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Director of Public Prosecutions Gauteng Division, Pretoria v Heunis (196/2017) [2017] ZASCA 136; 2017 (2) SACR 603 (SCA) (29 September 2017)

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Criminal Law
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Brief Summary

Criminal Law — Appeal — Conviction of culpable homicide — Appellant appealing against conviction of culpable homicide and sentence imposed by trial court — Respondent charged with murder but found guilty of culpable homicide based on plea explanation — Key issue being the probative value of the respondent's statement made in terms of s 115 of the Criminal Procedure Act — Appeal upheld, conviction of culpable homicide set aside, and respondent found guilty of murder, with the matter remitted for sentencing.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns an appeal by the Director of Public Prosecutions, Gauteng Division, Pretoria against a conviction and sentence imposed by the Circuit Court, Gauteng Division, Pretoria (sitting at Nelspruit). The appeal proceeded on the basis of reserved questions of law under section 319 of the Criminal Procedure Act 51 of 1977 (CPA), with leave granted by the trial court.


The parties were the Director of Public Prosecutions as appellant (representing the prosecution) and Cornelius Johannes Heunis as respondent (the accused in the trial court). The respondent had been charged with murder, the charge being read with section 51(2) of the Criminal Law Amendment Act 105 of 1997. The trial court, however, convicted him of culpable homicide and imposed a sentence of eight years’ imprisonment wholly suspended for five years on conditions.


The dispute before the Supreme Court of Appeal (SCA) concerned the proper evidential treatment and probative value of an accused’s plea explanation made in terms of section 115(2)(a) of the CPA, particularly the weight to be given to exculpatory portions of such a statement when the accused does not testify and the exculpatory version is inconsistent with other accepted evidence.


2. Material Facts


It was common cause (through admissions and the respondent’s plea explanation) that on 4 July 2013 at Nelspruit, the respondent shot the deceased, Michelle Curgenven, and that she died as a result of the gunshot wound. The deceased was shot while seated in the driver’s seat of her vehicle, which was parked in her garage. The deceased’s domestic worker was inside the house and did not hear a shot.


The respondent pleaded not guilty to murder, but he delivered a comprehensive plea explanation under section 115(2)(a) in which he admitted the shooting and death but alleged that the shooting was negligent rather than intentional. The admissions in the plea explanation were formally recorded as admissions under section 220 of the CPA, and the respondent made further admissions under section 220. The respondent was the only person who could explain the immediate circumstances of the shooting and he elected not to testify at trial.


A central factual feature concerned the trajectory of the bullet, addressed by the State’s forensic expert, Captain Christiaan Mangena. His evidence (which was described as unchallenged) was that the bullet entered at the base of the deceased’s left breast and exited below the right shoulder blade, thereafter making a hole in the driver’s door. On Mangena’s analysis, the trajectory indicated that at the moment she was shot, the deceased was facing forward. Critically, Mangena’s evidence was that it was not possible for the deceased to have pushed down the firearm in the manner described by the respondent in his section 115 explanation. This impossibility was conceded in argument before the SCA.


The trial court nevertheless accepted the respondent’s section 115 explanation as the basis for finding culpable homicide, and it rejected the expert evidence without providing reasons. The SCA treated this acceptance of the section 115 version—despite its inconsistency with unchallenged expert evidence—as central to the appeal.


3. Legal Issues


The central legal question was the proper approach to, and weight to be accorded to, the exculpatory portions of a section 115(2)(a) CPA plea explanation when that explanation is not made under oath, is not tested by cross-examination, and is not repeated in evidence, particularly where it is contradicted by other accepted evidence.


Closely connected to that was whether, on the accepted facts and probabilities, the trial court was entitled to convict on culpable homicide solely because the accused asserted negligence in a section 115 statement, or whether the evidence compelled the inference of intention to kill (and thus a conviction of murder) when the exculpatory account was not reasonably possibly true.


The questions raised were primarily questions of law and application of legal principles to established facts, within the constrained framework of an appeal under section 319 of the CPA, which limits the appeal to the questions of law reserved rather than providing a general right of appeal.


4. Court’s Reasoning


The SCA emphasised at the outset that an appeal under section 319 of the CPA is not a general appeal but is confined to the reserved questions of law, referring to authority confirming that limitation. The parties’ argument before the SCA was similarly narrowed to the trial court’s handling of the respondent’s section 115 plea explanation, and specifically the weight given to the exculpatory parts of that statement.


The court restated the established approach to such statements. It relied on authority holding that, while a section 115 statement may be taken into account, the fact that it is unsworn and not tested by cross-examination materially reduces the weight that can be given to those parts favourable to the accused. The court noted that an accused is entitled to have the statement considered, but it must be accepted or rejected depending on the court’s assessment of its cogency, and courts should avoid allowing the section 115 procedure to be abused by attaching value to statements that are purely self-serving.


The SCA further endorsed the principle that exculpatory statements unsupported by credible evidence cannot be accepted for their truth, but may still alert a court to a possible version that must be evaluated against the evidence and the overall probabilities. The decisive point, however, was that the respondent’s crucial exculpatory claim about how the firearm discharged was contradicted by the unchallenged expert trajectory evidence.


Applying these principles, the SCA concluded that the trial court did not apply the correct approach to the section 115 statement. The court considered that Captain Mangena’s unchallenged evidence rendered the respondent’s described mechanism of the shot (the deceased pushing down his hand and the gun going off) incapable of being true. Once that exculpatory feature was rejected as not reasonably possibly true, what remained was the respondent’s admitted act of shooting the deceased without a credible explanation consistent with the objective evidence.


On that evidential footing, the SCA reasoned that the trajectory evidence demonstrated the deceased was facing forward when shot and that no action by her could have caused the firearm to discharge as suggested. In those circumstances, the court held that the only reasonable inference from the proved facts was that the respondent intended to shoot the deceased, which the SCA characterised as direct intention to kill, in the absence of an acceptable alternative explanation.


The SCA addressed the respondent’s election not to testify. While acknowledging that the respondent was exercising a constitutional right under section 35(3)(h) (to remain silent and not testify), the court held that his failure to give evidence could properly be taken into account in evaluating whether the State’s case had been rebutted. The court invoked authority for the proposition that where the State establishes a prima facie case and the accused fails to gainsay it by cogent evidence, and especially where the relevant facts lie peculiarly within the accused’s knowledge, the prima facie proof may become conclusive. On the SCA’s analysis, the strength of the State’s evidence, combined with the respondent’s failure to provide an acceptable sworn explanation, meant the State’s case became conclusive proof of guilt beyond reasonable doubt.


In the result, the SCA held that the trial court erred in deciding the matter solely on the respondent’s section 115 statement and that the respondent should have been convicted of murder rather than culpable homicide.


Having found the conviction to be incorrect, the SCA referred to section 322 of the CPA, which empowers it to set aside an incorrect conviction and substitute the correct conviction. The court substituted the conviction accordingly. On sentence, the SCA exercised its discretion to remit the matter to the trial court for reconsideration in light of the substituted conviction, considering this to be the fair course.


5. Outcome and Relief


The appeal was upheld. The SCA set aside the respondent’s conviction of culpable homicide and the sentence of eight years’ imprisonment wholly suspended for five years, and substituted a conviction of murder.


The matter was remitted to the trial court for reconsideration of sentence in light of the new conviction. The judgment, as provided, did not set out a separate costs order.


Cases Cited


Director of Public Prosecutions, Gauteng v Pistorius (196/2015) [2015] ZASCA 204; 2016 (2) SA 317 (SCA).


R v Valachia & another 1945 AD 826.


S v Cloete 1994 (1) SACR 420 (A).


S v December 1995 (1) SACR 438 (A).


Ex parte The Minister of Justice: In Re R v Jacobson & Levy 1931 AD 466.


S v Boesak [2000] ZASCA 112; 2000 (1) SACR 633 (SCA).


Legislation Cited


Criminal Procedure Act 51 of 1977 (sections 115, 115(2)(a), 220, 319, 322 and 322(3)).


Criminal Law Amendment Act 105 of 1997 (section 51(2)).


Constitution of the Republic of South Africa, 1996 (section 35(3)(h)).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Supreme Court of Appeal held that the trial court misdirected itself by treating the respondent’s section 115(2)(a) plea explanation as determinative, and by convicting of culpable homicide on the basis of the respondent’s asserted negligence despite unchallenged expert evidence showing that the respondent’s exculpatory explanation of how the shot was fired could not be true.


The court held that, once the exculpatory account was rejected as inconsistent with the objective evidence, the remaining proved facts supported only one reasonable inference, namely that the respondent intended to shoot and kill the deceased. The respondent’s failure to testify, in circumstances where the explanation lay within his knowledge, meant the State’s prima facie case became conclusive.


Accordingly, the conviction and sentence were set aside, a conviction of murder was substituted, and the matter was remitted to the trial court for reconsideration of sentence.


LEGAL PRINCIPLES


A plea explanation under section 115 of the Criminal Procedure Act 51 of 1977 is not given under oath and is not tested in cross-examination; this materially diminishes the weight to be attached to portions favourable to the accused, though the statement remains a matter a court may take into account and may accept or reject based on its cogency.


A court should not treat the incriminating portions of a section 115 statement as usable while automatically ignoring the exculpatory portions; rather, the statement as a whole and its separate parts must be evaluated, and courts should refuse to attach value to statements that are purely self-serving or inconsistent with the credible evidence and probabilities.


Exculpatory assertions not supported by credible evidence cannot be accepted as true, but may alert a court to possible explanations that must be evaluated against the evidence and the overall probabilities; where such a possibility is not reasonable on the evidence, it may be rejected.


Where the State establishes a prima facie case and the accused fails to rebut it by any cogent evidence, particularly where the true facts lie within the accused’s knowledge, the prima facie proof may become conclusive, and a court may take the accused’s failure to testify into account when assessing whether the State has proved guilt beyond reasonable doubt.

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[2017] ZASCA 136
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Director of Public Prosecutions Gauteng Division, Pretoria v Heunis (196/2017) [2017] ZASCA 136; 2017 (2) SACR 603 (SCA) (29 September 2017)

THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 196/2017
In the matter between:
DIRECTOR OF
PUBLIC PROSECUTIONS

APPELLANT
GAUTENG
DIVISION, PRETORIA
and
CORNELIUS JOHANNES
HEUNIS

RESPONDENT
Neutral citation:
DPP v Heunis
(196/2017)
[2017] ZASCA 136
(29 September 2017)
Coram:
Bosielo and Seriti JJA and Molemela, Tsoka and
Gorven AJJA
Heard
:
29 August 2017
Delivered:
29 September 2017
Summary:
Criminal Law and Procedure: appeal by NDPP against
conviction in terms of the Criminal Procedure Act 51 of 1977 (CPA):
the respondent
charged with murder read with
s 51(2)
of the
Criminal
Law Amendment Act 105 of 1997
: found guilty of culpable homicide
based on his statement in terms of
s 115
of the CPA: reserved
question of law: probative value of a statement made in terms of
s
115(2)(
a
) of the CPA.
ORDER
On appeal from:
The
Circuit Court, Gauteng Division, Pretoria, sitting at Nelspruit
(Mabuse J sitting as court of first instance):
1
The appeal is upheld.
2
The conviction of culpable homicide and the sentence of 8 years’
imprisonment
wholly suspended for 5 years on suitable conditions as
imposed by the trial court is set aside and replaced with the
following:
‘
The accused is found
guilty of murder’.
3
The matter is remitted to the trial court for the reconsideration of
the sentence in
the light of the new conviction.
JUDGMENT
Bosielo JA
(Seriti JA and Molemela, Tsoka and Gorven AJJA
concurring):
[1]
This is an appeal by the appellant pursuant to the reservation of
questions of law in terms of s 319 of the Criminal Procedure
Act 51
of 1977 (CPA). The appeal is with the leave of the court below.
[2]
A brief factual background to this case is as follows: the respondent
was charged with murder, the state alleging that he unlawfully
and
intentionally killed one Michelle Curgenven (the deceased) by
shooting her with a firearm on 4 July 2013 in Nelspruit. Having

pleaded not guilty to the charge, the respondent tendered a
comprehensive plea explanation in terms of s 115(2)(
a
)
of the CPA wherein he set out the basis of his defence. Essentially,
the respondent admitted that he shot and killed the deceased
but
averred that it was negligent and not intentional. He also gave an
account of how the fatal shooting came about. The admissions

contained in this explanation were formally recorded as admissions in
terms of s 220 of the CPA. In addition, the respondent
made
other formal admissions in terms of s 220 of the CPA.
[3]
The deceased was shot whilst occupying the driver’s seat of her
vehicle which was parked in the garage of her home. Her
domestic
worker was inside the deceased’s house, but did not hear a
shot. The admissions made by the respondent included
that he shot the
deceased once and that she died as a result. The respondent is thus
the only person who could explain how this
took place. He elected not
to testify.
[4]
The crucial evidence for the state for the purposes of this appeal is
that of Captain Christiaan Mangena (Mangena), the police
forensic
expert. The aspect on which this appeal largely revolves related to
his opinion arising from the path of the bullet which
killed the
deceased. The bullet entered at the base of her left breast on her
left side. It exited just below her shoulder blade
on her right side.
It then made a hole in the driver’s door of the vehicle. The
trajectory clearly showed that, at the time
she was shot, she was
facing forward. His unchallenged evidence was that it was not
possible for her to have pushed down the firearm
held by the
respondent in the position described by him in his s 115
statement. This much was conceded in argument before
us.
[5]
In his evaluation of the evidence, the trial judge correctly
characterised the issue in this matter as follows:
‘The
issue between the parties in [t]his matter is whether the accused
shot the deceased as he set it out in his plea explanation
or whether
he had the necessary intention to kill her as set out in the
indictment.’
[6] Having
analysed the state’s version together with the appellant’s
s 115 statement, the trial court found as
follows:
‘
In the
circumstances, the court will not be justified to find the accused
guilty of murder on the facts before it but instead in
accordance
with section 115 of the CPA the accused should be convicted of
culpable homicide as he has pleaded in terms of the said
section and
that is the conviction of the accused in this matter.’
[7]
Based on the above reasoning, the trial court found the appellant
guilty of culpable homicide and not murder. It is clear from
the
reasoning of the trial judge that his conviction of the respondent on
culpable homicide and not murder is based solely on the
respondent’s
s 115 statement. The trial judge rejected the evidence of the
police forensic expert without giving any
reasons. Aggrieved by this
finding, the appellant applied for the reservation of questions of
law in terms of s 319 of the CPA,
which application was duly granted
by the court below. Hence this appeal.
[8] The appellant’s
questions of law that were reserved by the trial court are:
‘1. It is respectfully submitted
that the trial court misdirected itself in finding that the appellant
had a duty to inform
the respondent before plea that, the facts
contained in the plea explanation in terms of section 115 of Act 51
of  1977, was
not sufficient and/or adequate.
2. It is further respectfully submitted
that the trial court erred in expecting of the expert witness, Capt.
Mangena (ballistic
expert) to draw an inference on the guilt of the
respondent, and then to lean heavily on this inference in determining
the guilt
of the appellant.
3. It is also respectfully submitted on
behalf of the appellant that the trial court misdirected itself in
giving too much probative
value to the plea explanation of the
appellant (in terms of section 115 of Act 51 of 1977).
4. It is respectfully submitted that the
trial court misdirected itself in not drawing any inference from the
failure of the appellant
to forward a detailed, factual explanation.
No such factual, detailed explanation was forwarded in
cross-examination, neither did
the appellant testify under oath.
5. It is respectfully submitted that the
trial court misdirected itself in not drawing an adverse inference
from the failure of
the respondent to testify; in the face of strong
circumstantial evidence.
6. It is respectfully submitted that the
trial court misdirected itself in applying the legal principles
pertaining to circumstantial
evidence.’
[9] As
indicated above, this appeal comes before us by way of s 319 of the
CPA which provides as follows:
‘
(1) If any
question of law arises on the trial in a superior court of any person
for any offence, that court may of its own motion
or at the request
either of the prosecutor or the accused reserve that question for the
consideration of the Appellate Division,
and thereupon the
first-mentioned court shall state the question reserved and shall
direct that it be specially entered in the
record and that a copy
thereof be transmitted to the registrar of the Appellate Division.
(2) The grounds upon
which any objection to an indictment is taken shall, for the purposes
of this section, be deemed to be questions
of law.’
[10] As it is clear from
this section, the appellant’s right of appeal is not a general
right but is limited to the questions
of law reserved. See
Director
of Public Prosecutions, Gauteng v Pistorius
[2015] ZASCA 204
;
2016 (2) SA 317
(SCA) para 24.
[11] On appeal before us,
both counsel confined themselves to the approach adopted by the trial
court to the respondent’s
s 115 statement. The vexed
question is what weight to accord to the exculpatory parts of a s 115
plea explanation.
[12] The part of the
respondent’s s 115 statement that is relevant for the
purpose of this appeal reads as follows:
‘24.1
Ek en die oorledene is toe saam na die voertuig waar dit in die
motorhuis geparkeer was.  Sy
het aan die bestuurskant ingeklim
en ek het aan die passasierskant voor langs haar ingeklim en die
skootrekenaarsak met die vuurwapen
op my skoot gehou.
24.2
Ek het die vuurwapen uit die skootrekenaarsak uitgehaal en vir die
oorledene gesȇ dat ek my eie
lewe gaan neem. Die oorledene het
vir my gesȇ om die vuurwapen weg te sit.
24.3
Ek het na haar gedraai en die vuurwapen onder my ken gehou. Ek het my
vinger op die sneller van die
vuurwapen gehad.
24.4
Die oorledene het by my gepleit om dit nie te doen nie. Ek het die
vuurwapen laat sak en vir die oorlede
gevra “maar hoekom nie”?
24.5
Die oorledene het toe my hand waarin die vuurwapen was probeer
afdruk. Op dié stadium het ʼn
skoot afgegaan.’
[13] It is clear from
paragraphs 24.1 to 24.5 of the respondent’s s 115 plea
explanation that he had admitted the following
essential facts: that
he was seated in the front seat of the vehicle; that the deceased was
seated in the driver’s seat whilst
he was seated in the
passenger seat; that he had his loaded firearm in his hand; that the
firearm went off and a bullet hit the
deceased; that the deceased
died as a result of the gunshot; that he acted negligently.
Crucially, the two reports compiled by
Captain Mangena were also
admitted.
[14] It is no exaggeration
to say that the issue of what weight to accord to the exculpatory
aspects of a s 115 plea explanation
tendered by an accused,
which is not repeated in evidence has long engaged our courts and
spawned many judgments.
[15] This Court enunciated
the correct approach in
R v Valachia & another
1945 826
(AD) as follows:
‘Naturally, the fact that the
statement is not made under oath, and is not subject to
cross-examination, detracts very much
from the weight to be given to
those portions of the statement favourable to its author as compared
with the weight which would
be given to them if he had made them
under oath, but he is entitled to have them taken into consideration,
to be accepted or rejected
according to the Court’s view of
their cogency.’
[16] This salutary approach
has since been consistently followed and was recently restated in
S
v Cloete
1994 (1) SACR 420
(A) at 428B-C and E-G where this Court
cited that matter with approval and elaborated on this approach as
follows:
‘. . . I can think of no other
reason why a court should be entitled to have regard to the
incriminating parts of such a statement
while ignoring the
exculpatory ones.’
and
‘It seems to me that . . . the
Legislature has, in s 115, provided a procedure whereby material
can be placed before
the court. It is true that an accused may try to
abuse it, but the court should ensure that such an attempt does not
succeed by
refusing to attach any value to statements which are
purely self-serving, and, generally, by determining what weight to
accord
to the statement as a whole and to its separate parts.’
This approach was further
clarified in
S v December
1995 (1) SACR 438
(A) at 444B-E:
‘Statements contained in a
confession which are not supported by credible evidence can obviously
not be taken for the truth,
especially when they are exculpatory in
nature . . . . But they may serve to alert a court to a possibility
of events or circumstances
not otherwise revealed by the evidence . .
. . And if that possibility is a reasonable one having regard to the
evidence and the
probabilities as a whole the appellant, even if he
repudiates the statement, is entitled to have his conduct and state
of mind
assessed in the light thereof.’
[17] Having considered the
evidence as a whole, including the respondent’s s 115
statement, I am of the view that the
trial court did not apply the
law as set out above. The clear and unchallenged evidence of Captain
Mangena was to the effect that
the crucial part of the respondent’s
statement as to how the shot came to be fired, could not be true.
This left in
place the admitted shooting without any credible
explanation as to how this came about. The clear evidence is that the
respondent
shot the deceased while she was facing forward in the
vehicle and that no action of hers caused the shot to go off. Taking
into
account the trajectory of the bullet, the only reasonable
inference is that the respondent intended to shoot the deceased. This

must, thus, amount to a direct intention to kill, absent any
explanation by the respondent.
[18] To my mind, this
damning evidence called for an answer from the respondent. No answer
came forth from him. Instead, he elected
to rely on his unsworn s 115
statement which, as indicated above, was problematic in its essential
feature.
[19] On a proper
reconsideration of the evidence including the respondent’s
s 115 statement, I am of the view that although
the respondent
was exercising his constitutional rights in terms of s 35(3)(
h
)
‘to remain silent and not to testify during the proceedings’,
his failure to do so must be taken into account against
him. See
Ex
parte The Minister of Justice
:
In
Re
R v
Jacobson & Levy
1931 AD 466
at 478-479 where this Court held:
‘In the absence of further
evidence from the other side, the prima facie proof becomes
conclusive proof and the party giving
it discharges his onus’.
This salutary approach was
confirmed in
S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) where this Court stated that:
‘[46] It is trite law that a court
is entitled to find that the State has proved a fact beyond
reasonable doubt if a
prima facie
case has been established
and the accused fails to gainsay it, not necessarily by his own
evidence, but by any cogent evidence.
‘[47] . . . . Of course, a
prima
facie
inference does not necessarily mean that if no rebuttal is
forthcoming, the
onus
will have been satisfied. But one of the
main and acknowledged instances where it can be said that a
prima
facie
case becomes conclusive in the absence of rebuttal, is
where it lies exclusively within the power of the other party to show
what
the true facts were and he or she fails to give an acceptable
explanation. In the present case the only person who could have come

forward to deny the
prima facie
evidence that he had
authorised, written or signed the letter, is the appellant. His
failure to do so can legitimately be taken
into account.’
[20] Based on
Boesak
(supra) the failure by the respondent to tender evidence under oath
has resulted in the state’s strong evidence becoming
conclusive
proof of his guilt beyond reasonable doubt. It follows that the trial
court erred in deciding the case solely on the
respondent’s
s 115 statement. The respondent should have been convicted of
murder and not culpable homicide.
[21] The question now remains what now? Section 322 of
the CPA allows this Court to set aside the conviction, if incorrect,
and
substitute the correct one. It also gives this Court a discretion
concerning sentence. It follows that the conviction of culpable

homicide must be set aside and replaced with one of murder in terms
of s 322(3) of the CPA.
[22] Regarding sentence, it
is only fair that this matter be remitted to the trial court for a
reconsideration of an appropriate
sentence in the light of the
findings of this Court as set out in this judgment.
[23] In the result, the
following order is made:
1
The appeal is upheld.
2
The conviction of culpable homicide and the sentence of 8 years’
imprisonment
wholy suspended for 5 years on suitable conditions as
imposed by the trial court is set aside and replaced with the
following:
‘
The accused is found
guilty of murder’.
3
The matter is remitted to the trial court for the reconsideration of
the sentence in
the light of the new conviction.
________________________
L O Bosielo
Judge of Appeal
Appearances
For the Appellant:    JJ Kotzè
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions,
Bloemfontein
For the
Respondent:   PF Pistorius
Instructed by:
Coert Jordaan Inc., Nelspruit
Giorgi & Gerber Attorneys, Bloemfontein

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