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2024
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[2024] ZAECMKHC 22
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Uchechukwu v Govuza and Another (3728/2023) [2024] ZAECMKHC 22; 2024 (2) SACR 51 (ECMk) (20 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, MAKHANDA]
CASE
NO.: 3728/2023
Regional
Court No. RCK 15/2023
REPORTABLE
In
the matter between: -
PROMISE
UCHECHUKWU
Applicant
and
J
GOVUZA
First
Respondent
THE
DIRECTOR OF PUBLIC
PROSECUTIONS,
EASTERN CAPE
Second
Respondent
REVIEW JUDGMENT
NORMAN
J:
[1]
This is a review application wherein the applicant, a foreign
national, in possession of an asylum
seeker permit, seeks an Order
reviewing and setting aside the criminal trial proceedings held on 21
July 2023, before the first
respondent, a Regional Court Magistrate
sitting in Mdantsane, in the province of the Eastern Cape. The review
is premised on the
provisions of section 22 (1) and (2) of the
Superior Courts Act No.10 of 2013 (“the SCA Act”). The
primary challenge
levelled against the criminal trial by the
applicant is that a gross irregularity occurred during the
proceedings. As a consequence
of such irregularity, the applicant
contends, he did not enjoy a fair trial.
Mr Daubermann
appeared for the applicant. The respondents decided to abide the
decision of this court.
[2]
The applicant’s grounds for review are as follows:
“
[9]
The causes of action on which the Applicant relies are three-fold,
namely:
[i]
The Applicant did not admit, in his plea, that “Tik”
is
“a
dangerous
dependence-producing substance”, the
First Respondent could not have been satisfied that the Applicant is
guilty of the offence
to which the Applicant pleaded guilty and the
First Respondent, accordingly, misdirected himself in convicting the
Applicant on
the basis of the plea.
[ii]
The peremptory requirements of Section 105A of the CPA were not
complied with in casu, which non-compliance constitutes a gross
irregularity in the proceedings.
[iii]
The Applicant did not receive a fair trial in that the legal
practitioner
who represented him at his trial was incompetent.”
Salient facts
[3]
The State preferred the following charges against the applicant and
his co- accused, Ms Sikade:
“
That the
accused are guilty of the crime of contravening section 5(b) read
with section 1, 13, 17 to 25 and 64 of the Drugs and
Drug Trafficking
Act 140 of 1992 (read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
) Dealing in Drugs.
In that the
accused did upon or about 18 March 2023 and at or near N2 near Komga
motors in the regional division of the Eastern
Cape the accused did
wrongfully and unlawfully deal in –
[5(a)] …
[5(b)]
a dangerous dependence producing substance as listed in
Part 2
of
Schedule 2 of the said Act, to wit, 5 x Pkts of Tik weighing
487.15grams and valued at +/-R63 000 or
[4]
Both Ms Sikade and the applicant were
represented by the same legal practitioner, Mr Njenge.
At the
commencement of the trial the state withdrew the charges against Ms
Sikade. The charge was put to the applicant. He pleaded
guilty to the
charge. A statement in terms of section 112 (2) of the Criminal
Procedure Act 51 of 1977 (“the CPA”)
confirming the plea
of guilty was read into the record. The statement also dealt
with the circumstances under which the
arrest took place. The state
accepted the facts contained in the statement. The first respondent,
upon having satisfied himself
that the applicant confirmed the
contents of the statement and his signature, ruled as follows:
“
On the basis of
the statement which the accused has made, the Court is satisfied that
he admits all the elements of the offence
with which he is charged.
Accordingly, the
accused is convicted as charged. That is of contravening section 5
(b) of Drug and Drug Trafficking Act 140 f 1992.”
[5]
During sentencing, the first respondent dealt with the seriousness of
the offence, the personal
circumstances of the applicant, the effects
that the drug “
Tik”
has on black communities
especially the youth. He found that imposition of a fine was
not an appropriate sentence given the
seriousness of the offence. He
found that there were substantial and compelling circumstances
justifying a departure from the imposition
of the minimum sentence of
15 years. In the result he sentenced the appellant to undergo ten
(10) years imprisonment. The court
made no order in terms of section
103 of Act 60 of 2000. He declared the applicant automatically unfit
to possess a firearm. He
further directed that the “
Tik
”
be forfeited to the State.
[6]
The following remarks made by the first
respondent are important for the purposes of the discussion
relevant
to these proceedings:
“
If the State
and if the defence wanted to have a valid... Let me say from the
outset, that that agreement does not bind me. That
agreement does not
bind me. I will look at the circumstances and look at the offence. I
will then decide whether their submission
is correct.
If the defence wanted
a binding agreement,
they should have entered into a formal plea
agreement in terms of section 105A
and if that were to be the
situation, both, a number of people were to be consulted. And the
matter would have been brought before
me. I would have had to look at
it and then decide if the so proposed would be just. If I feel that
it was just, I will then continue
with it. And if I felt that it was
not just, I will say, as far as I am concerned, that sentence does
not fit the offence committed.”
(my underlining)
Discussion
[7]
It is necessary to set out the procedure to be followed by the state
when it wishes to enter into a plea and sentence
agreements with
accused persons as provided in
section 105A
of the
Criminal Procedure
Act 51 of 1977
.
[8]
Section 105A
provides:
“
105A. Plea
and sentence agreements
(1)
(a)
A prosecutor authorised thereto in writing
by the National Director
of Public Prosecutions and an accused who is legally represented may,
before the accused pleads to the
charge brought against him or her,
negotiate and enter into an agreement in respect of—
(i)
a plea of guilty by the accused to
the offence charged or to an
offence of which he or she may be convicted on the charge; and
(ii)
if the accused is
convicted of the offence to which
he or she has agreed to plead
guilty—
(aa)
a just sentence to be imposed by the court; or
(bb)
the postponement of the
passing of sentence in terms of
section 297(1)(a)
; or
(cc)
a just sentence to
be imposed by the court, of which the
operation of the whole or any
part thereof is to be suspended in terms of
section 297(1)(b)
; and
(dd)
if applicable, an award
for compensation as contemplated in
section 300.
(b)
The prosecutor may enter
into an agreement contemplated
in paragraph (a)—
(i)
after consultation with the person
charged with the investigation of
the case;
(ii)
with due regard to, at
least, the—
(aa)
nature of and circumstances relating to the offence;
(bb)
personal circumstances of the accused;
(cc)
previous convictions of the accused, if any; and
(dd)
interests of the community, and
(iii)
after affording the complainant or his or her representative,
where
it is reasonable to do so and taking into account the nature of and
circumstances relating to the offence and the interests
of the
complainant, the opportunity to make representations to the
prosecutor regarding—
(aa)
the contents of the agreement; and
(bb)
the inclusion in the agreement of a condition relating to
compensation or the rendering to the complainant of some specific
benefit or service in lieu of compensation for damage or pecuniary
loss.
(c)
The requirements of
paragraph (b)(i) may be dispensed
with if the prosecutor is satisfied
that consultation with the person charged with the investigation of
the case will delay the
proceedings to such an extent that it could—
(i)
cause substantial
prejudice to the prosecution,
the accused, the complainant or his or
her representative; and
(ii)
affect the administration of justice adversely.
(2)
An agreement contemplated in subsection (1)
shall be in writing
and shall at least—
(a)
state that the accused, before entering into the
agreement, has been
informed that he or she has the right—
(i)
to be presumed innocent until proved guilty beyond reasonable doubt;
(ii)
to remain silent and not to testify during the proceedings; and
(iii)
not to be compelled to give self-incriminating evidence;
(b)
state fully the terms of
the agreement, the substantial
facts of the matter, all other facts
relevant to the sentence agreement and any admissions made by the
accused;
(c)
be signed by the
prosecutor, the accused and his or
her legal representative; and
(d)
if the accused has negotiated with the prosecutor
through an
interpreter, contain a certificate by the interpreter to the effect
that he or she interpreted accurately during the
negotiations and in
respect of the contents of the agreement.( my emphasis)
(3)
The court shall not participate in the negotiations contemplated in
subsection (1).
(4)
(a)
The prosecutor shall,
before the accused is required to plead, inform the court that
an agreement contemplated in subsection (1) has been entered into
and
the court shall then—
(i)
require the accused to
confirm that such an agreement
has been entered into; and
(ii)
satisfy itself that the
requirements of subsection
(1)(b)(i) and (iii) have been complied
with.
(b)
If the court is not satisfied that the agreement
complies with the
requirements of subsection (1)(b)(i) and (iii), the court shall—
(i)
inform the prosecutor and the accused
of the reasons for
noncompliance; and
(ii)
afford the prosecutor and
the accused the opportunity
to comply with the requirements
concerned.( my emphasis)
(5)
If the court is satisfied that the agreement
complies with the
requirements of subsection (1)(b)(i) and (iii), the court shall
require the accused to plead to the charge and
order that the
contents of the agreement be disclosed in court.
(6)
(a)
After the contents of the agreement have
been disclosed, the court
shall question the accused to ascertain whether—
(i)
he or she confirms the terms of the
agreement and the admissions made
by him or her in the agreement;
(ii)
with reference to the alleged facts of the case,
he or she admits the
allegations in the charge to which he or she has agreed to plead
guilty; and
(iii)
the agreement was entered into freely and voluntarily
in his or her
sound and sober senses and without having been unduly influenced.
(b)
After an inquiry has been conducted in terms of paragraph (a), the
court shall, if—
(i)
the court is not satisfied that the accused
is guilty of the offence
in respect of which the agreement was entered into; or
(ii)
it appears to the court that the accused does
not admit an allegation
in the charge or that the accused has incorrectly admitted any such
allegation or that the accused has
a valid defence to the charge; or
(iii)
for any other reason, the
court is of the opinion that
the plea of guilty by the accused should
not stand, record a plea of not guilty and inform the prosecutor and
the accused of the
reasons therefor.
(c)
If the court has recorded a plea of not guilty,
the trial shall start
de novo before another presiding officer: Provided that the accused
may waive his or her right to be tried
before another presiding
officer.
(7)
(a)
If the court is satisfied that the accused admits
the allegations in
the charge and that he or she is guilty of the offence in respect of
which the agreement was entered into, the
court shall proceed to
consider the sentence agreement.
(b)
For purposes of paragraph (a), the court—
(i)
may—
(aa)
direct relevant questions, including questions about
the previous
convictions of the accused, to the prosecutor and the accused; and
(bb)
hear evidence, including
evidence or a statement by or on behalf
of the accused or the
complainant; and
(ii)
must, if the offence concerned is an offence—
(aa)
referred to in the
Schedule to the Criminal Law Amendment Act,
1997 (Act 105 of 1997);
or
(bb)
for which a minimum
penalty is prescribed in the law creating
the offence, have due
regard to the provisions of that Act or law.
(8)
If the court is satisfied that the sentence agreement is just, the
court shall inform the prosecutor
and the accused that the court is
so satisfied, whereupon the court shall convict the accused of the
offence charged and sentence
the accused in accordance with the
sentence agreement.
(9)
(a)
If the court is of the opinion that the sentence
agreement is unjust,
the court shall inform the prosecutor and the accused of the sentence
which it considers just.
(b)
Upon being informed of the
sentence which the court
considers just, the prosecutor and the
accused may—
(i)
abide by the agreement
with reference to the
charge and inform the court that, subject to
the right to lead evidence and to present argument relevant to
sentencing, the court
may proceed with the imposition of sentence; or
(ii)
withdraw from the
agreement.
(c)
If the prosecutor and the accused abide by
the agreement as
contemplated in paragraph (b)(i), the court shall convict the accused
of the offence charged and impose the sentence
which it considers
just.
(d)
If the prosecutor or the
accused withdraws from the
agreement as contemplated in paragraph
(b)(ii), the trial shall start de novo before another presiding
officer: Provided that the
accused may waive his or her right to be
tried before another presiding officer.”
[9]
It appears from the record that at the beginning of the proceedings
the prosecutor did not divulge
the agreement between the state and
the defence and he proceeded to put the charge to the applicant. It
was during mitigation
of sentence and in addressing the minimum
sentence of 15 years as provided for in
section 51
(2) of the
Criminal Law Amendment Act 105 of 1997
, that Mr Njenge disclosed to
the court, for the first time, that there was a “plea bargain”
with the state. He further
disclosed that the agreement was that the
appellant would pay a fine in the amount of R100 000.00.
The fine, according
to the parties, would deter the applicant from
committing similar offences. The oral agreement on the fine and the
amount thereof
was confirmed by the public prosecutor.
[10]
The procedure adopted by the prosecutor is not consistent with the
provisions of
section 105
A (4) (a), which makes it peremptory that
the plea and sentence agreements must be disclosed to the court
before the accused is
required to plead.
[11]
Section 105A
makes no provision for oral plea and sentence
agreements. Most importantly the Director of Public Prosecution
must authorise
the prosecutor concerned to negotiate and enter into
such agreements. The reason for that is not far to find. Criminal
courts are
courts of record. Everything that takes place must be
recorded. The Director of Public Prosecutions (“DPP”)
who
is in charge of prosecutions within his or her jurisdiction must
be made aware of agreements inorder for him to consider numerous
factors, amongst others, the gravity of the offence ,the propriety of
the proposed sentence; the impact thereof on the interests
of society
and the implications of such agreements on the criminal justice
system. Otherwise any prosecutor may negotiate and enter
into
agreements without the DPP’s knowledge or authority.
[12]
In
S
v Boumpoutou
[1]
,
the Court found that the fact that a prosecutor had agreed to a
sentence not in compliance with the Immigration Act meant that
he
exceeded the scope of his authority, and his actions were accordingly
not authorised for the purposes of s 105A of the Criminal
Procedure
Act 51 of 1977 ( “the CPA”) . It found that the agreement
was therefore void and set it aside in its entirety.
The matter had
to be tried
de
novo
at
the discretion of the Director of Public Prosecutions.
[13]
The Legislature in section 105A (2) employed the words “
An
agreement contemplated in subsection (1)
shall be in
writing..”
A public prosecutor who concludes oral
plea and sentence agreements is acting outside the provisions of
section 105 A . His or her
actions undermine the purpose for which
the provision was enacted, being to ensure that those accused persons
who wish to plead
guilty and enter into agreements with the state on
plea and sentence are afforded an opportunity to do so speedily
without compromising
the justice system. It is for that reason that
the prosecutor must ensure that those agreements are concluded in
writing for the
court to consider and for the agreements to form part
of the record. Non – compliance with the provisions of section
105
A (2) renders such agreements void.
[14]
There are various matters that the prosecutor must have regard to
when entering into the agreement. They
are ,amongst others, the
nature of and circumstances relating to the offence, accused’s
personal circumstances, previous
convictions of the accused, if any;
and interests of the community
[2]
.
The prosecutor may only enter into the agreement after consultation
with the investigator. It is not possible to consider
all those
matters where there are oral and informal agreements concluded
contrary to the provisions of section 105 A. The
procedure
adopted by the prosecutor was accordingly irregular and rendered the
agreement void. It follows therefore that the first
respondent
correctly rejected the oral sentence agreement.
[15]
It appears that the applicant’s legal representative was not
au
fait
with the process sanctioned by section 105A and he believed
that the plea agreement was binding on the court. He stated,
inter alia
, in the confirmatory affidavit filed:
“
[5] I confirm, in
particular:
[i]…
[ii] that I lost sight of
the provisions of Section 105 A (Section 105 A) of the
Criminal
Procedure Act, no. 51 of 1977
, and verily believed that, because of
the Plea Agreement, the First Respondent was obliged to sentence the
Applicant to the agreed
fine of R100 000, and
[iii] that prior to
Applicant pleading guilty to the charge, I informed him that if he
enters into the Plea Agreement and pleads
guilty to the charge
pursuant thereto, the First Respondent would sentence him to the
agreed fine of R100 000.”
[16]
That belief is not an excuse because, as a legal
practitioner, he was obliged to familiarise himself with
the
provisions of the CPA, and in particular
section 105A
,before
subjecting his client to the plea and sentence agreement process. His
ignorance of the provisions of
section 105
A and the assurances he
gave on the sentence influenced the applicant to plead guilty to the
charge. Therein lies the unfairness
of the trial
[3]
.
[17]
The applicant, also relied on the fact that in the
section 112
(2) statement he never admitted that “
Tik”
is a
dangerous dependence – producing substance as defined in
section 1
of the
Drugs and Drug Trafficking Act No. 140 of 1992
and
therefore the first respondent could not have been satisfied that the
applicant was guilty of the offence to which he pleaded.
[18]
In the supplementary heads of argument filed after
the hearing, with the leave of the court, Mr Daubermann,
argued that
“
Tik
” is a colloquial name for methamphetamine.
He submitted that methamphetamine is not included in Part ll of
Schedule
2 to the
Drugs and Drug Trafficking Act and
is accordingly
not a “
dangerous dependence – producing substance
”.
He contended that the conviction based on the dangerous dependence
producing substance was irregular.
[19]
The charge preferred against the applicant was based on the
provisions of section “
5 (b), a dangerous dependence
producing substance as listed in
Part 2
of Schedule 2 of the said
Act, to wit 5xpkts of Tik weighing 487.15 grams and valued at
R+-63 000.00”.
In his plea the applicant stated:
“
1.
On or about the 18
March 2023 and at or near N2 Komga Motors , I did wrongfully and
unlawfully contravene the provisions of
section 5 (b) read with
Section 1,13,17 to 25 and 64 of the Drugs and Drug Trafficking Act
140 of 1992, ( read with the provisions
of
section 51
(2) of the
Criminal Law Amendment Act 105 of 1997
by dealing in a
dependence producing substance
, to wit 5x packets of Tik
weighing 487, 15g at R63 000.00”
[20]
The plea demonstrates that the
applicant admitted that he contravened
section 5
(b) by “
dealing
in a dependence producing substance
”. That was not what he
was charged with. The state charged him with dealing in
a
dangerous
dependence producing substance as listed in
Part 2
of
Schedule 2 of the Drugs Act. The prosecutor confirmed this charge
when addressing court. According to the applicant “
Tik
”
is “
Methamphetamine
” listed as an undesirable
dependence producing substance under Part lll of Schedule 2. The
state categorised it as a dangerous
dependence producing substance.
It may be prudent for the state to use both the colloquial and
real name of the substance
in order for it to formulate proper
charges. An example of that is “cannabis” is listed in
the Schedule 2 Part lll
but in brackets (dagga) is inserted.
What these discrepancies point to is that there was no meeting of
minds between the
state and the applicant on the plea itself. It
follows that the oral agreement purportedly reached in these
circumstances was of
no force and effect.
[21]
As aforementioned the plea and sentence agreement was revealed
to the first respondent by the defence
and the state after he had
already convicted the applicant on his 112 (2) statement and the plea
of guilty that he tendered. The
actions of the state in this regard
rendered the conviction irregular as it was contrary to the procedure
laid out in section 105
A (4)(a). The conviction in this regard
cannot stand because the plea of guilty, was part of a deal, and was
inextricably
linked to a promise of payment of a fine and not a
custodial sentence.
[22]
The error committed by the applicant’s legal
representative that the oral agreement was binding on
the Regional
Court Magistrate, the error committed by the prosecutor of concluding
an oral agreement, the assurances given to the
appellant that he
would pay a fine, all those errors were unfair to the applicant who
stated:
“
[30] I would
most definitely not have pleaded guilty to the Charge if I had known
that the Plea Agreement was not binding on the
First Respondent and
that I was at risk of being sentenced to direct imprisonment without
the option of a fine.”
[23]
In the United States of America where
“plea bargains” are popular it is trite that
a
‘defendant’ has no right to be offered a plea, nor a
federal right that the judge accept it
[4]
.
[24]
In
People v Robinson
, the Court of Appeals
stated :
“
The Court of
Appeals examines critically even slight procedural deficiencies under
criminal rule setting forth requirements for
a plea alloculation to
ensure that the defendant’s guilty plea was a voluntary and
intelligent choice, and that none of the
defendant’s
substantial rights has been compromised”.
[5]
When a defendant elects to seek a plea agreement, his
role is not to “haggle” with the prosecutor by directing
counsel during the negotiation process; his role is to decide
whether to accept or reject the plea agreement that his counsel
and
the prosecutor ultimately reached.
[6]
[25]
Section105 A provides the same safeguards to
ensure that the agreement was entered into by the accused freely
and
voluntarily in his sound and sober senses and without having been
unduly influenced
[7]
.
[26]
In the United States of America, a “plea bargain”
is defined as a contract between the
state and the defendant;
when the state and the defendant knowingly and voluntarily enter
into a plea bargain, they are jointly
bound by the terms of that
agreement once it is accepted by the trial court
[8]
.
A plea agreement constitutes a contract between the state and a
criminal defendant and is subject to the general law of contracts.
[27]
In
U.S.
v. Sharma
[9]
,
the court decided that in evaluating whether a plea agreement was
breached, the Court applies general principles of contract law,
construing terms strictly against government as drafter, to determine
whether government’s conduct is consistent with defendant’s
reasonable understanding of the agreement.
[28]
These principles apply equally to the South African
criminal justice system. Similarly, plea agreements are
constitutional
contracts which must be construed in light of the
rights and obligations created by the Constitution.
[10]
This fortifies the provisions of section 105 A that these agreements
must be in writing because they are contracts whose terms
, where
breached , would have to be interpreted according to the general
principles of contract law. It is for that reason that
I find that in
section 105 A there is no room for informal plea and sentence
agreements.
[29]
Accused persons deserve to be charged with
properly formulated charges that are consistent with the provisions
of the law allegedly contravened. Prosecutors must only take
steps that are sanctioned by law and by so doing they
instill
confidence in the criminal justice system.
[30]
In the circumstances, all the errors highlighted
above tainted the trial before the first respondent. For
all the
reasons set out above both the conviction and sentence cannot stand.
At the hearing of the matter the court ordered the
immediate release
of the applicant who, as advised by his counsel, was in custody
serving the sentence imposed. He was sentenced
on 21 July 2023
and had served almost seven months of the sentence. It is for
that reason that the matter is not being referred
back to the
Director of Public Prosecutions for it to be tried
de novo
at
his discretion. However, the court will direct that this
judgment be brought to the attention of the Director of Public
Prosecutions by the Registrar.
[31]
In the result I make the following Order:
31.1
Both the conviction and sentence imposed on the applicant at
the trial that took place on 21 July 2023, at the Regional Court,
Mdantsane,
under case number RCK 15 / 2023 , before the first
respondent , are reviewed and set aside.
31.2
The Registrar is directed to bring this
judgment to the attention
of
the Director of Public Prosecutions, Eastern Cape.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
I
agree.
V.
NONCEMBU
JUDGE
OF THE HIGH COURT
Matter
heard on
06
February 2024
Judgment
Delivered on
20
February 2024
APPEARANCES:
For
the APPLICANT
Mr
Daubermann
Instructed
by
Peter
Daubermann Attorneys
Suite
701
Seventh
Floor
Oasim
South
Pearson
Street
Central
Gqeberha
6001
TEL
: 0825533710
Email
: lawyer.za@gmail.com
For
the RESPONDENTS
NO
APPEARANCE
To
abide the decision of the court
[1]
S
v Boumpoutou 2022 (2) SACR 594 (WCC)
[2]
Section105A
(1)(b)(i) and (ii)
[3]
S v Tandwa and Others ( 538/06)
[2007] ZASCA 34
;
[2007] ZASCA 34
;
2008(1) SACR 613 ( SCA) ( 28 March 2007) para 7
[4]
Missouri
v. Frye,132 S.Ct.1399 (2012)
[5]
Fed.
Rules Cr.Proc. Rule 11, 18 U.S.C.A.US v Yang Chia Tien,
720 F.3d 464
(2d Cir. 2013)
[6]
People v Robinson, 363 III. Dec.181,974 N.E.2d 978( App.Ct.4
th
Dist.2012)
[7]
Section 105 A (6) (a) (i)(ii)(iii)
[8]
Costilow
v.State, 318 S.W.3d 534 ( Tex. App. Beaumont 2010)
[9]
U.S. v Sharma,
703 F. 3d 318
(5 th Cir. 2012).
[10]
Smith
v. Com.,400 S.W.3d 742 ( Ky.2013), Constitution of the Republic of
South Africa , 1996 ,
section
35 (3).