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[2014] ZAFSHC 5
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Pieters v S (A176/2013) [2014] ZAFSHC 5 (6 February 2014)
IN
THE HIGH COURT, BLOEMFONTEIN
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A176/2013
In
the appeal between:
PHOMAS
BUTLER PIETERS
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI,
AJP
et
MONALEDI, AJ
JUDGEMENT:
RAMPAI,
AJP
HEARD
ON:
25
NOVEMBER 2013
DELIVERED
ON:
6
FEBRUARY 2014
[1] This is an
appeal against the conviction as well as the sentence. The
appellant and another were charged, convicted
and sentenced together
in the district court. A custodial sentence was then imposed on
each.
[2] The
appellant, who was accused number 2 in the district court, was
initially aggrieved by his sentence only.
He then sought a
second legal advice. After obtaining such legal opinion, he
also questioned the correctness or soundness
of his conviction as
well - hence the appeal.
[3] The
appellant’s co-accused was a certain Mr Khama Patrick Khama.
He was not before us on appeal.
The two gentlemen were accused
of unlawfully selling unpolished diamonds. That was the main
charge. The alternative
charge was that they unlawfully
possessed unpolished diamonds.
[4] The
prosecution alleged that the accused persons unlawfully sold 8
unpolished diamonds, which weighed 5.72 and 3.15
carats and whose
value was R15 703.00, to one J J du Toit for the price of
R25 000.00 near Johnny’s Service Station
at Ficksburg on 9
December 2012. Such sale, the prosecution alleged further, was
in contravention of section 19(1) of the
Diamonds Act 56 of 1986 read
with specified related sections.
[5] As
regards the alternative charge, the prosecution alleged that the
accused unlawfully had in their possession 8,
unpolished diamonds
which weighed 5.72 and 3.15 carats and whose value was R15 703.00
near Johnny’s Service Station
at Ficksburg on 9 December 1986
read with specified related provisions.
[6] The
appellant’s co-accused pleaded guilty to the main charge.
His statement in terms of
section 112
of the
Criminal Procedure Act
51 of 1977
was read into the record, handed in and labelled as
exhibit “a”. He was legally represented. The
appellant
also pleaded guilty to the main charge. His statement
in terms of
section 112
(2) of Act No 51 of 1977 was read into the
record, handed in and marked exhibit “c”. He too
was legally represented.
On 17 January 2013 the appellant was
convicted on his plea as was his co-accused.
[7] After
their conviction, the district magistrate remanded the trial for
sentence. On 25 January 2012 the appellant
was sentenced to 4
years imprisonment. His co-accused was sentenced to 5 years
imprisonment in terms of section 276(1) of
Act 51 of 1977.
[8] On 30
January 2013 the appellant, aggrieved by the sentence imposed on him,
applied for leave to appeal against
the sentence only. The
district magistrate denied him leave to appeal. He was legally
represented by Attorney A P Botha.
[9] About
three weeks later, on 19 February 2013 to be precise, the appellant
was back in the same court. On that
occasion he applied for
leave to appeal against the conviction only. Yet again his
application was unsuccessful.
[10] Then the appellant
approached this court by way of a petition. His petition was
considered by Moloi J
et
Zietsman AJ. His petition was
successful. On 4 December 2013 he was granted leave to appeal
against both the conviction
and the sentence.
[11] As regards
conviction, Mr Nel, counsel for applicant, submitted that there
existed exceptional circumstances in
casu
to warrant appellate
interference with the verdict even though such verdict was premised
on the appellant’s plea of guilty
in terms of
section 112
of
the
Criminal Procedure Act 51 of 1977
. Counsel submitted that
the appellant’s written statement – exhibit “c”
was substantially defective
and that the district magistrate’s
wholesome acceptance thereof was irregular.
[12] The relief sought is
not lightly granted. To interfere on appeal, with a conviction
based on an accused’s own plea,
the court must be satisfied
that the conviction was not in accordance with the interests of
justice.
[13] Notwithstanding the
fact that an appellant was convicted on his plea, an appeal may still
be noted against such conviction.
Hiemstra’s Criminal
Procedure Act at 17 – 14,
S v Mavhungu
1981 (1)
SA 56
(A) at 63G,
S v Carter
2007 (2) SACR 415
(SCA) at
423a –b.
[14] In
S v Mamba
1957 (2) SA 420
(A) at 422 (A) the court stressed that:
“…
it will only be in
exceptional cases that one who has pleaded guilty and been convicted
in accordance with his plea will be granted
relief on appeal.”
[15] The test to be
applied was set out in
S v Britz
1963 (1) SA 394
(T) at
398H – 399B:
“
The
accused wishing to withdraw his plea of guilty, must give a
reasonable explanation as to why he had pleaded guilty and now wishes
to change his plea.”
See
also:
S
v H en ‘n Ander
2004 (1) SACR 144
(TPD) at 147h – j;
Qoko
v La Grange NO and Others
2004 (2) SACR 521
(ECD). Obviously that test (forcefully)
applies where the accused admitted all the elements of the offence.
It follows,
therefore, that where the accused has not admitted one or
more elements, the test is less stringent or burdensome.
Where
an appellant who was convicted on his plea of guilty, appeals against
his conviction, the legal position is very similar to
the case where
an accused applies to withdraw his plea of guilty.
[16] I deem it necessary
to refer to certain provisions of the applicable statute:
·
Section
1 of the Diamonds Act No 56 of 1986 defines the word selling as
follows:
“
'sell'
,
in relation to an unpolished diamond, means to sell the unpolished
diamond, to offer or expose it for sale, barter or pledge or
for any
like purpose or to dispose of or deliver it for the purpose of
trade;”
·
Section
19(1) provides:
“
(1)
No person shall sell any unpolished diamond unless-
(a) he or she is a producer;
(b) he or she has manufactured that
diamond, if it is a synthetic diamond; or
(c) he or she is a dealer;
or
(d) he or she is
the holder of a permit referred to in section 26 (h).”
·
Section
19(2) thereof regulates the selling of unpolished diamonds and
provides:
“
(2)
The provisions of subsection (1) shall not be construed so as to
authorize such producer or dealer or holder of a permit to
sell any
unpolished diamond which has come into his or her possession in an
unlawful manner.”
·
Section
82(a) thereof criminalises the selling of unpolished diamonds and
provides:
“
Any
person who-
(a)
contravenes
a provision of section 18, 19 (1), 20, 21 or 55;
[Para. (a) substituted by
s. 11 of Act 10 of 1991.]
(b)
…
shall be guilty of an
offence.”
·
Section
87(a) thereof provides for the maximum penalty and states:
“
in
the case of an offence referred to in section 82 (a) or (b), to a
fine not exceeding R50 000, or to imprisonment for a period
not
exceeding ten years, or to both such fine and such imprisonment;”
[17] The appellant’s
written statement in terms of section 112(2) of Act No 51 of 1977 was
drafted as follows:
“
I,
the undersigned,
THOMAS BUTLER PIETERS
1.
I am accused number two in this
matter. The facts contained herein fall within my personal
knowledge and is the truth.
I fully understand the charge
against me and I hereby wish to plead guilty. I plead guilty
whilst at my full and sober senses
without being unduly influenced
and of my own free will. I especially want to plead guilty
because I have remorse for what
I have done wrong.
2.
The facts leading to this offence are:
2.1 On the 9
th
February 2012 and after a period when I was constantly contracted by
a buyer of diamonds, I arranged that the buyer and seller
meet in
Ficksburg and a transaction between them took place.
2.2 I admit that I was
responsible and that the value of the diamonds amounted to
R15 703,00.
3.
As far as the charge against me is
concerned, I specifically admit the following:
3.1 It took place on
the 9
th
February 2012.
3.2 I associate
myself with the fact that I wrongfully and intentionally committed
the offence I am charged with
by arranging a sale of diamonds.
SIGNED AT FICKSBURG THIS 17
TH
DAY OF JANUARY 2013.”
[18] The appellant’s
written statement in support of his plea of guilty was more important
for what it did not say rather
than what it actually said. The
appellant did not admit: that he was on the scene of the crime, in
other words, Johnny’s
Filling Station at Ficksburg on Thursday
9 December 2012; that he had unpolished diamonds in his unlawful
possession; that he expressly
offered them to the buyer namely: Mr J
J du Toit for sale or tacitly exposed them to him for that purpose,
bartered or pledged
or for any like purpose or that he disposed of
such diamonds or delivered them to the said buyer for the purpose of
trade.
[19] The high watermark
of the appellant’s actions in this whole saga was his final
admission that:
“…
I arranged that the
buyer and the seller meet in Ficksburg and a transaction between them
took place.”
Vide
2.1 exhibit “c”.
[20] The appellant also
specifically made subsidiary admissions that the value of the
unpolished diamonds was R15 703,00; that
the illicit transaction
took place on 9 February 2012; that he was responsible for
facilitating such a deal and that he committed
the offence by
arranging the unlawful sale of diamonds.
[21]
According to paragraph 2 it was apparent that the appellant
implicitly denied the allegation that he was the seller or the
purchaser of the unpolished diamonds. He accordingly did not
admit that he sold or purchased unpolished diamonds. Those
two
aspects of the charge sheet were fundamental elements of the
statutory offence we were dealing with. It was quite apparent
that the appellant’s plea or his acknowledgment of guilt was
not premised on the basic element of selling, but rather on
his
misconception of the law.
[22]
It was patently clear that he erroneously reckoned that by
facilitating the meeting between Mr J.J. du Toit and
Mr K.P. Khama
for the sale of unpolished diamonds he thereby criminally rendered
himself guilty by association. He stated
that he did not
actively participate during the actual negotiation or transaction
between the purchaser and the seller. Apart
from his role as a
facilitator, the appellant admitted nothing else which factually
linked him to the prohibited act of selling
unpolished diamonds.
There was no admission by the appellant or any other evidence to
suggest that he forked out the R25 000.00
purchase price or that
he traded any piece of unpolished diamond for that sum of the money
before, during or after the transaction.
His plea implies that
virtually nothing incriminating was found in his possession.
[23]
The appellant’s co-accused, Khama Khama, also pleaded guilty.
In his section 112(2) statement he also
explained that the appellant
only acted as an intermediary between him and a certain Mr du Toit, a
police trap.
[24]
In
S v Mshengu
2009 (2) SACR 316
(SCA) at 319 b –
c Jafta JA aptly commented:
“
[7]
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 s
113 must be invoked.
[8] The
statement tendered by the appellant in this matter must be examined
against the above backdrop.”
[25]
The presiding magistrate did not comply with his duties and
obligations in terms of section 112. A presiding
officer has a
discretion to put any question to an accused who pleads guilty by
means of a written statement, in order to clarify
any matter raised
in the statement.
The
trial magistrate erred by not questioning the appellant at all on the
actual contents of the statement. The statement
as such raised
aspects which clearly needed clarification.
Should
the magistrate have questioned the appellant, he would have realised
that the appellant did not handle the diamonds at all
nor did he act
in any way which may be construed as “selling”.
[26]
The magistrate misdirected himself in not properly considering the
wording of the section 112(2) statement, as
compared to the charge
sheet and the elements of the offence.
The
shortcomings in the magistrate’s compliance with the terms of
section 112 are defects or irregularities that resulted
in a failure
of justice. As a result, the appellant had an unfair trial.
There
were no sufficient facts on record to sustain the appellant’s
conviction. Compare
S
v Chetty
2008 (2) SACR 157
(WLD);
S
v Moya
2004 (2) SACR 257
(WLD) at 261 d.
[27]
In casu
the magistrate erred in accepting the plea of guilty.
He should, at the very least, have noted a plea of “not guilty”
in terms of section 113 in lieu of questioning. However, the
questioning of the appellant was the first right thing to do
or the
correct procedure to follow.
In
cases where a written plea explanation is handed in, the presiding
officer should still be satisfied that the particular accused
is
indeed guilty of the offence to which he pleads guilty. For
this purpose the presiding officer may question an accused
in order
to clarify any matter raised in the statement. Supine judicial
approach may lead to miscarriage of justice.
It is
the duty of the presiding officer to determine whether the accused
admits the allegations in the charge sheet and to satisfy
himself
that the accused is guilty. The presiding officer should see to
it that justice is done.
Questioning
acts as safety measure against unjustified convictions. See
S
v Naidoo
1989 (2) SA 114
(A) at 121 E.
[28]
The learned magistrate erred in not questioning the appellant on the
actual contents of his statement in terms
of section 112. He
should at least have questioned the appellant as to whether or not he
admited the actual act of selling
the diamonds to J.J. du Toit as
alleged in the charge sheet. He failed to determine whether the
appellant admitted all the
allegations in the charge sheet and
properly understood all the elements of the offence. The court
should satisfy itself
not only that an accused admits a specific
allegation, but also that he understands what such admission
entails. Cf.
S v Lebokeng
1978 (2) SA 674
(O) at
676C;
S v B
1991 (1) SACR 405
(N) at 405i –
406b. The statement contains the phrase that the appellant
considers himself guilty of the offence with
which he is charged.
He reckoned that “
by arranging a sale of diamonds”
he was just as guilty as someone who actually sold unpolished
diamonds. It is clear that the appellant did not properly
understand the essence of the offence he was charged with.
[29] It would
appear that the appellant’s attorney also did not appreciate
his client’s instructions and
the consequences thereof as well
as the elements of the crime charged. Compare:
S v Moya
2004 (2) SACR 257
(WLD) at 261c.
It
would seem that the magistrate did not even consider the contents of
the statement by the appellant’s co-accused.
Had he
properly applied his mind to the case as a whole, this last-mentioned
statement would have alerted him to the fact that
the appellant might
possibly have a defence to the charge preferred against him.
However, it must be borne in mind that the
district magistrate was a
relative novice on the bench.
[30] It
appears as if the prosecutor also did not apply his mind when he
accepted the appellant’s plea of guilty.
It was the same
prosecutor who later did
not
oppose the application for leave
to appeal against the conviction.
Record
p 95 / 9 – 14.
[31] In the
circumstances, I am persuaded that the appellant’s written
statement in terms of section 112(2) of Act No
51 of 1977 was
basically elementary flawed; that the statement substantially lacked
admissions or averments required to sustain
proper conviction.
The shortcomings rendered the statement materially inadequate and the
appellant’s plea of guilty
highly questionable. The
statement contained material defects.
[32] The defects in the
appellant’s written statement in terms of section 112(2) though
material, were not incurably fatal.
The prosecutor merely
accepted the statement on its face value. He regrettably
neglected to critically and analytically consider
the appellant’s
averments as embodied in the statement in order to ascertain that the
appellant admitted all the elements
of the crime of selling
unpolished diamonds. It appeared to me that the prosecutor’s
erroneous acceptance of the appellant’s
defective statement was
due to lack of experience. He did not deserve to be
castigated. I think he will acquire the
necessarily
prosecutorial skills and experience with the passage of time.
[33] The prosecutor’s
error notwithstanding, it was ultimately incumbent upon the district
magistrate, as the trial court,
to invoke the curative procedure in
terms of section 112(1)(b) in order to ascertain whether or not the
appellant admitted all
the elements of the charge. The
underlying purpose of the section is to make doubly sure that an
accused person who pleads
guilty, indeed has no possible defence –
S v Kholoane
2012 (1) SACR 8
(FB).
[34] At times accused
persons tend to plead guilty on account of ignorance of the law.
This is a classic example of such a
tendency. See
S v M
1982 (1) SA 240
(N) at 242D-E per Didcott J. It is imperative
therefore, for presiding judicial officers to be ever alert to and
mindful
of such potential dangers for unwary accused. Such
danger does not necessarily become diminished where, as in this
instance,
an accused is legally represented. Although exhibit
“c” was drafted by a lawyer, it was not a model of good
draftmanship.
It left much to be desired. The district
magistrate sadly failed to appreciate its material shortcomings.
By adopting
it as it was without applying section 112(1)(b) failed to
question the appellant in order to ensure that he properly understood
all the material factual allegations in the charge sheet and failed
to determine whether he correctly admitted all the elements
of the
offence. Therefore he failed to satisfy himself that the
appellant was indeed guilty in law. That, in my view
was a
material irregularity. Because the appellant was denied the
procedural protection created in terms of section 112(1)(b),
he was
wrongly convicted. The irregularities rendered his trial unfair
and resulted in a failure of injustice. The
statement could
have sustained a proper conviction. Accordingly I have come to
the conclusion that, in this matter, exceptional
circumstances
existed to justify the grant of the relief sought on appeal –
S
v Mamba
supra
. In the circumstances I am
inclined to interfere with the verdict.
[35] As regards sentence,
the issue should not detain us any longer in view of the conclusion I
have reached concerning the verdict.
It follows, as a matter of
logic, that once the conviction is set aside, the sentence
automatically falls away. Mr Nel fairly
criticised certain
aspects of the sentencing component of the judgment at length.
There was substance in the critique.
I do not want to dwell on
the topic save to say that I am in respectful agreement with Mr Nel
that 4 year custodial sentence imposed
on the appellant was
disturbingly severe and thus inappropriate regard being had to the
peculiar circumstances of this particular
case.
[36] Irregularities
committed in the application of section 112(1) or omissions to apply
it have consequences peculiar to that section.
Section 312(1)
provides –
“
Where
a conviction and sentence under section 112 are set aside on review
or appeal on the ground that any provision of subsection
(1)(b) or
subsection (2) of that section was not complied with, or on the
ground that the provisions of section 113 should have
been applied,
the court in question shall remit the case to the court by which the
sentence was imposed and direct that court to
comply with the
provision in question or to act in terms of section 113, as to the
case may be.”
See
also:
S
v Van Aswegen
1992 (1) SACR 487
(O) at 490i.
The
abovementioned course of action should be followed, unless a court on
appeal is of the view that it would lead to an injustice
or that it
would be a futile exercise.
See:
S
v Mshengu
2009 (2) SACR 316
(SCA) at 322a.
[37] In
casu,
the
appellant has already served some fairly long portion of the sentence
in a correctional centre. If the matter is remitted
to the
district court so that the provisions of section 112 or section 113
can be complied with, two possibilities will probably
arise.
Firstly, evidence may be adduced against the appellant on the
strength of which he might ultimately be convicted.
In that
event there would be some appearance of justice as regards the
portion of the sentence he had already served before he
was released
on bail pending the outcome of his appeal. He was very close to
be paroled at the time.
[38] Secondly, there may
be no evidence adduced against the appellant. The disputed
elements of the offence would then remain
unproven. The
judicial questioning would have failed to elicit relevant admissions
to sustain his conviction. In that
scenario he would be
entitled to be acquitted. It follows, therefore, that an
injustice would have been done to the appellant
through the wrong
sentence previously imposed on him and already partially served.
[39] I am of the view
that following the ordinary course of action in terms of section 312
would, in the circumstances, potentially
lead to an injustice or
would be a practically futile exercise –
S v Mshengu,
supra
, at 322e. It would not be in the interest of
justice to remit the matter to the district court in order to have
the appellant
retried. Nothing can compensate the agony of a
retrial. Therefore, I would refrain from remitting the matter.
[40] There remains one
more aspect we were urged to consider. It has no bearing on the
appellant. It rather concerns
his erstwhile co-accused.
As I have earlier indicated he was not before us on appeal.
Nonetheless Mr Nel, on compassionate
grounds, made a special plea to
us to consider his situation as well. I was persuaded by
counsel’s submission that
this was one of those rare matters
where the interests of justice dictate that a court, sitting as were,
in an appellate mode,
should intervene
mero motu
by virtue of
its inherent power to prevent an injustice.
[41] Like the appellant,
Mr Khama Patrick Khama, accused number 1 in the court below, pleaded
guilty. His statement in terms
of section 112(2), Act No 51 of
1977 was signed by him and his legal representative. It was
then handed in and labelled as
exhibit “a”. It is a
two page pro-forma document. Besides paragraphs 3 and 4 which
were partially type-written
and partially hand-written, the rest of
the paragraphs were pretyped. In my view such a practice is
highly unorthodox undesirable
and probably irregular. It
ethically leaves much to be desired and it must be discouraged.
[42] It will serve no
useful purpose to critically analyse exhibit “a”.
We now know that the total value of the
diamonds was R15 703 and
not R25 000 as stated in paragraph 3. We also know that
R25 000 was the agreed selling
price and not the true market
value of those diamonds. How many of the 8 pieces of the
precious stones weighed 5,72 carats
and precisely how many weighed
3.15 carats? What was the essential difference between the two
groupings? Was the transaction
actually completed by the
physical exchange of diamonds for money? Was the marked trap
money found in his possession?
Could he distinguish between
diamonds and unpolished diamonds?
[43] The admissions
attributed to accused number 1 in paragraph 5 were disturbingly
vague. For instance, what permission was
he really referring to
in paragraph 5.1? Was it a valid permit or licence to possess
or to ship the diamond from a foreign
country into this country or to
sell unpolished diamonds? What did he really mean by saying:
“
I
admit that I did not have permission to act in that way?”
Did
he really admit that he was a diamond smuggler and not a lawful
trader with a valid permit, domestic or foreign?
[44] The purported
statement of guilt was so vague and deficient that one cannot,
without any doubt or reservation, say that accused
number one was
indeed guilty as he pleaded. I am of the firm view that neither
subsection (2) nor subsection (1)(b) was complied
with. It
being the case, I am inclined to conclude that the conviction cannot
be allowed to stand.
[45] As regards sentence,
section 87 of the Diamond Act No 56 of 1986 does not prescribe
minimum sentences but rather maximum sentences
for contravention of
section 19. Such sentences are a maximum fine of R25 000
or a maximum custodial period of 10 years
imprisonment or both such
fine and imprisonment. I could find no compelling reason as to
why the district magistrate did
not consider the option of a fine.
Although the illegal selling of unpolished diamond is a serious
offence, the sentence
of 5 years direct imprisonment, appeared to me
to be disturbingly severe and thus inappropriate regard being had to
the personal
profile of the individual concerned. In the event
that his conviction is confirmed following proper judicial
questioning
in terms of subsection (1)(b), then his sentence would
also need to be reconsidered.
[46] In the
circumstances, I am of the view that, in this instance, the interest
of justice dictate that we set aside the sentence
as well and, remit
the case in respect of Mr Khama to the district court in terms of
section 312(1) for it to comply with subsection
(1)(b) procedure.
[47] Accordingly I
propose the following order:
47.1
The appeal succeeds
in toto.
47.2
The conviction and sentence are set aside.
47.3
The conviction and sentence of accuse number one, Mr K P Khama, are
also set aside.
47.4
The plea of accused number one which he made in terms of section
112(2) stands.
47.5
The case of accused number one is remitted to the district court.
47.6
The district magistrate is directed to reconsider the plea of accused
number one by complying with the provisions
of section 112(1)(b) in
accordance with the guidelines as set out in this judgment.
_________________
M.
H. RAMPAI, AJP
I
concurred and it is so ordered.
_________________
S.
R. MONALEDI, AJ
On behalf
of the appellant: Adv J. Nel
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On behalf
of the respondent: Adv
Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/ebeket