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[2019] ZAKZPHC 70
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S v Gumede and Others (DR21-DR 27/2019; AR133-AR139/2019; 23/16418/2018; 23/16416/2018; 23/18980/2018; 23/18920/2018; 23/20327/2018; 23/21990/2018; 23/984/2019; 47/2018; 45/2018;49/2018; 50/2018; 51/2018; 01/2019; 02/2019) [2019] ZAKZPHC 70; 2020 (1) SACR 644 (KZP) (1 November 2019)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION: PIETERMARITZBURG
SPECIAL REVIEW CASE NOs: DR21 to
DR 27/2019
APPEALS OFFICE CASE NOs:
AR133/2019 to AR 139/2019
MAGISTRATE’S
CASE Nos: 23/16418/2018; 23/16416/2018;
23/18980/2018; 23/18920/2018;
23/20327/2018;
23/21990/2018; 23/984/2019
MAGISTRATE’S SERIAL REVIEW NOs:
47/2018; 45/2018;
49/2018; 50/2018; 51/2018; 01/2019 &
02/2019
In
the matter between:
THE
STATE
versus
MPUMELELO
GUMEDE
and
SIX OTHER CASES
JUDGMENT
Delivered
: 1 November, 2019
OLSEN
J (VAHED and MASIPA JJ concurring)
[1]
Seven shoplifting cases have come before us on special review at the
request of the
Acting Senior Magistrate, Durban, Mr B S E Khumalo.
Both the memorandum from the senior magistrate and the commentary on
it by the additional magistrate who presided in the seven cases, Ms J
C Jonck, are helpful pieces of work. It is appropriate that
at the
outset I express our gratitude for the benefit of these inputs.
[2]
In each of the seven cases the accused was represented by legal aid
counsel, and was
convicted on a plea of guilty accepted by the
prosecutor. The learned presiding magistrate dealt with each of
the cases in
terms of the provisions of
s112(1)(a)
of the
Criminal
Procedure Act, 1977
. The essence of the issue raised by the
senior magistrate in each of the cases is the question as to whether
the acceptance
of the plea under
s 112(1)(a)
of the Act was in
accordance with justice.
[3]
It is as well at the outset to list the essential features of the
seven cases sent
on review. I identify each case, the item
stolen, its value, and the sentence imposed.
(a)
S
v Mpumeleo Gumede - case number 23/16418/2018;
Pack of pampers; R269.99;
R600 or 30 days’ imprisonment of
which R400 or 20 days’ imprisonment were suspended.
(b)
S
v Mfundo Mbanjwa – case number 23/16416/2018;
2 Ladies sandals; R239.98;
R600 or 30 days’ imprisonment of
which R400 or 20 days’ imprisonment were suspended.
(c)
S
v Mthobisi Mbanjwa – case number 23/18980/2018;
1 pair of black shoes; R119;
R100 or detention until the rising of
the court.
(d)
S v Sibusiso Mbili – case
number 23/18920/2018;
5 Chocolate slabs; R129.95;
R100 or detention until the rising of
the court.
(e)
S
v Bongekha Mkhungo – case number 23/20327/2018;
1 “Mr Price On Cerise”
[
sic
]; R129.99;
R200 or 10 days’ imprisonment.
(f)
S v Sthembiso Majozi –
case number 23/21990/2018;
1 Slab of chocolate; R24.95;
R100 or 5 days’ imprisonment.
(g)
S v David Reddy – case
number 23/984/2019;
3 People’s Magazine; R69.00;
R100 or detention until the rising of
the court.
[4]
Section 112(1)
of the Act provides alternative procedures for dealing
with a plea of guilty at a summary trial when that plea is not
accompanied
by a written statement by the accused referred to in
s
112(2).
Section 112(1)(a)
involves a conviction without the
accused being questioned by the magistrate.
Section 112(1)(b)
involves the magistrate questioning the accused with reference to the
facts of the case in order to be satisfied that the accused
is indeed
guilty of the offence in question.
Section 112(1)
reads as
follows.
‘
112.
Plea
of guilty
(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)
the
presiding judge, regional magistrate or magistrate may, if he or she
is of the opinion that the offence does not merit punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the
Minister
from time to time by notice in the
Gazette
,
convict the accused in respect of the offence to which he or she has
pleaded guilty on his or her plea of guilty only and-
(i)
impose
any competent sentence, other than imprisonment or any
other
form of detention without the option of a fine exceeding the amount
determined by the Minister from time to time by notice
in the
Gazette; or
(ii)
deal with the accused otherwise in accordance with law;
(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 the amount determined by the
Minister
from time to time by notice in the
Gazette
,
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.’
[5]
When the conditions for the application of
s 112(1)(a)
are satisfied
the use of the procedure is discretionary. (The court “may”
convict on the plea alone.) When the
conditions for the
application of
s 112(1)(b)
arise, it is obligatory (subject only to
s
112(2))
to follow that section. (The court “shall”
question the accused.) On the language of the section, the
issue as
to whether
s 112(1)(a)
may be employed in preference to
s
112(1)(b)
turns on the opinion of the magistrate as to whether the
offence merits punishment of imprisonment (or any other form of
detention)
without the option of a fine, or a fine exceeding the
amount determined by the Minister from time to time. (The
amount determined
by the Minister is currently R5000.) Subject
to one important exception, a negative opinion permits the magistrate
to convict
the accused without questioning him or her. The
exception arises from
s 112(1)(b)
, which requires the magistrate to
question the accused if the prosecution requests that it be done.
[6]
Section 112(1)(b)
says nothing about the circumstances in which the
prosecutor may request the court to question the accused instead of
convicting
him or her on a plea of guilty alone. Clearly, if
the prosecutor is of the view that the conviction may justify a
sentence
which puts the matter outside the provisions of
s 112(1)(a)
,
he or she would request the magistrate to question the accused under
s 112(1)(b).
Such a request may be based not merely on the
facts of the case, but perhaps more frequently on the accused’s
record
of previous convictions to which the magistrate would not have
access at that stage of the proceedings. It might also be the
case that a prosecutor makes a request that the accused be questioned
because the contents of the docket generate a concern on
the part of
the prosecutor that perhaps the accused’s plea of guilty is not
justified.
[7]
As already mentioned, in all of the cases before us the accused was
represented, tendered
a plea of guilty, and was convicted without
being questioned by the presiding magistrate. The senior
magistrate has referred
these cases to us on special review out of a
concern that the convictions were not in accordance with justice.
The following
are the reasons he has stated for his concern in each
case.
(a)
Section 112(1)(a)
of the
Criminal Procedure Act was
enacted to deal with trivial offences.
(b)
Theft
is not a trivial offence. A conviction of theft carries a
stigma of being deceitful, and may result in it being difficult
if
not impossible for the convicted person to secure employment.
(c)
Decisions
in the Free State and Western Cape Divisions of the High Court are to
the effect that
s 112(1)(a)
ought not to be invoked in cases of
shoplifting, regardless of the value of the stolen items.
(d)
Instead
the magistrate must be satisfied that the accused has made an
informed decision to plead guilty, being aware of the implications
of
carrying a previous conviction for theft; that in fact all the
allegations in the charge are admitted; and that the plea of
guilty
is made freely and voluntarily.
(e)
These
considerations arise also when the accused is represented. It
is “the duty of the court to always be alert and
guard against
[the risk of convicting an innocent person] even though the accused
might be legally represented because of the likelihood
of undue
influence or promises made to plead guilty, professional incompetency
and lack of experience among the legal representatives
which deprives
the accused of a proper, effective, adequate legal representation and
a fair hearing.”
[8]
The senior magistrate concludes by suggesting that:
(a)
in
the case of unrepresented accused (i.e. not the matters before us)
the magistrate must proceed under
s 112(1)(b)
by questioning the
accused; and
(b)
in
the case of a represented accused, the magistrate should insist upon
the provision of a written statement in terms of
s 112(2)
of the Act.
(The
provision of a written statement would not necessarily meet all of
the concerns expressed by the senior magistrate. It strikes
me that
questioning is the alternative also in the case of represented
accused.)
[9]
The response of the presiding magistrate may be summarised as
follows.
(a)
The
present cases concern only represented accused. She always
questions an unrepresented accused in terms of
s 112(1)(b)
before
convicting.
(b)
The
authorities to which the senior magistrate referred all concerned
unrepresented accused persons.
(c)
Whilst
it is uncontentious that a previous conviction for theft is a serious
matter, that does not put shoplifting cases outside
the ambit of
s
112(1)(a).
(d)
It
is for the legal practitioner representing the accused to canvas the
evidence of the offence with the accused, to ensure that
a proposed
plea of guilty is to be made freely and voluntarily, and without
undue influence. The magistrate would “be
treading on
dangerous ground” by proceeding on the assumption that legal
practitioners are failing to do their job, or are
not acting in good
faith and with due regard to the interests of justice, merely because
a written statement in terms of
s 112(2)
is not produced.
(e)
Prosecutors
are trained professionals. They may be relied upon not to allow
matters to proceed under
s 112(1)(a)
when that is not appropriate.
[10]
In dealing with this matter we have had the benefit of argument from
each of the Society of Advocates
of KwaZulu-Natal, the office of the
Director of Public Prosecutions and Legal Aid South Africa.
These submissions have proved
invaluable. We express our
gratitude for this assistance.
THE
VALUE OF LEGAL REPRESENTATION
[11]
The senior magistrate discounts the influence of legal representation
on the choice of procedure.
Although the senior magistrate
describes his concerns as aimed at “risks”, the assumed
risks are in my view quite startling.
What the senior
magistrate proposes is that the procedure should be adjusted to avoid
what he describes as the “likelihood”
of undue influence
being brought to bear on an accused person, or of promises being made
to him or her as to the outcome of a plea
of guilty. Similarly,
according to the senior magistrate, procedural decisions must be
directed at avoiding the consequences
of professional incompetency or
lack of experience on the part of legal representatives.
[12]
None of the references to legal representation in s 35 of the
Constitution is expressly qualified
by the use of the term
“competent”. “Competence” has to do
with being adequately qualified to perform
the task at hand. It
would not be suggested that the Constitution contemplates legal
representation by someone not adequately
qualified to represent an
accused person. The Constitution assumes:
(a)
the continuation of a
legislative scheme for the education, training and certification of
persons as legal representatives; and
(b)
the competence of persons who
thus achieve the status of legal representative.
[13]
Legal representatives are officers of the court. Judicial
officers “act on the assumption that
a duly admitted lawyer is
competent”. (
S v Halgryn
2002 (2) SACR 211
(SCA)
para 12.) Whilst the assumption of competency may prove to be
erroneous in any particular case, it is nevertheless
the assumption
upon which courts can and must act unless and until adequate reason
not to do so emerges. The contrary assumption
espoused in the
present context by the senior magistrate simply undermines how courts
work.
[14]
As to the consequences beyond the criminal justice system of a
conviction of theft, whilst they
may well form the subject of advice
given by a legal representative to the client, they are not matters
which affect the adjudication
of the guilt or innocence of the
accused. It is not a concern of the magistrate as to what has passed
between an accused person
and his or her legal representative on the
subject of the implications of a conviction for theft. As to
the requirements
to be satisfied for a conviction on such a charge,
the assumption of competence on the part of a legal representative
surely extends
far enough to encompass an ability to convey to the
client what the requirements for guilt are, to test the instructions
given
by the client against those requirements, and to advise the
client accordingly as to:
(a)
his or her guilt or innocence;
and
(b)
his or her right to a trial in
which the State may fail to prove what the client confesses, in
privileged communications, to be
the truth.
THE
REAL ISSUE: AN ERRONEOUS CONVICTION ON A PLEA OF GUILTY
[15]
Counsel for the Director of Public Prosecutions has referred us to
para 11 of the judgment in
S v Dzukuda & Others; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) for a perspective on the concept of a fair
trial.
‘
At
the heart of the right to a fair criminal trial and what infuses its
purpose, is for justice to be done and also to be seen to
be done.
But the concept of justice itself is a broad and protean concept.
In considering what, for purposes of this
case, lies at the heart of
a fair trial in the field of criminal justice, one should bear in
mind that dignity, freedom and equality
are the foundational values
of our Constitution. An important aim of the right to a fair
criminal trial is to ensure adequately
that innocent people are not
wrongly convicted, because of the adverse effects which a wrong
conviction has on the liberty, and
dignity (and possibly other)
interests of the accused.’ (Footnote omitted.)
The
learned Judge in
Dzukuda
went on to point out that there are
other elements of a fair trial, such as the presumption of innocence,
which cannot be explained
“exclusively on the basis of
averting a wrong conviction”.
[16]
Our current
Criminal Procedure Act, that
of 1977, introduced a new
system regulating the plea stage of criminal proceedings.
Nevertheless, as has been pointed out
in particular by counsel for
the Society of Advocates, there is an historical perspective to be
gained on the issue before us which
can be of some assistance.
The
Position Prior to 1977
[17]
The earliest ancestor in this line was a proviso to s 286 of the
Criminal Procedure and Evidence
Act, 1917, as it read before its
amendment in 1935. The proviso was to the effect that in an
inferior court:
‘
if
no offence is charged other than a contravention of a statutory
regulation or by-law, or drunkenness, a plea of guilty by the
accused
to the charge shall be sufficient to enable the court to convict him
of such offence’.
The
proviso also permitted the court in its discretion to hear evidence
at the sentencing stage.
[18]
That section of the 1917 Act was amended by s 5 of the General Law
Amendment Act 46 of 1935.
The new section was to the effect that
where a plea of guilty is tendered and accepted, an inferior court
could convict the accused
on a plea of guilty upon proof (other than
the unconfirmed evidence of the accused) that the offence was
actually committed: but
the section was subject to a proviso
allowing the magistrate to convict on a plea of guilty alone (ie
unsupported by any
other evidence) if the magistrate was of the
opinion that the offence “does not merit punishment of
imprisonment without
the option of a fine or of whipping, or of a
fine exceeding
fifteen
pounds
”
. In
the event of a conviction under the proviso the sentence had to be
one other than imprisonment or any other form of detention
without
the option of a fine, or of whipping or of a fine exceeding fifteen
pounds.
[19]
The 1935 amendment to the 1917
Criminal Procedure Act no longer
spoke
of statutory regulations or by-laws (or drunkenness), but in its
terms left it open for the employment of the section on
the basis
only of an assessment of what punishment the charge would merit.
[20]
In
Rex v Punt
1936 CPD 264
at 265 Centlivres, J held that, in
the light of the fact that the previous provision had dealt with what
he called “trivial
offences”, it was reasonable to assume
that in the section as amended in 1935 the “Legislature was
also dealing with
offences for which in its opinion the punishment
meted out should be trifling”. Perhaps because it was
unnecessary in that
case, the learned Judge made no comment on the
fact that the amended section said nothing about the types of
offences covered by
it other than the fact that they did not merit
punishment in excess of what the section provided.
[21]
The amended section received the attention of a full court of the
Eastern Cape in
Rex v Vabaza
1948 (2) SA 451
(E). In
that case the accused was convicted of two counts of theft on a plea
of guilty where the prosecution tendered no
evidence as to the
commission of the offence. The sentences imposed were in excess of
the maximum stipulated in the proviso to
s 286 of the Criminal
Procedure Act, 1917. The judgments of Pittman JP and Hoexter J
held that the convictions had to be
set aside. Gardiner J dealt
with the issue rather more expansively. He said that it was
clear that in enacting s 286(1)(b),
and particularly its proviso, the
legislature provided a method of disposing of petty cases
expeditiously. He continued as
follows at 455.
‘
Decisions
interpreting the section abound in our law reports. I mention a
few:
Rex
v Punt
(1936 CPD 264)
;
Rex
v Jobe
(1939, EDL 9)
;
Rex
v Langeveld
(1943
CPD 170)
;
Rex
v Disapela
(1946 OPD 383)
;
Rex
v Rakgoale
(1947
(4) SALR 636
at page 638).
In
these cases it is stated that the section should be applied to
“trivial offences” or “cases of trifling
importance”;
and where “the punishment to be meted out
should be trifling”. These tests are simple in theory;
but at times,
difficult to apply. In
Rex
v Punt
the examples given were contraventions of a statutory regulation or
by-law and drunkenness.”
The
learned Judge continued (at 455-456) to deal with trivial incidents
of crimes such as theft and assault, concluding that, whilst
he could
not say that all common law offences could be excluded from the
proviso to the section, he thought that as a rule they
should be.
His conclusion (at 456-457) was that the section should be restricted
to trivial offences such as contraventions
of statutory offences,
regulations and by-laws in which the maximum punishment is the fine
of
£15
then referred to in s 286(1)(b) of the
Criminal Procedure Act, 1917; and that as a rule, the section should
not be applied to common
law offences where the magistrate’s
jurisdiction extends to six months imprisonment with hard labour or a
fine of
£50
.
It seems fair to say that the learned Judge favoured a marriage of s
286 of the 1917 Act before it was amended, and the
version introduced
by its amendment in 1935.
[22]
The provision was approached differently by a full bench of the Cape
Provincial Division in
R v Mpisa
1954 (3) SA 813
(C).
The following appears in the judgment of Van Wyk AJ at 814-815.
‘
Section
286(1)(b) merely provides that if the court is of the opinion that
the offence does not merit punishment of imprisonment
without the
option of a fine or of whipping or of a fine exceeding £15, it
may, if the prosecutor tenders no evidence, convict
the accused upon
his plea of guilty without other proof of the commission of the
offence. The said section does not refer
to “trifling
offences” and this expression in the judgments referred to must
be interpreted with due regard to the
actual wording of the said
proviso, and as already indicated the proviso merely refers to the
punishment which the court imposes
and not to any disqualifications
or hardships which the accused may suffer as a result of such
punishment. I agree that disqualifications
or hardships which
may follow from punishment should be taken into consideration in
determining the punishment, but this can only
result in a lesser
punishment being imposed, and may well be a reason in a particular
case for a magistrate to consider that a
relatively serious offence
does not merit a heavy sentence.’
[23]
Concerning an argument that s 286(1)(b) could not be employed where
the law permits a greater
sentence to be imposed for the offence
described in the charge sheet, the court in
Mpisa
approved
what was stated by Murray AJP in
R v Windt
1954 (1) SA 100
at
page 102F-G.
‘
No
case, however, binding upon this court was cited to us laying down as
an absolute bar to the invocation of the proviso that the
offence is
either a common law one, or a statutory one providing a maximum fine
of over £15. And, it does not appear
to be necessary, on
general principles, that such a bar should exist. In both instances,
it may well be that the particulars of
the charge-sheet show the
common law offence (e.g. an assault) or the breach of a bye-law,
statute or statutory regulation to have
been so trivial that the
magistrate would have every justification in forming the opinion that
the punishment he would impose would
be within the limits defined by
the proviso.’
[24]
Section 286 of the Criminal Procedure Act, 1917, became s 258 of the
Criminal Procedure Act,
1955. In that guise the section and its
proviso was considered (per Miller J) by a full bench of this
division in
S v Mia
1962 (2) SA 718
(N) where at page 719 the
learned Judge said the following.
‘
It
is true that s 258(1)(b) ought not to be invoked, as a general rule,
in a case of theft or in any common law offence which is
not trivial,
but there is no justification for holding that it is never to be
invoked in a case of theft. Sec. 258 (1) (b)
does not in terms
limit its applicability to minor statutory contraventions nor do any
of the decisions, so far as I am aware,
lay it down as a rigid rule
of practice that that section is never to be invoked in a case of a
common law offence. In enacting
sec. 258 (1) (b) the
Legislature clearly had in mind trivial and petty offences and was
concerned to enable such offences, whatever
they might be, to be
dealt with swiftly and expeditiously.’
[25]
Section 258(1) of the Criminal Procedure Act, 1955 was finally
considered by the Appellate Division
in
S v Cook
1977 (1) SA
653
(A) where the following appears at page 658. (I quote the
relevant portion of the English headnote which appears to me to
be an
accurate translation of the Afrikaans text.)
‘
If
the plea of guilty is accepted by the prosecutor and he adduces no
evidence in connection with the commission of the offence,
it is the
duty of the magistrate to decide whether the offence is of such a
trivial nature that it meets the requirement of the
proviso in s
258(1)(b) and, if he is of the opinion that it does meet the
requirement, he should convict the accused.’
The
court observed that it is important that the magistrate is made aware
of the particulars of the charge before the accused pleads,
and that
the prosecutor is empowered to disclose particulars of the offence to
the magistrate and the accused in open court (albeit
informally, as
contemplated in
R v Malgas
1937 TPD 119)
before the accused is
asked to plead.
[26]
It appears to me to be clear that by the time the present Criminal
Procedure Act was introduced
in 1977 the position in our law was that
an accused person could be convicted by a magistrate on a plea of
guilty alone if the
magistrate formed the opinion that the offence
did not warrant the imposition of a sentence in excess of that
stipulated in the
applicable section. Common law offences were
not beyond the reach of the provision which permitted the magistrate
to convict
in those circumstances.
THE
1977 ACT
[27]
The benefit of guidance from judgments concerning the earlier
Criminal Procedure Acts has emerged
in some judgments on the subject
of s 112(1)(a) of the Criminal Procedure Act, 1977. ( See, for
instance,
S v Mkhafu
1978 (1) SA 665
(O) and
S v Aniseb and
Another
1991 (2) SACR 413
(Nm).) The provisions in question
had and have the obvious aim of advancing the cause of efficiency in
our courts, especially
the magistrates’ courts. Both the
present and past regimes offer and offered the waiver of a
requirement which would
ordinarily need to be fulfilled in order to
convict on a plea of guilty. It appears that the principal
efficiency advantage,
in both the present and previous regimes, is
the saving of court time.
[28]
Under the
Criminal Procedure Act, 1977
the time saved is the time
that it would take the magistrate to question the accused about the
alleged facts of the case in order
to ascertain whether the accused
is actually guilty of the offence to which a plea of guilty has been
tendered. In most but
not necessarily all cases the time taken
in this exercise is not likely to be long. If such an enquiry
reveals that in fact
a plea of not guilty should be entered, no time
has been wasted at all, given that its employment has avoided unjust
proceedings
and perhaps an unjust conviction.
[29]
Under the previous regimes (ie from 1935 onwards) what was waived was
the duty of the prosecution
to prove that the offence was actually
committed. The implications of this, from the point of view of
saving of court time,
delay in finalisation of the proceedings and
the application of prosecutorial effort and resources, was
considerably in excess,
at least potentially, of what is offered by
s
112(1)(a)
of the
Criminal Procedure Act, 1977
. The following
passage from the judgment of Schreiner JA in
R v Nathanson
1959 (3) SA 124
(A) at 126D-127A illustrates the point. (The
provision to which the learned Judge refers is s 258(1)(b) of the
1955 Act,
requiring proof that the offence was actually committed.)
‘
This
provision has given rise to some difference of judicial opinion but
in a series of cases decided last year the Provincial Divisions
have
substantially concurred in an interpretation which seems to me, with
respect, to be the correct one. Once the plea of
guilty has
been entered it is not further regarded in applying the provision.
Before the inferior court has power to convict
on the plea the actual
commission of the crime by someone, not necessarily the accused, must
be proved by any admissible and sufficient
evidence. The plea
is not included in such evidence: If the accused himself gives
evidence to the effect that the crime was
committed, that evidence is
not sufficient by itself to prove the commission of the crime for the
purposes of the sub-section.
…. At the hearing of
the appeal counsel for the Crown relied on a passage in [
R
v Kula
1958
(4) SA 675
(C) at p. 680], in which it was suggested that there might
have to be a qualification of the proposition that the plea of guilty
is to be wholly disregarded in deciding whether the commission of the
offence has been proved for the purposes of the sub-section.
With respect, I do not think that the provision admits of such a
qualification. Of course, the sub-section only deals with
the
conditions which must exist before an inferior court has power to
convict. When the court is deciding
whether
to convict it must take into account not only the plea but also any
evidence which may make it probable or improbable that the
plea
represents the truth, in its implication of the accused, for the
court must be satisfied before convicting that there is no
reasonable
doubt as to the accused’s guilt. But only in that sense
and at that stage would the inferior court be right
in treating the
plea as evidence.’
[30]
It seems clear, in the circumstances, that the context in which the
Appellate Division in
Cook
said that upon satisfaction of the
requirements of the section the magistrate “should convict”
is not the same as the
one which now prevails. It is logical to
proceed upon the assumption, then, that the mandate provided by s
112(1)(a) to proceed
to conviction on a plea of guilty alone is not
the same as the mandate furnished by the earlier legislation.
[31]
The right to a fair trial now ensconced in s 35 of the Constitution
is fundamental, and should
guide our consideration of the questions
posed to us by the senior magistrate. As pointed out in
Dzukuda
it is an important element or component of a fair
criminal trial that adequate steps should be taken to ensure that
innocent people
are not wrongly convicted. Although the
question of how to deal with unrepresented accused persons is not
before us in these
review proceedings, it is not possible to reach a
finding in the cases at hand, where there was legal representation,
without considering
the proper approach absent legal representation.
[32]
In my view there is little room for the application of s
112(1)(a) where an accused is unrepresented. Not
asking such an
accused who pleads guilty any questions at all means that no steps
are being taken to avoid an incorrect conviction.
In a case
where the essential elements of the crime are easily and simply
stated, that factor may appear to generate a fair inference
that a
plea of guilty alone is sufficient to warrant a conviction. But
in those simple cases only a little effort and time
needs be applied
and taken up in order to ensure that the plea of guilty does in fact
reflect true guilt. In the case of
offences where, despite
their petty nature, the essential elements of the charge are more
complex, save in exceptional circumstances
a magistrate choosing to
follow s 112(1)(a) would have no grounds upon which to be assured
that the facts which the accused relies
on when tendering a plea of
guilty do in fact reflect guilt.
[33]
The situation is fundamentally different when s 112(1)(a) is sought
to be applied when the accused
is represented. As already
discussed, until and unless, for substantial and good reason, a
magistrate is thrown into doubt
as to the competence of a legal
practitioner, such competence must be assumed to exist, and to have
been exercised in advising
the represented accused before a plea of
guilty is tendered.
[34]
Counsel in the present proceedings have some personal knowledge of
how matters such as those
before us are dealt with in the
magistrates’ courts. They all represent bodies which have
institutional knowledge of
the proceedings of courts in which such
cases are heard. We received their assurance that it is so that
advantages of efficiency
are indeed achieved by the employment of s
112(1)(a) in cases which involve what is customarily called “petty
crime”.
(This must be accepted to be so despite the
observations already made that the potential gains in efficiency
available now are
not as substantial as they were under the earlier
regimes.) It is argued that these advantages should not be lost in
the case of
represented accused. Counsel for the Society of Advocates
in particular pressed the argument that it is not only the fact of
legal
representation which protects the accused, but also the
safety-net provided by
s 113
of the
Criminal Procedure Act which
should always be read together with
s 112.
[35]
Section 113
reads as follows.
‘
113.
Correction
of plea of guilty.
-
(1)
If the court at any stage of the proceedings
under
section 112
(1)(a) or (b) or
112
(2) and before sentence is
passed is in doubt whether the accused is in law guilty of the
offence to which he or she has pleaded
guilty or if it is alleged or
appears to the court that the accused does not admit an allegation in
the charge or that the accused
has incorrectly admitted any such
allegation or that the accused has a valid defence to the charge or
if the court is of the opinion
for any other reason that the
accused’s plea of guilty should not stand, the court shall
record a plea of not guilty and
require the prosecutor to proceed
with the prosecution. Provided that any allegation, other than
an allegation referred to
above, admitted by the accused up to the
stage at which the court records a plea of not guilty, shall stand as
proof in any court
of such allegation.
(2)
If the court records a plea of not guilty under subsection (1) before
any evidence
has been led, the prosecution shall proceed on the
original charge laid against the accused, unless the prosecutor
explicitly indicates
otherwise.’
Section
113
(1) was amended in 1996 to make clear the construction placed
upon it by the Appellate Division in
Attorney-General, Transvaal v
Botha
1993 (2) SACR 587
(A), that it encompasses all proceedings
under
s 112.
The court confirmed that upon its proper
construction,
s 113
permits a plea of not guilty to be entered after
conviction, as long as sentence is not yet passed. Concerning
the issue
of the applicability of
s 113
to proceedings conducted
under
s 112(1)(a)
, the following remarks of Smalberger JA at 591D-E
bear repeating in the present context.
‘
There
is no reason to believe that the Legislature intended to exclude
s
112(1)(a)
from the operation of
s 113(1)
simply because it deals with
lesser offences. An accused person’s right to protection
against a wrong conviction is
no less important if the offence is
minor than if it is major. In either case there is an equal
possibility of an unjustified
plea of guilty, and in the case of a
minor offence the primary protection afforded by preconviction
interrogation is lacking.
What is more, such a limited
interpretation does not conform to the well-known rule of
interpretation that the Legislature intends
all persons affected by
its enactments to be treated equally.’
[36]
As mentioned at the outset, the senior magistrate has referred us to
the fact that some cases
have held that
s 112(1)(a)
of the
Criminal
Procedure Act cannot
be employed in cases of theft by shoplifting.
[37]
In the case of
S v Van Wyk
(35/2014)
[2014] ZAFSHC 43
(20
March 2014) the court considered a case where the accused was
convicted without being questioned on a plea of guilty to a charge
of
theft of a pair of shoes valued at R499.95. Whilst more than
one issue was raised in that review the following extract
in para 2
the judgment reflects how the court dealt with the issue now under
consideration.
‘
A
provision similar to
section 112(1)(a)
did not exist under the
previous Criminal Procedure Act 56 of 1955. Even if the accused
pleaded guilty, the commission of
the offence still had to be proved,
there had to be evidence
aliunde
,
as it was put. The 1977 Criminal Procedure Act created the
possibility that a person can be convicted on a plea of guilty
alone
without any questioning, but then the sentencing options are
limited. Section 112(1)(a), where there is no questioning
by
the presiding officer, is aimed mainly at the case where the accused
virtually stands with the fine money ready, almost similar
to the
admission of guilt situation, and the accused does not want to waste
the court’s time and wishes to get the case over
and done
with. Section 112(1)(a) is not intended for lazy or incompetent
presiding officers who do not want to, or are unable
to, question the
accused under s 112(1)(b) to determine whether the accused admits all
the elements of the offence. Section
112(1)(a) is intended for
minor cases. Presiding officers should use s 112(1)(a) only
where the offence is of a minor nature,
in the nature of a “petty”.
Shoplifting is a serious offence, and there could be cases where
first offenders
are given sentences of imprisonment. The charge
in this case was not one which should have been dealt with under s
112(1)(a).’
In
my respectful view the conclusion reached in
Van Wyk
is
somewhat overshadowed by the erroneous belief that the Criminal
Procedure Act, 1955 did not permit of a conviction on a plea
of
guilty alone. The court did not consider the earlier judgments
which dealt with the issue of conviction on a plea of guilty
alone in
the case of common law offences like theft. In particular the
court was not able to bring to account the judgment
of the Appellate
Division in
Cook
which established that whether the case
qualified as one which might be disposed of on a plea of guilty alone
turned on an assessment
of the sentence which the conviction might
generate. I am also respectfully of the view that the court’s
observations
concerning an accused standing cash in hand and not
wishing to waste the court’s time, and it’s concerns
regarding
“lazy or incompetent presiding officers”
who wish to avoid questioning under s 112(1)(b), lends no weight to
the conclusion (unsupported by cited authority) that shoplifting is
an offence which falls outside the purview of s 112(1)(a).
[38]
The case of
S v Tshabalala
(102/2015)
[2016]
ZAFSHC 90
(5
th
May 2016) concerned a conviction of theft
on a plea of guilty alone in terms of s 112(1)(a) where the accused
was fined R1500 or
three (3) months imprisonment. The judgment
in the main concerns the administration of reviews. The issue on
review arose
because, having first accepted the plea “in terms
of s 112(1)(a)”, which resulted in a conviction under that
section,
the prosecutor then produced a long list of previous
convictions which persuaded the magistrate that she ought not to have
proceeded
under s 112(1)(a) at all. In the course of the
judgment the court held that s 112(1)(a) could only be invoked where
the offence
is trivial. At para19 the court held that
“
[t]aking
into account the far reaching consequences of theft out of
supermarkets or cash and carry stores as in this case; including
loss
of employment for the employees of those stores, it can never be
regarded as trivial”.
The
court in para 20 quoted a passage from para 9 of the judgment in
S
v Mohata
[2015] JOL 33312
(FB) where the court agreed with the
senior magistrate that s 112(1)(a) should only be used for minor
offences and continued as
follows.
‘
It
is almost in the nature of an acknowledgment of guilt fine. The
accused should, it can almost be said, stand with the money,
ready to
pay the fine or qualify for a deferred fine. Magistrates should
rather, in appropriate cases, consider using s 112(1)(b)
and ask a
few simple questions to make sure of the guilt of the accused. Then
sentencing becomes much simpler.’
[39]
Neither
Tshabalala
nor
Mohata
dealt with the fact that
s 112(1)(a), like the other provisions in place between 1935 and
1977, does not set the limits of the
discretion the magistrate has to
sentence on a plea of guilty alone by listing crimes which are
regarded as “petty”
enough to justify the truncated
procedure, but by stipulating the maximum sentence which may follow a
conviction on a plea of guilty
alone.
[40]
Each of the seven cases which serves before us illustrates the
proposition that it is simply
incorrect to state that a charge of
theft (or theft by shoplifting) cannot fall within the purview of the
magistrate’s discretion
to accept a plea of guilty under s
112(1)(a) of the Criminal Procedure Act, given that the ambit of
cases which may be dealt with
in that fashion is defined not with
respect to the crime but with respect to the punishment which the
crime warrants. The
sentences imposed in each of the seven
cases fall well below the limits set by the section. None of
those sentences is out
of the ordinary. Each of the cases
constitute what has traditionally been called “petty theft”.
I do not
wish to contradict the proposition that theft is broadly
speaking a serious matter. It is generally regarded as such by
the
public because of the element of dishonesty which it involves;
thus its consequences beyond the criminal justice system.
However,
if
its seriousness is to be judged by the sentences imposed for the
crime, then the law does not regard it as serious in all cases.
The law long ago abandoned an inclination to impose horrible
punishments for the theft of a loaf of bread.
[41]
Finally, it is necessary to pull together the threads of the
conclusions we have reached in these
review proceedings.
(a)
If
the magistrate is of the opinion that the offence does not merit
punishment in excess of the limits set by s 112(1)(a) he or
she has a
discretion to convict on the basis of a plea of guilty alone.
The option of proceeding on that basis may however
be denied by the
prosecutor.
(b)
The
discretion must be exercised judicially.
(c)
In
exercising that discretion the magistrate must recognise that the
advantage sought to be gained by the employment of s
112(1)(a)
is one of efficiency. That, however, must be weighed against
the fact that an important component of the right
to a fair criminal
trial is the achievement of an adequate assurance that innocent
people are not wrongly convicted, bearing in
mind that protection
against a wrong conviction is no less important in the case of a
minor offence.
(d)
In
the case of a represented accused, the default position is that the
magistrate may rely on the competence of the advice given
by a legal
representative to the accused person who pleads guilty.
However, it cannot be regarded as compulsory for a magistrate
to
proceed without questioning a represented accused.
(e)
There
appears to be little scope for exercising a discretion in favour of
proceeding under s 112(1)(a) when the accused is unrepresented.
When the elements of the crime concerned are simple the saving of
time in refraining from questioning the accused under s 112(1)(b)
is
likely to be insignificant. When the elements of the crime are
more complex the questioning may take longer, but becomes
indispensable because there are no other adequate procedural measures
to guard against the risk of an incorrect conviction.
(f)
Section
112(1)(a) is not restricted as to its scope of operation by the
nature of the crime concerned. It is restricted in
its scope of
operation by the opinion of the magistrate as to whether the offence
merits punishment in excess of that stipulated
under the section.
(g)
The
remedy of entering a plea of not guilty in terms of s 113 of the
Criminal Procedure Act is available if it should emerge at
any time
before sentence is passed that one of the circumstances set out in s
113(1) of the Act justifies that course. The
prior conviction
of the accused on a plea of guilty is no obstacle.
[42] For
the reasons set out above this court concludes that the proceedings
in the seven criminal
cases sent to us on special review were in
accordance with justice.
OLSEN
J
VAHED
J
MASIPA J
Date of
Hearing:
WEDNESDAY, 31 JULY 2019
Date of Judgment:
FRIDAY, 01 NOVEMBER 2019
For the State:
Mr
K L Singh
Instructed
by:
Director of Public Prosecutions
Southern Life
Building
88 Field Street
Durban
(Ref.
Mr K Singh)
(Tel.:031–3345114
/ 033–8454400)
For Legal Aid South Africa:
Mr HL Alberts
with Mr N Skibi
Instructed
by:
Legal Aid South Africa
Durban Local Office
PBS Building
371 Murchison
Street
Durban
(Ref.: Mr N
Skibi)
(Tel.:
031–3040100 / 073 752 1170)
For The Society of Advocates:
KZN Mr AD Collingwood
with Mr J Wolmarans
(Heads of Argument prepared by Mr A.D.
Collingwood and Ms K Shazi)
Instructed by
:
Society of Advocates : KZN
Durban Club Place
Durban
(Tel: 031 –
301 8633 / 083 782 6876)