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[2012] ZAKZPHC 68
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Naidoo and Another v De Freitas and Others (AR525/11) [2012] ZAKZPHC 68; 2013 (1) SACR 284 (KZP) (9 October 2012)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO:
AR525/11
In
the matter between:
SATHASIVAN
NAIDOO
...........................................
FIRST
APPLICANT
PRANITHA
NAIDOO
............................................
SECOND
APPLICANT
and
K.
DE FREITAS
....................................................
FIRST
RESPONDENT
DIRECTOR
OF PUBLIC
PROSECUTIONS,
KZN
......................................
SECOND
RESPONDENT
SUNIL
SINGH
....................................................
THIRD
RESPONDENT
JUDGMENT
Delivered on: 9/10/12
KRUGER
J:
[1] The Appellants, by way of Notice
of Motion, supported by affidavits, seek an order reviewing and
setting aside the convictions
and sentences imposed by the Commercial
Crime Court in Durban.
[2] The Applicants were, on the 15
th
March 2010, convicted of 182 counts of fraud; 23 counts of theft; a
contravention of the Banks Act 94 of 1990; and a contravention
of the
Financial Advisory and Intermediary Act 37 of 2002. The Applicants
were each sentenced to an effective term of twenty two
years
imprisonment on the 17
th
December 2010. The First
Respondent presided over the trial.
[3] The Appellants were arrested on
the 2
nd
August 2005 on charges of fraud. They engaged the
services of the Third Respondent to represent them. After many
adjournments,
the Applicants, on the 15
th
March 2010,
pleaded guilty to all counts. A written statement, in terms of
Section 112(2)
of the
Criminal Procedure Act, 51 of 1977
, was read
into the record and handed in as an exhibit in amplification of their
plea. The Applicants thereafter confirmed the statement
and the
accuracy thereof and further confirmed their signatures on the
documents. The First Respondent was satisfied that the Applicants
had
admitted all the elements of the offences and duly convicted them.
[4] After obtaining pre-sentencing
reports from the Department of Social Development as well as a report
in terms of
Section 276
A(1)(a) of the
Criminal Procedure Act –
re
: Consideration of Correctional Supervision as a sentence –
and after numerous adjournments, the Applicants were duly sentenced
as aforesaid.
[5] The application for review is
based on two grounds:
That the Applicants “pleaded
guilty because of misrepresentations made to us by our attorney at
the time (the Third Respondent)
that he had concluded a plea
agreement with the State on our behalf to the effect that if we
pleaded guilty, we would not receive
a custodial sentence”.
That “during the sentence
proceedings, evidence was introduced which clearly indicated that we
did not admit guilt and the
First Respondent was accordingly under
an obligation in terms of
Section 113
of the
Criminal Procedure Act
to
change the plea to one of “not guilty”.”
[6] I propose to consider and deal
with the second ground first. Section 113(1) of the Criminal
Procedure Act 51 of 1977 (as amended)
provides:
“
If the court at any stage of
the proceedings under section 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 gu8ilty
and require the prosecutor to proceed with the prosecution: Provided
that any allegation, other than an allegation referred to above,
admitted by the accu7sed up to the stage at which the court records
a
plea of not guilty, shall stand as proof in any court of such
allegation.
[Sub-s(1) amended by s 5 of Act 86
of 1996]”
[7] In terms of the aforesaid
section a plea of “guilty” can be changed to one of “not
guilty” at any time
after a conviction but before sentence is
passed. In
S v Nixon
2000(2) SACR 79 (WLD) at 87 (i)
Wunsh J observed as follows:
“
Corrective action can be
taken at any time before sentence is passed, that is even after a
conviction (
Attorney-General,
Transvaal v Botha
1993(2)
SACR 587(A) at 591 f
).
At the trial the Appellant did not
seek to withdraw any admission made by him or change his plea.
However, the obligation to substitute
a plea of guilty in terms of
Section 113(1) of the Act exists even without any action on the part
of an accused, as long as the
Court is in doubt whether the accused
is guilty. This applies also to the retraction of an admission”.
[8] In
Mokonoto and Others v
Reynolds NO and Another
2009(1) SACR 311 (TPD)
,
Southwood J noted that the amendment to Section 113 resulted in the
requirement, that a Court should be “satisfied”
of
certain circumstances before recording a plea of not guilty, is no
longer applicable. “The threshold for the Section to
come into
operation is now less than a reasonable doubt. It merely requires an
allegation”. (at 320 g). Accordingly, if there
is an
“allegation that the accused does not admit an allegation in
the charge sheet or an allegation that the accused has
incorrectly
admitted any such allegation or an allegation that the accused has a
valid defence to the charge”, then the provisions
of Section
113(1) are to be invoked and the plea amended to one of “not
guilty”. (at 320 e).
[9] In
casu
, both the Social
Worker as well as the Correctional Services official testified that
the Applicants did not intend to defraud or
deceive the complainants
but that the loss was due to the collapse of the Johannesburg Stock
Exchange following the events of 11
September 2001, commonly referred
to as 9/11.
[10] The First Respondent was alive
to this allegation and questioned both the Social Worker and the
Correctional Services official
and sought clarification on this
aspect. The relevant portions of the record are as follows:
“
COURT
But is that true? Did our stock market ever collapse? ---911.
Our stock market never collapsed.
--- Collapse of the stock market 911 and they even stated – Mr
Naidoo stated to me as well
that they had no intention of robbing or
stealing any individual and in their minds they do not think they
have done anything wrong,
but it was this situation with the stock
marked that created the problem or the situation that they face
today. Mr Naidoo also
stated that they want to take responsible –
they feel partly responsible because they can … [inaudible]
they solicited
the finances from the complainants.
Have you had sight of their plea?
--- Yes, I have had sight of their plea. Your Workship, and …
[intervention]
How does it compare to your report?
--- Contrary to the version that they had given me and I have made
that clear as well in my
report.”
COURT
I am just glancing at
page 4, paragraph 2 of accused 2’s report that you drafted. It
says that “there are …
[inaudible] the accused set out
with malicious crafty [?] intention to deprive these investors of
their finances and yet stated
to the correctional officer that he did
not rob or steal from any of these individuals as he made them aware
of the risk clause.”
What on earth is that all about? --- I did
question him on that aspect and I stated to him that, you know, for
example, when he
solicited the finances from these individuals did he
make it clear to them that he was going to invest the money on the
stock market
and what are the risks involved. He stated to me that
yes, they did sign a risk clause, but the SAP investigation unit had
taken
these documents and they did not return it to him. That is why
he couldn’t present it to me.”
[11] The aforesaid extracts clearly
show that the First Respondent was aware that the Applicants’
allegations were at variance
to their plea. It has been held that if
evidence is given by or on behalf of an accused for purposes of
sentencing which is in
conflict with an admission made during the
Section 112 proceedings, there is an implied withdrawal of the
admission concerned –
S v Nixon
(supra) at 87
(j).
[12] Having ascertained that the
Applicants were now denying that they had the necessary intention,
the First Respondent did nothing
further. He did not seek
clarification from the Applicants or their counsel (Mr Mossop) nor
did he,
mero muto
, amend or alter the plea to one of “not
guilty”. Despite the allegations contained in the affidavits
and annexures
to the contrary, the record does not reflect that this
issue was canvassed with the Applicants or their legal
representatives.
[13] It also appears from the
record, during the judgment on sentence, that the First Applicant
attempted to interrupt the proceedings,
possibly to explain the lack
of intent as outlined above. The First Respondent however, refused to
allow the First Applicant the
opportunity to address the Court at
that stage of the proceedings.
[14] Given the “lighter test”
in terms of the amended Section 113(1), I am of the opinion that the
First Respondent
ought to have altered the Applicants’ plea to
that of “not guilty” and requested the State to lead the
necessary
evidence.
[15] Having reached this conclusion,
I do not find it necessary to consider the first ground upon which
this application has been
based.
[16] In the result, I grant the
following order:
The Applicants’ convictions
and sentences are set aside;
The matter is referred back to the
Commercial Crime Court to record a plea of not guilty in respect of
each Applicant and to proceed
with the trial.
I agree
____________________
VAN ZYL J
DATE OF CAV: 3 OCTOBER 2012
DATE OF JUDGMENT: 9 OCTOBER 2012
FOR THE APPELLANTS: M PITMAN
INSTRUCTED BY: ASHIKA MAHARAJ &
ASSOCIATES
FOR THE RESPONDENTS: A LUDICK AND A
TRUTER