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[2016] ZASCA 38
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De Villiers v S and Another (20732/14) [2016] ZASCA 38 (24 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20732/14
Reportable
In
the matter between
RAYMOND
DANIEL DE VILLIERS
APPELLANT
and
THE
STATE
FIRST
RESPONDENT
REGIONAL
MAGISTRATE D M SOOMAROO
SECOND RESPONDENT
Neutral
Citation:
De
Villiers v The State & another
(20732/14)
[2016] ZASCA 38
(24 March 2016)
Coram
:
Majiedt JA and Fourie
and Baartman AJJA
Heard:
9 March 2016
Delivered:
24 March 2016
Summary:
Review – a
high court of two judges sitting as a review court is a court of
first instance as contemplated in s 16(1)(
a
)
of the
Superior Courts Act 10 of 2013
– that court is thus
empowered to grant leave to appeal to the Supreme Court of Appeal in
terms of
s 16(1)(
a
)(ii)
– duress allegedly exerted by legal representatives on
appellant to plead guilty to theft not borne out by the facts.
ORDER
On
appeal from:
Free
State Division, Bloemfontein (Ebrahim J and Reinders AJ sitting as
court of first instance):
The
appeal is dismissed.
JUDGMENT
Majiedt
JA ( Fourie and Baartman AJJA concurring):
[1]
This is an appeal against the dismissal of a review application
brought by the appellant, Mr Raymond Daniel de Villiers, in
the Free
State Division, Bloemfontein (Ebrahim J and Reinders AJ). The
appellant had sought the review and setting aside of his
conviction
of theft (pursuant to a plea of guilty) and the sentence of seven
years’ imprisonment with three years conditionally
suspended
imposed by the second respondent, Regional Magistrate D M Soomaroo.
The State was cited as the first respondent.
[2]
Leave to appeal to this Court was granted by the court below. As the
appellant’s attorneys were unsure of whether that
court had the
power to grant leave, they directed a written enquiry to the
registrar of this Court concerning the correct procedure
to be
adopted. On the registrar’s advice, the appellant filed a
petition to this Court for leave to appeal. That petition
is standing
over pending the hearing of this matter. As a result of the dual
approach pursued by the appellant, the parties had
been requested to
address as a preliminary aspect whether the court below had ‘the
requisite power to grant leave to appeal
to this court, in view of
the provisions contained in
s 16(1)(
b
)
of the
Superior Courts Act&rsquo
;. Both counsel filed helpful
supplementary heads of argument for which we are grateful.
[3]
It is plain that a division of the high court which sits on review
with two judges presiding, is a court of first instance as
contemplated in
s 16(1)(
a
) of the
Superior Courts Act (the
Act) and that leave has therefore been properly granted in this
instance in terms of
s 16(1)(
a
)(ii). The relevant part of that
section reads as follows:
'
16
Appeals
generally
(1)
Subject
to
section 15(1)
, the Constitution and any other law-
(a)
An
appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted –
(i)
.
. .
(ii)
If
the court consisted of more than one judge, to the Supreme Court of
Appeal.
’
The
review before us is regulated by Uniform rule 53. It is not regulated
by the Criminal Procedure Act 51 of 1977 (the CPA) or
by any other
criminal procedural law as envisaged in s 1 of the Act, and sections
16 and 17 of the Act therefore apply in this
case. In the premises
the matter is properly before us on appeal. The petition was
therefore unnecessary and should be regarded
as superfluous. I
discuss next the merits.
[4]
The appellant, who is an accountant, was arraigned in the regional
court initially
with two other co-accused on the following charges –
(a)
count 1 – fraud in the sum of R950 000;
(b)
in the alternative, theft in the sum
of R950 000;
(c)
as a second alternative to the main count, a contravention of the
provisions contained
in s 7, read with ss 1, 8 and 36 of the
Financial Advisory and Intermediary Services Act 37 of 2002;
(d)
count 2 – a contravention of the provisions contained in s 2,
read with ss 1 and 10
of the Financial Institutions (Protection of
Funds) Act 28 of 2001 (the Funds Act);
(e)
count 3 – a contravention of the provisions contained in s
4(1), read with ss 1 and
10 of the Funds Act;
(f)
count 4 – a contravention of the provisions contained in s
4(4), read with ss
1 and 10 of the Funds Act.
[5]
The appellant pleaded guilty to theft, the first alternative charge
to count 1. He was represented by an attorney, Mr Kramer,
and an
advocate, Mr Nel. After his written plea explanation in terms of s
112(2) of the CPA was read into the record by his counsel,
the
appellant confirmed to the regional magistrate that the plea and
explanation were correct. In the plea explanation itself the
appellant stated that the instruction given to his legal
representatives to plead guilty to theft was given without anyone
having
unduly influenced him in that regard and was made freely and
voluntarily with full knowledge of the implications thereof. After
the imposition of sentence, the appellant sought leave to appeal
against his sentence only, but this was refused by the regional
magistrate. The appellant appointed a new legal team and, on their
advice, he applied for leave to appeal against his conviction,
but
this too was unsuccessful in the regional court. A subsequent
petition to the court below for leave to appeal against his
conviction and sentence met with a similar fate. On petition to this
Court the appellant was granted leave on 7 January 2013 to
appeal
against his sentence to the court below, but leave was refused in
respect of his conviction. The appeal against sentence
is still
pending, awaiting the outcome of this review application, which was
issued on 5 March 2013.
[6]
The review is sought on the basis of an alleged irregularity ex facie
curiae which vitiated the entire proceedings in the regional
court
as, so it is contended, it infringed the appellant’s fair trial
rights under the Constitution. In essence the main
trust of the
appellant’s argument was that he had pleaded guilty under
duress, his previous legal team having cajoled him
into tendering
such a plea. He avers that he never intended to plead guilty, because
he was not guilty of fraud or theft. A brief
synopsis of the factual
backdrop is necessary for a proper understanding of the issues. The
common cause facts are as follows.
[7]
The appellant administered the deceased estate of a Mr P J Wiese at
the request of the deceased’s spouse, Ms A Wiese.
On his
advice, Ms Wiese made out a cheque in the sum of R950 000 to the
Taakmeesters Trust (the Trust), which was controlled
by the appellant
and which was described by him in his plea explanation as his ‘alter
ego’. There is a dispute as to
what exactly Ms Wiese’s
mandate to the appellant was in respect of this money, an aspect to
which I shall revert presently.
The appellant utilised the money to
provide bridging finance to various entities not connected at all to
the estate, including
some in which the appellant had an interest.
Save for a payment of R50 000 made by the Trust to Ms Wiese, no
repayment was
made before the Trust was sequestrated. Criminal
charges were laid against the appellant after Ms Wiese obtained legal
advice from
a firm of attorneys.
[8]
The appellant’s plea explanation is broadly consonant with
these common cause facts. He admitted that:
(a)
the Trust had received a cheque in the amount of R950 000 from
the estate late P J
Wiese made out to the Trust;
(b)
these moneys had to be invested in a money market account by the
Trust for the benefit of
the estate;
(c)
the moneys had not been invested as agreed, but had been utilised to
make payments
to various entities and persons.
[9]
The appellant’s case is that in his own mind he had not
committed any offence or, at least, the offences of fraud or theft
(there is some vacillation on his part on this aspect) and he had
never intended to plead guilty. Representations were made by
his
legal team to the Director of Public Prosecutions (the DPP) to accept
a plea on a lesser charge, namely the statutory offence
in count 3,
and for a non-custodial sentence to be agreed upon. These
representations were clearly made to secure a plea agreement
with the
State in terms of s 105A of the CPA. The DPP, however, declined to
enter into a plea agreement on these terms and the
plea of guilty on
theft eventually followed. The record reflects that there were
numerous adjournments in the matter, some of them
for the purpose of
the representations to the DPP to be finalised and at least one other
for the finalisation of the plea of guilty.
[10]
According to the appellant, his counsel, Mr Nel, had requested him
after their first consultation to carefully read through
the police
docket, particularly Ms Wiese’s statement, and to prepare a
written memorandum in response thereto. The appellant
complied and
handed the memo to Mr Nel and a copy to Mr Kramer. In the answering
papers inexplicably neither Mr Kramer nor Mr Nel
(in a cryptic
confirmatory affidavit) makes any mention at all of these written
instructions, and its contents therefore stand
uncontroverted. This
is a lamentable state of affairs, particularly because the
appellant’s case largely rests upon this
memorandum furnished
to his legal representatives. It was forcefully contended that the
written instructions corroborated the appellant’s
version
regarding duress. This problem arose because Mr Kramer did not in his
answering affidavit deal seriatim with the allegations
made by the
appellant in his founding affidavit. It seems to me that Mr Kramer’s
affidavit, although filed as an answering
affidavit by the first
respondent, had not been drafted as an answer in response to each and
every material allegation contained
in the founding affidavit. Mr
Kramer was in all likelihood simply asked to furnish an affidavit
setting out his version of the
events. I shall revert to this
conundrum presently.
[11]
The crucial events underpinning the alleged duress occurred, on the
appellant’s version, on the morning of 11 August
2011, just
before he tendered his plea of guilty in court. He avers that Mr Nel
had conveyed to him that in the event of a conviction
of theft of
more than R500 000, the regional magistrate was statutorily
compelled to consider imposing a minimum sentence
of 15 years’
imprisonment. This, the appellant said, was conveyed to him against
the backdrop of the State having refused
the offer made on his behalf
in the course of the plea negotiations and of the prosecutor having
insisted on a guilty plea on at
least one of the counts. The offer,
according to the appellant, was not the one alluded to in para 9
above, but a proposal made
by his legal representatives to the State
that the charges be withdrawn in exchange for which the appellant
would reimburse Ms
Wiese. To this end, he says, his legal team had
requested him to draw up an amortisation table reflecting the
proposed repayment
terms. He claims that Ms Wiese had accepted the
repayment terms reflected in the amortisation table which had been
sent to her
attorneys. His impression was that Mr Nel was concerned
that the minimum sentence would be imposed upon conviction following
a
plea of not guilty. Mr Nel referred to the fact that the appellant
was facing a sentence of 15 years’ imprisonment, that he
had a
wife and children and that it was not worth going on trial in the
face of all these risks. Mr Kramer informed the appellant
that he had
an 80/20 per cent prospect of receiving a non-custodial sentence (‘‘n
buite straf’). The appellant
averred that as a consequence of
these warnings by his legal representatives, he reluctantly mandated
them to pursue further plea
negotiations with the State. He says that
he never stole any money and that he intended to reimburse Ms Wiese.
[12]
The first respondent’s case is that it had been presented with
a written plea explanation which, on the face of it, appeared
to be
in order and in which the appellant admitted all the material
elements of the crime of theft. And the factual matrix underpinning
the plea as set out in the s 112(2) statement accorded with the
State’s case. There was nothing in the preceding objective
facts which suggested that the plea had not been made freely and
voluntarily. The State also alluded to several aspects which
contradicted the appellant’s claim of duress or which seriously
impugned his credibility, amongst others the long delay in
raising
the duress, the proceedings in facie curiae, the underlying rationale
for the representations to the DPP and the import
of Ms Wiese’s
statement.
[13]
The court below dismissed the review application on the following
broad grounds:
(a)
there was no acceptable explanation for the unreasonable delay of 18
months between the
plea of guilty and the launching of the review
application;
(b)
in pursuing leave to
appeal against conviction to its ultimate (unsuccessful) conclusion,
the appellant had exhausted his remedies
inasmuch as once a
prospective appeal on the merits had been considered and dismissed,
the proceedings could not be reopened by
way of a review of the
proceedings in the trial court;
(c)
on all the objective
facts and surrounding circumstances the appellant had failed to
establish that he had pleaded guilty to theft
under duress.
[14]
It is expedient to discuss (a) and (b) above together since they are
interlinked. It is trite that a review application must
be brought
within a reasonable time.
[1]
While it is so that there has been a long delay here, given the
outcome of this appeal I am prepared to accept, as was contended
on
behalf of the appellant, that the delay was largely caused by the
change of the appellant’s legal team and by the bringing
of the
applications for leave to appeal against conviction. As far as the
latter is concerned, I am of the view that the appellant
had not, on
the facts of this case, been precluded from bringing a review
application after his unsuccessful pursuit of leave to
appeal against
his conviction. It is not as if he is seeking the proverbial second
bite at the cherry. Or, in civil law parlance,
it cannot be said that
the matter is res judicata.
[15]
The court below placed reliance for its finding on this aspect on
R
v D,
[2]
R
v Parmanand
[3]
and
Coopers
South Africa (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämfung MBH.
[4]
But one must be careful in seeking support from these decisions. They
are in my view distinguishable on the facts and in any event
do not
establish as law that there is an absolute bar against a review
application being brought after unsuccessfully pursuing
leave to
appeal against conviction. In
R
v D
,
the provincial division had dismissed an appeal against convictions
and sentences. Leave to appeal to this Court was thereafter
sought,
but before the provincial division could hear that application, the
appellants applied in that court for the setting aside
of their
convictions and sentences and for the remittal of the case to the
magistrate to enable them to adduce further evidence.
This Court held
that the provincial division was correct to refuse the application
for the setting aside and remittal. It held
(per Centlivres CJ):
‘
The
decision of that Division in which it dismissed the appeal was a
final decision and could not be re-opened, except, possibly,
on the
ground that it had been obtained by fraud.
’
[5]
The
facts here are clearly different and this case concerns an alleged
improperly obtained plea of guilty.
[16]
Parmanand
concerned
the exercise of a court’s review powers on appeal. This court
held that ‘where there is only an appeal before
the Court and
it appears that there might be relief open to the appellant by way of
review, it would not be proper for the Court
to dismiss the appeal
and consequently confirm the conviction, thus making it impossible
for the appellant, in view of the law
as laid down in
R
v D,
to get relief thereafter by way of review’.
[6]
As can be seen,
Parmanand
follows
R
v D
which,
as I have stated, is distinguishable.
[17]
This principle was confirmed in
Coopers
that a court ought ‘first to consider the appeal aimed at a
review of the proceedings and, thereafter, in the event of its
dismissal, to consider the appeal on the merits’.
[7]
Importantly, Wessels JA cautioned that, absent any argument on the
point, he was hesitant ‘to decide definitively that in
law, in
such a case as the present,
that
is the correct and only course to adopt’.
[8]
(My emphasis.) The learned Judge was, however, satisfied that that
was the correct course to follow in that particular case. The
court
thus declined to decide the appeal on the merits and instead
exercised its power of remittal under s 22 of the now repealed
Supreme Court Act 59 of 1959, after it had found that the
Commissioner of Patents had in patent infringement proceedings
misdirected
itself in the exercise of its discretion in excluding
certain expert evidence altogether. The reservation expressed by
Wessels
JA is to my mind indicative thereof that in our law there is
no absolute bar against a review application being brought after an
unsuccessful pursuit of leave to appeal against conviction. Every
case must be decided on its own facts.
[18]
The present case differs in my view materially from the three cases
above. In this instance there is an allegation that the
guilty plea
was improperly obtained, thus vitiating the proceedings in its
entirety. There has been a gross violation of the appellant’s
constitutional fair trial rights, so it is contended. As I have said,
the appellant is not seeking a second bite at the cherry.
No court
has as yet considered the correctness of the proceedings as opposed
to the correctness of the conviction. I am therefore
of the view that
the court below erred in holding that the pursuit of the leave to
appeal against conviction precluded the appellant
from seeking the
review and setting aside of the proceedings in the regional court.
But, as I will presently demonstrate, the appellant’s
conduct
of the case has other consequences adverse to his review application.
I turn to the substantive merits of the review.
[19]
It is axiomatic that an accused person’s constitutional right
to representation by a legal practitioner would be rendered
meaningless by incompetent representation or, as is alleged in this
case, a complete failure to execute the accused’s mandate
and
instead compelling the accused to act against his or her will in a
criminal trial.
[9]
It is equally
well established that a legal representative never assumes total
control of a case, to the complete exclusion of
the accused. An
accused person always retains a measure of control over his or her
case and, to that end, furnishes the legal representatives
with
instructions. As Van Blerk JA expressed, it in a separate concurring
judgment, in
R
v Matonsi
:
‘. . . die klient dra nie volkome seggenskap oor sy saak
onherroeplik aan sy advokaat oor nie’.
[10]
While the legal representative assumes control over the conduct of
the case, that control is always confined to the parameters
of the
client’s instructions. The other side of the coin is that, in
the event of an irresolvable conflict between the execution
of a
client’s mandate and the legal representative’s control
of the case, the legal representative must withdraw or
the client
must terminate his or her mandate where such an impasse arises. An
accused person cannot simply remain supine until
after
conviction.
[11]
[20]
The ultimate choice of whether or not to plead guilty is that of the
accused. In
R
v Turner
[12]
the court of appeal had to consider a similar situation to the
present one. There the appellant had changed his plea of not guilty
to one of guilty to the theft of his own car from the owners of a
garage who had a lien over it. His counsel had advised him in
the
course of the trial to change his plea to one of guilty as that might
result in a non-custodial sentence. Counsel’s advice
further
was that a not guilty plea and an attack on the police officers which
accused them of complete fabrications (as was the
appellant’s
instructions) might, on the other hand, have resulted in the
appellant’s previous convictions being placed
before the jury
and the appellant then ran the risk of going to prison. The appellant
was, however, repeatedly assured that the
final choice whether to
plead guilty was his. This advice was given by counsel after he had
been to see the trial judge in chambers.
In giving the advice,
counsel did not say anything to disabuse the appellant of the
impression, which the appellant later confirmed
he had formed, that
counsel was repeating the trial judge’s views. The court of
appeal held that counsel had, on the evidence
before the court not
exceeded his duty in advising the appellant to plead guilty. The fact
that the appellant might have thought
that his counsel’s views
were that of the judge, however, amounted to the appellant not truly
having a free choice in retracting
his plea of not guilty and the
guilty plea should thus be treated as a nullity. In making these
findings Lord Parker CJ said:
‘
It
is perfectly right that counsel should be able to do it [present
advice] in strong terms, provided always that it is made clear
that
the ultimate choice and a free choice is in the accused person.
’
[13]
[21]
Appellant’s counsel placed strong reliance on this dictum in
Turner
. We were also referred to the practice direction of the
Court of Appeal (Criminal Division) in England issued by the Chief
Justice,
Lord Woolf, which reads as follows:
'
45.
DISCUSSIONS ABOUT SENTENCE
45.1
An advocate must be free to do what is his duty, namely to give the
accused the best advice he can and, if need be, in strong
terms. It
will often include advice that a guilty plea, showing an element of
remorse, is a mitigating factor which may well enable
the Court to
give a lesser sentence than would otherwise be the case.
The
advocate will, of course, emphasize that the accused must not plead
guilty unless he has committed the acts constituting the
offence(s)
charged.
45.2
The accused, having considered the advocate’s advice,
must
have complete freedom of choice whether to plead guilty or not
guilty…
(own
emphasis)’.
[22]
Courts in the United States of America require that an accused
person’s awareness of the constitutional rights waived
by a
plea of guilty, the accused’s understanding of the nature of
the charge as well as the consequences of the plea of guilty,
have to
appear on the trial record.
[14]
The American Bar Association, Standards for Criminal Justice,
requires that defence counsel ensure that the decision whether to
enter a plea of guilty is ultimately made by the accused.
[15]
A plea of guilty is only valid if made as a free and informed choice
‘with sufficient awareness of the relevant circumstances
and
likely consequences.
[16]
[23]
It was contended on behalf of the appellant that Messrs Kramer and
Nel failed in their duty to advise the appellant that he
had the
ultimate choice whether or not to plead guilty and that in the event
of an impasse they should have withdrawn. The facts
of this case,
however, do not support these submissions. The various unsuccessful
applications for leave to appeal against the
conviction were all
premised on the fact that the plea was freely and voluntarily made
without any undue influence. The primary
contention in those
applications was that the plea explanation did not encompass all the
material elements of the crime of theft.
In particular, it was
submitted that the appellant had not admitted that he had intended to
permanently deprive Ms Wiese of her
money. In these circumstances it
does not behove the appellant to argue, as was done before us, that
the admission as to voluntariness
cannot be taken into account in
these proceedings. The appellant’s pursuit of leave to appeal
on this basis places him in
an untenable position in this review
application. It is self-evident that the same plea cannot be
voluntary for purposes of one
application but alleged to have been
made under duress for purposes of another application. The
ineluctable conclusion which follows
that the plea was not made under
duress is buttressed by other facts.
[24]
First, the plea explanation itself bears out that it had been made
freely and voluntarily. The relevant parts read as follows:
‘
3.
Ek is op hoogte met die beweringe wat in die klagstaat ten aansien
van die onderskeie aanklagtes my ten laste gelê word
en na
samesprekings tussen myself en my regsverteenwoordigers het ek opdrag
aan hulle gegee om ten aansien van die eerste alternatief
tot aanklag
1 [theft] ‘n pleit van skuldig aan die Hof te bied.
4.
Hierdie opdrag is gegee sonder dat ek deur enigiemand daartoe
onbehoorlik
beïnvloed is en het dit vrywillig en ongedwonge geskied, met die
volle besef van die gevolge daaraan verbonde.
’
[17]
The
appellant confirmed to the court that the plea explanation, as read
into the record, was true and correct in all respects. A
period of
approximately three and a half months elapsed before sentence was
imposed and no mention whatsoever was made of the alleged
duress. As
stated, applications for leave to appeal in the regional court, the
court below and in this Court followed which were
all premised on a
free and voluntary plea. It was only when these proceedings were
launched on 5 March 2013, after the petition
to this Court had
succeeded only on leave to appeal against sentence, that the first
allegation of duress saw the light of day.
The conclusion is
unavoidable that the appellant had hedged his bets on a successful
appeal against conviction and, only once he
had reached the end of
that highly speculative road, he cried ‘duress’. This
fallback position of claiming duress is,
as I have said, completely
at variance with and destructive of his earlier position in the leave
to appeal applications.
[25]
Second, the unsuccessful representations to the DPP were aimed at
securing a plea agreement on the following terms: the appellant
would
plead guilty on count three (a contravention of s 4(1), read with ss
1 and 10 of the Funds Act) in exchange for a non-custodial
sentence.
As counsel for the first respondent correctly pointed out, the actus
reus in that statutory offence is exactly the same
as the one
underpinning the theft charge to which the appellant had pleaded
guilty. It entails the unlawful investment of moneys
entrusted to the
appellant in a manner contrary to the mandate of the owner of that
moneys. And the factual basis of the guilty
plea on that aspect
accorded with the allegations on oath made by the complainant, Ms
Wiese. She stated in her affidavit to the
police that she had agreed
to the appellant’s proposal that the money be invested in a
money market account with a higher
interest rate. It had thus always
been the appellant’s intention to plead guilty to an offence
relating to the unlawful investment
of trust moneys.
[26]
While it is true that the appellant pertinently declared in his
written instructions to counsel that he never had any intention
to
steal any money, that declared intent is at odds with the admission
by the appellant that he had invested money contrary to
his mandate
from Ms Wiese. It can reasonably be inferred that, in the face of the
State’s case, in particular the sworn statement
of Ms Wiese,
counsel had explained to the appellant that, ultimately, his actions
constituted the crime of theft. And the inherent
probabilities
overwhelmingly favour the State’s version that the appellant
had voluntarily furnished instructions for a plea
of guilty on theft.
As I have said, the inference is overwhelming that he only cried foul
when he realised that he faced imprisonment
notwithstanding his plea
of guilty. The court below correctly preferred the version propounded
mainly by Kramer and Nel on behalf
of the first respondent over that
of the appellant.
[27]
When one considers all these facts, coupled with the fact that the
appellant is an accountant, the inevitable conclusion is
that the
appellant had, on the advice of his attorney and counsel, on his own
volition and out of his own free will pleaded guilty
to theft. I am
satisfied on the facts before us that the appellant had taken an
informed decision on the advice of his legal representatives,
to
plead guilty. In so doing he had waived his constitutional right to
be presumed innocent and to remain silent, as well as the
right to
adduce and challenge evidence.
[18]
The appeal is devoid of any merit.
[28]
The appeal is dismissed.
________________________
S A
MAJIEDT
JUDGE
OF APPEAL
APPEARANCES
For
Appellant:
D F Dörfling SC
Instructed
by:
Du Plessis & Associates, Johannesburg
Martins
Attorneys, Bloemfontein
For
Respondent:
J Swanepoel
Instructed
by:
Director of Public Prosecutions, Bloemfontein
[1]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at
39A-D.
[2]
R v D &
another
1953
(4) SA 384 (A).
[3]
R v
Parmanand
1954
(3) SA 833 (A).
[4]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämfung MBH
1976 (3) SA
352 (A).
[5]
R v D
,
above, at 390E-F.
[6]
Per
Greenberg JA in
R
v Parmanand,
above,
at 838D-E.
[7]
Per Wessels
JA in
Coopers
South Africa (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämfung,
above
at 369E-F.
[8]
Ibid.
[9]
See
generally:
S
v Tandwa & others
(538/06)
[2007] ZASCA 34
;
2008 (1) SACR 613
(SCA) para 7 and
S
v Dalindyebo
(090/2015)
[2015] ZASCA 144
;
[2015] 4 All SA 689
(SCA) paras 22 and
23.
[10]
‘…
the client
does not irrevocably hand over complete control over his case to his
counsel.’
R
v Matonsi
1958 (2) SA 450
(A) at 458A-B. (My translation.)
[11]
R v
Matonsi,
above,
at 457E-F;
S
v Louw
(70/88)
[1990] ZASCA 43
;
1990 (3) SA 116
(A) at
124G-H.
[12]
R v
Turner
[1970]
2 All ER 281 (CA).
[13]
R v
Turner,
above,
at 284; see also:
R
v Hall
[1968]
2 All ER 1009
at 1011 (QB);
Pretorius
v Director of Public Prosecutions & another
2011
(1) SACR 54
(KZP) paras 28 and 29.
[14]
R J Bacigal
and M K Tate
Criminal
Law and Procedure: An Overview
4 ed (2013) at 296.
[15]
American
Bar Association, Standards for Criminal Justice 4 - 5.2(a)(i) (2d ed
1980).
[16]
Brady v
United States
[1970] USSC 99
;
397
U.S. 742
(1970) at 748.
[17]
‘
3. I
am conversant with the allegations in the charge sheet with regard
to the various charges against me and after deliberations
between
myself and my legal representatives I have instructed them to tender
a plea of guilty to the court on the first alternative
to count 1.
4.
This instruction has been given without me having been unduly
influenced by anyone to do so and it has been done freely and
voluntarily with full understanding of the consequences thereof.’
(my translation.)
[18]
S 35(3)(
h
)
and (i) of the Constitution.