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[2013] ZAECBHC 4
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S v Mpambanso (2/2006) [2013] ZAECBHC 4; 2013 (2) SACR 186 (ECB) (3 April 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, BISHO)
Reportable
CASE NO: 2/2006
DATE DELIVERED: 3.4.2013
In the matter between
THE
STATE
Plaintiff
And
MILILE
MARTIN MPAMBANSO
Defendant
JUDGMENT
NEPGEN,
J
:
[1]
After upholding the accused’s plea, on counts 185 to 221, in
terms of Section 106 (1)(f)
of the Criminal Procedure Act, No 51 of
1977 (the CPA) on 25 October 2006, the trial of this matter was only
due to commence on
29 August 2011. The reasons for the delay
are not presently relevant. On that date I was requested to
determine the
plea of no jurisdiction in respect of the six counts on
which the accused had pleaded not guilty and had also pleaded that
this
court has no jurisdiction to try the offence with which he was
charged on each of those counts (referred to as a dual plea in the
judgment handed down on 25 October 2006). After hearing
evidence it was apparent that the plea of no jurisdiction had to
be
upheld. This was in fact conceded by counsel for the State.
An appropriate order was accordingly made.
[2] The
matter then proceeded. A detailed written plea explanation was
handed in as exhibit
“B”. The contents of the plea
explanation were confirmed by the accused. It would not be out
of line to
say that thereafter the trial stuttered along. There
were numerous adjournments and associated delays, some at the
instance
of the State and others at the instance of the defence.
Eventually, however, the State concluded leading its evidence and
closed its case. After an adjournment in order to enable the
accused to consider his position, the accused closed his case
without
leading any evidence. The matter was then again postponed for
argument. During the course of the trial counsel
for the State
had indicated that the State was not proceeding on 11 of the charges
of fraud nor the corresponding charges of theft.
At a later
stage the theft charges were also abandoned. The result is that
at the conclusion of the evidence the accused
faced 54 separate
charges of fraud.
[3]
Argument in this matter commenced on 5 September 2012. On the
following day, before the
conclusion of the argument on conviction on
behalf of the State, counsel for the State sought an amendment to the
charge sheet.
The amendment sought still refers to the original
counts 1 to 92, but what is envisaged by the amendment is the
combination of
the individual counts of fraud into one single count
of fraud. I do not propose to set out the indictment in the
form in
which it presently is, nor do I propose to set out in detail
the alterations that are now sought. Suffice it to say that on
each of the separate counts of fraud the indictment alleges that on a
specific date and in respect of certain persons, referred
to as
beneficiaries, the accused had committed fraud in respect of
specified amounts. What the State now wishes to allege
is that
during the period between August 2002 and May 2004 and on divers
occasions (being the same occasions and in respect of
the same
beneficiaries and also the same amounts) the accused committed
fraud. The defence has objected to the amendment.
[4] The
amendment is sought in terms of Section 86 (1) of the CPA.
This subsection reads
as follows:
“
(1) Where a
charge is defective for the want of any essential averment therein,
or where there appears to be any variance between
any averment in a
charge and the evidence adduced in proof of such averment, or where
it appears that words or particulars that
ought to have been inserted
in the charge have been omitted therefrom, or where any words or
particulars that ought to have been
omitted from the charge have been
inserted therein, or where there is any other error in the charge,
the court may, at any time
before judgment, if it considers that the
making of the relevant amendment will not prejudice the accused in
his defence, order
that the charge, whether it discloses an offence
or not, be amended, so far as it is necessary, both in that part
thereof where
the defect, variance, omission, insertion or error
occurs and in any other part thereof which it may become necessary to
amend.”
[5] In
the present instance it would appear that the proposed amendment is
sought because the State
considers that there is an error in the
charge. This is quite apparent from what is stated in the heads
of argument handed
up on behalf of the State, namely it has been
realised “that there is a defect/error in charges 1-92”.
[6] The
grounds upon which the defence has objected to the application for an
amendment are that the
State has not brought itself within the
provisions of Section 86 of the CPA; that that which is sought
by the State amounts
to a substitution of the charge rather than an
amendment; that the proposed amendment will result in
irremediable prejudice
to the accused in his defence; and that
the proposed amendment will infringe the accused’s rights to a
fair trial.
[7] As
mentioned earlier, it appears that the State contends that there is
an error in the charge.
That error, as I understand the
argument presented on behalf of the State, relates to the answer to
the question whether the State
has proved on which of the particular
counts set out in the indictment the accused has committed any
of the offences with
which he has been charged. In
S v
Barketts Transport (Edms) Bpk en ‘n Ander
,
1988 (1) SA 157
(AD) it was held, at 162 D, that the words “any other error in
the charge” in the context in which those words are
used in
Section 86(1) of the CPA have to be interpreted with regard to the
eiusdem generis
rule so that it referred to a defect in the
charge which was similar to the sort of defects listed
earlier in the subsection.
This was stated in the context of a
discussion as to whether or not the substitution of one offence for
another is permissible,
which it was held not to be. In the
Barketts Transport
, case,
supra
it was stated in
conclusion that the first question that must be answered with every
application for an amendment to a charge sheet
is whether the
proposed amendment is in fact an amendment in terms of Section 86 (1)
of the CPA.
[8] I
have already mentioned that it is contended on behalf of the defence
that what is sought in
this matter amounts to a substitution of the
original charges and not merely an amendment. In support of the
arguments advanced
in this regard I was referred to a number of
cases, with particular reliance being placed on
S v Kruger en
Andere
,
1989 (1) SA 785
(AD). In
Williams and Another vs
Janse Van Rensburg and Others (4)
,
1989 (4) SA 979
(CPD)
Williamson, J, after referring to certain passages in the judgment in
Kruger
’s case,
supra
, said the following at 982
F;
“
I have
quoted at some length from this case because it illustrates so
clearly the operation of two considerations. Firstly,
it makes
the point that in judging whether or not a proposed change amounts to
an amendment or a substitution one must have regard
to the real
substance of what it is proposed to do and not be beguiled by the
form in which it may be dressed up. The real
flesh and bones
are more important than the clothes with which they may be covered.
In the second place it is pointed out
that the decision as to whether a proposed change is either an
amendment or a substitution
is a value judgment in which it is
sometimes difficult in practice to draw the line between the
two concepts. The touchstone
by which that judgment is to be
governed is whether the proposed “amended” charge differs
so substantially from the
original that in essence it is a different
charge.”
[9] On
behalf of the State it was contended that the only change that is
being sought is that the
former counts would now be combined and
comprise a single count. None of the allegations in the
original indictment
relating to the actual commission of the
specific acts complained of would be altered. These contentions
cannot be disputed.
To this extent the present matter differs
substantially from
Kruger
’s case,
supra
, which
was relied upon by the defence. Despite this, I have some
difficulty in appreciating how it can be said that an alteration
to
an indictment to allow a single charge in the place of a series of
charges does not amount to a substitution. For example,
had the
accused been faced with a single charge from the outset, would he
have been able to have raised a plea in terms of
Section 106
(1) (f) of the CPA ? However, because of the view I take of this
matter it is not necessary to come to any final decision
in this
regard.
[10] It is quite
clear from the provisions of Section 86 (1) of the CPA that the
discretion conferred upon a court
to order an amendment to the charge
can only be made if the court “considers that the making of the
relevant amendment will
not prejudice the accused in his defence”.
In
S v Ndaba
,
2003 (1) SACR 364
(W) it was held by Labe, J at
384 f (para[117]), after stating that what was intended by
prejudice was that the accused should
have been prejudiced in the
conduct of his defence by the granting of the amendment, that the
onus was on the State to prove the
absence of prejudice to the
accused. In support of this statement Labe, J referred to
R
v Alexander and others
,
1936 AD 445
at 460 – 1; and
R v Bruins
,
1944 AD 131
at 134 -5. It is not stated in
either of these cases, at the passages mentioned, in express terms
that the onus is on the
State to prove the absence of prejudice.
However, it appears to be quite clear from the discussion of the
facts of each case
that the court approached the matter on the basis
that the State had to show that the accused had not been prejudiced.
Those
cases did also not deal with the situation as contemplated in
Section 86 (1) of the CPA, but with legislative enactments that were
in the same terms as the provisions of Section 86 (4) of the CPA,
which provides that the fact that a charge is not amended shall
not
affect the validity of the proceedings thereunder, unless the court
refuses to allow an amendment which has been sought in
terms of
Section 86 of the CPA. However, insofar as Section 86 (4) of
the CPA is concerned, this matter has now been decided
upon by the
constitutional court. In
Moloi v Minister for Justice and
Constitutional Development
,
2010 (5) BCLR 497
(CC) the following
was stated by The Court at 505 C (para [19]);
“
Section 86
(4) on the other hand provides that even if the charge is not
amended, the proceedings based on the defective charge
may
nevertheless remain valid. However, the question is whether
section 86 (4) may be invoked if the accused may be prejudiced
by an
amendment not having been made. Pre-constitutional judicial
authority suggests not. Whether the accused may be
so
prejudiced is dependent upon the facts of each case. What is
cardinal, however, is that prejudice, actual or potential,
will
always exist unless it can be established that the defence or
response of the accused person would have remained exactly
the
same had the State amended the charge.”
[11] The statement
that prejudice will always exist “unless it can be established
that the defence or response
of the accused person would have
remained exactly the same” is, in my view, a clear indication
that the onus must rest on
the State to establish that the defence or
response would have remained the same, which is tantamount to saying
that the onus would
be on the State to prove the absence of
prejudice. It can clearly not be expected of an accused
to establish that his
defence or response would have remained the
same.
[12] Once it is
accepted that the onus is on the State to establish the absence of
prejudice before Section 86
(4) of the CPA can be in invoked, there
can be no basis whatsoever for holding that a different situation
pertains in the case
of an amendment under Section 86 (1) of the
CPA. Before an amendment can be granted under that subsection a
court must be
satisfied that the accused would not be prejudiced in
his defence. In my view the onus must be on the State to
establish
the absence of such prejudice to the satisfaction of the
court.
[13] I am quite
unable to state that the accused will not be prejudiced in his
defence if the amendment sought
by the State is granted. All
the State witnesses have been cross-examined. Certain of the
aspects of the evidence of
some of them were not challenged. I
cannot say that this would have been the case if the accused had
faced one charge formulated
as the State now seeks the indictment to
read. The accused also closed his case without testifying or
leading any evidence.
I am unable to say that he would have
done so in any event. It is true that a lengthy plea
explanation was furnished at the
outset of the matter and that the
proposed amended charge contains all the allegations in the original
indictment. However,
the State has not established that the
accused would not have conducted his defence differently if he had
originally only been
charged with one count of fraud. The State
has therefore not succeeded in establishing the absence of prejudice
to the accused
and consequently the amendment sought cannot be
granted.
[14] The application
for an amendment to the charge sheet is refused.
J J NEPGEN
JUDGE OF THE HIGH COURT