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[2013] ZASCA 66
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Plaatjies v Director of Public Prosecutions, Transvaal (043/2013) [2013] ZASCA 66 (27 May 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 043/2013
Not Reportable
In the matter between:
BOISILE AMOS PLAATJIES
..................................................
APPELLANT
and
DIRECTOR OF PUBLIC
PROSECUTIONS,
TRANSVAAL
..........................................................................
RESPONDENT
Neutral citation:
Plaatjies
v DPP, Transvaal
(043/ 2013
[2013] ZASCA 66
(27 May 2013)
Coram:
Mthiyane DP,
Shongwe, Majiedt JJA, Van der Merwe and Meyer AJJA
Heard: 7 May 2013
Delivered: 27 May 2013
Summary: The effect of s
35(3)
(m)
of the Constitution ─ whether the
legal position on the application of
autrefois
convict
or
autrefois acquit
has
been changed by the provisions of s 35(3)
(m)
and
whether the common law should be developed to reflect this.
_____________________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court, Pretoria (Prinsloo and Makgoba JJ sitting as
court of appeal):
The appeal is dismissed.
___________________________________________________________
JUDGMENT
MTHIYANE DP (SHONGWE, MAJIEDT
JJA, VAN DER MERWE AND MEYER AJJA CONCURRING)
[1] This appeal brings into focus
yet again the rule that an accused person has the right not to be
tried for an offence in respect
of any act or omission for which that
person has previously been acquitted or convicted,
1
sometimes referred to as the
double jeopardy rule. This case has its origin in the regional court,
Potchefstroom, where the appellant,
Mr Boisile Amos Plaatjie
s
,
stood trial on charges of murder, assault with intent to do grievous
bodily harm and unlawful possession of a firearm, in contravention
of
s 2 read with ss 39(2) and 40 of the Firearms and Ammunition Act 75
of 1969. The appellant was convicted on all counts and was
sentenced
to 7 years’ imprisonment on count 1, 1 year’s
imprisonment on count 2 and 3 years
’
imprisonment on count 3.
[2] The appellant appealed to the
then Transvaal Provincial Division of the High Court against both
convictions and sentences. The
appeal was upheld and the conviction
s
and sentences were set aside. The
court (Van Rooyen AJ with Van Zyl AJ concurring) found that the trial
magistrate had committed
a fatal irregularity when he sat without
assessors. He had done so without first obtaining the appellant’s
consent as required
by s 93 ter (1) of the Magistrate’s Court
Act 32 of 1944. The requirement is expressed in the section as
follows:
‘
(1)
The judicial officer presiding at any trial may, if he deems it
expedient for the administration of justice─
(a
)
before any evidence has been led, or
(b)
in
considering a community-based punishment in respect of any person who
has been convicted of any offence, summon to his assistance
any one
or two persons who, in his opinion, may be of assistance at the trial
of the case or in the determination of a proper sentence,
as the case
may be, to sit with him as assessor or assessors: Provided that if an
accused is standing trial in the court of a regional
division on a
charge of murder, whether together with other charges or accused or
not, the judicial officer shall at that trial
be assisted by two
assessors unless such an accused requests that the trial be proceeded
with without assessors, whereupon the
judicial officer may in his
discretion summon one or two assessors to assist him.’
[3]
The
court held that because the proviso to the section
2
was not followed by the trial
magistrate, the court was not properly constituted and
its
judgment was therefore invalid.
Consequently, the convictions and sentences imposed on the appellant
were set aside. The judgment
was handed down on 22 February 2005.
[4] The respondent reinstituted
criminal proceedings against the appell
ant
on the same charges mentioned above
in
the regional court, Potchefstroom, but before a different regional
magistrate. At this trial on 4 December 2007 the appellant
successfully entered a plea of
autrefois
acquit
.
[5] The Director of Public
Prosecutions lodged an appeal to the then Transvaal Provincial
Division of the High Court against the
acquittal. On appeal the
respondent submitted that it was entitled to recharge the appellant
on the ground that he had not been
acquitted on the merits but on a
technicality arising from the trial magistrate’s failure to sit
with assessors or
to
dispense with that requirement in compliance with s 93 ter (1) of Act
32 of 1944. The appeal court (Prinsloo J with Magkoba J concurring)
found that when the appeal was decided by the learned judges, Van
Rooyen AJ and Van Zyl AJ in the earlier appeal, the merits of
the
convictions were never considered. The learned judges in the court a
quo held that the appellant could be recharged on the
same counts on
which he had been acquitted and relied for that conclusion on s 324
read with
s 313
of the
Criminal Procedure Act 51 of 1977
as well as
on
S v Moodie
1962 (1) SA 587
(A) and
S v Naidoo
1962
(4) SA 348
(A). The judges also held that s 35(3)
(m)
of the
Constitution, which provides that an accused person has a right to a
fair trial and which includes the right ‘not
to be tried for an
offence in respect of any act or omission for which that person has
previously been acquitted or convicted’,
had not changed the
legal position, and the reinstitution of the charges was permitted as
the
appellant
had not been
acquitted on the merits.
[6] The judges however granted
leave to the appellant to appeal to this court on four main grounds
namely─
‘
1.
Another court may find that the legal position as to the subject of
autrefois
acquit
or
convict
may
have been changed by the provisions of section 35(3)(m) of the
Constitution.
2. Another court may
find that the first order by Magistrate Mabile is appealable and not
an interlocutory order because of the
provisions and implications of
section 35(3)(m) of the Constitution.
3. Another court
could find that it would be fair and just to stop the prosecution of
the respondent in view of the long history
and many delays with the
case and in view of the provisions of section 35(3)(d) of the
Constitution read with section 38 of the
Constitution.
4. This court erred
in not making reference to the merits of the three charges in respect
of which the respondent was convicted
in the first trial.’
[7] In the appeal before us, the
above grounds were not split but consolidated by counsel for the
appellant into one primary issue.
He submitted that the effect of s
35(3)
(m)
of the Constitution was to extend the scope and ambit
of the double jeopardy rule so as to cover cases where merits were
never
considered in the earlier proceedings. Counsel argued that, in
the light of the provisions of s 35(3)
(m)
, this court should
develop the common law in the exercise of its powers under s 39(2) of
the Constitution so as to extend the ambit
and scope of the rule of
autrefois convict
and
autrefois acquit
to cover cases
where the court in the first
appeal
has not examined the merits.
[8]
The
above
submission on
the appellant’s behalf overlooks the fact that the
Constitutional Court has already expressed itself on the
point,
albeit in a slightly different contex
t,
in the two
Basson
3
cases. I will return to the two
cases later in the judgment and demonstrate that there is no need to
develop the common law in this
regard. I think the dicta in the two
Basson
cases
are sufficiently dispositive of the point. But before dealing with
the argument, it is necessary to set out the current legal
position
as regards the application of the principle of
autrefois
convict
and
autrefois
acquit
.
[9] Sections 106(1)
(c)
and
(d)
of Act 51 of 1977 provide that
when an accused pleads to a charge he or she may plead that he or she
has already been convicted
of an offence of which he
or
she
is charged or
has already been acquitted of the said offence. In the present matter
the appellant raised a plea in terms of s 106(1)
(c)
and
(d)
,
averring that he has already been convicted at the first trial and
already been acquitted on appeal before Van Rooyen AJ and Van
Zyl AJ.
[10] Section 324 of Act 51 of
1977 however permits the reinstitution of the criminal proceedings on
the same charge when a conviction
is set aside on the grounds that:
‘
(a)
that the court which convicted the accused person was not competent
to do so; or
(b) the indictment on which the
accused was convicted was invalid or defective in any respect; or
(c) that there has been any other
technical irregularity or defect in the procedure.’
The section goes on to state that
this occurs as if the accused person had not been previously
arraigned, tried or convicted, provided
‘that no judge or
assessor before whom the original trial took place shall take part in
such proceedings’. Although
the word judge is used here, this
is equally applicable to a magistrate.
[11] In
S v Moodie
it was
held that if an irregularity in the procedure which justifies the
setting aside of a conviction by a court of appeal was
technical
under s 370
(c)
of Act 56 of 1955 (now s 324
(c)
of Act
51 of 1977 and similarly worded) it precludes a valid consideration
of the merits, in other words if it makes it impossible
for the court
to give a valid verdict on the merits.
[12] In
S v Naidoo
it was
held that the section empowers a retrial where a conviction and
sentence have been set aside on appeal on the ground of
a technical
irregularity or defect in the procedure (as was the case with the
previous s 370
(c)
of Act 56 of 1955). The court in
Moodie
held that an irregularity is technical
within
the meaning of the sub-section if it is of such a nature as to
preclude a valid consideration of the merits of the appeal; in other
words if it is impossible for the court of appeal to give a valid
verdict on the merits (
Moodie
at 597 and
Naidoo
at
353H-354A). In the case of
Naidoo
, Holmes JA explained why
Moodie
could be retried, but not
Naidoo
. The judge
pointed out that in each case there was an irregularity in the first
trial. Holmes JA held that irregularities vary
in nature and degree.
According to him they fall into two categories. There are
irregularities, he continued, which are so gross
in nature as to
vitiate a trial. In such a case the court of appeal must set aside
the conviction without reference to the merits.
There remains, said
the judge, neither a conviction nor an acquittal on the merits and
the accused person can be retried in terms
of s 370
(c)
of the
Criminal Procedure Act 56 of 1955. That was the position in
Moodie’s
case in which the irregularity of the Deputy Sheriff remaining
closeted with a jury throughout their two hour deliberations
wa
s
regarded as so gross as to vitiate the whole trial (at 354D-F). On
the other hand, continued the judge, there are irregularities
of a
lesser nature, in which the court of appeal is able to separate the
bad from the good and to consider the merits of the case,
including
any finding as to the credibility of witnesses. If in the result, he
comes to the conclusion that a reasonable trial
court properly
directing itself would inevitably have convicted, the appeal stands
to be dismissed and the conviction stands as
one on the merits. But
if on the merits, it cannot come to that conclusion, it should set
aside the conviction and this amounts
to an acquittal on the merits.
In such a case s 370
(c)
of the code does not permit a retrial.
That was the position in
Naidoo’s
case, in which failure
to swear an interpreter at one stage resulted in certain evidence
being regarded as inadmissible (354F-H).
[13] Turning to the question
whether the legal position may have been changed by s 35(3)
(m)
of the Constitution , the point is misconceived and without merit, as
the question has already been authoritatively settled in
S v
Basson
2007 (1) SACR 566
(CC) para 255, which reads as follows:
‘
The
requirement that the previous acquittal must have been on the merits,
or to put it differently, that the accused must have been
in jeopardy
of conviction, means that, if the previous prosecution was vitiated
by irregularity, then it cannot found a plea of
autrefois
acquit
in
a subsequent prosecution. That is because the accused was not
acquitted on the merits and was never in jeopardy of conviction
because the proceedings were vitiated by irregularity’.
See
also
S
v Basson
[2004] ZACC 13
;
2004
(1) SACR 285
(CC) paras 64 and 65.
[14] To the extent that it is
necessary to decide the second, third and fourth ground on which
leave was granted by the court below,
seeing that they have not been
abandoned, I deal with them briefly in what follows. I deal first
with the question of whether the
first order made by magistrate
Mabile was interlocutory and therefore not appealable. The record of
the proceedings before magistrate
Mabile was so poorly transcribed
that it is difficult to make out what transpired. From what one is
able to glean from the record
it seems that
the
magistrate Mabile rejected the plea of
autrefois
acquit
and ruled that
the matter be referred to another magistrate for retrial. The matter
then came before another magistrate, Ms Juries
who upheld the plea of
autrefois acquit
.
This led to the appeal which came before Prinsloo J and Makgoba J.
The proceedings before the magistrate Mabile are therefore
not
relevant for purposes of this judgment. The same applies to the
question whether the order she made is appealable or not.
[15] Turning to the question
whether it would be fair and just to stop the prosecution of the
respondent, in view of the long history
and many delays in the case
and in view of the provisions of s 35(3)
(d)
of the
Constitution read with s 38 of the Constitution, the point was not
pressed in an argument before us. The legal position
is that an
accused person who seeks to bring an application for a permanent stay
of the proceedings is required to bring a substantive
application
before the court, alleging that his or her right under s 35
(d)
have been infringed. (See
S v Naidoo
2012 (2) SACR 126
(WCC)).
In the present matter we do not have such application. No evidence
has been placed before us as to who is to blame for
the delay. It
seems as if the appellant was to a large exten
t
to blame for the delay in finalising this matter. In my view the
appellant must also fail on this point.
[16] The final point on which
leave was granted is that the court failed to make reference to the
merits of the three charges in
respect of which the appellant was
convicted in the first trial. The point is difficult to understand.
At the first trial the merits
were dealt with by the magistrate and
that was not the problem that led ultimately to the appellant being
recharged. The problem
was that the magistrate in the first trial had
sat without assessors and the court was therefore not properly
constituted. The
point made under this head is also without merit and
falls to be rejected.
[17] In the result the appeal
must fail and the following order is made.
The appeal is dismissed.
______________________
K K MTHIYANE
DEPUTY PRESIDENT
APPEARANCES
For Appellant: HL Alberts
Instructed by:
Pretoria Justice Centre (Legal
Aid SA), Pretoria
Legal Aid Board, Bloemfontein
For Respondent: L Pienaar (heads
of argument prepared by FC Roberts)
Instructed by:
Director of Public Prosecutions,
Pretoria
Director of Public Prosecutions,
Bloemfontein
1
The
common law right is expressed in the maxim ─
‘
nemo
debet bis vexari pro una et eadem causa’
─
See Director of Public
Prosecutions, Transvaal v Mtshweni
2007 (2) SACR 217
SCA para 28.
2
Quoted
in para 2 above.
3
Reported
as
S v Basson
[2004] ZACC 13
;
2004 (1) SACR 285
(CC) paras 64 and 65, and
S
v Basson
2007 (1) SACR 566
(CC) paras 255 and 256.