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[2018] ZAWCHC 74
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S v Moses (18509/2018) [2018] ZAWCHC 74; 2019 (1) SACR 75 (WCC) (14 June 2018)
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
High Court Review Ref: 18509/2018
Riversdal Magistrates’ Court
case no. SB295/16
Mossel
Bay Magistrates’ Court Special Review (C.M. Maseti)
In
the matter between:
THE
STATE
and
ELTON
MOSES
REVIEW JUDGMENT
Dated 14 June
2018
BINNS-WARD
J (BOZALEK J concurring):
[1]
This matter was submitted by the magistrate
at Riversdal (Mr C.M. Maseti) for special review in terms of
s 304A of the
Criminal Procedure Act 51 of 1977 (‘the
Act’). His reason for taking that course is best
explained with reference
to the history of the case.
[2]
The accused, who was legally represented,
pleaded guilty to the charges on which he was arraigned. He
confirmed the content
of a written statement in terms of s 112(2)
of the Act that was read into the record by his attorney, and was
thereafter appropriately
convicted. The statement (exhibit A)
had been signed by both the accused and his then attorney. The
further hearing
of the case was then postponed at the defence
attorney’s request for a probation officer’s report to be
obtained.
[3]
Sadly, by the time the report became
available and the matter was ready for the sentencing hearing to
proceed, the trial magistrate
had died. Another magistrate
(Mr Oosthuizen) stepped into the breach in terms of s 275
of the Act for the purpose
of discharging the outstanding duty of
imposing sentence. At that stage the accused had become
represented by a different
legal representative.
[4]
The new representative (Mr Stemmet)
informed the magistrate that the content of exhibit A was not
consistent with his instructions.
The magistrate thereupon,
without enquiring into the detail of the deviance between the
instructions now given by the accused and
the plea statement,
summarily altered the pleas to not guilty. In so doing he
purported to act in terms of s 113 of the Act.
It was
notionally within the magistrate’s power to have altered the
pleas in terms of s 113; see
S v
Osborne, S v Nero
1978 (3) SA 173
(C). Whether he exercised the power competently in the
circumstances is a question to which I shall
return presently.
[5]
After
altering the pleas, and before the proceedings were taken further,
the magistrate recused himself from the case because he
had noted
from the record that he had presided in the accused’s bail
application. He indicated that the matter might
continue before
another magistrate in terms of s 118 of the Act. The
magistrate ordered that the clerk of the court
should place the
proceedings already on record (presumably the record concerning
everything that had transpired prior to the alteration
of the pleas)
in a sealed envelope ‘[s]
odat
dit nog altyd in die oorkonde bly maar nie deel van die sigbare
oorkonde vorm nie
’.
[1]
[6]
The matter was thereafter allocated to
Magistrate Maseti. It would seem that there had not been
compliance with the order
concerning the sealing of part of the
record because upon perusing the file Mr Maseti came across the
record of the accused’s
previous convictions. This made
him feel uncomfortable about hearing the case. He could have
chosen merely to recuse
himself, and to ensure that the sealing order
was complied with before the case was passed on to another judicial
officer to try.
He decided instead to send the matter on
special review, however, because of his concern that the record shows
that the charges
were not put to the accused in strict compliance
with s 105 of the Act at the commencement of the trial before
the original
trial magistrate. He suggests that the proper
course in the given circumstances would be for the proceedings thus
far to
be set aside on review, with a direction that the trial
commence
de novo
before another magistrate.
[7]
The matter indeed raises a number of issues
on which the prevailing position in law is in certain respects not
altogether settled.
Mr Maseti is to be commended for
identifying that these should receive attention on special review
before the hearing proceeds.
[8]
In my judgment the following questions fall
to be addressed on review:
a)
Has the accused effectively pleaded to the
charges?
b)
If so, were his pleas competently altered
to pleas of not guilty?
c)
How should the matter proceed from here?
Has
the accused effectively pleaded to the charges?
[9]
The accused was charged on three counts;
one of trespass and two of housebreaking with intent to steal and
theft. The transcript
of the proceedings reflects the following
concerning the plea process:
HOF: Goed, op die 7de
Augustus van 2017, die staat teen Elton Moses saaknommer SB295/2016.
Die partye is genotuleer soos op
die oorkonde. Ek aanvaar u het
die klagtes verstaan. Daar is een van betreding en twee van
huisbrake. Korrek
so?
BESKULDIGDE: Reg so,
meneer.
HOF: Hoe gaan u
pleit op die klagte, meneer?
BESKULDIGDE: Ek pleit
skuldig.
HOF: Dankie, mevrou.
KLAGTE NIE FORMEEL
AAN BESKULDIGDE GESTEL
BESKULDIGDE PLEIT
SKULDIG
ME VAN
DER HEEVER: Dankie Edelagbare. Bevestig my instruksie vir
’n pleit van skuldig. Ek hou die verklaring
aan die hof
voor.
[2]
[The
accused’s legal representative thereupon read into the record a
statement in which the accused confirmed that he had
committed the
offences with which he had been charged and that he done so with the
required legal intention. The plea statement
expressly recorded
that the accused pleaded guilty to the count of trespass and one of
the counts of housebreaking. Although
an intention to plead
guilty to the other charge was not expressly included in the
statement, it was clear from the context that
the accused was
confessing to having committed the offence and that his plea
statement was intended to be supportive of a plea
of guilty to that
charge too. The plea statement also gave amplified expression
to the accused’s reply in answer to
the magistrate’s
question about how he was going to plead to the charges: ‘
I
plead guilty
’.]
Geteken deur die
beskuldigde en myself, edelagbare. Verlof om op te handig.
HOF: Mnr Moses, hierdie
verklaring wat u regsverteenwoordiger aan my voorgelees het, het u
dit verstaan?
BESKULDIGDE: Ja,
edelagbare.
HOF: Is dit reg so?
BESKULDIGDE:
Dit is reg so, edelagbare.
[3]
PRESIDING OFFICER: Does
the State accept?
PROSECUTOR: Accept the
plea, Your Worship.
The
magistrate then proceeded to find the accused guilty as charged in
accordance with his pleas as recorded in the passage from
the record
that I have just quoted.
[10]
Section 105 of the Act provides as follows:
Accused to plead to
charge
The charge shall be put
to the accused by the prosecutor before the trial of the accused is
commenced, and the accused shall, subject
to the provisions of
sections 77, 85 and 105A, be required by the court forthwith to plead
thereto in accordance with section 106.
Sections
77, 85 and 105A had no application on the facts. It is clear,
however, that s 105 was not complied with according
to its letter.
This begged the question that troubled Magistrate Maseti concerning
the validity of the ensuing proceedings.
[11]
The plea process in the current matter was
remarkably similar to that reported in the judgment on appeal in
S
v ZW
2015 (2) SACR 483
(ECG) at para.
28. The only significant difference is that in the current case
the magistrate’s remarks implied that
he assumed that the
accused had had insight into the charge sheet, whereas in
ZW
,
the prosecutor expressly informed the magistrate that ‘
the
defence
’ (the accused in that
matter was also legally represented) had had insight into the charge
sheet. Stretch J (with
whom Negpen J concurred) noted
(at para. 38) that the court had been informed during argument ‘
by
both counsel for the appellant and counsel representing the state
that this procedurally irregular conduct has become practice
in the
lower courts.
’ The learned
judge proceeded: ‘
If this is
indeed so, presiding officers are invited not only to be vigilant in
discouraging and reprimanding such sloppy prosecution,
but also to
resist becoming a part of what can only be described as a series of
unfortunate irregularities
’.
[12]
Despite the court’s observation in
ZW
(at para. 41(c)) that
The provisions of s 105
are peremptory, not only with respect to the stating of the charges
in open court, but also particularly
with respect to the party seized
with the duty to do so, being the prosecutor who after all is the
official representative of the
state, being the accused's accuser.
See
S v Mamase and Others
2010 (1) SACR 121
(SCA) para 7. Furthermore, an accused person is at the outset of
criminal proceedings entitled to be advised of the case which
he is
called upon to answer to with sufficient particularity so as to
instruct his legal representative properly and to plead to
the
charges in a meaningful way, should he so wish. The accused's right
to be informed of the charge with sufficient detail to
answer it is a
fundamental non-derogable right which enjoys absolute protection in
terms of s 35(3)
(a)
read with s 37(5)
(c)
of
the Constitution.
the
court did not hold that the non-compliance with the strict tenor of
s 105 in the circumstances of that case had vitiated
the
proceedings. The only effect of the non-compliance with the
letter of the provision in that particular case was that
it resulted
in the appellate court not being satisfied that the accused had been
alerted to the application of the prescribed minimum
sentences
applicable to the offences with which he had been charged. In
the result the court dismissed the appeal against
the convictions,
but substituted the sentences of life imprisonment that had been
imposed in terms of the prescribed minimum sentence
regime with
determinate sentences of imprisonment.
[13]
Whilst
the court in
ZW
did
not expressly reason its conclusions along these lines, I think the
order made in the matter implicitly demonstrated the application
by
the court of the recent trend in statutory construction which is to
have regard in respect of the practical application of statutory
provisions less to the characterisation of the language in which a
provision has been couched (whether as ‘peremptory’
or
‘directory’), and more to whether on the facts of the
given case the evident substantive purpose of the provision
has been
achieved or not.
[4]
[14]
Para
7 of the judgment of the Supreme Court of Appeal in
S
v Mamase
and
Others
2010
(1) SACR 121
(SCA), to which reference was made in
ZW
in the passage quoted earlier,
[5]
does not hold that s 105 is peremptory in the sense that it is
essential that it be complied with to the letter. The
judgment
holds that a plea process in criminal proceedings is peremptory in
terms of s 105, which is something different.
The appeal
court made that observation in the context of determining when a
trial commences. Its determination was that that
the effect of
s 105 (and s 106, which prescribes the nature of the
various types of plea that an accused may plead) is
that a criminal
trial does not commence until the accused pleads to the charge(s).
To use an analogy from civil procedure,
litis
contestatio
is not obtained, and the case is not triable, until the accused has
pleaded.
[15]
The
issue in
Mamase
was one of jurisdiction. The accused in that matter had applied
to the court before which they had been indicted for a ruling
that it
did not have jurisdiction. The application was made before the
criminal trial had commenced. The appeal court
held that the
court of first instance should not have entertained the application
because, on a proper approach, the issue of its
jurisdiction to
entertain the matter would arise only in the context of plea in terms
of s 106(1)(f) of the Act.
[6]
It explained that a challenge to the court’s jurisdiction only
becomes a justiciable issue when the court has become
seized of the
proceedings, which, in a criminal trial happens only when the accused
enters a plea. It follows that it is
therefore necessarily
implicit in the judgment in
ZW
that the court accepted that the accused in that case had effectively
entered a plea notwithstanding non-compliance with the letter
of
s 105.
[16]
Another comparable case is
Motlhaping
v S
[2015] ZANWHC 60
(17 September 2015). In that matter
the full court of the North West division (Landman J, Gura and
Chwaro JJ concurring)
was seized of an appeal from the judgment
of a single judge in a criminal matter. The appellate court’s
judgment records
that the plea process in the trial court went as
follows:
…
when the
prosecutor requested that the indictment be read to the appellant,
the trial Judge turned to appellant’s counsel
and asked her
whether she represented the appellant and then said: “And the
accused is familiar with the charges against
him?” When counsel
replied in the affirmative the trial Judge said “And he has
instructed you to plead?” Counsel
replied: “Not guilty.”
The trial judge then said:
“
Just confirm with
the accused that he pleads not guilty on all the charges. No, just
ask him if he pleads not guilty on all the
charges. You will
interpret what I say and not what you want to interpret.”
The appellant replied:
“Not guilty.”
The
full court declined to uphold the contention by the appellant’s
counsel that the convictions and sentences should be quashed
solely
on the basis that plea process had not complied faithfully with the
language of s 105 of the Act.
[17]
It is evident from the judgment
that Landman J was astute to the fact that s 105 is a
provision in terms of which effect
is given to an aspect of the fair
trial rights entrenched in terms of s 35(3) of the Bill of
Rights.
[7]
In weighing the argument advanced by the appellant’s counsel he
took the view the proper approach was to consider whether
the
non-compliance had materially compromised the appellant’s fair
trial rights. He concluded that it had not.
In this
regard the learned judge stated (at para. 9), ‘
I
am satisfied from a reading of the record that the appellant knew he
was indicted on two counts of murder and that he confirmed
counsel’s
statement that he pleaded not guilty to those charges
’.
[18]
The approach adopted in the aforementioned
decisions put substance over form. In both matters the court
overlooked the failures
of punctilious compliance with s 105 in
the trial courts because they were satisfied that the purpose of the
provision had
been substantively fulfilled, and also, and more
importantly, that the accused’s constitutional right to be
informed of the
charge with sufficient detail to answer it had not
been compromised. In both matters the appellate courts were
satisfied
that the accused had been sufficiently informed of the
charges they faced and that the nature of their intended pleas had
been
effectively placed on record.
[19]
That the application of s 105 should
be approached pragmatically, rather than formalistically, is also
supported by the authors
of Du Toit
et
al
,
Commentary
on the
Criminal Procedure Act
(Juta
) at
15-2 – 15-2B [looseleaf edition Service 58, 2017]. They
offer an example of how formal compliance with the letter
of
s 105
might even be logistically impractical in a given case:
It is submitted that the
prosecutor’s duty to put the charge is based on the accused’s
right to know what the charge
is. Is it then, strictly speaking,
absolutely necessary for the charge(s) to be read out in
circumstances where defence counsel,
after proper consultation with
the accused, takes the initiative by informing the court and the
prosecutor that his client is aware
of all the charges against him
and in a position to plead? …
Consider the case where
the accused, an accountant, is charged with four dozen charges of
fraud and is defended by senior counsel
who is assisted by two fairly
experienced juniors. No court in South Africa would insist, or should
require, that in this type
of case 'the letter of the law’
should be followed by requiring that the charges with all their
detail should nevertheless
be put to the accused by the prosecutor.
The procedural objective should be to allow a situation where an
informed plea in respect
of each count can be received. The plea
determines the ambit of the
lis
between the defence
and prosecution; and this, it is submitted, can also be achieved in
cases where defence counsel has indicated
that his client is
'familiar’ with the charges and ready to plead to each numbered
count in the charge sheet or indictment.
[20]
S v Porrit
2016
(2) SACR 700
(GJ) serves as a real life example of the considerations
that Du Toit
et al
have in mind. In that matter the trial judge observed that
reading the charges for purposes of pleading would take a full
week
or more. The trial judge (Spilg J) acceded to the adoption
of the procedure agreed upon between the accused and
the state in
terms whereof the accused presented a document signed by them
confirming that they understood the charges, agreed
that the charges
need not be put to them in open court, and that a plea of not guilty,
as well as a plea of lack-of-jurisdiction,
be entered. (See
Porrit
at
paras. 67-69). The accused in that matter were not legally
represented, but evidently not unsophisticated persons.
It is
clear from the judgment that in allowing the plea process to proceed
as it did the trial judge paid careful attention to
the imperative
that the purpose of
s 105
and the accused’s fair trial
rights should not be thwarted or compromised. I have little
doubt that should the accused
in
Porrit
later seek to challenge the validity of their trial on the basis that
the letter of s 105 of the Act had not been complied
with, they
would be given short shrift.
[21]
I would, however, respectfully agree with
the enjoinder by Stretch J in
ZW
that s 105 of the Act should
ordinarily be complied with according to its tenor. It is
especially undesirable that a
presiding officer should be seen to be
assuming the functions of the prosecutor in respect of putting the
charges to the accused.
But in the circumstances of the current
case, in which it is clear (i) that the accused was familiar
with the charge sheet,
(ii) that he had already signed a plea
statement in terms of s 112(2) of the Act that had been prepared with
the assistance of
his legal representative, (iii) the accused
expressly stated his plea of guilty to the charges in open court, and
(iv) confirmed
the content of his plea statement in open court and
where (v) the prosecution recorded its acceptance of the plea in open
court,
I consider that the object of s 105 was substantively
fulfilled and that there was no prejudice to the accused’s
right
to a fair trial. In the result I would address Magistrate
Maseti’s concern about the effectiveness of the accused’s
pleas by holding that the accused did effectively plead to the
charges.
Were
the accused’s pleas competently altered to pleas of not guilty?
[22]
The circumstances in which the accused’s
plea was purportedly altered in terms of s 113 of the Act to one
of not guilty
appear from the following passage of the transcript of
proceedings before Magistrate Oosthuizen:
HOF: Landdros
Delport is ongelukkig oorlede en nie beskikbaar om voort te gaan met
hierdie verrigtinge nie. … En derhalwe
gaan die hof Artikel
275 van die Strafproseswet toepas en voortgaan met die verrigtinge.
MNR
STEMMET: Soos dit die agbare hof behaag. Edelagbare, my
instruksies in hierdie aangeleentheid …(onhoorbaar) in
hierdie
aangeleentheid … (onhoorbaar) eintlik Artikel 113 toepas
in hierdie aangeleentheid. Dit is my instruksie
…
(onhoorbaar) Edelagbare my instruksies is dat daar, beskuldigde voel
hy was onskuldig in hierdie aangeleentheid edelagbare
en hy wil graag
sy dag in die hof hê.
[8]
[23]
[The accused’s counsel, Mr Stemmet,
then proceeded to refer to what appear to have been extracurial
discussions concerning
the irregularity of the plea process –
an issue disposed of in relation to the first question discussed
above – and
indicated his understanding that the matter should
have been sent on special review. The magistrate then
intervened and the
record goes on as set out below.
HOF:
So Bewysstuk A
[the plea statement
read out before the first magistrate by the accused previous legal
representative and confirmed by the accused]
,
wat inderdaad deur u (sic) vorige regsverteenwoordige uitgelees het
(sic), waarin u (sic) erkennings vervat is en wat die 112(2)
Verklaring vervat het, is nie u (sic) instruksies nie?
MNR STEMMET: Nee,
edelagbare dit is definitief nie my instruksie nie. In
fact my instruksie het dit glad nie so gebeur
nie, edelagbare (sic).
HOF: Enige
sentiment van u kant af mnr Pretorius [the prosecutor]?
AANKLAER: …
(Onhoorbaar) vonnis. Artikel 275 …(onhoorbaar)
HOF: Ek kan nog
steeds, as ek Artikel 113 van die Strafproseswet reg verstaan, kan
die hof daardie artikel op enige stadium
voor vonnis toepas.
MNR STEMMET: Dit is
inderdaad korrek, edelagbare.
HOF:
En dit blyk dan nou inderdaad dat die verdediging nie meer, nou dat
die instruksies verander het, dat dit nie meer vervat
word in
Bewysstuk A nie. So ek kan nie sien nie dat daar ’n
nodigheid is om die aangeleentheid te verwys na die Hooggeregshof
toe
nie. Die hof gaan bloot Artikel 113 toepas en ek gaan ’n
pleit van onskuldig notuleer ten opsigte van al hierdie
aanklagte.
[9]
[
[10]
]
…
.
[The
magistrate then explained that he was unable to continue with the
trial because of his prior involvement in the hearing of
the
accused’s bail application, whereafter the continued as
follows.]
HOF:
Die hof pas dan nou Artikel 113 toe en ek notuleer pleite van
onskuldig ten opsigte van al drie die aanklagtes.
Ek gaan die
aangeleentheid dan uitstel vir my ampsbroer om ’n verhoordatum
te reël. Maar die pleit van onskuldig
is nou reeds
genotuleer. En my ampsbroer kan net Artikel 118 toepas en
voortgaan met die verrigtinge, sonder dat daar (sic),
want daar is
geen pleitverduideliking aan my voorgehou nie.
[11]
[24]
It is convenient at this stage, having
regard to the magistrate’s references to them in the passages
from the record that
I have just quoted, to set out the provisions of
ss 113 and s 118 of the Act. Section 113 provides:
113 Correction
of plea of guilty
(1) If the court at any
stage of the proceedings under section 112(1)(a) or (b) or 112(2) and
before sentence is passed is in doubt
whether the accused is in law
guilty of the offence to which he or she has pleaded guilty or if it
is alleged or appears to the
court that the accused does not admit an
allegation in the charge or that the accused has incorrectly admitted
any such allegation
or that the accused has a valid defence to the
charge or if the court is of the opinion for any other reason that
the accused’s
plea of guilty should not stand, the court shall
record a plea of not guilty and require the prosecutor to proceed
with the prosecution:
Provided that any allegation, other than an
allegation referred to above, admitted by the accused up to the stage
at which the
court records a plea of not guilty, shall stand as proof
in any court of such allegation.
(2) If the court records
a plea of not guilty under subsection (1) before any evidence has
been led, the prosecution shall proceed
on the original charge laid
against the accused, unless the prosecutor explicitly indicates
otherwise.
Section
118 of the Act reads as follows:
118
Non-availability of judicial officer after plea of not guilty
If the judge, regional
magistrate or magistrate before whom an accused at a summary trial
has pleaded not guilty is for any reason
not available to continue
with the trial and no evidence has been adduced yet, the trial may be
continued before any other judge,
regional magistrate or magistrate
of the same court.
[25]
It is
evident that s 113(1) may be triggered (i) if something
occurs in the post-plea proceedings that makes the presiding
officer
mero
motu
doubt whether the accused is guilty of the offence to which he has
pleaded guilty - this commonly happens when an accused says
something
in mitigation of sentence that calls into question whether he has
properly admitted all the elements of the offence;
(ii) if it is
alleged that the accused does not admit an allegation in the charge
or (iii) that the accused has incorrectly
admitted any such
allegation; (iv) where it appears to the court that the accused
has a valid defence to the charge and (v) if
the court is of the
opinion for any other reason that the accused’s plea of guilty
should not stand. The circumstances
of a given case might give
rise to a situation in which there is an overlapping engagement of
more than one of the aforementioned
five triggering situations.
[12]
The proviso to s 113(1) can sensibly apply, however, only when
the plea is altered in circumstances in which the third
of the
aforementioned triggers is applicable.
[26]
Section 113 did not have a legal
predecessor in the 1955
Criminal Procedure Act, and
in the early
years after its introduction in the current Act there was notable
jurisprudential disharmony on its import.
The position was
settled by the judgment of the late Appellate Division in
Attorney-General, Transvaal v Botha
[1993] ZASCA 159
;
1994 (1) SA 306
(A). The appeal court held
that s 113 should be construed consistently with the common law,
which it stated had been
correctly enunciated in
S
v Britz
1963 (1) SA 394
(T) at
398H-399B as follows:
The
accused wishing to withdraw his plea of guilty must give a reasonable
explanation as to why he had pleaded guilty and now wishes
to change
his plea. A reasonable explanation could be, for example, that the
plea was induced by fear, fraud, duress, misunderstanding
or mistake.
If he fails to give an explanation the court would be entitled to
hold him to his plea of guilty. If he does give an
explanation there
is no
onus
on
him to convince the court of the truth of his
explanation. Even though his explanation
be improbable the court is not entitled to refuse the application,
unless it is satisfied
not only that the explanation is improbable,
but that beyond reasonable doubt it is false. If there is any
reasonable possibility
of his explanation being true, then he should
be allowed to withdraw his plea of guilty.
The
judgment in
Botha
emphasised that there is no onus on an
accused to satisfy the court on a balance of probability that he
should be permitted to
change his plea. A reasonable
explanation by the accused is all that is required to trigger the
provision, and oblige the
court to alter the plea (see
Botha
at 329G-H).
[27]
As the passage from the record quoted in
paragraph [22]
above shows, the magistrate
altered the plea to one of not guilty without any explanation by or
on behalf of the accused having
been given whatsoever. It is
not an explanation for a new legal representative merely to state
without elaboration that the
accused’s plea statement was
inconsistent with his instructions. It was equally not
explanatory to say that the accused
wanted ‘to have his day in
court’. Certainly, without more, that would not amount to
a reasonable explanation
(cf. the remarks of Grosskopf J,
Vivier J concurring, in a comparable context in
S v
Du Plessis
1978 (2) SA 496
(K),
especially at 498G-H).
[28]
The magistrate should have enquired into
the matter before changing the plea. He should have ascertained
which of the allegations
that the accused had admitted in his plea
statement were no longer admitted and ascertained why they were no
longer admitted.
It may well be that the magistrate upon such
enquiry would have altered the plea, but without the enquiry he could
have no basis
to assess one way or the other whether there was a
reasonable possibility of the explanation being true, or as to
whether or not
he should be in reasonable doubt about the tendered
and accepted pleas of guilty. As the judgment in
Botha
confirms in a case like the present a reasonable explanation by the
accused is the qualifying criterion for the court to change
his
pleas. It was absent.
[29]
In addition, the magistrate’s failure
to elucidate the accused’s position meant that no basis was
provided for the operation
of the proviso to s 113(1). It
is not apparent on the record which of the allegations in the charge
that the accused
had admitted in his plea statement he now wished to
place in issue. The plea statement admitted all the allegations
in the
charge sheet except for excluding some of the items of
property allegedly stolen from the complainants in the counts of
housebreaking
and theft. Depending on the nature of the
explanation given for the accused’s change of stance, the
magistrate should
have ascertained which allegations the accused
contended had been incorrectly admitted in order to clarify which of
the accused’s
admissions could stand as proof in the manner
contemplated by the proviso to s 113(1).
[30]
The ruling made by the magistrate altering
the accused’s plea to one of not guilty on all three of the
charges was not competently
made, and therefore falls to be reviewed
and set aside.
How
should the matter proceed from here?
[31]
Magistrate Maseti is concerned that he
should not proceed with the trial because he has had sight of the
record of the accused’s
previous convictions, which were proved
before the case was postponed for the obtaining of a probation
officer’s report.
There are conflicting judgments
concerning the competence of a trial continuing before a judicial
officer who alters a plea in
terms of s 113 of the Act after
conviction and before the imposition of sentence if the accused’s
previous convictions
have been proved. In
S
v Sass en Andere
1986 (2) 146
(NKA) it was held (per Rees AJ, Jacobs JP concurring) that s 113
implicitly contemplated the continuation
of the trial before the same
presiding officer; whilst the opposite view was expressed (per Van
Zyl J, Smit J concurring)
in
S
v Fourie
1991 (1) SACR 21
(T). I
read the obiter remarks of Lamprecht AJ (Phatudi J and De
Vries AJ concurring) in
S v Dlamini
2014 (1) SACR 530
(GP) at para. 21.4 and footnote 16, where
it is suggested that the approach laid down in
Fourie
‘
might be in need of
reconsideration at an appropriate time …
’
as preferring the judgment in
Sass
.
[32]
I
respectfully agree with the judgment in
Sass
and disagree with the relevant part of the judgment in
Fourie
.
[13]
In my judgment s 113 expressly provides for the continuation of
the matter before the judge or magistrate before whom
the accused
pleaded guilty. This much follows from the words in s 113(1)
that upon altering the plea the court shall ‘
require
the prosecutor to proceed with the prosecution
’.
The legislature must have appreciated when it provided that the
alteration of the plea might be allowed at any time
before sentence
was imposed that that might be after the disclosure of the accused’s
previous convictions. If it had
intended that in such
circumstances the prosecutor should proceed with the prosecution
before a different judicial officer, it
would surely have said so;
as, for example, it did in s 105A(6)(c) and 105A(9)(d). I
also endorse the remarks made in
Sass
,
with reliance on the dicta of Innes CJ in
R
v Essa
1922 AD 241
at 246-7,
[14]
subsequently endorsed by Curlewis JA in
R
v Mgwenya
1931 AD 3
(in which the late Appellate Division dismissed an appeal
based on a special entry that the trial judge, who sat without a
jury,
had perused the record of the accused’s previous
convictions put before him with the record of the preparatory
examination),
that it falls to be understood that a judicial officer,
as distinct from a layman or a juror, is well qualified to exclude
the
knowledge obtained of the accused’s criminal record in the
assessment of the evidence upon which the verdict must be based.
However, should a judicial officer for any reason nevertheless feel
uncomfortable about proceeding with the matter with knowledge
of the
accused’s previous convictions after altering the plea in terms
of s 113, he or she may properly recuse themselves
and, provided
that they do so before any evidence has been adduced, the trial may
continue before a substitute in terms of s 118
of the Act.
[33]
By reason of the order that will be made
reviewing and setting aside the alteration of the pleas, Magistrate
Maseti will only get
to stage of having to consider his position if,
after appropriate enquiry into the issue raised by Mr Stemmet’s
cryptic indication
that the accused might wish to change his plea, he
properly decides that the accused’s pleas should be altered.
Unless
Magistrate Maseti is persuaded by a reasonable explanation
that the accused’s plea must be altered in terms of s 113,
he must proceed to impose sentence on the accused. In the event
that he alters the plea and feels constrained to recuse himself,
he
should ensure that the references in the record to the accused’s
previous convictions are sealed before the matter is
passed on to a
different magistrate for completion in terms of s 118.
[34]
The following order is made:
(a)
The order made by Magistrate Oosthuizen
altering the accused’s pleas in terms of
s 113
of the
Criminal Procedure Act 51 of 1977
is reviewed and set aside.
(b)
It is declared that pursuant to the order
made in paragraph (a) above, Magistrate Maseti may continue with the
trial in terms of
s 275
of the
Criminal Procedure Act, and
in
accordance with the guidance provided in this judgment.
A.G. BINNS-WARD
Judge of the High Court
L.J. BOZALEK
Judge of the High Court
[1]
‘
[S]o
that it still remains part of the record, but does not form part of
the visible record.’ (My translation.)
[2]
COURT:
Very well, on the 7
th
of August 2017, the state versus Elton Moses case no.
SB295/2016.
The parties are as noted on the record. I assume that you
understand the charges. There is one of
trespassing and two of
housebreaking. Not so?
ACCUSED:
That is so, sir.
COURT:
How do you intend pleading to the charges, sir?
ACCUSED:
I plead guilty.
COURT:
Thank you, madam.
CHARGES
NOT FORMALLY PUT TO ACCUSED
ACCUSED
PLEADS GUILTY
MS VAN DER HEEVER: Thank you, Your
Worship. Confirm my instruction for a plea of guilty. I
present the statement to the
court.
(My
translation.)
[3]
Signed by
the accused and myself, Your Worship. Leave to hand up.
COURT:
Mr Moses, this statement which your legal representative has read
out to me, did you understand it.
ACCUSED:
Yes, Your Worship.
COURT:
Is that so?
ACCUSED:
That is so, Your Worship.
(My
translation.)
[4]
Cf.
Weenen
Transitional Local Council v Van Dyk
[2002] ZASCA 6
,
2002 (4) SA 653
(SCA),
[2002] 2 All SA 482
, at para.
13, and
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
[2013] ZACC 51
,
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
, at para.
30.
[5]
At para.
[12]
above.
[6]
Section 106(1)(f)
provides:
Pleas
(1) When an accused pleads to a
charge he may plead-
…
that
the court has no jurisdiction to try the offence; …
[7]
Section 35(3)(a) of the Constitution provides:
Every
accused person has a right to a fair trial, which includes the right
–
(a)
to be informed of the charge with sufficient detail to answer it; …
[8]
COURT:
Magistrate Delport has unfortunately passed away and is not
available to continue with these proceedings … And therefore
the court is going to apply
s 275
of the
Criminal Procedure Act
and
continue the proceedings.
MR
STEMMET: As the court pleases. Your Worship my instructions in this
matter …(inaudible) in this matter … (inaudible)
actually apply
s 113
in this matter. It is my instruction
… (inaudible) Your Worship my instructions are that there,
the accused feels
that he was not guilty in this matter Your Worship
and he would like to have his day in court.
(My
translation.)
[9]
COURT: So
exhibit A [the statement in terms of s 112(2) of the Act] which
was in fact read out by your previous legal representative,
in which
your admissions are set out and which comprises the statement in
terms of s 112(2) is not your instructions?
MR
STEMMET: No, Your Worship. It is definitely not my
instruction. In fact my instruction is that it that it did not
happen that way at all, Your Worship.
COURT:
Anything from your side, Mr Pretorius [the prosecutor]?
PROSECUTOR:
(Inaudible)… sentence. Section 275 (inaudible).
COURT:
I can still, if I understand s 113 correctly, the court can
still apply that provision at any stage before sentence.
MR
STEMMET: That is indeed so, Your Worship.
COURT:
And it now appears indeed that the defence no longer, now that the
instructions have changed, that it is no longer reflected
in exhibit
A. So I cannot see that there is a necessity to refer the
matter to the High Court. The court is merely
going to apply
s 113 and I am going to note a plea of not guilty in respect of
all of these charges.
[10]
It bears
mention in passing that the magistrate’s opinion that changing
the recorded pleas from guilty to not guilty would,
of itself, avert
the necessity to send the matter on special review was misplaced.
Section 113 could not have been invoked
if the accused had not
effectively pleaded guilty in the first place.
(My
translation.)
[11]
COURT:
The court now applies s 113 and records pleas of not guilty in
respect of all three charges. I am then
going to postpone the
matter for my Colleague to determine a trial date. But the
plea of not guilty is already recorded.
And my Colleague is in
a position just to apply s 118 and continue with the
proceedings, without there (sic), because no
plea explanation has
been presented to me.
(My
translation.)
[12]
The
Appellate Division’s identification in
Attorney-General,
Transvaal v Botha
[1993] ZASCA 159
;
1994 (1) SA 306
(A) of
four
situations in which s 113 is triggered happened before the
provision was amended in terms of s 5 of Act 86 of 1996.
The
wording preceding the proviso to subsection (1) then read ‘
If
the court at any stage of the proceedings under section 112 and
before sentence is passed is in doubt whether the accused is
in law
guilty of the offence to which he has pleaded guilty or is satisfied
that the accused does not admit an allegation in
the charge or that
the accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge,
the court shall record a
plea of not guilty and require the prosecutor to proceed with the
prosecution:
’
[13]
The main part of the judgment in
Fourie
deals with the proper construction of s 113 consistently with
the common law. In that regard the judgment was expressly
approved by the Appellate Division in
Botha
supra.
[14]
‘
Now it must be borne
in mind that the real disqualification for the due discharge of a
juror's duty is not knowledge, but bias.
And a Judge is specially
trained to separate the two; to acquire the one without entertaining
the other. He is continually confronted
with the task. He listens to
a hardened offender relating a plausible story; he must not allow
the knowledge of a long list of
previous convictions to influence
him in the slightest degree in summing up the case to the jury. He
has a record read to him,
from which it is necessary in the result
to excise certain portions; he must dismiss these portions from
consideration.
During the course of a trial important evidence
is objected to. Its nature and effect transpire before he can give
his decision,
he must treat the case as if he had never heard the
evidence. So that his intellect is trained to discriminate between
various
facts all within his knowledge, to apply some and to reject
others as having no bearing upon the matter to be decided. These
general considerations show that a Judge is not in the same position
as an ordinary juryman as regards the propriety of acquainting
himself with the earlier stages of a criminal investigation.
’