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[2017] ZAKZPHC 21
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Mthembu and Another v S (AR131/16) [2017] ZAKZPHC 21 (30 June 2017)

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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. AR131/16
In
the matter between:
SIPHIWE
WISEMAN
MTHEMBU
FIRST
APPELLANT
SIBONELO
ZUNGU
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
STEYN
J
[1]
The two appellants were convicted on eight counts and ten counts of
rape respectively in the regional court Pinetown and sentenced
to
life imprisonment.  Both the appellants elected to exercise
their right in terms of s 309(1)(
a
) of the Criminal Procedure
Act 51 of 1977 (the Act) as amended and elected to appeal against
their convictions and the sentences
imposed by the court
a quo,
despite the fact that they had pleaded guilty to the various
counts.
Ad
merits
[2]
It is necessary for purposes of this appeal to take into account the
proceedings at the pre-trial stage as well as the ‘trial’

stage in order to determine whether there was any kind of
misdirection regarding the convictions.  Both of the appellants

were initially charged with eleven counts of rape (counts 1, 4, 6 to
9 and 11 to 15) to which they pleaded guilty before the court
a
quo
.  In support of their pleas, they each tendered a s
112(2) statement (exhibits ‘A’ and ‘B’
respectively)
before the court.  Each of the appellants was
convicted on all of the counts, after the State confirmed that the
admissions
made by them were in accordance with the State’s
case.  What makes this appeal unique is that the proceedings at
the
sentencing stage impacted on the regularity of their
convictions.
[3]
When the prosecutor addressed the court on sentence, it appeared
ex
facie
the record that
counts 8 and 13 related to the same complaint and that the State had
erred in charging the appellants with two
counts of rape rather than
one.
[1]
The confusion regarding the convictions is best illustrated by the
transcript of the proceedings.  It reads:
‘
COURT
I have just noticed that count 13 and count 8 reflect the same
person.  It would appear as though count 8 and count
13 have
been duplicated.
PROSECUTOR
It appears so, Your Worship.
COURT
I note your pleas indicate the
respective accused plead guilty to … [intervention]
MR
MKHIZE
It
is the same.
COURT
I think where the confusion has
come in perhaps is that they’re separated by count 8 and then
count 13.  There is a number
between but in count 8 it is
mentioned Z P.  Count 13 is Z P.  But it is the same date,
the same age.  It appears
as though there has been a
duplication.
PROSECUTOR
Yes, Your Worship.  That
would explain why I did not have count 13 when I did my address.
COURT
Although
the two counts have put the accused, I must admit that at the time
the charges were put I never picked up that it was the
same name
given that 11 counts were read into the record.  Okay, it is
almost 1 o’clock.  Unfortunately, gentlemen,
we are going
to have to come back at 2 o’clock to do this.  During the
lunch adjournment, Ms Ndlela, just to confirm
the situation, that you
don’t have another docket, that there is what appears to be a
duplication of charges.‘
[2]
[4]
After considering the averments as per the charge sheet, the learned
regional magistrate concluded that the two counts constituted
a
duplication of convictions
[3]
and opined that the matter should be sent on review.  On 26
March 2014 when the case was before the court, the magistrate

informed the parties that she had reconsidered her earlier decision
to send the matter on review and had instead decided to enter
a plea
of not guilty on count 13.  When the State indicated that no
witnesses would be called by it, she deemed the State’s
case
closed and discharged both of the appellants on count 13
mero
moto
in terms of s 174 of
the Act.
[5]
On the next occasion the first appellant was represented by a
different legal representative.  In counsel’s address
on
sentence on behalf of the first appellant, he informed the court that
the appellant had never intended pleading guilty to counts
14 and
15.  It is necessary to deal in more detail with what transpired
in court.  The magistrate placed the following
on record:
‘
The
plea of Mr Mthembu in respect of counts 14 and 15 indicates that he
had sexual penetration with WM in respect of count 15 and
NM by
inserting his genital order into the aforementioned and all of the
complainants’ genital organs without their consent.
This
was accepted by the State.  I am now told something different.
I should add that Mr Mthembu confirmed the content
of the statements
as well.  Therefore it appears to the Court that these
admissions have been incorrectly made because it
is clear from what I
have now been told that he did not insert his genital organ into the
genital organs of the complainants in
count 15 and 16, albeit that he
may be guilty of another offence.
I
therefore have to decide what to do with this matter.  I am not
happy to finalise this matter on the basis of this plea which
is
obviously not a true reflection of the facts.  I am going to do
a bit of research on this matter and make a decision as
to the best
course of action whether it entails referral to the High Court or
perhaps enter a plea of not guilty.’
[4]
[6]
On the next court date, the magistrate decided to enter a plea of not
guilty in respect of counts 14 and 15.  The following

transpired:
‘
COURT
I’d like to ask why he (sic) after the plea was interpreted to
him he confirmed the correctness?
MR
MKHIZE
Your
Worship, from the time I was involved in the matter that question was
entertained by myself with the accused that if
he’s denying the
guilty pleas why when it was interpreted to him did he confirm, and
when the Court questioned the validity
of the pleas and the
instructions given by him to the attorney he further confirmed when
the Court’s enquiry was translated
or was interpreted in court
he confirmed the guilty pleas.  I can’t really give the
Court a satisfactory answer
but
just when I was involved and I came into the matter he was adamant
that he was not pleading guilty on the last two counts
.
COURT
All right thank you.  It would appear to me after
the
address
by the State
in respect of counts 14 and 15 that there was a discrepancy between
what was in the plea and what the State would
allege on counts 14 and
15, hence me remanding the matter for Advocate Mkhize to canvass this
with accused 1, I can see no reason
why I can’t accept his
explanation given that the State in fact now, after having initially
accepted the guilty plea, now
say that that’s not their
evidence in any event
.
So I therefore think that the admissions had been made incorrectly
and that in terms of Section 113 pleas of not guilty
should be
entered on counts 14 and 15 in respect of accused 1 and I am doing
so.
MR
MKHIZE
As the
Court pleases.
COURT
Yes, Ms Ndlela?
PROSECUTOR
Your Worship, the State leads no evidence in respect of the counts.
COURT
You’re not calling anyone?
PROSECUTOR
Yes, Your Worship, I haven’t consulted with the investigating
officer as well.
COURT
I’m assuming then you’re applying for …
[intervention]
MR
MKHIZE
I’m
applying for a discharge in respect of count 14 and 15.
COURT
Ms
Ndlela, anything to say?
PROSECUTOR
No, Your Worship.
MR
MNCWABE
…
[indistinct]
COURT
Well
given that the State has chosen not to lead any evidence in respect
of counts 14 and 15 in respect of MR MTHEMBU the Court
finds him NOT
GULTY AND DISCHARGES HIM ON THOSE TWO COUNTS.’
[5]
(My
emphasis.)
[7]
Before I proceed to deal with the submissions made by the parties on
sentence, it is necessary to deal with the conduct of the
learned
regional magistrate as well as the State prosecutrix.
[8]
The admissions made in terms of s 112(2) are vitally important in
determining the guilt of an accused person.  Therefore
if any
averment is not admitted by an accused a plea of not guilty must be
entered in terms of s 113
[6]
of the Act and the prosecution should proceed in the normal fashion.
Despite the fact that that the State accepted the version
tendered by
the appellants, it elected to place facts before the court that are
different to the factual matrix accepted.
[9]
The Supreme Court of Appeal in
S
v Mbuyisa
[7]
held that s 112(2) of the Act requires a written statement in which
the accused sets out the facts upon which he or she admits
guilt.
If the facts do not cover the essential elements of the charge, a
conviction should not follow.
[8]
In
S v Carter
[9]
the court considered the fairness of the process where an accused
pleads guilty and held:
‘
Is
there any reason why the fair-trial test should require the
conviction and sentencing proceedings to be compartmentalised?

There may be situations where such a separation is inherent in the
notion of a fair trial, eg when the plea is one of not guilty
and an
element of the offence is proved for the first time during the course
of sentencing.  There is, however, a difference
in principle
once an accused pleads guilty.  He thereby indicates that he no
longer takes issue with the prosecution and does
not require proof of
it of any of the elements of the offence.  Sections 112(1)(
b
)
and 112(2) are not concerned with
proof
;
there is no question of discharge of an onus.
In
order to protect an accused the judicial officer must satisfy
himself, by questioning the accused if necessary, that the accused
in
fact admits the elements of the charge
and is therefore guilty of the offence.  Fairness in the
judicial process is a matter of substance, not technicality or
procedure
(though both may bear on substance).’
[10]
(My
emphasis.)
[10]
Our courts have persistently focussed on the factual matrix as stated
in a s 112(2) statement, especially in instances where
it is accepted
by the State.
[11]
In
casu
both the magistrate and the prosecutrix overlooked this principle.
If the State was not satisfied with the facts admitted,
then it
should not have accepted the facts contained in the s 112(2)
statement of any of the appellants since it is in variance
with the
facts that the State wanted to present to the court.  The State
was duty bound to inform the court of its decision,
so that a plea of
not guilty could have been entered in terms of s 113 of the Act.
[11]
It remains the duty of every presiding officer to consider the
admissions as per the s 112(2) statement and to question an
accused
person in terms of s 112(2) if the court is in doubt and needs to
clarify an admission.
[12]
The s 112(2) statements
in
casu
were scant on the
facts and as much as they served the essential purpose of
demonstrating to the court that the appellants committed
the offences
in question, the court in my view ought to have clarified the role
played by each of the appellants, since the statements
lacked such
detail.  Had the court
a
quo
done so, it would have
avoided the dilemma as presented by first appellant’s counsel
where the conduct as alleged in counts
14 and 15 was denied.  In
fact, the court in its haste to then correct a wrong conviction,
completely disregarded the State’s
right to close its own
case.  The magistrate also omitted to consider the admissions
made and whether it proves a lesser offence.
The learned
magistrate admitted the earlier oversight at the time when she filed
reasons:
‘
I
submit that I erred in failing to confirm with the State that, that
was the State’s case after the prosecutor informed the
court
“the State leads no evidence in respect of the counts”
(page 47).  However I submit that no prejudice occurred
as the
State’s intention was clear from those words.’
[13]
[12]
In
S v Jansen
[14]
Davis J held that where an accused pleads guilty to a charge and
hands in a statement in terms of s 112(2) of the Act, setting
out the
facts on which he pleads guilty and the State accepts the plea, the
plea accepted constitutes the essential factual matrix
on which
sentence must be imposed.
[13]
The full court of this division in
S
v Khumalo
[15]
held as follows:
‘
Although
the judgment of Davis J provides that the essential factual matrix is
set out in the plea accepted by the state, and cannot
be altered by
evidence subsequently adduced, this does not prevent the leading of
evidence which does not contradict the plea,
but which may be
relevant to the question of sentence.
Even
if contradictory evidence does emerge, the conviction on the plea as
accepted stands
.’
[16]
(My
emphasis.)
[14]
I align myself however with the view of the Supreme Court of Appeal
in
Kekana v S
supra
recently that endorsed
Jansen’s
ratio.  Mathopa AJA at para 9 held:
‘
In
S v Jansen
it was held that where an accused pleads guilty and hands in a
written statement in terms of section 112(2) of the Criminal
Procedure
Act 51 of 1977 (CPA) detailing the facts on which his plea
is premised and the prosecution accepts the essential factual matrix

and cannot be extended or varied in any manner which adversely
impacts on the measure of punishment as regards the offence.

The plea defines the lis between the prosecution and the defence.
See also
S v Ngubane
.
The State contended that the facts set out in the s 112(2) statement
showed that the murder was premeditated.’
(Original
footnotes omitted.)
[15]
In questioning the regularity of the proceedings before the court
a
quo
we invited both counsel to submit supplementary heads.
[16]
Mr Naidoo, for the respondent, argued that the magistrate committed
no irregularity in the alternative, he submitted that any

irregularity at the sentencing phase should be regarded as an
irregularity that does not vitiate the proceedings. Counsel however,

correctly in my view, conceded that the procedure adopted by the
learned magistrate in relation to count 13 was not in accordance
with
justice.  She should have taken counts 8 and 13 as one since
there was a duplication of convictions.  I agree with
counsel on
this issue.  The submission in respect of counts 14 and 15 are
however less persuasive.
[17]
Counsel appearing on behalf of both appellants failed to file any
supplementary heads that dealt with any perceived irregularity
before
the court
a quo
.
[18]
The submission on behalf of the respondent in respect of counts 14
and 15 was that the magistrate was in doubt and obliged
to enter a
plea of not guilty and to invite the State to lead evidence.  I
agree that the learned magistrate was obliged to
enter a plea of not
guilty and ask the State to proceed with evidence.  The record
bears testimony thereto whether it happened:
‘
PROSECUTOR
There are no State witnesses before Court.
COURT
All right.  Given the period that this matter has been on the
roll, I am of the opinion that to remand it further would
be an
unreasonable delay in terms of Section 342(a) and therefore, in terms
of Section 342(A) (d), which states:
“
Where
an accused has pleaded to a charge and the State or the defence, as
the case may be, is unable to proceed with the case or
refuses to do
so, that the proceedings be continued and disposed of as if the case
for the prosecution or the defence, as the case
may be, has been
closed.”
Accordingly
I am deeming the State case closed.   I have no doubt that
if I asked the defence you would both be asking
for discharge on this
count and both accused are found not guilty and discharged on count
13 in terms of
Section 174
of the
Criminal Procedure Act.”‘
[17
]
[19]
The record reveals that the State was not given an opportunity to
request a further postponement.  Section 342A of the
Act
regulates unreasonable delays and requires that the court shall
investigate any delay and consider any substantial prejudice
to the
prosecution, the accused or his legal adviser.  The learned
magistrate found that the matter was unreasonably delayed
without
giving any party an opportunity to address her on any delay caused or
any prejudice suffered.  It is clear from the
record that the
learned magistrate overlooked the obligations placed on the court and
consequently failed to adhere to them.
[20]
In considering any irregularity the ratio of
S
v Moodie
[18]
and
S v Naidoo
[19]
still apply and it is not necessary to repeat what had been said in
them.  What is required for purposes of this judgment
is to
determine whether the conduct of the learned magistrate was irregular
and to determine whether the conduct resulted in a
failure of
justice.  In my view the conduct of the magistrate when measured
against the following statutory provisions, namely
ss 112, 113 and
342A of the Act falls short.  Her conduct however, although
irregular, did not cause any prejudice to any
of the appellants.
In fact it operated in favour of the appellants.  As much as the
State was deprived of the opportunity
to prove counts 14 and 15
against the first appellant the State never complained of any
injustice suffered.  In the context
of a fair trial the
irregularities did not impact on any of the two appellants’
rights, nor did it result in a failure of
justice and accordingly I
am satisfied that although there were irregularities during the
various phases of the trial, it did not
vitiate the proceedings.
Accordingly, there is no merit in any appeal against the convictions.
Ad
sentence
[21]
Counsel appearing on behalf of the appellants
inter alia
submitted that the appellants should not have been sentenced to life
imprisonment on counts 7 and 12 since the conduct of the appellants

did not fall within the ambit of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
.  It was also argued that the court
a
quo
attached insufficient weight to the traditional mitigating
factors when it made the finding that there were no substantial and
compelling circumstances to deviate from the prescribed sentence of
life.
[22]
Mr Naidoo submitted that the charges all attracted the provisions of
the
Criminal Law Amendment Act and
listed the following factors in
aggravation of the sentences:
(a) that the appellants were convicted
of multiple rapes;
(b) that the rapes were committed over
a period of 3 months;
(c) that the appellants lured the
complainants into their vehicle under the pretext of giving them a
lift;
(d) that the appellants on occasion
forced the complainants into the aforesaid vehicle by wielding knives
and firearms.
(e) that the ages of the victims
ranged from 14 to 26.
The
respondent submitted that the appeal against sentence be dismissed.
[23]
The submission by counsel for the appellants that the offences were
not in terms of Schedule 2 is misplaced.  At the onset
of the
matter, the appellants were informed of the application of the
Minimum Sentence Act and why it finds application.
[20]
The Act provides in terms of Schedule 2 as follows:
‘
Rape
as contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007 –
(a)
when committed –
(i)
in circumstances where
the victim was raped more than once whether by the accused or by any
co-perpetrator or accomplice;
(ii)
by
more than one person, where such persons acted in the execution or
furtherance of a common purpose or conspiracy
;’
[21]
(My
emphasis.)
[24]
Rape is a very serious offence and both appellants have been
convicted on multiple counts (the first appellant on eight counts
and
the second appellant on ten counts).  All of the counts attract
life imprisonment unless substantial and compelling circumstances

exist to depart from the prescribed sentence.  The court
a
quo
was well informed of all the circumstances of each
appellant.  In addition it cannot be disputed that the offences
were very
serious and horrific in nature.  Life imprisonment in
my view is not only appropriate but proportional to the circumstances

under which these crimes are committed.  This court concerns
itself with the question whether the court
a quo
was
misdirected in its conclusion that none of the facts listed qualify
as substantial and compelling.   I have carefully

considered the sentencing judgment and am not persuaded that the
court had erred in imposing the sentences it did.
Order
[25]
The appeal against the convictions and sentences imposed is
dismissed.  The convictions and sentences are confirmed.
…………………………
.
STEYN
J
…………………………
..
CHETTY
J
Appeal
heard on : 18 May 2017
Counsel
for the appellants: Mr SB Madondo
Instructed
by : Durban Justice Centre
Counsel
for the respondent : Mr D Naidoo
Instructed
by : The Director of Public Prosecutions
Judgment
handed down on : 30 June 2017
[1]
At 160 lines 5 to 9 of the record.
[2]
At 159 line 23 to page 160 line 1 to 18 of the record.
[3]
Seemingly the learned magistrate had s 83 of the Act in mind as well
as the common law rule that militates against the duplication
of
convictions, also referred to earlier as the rule against the
‘splitting of charges’.
[4]
At 173 line 19 to 174 line 11 of the record.
[5]
At 176 line 20 to 178 line 9.
[6]
Section 113 reads:
‘
113(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.’
[7]
2012 (1) SACR 571 (SCA).
[8]
Ibid
para 7.
[9]
2007 (2) SACR 415
(SCA).
[10]
Ibid
para 34.
[11]
See
Kekana v S
(629/13)
2014 ZASCA 158
(1 October 2014);
S
v Moorcroft
1994 (1) SACR
(T) at 320g and
S v Swarts
1983 (3) SA 261
(C) at
263C-D.
[12]
Section 112(2) of the Act reads:
‘
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
had 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
.’
(My emphasis.)
[13]
See record at 187.
[14]
1999 (2) SACR 368
(C).
[15]
2013 (1) SACR 96 (KZP).
[16]
Para 11.
[17]
See 164 lines 18 to 165 line 10 of the record.
[18]
1961 (4) SA 752 (A).
[19]
1962 (2) SA 625
(A).
[20]
See 132 lines 8 to 18 of the record.
[21]
Criminal Law Amendment Act No. 105 of 1997
as amended.