About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 169
|
|
Lelaka v The State (409/2015) [2015] ZASCA 169 (26 November 2015)
Links to summary
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 409/2015
DATE: 26 NOVEMBER
Reportable
In the matter between:
MATHEWS SIPHO
LELAKA
.........................................................................................
APPELLANT
And
THE
STATE
.....................................................................................
RESPONDENT
Neutral
citation:
Lelaka v The State
(409/15)
[2015] ZASCA 169
(26 November 2015)
Coram
:
Ponnan, Shongwe, Petse and Mathopo JJA
and Van der Merwe AJA
Heard:
4
November 2015
Delivered:
26
November 2015
Summary:
Criminal Procedure ─ sentence ─
whether plea of double jeopardy applicable where accused had been
convicted of assault
with intent to do grievous bodily harm and where
after the conviction, the victim died and the State intends
preferring charges
of murder against him.
ORDER
On appeal from:
The
North West Division of the High Court, Mahikeng (Gura J, Matlapeng
and Djaje AJJ sitting as a court of review):
1. The appeal
succeeds.
2. The order
of the full court is set aside and replaced with the following:
‘
The
matter is remitted to the Magistrate’s Court, Ga-Rankuwa for
the appellant’s trial to be finalised before another
magistrate.’
JUDGMENT
Mathopo
JA (Ponnan, Shongwe, Petse JJA and Van der Merwe AJA concurring):
[1] On
10 February 2013, the appellant, Mr Mathews Lelaka and Mr Kgotatso
Moshe (the complainant) were on their way from a tavern.
The latter
took a bottle of whisky from the appellant. This incensed the
appellant, who then took the bottle from the complainant
and
assaulted him by striking him in his face. The appellant was charged
with one count of assault with intent to do grievous bodily
harm. On
14 February 2013 the appellant pleaded guilty to the charge. He made
a detailed statement in terms of s 112 (2) of the
Criminal Procedure
Act 51 of 1977 (the Act), in which he set out his version of events.
Satisfied that all of the essential elements
of the charge were
admitted, the magistrate convicted him as charged. The State then
applied for a postponement of the matter to
obtain a record of the
appellant’s previous convictions. The magistrate postponed the
case to 28 February 2013 and cancelled
the appellant’s bail and
remanded him in custody. On 28 February 2013, the magistrate was
informed that the complainant had
died in the interim on 15 February
2013. In the light of this new fact, the magistrate granted the State
a postponement to obtain
a post-mortem report (the report) to
determine the exact cause of the death.
[2] The
report only became available after several further postponements on
27 May 2013. The report reflected the cause of death
as ‘severe
blunt force head trauma’. The magistrate postponed the matter
once again to enable the State to seek a directive
from the office of
the Director of Public Prosecutions (DPP). There were several other
postponements whilst the appellant was kept
in custody. On 13 June
2013 the appellant appeared in court with a new legal representative,
who urged the court to sentence the
appellant in terms of his plea of
guilty.
[3] The
State opposed the application and requested another postponement for
the DPP’s directive as to whether murder charges
should be
proffered against the appellant or not. In essence the State
contended that it would not be in the interest of justice
to proceed
with the sentencing procedure in the light of the death of the
deceased. On 20 June 2013 and for reasons that are not
clear the
magistrate recused herself from the matter. She further stated that
‘the case can start de novo, then you can argue
a bail and
everything afresh when there will be no prejudice to you’. She
did not explain why she arrived at that decision.
At that stage, the
appellant had been in custody for a period of four months.
[4] Some seven
months after her recusal, the magistrate sent the case to the North
West Division of the High Court, Mahikeng (high
court) on special
review in terms of s 304A
(a)
of the Act. She requested the
high court to set aside the conviction on the basis that the
proceedings were not in accordance with
justice. Section 304A
(a)
reads as follows:
‘
304A
Review of proceedings before sentence
(a)
If a magistrate or regional magistrate after
conviction but before sentence is of the opinion that
the
proceedings in respect of which he brought in a conviction are not in
accordance with justice,
or that doubt
exists whether the proceedings are in accordance with justice, he
shall, without sentencing the accused, record the
reasons for his
opinion and transmit them, together with the record of the
proceedings, to the registrar of the provincial division
having
jurisdiction, and such registrar shall, as soon as is practicable,
lay the same for review in chambers before a judge, who
shall have
the same powers in respect of such proceedings as if the record
thereof had been laid before him in terms of section
303.’ (My
emphasis.)
[5] Upon
receipt of the review, Landman J requested the DPP for an opinion,
which was to the effect that a grave injustice would
occur if murder
charges were not preferred against the accused, and submitted that
the high court could invoke its inherent power
in terms of s 173 of
the Constitution to set the proceedings aside. The two reviewing
judges, Landman J and Hendricks J, could
not agree on the matter,
with the result that the Judge President of that division directed
that the review be placed before the
full court for argument. After
hearing the argument, the full court (per Gura J, Matlapeng and Djaje
AJJ) held that it would not
be in the interests of justice if the
appellant was sentenced on a lesser charge where the victim had died
as a result of the appellant’s
unlawful actions arising from
the same facts. Consequently, acting purportedly in terms of s 173 of
the Constitution, it set aside
the conviction and ordered that the
trial should commence de novo. The appeal by the appellant against
that order is with the special
leave of this court.
[6] It
is a general rule of the common law that a person may not be punished
twice for the same offence. This common law rule is
now entrenched in
the provisions of s 35(3)
(m)
of the
Constitution.
[1]
In terms of the rule, an accused may raise the plea of autrefois
convict or acquit. This principle is grounded in the maxim that
no
person is to be brought into jeopardy more than once for the same
offence. This principle finds expression in the rule of law
that if
someone has been either convicted or acquitted of an offence he or
she may not later be charged with the same offence or
with what was
in effect the same offence.
[2]
According to Lord Devlin in
Connelly
v Director of Public Prosecutions
1964 (2) All ER 401
‘[t]he word offence embraces both the facts
which constitute the crime and the legal characteristics which make
it an offence.’
[3]
Lord Morris elaborated:
‘
It
matters not that incidents and occasions being examined on the trial
of the second indictment are precisely the same as those
which were
examined on the trial of the first. The Court is concerned with
charges of offences and crimes. The test is, therefore,
whether such
proof as is necessary to convict of the second offence would
establish guilt of the first offence or of an offence
for which on
the first charge there could be a conviction.
In
R
v Long
[4]
Schreiner JA said the following:
‘
It
is not enough to support the plea that the facts are the same in both
trials. The offences charged must be the same, but substantial
identity is sufficient. If the accused could have been convicted at
the former trial of the offence with which he is subsequently
charged
there is substantial identity, since in such a case acquittal on the
former charge necessarily involves acquittal on the
subsequent
charge. Another way of putting it is that he must legally have been
in jeopardy on the first trial of being convicted
of the offence with
which he was charged on the second trial.’
[7]
However, our law has long recognised that a plea of autrefois convict
is not available when it was impossible at the previous
trial to
prefer the more serious charge later presented.
[5]
Voet 48.2.12 puts it thus:
‘
One
convicted (but not one acquitted) of light crime can be charged again
with serious crime arising out of the same act─
Finally
nothing prevents one who has been charged with and punished for a
somewhat light crime from being afterward charged in turn
with a
heavier crime which is proved to have sprung from the same act. An
instance would be when a person has been first punished
as having
inflicted a wound and it later becomes clear that the wounded man
perished from such wound as being a lethal wound, and
therefore he is
account afresh as a homicide. It would be otherwise if one who was
accused of wounding a person has not been convicted
by the judgment,
but has been acquitted, since his innocence has already been approved
by the Judge in respect of the very act
from which the ensuing.’
It
follows that a conviction for assault is no bar to a prosecution for
murder or culpable homicide where the victim has died since
the
conviction ‘for the fact of the death has altered the essential
nature of the crime’.
[6]
Put somewhat differently, ‘the death is a new fact’.
[7]
See also
S v Gabriel
1971(1) SA 646 (RA) and
S
v Ndou
supra. In
N
dou
(at 676C) the general principle was expressed as follows: ‘it
is clear that a plea of autrefois convict or acquit is not
available
to an accused charged with murdering A on a stated occasion
notwithstanding that he has previously been acquitted or
convicted of
assaulting A on that occasion’.
[8] It
follows that both courts below misconceived the position in their
approach to the matter. Reverting to the facts of this
case, the
deceased was assaulted on 10 February 2013. The appellant pleaded
guilty and was convicted on 14 February 2013. The deceased
died on 15
February 2013 from what appears to be assault related injuries. When
the appellant was convicted the deceased was still
alive. It was thus
not possible at that stage to charge him with murder. A case on all
fours with the present case is that of R
v
Stuurman
(1863) 1 Roscoe 83.
In that
case an accused had been convicted of common assault and the man
assaulted subsequently died. It was held that this conviction
was no
bar to his subsequent trial and conviction for culpable homicide. It
follows that nothing stops the state from instituting
a charge of
murder against the appellant, if so inclined. In the result there was
no basis for setting aside the conviction and
the trial should be
finalised.
[9]
There is one aspect which requires final comment. The high court was
rightly critical of the magistrate because she recused
herself. The
effect of her recusal though is that the matter must be remitted to
another magistrate for the trial to be finalised.
The appellant was
convicted on his plea of guilty and it should not occasion any great
difficulty for another magistrate on the
strength of the present
record and such evidence as may be placed before the court in either
aggravation or mitigation to proceed
to sentence the appellant.
[10] I
therefore make the following order:
1. The appeal
succeeds.
2. The order
of the full court is set aside and replaced with the following:
‘
The
matter is remitted to the Magistrates’ Court, Ga-Rankuwa for
the appellant’s trial to be finalised before another
magistrate.’
R S Mathopo
Judge of Appeal
Appearances
For Appellant: M L Skibi
Instructed
by: Legal Aid, Mahikeng Justice Centre, Mahikeng
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: L van Niekerk
Instructed
by: The Director of Public Prosecutions, Mmabatho
The
Director of Public Prosecutions, Bloemfontein
[1]
This subsection provides that
an accused has the right not to be tried for an offence in respect
of an act or omission for which
that person has previously been
either acquitted or convicted.
[2]
S v Ndou & others
1971 (1) SA 668
(A ) at 676C-E.
[3]
At 433G-H.
[4]
1958 (1) SA 115
(A) at
117F-H.
[5]
F Gardiner and C Landsdown
South African
Criminal Law and Procedure
5ed (1946) p297.
[6]
See 5 above.
[7]
WM Russel KNT
A Treatise on Crimes and
Misdemeanors
8ed (1923) p1817.