About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 166
|
|
Nongogo v S (852/2020) [2021] ZASCA 166 (3 December 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 852/2020
In
the matter between:
NOXOLO
VICTORIA
NONGOGO APPELLANT
and
THE
STATE RESPONDENT
Neutral
Citation:
Nongogo v The State
(Case
no 852/20)
[2021] ZASCA 166
(03 December 2021)
Coram:
SALDULKER ADP and MOCUMIE, MOKGOHLOA,
NICHOLLS and GORVEN JJA
Heard:
12 November 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be have been at 09h45 on
03 December 2021.
Summary:
Criminal law and procedure –
conviction of murder and conspiracy to commit murder – whether
the court a quo erred in
convicting the appellant on both conspiracy
to commit murder as well as murder – special entry –
whether an irregularity
had been committed in ordering the trial to
start de novo before another judge.
ORDER
On
appeal from:
Eastern Cape Division
of the High Court, Mthatha (Mjali J, sitting as
court of first instance):
1 The
appeal succeeds to the extent that the conviction and sentence on
conspiracy
to commit murder is set aside.
2 Save
for the aforegoing, the appeal is dismissed.
3 The
conviction and sentence on the count of murder are confirmed.
JUDGMENT
Nicholls
JA (Saldulker ADP and Mocumie, Mokgohloa and Gorven JJA concurring)
[1]
The
appellant, 44 years old at the time, was found guilty on two counts
in the Eastern Cape Division of the High Court, Mthatha
(per Mjali J)
in 2013. The first was murder and the other conspiracy to murder her
husband. For the purposes of sentencing
both counts were taken
together and she was sentenced to life imprisonment in terms of the
minimum sentencing provisions embodied
in
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
[2]
The
appellant applied for leave to appeal against conviction and
sentence. Leave to this Court was granted by the high court on
two
aspects, namely ‘on the strength of the special entry that was
entered during the trial’ and whether the conviction
on both
the counts of murder and conspiracy to commit murder amounted to a
duplication of convictions.
[3]
The
State has conceded that the appellant should have been convicted of
either murder or conspiracy to commit murder, but not both.
This
was explained in
S
v Fraser
:
[1]
‘
Normally,
where a person conspires with another to commit a crime and the crime
in question is committed, then the conspirator is
liable for the
crime itself and should be so charged: See Burchell
South
African Criminal Law and Procedure
vol 1 General Principles
of Criminal Law 3rd ed at 367 and cf
R v Milne and
Erleigh
(7)
1951 (1) SA 791
(A) at 823G.’
This
concession is well made and therefore the appeal on duplication of
convictions must succeed.
[2]
All
that remains for consideration is the special entry.
[4]
Section
317 of the Criminal Procedure Act 51 of 1977 (the Act) provides that:
‘
(1)
If an accused is of the view that any of the proceedings in
connection with or during his or her trial before a High Court are
irregular or not according to law, he or she may, either during his
or her trial or within a period of 14 days after his or her
conviction or within such extended period as may upon application (in
this section referred to as an application for condonation)
on good
cause be allowed, apply for a special entry to be made on the record
(in this section referred to as an application for
a special entry)
stating in what respect the proceedings are alleged to be irregular
or not according to law, and such a special
entry shall, upon such
application for a special entry, be made unless the court to which or
the judge to whom the application
for special entry is made is of the
opinion that the application is not made bona fide, or that it is
frivolous or absurd or the
granting of the application would be an
abuse of the process of the court.’
[5]
During
the course of the trial the court a quo entered a special entry on
the basis of the following facts. The appellant was initially
charged
together with one Temba Tsekemane (Mr Tsekemane) for the murder
of her husband before Griffiths J in the high court.
Both
pleaded not guilty. After 12 state witnesses had been led,
Mr Tsekemane changed his plea to one of guilty, which plea
was
accepted by the State. This prompted Griffiths J, at the
instance of the State, to grant a separation of trials in terms
of
s 157 (2) of the Act. The trial of the appellant was
ordered to commence
de novo
.
Mr Tsekemane was found guilty of murder, and acquitted on conspiracy
to murder. He was sentenced to 20 years’ imprisonment.
[6]
Pursuant
to the order of Griffiths J, the trial of the appellant commenced
before Mjali J. During the cross-examination of Mr Tsekemane
it
came to light that he had previously been charged together with the
appellant for the same offences. Both parties were instructed
to
address the court on whether the fact that the appellant was being
charged for the same offence but before a different judge
amounted to
an irregularity. The court a quo then made a ruling that a special
entry be entered in the record.
[7]
The
wording of the special entry is lengthy but the crux of the special
entry is the following:
(a)
Whether it was permissible for Griffiths J to have ordered a
separation of the trials of Mr Tsekemane
and the appellant at such a
late stage of the proceedings;
(b)
whether it was irregular to have ordered that the trial of the
appellant commence
de novo
before another judge when there was
no order nullifying the trial before Griffiths J;
(c)
whether Mr Tsekemane could be called as a state witness in the trial
of the appellant in the court
a quo;
(d)
whether the appellant’s fair trial rights had been violated by
the unreasonable delay in finalising
her matter; and
(e)
whether the appellant had been tried twice for the same offence.
[8]
After
the special entry had been entered the trial proceeded before Mjali J
who duly convicted the appellant of both murder and
conspiracy to
murder and sentenced her to life imprisonment.
[9]
In
order to determine whether any irregularity has occurred it is
necessary to have regard to s 157 (2) of the Act which
provides:
‘
(1).
. .
(2)
Where
two or more persons are charged jointly, whether with the same
offence or with different offences, the court may at any time
during
the trial, upon the application of the prosecutor or any of the
accused, direct that the trial of any one or more of the
accused
shall be held separately from the trial of the other accused, and the
court may abstain from giving judgment in respect
of any of such
accused.’
[10]
The
main test in deciding whether to grant an application for separation
is whether there will be prejudice to the accused. In
R
v Zonele and Others
[3]
the converse occurred in that a special entry had been entered
because the trial judge had
not
ordered a separation of trials after one of three co-accused had
pleaded guilty. The trial judge had permitted the trial to proceed
in
respect of all the accused, including the accused who had changed his
plea to one of guilty. He had also given a verdict simultaneously
on
all the accused. This was alleged to be irregular. Holmes AJA, found
that once the one accused had pleaded guilty, his trial
should have
been separated from that of the other accused. Reference was made to
s 155 of the previous Criminal Procedure
Act 56 of 1955, which
is substantially the same as s 157 of the present Act, and the
learned judge stated that a separation
of trials was the prudent and
established practice where one of the accused changed his plea to one
of guilty. However, this was
not compulsory and the failure to
separate did not per se result in the convictions being set aside.
Emphasising that prejudice
to the accused is the overarching
consideration, the court held that on the facts of that matter, where
there was overwhelming
evidence against all of the accused, the
conviction did not fall to be set aside.
[11]
The
general rule, therefore, is that once an accused changes their plea
to one of guilty it is necessary to separate the trials,
entertain
the guilty plea, and order that the trial against the other accused
start
de
novo
.
[4]
The exception is where the interests of justice dictate otherwise.
[5]
In this matter it is self-evident that the failure to separate would
have caused prejudice to the app
ellant.
Both Mr Tsekemane and the appellant were represented by the same
legal representative. Inevitably a conflict of interest
would have
arisen. To ensure a fair trial it was prudent to order that the trial
commence before another judge. There was no irregularity
committed by
Griffiths J by ordering a separation of the trials and, in fact, the
appellant may have had grounds for complaint
had a separation not
been granted.
[12]
As
regards to whether Mr Tsekemane could be called as a witness against
the appellant, it is a long established principle that an
accused
person who has pleaded guilty can be called to give evidence against
the other accused once the trials have been separated.
[6]
As far back as 1951 Schreiner JA held that when an accused charged
with the same offence, changes his plea to one of guilty, he
is a
competent witness against the remaining accused in their trials.
Further, the court held that it makes no difference whether
the
person who has pleaded guilty to the joint charge and been convicted,
has been sentenced or not before being called as a state
witness.
This is open to some doubt but in any event it does not arise in this
matter as Mr Tsekemane had already been sentenced
before he testified
against the appellant.
[13]
The
delay in finalising the matter should be seen against the backdrop of
the chronology of events. In the first trial Mr Tsekemane
was
convicted pursuant to his changed plea on 16 November 2011 and
sentenced accordingly on 18 November 2011. The trial of the
appellant
commenced on 20 February 2012. She was convicted on both counts
on 11 July 2013 which were treated as one for
the purposes of
sentence. On 4 March 2014 the appellant applied for leave to
appeal and on 15 May 2014 leave to appeal was
granted to this court
on the issue of the special entry and the duplication on conviction.
It appears that the appellant did not
prosecute the appeal for a
period of more than five years until 15 September 2020 when the
appellant submitted an application
for condonation for the late
filing of the notice of appeal and the appeal record. On
30 April 2021 the appellant’s
heads of argument were
filed with this Court. In these circumstances where the delay in the
finalisation of the matter lies squarely
at the door of the
appellant, there is no basis for finding that the delay has violated
her constitutional fair trial rights.
[14]
The
final issue raised in the special entry was whether the appellant had
been charged twice with the same offence. Once charged
with an
offence an accused person is entitled in terms of s 106 of the
Act to plead that he or she has already been convicted,
or
alternatively, acquitted of the offence. The appellant did not demand
a verdict in terms of s 106 (4) of the Act
[7]
or plead
autrefois
acquit
or
autrefois
convicti
.
Indeed, she was not entitled to, as s 157 (2) specifically
states that the court may abstain from giving judgment. After
a
separation of trials the accused is tried afresh. The court a quo’s
concerns in this regard are unwarranted.
[15]
The
issues raised in the special entry have no merit. There was no
irregularity committed by Griffiths J that vitiated the proceedings
before the court a quo and the special entry should not have been
entered into the record. The appeal in respect of the special
entry
must fail. The appeal on duplication of convictions succeeds and
insofar as this may have an impact on the overall sentence,
the court
a quo found no substantial and compelling circumstances to depart
from the prescribed minimum sentence for murder. This
finding is
unimpeachable and, for that reason, the sentence of life imprisonment
is appropriate.
[16]
In
the result the following order is made:
1
The appeal succeeds to the extent that the conviction and sentence on
conspiracy to
commit murder is set aside.
2
Save for the aforegoing, the appeal is dismissed.
3
The conviction and sentence on the count of murder are confirmed.
C
NICHOLLS
JUDGE
OF APPEAL
APPEARANCES:
For
appellant: L D Halam
Instructed
by: Mdledle-Malefane &
Associates, Mthatha
Webbers
Attorneys, Bloemfontein
For
respondent: M L Makubalo
Director
of Public Prosecutions, Mthatha
Director
of Public Prosecutions, Bloemfontein
[1]
S
v Fraser
2005 (1) SACR 455
(SCA) para 7.
[2]
S
v Whitehead and Others
[2007] ZASCA 171
;
2008 (1) SACR 431
(SCA) para 33.
[3]
R
v Zonele and Others
1959
(3) SA 319
(A) at 325.
[4]
A
Kruger
Hiemstra
Criminal Procedure
Chapter 22 (Online Edition, May 2021) at 22-36;
S
v Somicza
1990
(1) SA 361
(A) at 365 D-E.
[5]
R
v Nzuza
1952 (4) SA 376
(A) at 381 G;
R
v Solomon
1934 CPD 94
at 96.
[6]
Ex
Parte v Minister of Justice: in re R v Domingo
1951 (1) (A) 36 at 38 F-G.
[7]
Section
106 (4) provides that: ‘
An
accused who pleads to a charge, other than a plea that the court has
no jurisdiction to try the offence, or an accused on behalf
of whom
a plea of not guilty is entered by the court, shall, save as is
otherwise expressly provided by this Act or any other
law, be
entitled to demand that he be acquitted or be convicted’.