S v MAKAMA

(BOPHUTHATSWANA SUPREME COURT)

1979 June 1   HIEMSTRA  CJ

Criminal procedure-Trial-Plea-Section 119 of Act 51 of 1977 is intended to provide for an accused making his explanation of plea as soon as possible.

The purpose of s 119 of Act 51 of 1977 is to provide for the accused, as soon as the system makes it possible, making his explanation of plea. The advantage thereof is that he does this after he has regained his composure and before he can, after longer consideration, adapt his facts to his circumstances.

Sentence in criminal case.

T B R Kgalegi for the State.
S J Rossouw for the accused at the request of the Court.

HIEMSTRA CJ: The accused appears before me on a charge of murder. The crime occurred on 18 June 1978 already and the accused was arrested on 8 August. The record of court proceedings which are before me make no mention of a first appearance on 23 August 1978. I assume that the accused was in fact before the Court within 48 hours after his arrest as required by s 50 of the Criminal Procedure Act 51 of 1977. There ought to be an annotation thereof on the record. The case was apparently then postponed. 

The State pathologist's report was ready on 20 June already. Therein the cause of death is given as "severance of left thigh artery with fatal haemorrhage".

The record shows that on 23 August no explanation of plea was taken under s 119 of Act 51 of 1977. The case was postponed six times and on 15 November 1978 there was still no explanation of plea. Up to the present day no use has been made of s 119. It does· happen that the State does not immediately have sufficient particulars for a charge available, but in this case the cause of death was known and a murder charge could have been formulated in August already. The purpose of s 119 is to provide for the accused, as soon as the system makes it possible, to make his explanation of plea. The advantage thereof is that he does this after he has regained his composure and before he can, after long consideration, adapt his facts to his circumstances. The disadvantages which the State suffers by neglecting s 119 are strikingly apparent in this case.

When the accused was asked to plead before me, instead of pleading guilty or not guilty he offered an explanation of plea which amounted to a plea of culpable homicide. Mr Rossouw who appeared for the defence thereupon said that he was placed in an embarrassing position because the accused's instructions to him were that he pleads not guilty on the ground of self-defence. I thereupon granted a short postponement so that Mr Rossouw could again hold a consultation. When the Court resumed, the defence offered a plea of guilty of assault with intent to do grievous bodily harm. This was already the third point of view which the accused adopted. An explanation of plea at an earlier stage would have prevented such confusion and have bound the accused to certain admissions. The intention is not to entice him to incriminate himself. He obtains full opportunity to qualify his explanation of plea as he wishes. An explanation of plea also makes consultation with him far easier. Such jumping around as happened here does him no good and had s 119 been applied earlier, this would probably not have happened. I request the Attorney-General to investigate why no explanation of plea was taken at an earlier stage and to prevent a repetition with suitable instructions.

The State, represented by Mr Kgalegi, accepted the plea of assault with intent to do grievous bodily harm and the accused was thereafter found guilty.

The construction which the accused eventually gave and which the State could not rebut, was that there had been gambling accompanied by drinking. The accused won a watch from the deceased. The deceased handed it over but after that wanted to take it back with force. The accused wanted to leave the place and pushed his bicycle away. The deceased caught up with him from behind. They wrestled and a knife which belonged to the deceased fell on the ground. The accused picked it up and stabbed the deceased in the upper leg. He did not foresee that the deceased would die from such a wound, but the deceased bled to death because by chance an artery was severed.

The State alleged that the knife in fact belonged to the accused and not to the deceased, but Mr Kgalegi could not say with certainty that he could prove his point of view. The construction which the accused gave could be reasonably true and it justifies a finding of assault with intent. 

The accused has a nasty series of previous convictions for offences involving violence. Since 1972 he has committed three offences involving violence for which altogether three years were imposed. The most recent offence was committed in 1975 shortly after he had served two and a half years for rape. The accused becomes easily violent and the time has come to impose a heavy sentence on him. The sentence is four years' imprisonment and six cuts.