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[2019] ZAWCHC 4
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Jacobs v S (A365/18) [2019] ZAWCHC 4 (11 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
(Coram: Henney, J
et
Nuku, J)
Case No: A365/18
In
the matter between:
RODELIO
JACOBS
Appellant
And
THE
STATE
Respondent
JUDGMENT: 11 FEBRUARY 2019
Henney,
J
Introduction
:
[1]
The Appellant was convicted in the Magistrates Court, Malmesbury on a
charge of assault
with intent to do grievous bodily harm as a result
of the incident that happened between him and the complainant,
Christiaan Amerika
on 31 July 2015 at or near Mimosa Street, Riebeeck
Kasteel, where it was alleged that he stabbed the complainant with a
broken
bottle in his face, causing him grievous bodily harm.
The
Section 112(2) Plea Statement
[2]
The appellant was legally represented and pleaded guilty to the
charge. He however,
in his plea, set out in a statement in terms of
the provisions of
section 112(2)
of the
Criminal Procedure Act, 51 of
1977
(“the CPA”), admitted that he assaulted the
complainant with the intent to do him grievous bodily harm. He says
in
his plea statement that on 31 July 2015 at the place as mentioned
in the charge sheet, he assaulted the complainant, by hitting
him
with a beer bottle in the face as a result of which, the complainant
sustained serious injuries.
[3]
He further states that they were drinking on this particular day, he
was in the company
of the complainant and his girlfriend. He observed
that the complainant was walking with his girlfriend and he wanted to
know where
they were going to. The complainant did not give him an
answer and that resulted in an argument between the two of them. The
complainant
had a beer bottle in his hand and wanted to hit him with
the beer bottle, whereupon he himself, picked up a beer bottle and
then
proceeded to hit the complainant with this bottle in his face.
[4]
He further admitted that he foresaw that through his conduct, that
the complainant
would sustain serious injuries and that he reconciled
him with such a result, but he nonetheless, proceeded with such
conduct.
Based on his plea and the words used by the Appellant, it
clearly indicates that he did not have a direct intention to assault
the complainant, but formed an intention in the form of
dolus
eventualis
. As a result of this plea, of guilty, he was
convicted. The prosecutor thereafter proved, that the accused
had one
previous conviction also for assault with the intent to do
grievous bodily harm that was committed on 19 September 2009, for
which
he was convicted on 24 March 2010 and sentenced to a period of
12 months correctional supervision in terms of
section 276
(1) (h) of
the CPA and he was further sentenced to an additional 12 months,
imprisonment which was suspended for a period of 5
years on condition
that he is not convicted on a charge assault with the intent to do
grievous bodily harm and which is committed
during the period of
suspension.
Evidence
before Sentence
[5]
The Appellant was called by his legal representative to testify in
mitigation of sentence.
In his evidence, he stated that he is 26
years old, a father of one child, who is 4 years old. He works on a
farm and earns R700
per week. He expressed his regret about the
incident and said that he was under the influence of liquor. In
cross-examination by
the prosecutor, he stated that he was on top of
the complainant and he could not say whether the complainant
assaulted him.
[6]
He further stated that the complainant did not in any way threaten
him. And he admitted
that he stabbed the complainant in his face with
a broken bottle. Based on this set of facts, it would seem that
the appellant
formed a direct intention to stab the complainant in
the face. During his address in mitigation of sentence, his
legal representative
requested the court to impose a suspended
sentence. He further argued that the court should consider the fact
that the Appellant
consumed alcohol as a mitigating factor. And he
further argued that the appellant and complainant were involved in a
love triangle,
which spurred him on to commit the offence.
[7]
The prosecutor on the other hand, based on the evidence presented,
argued that the
appellant admitted that his life was not in danger.
And that he admitted that the complainant was lying on the ground and
that
he was on top of him when he assaulted the complainant.
After the magistrate has considered all the evidence and arguments,
the appellant was sentenced to a period of 3 years imprisonment.
Leave
to appeal against his sentence was refused by the magistrate, and
with the leave of this court, the appellant now appeals
the sentence
imposed by the magistrate.
Grounds
for appeal
[8]
The grounds against which the appellant appealed the sentence can be
summarised as
follows:- that the magistrate, did not properly
consider the circumstances under which the offence were committed,
that the appellant
is a productive member of society; that he pleaded
guilty by showing true remorse. The Respondent in opposing this
appeal,
submits the appellant has a previous conviction on the same
offence committed on 19 September 2009, for which he was convicted on
24 March 2010 and five years later, the appellant was again convicted
of the same offence. The offence constitutes an element of
violence.
[9]
According to the Respondent, the sentencing court properly considered
and attached
proper weight to the personal circumstances of the
appellant. And that the personal circumstances are not the only
factors which
the court has to take into consideration. The
Respondent submits that the further aggravating factors are; that the
appellant
intentionally stabbed the complainant with a broken bottle
in the face.
[10]
The Respondent further submitted that according to the medical report
the complainant sustained
serious injuries in his face which left him
with a scar in his face, for life. The attack was unprovoked. That
the aggravating
factors far outweigh those factors and circumstances
presented in mitigation on behalf of the appellant and that the
sentence that
was imposed was lenient, not disproportionate, nor does
it induce a sense of shock.
Issues
on appeal
[11]
There seems to be two conflicting versions relating to the
circumstances under which the assault
took place. The one version was
given during the
section 112
(2) plea of guilty, and another version
was given during his evidence presented in mitigation of sentence.
The version given during
the session 112 (2) plea was to the effect
that the complainant wanted to attack him with a beer bottle,
whereupon he also picked
up a beer bottle which he used to hit the
complainant in the face for which he formed an intention in the form
of
dolus eventualis
. That portrays the complainant as the
aggressor and who provoked the Appellant. Whereas in evidence
during mitigation of
sentence, he said, that he is unable to say
whether the complainant assaulted him.
[12]
He further stated that the complainant did not threaten him.
And he further admitted that
he was on top of the complainant while
he stabbed him in the face with a broken bottle. And based on
those facts, it seems
that the complainant was not the aggressor who
attacked the Appellant first with a beer bottle. The attack on
the complainant
was not unprovoked and there could also not have been
any direct intention to stab him in the face.
[13]
The question for consideration in this appeal is whether the factual
matrix presented by the
appellant during the plea, which was accepted
by the prosecution, or the factual matrix presented by the appellant
in mitigation
of sentence should have been taken into consideration
the purposes of sentence.
Discussion
[14]
In terms of the provisions of
section 112
(3) of the CPA, nothing in
this section shall prevent the prosecutor from presenting evidence or
the court from hearing evidence,
including evidence or a statement
made by or on behalf of the accused with regard to sentence, or from
questioning the accused
on any aspect of the case for the purpose of
determining an appropriate sentence. It was in terms of the
provisions of this subsection
that the appellant testified under
oath, with regard to sentence. The question now to consider was
whether the version as put up
by the appellant during his evidence
should be accepted above the version as set out in his
section 112
(2) plea.
[15]
The version given by the appellant during the sentencing proceedings
as to the circumstances
under which he had committed the offences was
relied upon by the prosecutor. And it seems that the magistrate also
took into consideration
and placed great emphasis on the version as
proffered by the appellant during evidence with regard to sentence
after he had been
convicted which I said earlier, proves that the
Appellant had formed a direct intention to stab the complainant in
the face and
that the attack on the complainant by the Appellant was
unprovoked.
[16]
It must however be remembered, that it was not a version which the
prosecutor had placed before
the court by evidence which he had
presented to the court after conviction, but it was evidence which
the appellant had voluntarily
given during the sentencing
proceedings. It was not evidence put up by the prosecutor to
contradict the version given by the appellant
during the plea, but
evidence given by the appellant himself. In this particular case it
was the appellant himself contradicted
his version.
[17]
The fact, however,
remains
that the prosecutor full well knowing that the facts upon which the
plea of guilty was based was contradicted by the facts
and evidence
he or she had available. Unfortunately under those circumstances, the
prosecutor by accepting the plea was bound by
it. It is trite that
where the prosecutor does not dispute the facts as proffered by an
accused person in a plea of guilty, such
prosecutor is bound by it.
[18]
In
S v Van Der Merwe and
Others
2011 (2) SACR 509
(FB), it was held that … “
where
an accused person pleaded guilty and handed in a written statement in
terms of
s
112(2)
of
the
Criminal Procedure
Act
51 of 1977
,
detailing the facts on which his plea was premised, and the
prosecution accepted the plea, the plea so explained and accepted
constituted the essential factual matrix on the strength of which
sentence should be considered and imposed. Such an essential factual
matrix could not be extended or varied in a manner that
adversely impacted on the measure of punishment as regards the
offender”.
See also
S
v Balepile
1979
(1) SA 702
(NC)
.
[19]
This court in
S v N 2015 JDR 0112 (WCC)
per Binns-Ward J said
the following regarding this aspect in a case where the magistrate as
well as the prosecutor relied on the
contents of a probation
officer’s report that was in contradiction with the factual
matrix as set out in a
section 112
(2) plea that was accepted by the
magistrate upon which the conviction of the accused followed.
“
[12] Regrettably,
it is also necessary to address the magistrate's misdirections on the
evidence with regard to
sentence. It appears from the magistrate's
response that he saw no reason to be astute to the effect of evidence
adduced in respect
of the sentence proceedings that was at odds, in
respect of the circumstances of the commission of the offence, with
that which
had been accepted for the purpose of convicting the
accused.
And
at para [14] “
The facts accepted by the state and
the court for the purpose of the conviction thus placed the deceased
in the role of the aggressor
in the fight in which he was killed.
They had the deceased starting the fight by stabbing the second
accused and being fatally
stabbed himself in the ensuing melee.
[22]
The
magistrate was incorrect in concluding that the accused had agreed to
the hearsay evidence in contradiction of the version of
events given
in their plea statements being admitted against them”.
And at paragraph
23:
“
The
magistrate should have raised the issue of the conflict between the
probation officer reports and the facts admitted by the
accused if he
was considering preferring either of the versions in the reports. The
prosecutor was certainly not at liberty to
lead evidence in
aggravation in contradiction of the facts that had been accepted for
plea purposes; see e.g. S v Moorcroft
1994 (1) SACR 317
(T)
at 320g, S v Nel
2007 (2) SACR 481
(SCA) at para 20 and S
v Mnisi
2009 (2) SACR 227
(SCA) at para 33 (p. 238f).”
[20]
This subsection may only be used to supplement the version of an
accused person and clear up
uncertainties and ambiguities in the
plea. It cannot be used to contradict the version of an accused
person, even under circumstances
where such an accused person to his
own detriment and aggravation contradicts the version as set out in
the plea. Under such circumstances,
the prosecutor is obliged before
the court pronounces a verdict, based upon the plea to request that
the court enters a plea of
not guilty in terms of the provisions of
Section 113
of the CPA.
[21]
The court must also on the other hand, after it had become aware of
facts during the sentencing
proceedings, which contradicts the
version as set out in the plea, enter plea of not guilty in terms of
the provisions of
section 113.
In this regard, it has been said that
section 112
(3), cannot be used to avoid a court from applying the
provisions of
section 113.
[1]
[22]
The Magistrate therefore clearly in my view misdirected himself by
relying on a factual matrix
that was inconsistent and contradicted by
the factual matrix as set out in the plea upon which he convicted the
appellant and which
the prosecutor accepted. Even though such factual
matrix which contradicted the version in the plea was presented
during mitigation
of sentence, which ironically were used as
aggravating circumstances for the purposes of sentence.
[23]
The proper and appropriate cause of action would have been either for
the prosecutor to have
requested the court to enter plea of not
guilty after the accused, had presented the plea or for the
magistrate upon becoming aware
of the different set of facts to have
entered a plea of not guilty in terms of the provisions of
section
113
of the CPA.
It
is precisely for circumstances such as these, that the provision of
Section 113
caters for an order to prevent a miscarriage of justice.
[24]
The magistrate was therefore wrong to have regard to the facts that
was presented during evidence
in mitigation of sentence by the
appellant and should have sentenced the appellant on the facts, which
was set out in his
section 112
(2) plea of guilty. This court
therefore, is obliged to interfere with the sentence imposed by the
magistrate, based on a
set of facts, which was improperly placed
before the court.
[25]
The fact however remains that the appellant had been convicted of a
very serious offence, which
calls for a severe sentence. The
complainant has suffered a severe injury which left the scar in his
face. It seems also that the
appellant has not learnt from his
mistakes, because five years prior to committing this offence, he was
convicted of a similar
offence. The appellant in my view still
deserves to be sentenced to a period of direct imprisonment. I would
therefore uphold the
appeal against sentence and substitute it with
the following sentence:
“
That the accused is sentenced to a period of
36 months imprisonment of which 18 months imprisonment is suspended
for a period of
5 years on condition that he is not convicted of any
crime of violence committed to a person, which is committed during
the period
of suspension
.”
_______________________
R.C.A. Henney
Judge of the High Court
I agree.
_______________________
L. G. Nuku
Judge of the High Court
[1]
See
in this regard Commentary on the
Criminal Procedure Act, Du
Toit,
Paizes, Skeen and Van Der Merwe at
S60
,
2018
ch17-p32.