S v Manise (279/2021) [2021] ZAWCHC 247; 2022 (1) SACR 412 (WCC) (30 November 2021)

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[2021] ZAWCHC 247
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S v Manise (279/2021) [2021] ZAWCHC 247; 2022 (1) SACR 412 (WCC) (30 November 2021)

IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
[Reportable]
Review case no.:
279/2021
Regional Court
case no.: RCA06/2021
In
the matter between:
The
State
And
Phatulani
Phaphamani
Manise
The accused
Review
judgment delivered on 30 November 2021
JUDGMENT
Pangarker
AJ (Henney J concurring)
Introduction
1.
The Regional Magistrate, Khayelitsha referred this matter on special
review to
the High Court in terms of section 304 (4) of the Criminal
Procedure Act 51 of 1977
(the CPA)
on the ground that she had
in error imposed a sentence of seven years’ direct imprisonment
pursuant to a plea and sentence agreement
in terms of section 105A of
the CPA. In her covering letter motivating the request for a special
review, the magistrate explains
that after finalisation of the matter
and on returning to her office, she realised the error in respect of
the sentence imposed.
She had intended imposing a sentence in terms
of section 276(1)(i) and realised that in terms of section
276A(2)(b), the sentence
agreed upon and imposed exceeded the fixed
period of five years’ imprisonment allowed by section 276A(2)(b) of
the CPA.
2.
The magistrate requests that the sentence be set aside and the matter
be referred
back to her for purposes of imposing a just sentence in
terms of section 105A(9) of the CPA.
Plea
and sentence proceedings in the Court
a quo
3.
The accused was charged with contravening the provisions of section
55 read with
Chapters 2, 3, 4, sections 1, 56 to 61, 71(1), (2) and
(6) of the Criminal Law Amendment Act (Sexual Offences and Related
Matters)
Act 32 of 2007 read with sections 92(2) and 94 of the CPA.
The State alleged that on 6 May 2020 at Khayelitsha, the accused
unlawfully
and intentionally attempted to commit a sexual offence by
placing his penis between the buttocks of the minor victim with the
intention
of penetrating the victim anally, after pulling down the
victim’s pants.
4.
The accused was at all times legally represented during the
proceedings in the
Regional Court. The State advocate was authorized
in terms of section 105A(1)(a) to negotiate and conclude the
agreement on behalf
of the State and pursuant to such  negotiations,
the parties concluded the plea and sentence agreement
(Exhibit A)
in terms of section 105A. On 22 April 2021, the State advocate
informed the magistrate that an agreement was concluded and that
there
was compliance with section 105A(1)(b) of the CPA. The record
reflects that on the magistrate’s enquiry, the accused confirmed
that he had entered into the agreement with the State. The magistrate
declared that she was satisfied that the provisions of section
105A(1)(b) were met. Thereafter the charge was put to the accused, he
indicated that he understood the charge and pleaded guilty
thereto.
5.
The accused’s legal representative read Part A
(The Preamble)
and thereafter Part B
(Plea of guilty and admissions)
of the
agreement into the record. As to the allegations in terms of the
charge sheet, the accused admitted that he is the uncle of
the minor
victim and on the day, he was watching television from his bed while
the victim was sleeping next to him. He then proceeded
to remove his
nephew’s pyjama pants and placed his penis between his nephew’s
buttocks with the intention of committing an act
of anal sexual
penetration. His nephew awoke, jumped from the bed and ran to report
the incident to a family member. The accused
admitted that he acted
unlawfully, knew at all relevant times that his actions were wrongful
and that he could be punished by law.
6.
At this stage of the proceedings, the magistrate invoked section
105A(6)(i), (ii)
and (iii) and ascertained from the accused whether
he confirmed the terms of the agreement and admissions made, whether
he admitted
the facts as alleged by the State and whether he admitted
that he concluded the agreement freely and voluntarily, and in his
sound
and sober senses without any undue influence. The accused
confirmed all of the above, where after the magistrate proceeded to
convict
him as charged.
7.
The record reflects that the proceedings continued with the legal
representative
reading Part C
(the agreement in respect of a just
sentence)
into the record. The sentence agreed upon between the
parties was seven years’ direct imprisonment in terms of section
276(1)(i)
of the CPA, which is the sentence imposed by the magistrate
at the conclusion of the matter. The accused was also declared to be
unfit to possess a firearm and his personal details were included
into the Sexual Offences Register in terms of section 50 of Act
32 of
2007.
Section
105A(6)(a) questioning of the accused
8.
Before addressing the special request by the magistrate, the
proceedings referred
to above require scrutiny and comment. In my
view, the proceedings were characterised by irregularities which the
magistrate unfortunately
does not address in her covering letter.
9.
The first irregularity relates to the magistrate’s questioning of
the accused
in terms of section 105A(6)(a). From the record it is
evident that her questions to the accused in terms of this
sub-section occurred
after the legal representative had read the
Preamble
and the
Guilty plea and admissions
(Parts A
and B of the agreement) into the record. The second irregularity is
that the magistrate, after conducting the sub-section
(6) questioning
referred to above, then proceeded to make findings as to the
accused’s guilt and thus convicted him as charged.
I do not intend
addressing the procedure which is to be followed where a plea of not
guilty is recorded and where the Court questions
the accused in terms
of section 105A(7)(b) as it is not relevant to the consideration of
this review.
10.
In addressing the procedural irregularities which occurred in the
Court
a quo
, I turn to section 105A 6(a), 7(a) and 8 which
state as follows:
(6)(a)
After the contents of the agreement have been disclosed, the court
shall question the accused to ascertain whether
—
(i)
he or she confirms the terms of the agreement and the admissions
made by him or her in the agreement;
(ii)
with reference to the alleged facts of the case, he or she admits
the allegations in the charge to which he or she has agreed to plead
guilty; and
(iii)
the agreement was entered into freely and voluntarily in his or
her sound and sober senses and without having been unduly influenced.
(b)
…
(c)
…
(7)(a)
If
the court is satisfied that the accused admits the allegations in the
charge and that he or she is guilty of the offence in respect
of
which the agreement was entered into, the court shall proceed to
consider the sentence agreement
.
(b)
…
(8)
If
the court is satisfied that the sentence agreement is just, the court
shall inform the prosecutor and the accused that the court
is so
satisfied, whereupon the court shall convict the accused of the
offence charged and sentence the accused in accordance with
the
sentence agreement.
(the
underlined parts are my emphasis)
11.
Wallis JA in
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA)
in addressing
interpretation of documents including legislation, stated that
“
consideration must be given to the language used in the light
of the ordinary rules of grammar and syntax; the context in which the
provision occurs; the apparent purpose to which it is directed and
the material known to those responsible for its production.
”
(par 18). Applying the ordinary rules of grammar and syntax then to
section 105A, it is evident that the questioning of an accused
in
terms of sub-section (6)(a) must occur only after the entire plea and
sentence agreement has been disclosed in Court.
12.
Section 105A(6)(a) does not in any way, allow for a piece-meal
disclosure of the agreement as adopted
by the parties and the
magistrate in this matter as I set out above. I am confident that had
the legislature intended such piecemeal
proceedings, it would have
couched section 105A(6)(a) in words to the effect that “
after
the plea of guilty and admissions have been disclosed, the court
shall question the accused…”
or in such similar terms.
13.
Thus, the premature questioning of the accused as reflected on page 9
of the Court
a quo’s
record, was incorrect and irregular, as
it occurred at a time when the disclosure of the entire plea and
sentence agreement had not
yet been concluded. If there remains any
doubt on this aspect – and there should not be on a proper reading
of sub-section (6)(a)
- then sub-sections (7)(a) and (8) would
certainly dispel such doubt.
The
conviction
14.
The incorrect procedure adopted by the magistrate as described above
then perpetuated a further
irregularity in the proceedings, in that
she convicted the accused prior to the disclosure of the entire
agreement and in disregard
of section 105A(7)(a) and (8). Sub-section
(7) requires of the magistrate:
14.1
to satisfy herself that the accused admits the allegations in the
charge(s);
14.2
to be satisfied that the accused is guilty of the offence in respect
of which the parties concluded the agreement;
14.3
thereafter, to consider the sentence agreement (Part C); and,
14.4
to act in accordance with a judicial discretion afforded in
sub-section (7)(b) in order to make the determinations
as required in
sub-section (7)(a).
15.
Section 105A(7)(a) does not vest the magistrate with any authority to
make a finding or pronouncement
of the accused’s guilt and to
convict him after the plea and admissions have been disclosed. If
that were the case, the sub-section
would have clearly stated so. The
language is clear and unambiguous, and couched in peremptory terms
that “
the court shall proceed to consider the sentence
agreement
”
after the Court has satisfied itself that
the accused admits the allegations in the charge and is guilty of the
offence. To paraphrase,
sub-section (7)(a) requires of the magistrate
to satisfy herself of the accused’s guilt but without pronouncing a
conviction and
once she has satisfied herself, to then proceed to
consider the sentence agreement.
16.
I must further add that the section 105A procedure does not follow
the usual plea procedure in the
CPA, where the questioning of an
unrepresented accused in terms of section 112(1)(b) and the
consideration of the section 112(2)
statement are followed by the
Court pronouncing the conviction of the accused. In this regard, I
fully align myself with the remarks
and findings of Lekhuleni AJ
(Henney J concurring) in the recent review decision in
S v A
[2021] ZAWCHC 104
,
a matter where the Court
a quo
, as in
this matter, pronounced a conviction after questioning an accused in
terms of sub-section (6)(a). At paragraph 10 of the aforementioned
judgment, Lekhuleni AJ stated as follows:
‘
[10]
In my view, the provisions of
subsections 105A(7)(a) and (8) have to be read together. Once the
court is satisfied that the accused
admits the allegations levelled
against him and that he is guilty of the offence, the court must
proceed to consider the sentence
agreement in terms of section
105A(7). In contrast to section 112(1)(b) and 112(2) of the CPA,
subsection 105A(7) does not require
the court to immediately convict
the accused after the court is satisfied that the accused admits all
the elements in the charge.
The court must first consider the
sentence agreement before it can convict and sentence the accused
.
For the sake of completeness, section 105A(7)(a) provides as follows:
‘
If the court
is satisfied that the accused admits the allegations in the charge
and that he or she is guilty of the offence in respect
of which the
agreement was entered into,
the court
shall proceed to consider the sentence agreement
.’
(the underlined
parts are my emphasis)
17.
Turning to section 105A(8), its provisions and the procedure it
envisages may be broken down into
various stages:
17.1
firstly, the Court must satisfy itself that the sentence agreement is
just;
17.2
secondly, the Court
shall
inform the State and defence
that it is satisfied that the sentence agreement is just;
17.3
thirdly, the Court
shall
convict the accused of the
offence(s) charged; and
17.4
fourthly, the Court sentences the accused in accordance with the
sentence agreement.
18.
The conviction and sentence of an accused in terms of sub-section (8)
occur consecutively but it
is part of one process. In this matter,
the pronouncement of the conviction following upon the accused’s
questioning in terms of
sub-section (6)(a) and prior to the
provisions of sub-sections (7)(a) and (8) having been complied with,
was irregular.
The effect of
the procedural irregularities
19.
The question which follows is whether, in the circumstances of this
matter, the procedural irregularities
which occurred in the Court
a
quo
and described above, vitiate the proceedings to such an
extent that the conviction should be set aside? Section 304(4) of the
CPA
allows for special review circumstances in criminal proceedings
where it is brought to this Court’s attention that proceedings
were
not in accordance with justice.
20.
The irregularities which I highlight in the preceding paragraphs are
of a procedural nature and
are not, to my mind, fatal as they do not
impair the legal validity of the conviction. I say this for several
reasons: the Court
a quo’s
record reflects that the accused
was legally represented throughout the proceedings; the State
advocate was duly authorized to conclude
the plea and sentence
agreement on behalf of the State; the accused confirmed concluding
the agreement; the magistrate found that
there was indeed compliance
with sub-section (1)(b); the accused signed the agreement, admitted
all the allegations in terms of the
charge and did so freely and
voluntarily and in his sound and sober senses and without any undue
influence.
(see
S v A
par 14)
21.
Following on from the preceding paragraph, I am therefore satisfied
that the accused’s conviction
was in accordance with justice. In
addition, it would surely not be in the interests of justice to set
aside the conviction due to
procedural irregularities as it would
have the result that a minor child, the victim of the sexual offence
perpetrated by the accused,
would have to possibly face further
secondary trauma as a result of un-concluded proceedings.
The sentence
imposed by the Court
a quo
22.
This brings me to the matter of the sentence
imposed in terms of the section 105A agreement. Section 276(1)(i)
must be read with section
276A(2)(b) of the CPA which limits the
sentence to a fixed period of five years’ imprisonment. In the
circumstances of this matter,
the sentence of seven years’
imprisonment in terms of section 276(1)(i) agreed to by the parties
and imposed by the magistrate,
exceeded the punitive jurisdiction
allowed by section 276A(2)(b).
23.
Section 298 of the CPA provides for the amendment of a wrong sentence
passed by mistake, before
or immediately after it is recorded. Du
Toit
et al
in
Commentary
on the
Criminal Procedure Act
states
, with reference to the authorities cited in the commentary on
section 298
, that a
wrong
sentence
refers to ‘
an
incompetent or irregular sentence or a sentence which bears no
relation to the merits of the case or which contains a technical
mistake’
,
and also includes ‘
a
sentence which does not accord with the real intention of the court’
(Revision Service 65, 2020 ch28-p61). Hiemstra CJ in
S
v Moabi
1979 (2) SA 648
(B)
at
648H held that
by
mistake
means a ‘
misunderstanding or an
inadvertency resulting in an order not intended, or also a wrong
calculation’.
Furthermore,
section
298
requires that the amendment of the sentence should occur
before
or immediately after it is recorded
:
this usually entails that the amendment may be effected within a
reasonable time after the sentence was recorded, given the
circumstances
of the matter and without delay (see also S Terblanche
A Guide to Sentencing in South Africa
Third Edition
(2016)
467-8). The amendment must take place in the presence of the accused.
24.
Having regard to the above discussion, it is evident that once she
passed the sentence, the magistrate
was
functus officio (
S
v Mainga
2020 (1) SACR 666
GJ at par 30).
Secondly, it
is apparent from the magistrate’s covering letter that she intended
imposing the sentence of seven years’ imprisonment
in terms of
section 276(1)(i)
and as agreed between the parties in their plea and
sentence agreement and that she realised the mistake shortly after
the sentence
was passed. Thirdly, as the magistrate clearly had the
intention of imposing a sentence of seven years’ imprisonment in
terms of
section 276(1)(i)
which is not sanctioned by
section
276A(2)(b)
of the CPA, it follows that the sentence was wrong as it
was an incompetent and irregular sentence which the magistrate
passed: the
intention to impose such a sentence nullifies any
suggestion of a ‘
misunderstanding or an inadvertency’ (
Moabi
648H)
. In the circumstances, therefore, the sentence imposed by
the magistrate may not be amended in terms of
section 298
of the CPA
(
S v Moabi
648H-649A; see also
S v
Ndwendwe
,
an unreported judgment of the Free State
Division, Bloemfontien case number R156/2017 delivered on 26 October
2017 par 15-16).
25.
The magistrate, in my view, acted correctly by sending the matter on
special review in terms of
section 304(4)
of the CPA as she was not
at liberty to rectify nor amend the sentence in terms of
section 298.
In the circumstances, the corrective procedure which this Court is
allowed to apply in terms of
section 304(4)
read with
section
302(4)(c)(ii)
of the CPA should be granted and the incompetent and
irregular  sentence should be set aside with the result that the
matter
be remitted back to the regional magistrate to consider a just
sentence. It is unnecessary, in my estimation, to deal with a
discussion
regarding a just sentence as that would fall within the
purview of proceedings in terms of
section 105A
(9) and is a matter
for the Court
a quo
.
Closing remarks
26.
The matter requires a final comment. As Moosa J (Dlodlo J concurring)
aptly stated in
S v Solomons
[2005] ZAWCHC 45
at
paragraph 7:
‘
The
plea-bargaining regime is a fundamental departure from the
adversarial system of our criminal law.  On the one hand, the
State agrees to compound the offence and on the other hand, the
accused waives several of his/her Constitutional rights afforded
to
him/her in a trial.  The legislature deemed it necessary to make
the provisions of
Section 105A
peremptory and strict compliance
therewith is accordingly a prerequisite.  The court ought to
ensure that the formal and substantial
requirements of the
plea-bargaining regime are strictly complied with
.’
(see also
S v Knight
2017 (2) SACR 583
(GP)
par 10;
S v De Goede
[2012] ZAWCHC 2020
par 12)
It is evident from the
authorities cited above that there must be strict compliance with the
provisions of
section 105A
of the CPA. Unfortunately, this is a
matter where the problem regarding the sentence arose as a result of
the parties’ agreeing
to an incompetent and irregular sentence not
sanctioned by the CPA.
27.
Similar to a civil settlement agreement where the terms agreed upon
between the parties thereto
must be lawful and not contrary to public
policy, so too the negotiating representatives of the State and
defence should ensure that
their sentence agreement falls within the
punitive jurisdiction of the Court. The competency of the agreed
sentence is one of the
aspects which should form part of the
magistrate’s ultimate determination whether the sentence agreement
is indeed a just sentence.
Unfortunately, due to heavy court rolls
and the need to finalise matters expeditiously, too often the reality
in the lower Courts
is that although the plea bargaining negotiations
are sometimes protracted, the actual conclusion of the agreements is
done
hastily and at times without due diligence and
checks. The consequence thereof resulted, as seen in this matter, in
an incompetent
sentence.
28.
Section 105A(3)
makes it clear that the Court plays no role in the
parties’ negotiations. Again, I draw a parallel to a civil
settlement agreement
where the Court has no part in the settlement
negotiations and the conclusion of the parties’ settlement
agreement. Thus, the magistrate
who would preside in the
section 105A
proceedings must not be privy to the parties’ agreement prior to
its disclosure in terms of sub-section (5) in the plea and sentence
proceedings in Court.
29.
In closing, the fact that I find that the procedural irregularities
related to
section 105A(6)
, (7) and (8) do not vitiate the conviction
in this matter, must in no way be construed as giving a ‘green
light’ to role players
in plea bargaining proceedings to adopt a
procedure and approach to
section 105A
which was never intended by
the legislature. In my view, it is the responsibility of the parties
concluding the agreement to ensure,
prior to the commencement of the
Court proceedings, that all the requirements of
section 105A
which
involve and impact upon them, are fulfilled. Finally, the third role
player is the Court, which has a duty to ensure that it
follows the
peremptory provisions of
section 105A
which, as illustrated above,
clearly and unequivocally set out the steps which are to be followed
during the plea and sentence
proceedings.
Order
30.
In the result, I would propose the following order:
30.1    The
conviction of the accused shall stand.
30.2    In terms
of the provisions of
section 304(4)
read with
section 302(4)(c)(ii)
of the
Criminal Procedure Act 51 of 1977
, the sentence imposed on 22
April 2021 which reads “
in terms of
s276(1)(i)
of Act 51 of 1977
accused sentenced to 7 (seven) years direct imprisonment”
, is
set aside.
30.3    The matter
is remitted back to the Regional Magistrate, Khayelitsha to consider
sentencing proceedings in terms
of
section 105A(9)
of the
Criminal
Procedure Act 51 of 1977
.
M PANGARKER
Acting Judge of
the High Court
I agree and it is
so ordered.
R C A HENNEY
Judge of the High
Court