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[2023] ZAKZPHC 120
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S v Ngcobo (R278/2023) [2023] ZAKZPHC 120; 2024 (2) SACR 34 (KZP) (20 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
High
Court Case No: R278/2023
Magistrates
Case No: G2380/2023
Magistrates
Serial No: REVIEW 21/23
In
the matter between:
THE
STATE
and
SAZI
SAMKELO NGCOBO
Date Delivered:
20 October 2023
REVIEW JUDGMENT
NICHOLSON
AJ: (P. C. BEZUIDENHOUT J concurring)
[1]
This is a special review that found its way to this court in light of
the learned senior magistrate of the Pietermaritzburg Magistrates’
Court conducting judicial quality assurance, where they
identified
this matter for submission to this court for special review in terms
of s 304(4) of the Criminal Procedure Act 51 of
1977 (“the
CPA”).
Brief
background
[2]
It appears from the record that on or about 26 April 2017, a
protection
order was granted where in terms of
s 17
of the
Domestic
Violence Act 116 of 1998
, the accused was directed:
‘
not
to swear, insult, threaten or intimidate the applicant Nokuthula
Ngcobo not to damage any of the applicant’s property,
not to
drive or have any contact with any of the applicant’s
vehicles.’
[3]
It is instructive that it appears common cause from the record that
the
protection order was duly served on the accused and remained in
force.
[4]
On or about 19 March 2023, the accused contravened the protection
order
when he retrieved the applicant’s phone and threw it to
the ground causing damage to the phone and further, took the
applicant’s
car without her consent.
[5]
It further appears from the record that the accused was duly arrested
and charged and, after various appearances before the
Pietermaritzburg Magistrate Court, on 17 August 2023, the accused,
having
completed a plea and sentencing agreement in terms of
s 105A
of the CPA, pleaded guilty and sentenced as follows:
‘……
three
(3) years imprisonment, which is wholly suspended for a period of
five (5) years, on condition that:-
1)
The accused is not convicted of contravention of
s 17
of the
Domestic
Violence Act 116 of 1998
committed during the period of suspension.
2)
The accused adheres to the terms and conditions of
s 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
.
3)
The accused is ordered to undergo twelve (12) months correctional
supervision, which shall include the following terms and measures:
(a)
House arrest at the place and during the times determined by the
correctional
supervision officer for the full duration of the
correctional supervision;
(b)
Unremunerated community service in connection with the function of
the
State or community serving institution to be designated by the
correctional supervision officer at Pietermaritzburg, during times
determined by the correctional supervision officer, for sixteen (16)
hours for every month for the full duration of correctional
supervision;
(c)
Submission to and proper attendance by the accused of the following
treatment/rehabilitation
programmes at the places and times arranged
by the correctional supervision officer, for which costs may be
recovered from the
accused:
i)
orientation programme;
ii)
life skill programme;
iii)
anger management programme;
(d)
submission to the monitoring by correctional supervision officer in
order
to realise the objectives of the sentence.
4)
The accused is ordered to:
1.
report to the correctional supervision officer at room 2 – 57
in the Magistrate’s Court Building,
Otto Street,
Pietermaritzburg, on 18 August 2023 at 09h00;
2.
refrain from abusing alcohol and using any drugs except on
prescription by a registered medical practitioner
during the duration
of the correctional supervision;
3.
comply with all reasonable instructions given by the correctional
supervision officer;
4.
notify the responsible correctional supervision officer of any change
of the accused’s residential or
work address.’
Legislative
Framework
[6]
It is trite that
s 105A
of the CPA makes provision for the accused
and prosecutor to agree to a sentence prior to pleading guilty
provided the presiding
officer is in agreement with the sentence.
Section 105A
also requires the public prosecutor to consult widely
with the investigating officer and the complainant. In that regard,
s 105A(1)
reads:
‘
(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;
(iii)
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
(iv)
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.’
[7]
On the charge sheet dated 17 August 2023, an entry was made by the
learned
magistrate dealing with the matter which reads:
‘
Mr
Mbhense the matter is on the roll for plea in terms of
s 112(2)
read
with
s 105A
’
[8]
Section 112
read as follows;
‘
Plea
of guilty
(1)
…
(2)
If an accused or his legal adviser hands a written statement by the
accused into court,
in which the accused sets out the facts which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning
the accused under subsection (1)
(b)
, convict the
accused on the strength of such statement and sentence him as
provided in the said subsection if the court is satisfied
that the
accused is guilty of the offence to which he has pleaded guilty:
Provided that the court may in its discretion put any
question to the
accused in order to clarify any matter raised in the statement.’
[9]
It is
apparent that when reading
s 112(2)
and
s 105A
, that these two
sections are not meant to be read together.
Section 112(2)
deals with
where an accused tenders a plea of guilty in writing before the
court, which covers all the elements of the crime, on
which the
presiding officer may (this is not always necessary) question the
accused to satisfy themselves that the accused is guilty
of the
purported crime, where after a sentence will be imposed at the
discretion of the presiding officer.
[1]
Section 105A
deals with an agreement between the accused and the
prosecutor where the accused agrees to plead guilty to the offence
(or to an
offence for which he may be found guilty based on the
charge) and agrees to a lesser sentence, in lieu of going to trial.
Essential
to
s 105A
proceedings is that the accused must be
represented.
[2]
[10]
The learned
senior magistrate brought to my attention the case of
S
v Solomons
,
[3]
the court observed:
‘
In
the plea bargaining process a number of parties are involved. They
are, in addition to the immediate parties, namely, the prosecutor
and
the accused, also the complainant and the investigating officer who
are consulted in the process. Where the presiding officer
is of the
opinion that the sentencing agreement is not just, before convicting
the accused, he is obliged to inform the immediate
parties to such
agreement what sentence he regards as just. The purpose of making
such information known is to enable the parties
to make an informed
choice whether to abide by the plea bargaining process or to resile
therefrom. The failure on the part of the
presiding officer to do so,
in my view, constituted non-compliance with the peremptory provisions
of
s 105A(9)
(a)
.’
[11]
Upon perusal of the record, the following is apparent:
(a)
There is no authority furnished to the court confirming authorisation
of the prosecutor concerned to enter into the plea and sentencing
agreement;
(b)
The complainant was not consulted at all.
(c)
The agreement was not confirmed by the accused prior to conviction
and
sentence.
(d)
There is no consideration given as to whether the sentence is just.
[12]
In the premises, taking into account the wording of the CPA as well
as the comments in
Solomon
, I am of the view that the
conviction and sentence is not in accordance with justice.
Order
[13]
In the result, I make the following order:
1.
The conviction and sentence of Sazi Samkelo Ngcobo under Case
No.
G2380/23 of the Pietermaritzburg Magistrate’s Court dated 17
August 2023 is reviewed and set aside.
2.
The matter is remitted to the Magistrate’s Court for hearing
de
novo
before another presiding officer at the discretion of the
Director of Public Prosecutions, KwaZulu-Natal or her delegate.
W
NICHOLSON AJ
I
agree
P
C BEZUIDENHOUT J
[1]
See generally the commentary for
s 112(2)
in S Terblanche
DuToit:
Commentary on the
Criminal Procedure Act
(Revision
Service 70, 31 January 2023) at ch17-p24 onwards.
[2]
See generally the commentary for
s 105A
in S Terblanche
DuToit:
Commentary on the
Criminal Procedure Act
(Revision
Service 70, 31 January 2023) at ch15-p6 onwards.
[3]
S v
Solomons
2005 (2) SACR 432
(C) para 11.