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[2013] ZASCA 172
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Mudau v S (276/13) [2013] ZASCA 172 (28 November 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 276/13
In
the matter between:
NKHUMELENI
DAVID MUDAU
……………………………………….
Appellant
and
THE
STATE
……………………………………………………………..
Respondent
Neutral
citation
:
Mudaii v S
(276/13)
[2013] ZASCA 172
(28
November 2013)
Coram:
Cachalia, Shongwe, Majiedt JJA
Heard:
18 November 2013
Delivered:
28 November 2013
Summary:
Criminal Law and Procedure - sufficiency of a statement in terms of
s
112(1)(b)
of the Criminal Procedure Act 51 of
1977 (the Act) - Whether the questioning by the presiding officer was
adequate to justify a
conviction - applicability of s 312 of the Act
- court has a discretion to remit or set aside conviction and
sentence if remittal
will result in an injustice.
ORDER
On appeal from
:
Limpopo High Court, Thohoyandou (Hetisani J sitting as court of first
instance):
The
appeal is allowed and the convictions and sentences are set aside.
JUDGMENT
Shongwe
JA (Cachalia and Majiedt JJA concurring)
[1] On the morning of 10
November 2002 the appellant and one Avhashoni Rasilingwane (the
deceased) were found lying side by side
on the lawn of one Patrick
Khwashaba, near Makwarela Location, in the district of Thohoyandou.
The deceased was dead and the appellant
was injured on his head and
on his hand. The two had apparently met each other the night before
at a beer-hall where they had been
imbibing sorghum beer together.
[2] The appellant was
taken to the local Tshilidzini hospital but subsequently charged with
murder and rape of the deceased. Upon
a plea of guilty on both
charges, the appellant was convicted as charged and sentenced to
imprisonment for life on each of the
counts. The sentences were
ordered to run concurrently (Hetisani J). The appeal before us is
against sentence only with the leave
of the court below (Makhafola
J), because Hetisani J has since retired.
[3] While preparing for
this appeal it appeared that the provisions of sll2 (l) (b), of the
Criminal Procedure Act 51 of 1977 (the
Act) were not complied with
and also that the provisions of s 113 of the Act should have been
applied. Both counsel for the State
and the appellant were invited to
provide supplementary heads of arguments to comment on the
sufficiency and adequacy of the questioning
by the trial judge in
view of the provisions of s 312 of the Act which provides as follows:
‘
(1)
Where a conviction and sentence under section 112 are set aside on
review or appeal on the ground that any provision of subsection
(1
)(b) or subsection (2) of that section was not complied with, or on
the ground that the provisions of section 113 should have
been
applied, the court in question shall remit the case to the court by
which the sentence was imposed and direct that court to
comply with
the provision in question or to act in terms of section 113, as the
case may be.’
[4]
I
now turn to what transpired during the trial in the court below.
After the indictment was put to the appellant, who was legally
represented - although I am constrained to add that the quality of
the representation was poor - he pleaded guilty, as indicated
above,
and a s
tatement in terms of s 112(1)(b)
of
the Act was read into the record. For completeness sake I will quote
it in full - it reads as follows:
‘
1
.
The accused pleads guilty to both counts, namely the count of murder
and that of rape.
2.
He admits that on or about the 9
th
November 2002 and at or near Makwarela Township, in the district of
Thohoyandou, he went to the beer-hall for drinking.
3.
He found the deceased one Avhashoni
Elisa Rasilingwane there and at about 23h00 they left the beer-hall
together after enjoying
the sorghum beer.
4.
On the way home, the accused demanded to
have sex with the deceased and she refused. The accused then forced
the deceased to have
sexual intercourse with him.
5.
A fight ensued, the deceased hit the
accused with a brick all over his head and on the hand. In the event,
the accused was injured.
6.
Using a fencing pole (standard), the
accused assaulted the deceased all over her body until she died.
7.
Both the accused and the deceased were
found at Matodzi Patrick Kwashaba’s house the following morning
at 5h00 - the accused
injured and the deceased, dead.
8.
The accused know that the intentional
killing of another is wrongful and unlawful.
9.
The accused further understand that
having sexual intercourse with a woman without her consent is
unlawful and punishable by law.
DATED
at THOHOYANDOU on this 4
th
DAY of JUNE 2003 .’
[5]
The contents of this statement are merely a regurgitation of the
summary of the substantial facts alleged by the State. The
presiding
judge then put questions to the appellant for clarification. The
first question was ‘where did the sexual intercourse
take
place?’ The answer was - ‘It was on the way home away
from the beer-hall’; the judge wanted to know whether
it was
‘before or after the assault?’. Thereafter there was an
interruption, however, eventually no answer was proffered
to this
question. The next thing, on record was when the judge said that the
deceased assaulted the appellant and that the deceased
was the first
to hit the appellant with a brick - the judge then asked whether the
appellant sustained any injuries - the answer
was that he was injured
on the forehead, and was treated at a hospital. The judge also said
that no other weapons were used besides
the brick and pole used for
fencing - and concluded that those were not weapons in the true
sense.
[6]
The prosecutor accepted the plea of the appellant and handed in the
statement as an exhibit - he also handed in a photo album
and a post
mortem report, the legal representative did not object to the handing
in of those documents. The judge proceeded to
hand down judgment and
convicted the appellant as charged.
[7]
Section 112(1)^ reads as follows:
‘
(1)
Where an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted
on the
charge and the prosecutor accepts that plea-
(a)
...
(b)
the
presiding judge, regional magistrate or magistrate shall, if he or
she is of the opinion that the offence merits punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the
Minister
from time to time by notice in the Gazette, or if requested thereto
by the prosecutor, question the accused with reference
to the alleged
facts of the case in order to ascertain whether he or she admits the
allegations in the charge to which he or she
has pleaded guilty, and
may, if satisfied that the accused is guilty of the offence to which
he or she has pleaded guilty, convict
the accused on his or her plea
of guilty of that offence and impose any competent sentence.’
It is important to note
that the provisions of s 112(1 )(b) are peremptory in that the
presiding judge must question the accused
person with reference to
the alleged facts of a case for purposes of ascertaining whether the
accused admits the allegations in
the indictment to which he pleaded
guilty. However s 112(2) of the Act, provides that if an accused or
his legal representative
hands in a written statement in which he
sets out the facts which he admits, the court may, in lieu of the
questioning under subsec
(1 )(b), convict the accused on the strength
of such statement and sentence him provided the court is satisfied of
his guilt. In
the present case the court questioned the appellant in
order to clarify the statement and received no satisfactory answers -
and
in some instances received no answer at all - the judge,
notwithstanding, proceeded to convict the appellant.
[8]
Murder and rape are crimes which require specific intent - see
Jonathan Burchell and John Milton - Principles of Criminal Law
3
Edition 667 and 699 - therefore the court ought to be satisfied not
only that the accused committed the act complained of, but
also that
he/she committed it unlawfully and with the necessary mens rea (see S
v Carter
2007 (2) SACR 415
(SCA) para 26; S v Mshengu
2009 (2) SACR
316
(SCA) para 7) - In the statement by the appellant it is simply
stated that: ‘the accused is aware that the intentional killing
of another is wrongful and unlawful’. The appellant does not
admit that he knew that it was wrongful and unlawful and that
he hit
the deceased with the necessary intention. The admission must be
accompanied by an understanding of what the admission embraces
(see S
v Mbuyisa
2012 (1) SACR 571
(SCA) para 7). Section 112(1 )(b)
contemplates admissions of facts and not an admission of law or a
legal conclusion - see Mshengu,
supra, at para 7.
[9]
The legal position is clear that the purpose of questioning an
accused person - after a plea of guilty - is for the court to
be
satisfied that the accused is indeed guilty of the offences he
pleaded guilty to. If not, the provisions of s 113 of the Act
must be
invoked. It is not only to ascertain from the accused whether he
admits the allegations in the indictment. He must admit
all the
elements of the offences with which he is charged and must be
encouraged to tell his story of what actually happened -
see Mkhize v
The State & another
1981 (3) SA 585
(N) at 586D-587A; where
Broome J referred to a passage in S v Witbooi & others
1978 (3)
SA 590
(T) at 594H-595A where Boshoff AJP said:
‘
Section
112 (1) (b) and s 112 (2) and (3) are primarily concerned with the
facts of the case and to ensure that an accused person
is guilty of
the offence to which he has pleaded guilty and also to ensure that he
is properly sentenced on the true facts of the
case. It follows that,
where a magistrate acts under the provisions of these sections, he
should follow a course that would enable
him to ascertain the true
facts of the case. The course recommended is to question the accused
himself with reference to the alleged
facts of the case in order to
ascertain what his version is so that the prosecutor can know whether
the account of the accused
agrees with the evidence which he has at
his disposal. If his account does not agree with the evidence which
the prosecutor has
available, the prosecutor may then decide to place
his evidence before the court and it will then be for the court to
adjudicate
upon the facts of the case.’ (See S v Mshengu,
supra, para 7).
[10] In the present case
the judge did not inquire on the state of mind of the appellant to
determine mens rea at the time of the
alleged murder and the rape -
nor did the judge deal with his level of perception then. There is
undisputed evidence that the appellant
was ‘overly drunk’
- all this evidence came up only during mitigation of sentence and
not during questioning by the
presiding judge. In S v M
1982 (1) SA
240
(N) at 242D-E Didcott J observed that - ‘Accused persons
sometimes plead guilty to charges, experience shows, without
understanding
fully what these encompass. The danger of their doing
so is obvious in a society like ours, which sees many who are
illiterate
and unsophisticated coming before the courts with no legal
assistance. The danger is greater still, it goes without saying, when
such a one is a young child with a limited grasp of the proceedings.’
The latter portion of his
observation may not be relevant to the present case, however, the
essence of his observation cannot be
more true.
[11] It is clear that the
provisions of subsec (1) (b) or subsec (2) of s 112 were not complied
with because of the inadequacy and
insufficiency of the questioning
and therefore that the provisions of s 113 ought to have been invoked
and a plea of not guilty
entered on both counts.
[12] In conclusion I find
that the statement in terms of s 112(1)^ is insufficient and the
questioning by the presiding judge was
inadequate to address the real
issues of whether or not the appellant intended pleading guilty to
both charges and whether indeed
he admitted all the elements of the
offences to justify a conviction. This court retains the discretion
not to order a remittal
as such an order would lead to an injustice
('Mshengu, supra, paras 18 and 19) The appellant was convicted and
sentenced in 2003,
he has been in custody ever since he was arrested
on 10 November 2002 - although bail was fixed for him, he could not
afford to
pay it.
[13]
In the result the appeal is allowed and the convictions and sentences
are set aside.
J
B Z SHONGWE
JUDGE
OF APPEAL
APPEARANCES
FOR
APPELLANT: M J Manwadu
Instructed
by:
Justice
Centre, Thohoyandou;
Justice
Centre, Bloemfontein
FOR
RESPONDENT: A Madzhuta
Instructed
by:
Director of Public
Prosecutions, Thohoyandou;
Director of Public
Prosecutions, Bloemfontein