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[2013] ZASCA 78
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Tshilidzi v S (650/12) [2013] ZASCA 78 (30 May 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 650/12
Not reportable
In the matter between:
TSHIRANGWANA MASOTSHA TSHILIDZI
.
.........................................
APPELLANT
and
THE STATE
........................................................................................
RESPONDENT
Neutral citation:
Tshilidzi v S
(650/12)
[2013] ZASCA 78
(30 May 2013)
Coram:
Lewis, Shongwe and Majiedt JJA and Van der
Merwe and Swain AJJA
Heard:
23 May 2013
Delivered:
30 May 2013
Summary: Criminal procedure ─ acceptance by
prosecutor of plea of guilty on lesser or alternative charge at the
outset of
the trial ─ court bound thereby.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Limpopo High Court, Thohoyandou
(Hetisani J sitting as
court of first instance):
The conviction and sentence are set aside.
______________________________________________________________
JUDGMENT
______________________________________________________________
VAN DER MERWE AJA (LEWIS, SHONGWE AND MAJIEDT JJA AND
SWAIN AJA CONCURRING):
[1] The appellant was convicted by Hetisani J in the
Limpopo High Court of rape and sentenced to life imprisonment. The
court a
quo granted leave to appeal against the sentence, but leave
to appeal against the conviction as well was granted by this court.
On 23 May 2013 this court set aside the conviction and sentence and
indicated that reasons for the order would follow. These are
the
reasons.
[2] In terms of the indictment the appellant was charged
with a main charge of rape and an alternative charge of contravention
of
s 14(1) of the Sexual Offences Act 23 of 1957. At the outset
of the trial, the appellant, who was legally represented, pleaded
not
guilty on the main charge but guilty on the alternative charge. For
this purpose, a statement in terms of s 112(2) of
the Criminal
Procedure Act 51 of 1977 was prepared and signed by the appellant.
The prosecutor told the court that she had read
the statement and
accepted the plea. The statement was then read into the record,
confirmed by the appellant and handed to the
court. The contents of
the statement clearly indicated that the appellant was guilty of the
offence to which he had pleaded guilty.
[3] Hetisani J, however, refused to accept the plea of
guilty on the alternative charge. As a direct result thereof, the
appellant
withdrew the plea of guilty on the alternative charge and
pleaded not guilty on both the main and alternative charges. The
trial
proceeded on this basis.
[4] It is clear from the record that the trial judge
refused to accept the plea of guilty on the ground that it was
inconsistent
with the summary of substantial facts that accompanied
the indictment in terms of s 144(3)(a) of Act 51 of 1977. In so
doing,
as I will show, he committed a gross irregularity.
[5] In
S v Cordozo
1975 (1) SA 635
(T) the appellant had been charged in
the magistrate’s court with reckless driving, or,
alternatively, negligent driving.
The appellant pleaded guilty to
negligent driving and the prosecutor accepted the plea. The
magistrate indicated that the court
was not bound by the acceptance
of the plea and the trial proceeded, resulting in a conviction of
reckless driving.
[6] On appeal, this conviction was set aside on the
grounds set out as follows by Botha J at 638E-G and 639D:
‘
In my
view it is clear that the magistrate was under a misapprehension,
namely, that he could prevent the prosecutor from accepting
a plea as
was tendered in the present case. It is the function of the
Attorney-General and his representatives to decide the charges
upon
which an accused should be brought to trial and the function of the
Attorney-General and his representatives in that regard
extends up to
the time when a plea is tendered and the decision has to be made
whether the plea is to be accepted or not.
The magistrate seems to have
thought, according to his reasons for judgment, that the prosecutor
was usurping the rights of the
court; on the contrary, in my view, it
was the magistrate who was trying to encroach upon a power pertaining
to the prosecutor,
as to the exercise of his discretion in accepting
or refusing the plea tendered.
. . .
When the prosecutor accepted the
plea of guilty to negligent driving, it was implicit in his attitude
that he was abandoning the
main charge, which was one of reckless
driving. This was quite clearly again a matter entirely within the
discretion of the prosecutor,
and the magistrate was powerless to do
anything to change the position created by the acceptance of the
plea.’
[7] In
S v Ngubane
1985 (3) 677 (A) at 683E-F, this position was confirmed
by this court when it said the following in respect of the acceptance
of
a plea by a prosecutor at the commencement of the trial:
‘
It
must be seen as a
sui
generis
act
by the prosecutor by which he limits the ambit of the
lis
between
the State and the accused in accordance with the accused’s
plea. Whether one in a case such as the present speaks
of amendment,
withdrawal or abandonment of the murder charge does not really seem
to matter. That the
lis
is
restricted by acceptance of the plea appears from ss 112 and
113. The proceedings under the former are restricted to the
offence
“to which he has pleaded guilty” and the latter must be
read within that frame.’
[8] Today this is even more clear. The independence of
the prosecuting authority concerning prosecutions is entrenched in
s 179
of the Constitution and effect is given thereto by the
provisions of the National Prosecuting Act 32 of 1998 (see for
instance
ss 20(1) and 32. See also
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) paras 28-39).
[9] The acceptance by the prosecutor
of the plea of guilty on the alternative charge had the result of
removing the main charge
from the indictment. It follows that the
conviction on the main charge could not stand. In addition, as a
result of the subsequent
withdrawal of the plea of guilty on the
alternative charge, this court could not substitute the conviction
with one of guilty on
the alternative charge. Because of the
ineptitude of the trial judge, the appellant spent several years in
prison in respect of
a crime that he was not in jeopardy of being
legally convicted.
[10] For these reasons the conviction
and sentence were set aside.
_____________________
C H G VAN DER MERWE
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellant: L M Manzini
Instructed by:
Justice Centre, Bloemfontein
For Respondent: Ms S M Mahada
Instructed by:
The Director of Public Prosecutions,
Thohoyandou
The Director of Public Prosecutions,
Bloemfontein