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[2011] ZASCA 146
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Mbuyisa v S (183/11) [2011] ZASCA 146; 2012 (1) SACR 571 (SCA) (26 September 2011)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No: 183/11
In
the matter between:
SIBONGAKONKE LORRAINE MBUYISA
…...................................................
Appellant
and
THE STATE
…..............................................................................................
Respondent
Neutral citation:
Mbuyisa v The State
(183/11)
[2011] ZASCA 146
(26 September 2011)
Coram:
Cloete, Ponnan and Leach JJA
Heard:
26 August 2011
Delivered:
26 September 2011
Summary:
Application for leave to appeal ─
applicant having pleaded guilty but seeking to appeal against both
conviction and sentence
─ no prospects of success on appeal.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
South Gauteng High Court
(Johannesburg) (Lamont J sitting as court of first instance):
The appeal is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LEACH JA (CLOETE and PONNAN JJA concurring)
[1] Arising out of an incident which occurred at
Vosloorus on 22 March 2009 the appellant, a woman in her mid-20s, was
tried in
the regional court on a charge of attempted murder. The
state alleged in its charge sheet that she had attempted to kill the
complainant
by pouring paraffin over him and setting him alight.
Following a plea of guilty, the appellant was convicted as charged
and sentenced
to eight years’ imprisonment, half of which was
conditionally suspended for four years.
[2] The appellant thereafter sought the assistance of a
fresh attorney who, on 10 September 2009, filed an application
seeking leave
to appeal to the high court against both the
appellant’s conviction and sentence. This application was
refused by the regional
court, and a further petition to the judge
president of the South Gauteng High Court under
s 309C(2)(a)
of the
Criminal Procedure Act 51 of 1977
was similarly rejected. Undeterred,
the appellant proceeded to apply to the high court for leave to
appeal to this court against
the refusal of her petition and, on 17
November 2010, was granted such leave, the high court indicating that
it felt it may have
applied an incorrect test in evaluating the
question of her prospects of success.
[3]
Of course, the issue facing the
high court in considering the petition was not whether the
appellant’s appeal ought to succeed
but, simply, whether there
was a reasonable prospect of it doing so. The notion of a reasonable
prospect of success on appeal has
recently received the attention of
this court on a number of occasions and, for present purposes, it
suffices to refer to the presently
unreported judgment
1
in
Smith v S
[2011]
ZASCA 15
para 7 where the following was said:
‘
What the test of reasonable prospects of
success postulates is a dispassionate decision, based on the facts
and the law, that a
court of appeal could reasonably arrive at a
conclusion different to that of the trial court.
2
In order to succeed, therefore, the
appellant must convince this court on proper grounds that he has
prospects of success on appeal
and that those prospects are not
remote but have a realistic chance of succeeding. More is required to
be established than that
there is a mere possibility of success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless.
There must, in other words, be a sound, rational basis
for the conclusion that there are prospects of success on appeal.’
[4] I turn to consider the prospects of success on
appeal. In regard to the conviction, the matter is unusual as the
appellant seeks
to impugn her conviction despite having pleaded
guilty to the charge, having stated in a written plea explanation
under
s 112(2)
of the
Criminal Procedure Act that
she had indeed
attempted to kill the complainant and having confirmed the
correctness of that statement when questioned by the
magistrate.
[5] The attack upon the conviction is twofold. The first
prong of the attack is based on the contents of the appellant’s
written
plea explanation. In the charge put to the appellant it was
alleged that on or about 22 March 2009 at Vosloorus she had
‘wrongfully
and intentionally’ attempted to kill the
complainant ‘by pouring him with paraffin and setting him
alight’. While
the grammar of this averment is atrocious, the
allegations it contains are clear. To this the appellant tendered a
plea of guilty
and her attorney read into the record a written
statement under
s 112(2)
, signed by the appellant, which read as
follows:
‘
I am the accused person in this matter and
I understand the charge preferred against me by this honourable court
to which I plead
guilty. I confirm that I committed the said offence
on the date and place as per annexure to the charge sheet within the
jurisdiction
of this court.
I admit that I did unlawfully and intentionally attempt to kill
the complainant by pouring him with paraffin and lighting him. I
acted without any justification in law. I knew that my actions were
against the law and a punishable offence.
’
(My
emphasis.)
[6] When asked by the magistrate if she confirmed the
correctness of this statement, the appellant replied in the
affirmative and
was duly convicted as charged. However, despite all
of this it was argued on her behalf that there was a reasonable
prospect of
another court setting aside her conviction as her written
plea explanation had amounted to no more than a regurgitation of the
allegations in the charge sheet and was thus lacking in essential
details relevant to the facts underlying the charge. In advancing
this argument, the appellant’s attorney seized upon the
unfortunate phrase ‘pouring him with paraffin’ used in
the charge sheet and repeated in the
s 112(2)
statement as the basis
for his contention that there had been merely a regurgitation of the
facts alleged in the charge which,
in the light of the decisions in
S
v Mshengu
2009 (2) SACR 316
(SCA) and
S v Chetty
2008 (2)
SACR 157
(W) in particular, he submitted was impermissible.
[7] However, while it is no doubt undesirable for
allegations contained in the charge sheet to merely be repeated in a
s 112(2)
statement, there is no inflexible rule that an accused
who uses certain of the phraseology in a charge cannot be
convicted. Each case is to be considered in the light of its peculiar
facts and circumstances. What
s 112(2)
requires is a written
statement in which the accused sets out the facts upon which he or
she admits his guilt. Where these facts
do not cover the essential
elements of the charge ─ for example in
Chetty’s
case
where on a charge of fraud it was not clear whether the person had
been induced to act to his or her prejudice as a result
of the
accused’s admitted representation ─ a conviction should
not follow. Thus in
Mshengu’s
case, in which the
offender’s age was such that he was rebuttably presumed not to
be criminally responsible, it was held
that a simple regurgitation of
the contents of the charge did not establish that he was indeed
capable of forming the necessary
criminal intent.
[8] There are no such difficulties in the present case.
The essential gravamen of the charge was that the appellant had
attempted
to kill the deceased by pouring paraffin over him and then
setting him alight. This she clearly admitted in the emphasised
section
of the statement, even if in doing so she used the same
unfortunate phrase that had been used in the charge sheet. But the
same
import would have been conveyed if, for example, she had said
she had ‘doused’ complainant with paraffin or used some
similar description. She clearly intended to admit that she was
guilty as she had intended to kill the complainant and that she
had
acted unlawfully and without excuse. Not only did her statement cover
the essentials of the charge but it also set out the
essential facts
upon which she admitted her guilt, namely, that she had poured
paraffin over the complainant and set him alight.
It is not without
significance that the appellant was legally represented at the time,
a factor that alleviates the concern expressed
in cases such as
S
v M
1982 (1) SA 240
(N) at 244D-E that an unsophisticated person
may plead guilty without fully comprehending what doing so
encompassed.
[9] I therefore conclude that there is no prospect of
the appellant’s first attack upon her conviction succeeding. In
order
to appreciate the appellant’s second attack, it is
necessary to detail what happened during the sentencing stage of
proceedings
in the trial court.
[10] During the course of their arguments on sentence,
both the appellant’s attorney and the prosecutor made factual
statements
in regard to material background facts. In his address,
the appellant’s attorney said:
‘
Your worship this accused is regretting her
actions. According to her the reason why she assaulted the
complainant in the manner
described in the charge sheet she suspected
that the complainant is the one who stole her items and when this
complainant was questioned
by the accused and the members of the
community everything went out of control your worship, the dominant
factor being anger and
desperation on the part of this accused your
worship. The complainant was then assaulted. He was poured with
paraffin by this accused
(and) set alight by the people who were
there.
Your worship this accused did not act alone, she was part of a group
your worship. The actions by this accused your worship is
regrettable. She is not supposed to take the law into her own hands
your worship. Even though she did open the case afterwards
but she
was not supposed to do what she did. It is a terrible mistake, she
concedes your worship. She is sorry for what she did.’
[11] In the light of the statement that the complainant
had been ‘set alight by the people who were there’ it was
argued
that the magistrate ought to have appreciated that the
appellant may have been incorrectly convicted as she had not set the
complainant
alight and that, as the regional magistrate ought to have
entertained doubt as to her guilt, he should have invoked the
provisions
of
s 113
of the
Criminal Procedure Act and
entered a plea
of not guilty.
[12] In
S v Olivier
2010 (2) SACR 178
(SCA) this court pointed out that
while formalism often takes a back seat during the sentencing stage
of criminal proceedings when
a court is often merely informed of
uncontentious facts such as the accused’s personal
circumstances, different considerations
apply in so far as the nature
and circumstances of the crime are concerned. Majiedt AJA went on to
state:
3
‘
All too often prosecutors adopt a
lackadaisical approach to sentence, permitting ex parte averments to
be made willy-nilly in the
defence’s submissions from the bar,
notwithstanding that it is at variance with the information in the
docket. . . . Quite
often this is attributable to slothfulness on the
part of prosecutors. It is a practice which must be deprecated, since
it does
not serve the interests of the judicial system.’
[13] In the present case, both sides made themselves
guilty of failing to call evidence of the material circumstances
under which
the offence was committed Nevertheless, there appears not
to have been any material dispute between them. In his address the
prosecutor
stated that there were two others who participated in the
assault upon the complainant and confirmed that the appellant had not
set the complainant alight in the complainant’s presence. He
also gave a few further details which the appellant did not
contest.
From this it appears to have been common cause that the complainant
worked for the appellant as a gardener; that on returning
to her home
on the day in question the appellant discovered that it had been
broken into and certain items, in particular a radio,
had been
stolen; that the appellant suspected the complainant as being the
guilty party and, together with other members of the
community, she
went to his home; that the complainant was taken back to the
appellant’s home and confronted with the theft;
that when the
complainant denied being responsible, he was assaulted and dragged to
a nearby place in the veld where the appellant
poured paraffin over
him while other persons poured petrol on the lower half of his body;
and that the complainant was then set
alight, albeit not by the
appellant but by another.
[14] As the appellant was not the person who set the
complainant alight, it was argued that she may not have had the
necessary intention
to kill him but, for example, may have merely
wished to extract a confession from him. In the light of her guilty
plea and the
facts which are common cause, this can safely be
rejected. The appellant was clearly one of a crowd who actively
participated in
dousing the complainant with highly inflammable
fluids in order to set him alight. The fact that the hand of another
struck the
flame that actually did so does not in law exculpate her
as she and the complainant’s other attackers were clearly
acting
with a common purpose. Obviously, for that reason, she pleaded
guilty. If it had not been her intent to kill the complainant, she
would hardly have said that it was. It is not without significance
that at no stage in her petition did the appellant ever offer
any
exculpatory version or seek to distance herself from the contents of
her
s 112(2)
statement.
[15] In my judgment the appellant’s conviction is
unassailable and there is no reasonable prospect of an appeal
succeeding
in that regard. That brings me to the proposed appeal in
respect of her sentence.
[16] The appellant was in her mid twenties at the time.
She was gainfully employed and the single mother of a six year old
child.
It was argued that the regional magistrate erred in not
enquiring into the circumstances of her child and what would happen
to
the child if the appellant was sentenced to imprisonment. It was
also argued that the regional magistrate had misdirected himself
by
not having considered another form of punishment such as correctional
supervision, a compensatory order in favour of the complainant,
or
some other form of restorative justice.
[17] In my view there was no such misdirection. The
advantages of both correctional supervision and orders of restorative
justice
should not be devalued by their use in cases in which such
sentences are inappropriate. The barbarity of the attack upon the
complainant
and the severity of this crime cry out for a salutary
sentence, and although the rehabilitation of an offender is always a
factor
to be borne in mind, the brutal nature of the attack rendered
this one of those cases where punishment tends to become to the fore.
In the particular circumstances of this case, neither correctional
service nor an order of restorative justice would be at all
appropriate. And although I accept that it is important for a court
to pay regard to the interests of the children of a parent
who is to
be sentenced for a crime ─ compare
S v S
(Centre for
Child Law as amicus curiae)
2011 (2) SACR 88
(CC) and
S v M
(Centre for Child Law as amicus curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) –
it is apparent from this constitutional jurisprudence that where a
custodial sentence is called for it should be imposed.
[18] In my judgment, this is one of those cases where a
lengthy period of imprisonment is demanded. To impose any other type
of
sentence in a case of such barbaric violence will tend to bring
the law into disrepute. Indeed, in my view, the magistrate erred
in
imposing too light a sentence, something he himself had come to
realise by the time of the application for leave to appeal when
he
stated that he had erred in suspending half the sentence. Even a
sentence of eight years’ imprisonment was probably inadequate
and, had this case come before this court on appeal rather than by
way of an application for leave to appeal should be granted,
the
appellant would have been in grave danger of having her sentence
increased.
[19] In these circumstances there does not seem to me to
be any reasonable prospect of success on appeal. Indeed these
proceedings
were ill-advised as, if the appellant were to be granted
leave to appeal, she would face the very real prospect of a far
heavier
sentence being imposed. Be that as it may, the high court’s
decision to refuse the appellant’s petition for leave to
appeal
was correct, and the appeal to this court must fail.
[20] The appeal is dismissed.
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: E S Classen
Instructed by:
David H Botha, Du Plessis & Kruger Incorporated
Johannesburg
Symington & De Kok
Bloemfontein
For Respondent: M P D Mothibe
Instructed by:
The Director of Public Prosecutions
South Gauteng High Court
Johannesburg
The Director of Public Prosecutions
Bloemfontein
1
Delivered
on 15 March 2011.
2
S
v Mabena & another
2007 (1) SACR 482
(SCA) para 22.
3
Para
11.