THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 494/2016

In the matter between:

DONOVAN MAZINA
APPELLANT

and

THE STATE
RESPONDENT

Neutral Citation: Mazina v The State (494/2016) [2017] ZASCA 22 (24
March 2017)

Coram:
Ponnan, Zondi and Mathopo JJA and Nicholls and
Coppin AJJA
Heard:
15 February 2017
Delivered:
24 March 2017
Summary: Evidence: sufficiency of: statement in terms of s 115 of the
Criminal Procedure Act 51 of 1977.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from Eastern Cape Division of the High Court, Grahamstown
(Beshe and Majiki JJ sitting as court of appeal):

The appeal succeeds. The appellant‟s conviction and sentence imposed
pursuant thereto are set aside.
______________________________________________________________

JUDGMENT
______________________________________________________________

Zondi JA (Ponnan and Mathopo JJA concurring):

[1] The appellant appeared in the regional court, Kirkwood,  on a charge of
murder read with s 51(2) of the Criminal Law Amendment Act 105 of 1997. He
was alleged to have killed one Jeremy Swartbooi (the deceased) on 14 April
2012 by stabbing him with a knife. The appellant pleaded not guilty to the
charge. In support of his plea of not guilty, he made a statement in terms of s
115 of the Criminal Procedure Act 51 of 1977 (the Act) in which he stated that
he had stabbed the deceased only once with a knife but contended that he
had acted in self-defence. He was convicted and sentenced to 15 years‟
imprisonment.

[2] The appellant appealed against his conviction and sentence to the
Eastern Cape Division, Grahamstown (Beshe and Majiki JJ). That court
dismissed the appeal against conviction, but upheld the appeal against
sentence. It set aside the sentence imposed by the trial court and replaced it
with a term of 10 years‟ imprisonment. The appeal against conviction is with
the special leave of this Court.

[3] The State case was based on the evidence of two witnesses, namely
Mr Johnny Visagie (Visagie) and Mr Andile James Tyokela (Tyokela), both of

whom did not witness the actual stabbing of the deceased. Moreover Tyokela
was not even present when a verbal altercation between the deceased and
the appellant occurred.

[4] According to Visagie, who was in the company of the appellant and
the deceased shortly before the fatal incident occurred, the appellant and his
friend Wayne were smoking an „okka pipe‟ outside the tavern. The deceased
arrived and asked them if he could smoke the pipe. The appellant told him to
wait for his turn. The deceased, it would seem, did not take kindly to being
told to wait. He taunted the appellant, calling him a „gans‟. This resulted in a
verbal altercation between the deceased and the appellant. The deceased‟s
friends restrained the deceased when he approached the appellant. Realising
that a fight was about to occur, Visagie and his friend decided to go inside the
tavern.  Up to that point, Visagie did not see any weapon on either of the two.
The deceased appeared to be intoxicated. Visagie only learnt later that the
deceased had been stabbed and had been removed to hospital.

[5] The evidence adduced by two State witnesses did not advance the
State case. The appellant did not testify in his defence. What remained was
his statement in terms of s 1151 read together with the formal admissions
under s 220 of the Act. To the extent relevant his s 115 statement provides:
„6.
Ek erken dat ek die oorledene een (1) keer met „n mes gesteek het, toe hy my
wou aanval, omdat ons vroeër in „n mondelingse stryery betrokke was.

1 Sections 115(1) and (2) provide as follows:
„(1) Where an accused at a summary trial pleads not guilty to the offence charged, the
presiding Judge, regional magistrate or magistrate, as the case may be, may ask him whether
he wishes to make a statement indicating the basis of his defence.
(2)(a) Where the 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.‟

7.
Ek het op daardie stadium eerlikwaar geglo dat my lewe in gevaar was en/of
dat ek ernstige liggaamlike leed sou opdoen.

8.
Ek voer aan dat ek myself verdedig het.

9.
Ek ontken dat my optrede wederregtelik was.

10.
Na die steekwond toegedien is, het die oorledene omgedraai en die toneel
verlaat.

11.
Ek het later verneem, en ek aanvaar dit as korrek, dat die oorledene dood is
as gevolg van die een (1) steekwond wat ek hom toegedien het.‟

[6] The basis of the trial court‟s finding was the following:
„Die erkennings wat aan die hof gemaak is voor die tyd het dit alles erken wat daar
gebeur het, dat daar onderskeidelik dan volgens die pleitverduideliking „n rede was
waarom hy die oorledene se dood veroorsaak het naamlik dat hy in selfbeskerming
opgetree het deurdat hy geglo het volgens die pleitverduideliking dat sy lewe in
gevaar was, dat hy ernstige liggaamlike leed sou opdoen. Dit is dus gemenesaak
beskuldigde het op die tyd en plek gemeld in die klagstaat hy het die oorledene se
dood veroorsaak deur hom een hou met die mes in die nek te steek wat gelei het tot
sy dood as gevolg van die wond wat beskryf word in the bewysstuk “C” voor die hof,
die geregtelikedoodsondersoek.‟

[7] The trial court went on to state the following:
„Die natuurlike gevolg van „n handeling is normaalweg dat dit wat intree was bedoel
om in te tree. In hierdie geval is „n meswond deur die beskuldigde toegedien aan die
nek van die oorledene, dit het tot sy dood gelei. Ek kan nie „n ander afleiding maak
as dat hy die bedoeling gehad het en die gevolg wat ingetree het te bewerkstellig nie.
Sonder om sy weergawe te oorweeg is daar nie „n weergawe anderste as die
natuurlike gevolg sal intree as „n persoon „n sekere handeling uitvoer nie. By gevolg
het hy die opset gehad om die oorledene se dood te veroorsaak, en vind ek hom
SKULDIG op die aanklag van moord soos aangekla.‟

[8] On appeal the court below endorsed the findings of the trial court and
confirmed the conviction. It held that it was common cause during the trial that

the appellant admitted in terms of s 220 that he had stabbed the deceased
and that the deceased died as a result of the stab wound. The court below
reasoned that given that it is unlawful to kill a person, the appellant‟s
admissions amounted to prima facie proof of the fact that the appellant
murdered the deceased and that required him to place some evidence to
support the existence of his defence.

[9] In my view, the court below misdirected itself. After the s 115 statement
had been received into evidence, Mr Diedrich, who was representing the
appellant, intimated that the latter was willing to make certain formal
admissions. In that regard the record reads:
„Edelagbare daar is verder ook die normale 220 erkennings wat deur die beskuldigde
gemaak is. Aangeheg is ook die lykskouingsverslag. Wil die hof dat ek dit ook inlees
in die rekord?
Hof:
Asseblief ja.
Mnr Diedrich: Erkennings in terme van art. 220 van Wet 51 van 1977. Die
beskuldigde maak hiermee die volgende erkennings, dat die oorledene tydens sy
leeftyd Jeremy Swartbooi was, dat hy korrek geidentifiseer is as die person genoem
in die klagstaat. Dat die oorledene op 14 April 2012 as gevolg van „n steekwond aan
die nek oorlede is. Dat die oorledene geen verdere beserings opgedoen het vanaf
die verwydering van die toneel totdat Dr. Jan Antonie de Beer op 17 April 2012 „n
nadoodseondersoek op sy liggaam uitgevoer het nie. Dat die inhoud van die post
mortem verslag asook die korrektheid en bevindings daarvan erken word as
bewysstuk. Dit is dan geteken ook deur die beskuldigde op vandag se datum sowel
as ekself. Ek wens ook dit in te handig by die Agbare Hof as verdere bewysstuk.
Hof aan beskuldigde: Mnr Mazina bevestig u dan die inhoud van die verklaring
uitgelees wat waarskynlik u handtekening het wat u ook geparafeer het dat dit korrek
is? . . . – Ja
Ek merk dit dan as bewysstuk “A” in die verrigtinge. Die formele erkennings wat u
daarin maak sê u, u is bereid dat die hof dit so erken. Soos wat die ander erken
word, word dit dan in terme van art. 220 genotuleer as erkennings wat u gemaak het,
met ander woorde die staat hoef dit nie te bewys nie u erken dit. Dan word die ander
dokument ook ontvang, bewysstuk “B” en in dit word verwys na bewysstuk “C”, die
verslag, die nadoodseondersoek, met die erkennings vooraf gemaak. U bevestig dit
ook as korrek. - - - Ja.
U kan dan maar sit meneer die saak gaan op daardie basis voort.‟

[10] It is immediately apparent that the formal admission „die oorledene op
14 April 2012 as gevolg van „n steekwond aan die nek oorlede is‟, differs
markedly from the statement made by the appellant during the s 115
proceedings. The material portion of his s 115 statement provides: „Ek erken
dat ek die oorledene een (1) keer met „n mes gesteek het, toe hy my wou
aanval, omdat ons vroeër in „n mondelingse stryery betrokke was‟. The s 220
admission is in the passive voice. There is thus no formal admission by the
appellant to the effect that he did anything, much less that he had stabbed the
deceased. Given the quality of the evidence adduced by the State and absent
a formal admission by the appellant, there was simply no basis for a
conviction. In fact the State appreciated as much when he informed the trial
court that the appellant must be found not guilty.

[11] I have read the judgment prepared by Coppin AJA. My colleague
states (para 19): „But for erroneously describing the admissions as formal
admissions before noting them as such, the Magistrate, otherwise, acted
correctly in terms of s 115(2)(b) of the Act‟. With respect to my learned
colleague that erroneous description goes to the heart of the matter. For, it is
upon that erroneous description and the conceptual confusion it causes that
the conviction is founded. An admission in terms of s 220 constitutes sufficient
proof of the fact to which it has reference. Where it has such cogency the
State is relieved of the burden of adducing evidence concerning that particular
fact. An accused is not obliged to consent to a formal admission being
recorded as such. Where he does not so consent, the onus remains on the
State to prove by admissible evidence all the facts which were put in issue by
a plea of not guilty. In this case both the trial court and the court below
wrongly regarded the appellant‟s statement in his s 115 plea explanation as
an admission of fact under s 220 of the Act. It was not. The onus thus
remained on the State to adduce admissible evidence concerning the
stabbing of the deceased. That, the State failed to do. A conviction could
accordingly not follow.

[12] In the result the appeal succeeds. The appellant‟s conviction and

sentence imposed pursuant thereto are set aside.

________________
D H Zondi
Judge of Appeal

Coppin AJA (Nicholls AJA concurring):

[13] I have had the benefit of reading the judgment prepared by my colleague
Zondi JA. For the reasons set out herein I am not able to agree with the
reasoning and conclusion reached in that judgment.  A fundamental point on
which I differ with my colleague is whether the trial court  incorrectly regarded
the admissions  made by the appellant, in his s 115 of the Criminal Procedure
Act 51 of 1977 (the Act) plea explanation, as formal admissions of fact as
contemplated in s 220. I am of the view that the trial court did not err in that
regard for the reasons I shall briefly traverse. Consequently, the appeal
stands to be dismissed.

[14] At the outset of the trial the appellant, who was legally represented,
made a written statement in terms of s 115 of the Act in which he indicated
that he was pleading not guilty to the charge of murder. In the statement he
admits that he was in the presence of the deceased on the date the incident
occurred, i.e. 14 April 2012. He further admits that he stabbed the deceased
once with a knife and accepted that the deceased died as a result of a stab
wound inflicted by him.

[15] In the statement he raises self-defence as a justification for the stabbing.
He states that he and the deceased earlier had an argument and that the
deceased wanted to attack him. He further states that he genuinely believed
that his life was in serious danger and that he was going to suffer serious
bodily harm. He specifically denied that in stabbing the deceased and causing
his death he acted unlawfully.

[16] Of significance is that in the s 115 statement, he goes on to state the
following concerning the admissions which he made:
„Ek stem toe dat die erkennings hierbo gemaak deur die Abgare Hof aangeteken
mag word as formele erkennings. Maar behalwe vir sodanige erkennings plaas ek
die Staat ten bewys van die ander elemente van die misdrywe my ten laste gelê.‟
The appellant confirmed his s 115 statement and it was admitted as „Exhibit
A‟.

[17] The State also produced a written document of other admissions made
by the appellant in terms of s 220 of the Act, relating to the identity of the
deceased, the cause of death and the chain from the time of the deceased‟s
fatal injury to the post-mortem examination conducted on his body and also
relating to the post mortem report itself.  This written document was admitted
as „Exhibit B‟ and the post- mortem report as „Exhibit C‟.

[18] The record reflects that the Magistrate then engaged the appellant as
follows regarding his s 115 statement („Exhibit A‟):
„Ek merk dit dan as Bewysstuk “A” in die verrigtinge. Die formele erkennings wat u
daarin maak sê u, u is bereid dat die hof dit so erken. Soos wat die ander erken
word, word dit dan in terme van art. 220 genotuleer as erkennings wat u gemaak het,
met ander woorde die Staat hoef dit nie te bewys nie u erken dit.‟

[19] The appellant agreed to this, and further agreed to the correctness of
„Exhibit B‟ and „Exhibit C‟. But for erroneously describing the admissions as
formal admissions before noting them as such, the Magistrate, otherwise,
acted correctly in terms of s 115(2)(b) of the Act.2 There is no indication on
the record that the appellant, who was legally represented, did not understand

2 „(2)(a) Where an accused does not make a statement under subsection (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 subsection (1) or this subsection, 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 section 220.‟

what admissions the Magistrate was referring to, but clear indication to the
contrary.

[20] There can, therefore, be no doubt as to what the appellant formally
admitted. The only element of the crime of murder that the appellant put in
issue was that of unlawfulness. The effect of the formal admissions made by
the appellant was that the State did not have to adduce evidence to prove the
facts formally admitted.3

[21] The State then proceeded to adduce the evidence of two witnesses, Mr
Johnny Visagie (Visagie) and Mr Andile James Tyokela (Tyokela), who were
present at the tavern where the fatal stabbing of the deceased took place on
14 April 2012. The two witnesses testified concerning the peripheral
circumstances of the stabbing, but did not witness the actual stabbing and the
events that immediately preceded it. Their evidence was very brief.

[22] Visagie admitted that he had not been sober at the time of the incident
and that he was at Porsha tavern (the tavern) in Aquapark, Kirkwood, on 14
April 2012, just before 22h00. He and his friend, Frederick, were smoking an
„okka pipe‟ when they were approached by the appellant and his friend,
Wayne, and they requested to also smoke the pipe. Visagie knew the
appellant through friends. The appellant and his friend smoked the pipe, after
Visagie and his friend had finished. The deceased arrived and asked the
appellant whether he could also smoke the pipe. The appellant told him to
wait a „minute‟.

[23] According to Visagie, the deceased was drunk and had tattoos on his
arm. Apparently offended by the appellant‟s response to his request, the
deceased then started taunting the appellant, calling him „gans‟. Visagie
testified that the deceased was restrained by his friends, and that it is at that
stage that he realised that „trouble‟ was imminent, and on his
recommendation, he and his friend, Frederick, left the scene and went into the

3 S v Sesetse en ‘n ander 1981 (3) SA 353 (A) at 374.

tavern. When Visagie was pointedly asked in cross-examination whether the
appellant‟s plea of self-defence was true, Visagie pleaded ignorance. He
answered as follows:
„. . . Ek sal nou nie weet nie, ek het nie gesien dat hy steek hom nie so ek kan nie „n
ding in die hof gaan praat wat ek nie van weet nie. Dan lieg ek vir myself en ek lieg
vir die hof mos nou.‟

[24] Tyokela‟s evidence was no better. He prefaced his evidence by stating,
in effect, that he did not know who stabbed the deceased. He testified that he
saw the deceased standing at the gate where a large group were smoking an
„okka‟ pipe. He then saw the deceased running towards the tavern and that
blood was coming from the deceased‟s neck. The deceased ran to a tap and
then onto the road, where he subsequently collapsed next to a „danger box‟.
Tyokela readily conceded that he did not witness the stabbing incident.

[25] After Tyokela‟s evidence, the State closed its case. The appellant‟s case
was closed his case without him testifying, or calling any witnesses. The
appellant‟s representative was apparently content with the State‟s closing
argument, that due to the lack of evidence and in light of the appellant‟s plea
explanation that he had acted in self-defence, the appellant ought to be given
the benefit of the doubt and acquitted.

[26] Notwithstanding those submissions, the Magistrate found that the
evidence before him was sufficient and convicted the appellant of the murder
of the deceased. The basis of the appellant‟s appeal in the court below was
that the evidence of the State was circumstantial, and that the magistrate
erred in concluding that the only reasonable inference to be drawn from the
proven facts is that the killing of the deceased was unlawful. Particularly,
because the appeal was based on the fact that the appellant had raised self-
defence as justification in his plea explanation, and because the State bears
the onus to prove the guilt of the appellant beyond a reasonable doubt, while
the appellant bore no onus to prove his innocence.

[27] The court below found that the appellant had a case to answer and that
his failure to give evidence sealed his fate. As to whether the State had,
notwithstanding the shortcoming of the evidence of the State witnesses,
discharged its onus, the court below (Beshe J) stated:
„It became common cause during the trial that [the] deceased died as a result of
having been stabbed by the appellant. The appellant made an admission in this
regard in terms of Section 220 of the Act, thereby placing this fact beyond issue.
Given that it is unlawful to kill another; in my view this amounted to prima facie proof
that he murdered the deceased. Although there was no obligation on the appellant to
prove the defence he had raised in his plea explanation, the fact that there was a
prima facie case against him required that he places some evidence to support the
existence of the defence he relies upon before court. By failing to do so he ran the
risk of the court concluding on the available evidence, that the prosecution had
discharged its burden of proof beyond reasonable doubt…‟

[28] Having correctly found that the appellant‟s plea explanation, and what
had been put to the State witnesses, could not be taken into consideration as
evidence on oath, the court below concluded that there was no evidence
under oath supporting the appellant‟s plea of self-defence and that he had
been correctly convicted by the trial court. In my view, the reasoning and
conclusion of the court below, including that which relates to the formal
admissions made by the appellant, cannot be faulted.

[29] It is trite that where there is prima facie evidence implicating an accused
in the commission of a crime, there is an evidentiary burden imposed on him
and evidence, sufficient to give rise to a reasonable doubt, is required to
prevent a conviction.4 If the accused does not adduce such evidence he runs
the risk of being convicted.

[30] At the close of the State case the trial court had before it the evidence of
the two witnesses, albeit peripheral to the stabbing.  It also had before it the

4 Scagell and others v Attorney-General, Western Cape &  others 1997 (2) SA 368 (CC) para
12; Osman & another v Attorney-General, Transvaal 1998 (4) SA 1224 (CC) para 22; S v
Boesak 2001 (1) SA 912 (CC) para 24.

formal admissions made by the appellant, inter alia, that he had stabbed the
deceased intentionally and that the deceased had died as a result. In
circumstances where there was no evidence given under oath indicating that
the appellant acted in self-defence, this constituted prima facie evidence
implicating the accused in the commission of the offence and the appellant
had an evidentiary burden to adduce evidence which was sufficient to create
a reasonable doubt about whether he had indeed acted in self-defence.  This
did not imply that he had an onus to prove his innocence. The State still bore
the onus to prove his guilt beyond a reasonable doubt.5

[31] The failure of the appellant to adduce the necessary evidence under
oath strengthened the State case and, what was only prima facie proof,
became proof beyond a reasonable doubt.6

[32] In this court  the appellant‟s legal representative submitted in his heads
of argument, essentially, that everything that the appellant stated in his s115
statement, both unfavourable and favourable (i. e., including his explanation
that he acted in self-defence), was  part of the formal admissions he made.
Furthermore, that the effect thereof, so it was argued, was to create
reasonable doubt as to whether the appellant had acted in self-defence; and
that the appellant ought to have been given the benefit of the doubt and
acquitted. Those submissions are without merit. A formal admission can only
be made in respect of unfavourable facts and must be an admission, properly
so called.7 The appellant‟s statement that he acted in self-defence, squarely
put in issue the unlawfulness of his conduct and cannot possibly be regarded
as an admission of what the State was required to prove.

[33] The appellant also relied on what was held in S v Cloete,8 namely, that
the exculpatory parts of a plea explanation, made in terms of s115 of the Act,

5 DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed. (2009) at 120-129
and the cases cited therein.
6 S v Mthetwa 1972 (3) SA 766 (A) at 769D - 770B.
7 See Du Toit, et al (eds) Commentary on the Criminal Procedure Act (1987) at 18-11/18-12;
S v Kuzwayo 1964 (3) SA 55 (N) at 57A; S v Dingoos 1980 (1) SA 595 (O) at 596G-597C.
8 S v Cloete 1994 (1) SACR 420 (A).

was evidential material that should not to be ignored. Even though the
exculpatory part of a plea explanation may not be ignored in determining, at
the end whether, in light of all the evidence, the State had discharged its
onus, it did not have to be given any weight as it was not repeated under oath
and the State had had no opportunity to test it in cross-examination.9
Accordingly, the court below cannot be faulted in its approach to the
appellant‟s plea explanation and its ultimate conclusions concerning it.

[34] In the result I would dismiss the appeal.

____________________
P Coppin

Acting Judge of Appeal

9 S v Van Niekerk 1972 (3) SA 711 (A) at 723B; S v Cloete (supra) at 428b-g.

APPEARANCES:
For appellant:
H Bakker

Instructed by:

Shaun Masimla Attorneys, Port Elizabeth

Symington & De Kok Attorneys, Bloemfontein

For respondent:

D Els

Instructed by:
The Director of Public Prosecutions, Grahamstown

The Director of Public Prosecutions, Bloemfontein