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[2023] ZAKZPHC 11
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Mkhize v S (AR365/21) [2023] ZAKZPHC 11 (3 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR365/21
In
the matter between:
SIBUSISO
BLESSING MKHIZE
APPELLANT
And
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date for hand down is deemed to be 03 February 2023 at 09:00
ORDER
On
appeal from: the Regional Court, Izingolweni
:
1.
The appeal is upheld.
2.
The conviction and sentence dated 31
July 2020 is set aside.
3.
The case is remitted to the court a quo
for it to deal with the matter in terms of s112(2), and, if
necessary,
s113
, of the
Criminal Procedure Act 51 of 1977
.
JUDGMENT
Chetty
J (Ploos van Amstel J concurring):
[1]
The
appellant was charged in the Regional Court, Izingolweni, with one
count of murder in which it was alleged that on 5 August
2019 in
Nyandezulu Location, KwaZulu-Natal, he unlawfully and intentionally
killed a female, Ms B [....] S [....] N [....] (‘the
deceased’). The State alleged that the murder was premeditated
and the charge against the appellant was framed in terms of
s 51(1)
,
Schedule 2,
Part I
of the Criminal Law Amendment Act 105 of 1997
(‘the Amendment Act’) in respect of which life
imprisonment would be
applicable in the event of a conviction, and
the absence of substantial and compelling circumstances.
[2]
The
appellant was legally represented at his trial and pleaded guilty to
the charge against him. After considering the admissions
contained in
the appellant’s statement in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977
(‘the Act’)
,
the presiding magistrate found the appellant guilty of premeditated
murder as charged, and sentenced him to life imprisonment
in the
absence of any substantial and compelling circumstances.
The
matter comes before this court as an appeal in terms of s 309 of the
Act.
[3]
The factual background of the matter
emerges solely from the contents of the appellant’s s 112(2)
statement, the post mortem
report and the photographic album, which
exhibits were admitted into evidence by the appellant at the
commencement of the proceedings
in the court a quo. The appellant was
in a romantic relationship with
the
deceased. They had lived together for approximately two years prior
to her death. On 4 August 2019, the appellant called the
deceased and
informed him that she was visiting her mother, who lived in Port
Shepstone, and that she would be spending the weekend
at her mother’s
home as she normally did. Later that evening the appellant tried to
call the deceased but was unable to get
through. He decided to drive
to the deceased’s mother’s home. On his arrival, he was
informed by the deceased’s
mother that the deceased was not
present and that she had not seen her daughter since February of that
year. This was contrary
to what the appellant had been led to believe
by the deceased.
[4]
The appellant returned home alone that evening. The deceased returned
home the following morning at which stage the appellant enquired from
her where she had been over the weekend. She responded that
she had
been to visit her mother, whereupon the appellant telephoned her
mother in her presence. An argument then ensued over the
allegation
that the deceased had been lying as to her whereabouts, resulting in
her eventually admitting that she had been visiting
another man in
Port Shepstone.
[5]
The appellant became enraged at the deceased’s admission that
she
was seeing another man under the pretext of visiting her mother.
He grabbed hold of a knife in the house and stabbed the deceased
repeatedly. She attempted to flee without success. Realising what he
had done, the appellant telephoned the deceased’s sister,
who
arrived at his house and summoned the police. The appellant admitted
that the injuries reflected in the post mortem report
and the Form
J88 were correct, and that these injuries caused the death of the
deceased.
[6]
On the basis of the admissions contained in the
s 112(2) statement, the presiding magistrate was satisfied that the
appellant had
admitted to all of the elements of the crime of murder
and found the appellant guilty as charged. It is in regard to this
precise
finding that this appeal turns. It was submitted on behalf of
the appellant that the conviction was not in order as nowhere in the
s 112(2) statement does the appellant admit the necessary intention
to kill the deceased or the element of unlawfulness. Counsel
for the
respondent was unable to mount any argument in rebuttal. The
requirement in s 112(2) of the Act is for an accused to ‘set
out the facts which he admits’ in a statement, on the strength
of which he or she may be convicted. (
S
v Chetty
2008 (2) SACR 157
(W)).
Although the appellant admitted to having stabbed the deceased
repeatedly and that she died as a result of the wounds inflicted,
these do not constitute facts from which the court a quo could have
justifiably drawn the conclusion that the appellant had the
necessary
intention to kill the d
eceased.
[7]
The facts contained in the s 112(2) statement
constitute admissions on the part of the appellant. In
Negondeni
v The State
(00093/15)
[2015] ZASCA
132
(29 September 2015) para 10 the court said the following in
relation to a statement made in terms of s 112(2):
‘
It has
been made clear in
S
v Mbuyisa
that s
112
(b)
contemplates
admissions of facts and not admissions of law or legal
conclusions. In
S
v Lebokeng en ‘n ander
it
was stressed that the court should be satisfied not only that the
accused committed the act in question but that he committed
it
unlawfully and with the necessary
mens
rea.
As
was stated in
S
v Nyanga
“
Section
112(1)
(b)
questioning
has a twofold purpose. Firstly, to establish the factual basis for
the plea of guilty and secondly to establish
the legal basis for such
plea. In the first phase of the enquiry, the admissions made may not
be added to by other means such as
a process of inferential
reasoning. (
S
v Nkosi
1986
(2) SA 261
(T) at 263H-I;
S
v Mathe
1981
(3) SA 664
(NC) at 669E-G;
S
v Jacobs
(supra
at 1177B)
(1978
(1) SA 1176
(C) at 1177B). The second phase of the
enquiry amounts essentially to a conclusion of law based on the
admissions. From
the admissions the court must conclude whether
the legal requirements for the commission of the offence have been
met. They
are the questions of unlawfulness,
actus
reus
and
mens
rea
. These
are conclusions of law. If the court is satisfied that the
admissions adequately cover all these elements of the
offence, the
court is entitled to convict the accused on the charge to which he
pleaded guilty.”’ (Footnotes omitted)
[8]
In light of the above authority no basis in law exists for inferences
to be drawn from the admitted facts. Instead, the presiding
magistrate ought to have questioned the appellant in terms of s
112(2)
of the Act to establish whether the appellant admitted to the
essential elements of the offence. Differently put, the questions
and
answers must cover all the essential elements of the offence which
the State, in the absence of a plea of guilty, would have
been
required to prove. Section 112(1)
(b)
and s112(2) are designed
to avoid the necessity for calling evidence in cases where it is
clear that the accused understands all
the elements of the charge and
admits them all. (
S v Shiburi
2018 (2) SACR 485
(SCA) para
18). From the admitted facts in the statement by the appellant, it
was not possible for the magistrate to be satisfied
that the
appellant acted with the requisite intent – either in the form
of dolus directus or dolus eventualis – to
kill the deceased.
Intent cannot be inferred from the admitted facts.
[9]
It follows that the conviction and life sentence imposed on the
appellant
cannot stand. In remitting the matter, the court seized
with the matter must proceed in terms of s 112(2) of the Act in which
the
written statement and admissions by the appellant stand. The
magistrate may then proceed to question the appellant in terms of s
112(2) to establish whether he admits he had the intention to kill
the deceased and appreciated the unlawfulness of his actions.
If the
appellant does not admit this, the magistrate must change the plea to
one of not guilty in terms of s 113. Section 113(1)
provides that all
allegations which the appellant admitted under s 112(2) shall stand
as proof. The accused should be asked further
whether he admits
premeditation. If not, the state can choose to accept the plea on
murder without premeditation.
Order
[11]
In the circumstances, the following order is made:
1.
The appeal is upheld.
2.
The conviction and sentence dated 31 July 2020 is set aside.
3.
The case is remitted to the court a quo
for
it to deal with the matter in terms of s112(2), and, if necessary,
s113
, of the
Criminal Procedure Act 51 of 1977
.
Chetty
J
I
agree
Ploos
van Amstel J
Appearances:
For
appellant:
Mr P Marimuthu
Instructed
by:
Legal Aid South Africa Durban
For
respondent:
Mr A Meiring
Instructed
by:
Director of Public Prosecutions Durban
Heard
on:
16 January 2023
Judgement
delivered:
3 February
2023