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[2015] ZAGPPHC 656
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S v Fakude (CC137/14) [2015] ZAGPPHC 656 (24 August 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, EASTERN CIRCUIT, ERMELO)
CASE
NUMBER: CC137/14
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST
TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
……
24
August 2015
……
………………………...
DATE
SIGNATURE
In the
matter between:
THE
STATE
versus
THOBANE
XOLANI FAKUDE
JUDGMENT
LAMPRECHT,
AJ
[1] In
terms of the amended indictment dated 26 January 2014, accused is
charged with three counts of murder;
[1]
one of attempted murder;
[2]
three of housebreaking with intent to rape, rob and murder;
[3]
three of rape;
[4]
and, three of robbery with aggravating circumstances.
[5]
The charges relate to three separate incidents in the small town of
Volksrust on the border of Mpumalanga and KwaZulu-Natal, namely:
1.1
On 11 November 2012
– the house, situated at no
[....], Volksrust, of M. M. J. J. V. R., an [….] year-old
female person, was allegedly
broken into. She was then brutally and
severely assaulted, raped and robbed of a few almost insignificant
pieces of jewelry and
a jar containing small change. She died on 21
November 2012 in a Clinic in Dundee as a result of her injuries
sustained during
the incident.
1.2
Between 28 June and 5 July 2013
– the house,
situated at [....], Volksrust, of E. M. B., a [….] year-old
female person and D. M., a […] year-old
male person, was
allegedly broken into. Both of them were brutally and severely
assaulted. Ms B. was raped and both of them were
robbed of a velvet
maroon coloured bag decorated with simulated pearls and a Nissan
Bakkie key. Both of them died on the scene
as a result of the
injuries sustained.
1.3
On 12 August 2013
– the house, situated at [....], Volksrust, of R. C. J., an
[….] year-old female person, was allegedly broken into.
She
was brutally and severely assaulted, raped and robbed of a number of
things, mainly jewelry and a cellular mobile phone. In
the latter
incident, the victim is still alive, hence the accused has been
charged with only attempted murder, not murder as in
the other two
instances.
[2]
Accused, herein represented by Counsel in private practice, Adv PM
Mnisi, briefed by the Legal Aid Board of South Africa as
a so-called
‘Judicare Instruction’, initially requested (and was
granted) one day’s postponement of the matter
to properly
consult with his Counsel. On 12 August 2015
[6]
he pleaded guilty to all counts, barring the count of rape relating
to Ms J.,
[7]
the only surviving victim, to which he pleaded not guilty. It should
be noted that, before pleading guilty to counts 5, murder
of Ms B.,
and 10, attempted murder of Ms J., he first consulted with his
Counsel in court. After he pleaded not guilty to count
13, the rape
of Ms J., his Counsel consulted with him in court after which the
plea of not guilty was confirmed by both the accused
and his Counsel.
The latter plea appeared to be a deviation from the accused’s
initial instructions to Counsel as can be
inferred from the fact that
his initial statement
[8]
in terms of section 112(2) of the Criminal Procedure Act
[9]
(the CPA), which was signed by the accused, included a guilty plea on
that count as well.
[3]
His written statement in terms of section 112(2) of the CPA was read
out by Counsel, during which process the guilty plea on
count 13 was
deleted, and the document was handed in as Exhibit A1. Accused in
open court confirmed the contents of the statement
and his signature
on the document. Both Counsel for the accused and the prosecutor, Adv
J Kotzé from the Office of the Director
of Public
Prosecutions, thereafter informed the court that they had in addition
to the written statement agreed to further formal
admissions in terms
of section 220 of the CPA, which were reduced into writing. The
document was read out by the prosecutor and
handed in as Exhibit A2
after which both Mr Mnisi and the accused, in open court, confirmed
the correctness of the formal admissions
and that the accused
consents that they could be recorded as formal admissions. In
addition to Exhibit “A2”, a number
of other documentary
exhibits, the contents of which have now been formally admitted
through Exhibit A2, were likewise admitted
into evidence, namely
3.1
Exhibit “B”
– the Post Mortem Report
in respect of the deceased in count 1, Ms J. V. R., which was
compiled by Dr KM Neerahoo, indicating
the cause of death as
“subdural hemorrhage due to head injury”;
3.2
Exhibit “C”
– the Post Mortem Report
in respect of the deceased in count 5, Ms B., which was compiled by
Dr SM Shingange, indicating
the cause of death as “multiple
head injuries”;
3.3
Exhibit “D”
– The Post Mortem Report in respect of the deceased in count 6,
Mr M., which was compiled by Dr SM Shingange, indicating
the cause of
death as “multiple head injuries”;
3.4
Exhibit “E”
– a Sketch plan of the
house and a photo album with photos of the scene of the incident of
11 November 2012 at no [....],
Volksrust, compiled by W/O TA Masondo;
3.5
Exhibit “F”
– a photo album with
photos of the scene at no [....], Volksrust, as photographed on 08
July 2013, including photos of the
bodies of the two deceased persons
mentioned in counts 5 and 6, compiled by Capt PB Sikhosana;
3.6
Exhibit “G”
– a Sketch plan of the
house and a photo album of the scene at no [....], Volksrust,
including photos of ‘blood-spatter’
on the scene and of
the bodies of the two deceased persons mentioned in counts 5 and 6
which were taken during the
post mortem
, as photographed on 06
and 09 July 2013, compiled by W/O ES Mazibuko;
3.7
Exhibit “H”
– photo album and key
thereto of all three the scenes, the exhibits recovered and place of
arrest of the accused; compiled
by Lt Col SS Albertse;
3.8
Exhibit “J”
– statement in terms of section 212(4)(a) and (8)(a) of the
CPA by W/O Prince-Eddie Neo Mmushi (DNA analysis and comparison
report linking the control blood sample of the accused to the
cervical swab taken from the deceased in count 5, Ms B.);
3.9
Exhibit “K”
– statement in terms of
section 213(1) and (2)(a) of the CPA by Capt FS Moller pertaining to
the cellular phones that were
robbed and of their subsequent use
after the incidents; and,
3.10
Exhibit “L”
– a J88 medical report completed by Ms NI Vilakazi, a
professional forensic nurs,e on 12 August 2013 after a medical
examination
of Ms J., mentioned in count 13.
[4]
A perusal of the plea statement, Exhibit “A1”, and the
formal admissions, Exhibit “A2”, revealed that
they have
merely and slavishly followed and repeated the bald statements,
without elucidation, in the indictment, which falls short
of what is
substantively required in terms of section 112(1)(b) read with (2) of
the CPA.
[10]
This laxness by Counsel, which can never be allowed to pass muster,
especially in this Division, should be deprecated in the strongest
possible terms; and, in normal circumstances, a plea of not guilty
would have been recorded in terms of section 113 of the CPA,
unless
the presiding officer, through further questioning of the
accused,
[11]
could satisfy himself that the accused is in fact guilty of the
offences he pleaded guilty to. It was probably in sensing this
possible attitude by the Court that Counsel for the State,
ex
abundanti cautela
, but
without having the effect that was sought, discussed with Counsel for
the defence and the accused to enter into the fray the
formal
admissions in Exhibit “A2”. Even after having
recorded the formal admissions, there were, however, still
some
lacunae that have not properly been admitted by the defence in both
exhibits so that the plea in itself, without any further
evidence or
admissions, could lead to a conviction of the accused. I queried this
state of affairs by asking Counsel for the accused
and the accused in
person whether the intricate legal points such as the criminality of
the conduct,
modus operandi
,
intent and effects of the plea of guilty had been properly canvassed
during consultation; and, by asking Counsel for the state
whether the
state was prepared to accept the plea as it stands without further
questioning by the Court and / or the leading of
evidence after a
plea of not guilty is entered. The response by both Counsel was to
the effect that, during a further adjournment,
an additional set of
formal admissions in terms of section 220 of the CPA were drawn up by
agreement between the parties, in the
handwriting of Counsel for the
state and signed by the accused, which was subsequent to the
adjournment read into the record by
the prosecutor and handed in as
Exhibit “M”. These further ‘formal admissions’
were confirmed in open court
by both accused and his Counsel.
[5]
Formal admissions in terms of section 220 of the CPA are supposedly
only possible in the case of a plea of not guilty, because
such
formal admissions can only be made in respect of facts originally
“placed in issue at such proceedings” and the
questioning
in terms of section 112(1)(b) and the statement in terms of section
112(2) of the CPA are supposed to render the making
of such
admissions redundant and superfluous.
[12]
There is however nothing in section 220 of the CPA suggesting that it
is totally inadmissible for the defence (or, for that matter,
the
state) to place on record formal admissions in terms of section 220
in respect of such issues that have not thoroughly been
covered by
the questioning in terms of section 212(1)(b) or the statement in
terms of section 112(2).
R v
Fouché,
on which
Kruger in
Hiemstra’s
Criminal Procedure
relies
[13]
for the, entirely formalistic, assertion that formal admissions in
terms of section 220 are not possible when a plea of guilty
is
entered, has been decided before the current CPA saw the light of day
and can have only persuasive value for the current judgment.
I am
aware thereof that the practice to make formal admissions in terms of
section 220 of the CPA has become almost daily practice
in the lower
courts and the High Court, especially where guilty pleas do not
verbatim
refer to important facts such as the so-called causal link or ‘chain’
evidence in murder cases. In any event,
in cases such as these,
the procedure as required in terms of section 112(1)(b) read with (2)
of the CPA, is often in practice
being subverted by Counsel to the
detriment of justice; and, it is, to an extent, cumbersome, degrading
and time consuming for
a presiding officer to do the work of Counsel
for the defence by questioning the accused further to satisfy the
statutory requirements
where the statements have not properly been
drawn up. It is therefore in the interests of justice and to preserve
the proper
decorum
of the Court if Counsel and defendants are allowed to, in addition to
‘section 112(2) statements’ formally admit facts
that
have not been properly admitted during a plea of guilty. There can to
my mind be no objection to this procedure being followed
to preserve
a plea of guilty, which is designed to avoid a lengthy trial where
the accused exercises his right to plead guilty,
provided that the
accused person himself agrees to the procedure being followed and
personally grants permission for the formal
admissions to be made. I
therefore appreciate the initiative taken by Counsel for the state to
discuss the possibility of the further
formal admissions with the
defence after I have voiced my misgivings in this regard. This was
clearly done to avoid my further
questioning of the accused or the
recording of a plea of not guilty in terms of section 113 of the CPA,
which could have resulted
in a drawn-out and lengthy trial in a case
where more than 40 witnesses for the state have been listed.
[6]
Moreover, so it would appear, section 112(3) of the CPA sanctions the
presentation of evidence (including formal admissions)
in addition to
the ‘section 112(2) statement’ or questioning in terms of
section 112(1)(b).
[14]
It reads:
“
(3)
Nothing in this section shall prevent the
prosecutor from presenting evidence on any aspect of the
charge, or
the court from hearing evidence, including evidence or a statement by
or on behalf of the accused, with regard to sentence,
or from
questioning the accused on any aspect of the case for the purposes of
determining an appropriate sentence.”
[7]
Referring to
S v
Khumalo
,
[15]
Kruger argues
[16]
that the words “with regard to sentence” in the provision
qualify all the preceding words and that section 112(3) only
sanctions the leading of evidence after conviction following a plea
of guilty but before sentence. I respectfully disagree. The
CPA
[17]
and the common law already allow for evidence and arguments to be
presented after conviction following a plea of guilty or a plea
of
not guilty in order for the court to determine an appropriate
sentence and, nowhere in section 112(3) is an indication to be
found
that the presentation of evidence in terms of that section is only
admissible with regards to the determination of an appropriate
sentence after conviction. Such an interpretation of section 112(3)
amounts to an essentially formalistic approach to criminal
procedure
that can lead to the administration of justice being delayed or
prejudiced. In any event, the purpose of section 112(1)(b)
read with
(2) of the CPA is to “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” so that the court may be “satisfied
that the
accused is guilty of the offence” he pleaded guilty to before
allowing the court to convict the accused person.
This purpose would
be satisfied if section 112(3) of the CPA is interpreted to mean that
the prosecutor and/or the defence or the
court may present or call
for evidence to be presented “on any aspect of the charge”,
even before conviction; and,
such an approach would be in service of
the substantial requirement that the possibility of a wrong
conviction on a mere plea of
guilty should be avoided.
[8]
Nevertheless, all of this could have been avoided had Counsel for the
accused from the very outset drawn up a proper ‘section
112(2)
statement’ as required; but, although cumbersome and time
consuming, the procedure eventually followed in this matter
has
enabled me to come to a just decision as far as the charges on which
the accused pleaded guilty are concerned.
[9]
From the ‘section 112(2) statement’, Exhibit “A1”,
as well as from the formal admissions contained in
exhibits “A2”
and “M”, I am satisfied that the accused admits all the
allegations in the charges that he
pleaded guilty to and that he is
in fact guilty of the crimes charged.
9.1
He admits that on 11 November 2012
he
broke into the house of M. M. J. J. V. R. at no [....] Volksrust by
breaking a window at the garage, after which he entered the
premises
through the broken window with the intention to rob, rape and murder.
He found the deceased inside the house. He then
assaulted her by
hitting her several times with his clenched fists. After he had
subdued her in this way, did he then rape her
and take the belongings
mentioned in count 3. He further admits that, although the deceased
died only a few days later, the deceased
had died as a result of the
injuries that he inflicted during the assault and that he foresaw the
possibility that she might die
when he assaulted her. The cause of
death was “subdural hemorrhage due to head injury”.
9.2
He admits that on 29 June 2013
he
broke into the house of Ms B. and Mr M. at no [....], Volksrust, by
breaking a glass front door. He then entered the premises
through the
broken door with the intention to rob, rape and murder. He attacked
the two occupants of the home with a garden fork,
hitting both
several times with the fork. After they were subdued, he raped Ms B..
He then took the items mentioned in count 8
and left. He further
admits that Ms B. and Mr M. died as a result of the injuries he
inflicted on them with the garden fork and
that he foresaw the
possibility that they might die as a result of the assault. The cause
of death was “multiple head injuries”
in both cases. He
further admits that his DNA was found on the cervical swab taken from
the dead body of Ms B., by implication
linking him to her rape.
9.3
He admits that on 12 August 2013
,
he broke into the house of R. C. J. at no [....], Volksrust, by
breaking a window. He gained entry and entered the house through
the
broken window with the intention to rob, rape and murder. He found
the victim inside who came to investigate, and he overcame
her by
strangling (or throttling) her until she lost consciousness. He then
took the items mentioned in count 12 and left. He formally
admitted
that the contents of the J88 “Report by Authorised Medical
Practitioner on the Completion of a Medico-Legal Examination”
conducted on the person of Ms J. (Exhibt “L”) are
correct. Therefore he admitted that the forensic nurse who conducted
the clinical examination of Ms J. found a laceration and bruises
around the neck of the victim suggesting strangulation; and, in
addition to that, she found various bruises and tears to her genitals
with slight bleeding suggestive of ‘forceful penetration’
of her vagina.
9.4
In addition to the above he admits
that
at all relevant times mentioned in his admissions, he was of sound
and sober senses, he knew that what he was doing was wrong
and
punishable by law and that he was able to act according to this
conception of illegality, but that he nevertheless proceeded
with his
actions regardless.
[10]
I am therefore satisfied from the admissions made by the accused that
he is guilty of the crimes charged in counts 1 to 12
to which he
pleaded guilty. This satisfies the substantive requirements of
section 112(1)(b) read with (2) of the CPA and the accused
may
accordingly be convicted of the mentioned crimes without any
additional evidence.
[11]
As far as count 13 is concerned, rape of the surviving victim, Ms J.,
the accused pleaded not guilty in circumstances outlined
above.
As indicated, he did however formally admit the contents of the J88
Report, Exhibit “L” in which an expert
opinion is
expressed that she had been forcefully penetrated in her vagina. The
prosecutor apparently decided to spare Ms J. the
agony and shame of
having to testify in open court, and closed his case without any
additional evidence. The defence followed suit
and did not present
any evidence as far as this count is concerned. The prosecutor argued
that the formally admitted injuries and
expert opinion of the
forensic nurse amounted to “sufficient proof of” the
facts so admitted and that the accused should,
in the absence of
evidence to the contrary, also be convicted on this count. Adv Mnisi
did not address court and left the matter
in my hands to decide.
[12]
In addition to what Mr Kotzé has argued for the state, it
should be noted that the circumstances of the burglary, assault
with
intent to rob, rape and murder, and robbery to which the accused
pleaded guilty (counts 10, 11 and 12) are so reminiscent
of the
modus
operandi
that the accused
followed during the other two incidents involving the burglary,
murder, robbery and rape of the other victims
mentioned in the other
counts to which the accused pleaded guilty; so that an
inference is justified that he, in this case,
also raped the victim
just as he did with the other two female victims in the earlier
incidents. Something that may also
not be lost sight of, is the
fact, according to his own plea of guilty on count 11, Exhibit “A1”,
he admitted that
he “unlawfully and intentionally
enter[ed] the house of R. C. J.
with
the intent to
rob,
rape
and murder
the
said R. C. J.
”.
[18]
What we have on this count is therefore:
12.1
That the accused admitted to having broken into the house of the
victim with,
inter alia
, the intention to rape her;
12.2
That the victim’s genitals evidenced injuries consistent with
forceful penetration of her vagina;
12.3
That the accused on two previous occasions, in similar circumstances
than the current, broke into the houses
of the other two female
victims mentioned, assaulted them with murderous intent and raped
them before robbing them of their belongings
after which he left. It
is therefore hard to conceive why he would not fulfill his own
intention to rape in the case of Ms J. as
he did in the other two
cases when he had the motive, time and means to do so.
These
circumstantial facts are such that they justify an inference that Ms
J. had also been raped by the accused as alleged and,
in the light of
accused’s silence, especially on why he decided to plead not
guilty on this count in defiance to his earlier
instructions to
Counsel, this inference appears to be the only reasonable inference
that can rightly be drawn in the circumstances
of this case.
[19]
[13]
Thus, in terms of the provisions of section 112(1)(b) read with
subsections (2), (3) and section 220 of the CPA, I am satisfied
that
the accused admits all the allegations in counts 1 to 12 to the
extent that I am satisfied of his guilt on those counts in
that no
defence has been left open to him. As far as count 13 is concerned, I
am on the available evidence, mainly consisting of
formal admissions
by the accused in terms of section 220 of the CPA, satisfied that the
state has succeeded in proving, beyond
reasonable doubt, that the
accused on that occasion also raped the victim, Ms J., as alleged.
Accordingly, the accused is convicted
and found guilty of all counts
1 to 13 as charged.
____________________________
A
A LAMPRECHT
ACTING
JUDGE, GAUTENG DIVISION OF THE HIGH COURT
14
August 2015
Representation
for the state
:
Counsel
Adv J Kotzé
Representation
for the accused
Counsel
Adv PM Mnisi
Instructed
by
Legal Aid South Africa
[1]
Counts 1, 5 and 6.
[2]
Count 10.
[3]
Counts 2, 7 and 11.
[4]
Counts 4, 9 and 13.
[5]
Counts 3, 8 and 12.
[6]
Although judgment has been set down and prepared
for 14 August 2015, Counsel reported sick and the matter was rolled
to 24 August
20015 for judgment.
[7]
Count 13.
[8]
Exhibit “A1”.
[9]
Act no 51 of 1977 as amended.
[10]
E.g., see
S v Sellars and Six Other Cases
1991 (1) SACR 491
(N);
S
v B
1991 (1) SACR 405
(N) where the
substantive requirements of subsection (2) are authoritatively
elucidated and where it is indicated that the statement
should not
be a mere repetition of the bald allegations in the charge sheet, as
the procedure in section 112 of the CPA is intended
to be a
safeguard against a wrong conviction in the case of a plea of
guilty. The provisions of section 112(1)(b) read with (2)
of the CPA
were intended to replace the requirement of
aliunde
evidence in addition to a plea of guilty in terms of section
258(1)(b) of the repealed 1955 CPA, Act 56 of1955, which was also
designed to minimise the risk of a wrong conviction on a plea of
guilty and, therefore, decided cases on this point under the
previous dispensation are still of importance –
S
v Cook
1977 (1) SA 653 (A).
[11]
A Kruger
Hiemstra’s Criminal Procedure
(Loose-leaf
annotated ed) 17-11: The substantive requirements of subsection (2)
are further elucidated in
S v B
1991 (1) SACR 405
(N) where the point is stressed that the statement
should not be a mere repetition of the bald allegations in the
charge sheet.
In such a case the
presiding officer must obtain the necessary elucidation by means of
questions.
” – Italics
added.
[12]
See A Kruger
Hiemstra’s
Criminal Procedure
(Loose-leaf
annotated ed) 24-75: “
Only at
plea of not guilty
–Only when
there is a plea of not guilty and the accused has consequently
joined issue with the state can admissions be
converted into proof
in this manner (
R v Fouché
1958 (3) SA 767
(T) at 777). When there is a plea of guilty, no
facts are in dispute. An admission can, according to section 220(1),
only be
made with regards to facts “placed in issue at such
proceedings”.”
[13]
Ibid
.
[14]
E.g., see
S v Qinta
1979 (2) SA 326
(O) at 327H-328A;
S v
Witbooi
1978 (3) SA 590
(T) at 595A;
S v Matlabeng en ‘n Ander
1983 (4) SA 431
(O) at 434E (in which
S v Qinta
was
followed without discussion).
[15]
1978 (4) SA 516 (N).
[16]
A Kruger
Hiemstra’s
Criminal Procedure
(Loose-leaf
annotated ed) 17-11.
[17]
See section 274 of the CPA.
[18]
Emphasis added.
[19]
The requirements as set out in
R
v Blom
1939 AD 188
at 202-3 have
therefore been met in that, (1) the inference is consistent with all
the other proved facts in the case and, (2)
the proven circumstances
are such that they exclude every reasonable inference from them save
the one sought to be drawn.