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[2015] ZAKZDHC 5
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Kisten v S (AR686/13) [2015] ZAKZDHC 5 (28 January 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case No: AR686/13
In the matter
between
SHANDEL ANNE
KISTEN
..............................................................................................
APPELLANT
and
THE
STATE
...................................................................................................................
RESPONDENT
JUDGMENT
Delivered on: 28
January 2015
WOODLEY J
[1] The appellant
was charged in the Durban Regional Court with the murder of her
stepfather on 15 October 2009, when she was 15
years and 9 months
old. Assisted by her mother, she pleaded guilty to the murder on 25
May 2011.
[2]
The appellant, who was legally represented at all material times
during the trial and on appeal by attorney Siven Samuel ('SamueP),
confirmed to the learned magistrate in the court a
quo,
that
she understood the charge against her and agreed with the contents of
her statement in terms of Section 112(2) of the Criminal
Procedure
Act 51 of 1977 (the Act). In the statement, the appellant set out the
events that preceded the murder and thereafter
described how she
strangled the deceased and attempted to create the impression that he
had committed suicide. However a few days
after the murder she was
overwhelmed with guilt and confessed to her mother and subsequently,
after her arrest, to the police.
[3] The state,
represented by prosecutor Ms Val Mellis, accepted the facts as set
out in the statement. When the magistrate queried
the motive for the
murder with Samuel because the statement did not disclose the motive,
Samuel responded that the motive would
be set out during sentencing.
The magistrate then convicted the appellant as charged on the basis
of her Section 112(2) statement
without questioning her further on
its contents and adjourned the trial for presentence reports to be
prepared,
[4] The sentence
proceedings commenced on 11 April 2012, when the appellant was over
18 years of age. In the interim she had commenced
a relationship and
gave birth to a child on 29 October 2011. Three presentence reports
by the probation officer, N L Mdletshe,
social worker and Chiidline
Counsellor, Joan van Niekerk, and the correctional supervision
officer, A N Moodley were admitted in
evidence. The compilers
testified and were crossexamined on the contents of their reports.
[5] At the
commencement of the proceedings on the following day, 12 April 2012,
Samuel brought an application to amend the averments
in the
appellant’s plea of guilty, which effectively changed the plea
from an admission of guilt to a plea of not guilty.
The learned
magistrate pointed out that the averments in the plea explanation
could not simply be amended without a proper basis
therefor,
especially as the report of the correctional officer in respect of
the allegations of the appellant, amounted to hearsay.
[6] The appellant
was then called to testify about her disclosure to Moodley, her role
and that of her mother in the murder. She
testified that she did not
plan the murder but became involved in it because she assisted her
mother. Her version was therefore
that she was an accomplice and not
the perpetrator of the murder. She alleged that she had decided to
disclose the second version,
which was the truth, because she
realised that she had been charged with premeditated murder and she
did not want to be in prison
without her baby, although it meant
implicating her mother. The appellant also admitted that she had made
false allegations against
Moodley and specifically conceded that the
allegations of sexual abuse were not the reason for the murder.
[7] The prosecutor
advised that both versions of the appellant were not inconsistent
with the contents of the docket. However she
contended that the
appellant’s credibility had been undermined by her failure to
take her attorney and the various persons
who interviewed her into
her confidence and by her false allegations in an affidavit against
Moodley and that the State and defence
had struck a deal about the
sentence. The prosecutor submitted that the plea ought not to be
amended in terms of Section 113 because,
although the appellant's
version had changed, she still admitted participation in the murder,
Therefore only the averments in her
plea ought to be amended to
correlate with the appellant's second version.
[8] The magistrate
however ruled that the appellant’s plea be changed in terms of
Section 113 to not guilty and accepted the
withdrawal of her
admissions. The state led no evidence and closed its case. The
magistrate convicted the appellant of murder on
the admissions she
had made in her statement in terms of Section 112(2) statement, after
rejecting her amended version of events
leading to the murder and
holding that the truth lay in her admissions in her original
statement in terms of Section 112(2). She
was sentenced to 10 years
imprisonment.
[9]
Her appeal against conviction and sentence lies with the leave of the
court
a quo.
The
appellant is on bail pending finalisation of the appeal proceedings.
Grounds of
Appeal
[10]
The main thrust of the appeal is that the proceedings in the court
a
quo
were
prejudicial to the appellant and not in accordance with justice as
the court
a quo
erred
in convicting the appellant on the basis of the admissions made in
her original Section 112(2) statement although she had
withdrawn
those admissions, the state had failed to prove that the appellant
had made her Section 112(2) statement voluntarily,
and the state had
led no evidence after the magistrate changed the appellant's plea in
terms of Section 113. Further the magistrate
had erred by entering
the arena and questioning the appellant and her witnesses at length.
Mr Samuel advanced several further arguments
that the conviction was
also not sustainable on the merits and the sentence imposed on the
appellant was inappropriate. He contended
that the appeal court
should therefore set aside the conviction and find the appellant not
guilty, alternatively order that the
trial commence
de
novo.
[11]
Mr Walters, who represented the state, concisely set out the
misdirections by the presiding magistrate and irregularities in
the
trial proceedings and conceded that as the proceedings were fatally
flawed, the conviction and sentence ought to be set aside
and the
matter be heard
de
novo.
[12]
If trial proceedings are flawed because of procedural irregularities
then the court of appeal may exercise its powers of review
in terms
of Section 304(2) read with Section 309 of the Act and set aside the
result in the court
a quo
without
pronouncing on the merits of the matter, I accordingly turn to a
consideration of the proceedings before the court
a
quo.
The law and
relevant legal principles
[13]
The procedure which follows upon a piea of guilty is prescribed by
Section 112 as read with Section 113. The former Section
provides
inter alia
for
the questioning of the accused in order to test the validity of his
plea of guilty and the latter Section makes special provision
for the
correction of a plea of guilty to one of not guilty.
‘
Section
112 : Plea of guilty
(1) Where an accused
at a summary trial in any court pleads guilty to the offence charged,
or to an offence of which he may be convicted
on the charge and the
prosecutor accepts that plea
…
.
(b)
the
presiding judge, regional magistrate or magistrate shall, if he or
she is of the opinion that the offence merits punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the
Minister
from time to time by notice in the
Gazette
,
or if requested thereto by the prosecutor, 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, and may, if satisfied that the accused
is
guilty of the offence to which he or she has pleaded guilty, convict
the accused on his or her plea of guilty of that offence
and impose
any competent sentence.
(2)
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 has 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.
(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.
Section 113 :
Correction of plea of guilty
(1)
If the court at any stage of the proceedings under Section 1l2(1)(aJ
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’
[14] The primary
purpose of a statement in terms of Section 112(2), which sen/es the
same purpose as questioning in terms of Section
112(1)(b), is to set
out the admissions of the accused and the factual basis supporting
the plea of guilty.
1
[15]
In
S
v
Nyambe
2
it
was held that the purpose of questioning in terms of Section 112(1)^
is to satisfy the court not only that an offence was committed
but
that it was the accused who committed it.
[16]
In
S v
Mshengu
Jafta
JA said:
'Section
112(2) requires that the statement must set out the facts which he
admits and on which he has pleaded guilty. Legal conclusions
will not
suffice. The presiding officer can only convict if he or she is
satisfied that the accused is indeed guilty of the offence
to which a
guilty plea has been tendered. If not, the provisions of Section 113
must be invoked'
3
[17]
Corrective action in terms of Section 113 can be taken at any time
before sentence is passed, that is even after a conviction.
4
[18]
It is also dear that when an accused applies to change his plea of
guilty in terms of Section 113, no onus should be placed
on him.
5
In
Qoko
v La Grange NO & Other
Jones
J
held:
'There
is every justification for not saddling an accused person with an
onus
where
he wishes to change his plea from guilty to not guilty at the trial
stage. The presumption of innocence, the duty on the prosecution
to
prove guilt beyond reasonable doubt, and our notion of what is meant
by a fair criminal trial within the framework of the Constitution
cry
out against imposing any kind of
onus
on
an accused person at that stage. All he need do is give a reasonable
explanation for wanting to change his plea.’
6
Proceedings
before the court
a
quo
[19] The learned
magistrate was concerned at the plea stage only with the failure of
the appellant to furnish a motive and raised
the issue with Samuel.
He however accepted Samuel’s submission that the motive would
be set out during the sentence proceedings
and convicted the
appellant on the basis that she admitted the facts on which the
charge was based, and that the legal requirements
for the commission
of the offence were adequately covered by the admissions.
[20] However no
clear motive emerged during the evidence of the witnesses who
testified when the trial resumed for sentence proceedings.
Instead
there were inconsistent reports of sexual impropriety on the part of
the deceased by the appellant. Ms Mdletshe reported
that the
appellant had informed her that although the deceased had always
played a supportive fatherly role towards her, she had
been sexually
harassed by the deceased and therefore planned to murder him. Ms Van
Niekerk reported that the appellant had once
described her
relationship with the deceased as ‘very close'; he provided for
all her needs and supported her and her mother,
In a later interview
the appellant had made some vague allegations of sexual abuse by the
deceased which were not repeated during
further consultations. Van
Niekerk noted that these allegations were also not discussed with the
school counsellor with whom the
appellant engaged. Moodley reported
that the appellant had described some incidents of inappropriate
behaviour on the part of the
deceased towards her which culminated in
his murder, which included an incident which she did not report to
Mdletshe or Van Niekerk.
[21]
Nevertheless, no clarification on these contradictory aspects of the
reports was sought by Mr Samuel. Instead he attempted
to elicit
concessions from these witnesses that the murder was not premeditated
and that a custodial sentence was inappropriate,
which the witnesses
refused to make. Despite a particularly concerted effort by Samuel to
get Van Niekerk to state that there was
no premeditation on the part
of the appellant, Van Niekerk persisted that the appellant had not
made full disclosure although she
was a young adult and capable of
making an informed decision.
7
She
also testified that she had recommended to the appellant that she did
not fall pregnant.
[22] It is
noteworthy that the reports of these witnesses had been made
available to the defence prior to the interrogation of the
reports in
court, Samuel would have been alive to the fact that the discretion
to impose an appropriate sentence vests in the presiding
officer, who
would consider the presentence reports and recommendations in order
to judicially determine an appropriate sentence.
The appellant
herself was advised that the sentencing discretion vests in the
magistrate and counselled on the prospect of serving
a custodial
sentence,
[23] However it was
only when, despite intensive cross-examination on the suitability of
a custodial sentence, all three witnesses
persisted that a term of
imprisonment was appropriate and /or that the appellant had refused
to acknowledge that the trial court
may impose such a custodial
sentence, that the application in terms of Section 113 was made,
immediately prior to the imposition
of sentence.
[24] It is therefore
apparent that only in the face of the looming reality of
imprisonment, did the appellant decide to change her
plea and retract
the admissions therein. In my view, although an accused may change
his or her plea at any time before sentence,
in the circumstances of
this matter, the timing of the application in terms of Section 113 is
of grave concern, as is the external
manipulation of the appellant
referred to by Van Niekerk, The extreme confidence of the appellant
that she would not be committed
to a correctional facility, and her
decision to have a child in the belief that this would influence the
sentence to be imposed
on her, also have the potential to seriously
undermine the public confidence in the constitutional imperative of
an independent
judiciary and dispensation of justice without
prejudice.
[25]
Nevertheless the learned magistrate correctly pointed out the need
for a proper basis for the application for change of piea.
However,
it is at this juncture that the proceedings became tainted with
material procedural irregularities. Firstly, the testimony
of the
appellant in the trial within a trial, which the magistrate and
counsel agreed was a proceeding
'sui
generis
insulated
from the main trial
5
,
was subsequently incorporated as evidence in the main trial, which
together with the admissions formed the matrix on which the
conviction of the appellant was determined.
[26]
Thereafter the magistrate allowed his frustration at the turn in the
proceedings to infuse his attitude towards the appellant
and
misdirected himself by subjecting her to extensive interrogation,
when there was no
onus
on
her, and she was required only to furnish a reasonable explanation
for the retraction of her plea. The allegation that she acted
under
duress and undue influence constituted, in my view, sufficient reason
to amend her plea, as Section 113(1) does not exclude
these common
law grounds for setting aside a plea of guilty. It would therefore
have been expedient and fair to the appellant to
proceed to trial
rather than embarking on a trial within a trial,
[27]
The learned magistrate also failed to consider that, as the appellant
denied that she had made the admissions in her statement
in terms of
Section 112(2) freely and voluntarily, thereby placing the issue of
voluntariness in dispute, the admissions could
not be considered part
of the evidential material nor could he determine the truthfulness or
otherwise of her aforesaid admissions,
as he did in his judgment,
without the state proving the voluntariness of the admissions
withdrawn by the appellant.
8
Hence
the reliance on
S
v Ncube
9
was
ill conceived, as the state failed to adduce the requisite evidence
and consequently failed to discharge its
onus,
once
the plea was changed in terms of Section 113(1).
[28]
I am persuaded that a failure of justice has resulted from these
material irregularities as the proceedings before the court
a
quo
were
not in accordance with justice. The proceedings, the conviction of
the appellant and the sentence imposed on her, consequently
fall to
be reviewed and set aside. As I am also of the view that the matter
should be remitted for hearing
de novo
before
another court, it not necessary nor advisable to comment further on
the credibility of the witnesses or the merits of the
matter.
[29]
However I am compelled to note my concern with the failure of the
prosecutor to disclose information available to her when
the plea of
guilty was tendered. The prosecutor accepted the facts set out in the
plea and did not raise any objections or concerns
nor did she request
the court to question the appellant to test the piea of guilty, as
the trial court must also pass judgment
on the reliability of the
admissions
10
.
Yet
in response to the application in terms of Section 113, when the
appellant’s amended plea was premised on a different
set of
facts, the prosecutor advised the court that both versions of the
appellant were not inconsistent with the contents of the
docket.
Notably, the appellant testified that the state had some suspicion
that her plea was not correct because of the discrepancy
between her
height and weight and that of the deceased.
[30]
But if the prosecutor was aware that the appellant may not have been
the perpetrator of the offence but an accomplice or that
she played a
lesser role in the perpetration of the offence, she was under an
obligation to disclose potentially exculpatory information
in her
possession to the court to enable the presiding officer to cover the
possible defence by questioning the accused, or elicit
information
which could impact on the determination of sentence.
11
[31]
In my view the prosecutor was so intent on securing a conviction that
she lost sight of her primary duty to ensure that justice
is done. In
S
v
Macrae
Wallis JA
pertinently
stated:
'It
needs to be stressed once again that the duty of prosecutors is not
to secure a conviction at all costs or to defend convictions
once
obtained. Their duty is to see that so far as possible justice is
done. As
Jones J
expressed
it in S
v Fani & Others
1994
(1) SACR 636(E)
at 638e-f:
‘
The
object of criminal proceedings in our law has never been to secure a
conviction at all costs. The duty of the prosecution is
to present
all the facts in an objective and fair manner so as to place the
court in a position to arrive at the truth.’
12
Order:
1 The trial
proceedings under Case No 41/2117/10 in Regional Court, Durban are
reviewed and set aside.
2
The conviction of the appellant and the sentence imposed on her by
the court
a quo
are
reviewed and set aside,
3
The matter is remitted to the Regional Court, Durban, for trial
novo
before another presiding
officer.
4 Bail granted to
the appellant is extended on the same conditions as presently
operating until her appearance in the Regional Court.
Moodley J
Chetty J
Date of Hearing: 28
August 2014
Date of Judgment:
For the Appellant:
Mr S Samuel
SIVEN SAMUEL AND
ASSOCIATES
344 Florence
Nightingale Drive
Westcliff
Chatsworth
4030
For the State: Adv
ASH WALTERS (from the Director of Public Prosecutions)
1
S
v Nixon 2000(2) SACR 79 (W) at 86g
2
1978
(1) SA 311 (NC) 312
3
2009
(2)
SACR
316 (SCA) at [7]
4
S
v
Nixon
2000
(2) SACR 79
(W) at 87
h;
S
v
Carter
2007
(2) SACR 415
(SCA) at 431
h~i
5
Du Toit Commentary on the
Criminal Procedure Act 17-40
6
2004 (2) SACR 521
(E) at 527c-d
7
page 35 line 21 - page 36 line 12
8
S v
Sewela
2007
(1) SACR 123
(W)
9
1981
(3) SA 511
(T)
10
S
vNaidoo
1985
(2) SA 32
(N) 37G-H
11
S
v Rozani; Rozani v Director of Public Prosecutions, Western Cape
2009
(1) SACR 540
(C)
12
2014
(2) SACR 215
(SCA) at 225 f-h