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[2016] ZAGPPHC 113
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De Beer v S (A416/2015) [2016] ZAGPPHC 113; 2016 (2) SACR 106 (GP) (24 March 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: A416/2015
(14372/2015)
DATE:
24/3/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
ELIAS
JACOBUS GELDENHUYS DE
BEER
Applicant
and
THE
STATE
Respondent
JUDGMENT
JANSEN
J
[1]
This
appeal relates to alleged procedural irregularities which occurred in
the criminal proceedings before the regional magistrate,
Mr Nel.
Hence, the matter is a review of the said proceedings. The
judgment in the proceedings was delivered on 19
September 2014.
[2]
The
charges against Mr Elias Jacobus de Beer (“
Mr
De Beer”
)
were serious in nature. He was charged with two counts of rape
of a minor on or about 26 December 2010 and one of sexual
assault;
during or about June 2011. Mr De Beer was the boyfriend of the
minor’s mother.
[3]
Mr De
Beer pleaded not guilty on all counts.
[4]
Mr de
Beer tendered a plea explanation in terms of
section 15
of the
Criminal Procedure Act 51 of 1977
and was duly informed of the
provisions of
sections 51
,
52
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended, as well as
sections 92(2)
,
94
,
256
and
281
of the
Criminal Procedure Act 51
of 1977
.
[5]
In his
plea explanation, he stated that regarding the alleged rape on or
about 25 December 2010 and 26 December 2010, a certain
Susan, his
brother and his sister could testify that the minor was not home and
that she only arrived late during the afternoon
on 26 December 2010
and that regarding what he referred to as the “third rape”,
he worked for Katsweng Trading at the
Tswaneng Mine, loading
construction material and that on the day in question he was in
Zeerust in order to obtain “cross
border” documentation.
He stated that he was in Botswana the next day and could prove
it by way of his passport. No
dates were mentioned.
[6]
Some
of the language that he used in his plea explanation evidenced a
denigratory attitude towards the minor and contained inappropriate
language. He stated that he and K. (the minor’s mother)
had sorted out their differences and that he told her that
the minor
was “…’
n
orige meisiekind wie se parra haar pla”.
The
court commented on this wording, stating that the terminology used
was wholly inappropriate. The court
a
quo
should have gone further and should have reprimanded the legal
representative and should have insisted on a proper plea
explanation.
The court
a
quo
failed to fulfil its constitutional duty towards the appellant to
ensure a fair trial, even in circumstances where the appellant
was
legally represented.
[7]
It
bears mention that under cross-examination Mr De Beer made the
following admission: “
So
as sy sê dat sy vroeg in die oggendure van Kersfeesoggend daar
by die huis was is dit waar. Dit is reg ja.”
[8]
The
minor’s mother testified that although they were not home the
whole of the 25
th
of December 2010, they did return home that evening. (She
further testified that she and the minor went home late on Christmas
evening, 25 December 2010, and that they fetched Mr De Beer from a
bar in Strydfontein. The mother’s testimony was
that he
was very inebriated). The minor also testified that although
she was absent for part of the day, she returned home
on the 25
th
of December 2010. Mr De Beer proffered a version that the minor
had left on the 25
th
of December 2010 to visit a friend and only returned at 9h00 on the
26
th
of December 2010.
[9]
According
to Mr De Beer, the minor’s mother, his parents, his sister and
her husband and his brother were present when the
mother confronted
the minor about being out for the whole night of 25 December 2010.
However, this version was never put
to the minor. When
asked why it had not been put to her, Mr De Beer answered: “
Nee
niemand het gevra nie, so ek het nie.”
[10]
During
cross-examination, Mr De Beer made the following admissions, on which
the State relied in this application: —
QUESTION
“
Toe
julle opstaan daardie oggend het A. wakker geword in die huis en saam
met julle soontoegegaan?
”
ANTWOORD
“
Dit is
reg ja, sy was in die huis.
”
QUESTION
“
So as
sy sê dat sy vroeg in die oggendure van Kersfees oggend daar by
die huis was is dit waar?
”
ANSWER
“
Dit is
reg ja.
”
[11]
These
questions relate to the morning of the 25
th
of December 2010 however, and take the matter no further. What
is relevant is what happened during the night of the 25
th
of December 2010 and on the 26
th
of December 2010.
[12]
Furthermore,
according to the charges against Mr De Beer, the two incidents of
rape occurred on or about June 2011 and on or about
26 December 2010.
According to the testimony which was led in the court
a
quo
the
two incidents of rape apparently occurred in the early hours of 26
December 2010. It is unclear why there was a deviation
from the
charge sheet in evidence or why the charges were not amended.
[13]
What
also emerged from Mr De Beer’s own evidence was that although
he worked in Botswana in June 2011, he was home over weekends.
[14]
Furthermore,
what is also significant is how much emphasis Mr De Beer placed on
the minor exiting the bathroom with a towel wrapped
around her, or
wearing T-shirts with no bra. According to him, she developed
quickly. This fascination (if one can
call it that) with the
minor’s body is troublesome. According to Mr De Beer, the
minor’s conduct was inappropriate.
Given the fact that
there was apparently nobody else present, Mr De Beer’s
fascination with her body borders on the
macabre. The minor was
just a little girl when the rapes occurred as she was born on ..
August 1998.
[15]
In his
notice of motion, the relief which Mr De Beer seeks is that his
convictions on the three counts mentioned be set aside and
that the
matter be referred back to the court
a
quo
for
such applications and evidence which he or the State may wish to make
or lead.
[16]
His
application is based on the fact that, as was stated in his plea
explanation, the minor was not home on the 25
th
of December 2010.
[17]
According
to his founding affidavit, his attorney Mr Dawid Nel, was fully aware
of the fact that he had witnesses to corroborate
his version, namely
his mother, his brother Willem, his sister and her husband who could
testify that the minor left their company
at 14h00 on the 25
th
of December and only returned home at about 10h00/11h00 on the 26
th
of December 2010. An enormous altercation allegedly ensued
between the minor and her mother as a result of the minor’s
disappearance for the night. As has been pointed out above, the
version of an altercation was never put to the minor, nor
her mother.
[18]
According
to Mr De Beer, his attorney consulted with his mother and his
brother. His sister and her husband were also on standby
to
testify in his favour. Mr De Beer states that after he had
testified, the matter was postponed and that when he asked
his
attorney when his witnesses would testify he was told by him: “
Dit
is nou te laat – ons moes hulle alreeds geroep het”.
His
attorney alleged that Mr De Beer told him that he did not wish his
witnesses to testify. Mr De Beer states that all that
he had
said was that his mother was elderly and if it could be avoided, he
would not wish her to testify due to her age and health.
Allegedly,
Mr De Beer’s attorney then told him that he no reason to worry
that his witnesses had not been called and
was informed: “
Jou
saak lyk goed”.
[19]
According
to Mr De Beer, he did not have the money to obtain a new lawyer and
was too ashamed to tell his new employer about the
court proceedings.
When found guilty, however, his employer assisted him in
obtaining a new lawyer who asked for the file
of Mr Nel. There
was no file as Mr Nel allegedly only kept notes. Neither were
there receipts for the cash amounts
that Mr Nel had obtained from Mr
De Beer’s mother and brother.
[20]
Attorney
Nel filed an answering affidavit in this application denying the
allegations against him, stating that Mr De Beer seemed
to be under
the influence of dagga, was “jittery” and told him to
finalise the matter as soon as possible. He
also stated that
the only time that he saw the mother and brother was early on in the
proceedings when a bail application was launched.
Mr Nel stated
that Mr De Beer informed him that he could no longer afford his
duties, whereupon he suggested to Mr De Beer
to make use of the Legal
Aid’s services.
[21]
In
fact, attorney Nel alleges that he had informed Mr De Beer that the
testimony of his mother and brother was of cardinal importance
upon
which Mr De Beer had allegedly informed him that he wished the matter
to be completed as soon as possible.
[22]
The
prosecutor filed an affidavit stating that the evidence of the
witnesses would take the matter no further as they were not present
during the night of the 25
th
of December 2010 (at 2h00 or 3h00 – as testified by the minor
and which evidence was never challenged). Furthermore,
it was
never put to the minor that she and her mother did not fetch Mr De
Beer from a bar on the evening of 25 December 2010 nor
that there was
an altercation between them on the 26
th
of December 2010.
[23]
On a
conspectus of all the evidence put before the court, the following
conclusions can be reached: —
[23.1] The nature of
the “plea explanation” which attorney Nel prepared is
shocking and extremely unprofessional.
[23.2] Attorney Nel
places emphasis on his alleged entitlement to fees of R4000 per day
and it cannot be ruled out that his failure
to call further witnesses
was because he knew that Mr De Beer had no further funds.
[23.3] The evidence
of Mr De Beer’s witnesses might relate to what happened during
the evening of the 25
th
of December 2010 and the morning
and evening/night of the 26
th
of December 2010 even though
Mr De Beer’s legal representative failed to put important
versions to the State witnesses (which
may very well be attributed to
attorney Nel’s negligence).
[23.4] It was put to
the minor that De Beer’s mother and sister would testify, as
would Mr De Beer, that she did not return
home the evening of the
25
th
of December 2010.
[23.5] Mr De Beer is
entitled to a fair trial in terms of the Constitution of the Republic
of SA, 1996. Regarding the count
of rape at 02h00 or 03h00 on
Christmas morning, Mr De Beer’s witnesses are in no position to
assist him.
[23.6] Mr De Beer’s
witnesses are, however, in no position to assist him regarding the
count of sexual assault during or about
June 2011.
[23.7] Mr De Beer’s
legal representative referred the court to the case of
S v Mafu
[2008] ZAGPHC 38
;
2008 (2) SACR 653
(W)
wherein it is pertinently held that a legal
practitioner should act in the interests of his or her client. It
was emphasised
in that case that everything must be said that needs
to be said and that all evidence that is justified, must be called.
This
principle was endorsed by the Supreme Court of Appeal in
S
v Halgryn
2002 (2) SACR (SCA)
.
CONCLUSION:
[24]
The
conduct of Mr Nel in allowing a section 115 plea to be handed
in, in the format in which it was, was patently inappropriate
as was
his attack on his erstwhile client in an endeavour to oppose this
application coupled with the fact that he was without
a case file and
cash receipts. His conduct was unprofessional in the extreme.
[25]
In the
premises, the following order is proposed: —
Order
The applicant’s
conviction in respect of counts 1 and 2 in matter No. SH 190/2013 are
set aside and the matter is referred
back to the regional
magistrate’s court, Pretoria, in order to allow the applicant
(and the respondent if it so wishes) to
lead further evidence, or to
make any applications which they wish.
MM
JANSEN J
Judge
of the High Court
I
agree and it is so ordered.
KGANYAGO
AJ
Judge
of the High Court
For
the Applicant
:
Advocate
C.F.J. Brand SC
Instructed
by
André
Grobler Attorneys
(012
565 5593)
(Reference
No. Mnr Grobler/LD0416)
For
the Respondent
:
Advocate
L Williams
(084 294 8548)
Instructed
by the
Director
of Public Prosecutions; 28 Church Street, Pretoria
(012
351 6700) (Ref No. D R Mahlalela)