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[2012] ZANCHC 61
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S v Swartz (2/2013) [2012] ZANCHC 61; 2014 (1) SACR 461 (NCK) (29 November 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case Nr: 2/2013
Date delivered:
29/11/2012
In
the matter between:
The
State
and
Petrus
Swartz
Coram:
Olivier J et Pakati J
JUDGMENT
Olivier J:
1] The
accused Mr Petrus Swartz, appeared in the Magistrate’s Court on
2 charges of assault with intent to cause grievous
bodily harm. On
both counts he pleaded guilty to common assault
1
.
The prosecutor accepted these pleas. The legal representative of
the accused submitted a written statement in terms of section
112 (2)
of the Criminal Procedure Act (“
the
Act
”).
In it the accused alleged that a stone which he had aimed at Mrs
Gertruida Beukes had ricocheted off a house and had
hit the one
complainant against the head and the other against the shoulder. He
stated that he had not intended to injure the
complainants but that
his legal representative had explained to him that he should have
foreseen injuries.
2] Not
surprisingly the magistrate proceeded to question the accused
2
about whether he had actually foreseen injuries. Pleas of not guilty
were then recorded on both counts.
3] The prosecution
presented the evidence of Beukes. A medical report on the injuries
sustained by the complainant Jaden Beukes
was handed in by consent.
It reflected a bruise and an abrasion on the forehead.
4] The accused’s
case was closed without presenting any evidence.
5] The accused was then
on both counts convicted of assault with intent to cause grievous
bodily harm.
6] The
magistrate has submitted the matter for special review
3
and has requested that both convictions be set aside and substituted
with convictions of assault (common). The magistrate’s
request
is based upon the provisions of section 113 (2) of the Act, which
read as follows:
“
If the court
records a plea of not guilty under subsection (1) before any evidence
has been led, the prosecution shall proceed on
the
original
charge
laid against the accused,
unless the
prosecutor explicitly indicates otherwise
”.
(My emphasis)
7] The magistrate’s
reasoning seems to be that the initial acceptance of the pleas had
already constituted an explicit indication,
as envisaged in section
113 (2), that the prosecution would not proceed on the original
charges, in other words on the charges
of assault with intent to
cause grievous bodily harm, but rather on the lesser but competent
verdicts of assault.
8] I am indebted to Mrs A
H Van Heerden, an advocate of the office of the Director of Public
Prosecutions, for the opinion with
which she has provided me. It is
a well considered and comprehensive opinion which has been of great
help in writing this judgment.
Mrs Van Heerden has, with reference
to the applicable case law, come to the conclusion:
8.1]
that the provisions of section 113 (2)
4
have changed the legal position which had previously existed when a
plea of not guilty had been noted after an accused had pleaded
guilty
to a competent verdict or an alternative charge;
8.2] that the words
“
unless the prosecutor explicitly indicates otherwise
”
refer to an indication by the prosecutor after the plea of not guilty
has been noted; and
8.3] that, in the absence
of such a contrary indication at that stage, the trial would have to
proceed on the charge/s originally
laid against the accused.
9] The
position prior to the enactment of section 113 (2) was explained as
follows in
S
v Cordozo
5
at
638E-F:
“
In
my view it is clear that the magistrate was under a misapprehension,
namely, that he could prevent the prosecutor from accepting
a plea as
was tendered in the present case. It is the function of the
Attorney-General and his representatives to decide the charges
upon
which an accused should be brought to trial and the function of the
Attorney-General and his representatives in that
regard extends
up to the time when a plea is tendered and the decision has to be
made whether the plea is to be accepted or not.
”
10] It
was confirmed and explained as follows in
S
v Ngubane
6
at 683 B-E:
“
It
is a matter of some difficulty, in the absence of specific provision
in the Act, to determine what the provision is where eg
a plea of
culpable homicide is accepted by the prosecutor in respect of an
indictment for murder and the court subsequently records
a plea of
not guilty in terms of s 113 and requires the prosecutor "to
proceed with the prosecution". Does the plea so
entered relate
to the charge of murder or does it relate to culpable homicide? Does
the prosecutor proceed with a prosecution for
murder or for culpable
homicide? Our writers on criminal procedure are not in agreement on
this. Hiemstra Suid-Afrikaanse Strafproses
3rd ed at 268 Second
Cumulative Supplement 1983 at 16 is of the opinion that a plea
recorded in terms of s 113 relates to the original
charge and that
the prosecution proceeds in respect of such charge, whereas writers
such as Van der Merwe, Barton and Kemp Plea
Procedures in Summary
Trials at 41 - 43 hold the opposite view.
Many
of the apparent difficulties seem to arise from an attempt to
categorise acceptance of a plea (as envisaged by s 112) as being
either a withdrawal under s 6 (a) or a stopping of a prosecution
under s 6 (b). (Cf Kotzé 1978 De Jure 211,
1979 THRHR 44
;
Joubert 1982 De Jure 345.) Strictly speaking it would seem to be
neither. It must be seen as a sui generis act by the prosecutor
by
which he limits the ambit of the lis between the State and the
accused in accordance with the accused's plea. Whether one in
a case
such as the present speaks of amendment, withdrawal or abandonment of
the murder charge does not really seem to matter.
That the lis is
restricted by acceptance of the plea appears from ss 112 and 113. The
proceedings under the former are restricted
to the offence "to
which he has pleaded guilty" and the latter must be read within
that frame
.”
11]
The legal position in cases where a plea of guilty to a competent
verdict or to an alternative charge had been accepted by a
prosecutor, but had then been corrected and changed to a plea of not
guilty, was therefore that the prosecution could proceed only
on the
crime in respect of which the plea of guilty had been accepted
7
by the prosecutor and to which the
lis
had been limited by the initial acceptance of that plea
8
.
12]
Insofar as cases are concerned where an accused had pleaded guilty to
a competent verdict or to an alternative charge, and insofar
as the
legislature may with section 113 (2) have intended that in such cases
the prosecutor would after the plea of not guilty
had been noted
9
have the opportunity of reconsidering the original acceptance of the
plea on the lesser count, the provisions of section 113 (2)
would
therefore constitute a material departure from the legal position
which had previously existed.
13] The fact that the
provisions of section 113 (2) were obviously intended to ensure that
the trial would by default proceed on
the “
original charge
laid against the accused
” suggests that they were indeed
intended to provide for cases where the plea that is “
corrected
”
in terms of subsection (1) was a plea of guilty to a competent
verdict or to an alternative charge.
14] In
a case where the plea of guilty had been tended in respect of a
single charge, and not in respect of a competent verdict
or an
alternative charge, the prosecution would obviously proceed on that
charge
10
and the unaffected allegations
11
“
shall
stand as truth
”
in respect of that charge
12
.
15] If
section 113 (2) had been intended to apply also to such cases, the
reference in it to “
the
original charge laid against the accused
”
would therefore have been superfluous. Such an interpretation would
be contrary to the common law presumption “
that
a statute does not contain superfluous provisions and that a meaning
must be given to every word thereof
”
13
.
16] A provision for an
explicit indication that the trial is not to proceed on the original
charge would also be nonsensical when
there is in any event no
alternative count and no basis for the trial to proceed in respect of
a competent verdict.
17]
Insofar as the prosecution may in a such a case – in other
words where no alternative charge or competent verdict is concerned
–
after the correction of a plea of guilty desire the trial to proceed
on a different charge, the joinder of such a charge
before evidence
has been led would in any event be provided for by section 81 (1) of
the Act
14
.
18] It can therefore
safely be assumed that the provisions of section 113 (2) were
intended to apply specifically to cases where
there had been a plea
of guilty to a competent verdict or to an alternative count, and not
to the “
original
” charge.
19] Mrs Van Heerden’s
reasoning is as follows:
19.1] The correction of
such a plea of guilty (to a lesser charge) to one of not guilty would
normally be preceded by the questioning
of the accused on the plea of
guilty.
19.2]
Such a questioning would in turn only have been permissible after the
prosecutor had accepted a plea of guilty (on the lesser
offence) as
required by section 112 (1)
15
.
19.3] The initial
acceptance of the plea of guilty would already have constituted an
“
indication
” by the prosecutor regarding the
conviction sought by the prosecution.
19.4] The “
indication
”
provided for in section 113 (2) therefore has to refer to a further
opportunity, after that plea has been corrected or
changed to one of
not guilty, to indicate whether the prosecution would nevertheless be
prepared to proceed on the lesser crime.
20] I
agree with this reasoning. The provisions of section 113 (2) have to
be understood and interpreted in the context of the
rest of in
particular chapter 17
16
of the Act, and specifically in the context of the provisions of
section 113 (1) and section 112 of that chapter
17
.
It is a trite principle of interpretation “
that
words used in a statute should be read in the light of their
context
”
18
,
which would obviously include (but not be limited to) “
the
language of the rest of the statute
”
19
.
21]
The wording of the preamble to the Criminal Procedure Amendment Act
20
,
which as already mentioned introduced section 113 (2) into the
Criminal Procedure Act and is therefore part of the background
of
section 113 (2), is also significant. It stated that the provisions
of that Act were intended to amend the Criminal Procedure
Act so as
to,
inter
alia
,
“
provide
that a prosecution will in certain circumstances proceed with the
charge initially laid against the accused
”.
22] I
am also of the view that a plain reading of the wording of section
113 (2) leads to the same conclusion. The so-called golden
rule of
interpretation requires the language of this section “
to
be given its grammatical and ordinary meaning, unless this would
result in some absurdity, or some repugnancy or inconsistency
…
”
21
.
23] The ordinary
grammatical meaning of the word “
indicates
”,
couched in the present tense, is that it refers to an indication
given at that stage, in other word after the plea of guilty
on the
lesser count has been corrected in terms of section 113 (1), and not
to an indication which had already been given before
the plea of not
guilty was noted.
24] In
my view the words “
unless
the prosecutor explicitly indicates otherwise
”,
and specifically the verb “
indicates
”,
were couched in the present tense
22
to provide for the immediate future
23
,
and not to make unnecessary and superfluous reference to an
indication which would already have been given when the plea of
guilty
was initially entered, and before the questioning (which led
to the correction of the plea) took place.
25] Such an
interpretation would in my view not result in any repugnancy,
absurdity or inconsistency.
26] The fact is that
section 112 (1) of the Act requires the prosecutor to accept a plea
of guilty before hearing the answers to
the presiding officer’s
questions, and the possibility always exists that the accused’s
answers may produce a version
which is at odds with the evidence
available to the prosecutor.
27]
The plea of guilty, and its acceptance, may even have been preceded
by negotiations between the prosecutor and the accused (or
his/her
legal representative)
24
or by some indication by or on behalf of the accused of the factual
basis on which the plea of guilty would be founded, and the
answers
subsequently provided during the questioning may then differ
materially from such factual basis. Why should the prosecutor
under
such circumstances remain bound by the initial acceptance of the
plea?
28] At the very least the
acceptance of a plea to a lesser charge would have been based on the
assumption that the elements of that
offence would be admitted. If
that does not happen, and the prosecutor has at his/her disposal
evidence to prove the original
charge, why should the prosecutor not
be entitled to do so?
29] It was in the
Ngubane
case remarked that “
in the absence of a specific provision
in the Act
” it was “
a matter of some difficulty
”
to determine whether the corrected plea would in such a case relate
to the original charge or to the lesser charge. In
my view the
legislature has now by means of the enactment of section 113 (2) of
the Act provided such a “
specific provision
”.
30] In
the interpretation of legislation “
the
legislature is presumed to know the law, including the authoritative
interpretation placed on its previous enactments by the
courts
”
25
.
31]
Against this background the provision in section 113 (2) of an
opportunity to in a manner of speaking reconsider the initial
acceptance of the plea of guilty to a lesser charge, is in my view a
clear indication of a deliberate departure from the
Ngubane
position, where the prosecutor would have been bound by the initial
acceptance of the plea of guilty on the lesser charge and would
therefore only have been entitled to proceed with the prosecution on
that charge
26
.
32] In
S
v Nyanga
27
the accused had pleaded guilty to a single count of robbery. After
questioning a plea of not guilty had been recorded. The prosecutor’s
application for a postponement in order to present evidence was
refused. Both the prosecutor and the accused then closed their
cases
without presenting any evidence. The prosecutor applied for a
conviction on the competent verdict of theft, and the accused
was so
convicted.
33] On review the
prosecutor’s request for a conviction of the lesser crime of
theft was apparently equated with the acceptance
of a plea on the
lesser crime of theft and it was at 203a held that:
“
Section 113(2)
reserves to the prosecution, as dominis litis, the right to
accept a lesser charge than the one on which a plea
of not guilty has
been recorded, provided such election is done prior to any evidence
being led. (In this regard see Du Toit et
al Commentary on the
Criminal Procedure Act at 17-16A.)
”
34] In
my respectful view the request for a conviction of theft could not
really under these circumstances have been equated to
an election in
terms of section 113 (2). The prosecutor did not, after the plea of
not guilty was record, indicate that the trial
could proceed on the
lesser crime of theft. The application for a postponement was
obviously aimed at presenting the evidence
of the complainant, which
would have been necessary to prove robbery (and not just theft
28
).
The indications are therefore that the prosecutor in the
Nyanga
case had actually desired the trial to continue on the charge of
robbery. The request for a conviction of theft after both cases
had
been closed was not really an election for the prosecution to proceed
on a lesser charge, but rather a concession that the
accused could on
the available evidence not be convicted of robbery, but only of
theft. The request for and the eventual conviction
of theft were in
my view simply based on the provisions of section 260
29
of the Act, and not on those of section 113 (2).
35] The fact remains,
however, that the court in the
Nyanga
case interpreted section
113 (2) as providing a prosecutor with the option of proceeding on a
lesser charge, provided no evidence
has been led.
36]
The interpretation of section 113 (2) as providing a prosecutor who
had initially accepted a plea of guilty to an alternative
count or on
a competent verdict with this option after that plea is corrected to
one of not guilty, is supported by Kruger in
Hiemstra’s
Criminal Procedure
30
and by the authors of
Commentary
on the Criminal Procedure Act
31
at
17-43
32
.
37]
The Supreme Court of Appeal did in
S
v Tshilidzi
33
reaffirm the
Ngubane
dictum
,
but only as regards the limitation of the
lis
through the initially acceptance
34
of a plea to a lesser charge or crime. The facts of that matter were
that the appellant had pleaded not guilty to the main charge
of rape,
but guilty to the alternative charge of a contravention of section 14
(1) of the Sexual Offences Act
35
.
The prosecutor had accepted the plea of guilty to the lesser charge.
The trial judge “
refused
to accept
”
the plea of guilty and as a result of this the accused then
“
withdrew
”
that plea and pleaded not guilty to that charge as well. The trial
proceeded and the appellant was eventually convicted
of rape. It was
therefore not a case where the plea of not guilty to the alternative
was recorded in terms of section 113 (1)
and the provisions of
section 113 (2) were therefore not applicable.
38] In
the
Tladi
case referred to above the full court of this division held, with
reference to the
Cardozo
36
and
Mlangeni
37
cases, that where a plea of not guilty is noted in terms of section
113 (1) the trial could only proceed in respect of the charge
which
had been corrected, and therefore on the charge which had initially
been accepted by the prosecutor. It was held that in
such a case the
trial could not proceed on a charge not covered by the plea of
guilty, and especially not on a more serious charge.
39] Although the review
was heard after the coming into operation of section 113 (2), no
reference was made to it and the case can
therefore in my view not be
seen as a guide for the interpretation of section 113 (2).
40] I am therefore of the
view that, in the absence of an explicit indication that the trial
against the accused in the present
matter could still continue in
respect of the competent verdicts of assault, the trial by default
proceeded on the charges originally
laid against the accused, in
other words on the charges of assault with intent to cause grievous
bodily harm.
41] The wording of
section 113 (2) of the Act does not require an election by the
prosecutor, as to the charge in respect of which
the prosecution is
to proceed,
before
the trial can proceed. It provides that
the trial
shall
proceed on the original charge/s, and in other
words not on the lesser charge/s, “
unless
” the
prosecutor indicates otherwise.
42] The evidence of
Beukes was that the complainants had been sleeping outside the house
when the accused threw the stone which
ricocheted off the house and
hit the complainant in the second charge. According to her the
complainants had been sleeping outside
the house approximately 15
meters from where she and the accused had been standing before the
incident. She testified that she
had been too drunk to notice the
injury to the second complainant’s head. Her evidence was that
a nearby flood light provided
light in the area of the house. She
testified that the accused would have been able to see the people
lying outside the house.
She denied that anybody else was hit by a
stone.
43] The magistrate found
that the accused had in fact seen the people lying outside the house
before throwing the stone or stones
at the house. In my view,
however, Beukes’s evidence did not exclude the reasonable
possibility that the accused may in
fact not have seen the people
lying outside the house. There was no evidence that he had looked in
that direction while he and
Beukes were drinking approximately 15
meters from where the people were sleeping. It is also not clear from
the evidence exactly
where the accused was when he threw the stone.
44] Beukes’s
evidence that the accused would have been able to see the people from
where they had stood before the stone was
thrown did not in my view
justify the inference, as the only reasonable inference to be drawn,
that the accused did in fact see
them. If he did not, there would
have been no reason for the accused to foresee that the stone could
hit and injure somebody outside
the house at that hour of the night.
It follows that I am of the view that both convictions should be set
aside.
45] As far as the other
charge is concerned Beukes in any event denied that that complainant
had been hit by a stone.
46] The following order
is therefore made:
The convictions are
set aside.
C J OLIVIER
JUDGE
NORTHERN CAPE DIVISION
I agree:
B M Pakati
JUDGE
NORTHERN CAPE DIVISION
1
Which would in terms of
section 266
(a) of the
Criminal Procedure Act, 51 of 1977
, have been competent verdicts.
2
In terms of the proviso to
section 112
(2) of the
Act.
3
In terms of
section 304
A of the Act.
4
Section 113
(2) was introduced into the Act by
the provisions of section 8 of the Criminal Law Amendment Act and
came into operation on 23
December 1991.
5
1975 (1) SA 635
(T)
6
1985 (3) SA 677
(A)
7
Which could be a competent verdict or the subject
of an alternative charge and which would usually be a lesser offence
than, respectively,
the original charge or the main charge.
8
See also
S v Mokoena
en ‘n Ander
1981 (1) SA 148
(O);
S v Mlangeni
1976 (1) SA 528
(T)
9
In terms of section 113 (1) of the Act
10
After the Court had in terms of section 113 (1)
“
require(d) the prosecutor to
proceed with the prosecution
”.
11
Elicited during questioning by the presiding
officer.
12
See proviso to section 113 (1).
13
Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman
Primary School
2008 (5) SA 1
(SCA) para [26]; See also
Commissioner for Inland Revenue v Golden Dumps (Pty) Ltd
[1993] ZASCA 89
;
1993 (4) SA 110
(A) at 116F-117A.
14
Compare
Lefaso v
S,
an unreported judgment on appeal in
the Orange Free State Provincial Division under appeal nr A261/06,
delivered on 25 October
2007, with Saffli reference
[2007] ZAFSHC
119
, para [8];
S v Maritz
,
an unreported judgment in the South Gauteng High Court,
Johannesburg, under case nr A273/2012, delivered on 22 November
2012,
with Saffli reference [2012] ZAGPJHC 237, para [39]
15
See
S v Tladi en
‘n Ander
1994 (1) SACR 174
(NC)
at 178b;
S v Peter
1996 (2) SACR 212
(C) at 217b
16
Which deals with pleas of guilty
17
Which provisions are also referred to in
respectively section 113 (2) and section 113 (1)
18
University of Cape Town v Cape Bar Council
and Another
1986 (4) SA 903
(A) at
914A
19
Jaga v Dönges NO and Another
;
Bhana v Dönges NO and Another
1950 (4) SA 653
(A) at 662G-663A
20
5 of 1991
21
Brink v Premier, Free State and Another
2009 (4) SA 420
(SCA) para [11]; See also
The
University of Cape Town v Cape Bar Council and Another, supra
,
at 913H-J and
Ebrahim v Minister of
the Interior
1977 (1) SA 665
(A) at
678A
22
See
Ndlovu v
Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA) para [5]
23
Compare para [153] of the minority judgment in
General Council of the Bar of South
Africa v Geach and Others
2013 (2)
SA 52
(SCA);
Union and South-West
Africa Insurance Co Ltd v Fantiso
1981 (3) SA 293
(A) at 301B
24
Compare
North Western Dense Concrete CC and Another v Director
of Public Prosecutions (Western Cape)
1999 (2) SACR 669
(C)
25
Road Accident Fund v Monjane
2010 (3) SA 641
(SCA) at 646G-H
26
Compare
Port
Elizabeth Municipal Council v Port Elizabeth Electric Tram Way Co
Ltd
1947 (2) SA 1269
(A) at 1279
27
2004 (1) SACR 198
(C)
28
Because the accused had during the questioning
admitted theft
29
Which
inter alia
provides that “
if the evidence on
a charge of robbery …. does not prove the offence of robbery
…, but - …. the offence of
theft …. the accused
may be found guilty of the offence so proved
”
30
At 17-17 to 17-18
31
Du Toit
et al
32
Compare also
Lefaso
v S
,
supra
,
para [7] and
S v Maritz
,
supra
,
para [41]
33
2013 JDR 1356 (SCA)
34
In other words before the questioning of the
accused
35
23 of 1957
36
Para [9]
supra
37
Footnote 8
supra