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[2007] ZASCA 102
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S v Naidoo (433/06) [2007] ZASCA 102; [2007] SCA 102 (RSA) (14 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
NOT REPORTABLE
Case number : 433/06
In the
matter between :
MINNELDHEVI
IRIS NAIDOO
.......................
APPELLANT
and
THE STATE
.......................
RESPONDENT
CORAM : BRAND, LEWIS
et
COMBRINCK JJA
HEARD : 4 SEPTEMBER 2007
DELIVERED : 14 SEPTEMBER 2007
Summary
: Criminal Procedure –
plea of guilty to attempted murder – Magistrate on the facts
correct in not invoking s 113(1)
of the Criminal Procedure Act
Neutral citation
: This
judgment may be referred to as
Naidoo v The
State
[2007] SCA 102 (RSA)
JUDGMENT
_______________________________________________________
COMBRINCK JA
/
COMBRINCK JA
:
[1] This is an unusual case of a legally represented
accused who pleaded guilty to a charge of attempted murder, made a
full statement
in terms of
s 112(2)
of the
Criminal Procedure
Act 51 of 1977
admitting all the essential elements of the offence,
was convicted and then appealed against her conviction. The basis of
the appeal
is that as a consequence of evidence which emerged during
the sentencing phase of the trial it should have appeared to the
regional
magistrate that the appellant may have a valid defence to
the charge and she should accordingly have invoked the provisions of
s 113(1)
of the Act.
[2] The appellant, a 35 year old widow, was charged in
the Regional Court sitting at Verulam, Kwa-Zulu Natal with the crime
of attempted
murder. The charge sheet recorded that she was alleged
to have ‘incited/instigated/procured a black male, Bonginkosi,
to shoot
the complainant (Selvin Pillay, also referred to in evidence
as Roland Chetty) which would have resulted in his death and with
intent
to murder him’. I shall refrain from commenting on the
drafting of this document.
[3] On arraignment the appellant pleaded guilty and her
attorney then read the following statement in terms of
s 112(2)
of the Act into the record:
‘
1.
I, the undersigned,
MINNELDHEVI IRIS NAIDOO
Confirm that I know and understand the
charge that is being preferred against me as contained in the charge
sheet.
2.
I wish to plead Guilty to the charge of
Attempted Murder, freely and voluntarily and without any threat or
promise being made to me.
3.
The facts upon which I plead guilty are
as follows:
3.1 on or about April 2003, I received a
telephone call from my youngest sister Visparani Chetty.
3.2 Visparani was extremely upset and
told me that she had had an argument with her husband Roland Chetty
and that he had assaulted
her. She also asked to see me.
3.3 I immediately proceeded to her house.
I was worried about her as this was not the first time she had been
assaulted by Roland.
3.4 When I arrived at Visparani’s
house, I calmed her down and we spoke about what had happened. She
told me that she did not
want Roland in her life anymore because she
was tired of his behaviour.
3.5 I then told Visparani that I knew of
someone who could help up with this problem and she told me to
contact the person.
3.6 I then phoned Bonginkosi who used to
come to our area quite often selling various items. I explained to
him that Visparani was
having problems with her husband and that we
needed his assistance to get rid of her husband.
3.7 By getting rid of Roland, I mean that
Bonginkosi must kill Roland.
3.8 Bonginkosi agreed to do so for a fee
of R10 000.00 which was payable after Roland was killed. No
amount would be paid before
the killing.
3.9 It was also agreed with Bonginkosi
that he would kill Roland by shooting him. This would be done at
Roland’s house when
Roland returned from work sometime between
18h00 and 18h30.
3.10 After my conversation with
Bonginkosi I then telephoned Hollard Life. I proceeded to take out a
life insurance policy on Roland’s
life. The beneficiary on the
policy was Visparani.
3.11 Approximately two weeks later, I
went to Absa Bank, Phoenix Plaza. I deposited a sum of R124.00 into
Roland’s account so
that the debit order for the insurance
policy could go off. I confirm that the account details were given to
me by Visparani.
3.12 A few days later, I went to
Visparani’s house with my friend Anand.
3.13 I confirmed with her that I had paid
the amount into Roland’s account and that I was waiting for
Bonginkosi to confirm
the date that he would kill Roland.
3.14 I did not receive confirmation of
the date from Bonginkosi but a few days later I heard that there had
been a shooting incident
at Visparani’s house and that Roland
had been shot – but had not died as a result thereof.
3.15 I later learnt that Roland had
sustained an injury to the shoulder where the bullet had grazed him.
3.16 I admit that I was aware at all
material times that my actions were wrong and unlawful and that I had
no right to try and kill
Roland.
3.17 I also admit that due to his
treatment of my sister, I intended to kill him by contracting
Bonginkosi to shoot him.
3.18 I confirm that I have no defence in
law for my actions.
Dated at Verulam on this the
14
th
day of July
2004.’
[4] The magistrate recorded that she was satisfied that
all the essential elements of the charge had been admitted and duly
convicted
the appellant. The court called for a probation officer’s
report and after receipt of such report and hearing evidence in
mitigation
of sentence, the magistrate sentenced the appellant to
five years’ imprisonment in terms of
s 276(1)(i)
of the
Act. The appellant appealed to the full bench of the Natal Provincial
Division against her conviction and sentence (leave
was refused by
the magistrate but granted on petition by the Judge President). The
appeal was unsuccessful and with leave of the
full bench the
appellant now appeals to this court.
[5] The basis of the appeal as formulated by counsel for
the appellant is the following: The evidence of the probation officer
and
that of the appellant’s sister, Visperani (which appears to
be the correct spelling of her name), led in mitigation of sentence
disclosed that the appellant may have a defence to the charge she
faces. That being so, the magistrate should have invoked the
provisions
of
s 113(1)
of the Act and recorded a plea of not
guilty and required the State to proceed with its case. The
magistrate not having done so,
the appellant is entitled to an order
from this court referring the matter back in terms of
s 312
of
the Act with the instruction that
s 113(1)
be invoked.
[6] The passages in the evidence relied upon for these
submissions are the following: First, as far as the probation officer
is concerned,
the following paragraphs in her report:
‘
(vii)
The accused discussed her plans with one Bonginkosi who was a vendor.
She offered him R10 000 to execute the plans in the
form of a
hijacking. Payment would be made upon receipt of the insurance
payout.
The accused reported that
approximately 2 days before the execution of the plans she and her
sister decided to dispense with the
plans, however, they could not
contact Bonginkosi.’
Secondly, in the evidence of the
appellant’s sister, the following passages:
‘
MS
NAIDOO
[the
defence attorney] Is it also correct that you knew that she was
arranging the hitman? --- Yes, but we did stop it.
Yes, now obviously an attempt was made on
your husband’s life, so what do you mean when you say you did
stop it? --- From the
beginning I did agree to it and before the
attempt could be carried out I told her to stop it but she said that
she couldn’t
get in touch with them.
So she did try to stop it? --- Ja.’
And:
‘
And
when she suggested to you “let’s kill your husband”,
what was your response? --- I was reluctant at first and
over a
period of time I adjusted to it. I told her to go ahead but I did
stop it as well.
You were reluctant at first, in what
manner did you display your reluctance to her? --- I told her no and
I told her like no.’
[7] The possible defences arising from these passages,
submitted counsel, are twofold. The first is that the possibility
exists that
Bonginkosi, contrary to the agreement with the appellant,
on his own volition went ahead and attempted to shoot and kill the
complainant.
That he would act in this manner was not subjectively
foreseeable by the appellant. This argument was premised on the
supposition
that it had been agreed between Bonginkosi and the
appellant that before the former would go ahead and carry out his
part of the
bargain, ie, shooting the complainant, the latter had to
take out the insurance policy on the complainant’s life and
then confirm
with Bonginkosi that she had done so. Only then would a
date for the execution of the complainant be agreed upon. Asked where
evidence
was to be found for this version of the agreement between
the appellant and Bonginkosi, counsel conceded that there was no
direct
evidence but submitted that it be found as a necessary
inference from the facts that this was what was agreed upon.
[8] I am at a loss to understand how the version of the
contract put forward by counsel can be gleaned from the facts, even
by way
of implication. Neither in the
s 112(2)
statement, nor in
the report of the probation officer, is there any suggestion that
Bonginkosi was to await confirmation of the fact
that the insurance
policy had been taken out before proceeding with the plan. Why, one
asks rhetorically, after taking out the policy
and depositing the
money to cover the first premium, did the appellant not telephone
Bonginkosi and tell him to go ahead, if that
was their agreement?
From the time frames revealed in the probation officer’s report
we know that the appellant only purported
to withdraw from the
conspiracy two days before the actual shooting took place. She had by
then telephonically taken out the policy
and paid the premium two
weeks later. Everything was therefore in place and yet the appellant
didn’t phone Bonginkosi to confirm
that he was free to go
ahead. The reason is obvious. There was no such agreement.
[9] The second defence which counsel submitted may have
been open to the appellant is that on the evidence referred to she
withdrew
from the common purpose at a stage before her actions became
in law an attempt to commit the offence. The full bench found that
the
appellant’s actions before she purported to withdraw,
amounted to a completed attempt and her so-called withdrawal was
irrelevant.
Counsel, with reference to a number of decided cases,
attacked this finding. It is unnecessary to enter into the debate of
when an
attempt in law is complete on a charge of incitement and
procurement. I say this because on the evidence relied upon by
counsel it
cannot be said that there was a withdrawal by appellant
from the common purpose. The appellant had set in motion a series of
events
which would have culminated in the death of the complainant.
She had hired Bonginkosi for a fee to shoot and kill her intended
victim,
she had identified the victim, where he lived and what time
he would be at home. She took out the insurance policy and paid the
premium
to ensure that she would be able to pay the assassin once the
deed had been done. All this had taken place before she purported to
withdraw. What evidence is there then that she attempted to interrupt
the chain of events which she had set in motion? In her very
full
s 112
(2) statement there is no suggestion that she
withdrew or attempted to withdraw from the common purpose. On her
sister’s
evidence it was she, Visperani, who decided not to go
ahead. The only evidence that the appellant decided to withdraw is to
be found
in a quoted paragraph from the probation officer’s
report. That only records that the appellant and her sister decided
not
to go ahead with the plan but could not contact Bonginkosi. Apart
from the fact that there is a singular lack of detail as to what
steps were taken to try and get hold of Bonginkosi, the least one
could have expected, if there had been a genuine desire to withdraw,
was that the appellant would warn the complainant of the imminent
danger. The time and place had been agreed where the shooting was
to
take place. A timeous warning to the complainant would have averted
the subsequent attempt on his life. It may also be noted that
the
purported attempt to contact Bonginkosi to call off the plan, gives
the lie to the first defence raised. If, as was submitted,
the
execution of the plan by Bonginkosi was conditional, as outlined
above, what was the necessity of attempting to contact Bonginkosi?
He
was not supposed to go ahead, so it was suggested, until the
insurance policy was in place.
[10] In summary, in my view, there is little or no
evidence of a withdrawal from the common purpose on the part of the
appellant which
would have warranted the magistrate invoking the
provisions of
s 113(1)
of the Act.
[11] On the appeal against sentence, counsel submitted
that the magistrate had erred and misdirected herself, that this
court was
accordingly at large to interfere and that an appropriate
sentence would be one in terms of
s 276(1)(h)
of the Act. The
first misdirection claimed by counsel was that the magistrate made a
finding that the appellant was motivated by
greed and when there was
no evidence to support this finding. The beneficiary in terms of the
policy was Visperani and she alone
stood to gain. The magistrate did
not find that the appellant was motivated by greed. She said in her
judgment on sentence that there
was an element of greed present. She
got this from the probation officer’s report in which it was
recorded that there was an
element of monetary gain from the
complainant’s death. I do not see how this can be construed as
a misdirection. The second
misdirection claimed was that the
magistrate failed to take account of the fact that the appellant was
not a danger to society. Counsel
appears to have overlooked the
following passage in the magistrate’s judgment:
‘
The
Court must also consider that you have taken responsibility for what
you have done and in being first of all coming out clean
about this
from the outset, and that is an indication that you want to take
responsibility, that the prognosis, so to speak, or the
chances of
you actually rehabilitating are quite strong and that means you don’t
have to be forced to rehabilitate. It means
that you can rehabilitate
and that is good for society. It means that you would not be out
there and become a risk for the rest of
the people who would be
concerned in this. The whole community would be at risk if you are
not capable of rehabilitation and this
is a crime, so naturally
society has to be concerned about what the Court does about your
sentence today.’
Counsel had to abandon reliance on the alleged third
misdirection, namely that the magistrate had not taken into account
that the
complainant had forgiven the appellant after he was referred
to a passage in the judgment where the magistrate clearly did have
regard
to this fact. Lastly, it was claimed that no weight was
attached to the purported withdrawal from the common purpose by the
appellant.
As pointed out above, there was little or no evidence of a
genuine withdrawal and the magistrate cannot be faulted for not
taking
this into account. There was, in my view, no misdirection on
the part of the magistrate. That being so, it is trite that this
court
will not interfere.
[12] I agree with the sentiments of the court
a
quo
that the magistrate erred on the side of
leniency when imposing sentence. The aggravating features far
outweigh the mitigating factors.
To hire an assassin to kill a family
member for reward, surreptitiously take out a policy on his life and
pay the first premium and
then allow the execution to go ahead, is
indeed a horrendous crime. A far more severe sentence was called for.
[13] The appeal, both against conviction and sentence,
is dismissed.
……………………
P C
COMBRINCK
JUDGE OF
APPEAL
Concur
:
BRAND JA
LEWIS JA