Mshengu v S (446/08) [2009] ZASCA 65; 2009 (2) SACR 316 (SCA); [2009] 4 All SA 242 (SCA) (29 May 2009)

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[2009] ZASCA 65
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Mshengu v S (446/08) [2009] ZASCA 65; 2009 (2) SACR 316 (SCA); [2009] 4 All SA 242 (SCA) (29 May 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case number: 446/08
In the matter between:
SIPHESIHLE PROTAS
MSHENGU APPELLANT
v
THE STATE
RESPONDENT
Neutral
citation:
Mshengu
v the State
(446/2008)
[2009]
ZASCA 65
(29 May 2009)
Coram:
Jafta,
Ponnan and Mhlantla JJA
Heard: 13 May 2009
Delivered: 29 May
2009
Summary: Plea of
guilty in terms of
s 112
of the
Criminal Procedure Act 51 of 1977
–
the requirements therefor restated.
ORDER
On appeal from:
High Court Petermaritzburg (Natal Provincial Division, (Van Niekerk
AJ and Moleko J concurring)
In the result the
following order is made:
1. The appeal is
allowed and the conviction and sentence are set aside.
JUDGMENT
JAFTA
JA
(Ponnan
and Mhlantla JJA concurring)
[1] On 22 September
2004, the appellant, a 13-year-old, quarrelled with a 14-year-old boy
and stabbed him once in the chest with
a knife. The victim died as a
result of the injury inflicted by the appellant. The next day the
appellant was arraigned before
the regional court on a charge of
murder. He was represented by an attorney at the trial. He pleaded
guilty to murder and a statement
setting out the basis of his plea
was tendered in terms of
s 112
of the
Criminal Procedure Act 51 of
1977
. He was duly convicted on his plea of guilty and sentenced to
eight years’ imprisonment.
[2] He appealed
against the conviction and sentence to the Pietermaritzburg High
Court (Van Niekerk AJ, Moleko J concurring). The
conviction was
challenged on the basis that the statement tendered did not satisfy
the requirements of
s 112(2)
in that it failed to admit that the
appellant was criminally liable for his conduct. Accordingly, it was
argued, that the magistrate
should not have been satisfied that the
appellant was indeed guilty. The sentence was attacked on the ground
that it was excessive.
[3] The appeal
against conviction was dismissed but the sentence imposed by the
trial court was set aside. The matter was remitted
to the trial court
for sentence to be considered afresh. This appeal is with the leave
of the high court.
[4] Two issues arise
in this mater. The first issue is whether, in view of the appellant’s
age, the statement tendered on his
behalf complied with
s 112(2)
of
the Act. If not, whether the matter should be remitted to the trial
court following the setting aside of the conviction.
[5] Before the Act
was enacted the prosecution was required to lead evidence in all
trials, including cases where the accused had
pleaded guilty.
1
Section 112
of the Act introduced a different procedure that
dispensed with the leading of evidence where a plea of guilty is
tendered.
2
However, Parliament sought to protect accused persons against the
consequences of convictions based on incorrect pleas of guilty
by
including in the section two safeguards designed to determine whether
a plea of guilty was properly tendered.
3
The primary purpose of the written statement in terms of
s 112(2)
is
to set out the admissions of the accused and the factual basis
supporting his or her guilty plea.
[6]
Section 112
provides:
‘
(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 [R1500], 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.
(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.’
[7]
Section 112(2)
requires that the statement must set out the facts which he admits
and on which he has pleaded guilty. Legal conclusions will not

suffice. The presiding officer can only convict if he or she is
satisfied that the accused is indeed guilty of the offence to which
a
guilty plea has been tendered. If not, the provisions of
s 113
must
be invoked.
[8] The statement
tendered by the appellant in this mater must be examined against the
above backdrop. It reads:
‘
2. The charge has
been explained to me and I understand the charge that is being
brought against me. I was not forced or influenced
by any person to
plead guilty. I am making this statement freely and voluntarily in
front of my mother Ester Mshengu. My explanation
is as follows:
3. I admit that I
killed Nkosikhona Ngobese, a 14 year old male person, on the 22
nd
day of September 2004 at and or near Idube Road near House No 324
Mpophomeni in the regional division of Kwa-Zulu Natal. On the
day in
question I had an argument with the deceased. As a result of the
argument I then took out the knife from the motor vehicle,
went
straight to him and stabbed him once in the chest. The deceased fell
on the ground and at that stage he was bleeding. The
deceased died as
a result of the wound and bleeding. I then ran away. Few minutes
later I was apprehended by members of the community
who called the
police. I was then arrested and charged with murder.
4. I admit that my
actions in stabbing the deceased with a knife resulted in the
deceased’s death. Further to the above I admit
that my actions were
unlawful and intentional.
5. I admit that my
actions at the time of the commission of the offence were unlawful
and intentional and that I intended to cause
the death of the
deceased.’
[9] The above
statement does not admit the charge in all of its ramifications.
Section 112
requires as much. It amounts instead to a simple
regurgitation of what must have been the content of the charge sheet.
The accused
in this particular instance is rebuttably presumed to be
criminally non-responsible. The burden of rebutting this presumption
rests
on the prosecution. An important step in the proceedings was to
ascertain whether his development was sufficient to rebut the
presumption.
That plainly did not occur. The prosecution would
obviously have been relieved of that obligation had an appropriate
admission
been made by the accused. That likewise did not occur. No
evidence capable of rebutting that presumption had been placed before

the magistrate. When regard is had to the record in its entirety, it
is obvious that none who were involved in the trial were
alive to the
presumption of criminal non-responsibility, that was in operation in
respect of this child.
[10] What was said
in the statement was too terse and open to the construction that,
with the benefit of hindsight and the experience
of finding himself
in a courtroom, he knew that he had done wrong. The statement told
the magistrate nothing about his state of
mind at the time of the
stabbing or of his level of perception then. Nor, if he was mature
enough to answer for his behaviour.
For, as it was put by Didcott J
in
S
v M
1982
(1) SA 240
(N) at 242 D-E:
‘
Accused persons
sometimes plead guilty to charges, experience shows, without
understanding fully what these encompass. The danger
of 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.
[11] Before us
counsel for the state conceded that standing on its own the statement
was deficient in this important respect. He
did suggest that any such
deficiency was cured by the fact that the child had legal
representation. I cannot agree. On the facts
of this case, there
appears to be no outward manifestation that counsel appreciated that
this issue was a live one. One can hardly
therefore take any comfort
from that.
[12] It follows that
the conviction cannot stand and must be set aside.
[13] The next issue
that calls for consideration is whether the course suggested in
s 312
of the Act should be followed in this case. If a conviction is set
aside solely on the basis that
s 112
was not complied with the
section requires that the matter be remitted to the trial court for
it to comply with or act in terms
of
s 113.
Section 312(1)
provides:
‘
(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.’
[14] In the past the
language of the section has been construed to mean that its
provisions were peremptory.
4
In
S
v Arendse and Another
5
the Cape High Court held that
s 312
was peremptory but declined to
remit the case because, in its opinion, it was clear that the
remittal would serve no purpose. The
court said:
6
‘
It seems to me
that, notwithstanding the provisions of
s 312
(1), that section does
not compel this Court to commit a fatuity. The Act cannot intend that
this Court must remit, in a case where
all are
ad
idem
,
ie the State is ad idem and the Court agrees with the State and that
is also the attitude of the appellants’ representative
that no
conviction can accrue in this case. It seems to me that in those
circumstances no Court is even compelled to follow a course
and give
an order that certain proceedings must now take place which are
pointless, can have no purpose and can have no outcome,
other than
the acquittal of the accused.’
[15] The question
that arises is whether the language of the section is indeed
peremptory. The construction that favours the view
that it is
peremptory is influenced by the use of the word ‘shall’ in the
section. The word does not, by itself, conclusively
determine that a
provision is peremptory. The courts have found it impossible to lay
down a conclusive test.
7
A court called upon to determine whether a particular provision is
peremptory or directory must construe the language of the concerned

provision in the context, scope and object of the Act of which it
forms part.
8
Thus in
Maharaj
and Others v Rampersad
9
this court rejected the argument that ‘shall’ in the context of
the enactment it was concerned with indicated that the provision
was
mandatory. The court said:
10
‘
[Appellant’s
counsel] pointed out that the regulation used the word “shall” –
translated in the Afrikaans version by the
word “moet” – in
relation to the requirement of attaching to the application a plan or
map tracing and, on the authority
of such decisions as
Messenger
of the Magistrate’s Court, Durban v Pillay
1952 (3) SA 678
(A), and
Feinberg
v Pietermaritzburg Liquor Licensing Board
1953 (4) SA 415
(A) at p 419, he contended that this was a “strong
indication” that the requirement was peremptory. In the former of
the two
cases referred to immediately above Van den Heever
JA described the word “moet” in Kantian terms as embodying the

“categorical imperative”. It would be a work of supererogation to
refer to the long list of examples in our reported case-law
where
that word, in the light of considerations pointing to another
conclusion, has had to surrender this resounding accolade and
been
reduced to the status of a mere directory verb.’
[16] In addition to
statutory context, the section must be construed consistently with
the Constitution and if possible it must
be given a construction
which will not be inconsistent with an accused’s fair trial rights.
Section 39(2) of the Constitution
obliges every court to promote the
spirit, purport and objects of the Bill of Rights when interpreting
legislation. In
Fraser
v ABSA Bank Ltd
(National Director of Public Prosecutions as Amicus Curiae) the
Constitutional Court said:
11
‘
The question
raised by this application is whether the Supreme
Court of
Appeal’s interpretation of s 26 [of the Prevention of Organised
Crime Act] has failed to promote the spirit, purport
and objects of
the Bill of Rights in terms of s 39(2). …Section 39(2) requires
more from a Court than to avoid an interpretation
that conflicts with
the Bill of Rights. It demands the promotion of the spirit, purport
and objects of the Bill of Rights. These
are to be found in the
matrix and totality of rights and values embodied in the Bill of
Rights. It could also in appropriate cases
be found in the protection
of specific rights, like the rights to a fair trial in s 35(3), which
is fundamental to any system of
criminal justice, and of which the
rights to legal representation and against unreasonable delays are
components. The spirit, purport
and objects of the protection of the
right to a fair trial therefore have to be considered.’
[17] The purpose of
s 312 is to prevent an injustice which may occur if an accused person
were to escape punishment for his or her
crime only because his or
her conviction was set aside on the ground that there was a failure
to comply with s 112 of the Act.
But an injustice cannot occur where
the accused has served the entire sentence by the time the conviction
is set aside on appeal.
Nor can it occur where a fresh conviction
cannot be achieved following a remittal to the trial court. To
construe s 312(1) in the
manner that renders its provisions
peremptory may result in an injustice or even an infringement of an
accused person’s right
to a fair trial. There can be no
justification for ordering that an accused person, who has already
served the entire punishment,
be subjected to a second trial. Such an
order would be inconsistent with the right to a fair trial. In my
view it could never have
been the intention of the legislature that a
court is obliged to comply with the section irrespective of the
injustice or unfairness
that it may cause. I therefore conclude that
s 312(1) is not peremptory.
[18] The course
prescribed by the section must, however, be followed unless the court
on review or appeal is of the view that it
would lead to an injustice
or would be a futile exercise. The court retains the discretion not
to order a remittal if the circumstances
of the case are such that
the remittal will be inappropriate.
[19] In this matter
the appellant had served more than two years of the original sentence
imposed by the trial court when he appeared
before it for
re-sentencing. Having had regard to a probation officer’s report
and the time spent by the appellant in detention,
the trial court
imposed a sentence of three years’ imprisonment wholly suspended
for five years on certain conditions. There
has already been a
remittal of the matter to the trial court which considered it
appropriate to impose a non-custodial sentence.
In these
circumstances it would be unfair, in my view, to order a remittal of
the case once more.
[20] In the result
the appeal is allowed and the conviction and sentence are set aside.
________________________
C N JAFTA
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: A M
Skelton (Ms)
Instructed by
Mastross
Incorporated
Pietermaritzburg
Honey Attorneys
Bloemfontein
FOR RESPONDENT: S
Sankar
Instructed by
The Director of
Public Prosecutions
Pietermaritzburg
The Director of
Public Prosecutions
Bloemfontein
1
R v Nathanson
1959 (3) SA 124
(A) and
S v Roux
1975 (3) SA 190
(A).
2
The relevant part of the section is quoted below.
3
S v Naidoo
1989
(2) 114 (A).
4
S v Khupiso; S v Africa
1979 (2) SA 605
(O).
5
1985 (2) SA 103
(C) at 108F.
6
Ibid p 107J-108F.
7
Leibbrandt v South African Railways
1941 AD 9.
8
Charlestown Town Board v Vilakazi
1951 (3) SA 361
(A).
9
1964 (4) 638 (A).
10
Ibid p 643G-644B.
11
[2006] ZACC 24
;
2007 (3) SA 484
(CC) para 47.