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[2016] ZAGPJHC 220
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Nkuna v Mashimbye and Another (A217/2015) [2016] ZAGPJHC 220 (17 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(Gauteng
Local Division, held at Johannesburg)
Case no:
A217/2015
DATE: 17 AUGUST
2016
In
the matter between:
AKANI
NKUNA
.................................................................................................................
APPELLANT
And
MR
H
MASHIMBYE
........................................................................................
FIRST
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
JOHANNESBURG
.......................................................................................
SECOND
RESPONDENT
Neutral
citation
: Nkuna v The State [A217/2015 SGHC
17 August 2016]
Coram:
Van der Linde, J and Mlaba, AJ
Heard:
4 August 2016
Delivered:
17 August 2016
1.
Reportable: No
2.
Of interest to other Judges: No
3.
Revised: Yes
ORDER
Review,
alternatively appeal
: The Regional Court held at Germiston in the
Regional Division of Gauteng.
1.
The application for review is dismissed;
2.
The appeal against sentence is dismissed
IS
Mlaba
Acting
Judge
High
Court, Johannesburg
I
agree and it is so ordered
WHG
van der Linde
Judge
High Court,
Johannesburg
JUDGMENT
INTRODUCTION
[1]
The appellant was convicted of attempted murder on 27 March 2013 in
the Regional Court Germiston. He was sentenced to undergo
7 years
imprisonment.
[2]
Throughout the proceedings appellant was legally represented albeit
by different legal representatives.
[3]
He now brings an application in terms of rule 53 of the Uniform Rules
of the High Court for the review and the setting aside
of his
conviction (pursuant to his admissions in terms of section 220 of the
Criminal Procedure Act 51 of 1977(CPA)).
THE
FACTS
[4]
The following are the facts upon which the review application is
premised: The appellant who was a member of the South African
Police
Services was arraigned in the Regional Court Germiston on a charge of
attempted murder. He pleaded not guilty. He was at
this stage
represented by an attorney, Mr Strydom who confirmed that plea was in
accordance with instructions. Appellant denied
any intent to kill as
he averred that a shot went off accidentally.
[5]
In proving its case, State led evidence of 4 witnesses (including
complainant), two of whom were present when the incident occurred.
Both eye witnesses testified how they saw appellant pointing a
firearm at the complainant and how he ignored their warning about
the
danger of his conduct.
[6]
The last witness, a member of the South African Police Services,
testified, that accused is a member of the South African
Police
Services and therefore must have undergone training as to how to
handle firearms.
[7]
At the close of the case for the State an application in terms of
section 174 of the CPA was brought but dismissed. Immediately
thereafter appellant appointed a new legal representative, an
attorney, Mr Buthelezi.
[8]
Having failed to appear more than once, Mr Buthelezi instructed Mr
Khumalo who informed court of the accused’s intention
to make
admissions in terms of section 220 of the CPA. Subsequently section
220 admissions were made, read into the record, confirmed
by the
appellant and admitted as evidence by the Regional Magistrate.
[9]
Aggrieved by the sentence imposed, the appellant sought leave to
appeal in terms of section 309B of the CPA against his sentence
only,
which was granted by the court below.
[10]
Dissatisfied with the conduct of the proceedings by his attorney of
record, the appellant instructed a new legal team, Coert
Jordaan inc
Attorneys, on whose advice this review is sought. This application is
brought simultaneously with an Appeal.
[11]
It is opposed by the State.
GROUNDS
OF REVIEW
[12]
The grounds upon which the proceedings of any Magistrates’
Court may be brought under review before a court of a Division
are
set out in section 22 of the Superior Courts Act 10 of 2013:-
(
a
)
Absence of jurisdiction on the part of the court;
(
b
)
Interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(
c)
Gross irregularity in the proceedings; and
(
d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
[
13
]
The review is sought on the basis, amongst others, of the alleged
incompetence of the former legal representative, Mr Khumalo
in
drafting the section 220 admissions. It is further contended that
Appellant was not afforded proper consultation with the said
attorney. As a result appellant’s fair trial rights under the
constitution have allegedly been infringed. Paragraph 22 of
the
Appellant’s Heads of Argument reads:-
“
I
am of the view that justice and fairness has failed me dismally. I am
severely prejudiced by my lawyer’s behavior of not
coming to
court which resulted:
(i)in the case
rushed to dispose of it;
(ii)
that because of this behavior there was no proper consultation with
me;
(iii)
that I at no stage intended to change my plea as I maintain that it
was an accident;
(iv)
that because of the circumstances beyond my control I did not have a
fair trial-See S v Tandwa and Others
2008 (1) SACR 613
SCA at para
7.”
[14]
Counsel for the Appellant relied on S v Tandwa above, in which the
Supreme Court of Appeal held “Incompetent lawyering can
wreck a
trial, thus violating the accused’s fair trial right. The right
to legal representation therefore means a right to
competent
representation
.”-
you may also see: - S v Halgryn
2002
(2) SACR 211
(SCA) as per Harms JA at 216h-217c.
[15]
Whether a defense was so incompetent that it made the trial
unfair is a factual question that does not depend upon the degree of
ex post facto
dissatisfaction of the litigant. Convicted
persons are seldom satisfied with the performance of their defense
counsel- S v Majola
1982 (1) SA 125
(A) at 133D-E.
[16]
In the matter before us, when the section 174 application was
refused, appellant terminated the mandate of his legal representative
Mr Strydom without any justifiable reasons. Paragraph 11 line 2 of
the Appellant’s Heads of Argument reads….”at
that
point in time I was afraid because my application was not granted for
a discharge. I was advised by some former colleagues
to change
lawyers and I appointed
Mr Buthelezi
there in the passage of
court to continue with my matter.”
[17]
Consequent to termination of his mandate on 1
st
February 2013, Mr Strydom applied for withdrawal as attorney of
record which was duly granted. Immediately thereafter there was
a new
legal representative before court, a Ms Tonise. Appellant confirmed
instructions.
[18]
With the court’s indulgence the proceedings were adjourned
until the 27
th
February 2013 for the defence case. On 27
February 2013 again the court granted a further postponement for the
defence attorney
to listen to the transcribed record. At this stage
it was Mr Buthelezi who appeared on behalf of the applicant.
[19]
On 27 March 2013 at 15h30, the proceedings were further adjourned to
9 April 2013 at the instance of the appellant, who at that
stage was
represented by Mr Khumalo. Suddenly at 15h35 the appellant and
his Legal Representative, Mr Khumalo were back in
court. The Court
was informed that section 220 admissions had been prepared. The
admissions were read into the record, confirmed
by the appellant and
accepted by the Respondent.
[20]
At no stage did the Appellant show any discontent. It is
inconceivable that a Legal Representative would, without any
instructions
from his client stand before the court and read into the
record admissions on such serious allegations. The matter of De
Villiers
v The State & Another (20732/14)
[2016] ZASCA 38
(24
March 2016) could not have been decided at a more appropriate time.
[21]
The facts were more or less similar to the facts in the review before
us. The appellant, an accountant, was charged with amongst
others,
Fraud. He pleaded guilty to theft; his plea was read into the record
by his counsel and confirmed by appellant. Like appellant
before this
court, he admitted that he pleaded guilty freely and out of own
volition, without undue influence. He was duly convicted.
After
imposition of sentence, appellant sought leave to appeal against
sentence only, but this was refused by the Regional Magistrate.
A
subsequent Petition was also unsuccessful. Ultimately review was
sought on the basis of an irregularity
ex vitiae curiae
which
vitiated the whole proceedings in the Regional Court. It was
contended on his behalf that he had pleaded guilty under duress.
[22]
Having
applied the abovementioned case of Tandwa as well as S v Dalindyebo
(090/2015)[2015] ZASCA 144;
[2015] All SA 689(SCA paras 22-23
the court alluded to the fact that “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.”
[23]
The
court further referred to a separate concurring judgment in the case
of R v Matonsi
1958 (2) SA 450
(A) at 458 A-B where Van Blerk JA
expressed his view and stated that “while a 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 conviction.”
[24]
It
is further mentioned that the ultimate choice whether to plead guilty
or not guilty is that of the accused.
[25]
Back to the facts in the case before us, the appellant is a
constable in the South African Police Services. He was capable of
terminating
mandate of his first legal representative with immediate
effect. Nothing prevented him from doing the same with Mr Khumalo.
[26]
Regarding the contention that in drafting the section 220
admissions, Mr Khumalo simply regurgitated the elements of the
offence
without explaining in detail what actually transpired one
should not lose sight of the purpose of the section which is, to
allow
the proof of facts that are not in dispute.
[27]
This
was clearly put by Rumpff CJ in S v Seleke en ander 1980 (3) 745 (A)
at 745A-B where he stated “When an admission is
made in terms
of s 220, it means that the accused cannot later allege that, that
which was admitted has still to be proved by the
State. The words
"sufficient proof" therefore absolve the State from the
burden of proving in any other manner the particular
fact which has
been admitted, unless the State, for special reasons, wishes to
adduce before the trial court further evidence concerning
the fact.
Sufficient evidence is naturally not conclusive evidence (afdoende
bewys) and can later be rebutted by the accused, eg,
on the grounds
of duress or mistake or by other legally acceptable facts. It speaks
for itself that the section must be limited
to that which is intended
by the section, namely only a pure fact which has been placed in
issue and which is admitted by or on
behalf of the accused. If
explanations or statements appear with the admitted fact, the court
can take notice of them, subject
to further evidence which might be
adduced before the trial court, but only the pure fact which was put
in issue and is admitted
is regarded as sufficient proof.”
[28]
When these admissions were made the State’s case was
already closed; evidence was therefore on record detailing what
transpired.
The evidence together with the section 220 admissions was
evidence before the court.
[29]
We are therefore satisfied that the proceedings were conducted in
accordance with justice. In the result we make the following order:
The
application for review is accordingly dismissed.
APPEAL
[30]
We move
now to consider the sentence only, as leave was granted only to
appeal sentence.
The
approach of the appeal court on sentence
[31]
The
imposition of sentence is a matter falling within the discretion of
the trial court. A sentence will not be altered unless it
is found
that no reasonable man ought to have imposed such a sentence or the
sentence is found to be totally out of proportion
to the gravity or
magnitude of the offence; or it invokes a feeling of shock or
outrage:-S v Fhetani 2007 (2)SACR 590 (SCA)254c-f
; or where the
trial judge failed to exercise his discretion properly or that it was
in the interest of justice.
[33]
The
court held in S v Malgas
2001 (1) SACR 469
(SCA at 478d-e that to do
so would be to usurp the powers of the trial court.
[34]
In
the case before us, there is no persuasive argument that the Regional
Magistrate misdirected himself in imposing the sentence
nor that the
sentence was shockingly inappropriate.
[35]
A perusal of his judgment on sentence shows clearly that the
Regional Magistrate took into account all the relevant factors before
imposing sentence.
[36]
Apart from the personal circumstances of the appellant, not only
did he consider the interests of society in general but specifically
considered the impact of the offence on the victim.
.
He took into account the extent of the injuries sustained by the
victim
. He expressly considered the fact that when he
testified he was still on crutches. The record it reflects that the
incident occurred
on 30 April 2011 and he testified on 18 September
2013. This means that after almost 17 months he was still on
crutches. Regarding
impact of the offence on the victim see
S
v Blaauw
2000 (2) SACR 255
(CPD) at 257 in which the court held that
the interest of the victim are a
critical
factor to be taken into account in reaching an appropriate sentence.
[37]
He further considered the nature and the circumstances
under which the offence was committed.
[38]
The
Regional Magistrate was prepared to accept as mitigating factor the
fact that the appellant lost his employment as a result
of the
incident. He further took into account the fact that the matter took
long to finalise.
[39]
Our
courts view attempted murder in a very serious light. In
Grigor v
The State (
607/11)
[2012] ZASCA 95
(1 June 2012), a road rage
incident resulted in the appellant stabbing complainant with a knife.
He was convicted of attempted
murder in the Regional Court and
sentenced to 6 years imprisonment. Appeal to the North Gauteng
Local Division was dismissed.
A subsequent appeal to the Supreme
Court of Appeal met with a similar fate.
[40]
S
v Ntsime (48/04)
[2005] ZANWHC 30
(14 April 2005) is another example
in which the appellant was convicted of attempted murder in the
Regional Court despite the fact
that complainant did not sustain any
gunshot wound. He had fired two shots at the complainant but missed.
He then attacked him
by hitting him with the butt of a gun. The
Regional court imposed 12 years imprisonment. His appeal on sentence
to the North West
High Court was successful. The high Court found
that the court below failed to exercise its discretion judicially.
The sentence was found to be
disturbingly inappropriate and completely out of all proportion with
the offence committed.
[41]
The sentence of 12 years imprisonment was substituted with:
“
Five
years imprisonment, two years one month thereof is suspended for a
period of five years on condition that the Appellant is
not found
guilty of the offence of attempted murder committed during the period
of suspension.”
Unlike
in Ntsime’s case above, complainant in our review was shot on
the chest. He sustained very serious injuries.
[42]
There is
therefore no basis to interfere with the sentence imposed by the
Regional Magistrate
and the appeal against sentence must also fail.
[43]
In the result I propose the following order:
The
appeal against sentence is dismissed.
For
the appellant: CG Jordaan
(admitted
in terms of article 4 (2) Act 62 of 1995)
Coert
Jordaan inc Attorneys
Unit
2, Corner House
C/O
Nel and Russel Street, Nelspruit
P
O Box 26049, Nelspruit 1200
Tel:
(013) 752 4736
Fax:
(013) 752 4899
Cell:
0825705523
For
the Respondent: NP Serero
Instructed
by: Office of the Director of Public Prosecutions
Gauteng
Local Divisions
Innes
Chambers
Cnr
Pritchard and Kruis Streets
Johannesburg
2000
Tel:
011 220 4108
Cell:
084 836 0842