S v Duna (CC182/05) [2006] ZAWCHC 23 (12 June 2006)

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[2006] ZAWCHC 23
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S v Duna (CC182/05) [2006] ZAWCHC 23 (12 June 2006)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: CC 182/05
In the matter between
THE
STATE
and
MNCEDI DUNA
Accused
JUDGMENT
DELIVERED ON 12 JUNE 2006
ZONDI,
AJ
[1] The
accused, who was legally represented, appeared in the Wynberg
Regional Court on 17 June 2005 on a charge of rape involving
a 10
year old girl. He pleaded guilty to the charge. His legal
representative prepared a written statement in terms of
section
112(2)
of the
Criminal Procedure Act, 51 of 1977
. This statement was
signed by the accused and his legal representative. The plea
statement was read into the record and handed
in as exhibit “A”
and the medical report in respect of the complainant (J88) as exhibit
“B”. As the court was satisfied
that the accused admitted all
allegations contained in the charge sheet, it convicted him on his
plea.
[2] After
convicting the accused the magistrate stopped the proceedings and
committed the accused to this Court for sentence as the
provisions of
section 51
of Act 105 of 1997 (the Act) were applicable. This was
done in terms of section 52(1)(a) of the Act which provides as
follows:-
“
(1) If a regional
court, following on-
a plea of guilty; or
...,
has convicted an accused
of an offence referred to in –
Part I of Schedule 2; or
Part II, III or IV of
Schedule 2 and the court is of the opinion that the offence
concerned merits punishment in excess of the jurisdiction
of a
regional court in terms of section 51(2),
the court shall stop the
proceedings and commit the accused for sentence as contemplated in
section 51(1) or (2), as the case may
be, by a High Court having
jurisdiction.”
[3] When
the matter came before this Court the accused was represented by
Mr
Ballem
and the State by
Mr Badenhorst
. As the accused was
convicted on his plea in the regional court, this Court has to deal
with him in terms of section 52(2)(a) of
the Act which provides:-
“(2) (a) Where an accused is committed under subsection (1)(a) for
sentence by a High Court, the record of the proceedings in the
regional court shall upon proof thereof in the High Court be received
by the High Court and form part of the record of that Court,
and the
plea of guilty and any admission by the accused shall stand unless
the accused satisfied the Court that such plea or such
admission was
incorrectly recorded.
(b) Unless the High Court in question-
(i) is satisfied that a plea of guilty or an admission by the
accused which is material to his or her guilt was incorrectly
recorded;
or
(ii) is not satisfied that the accused is guilty of the offence of
which he or she has been convicted and in respect of which he
or she
has been committed for sentence,
the Court shall make a formal finding of guilty and sentence the
accused as contemplated in section 51(1) or (2), as the case may
be.
(c) If the Court-
(i) is satisfied that a plea of guilty or any admission by the
accused which is material to his or her guilt was incorrectly
recorded;
or
(ii) is not satisfied that the accused is guilty of the offence of
which he or she has been convicted and in respect of which he
or she
has been committed for sentence or that he or she has no valid
defence to the charge,
the Court shall enter a plea of not guilty and proceed with the trial
as a summary trial in that Court : Provided that any admission
by the
accused the recording of which is not disputed by the accused, shall
stand as proof of the fact thus admitted.
(d) The provisions of section 112(3) of the Criminal Procedure Act,
1977 (Act No 51 of 1977), shall apply with reference to the
proceedings
under this subsection.”
[4] At
the commencement of the proceedings
Mr Ballem
applied for the
retraction of the accused’s plea on the ground that the accused’s
legal representative had made a mistake in
formulating a plea
statement. His intention was to plead not guilty to the charge. The
mistake occurred as a result of misunderstanding
between him and his
legal representative. His home language is isiXhosa and the legal
representative communicated with him in English
which is the language
which he does not properly understand. There was no interpreter to
interpret for him when he consulted with
his legal representative.
Mr Ballem
further submitted further that the proceedings in
the regional court were conducted in Afrikaans and again what was
being said in
court was never interpreted for him from Afrikaans to
isiXhosa though there was an interpreter present in court.
[5] The
State handed up the charge sheet together with annexures thereto
(exhibit “A”) and the transcript of the court record
(exhibit
“B”). The matter thereafter proceeded in terms of
section 113
of
the
Criminal Procedure Act which
provides as follows:-
“(1)
If the court at any stage of the proceedings under
section 112(1)(a)
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.
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.”
[6] The
defence called the accused to substantiate its application for a plea
retraction. The state opposed the application and called
three
witnesses. The fourth witness, Mrs Strydom, a stenographer, was
called by the court.
[7] The
accused testified that on 17 June 2005 he appeared in the Wynberg
Regional Court on a charge of rape. He was legally represented
by Ms
Amos, an attorney from Justice Centre. He confirmed that the plea
statement which was read in court bears his signature.
He, however,
stated that certain portions in the statement are incorrect. He
denied that he instructed his legal representative
to plead guilty to
the charge. He always wanted to plead not guilty.
[8] He
testified that his legal representative did not understand his
instruction to her. He stated that he consulted with his legal
representative at the court holding cells. During consultation they
were standing. He was talking to his legal representative through
the security bars as there are no consultation facilities at the
court holding cells. The legal representative was talking to him
in
English and he battled to understand her as he is not conversant in
English. He passed standard 4 at school. He testified that
he and
his legal representative misunderstood each other because of language
problem.
[9] The
accused further testified that he was thereafter brought to court.
He did not understand the court proceedings. He stated
that although
there was an interpreter in court she did not interpret for him what
was being said in court. He denied that the magistrate
had asked him
questions while in court. He denied that he had told his legal
representative that he raped the complainant. He only
admitted that
he knew the complainant.
[10] Under
cross-examination the accused admitted to have told the investigating
officer that he was born on 16 June 1961, that he
was unmarried and
that he was employed as a taxi driver. He denied that he informed
the investigating officer that he passed standard
8 at school. When
he was asked whether he was able to speak Afrikaans and English he
answered in the negative saying that he understands
a little bit of
English but does not understand Afrikaans at all.
[11] When
he was asked why he had not asked his legal representative to get an
interpreter to interpret for him during the consultation
she had with
him at the holding cells, the accused stated that it was because she
was in a hurry when she came to see him. When
he was asked if the
charge was read to him while he was in court, he stated that he was
unable to say because he did not understand
the proceedings. The
proceedings were not interpreted to him. He testified that the
written statement, purporting to be his plea
was never interpreted to
him in isiXhosa. He admitted to have signed the plea statement
though he did not understand its content.
He thought that the plea
statement contained and conveyed what he had discussed with his legal
representative. He was merely asked
by the interpreter to append his
signature to the document, which he did. He denied that his legal
representative had made use of
the services of an interpreter when
she consulted with him at the court holding cells. He did not know
what the contents of the
statements were until they were explained to
him by
Mr Ballem
, his present legal representative.
[12]
Mr
Badenhorst
read the content of the plea statement to the accused
and asked him to comment on it. The accused admitted its correctness
in certain
respects, but denied others and in particular those
relating to the fact that he had admitted that he raped the
complainant.
Mr
Ballem
thereafter indicated that he had no further witness to
call.
[13] The
state called Ms Julia Nonceba Williams, Ms Melissa Amos and Ms Gladys
Ncaba to testify on its behalf.
Ms
Williams is employed by the Department of Justice as an interpreter.
During 17 June 2005 she was working at Wynberg regional court.
She
is currently employed as an interpreter in the High Court. She has
been an interpreter for the past 20 years and is fully conversant
in
English, isiXhosa and Afrikaans.
[14] She
confirmed that she had read the record of the proceedings in the
regional court relating to the accused. She had done so
to refresh
her memory. She testified that based on her recollection she was an
interpreter in the accused’s trial. She interpreted
from Afrikaans
to isiXhosa and vice versa.
[15] Under
cross-examination she testified that her testimony was based on what
she had read in the record. She had no independent
recollection of
the events. She testified that on 17 June 2005 she was not the only
interpreter for Wynberg regional court M. She
denied that she
interpreted for the accused during the consultation he had with his
legal representative. She would not have done
so as she was involved
in the accused’s trial. She explained that in terms of the
interpreters’ practice an interpreter who
is involved in the
accused’s trial is not allowed to assist the accused’s legal
representative with interpretation during consultation
with the
accused. The rationale for this practice was to prevent any kind of
conflict of interest situation from arising. She conceded
that she
might not have interpreted for the accused during the proceedings on
17 June 2005. Her independent recollection of the
events was faint.
[16] Thereafter
the state called Ms Melissa Amos to testify. She is employed by
Athlone Justice Centre as a professional assistant.
She legally
represented the accused on 17 June 2005 on the instruction of the
Legal Aid Board. She was referred to the record of
the proceedings
relating to the accused which she confirmed to have perused and which
in her opinion accurately reflects what transpired
in court. She
confirmed that she was the author of the plea statement. She drafted
the plea statement after consulting with the
accused. She got Ms
Dora Ncaba, a court interpreter to assist her with interpretation
during consultation. The consultation was
in English and Dora Ncaba
interpreted for the accused to isiXhosa and it took place at the
court holding cells.
[17] She
confirmed that the plea statement accurately conveyed the accused’s
instruction. She further testified that during the
court proceedings
which were conducted in Afrikaans, the charge was read to the
accused. He understood it and pleaded guilty to
it. She thereafter
confirmed the accused’s plea and read into the record the plea
statement which she had drafted. Throughout
the proceedings Ms
Williams interpreted for the accused from Afrikaans to isiXhosa.
After reading the plea statement, the accused
was asked by the court
if he was in agreement with its contents and he confirmed. The
accused thereafter signed the plea statement.
The court convicted
the accused on his plea.
[18] During
cross-examination Ms Amos conceded that her testimony was based on
her reading of the court record. She had no independent
recollection
of the events. She, however, particularly recalled that on the day
in question Ms Williams was an interpreter for court
M. She had
asked her to assist her during consultation. She, however, refused
because she was involved in the trial of the accused.
[19] She
stated that she then asked somebody else to interpret for the accused
during consultation because she was unable to communicate
with him.
He spoke in isiXhosa and she did not understand him. She denied that
there was any misunderstanding between her and the
accused, either
during consultation or in court. She stated that after drafting the
plea statement, she went back to the holding
cells and consulted with
him on its contents. This consultation took place at the court
holding cells during adjournment and Ms
Ncaba was present to
interpret for the accused.
[20] Thereafter
the matter was postponed for the State to bring the tape recordings
of the proceedings.
[21] When
the proceedings resumed the state called Ms Gladys Ncaba who
testified as follows: she is employed by the Department of
Justice
as an interpreter. She has been an interpreter for 16 years and is
currently based at Wynberg Magistrate’s Court. She
is conversant
in English, Afrikaans and isiXhosa. She passed standard 10 at school
and has successfully completed an advanced interpreter’s
course as
well as a course on sexual offences at Justice College.
[22] She
was referred to the charge sheet and a transcript of the proceedings
in the Wynberg Regional Court of 17 June 2005. She
confirmed that
she interpreted in the accused’s trial on the day in question. The
proceedings were conducted in Afrikaans and
she interpreted for the
accused from Afrikaans to isiXhosa and vice versa. The tape
recordings of the proceedings were replayed
and she confirmed that
what is said on tape accurately reflects what transpired in court on
17 June 2005. She confirmed that the
prosecutor put the charge to
the accused in Afrikaans and she interpreted for the accused in
isiXhosa. The accused pleaded guilty
to it and his legal
representative confirmed the plea and read the plea statement. She
again interpreted to the accused as it was
read in Afrikaans.
[23] The
accused was asked by the magistrate if he was in agreement with the
contents of the plea statement and he confirmed. The
accused was
then asked to sign it, which he did. The court convicted the accused
on his plea statement.
The
tape was handed in as Exhibit 1 by agreement between the State and
the defence.
[24]
Mr
Ballem
, after listening to the tape recording and the witness’
evidence asked for an indulgence to take instruction from the
accused.
This was granted. After consulting with the accused
Mr
Ballem
said he had no questions for the witness.
[25] The
witness, in response to questions put to her by the court, denied
that on 17 June 2005 she had been requested by Ms Amos
to interpret
for the accused during consultation. She stated that she would not
have done so as the practice prevented her from
doing so. It is the
practice that an interpreter who is involved in the accused’s
trial, would not be allowed to assist with interpretation
during
consultation with his or her legal representative.
[26] Mrs
Cornelia Francina Strydom was called by the court. She is employed
as a stenographer at the Wynberg Regional Court M. She
received
training on this work which she has been doing for the past 8 years.
She confirmed that Exhibit 1 contains the record of
the proceedings
relating to the accused’s trial. She numbered the tape with a case
number and after the conclusion of the recordings
put it into the
envelope which she sealed and took it to the clerk of the court for
safekeeping.
[27] Thereafter
counsel for the accused and the State were given an opportunity to
address the court.
Mr Ballem
indicated that he had nothing to
say and
Mr Badenhorst
briefly addressed the court stating that
the accused had failed to give a reasonable explanation for the
retraction of his plea.
He accordingly asked the court to find that
the proceedings in the regional court were in accordance with justice
and that the conviction
should stand.
[28] The
question is whether the accused can, at this stage of trial, retract
his plea and what he has to show in order to do so.
There is no
doubt that a plea made in terms of
section 112
of the
Criminal
Procedure Act is
not a cast in stone. It can be corrected and
changed either by the court or the accused himself.
Section 113
of
the
Criminal Procedure Act facilitates
a procedure to deal with a
plea correction. This will also involve the retraction of an
admission (
Attorney-General, Transvaal v Botha
1993 (2) SACR
587
(A)). It is also clear that a plea can be corrected even after
conviction stage as long as the accused has not been sentenced.
In
other words the accused can change his plea before or any time before
sentence.
[29] In
this case the accused cites misunderstanding between him and his
legal representative as a reason for seeking to retract his
plea. In
effect he is saying the plea of guilty was not in accordance with his
instruction. He had instructed his legal representative
to plead not
guilty. This instruction, because of the language barrier between
him and his legal representative, was not properly
conveyed to his
legal representative.
[30] The
approach which has to be followed in dealing with the application of
this nature is correctly 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. A reasonable explanation could be, for example,
that the plea was induced by fear, fraud, duress, misunderstanding
or
mistake. If he fails to give an explanation the court would be
entitled to hold him to his plea of guilty. If he does give an
explanation there is no
onus
on him to convince the court of
the truth of his explanation. Even though his explanation be
improbable the court is not entitled
to refuse the application,
unless it is satisfied not only that the explanation is improbable,
but that beyond reasonable doubt it
is false. If there is any
reasonable possibility of his explanation being true, then he should
be allowed to withdraw his plea of
guilty.
”
[31] This
approach was followed in the
Attorney-General, Transvaal
v
Botha
case (
supra
) and the emphasis seems to be that when
the accused wishes to change his or her plea after conviction and
before sentence he has
to give a reasonable explanation for his or
her plea and the
onus
is on the state to show beyond
reasonable doubt the falsity of the explanation.
[32] Turning
to the facts of this case, the explanation given by the accused for
retracting his plea statement is based on the fact
that, first, as a
result of language difference between him and his legal
representative, he was unable to communicate with her and
this fact
impacted negatively on his defence. He testified that he had
intended to plead not guilty to the charge, but because of
misunderstanding caused by communication problem his attorney ended
up preparing a plea statement. Second, the other basis upon
which
the accused seeks to withdraw his plea statement is the fact that he
was unable to follow the court proceedings because they
were
conducted in a language which he did not understand and an
interpreter did not interpret for him.
[33] The
validity of these claims must be tested against evidence which was
placed before this court. However, before undertaking
that exercise
it is apposite to first deal with the rights which an accused person
has and in particular rights relating to legal
representation.
[34] Section
35 of the Constitution of the Republic of South Africa of 1996 deals
with these fundamental rights. The provisions relevant
to this
matter are contained in section 35 (3) (f), (g) and (k) which
provides as follows:
“(3) Every accused person has a right to a fair trial, which
includes the right:-
to choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
to have a legal practitioner assigned to the accused person by the
State and at state expense if substantial injustice would otherwise
result, and to be informed of this right promptly;
(k) to be tried in a language that the accused person understands,
or, if that is not practicable, to have the proceedings interpreted
in that language.”
The
court in the matter of
S v Ngubane
1995 (1) BCLR 121
(T) had
an occasion to consider the meaning of section 35 (k) and at page
122H, the court had this to say:
“This provision is to be construed, as meaning that the
interpretation should take place simultaneously with the testimony
being
given by the witnesses; it also presupposes and provides that
the interpretation will be in a language which the accused fully
understands
and not into a language which he understands partially…”
[36] This
right, however, does not mean that an accused has a right to insist
that the proceedings be conducted and recorded in his
own language
(
Mthethwa v De Bruin NO and Another
1998 (3) BCLR 336(N)
at
338E). But compare with
S v Matomela
1998 (3) BCLR 339
(CK)
and
S v Pienaar
2000 (7) BCLR 800
(NC).
[37] It
is correct that an accused is entitled to legal representation at
state expense if substantial injustice would otherwise result
(
Legal
Aid Board v Msila and Others
1997 (2) BCLR 229
(E). The right to
legal representation at state espense does not, however, generally
include the right to choose a legal practitioner.
Circumstances may,
however, arise where the accused person may be justified in seeking
to dispense with the services of the legal
representative assigned to
him and to seek the appointment of another legal practitioner (
S v
Manguanyana
1996 (2) SACR 283
(E) at 287).
[38] With
this legal background I now turn to consider the validity of the
accused’s claims. It is common cause that the State
at its own
expense had assigned Ms Amos to represent the accused. It is also
common cause that the accused’s home language is
isiXhosa and which
language Ms Amos did not understand. Ms Amos was proficient in
English and Afrikaans. The accused’s knowledge
of English was very
rudimentary and he did not understand Afrikaans at all.
[39] What
is, however, in dispute is whether the services of an interpreter had
been provided to the accused during consultation with
his legal
representative as well as during trial. If such services had not
been provided there is no doubt that the accused’s
right to a fair
trial would have been severely compromised. In my view, proper
understanding between an accused and his or her legal
representative
is vital to an effective representation. They need to be able to
communicate and understand each other very well
to ensure that his or
her defence is properly and efficiently conducted.
[40] Ms
Amos testified that she had requested one Gladys Ncaba, a court
interpreter to interpret for the accused while she consulted
with
him. Ms Ncaba however denied to have interpreted for the accused
during consultation with Ms Amos. She could not have done
so because
she knew she was involved in the accused’s trial. According to Ms
Ncaba in terms of the workplace rule an interpreter
is not allowed to
participate in the consultation between the accused and his legal
representative if such an interpreter is going
to be involved in the
accused’s trial. The evidence of Ms Williams was to the same
effect. I shall accept the evidence of Ms
Ncaba on this issue and
accept that she did not interpret for the accused during consultation
with his legal representative. It
is therefore possible that Ms
Williams might have been used by the defence during consultation with
the accused.
[41] The
next question is whether the proceedings were interpreted to the
accused. In this regard it is the accused’s case that
the
proceedings were conducted in Afrikaans and the interpreter did not
interpret for him.
[42] The
State relied on the evidence of Ms Williams, Ms Amos and Ms Ncaba and
presented the tape recording of the proceedings. Ms
Williams’
evidence was not that of much assistance. It was based on the
information in exhibits “A” and “B”. She had
no independent
recollection of the events. She was unable to confirm whether she
definitely interpreted for the accused in court
on 17 June 2005. As
far as Ms Amos is concerned the court gained an impression that she
was truthful and honest and her evidence
regarding the court
proceedings can safely be relied upon. Ms Ncaba was an impressive
witness. There were no contradictions in
her evidence. She gave
evidence in a truthful manner. Her evidence was corroborated by the
contents of the tape recordings. The
tape recordings were replayed
in court and it is clear that she interpreted the proceedings to the
accused from the time the charges
were put to him right up to the
stage when he was convicted. The accused participated in the
proceedings and the general picture
that emerged was that the accused
fully understood the proceedings. Mrs Strydom testified regarding
the source and authenticity
of the tape. The tape recordings were
original recordings and they relate to the criminal proceedings
involving the accused (
S v Singh and Another
1975 (1) SA 330
(N) and
S v Ramgobin
1986 (4) SA 117
(N). The tape recordings
are accordingly admissible.
[43] The
accused’s claims, tested against the body of the evidence
presented, are without substance and are accordingly rejected
as
false and to the extent that his evidence contradicts that of Ms
Amos, it is rejected. The accused’s explanation to retract
his
plea is not only unreasonable but has been shown beyond reasonable
doubt to be false. I am satisfied that the plea of guilty
of the
accused was not incorrectly recorded. The plea statement stands.
The application is dismissed.
[44] In
terms of section 52 (2) of the Act I accordingly find that the
proceedings in the regional court were in accordance with justice
and
the judgment of the regional court shall stand for the purpose and be
sufficient for this court to pass a sentence.
_______________________
ZONDI,
AJ