and four strokes imposed in this case are not too severe at all. One of the most aggravating factors which can be present in the case of rape, was present in this case to a considerable extent. The four criminals all raped the complainant one after the other while the others were holding her down. Greater insult for a member of the female sex is hardly thinkable. That is a monstrosity which, in our opinion, could have been punished more severely. The frequent occurrence of rape in this country is also an aggravating circumstance. In addition they broke into complainant's house and assaulted her to such an extent that her teeth were loose and injuries were visible on her face. We are not prepared to reduce the sentence at all.

In the result the appeal is dismissed in regard to the conviction as well as the sentence.

STEENKAMP J concurred.

Appellants' Attorneys: Lubbe, Cilliers & Van Tonder.