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[2024] ZALMPPHC 98
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Director of Public Prosecutions, Limpopo Province v Magakwe (CC106/2022) [2024] ZALMPPHC 98 (16 August 2024)
REPUBLIC
OF SOUTH AFRICA
INTHE
HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
No.
:
CC106/2022
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
M.G PHATUDI J
DATE:
16/08/2024
In
the matter between:
THE
DIREC
T
OR
OF PUBLIC PROSECUTIONS,
APPLICANT
LIMPOPO
PROVINCE
and
TLAISEGO
BENESANE LAZARUS MAGAKWE
RESPONDENT
REASONS
FOR JUDGMENT
M.G.
PHATUDI J:
BACKGROUND:
[1]
This
is an application by the Director of Public Prosecutions
,
Limpopo
,
(DPP)
the state
,
for
leave to appeal against the conviction and sentence imposed against
the Respondent
,
Mr
Tlaishego Ber Lazarus Magakwe
,
pursuant
to
his
admission of guilt to culpable homicide in terms of S.220(1) of the
Criminal Procedure Act 1977 (the CPA).
[1]
THE
FACTS:
[2]
The
respondent was originally indicted in this court on three counts. In
count one, he was charged with murder, read with the provisions
of S
51 (1) of Act 105 of 1997.
[2]
On
count two he was charged with contravention of SS.1, 103, 117, 120,
121, and 151, respectively, of the
Firearms Control Act 2000
.
[3]
On
count three, the charge was one of defeating the ends of justice.
[3]
The respondent
initially pleaded not guilty to all three counts, and raised private
defence as the basis of his defense during his
plea explanation in
terms of
S. 115
of the CPA. I consider it unnecessary to re-live
his plea explanation in this judgement, as same was mechanically
recorded and,
therefore,
forms part of the appeal record.
[4]
The trial
hearing commenced in earliest on 22 May 2023, at the conclusion of
the
state's
case on 24 May 2023, the respondent unsuccessfully applied for an
acquittal in terms of the provisions of
S. 174(1)
of the CPA
in
respect of all
the counts. The decision to refuse his acquittal at that stage of the
proceedings, was made after the court assessed
or evaluated the
state's case and made a finding, in the exercise of its discretion
that, there was a
prima
facie
case
made out against the respondent which needed an answer.
[5]
Subsequent
thereto on 30 May 2023, the respondent's counsel, Mr. Monene, in
order
to
trim
sails to the wind, applied to have trial proceedings further
adjourned to 17 July 2023. The state had prior to that initially
app
l
ied
on own volition to have
its
reservation of
questions of law withdrawn by notice, which was granted. Subsequent
thereto the state formally applied for its reinstatement.
THE
TRIAL PROCEEDNGS ON 17 JULY 2023:
[6]
At the
resumption of the trial on 17 July 2023, attorney for the respondent,
Mr. Mahlaela, bought an application from the bar seeking
to change
the accused's plea of not guilty, in particular, of the murder
charge, to that of a plea of guilty of culpable homicide
.
The change of
the plea of guilty also covered other charges in respect of which he
initially pleaded not guilty. The facts upon
which the respondent
admitted his guilt were reduced to writ
i
ng,
in
terms
of
the provisions of
S.220
of the CPA. (Exhibit A1, Record). In it
,
he gave a
detailed account of the circumstances that led to the deceased's
death.
[7]
On a proper
reading of the relevant statement he made in terms of
S .220
, the
respondent
had
unequivocally
admitted
all the
essential ingredients of the crime of culpable homicide. The court
having satisfied itself about his culpability, and the
state having
accepted the respondent's changed plea read with his attendant
S.220's
admission
statement
,
returned a
verdict of guilty of culpable homicide on the strength of his
statement,
together with
ancillary pleas to other charges for which he admitted his guilt.
[8]
It was at that
moment, after conviction, that the court took the view there was no
longer a lis in respect of the prosecution
'
s
case which would have impelled the court to evaluate the totality of
the evidence for the purpose od deciding whether or not the
state
succeeded in proving its case against the respondent beyond a
reasonable doubt.
[9]
On
the return of conviction following a changed plea and the admission
statement made under
S.220
of the CPA, both the prosecution and the
defense counsel, were granted an opportunity to address the court on
aggravation and mitigation
of sentence
.
The
court remarked that
"the
deprivation
of one's life by culpab
i
lity,
cannot be countenanced. It must be rebuked in the strongest possible
terms it deserves
"
.
[4]
At the end of the proceedings, the
court
having
considered the aggravating and mitigating factors
,
and
in
the
exerc
i
se
of its judicial discretion, based on the factual basis presented
,
imposed
the sentence(s) as reflected on the endorsed
copy
of
the
court
order.
[5]
LEAVE
TO APPEAL:
[10]
Aggrieved with the conviction and sentence imposed, the state applied
for leave
to
appeal
for
determination by the appellate court in terms of
S 319
of the CPA of
which it claimed were questions of law.
[11]
The
state in its application for the reservation of questions of law
sought for
consideration
by
the SCA, set them out,
inter
alia
,
as
follows
:
[6]
(a)
whether
the court is entitled to convict the accused on a competent verdict
of culpable homicide without first considering whether
the evidence
presented proves the main charge of murder
;
(b)
whether
the court is entitled to disregard other relevant evidence presented
at the trial and consider only admissions made in terms
of
section
220
of the
Criminal Procedure Act 51 of 19
77
,
and if
so
,
whether
an admission in terms of
section 220
of Act 51 of 1977 is
a
plea of
guilty as envisaged in section 112 (2) of Act 51 of 1977
;
(c)
whether
the trial court erred in law by disregarding the established legal
principles in
section 175
of the
Criminal Procedure Act 51 of 1977
,
by not
affording the applicant and the respondent an opportunity to address
the court prior to judgment.
"
The
respondent filed an answering affidavit opposing the said
application.
THE
ISSUE:
[12]
The question
that arises is whether the aforegoing issues raised by the s
t
ate
constitute questions of law.
[13]
The legal
regime governing reservation of question of law is stipulated in
S.319(1)
of the CPA. It provides that:
(1)
if any question of law arises on the trial in a superior court of any
person for any offense
,
that court may
of its own motion or at the request either of the prosecutor or the
accused reserve that question for the consideration
of the Appellate
Division
,
(SCA) and
thereupon the first - mentioned court shall state the question
reserved and shall direct that it be specially entered
in the record
and that a copy be transmitted to the registrar of the Appellate
Division
,
(own
insertion).
"
[14]
I turn now to
consider each of the questions sought to be reserved seriatim as
follows:
14.1
Whether the
court is entitled to convict the accused on a compe
t
ent
verdict of culpable homicide without first considering whether the
evidence presented proves the main charge of murder?
14.1.1
I
hasten to point out that as stated in the
Director
of Public Prosecutions, Western Cape V Schoeman
[7]
)
three
requisites were aptly laid down
,
namely
,
(1)
it is essential that the question is framed accurately leaving no
doubt what the legal point is, (2) the facts upon which the
point
hinges must be clear, (3) and they should be set out fully in the
record together with the question of law.
14.1.2
The question
in 14
.
1
above
,
was
not
"
accurately
framed essentially leaving no doubt what the question of law is
".
The question
is not only vague
,
but is capable
of varied interpretation
,
as same was
nowhere fully set out in the record as required.
14.1.3
The court was
,
in view
,
entitled to
convict the respondent of culpable homicide in respect of which he
admitted facts in his
S220
statement which prompted him to alter his
plea of not guilty to the main offence
.
to that of
gui
l
ty
to a lesser offence
.
(murder to
culpable homicid
e
).
The admission statement changing his plea to one of guilty afte
r
he admitted
his guilt
,
was
accepted by the state
.
14.1.4
By
unequivocally admitting his guilt in terms of
S220
,
invariably
resulting in a change of plea,
"
the
particular points in dispute
,
(mu
r
der
count) falls away
,
and
d
i
d
not need to be adjudicated
".
[8]
In
o
t
her
words,
formal admissions made in terms of
s 220
are facts which, if
admitted, eliminate points of main dispute at criminal trial and thus
amount to sufficient proof of such fact.
Where
,
however
,
in
an instance as the present, no points in
issue
remain
for adjudication
on
the
evidence, or still on the merits
,
and
if the respondent
,
admitted
facts
whose
elements
proves culpable homicide, and is eventually convicted thereon, it
cannot be contended that the court erred in its conviction.
See in
general
,
S
v Malebo
1979(2)
SA(B) AT 644.
This
observation stems from the fact that no further proo
f
of
culpability
[15]
Whether the
court is entitled to disrega
r
d
other relevant evidence prese
n
ted
at the t
r
ial
and consider only admissions made in terms of section 220 of the CPA
1977, and if so
,
whether an
admission in terms of section 220 of the CPA
,
i
s a plea of
guilty as envisaged in section 112(2) of the CPA.
15.1
The second question
is the relic of the first question
.
As already
shown
,
the
court during the
S174
applicat
i
on
by the respondent at the close of the prosecutions' case
,
consider
e
d
the entire state
'
s
evidence at that stage in order to decide on the fate of the said
application
.
The result was
its rejection by the court
.
15.2
The court in
its judgement delivered after reasons for the conviction and
sentences imposed were requested by the state pursuant
to the
respondent's changed plea of guilty
,
made a
finding
,
based
on the
S.220
admissions of guilty to culpable homicide.
15.3
These factual
findings prompted the court to conclude
inter
alia
that:-
"[15]
Because the evidence of the state witnesses in the main trial was no
longer of moment for the purposes of a conviction
in respect of the
charges in the indictment, that part of the evidence
,
naturally
,
became
pro non scripto
.
The
section 220
admissions and the
a
dmitted
facts depicting his guilt had all e
x
tinguished
the prosecution
'
s
evidence it sought in pur
s
uit
of a
c
onviction
in the m
a
in
tri
al
[9]
.
15.4
Put
differently the decision to convict the responded was inherently
based on the strength of his admission statement in terms of
S220
representin
g
his changed
plea of guilty to culpable homicide. This was not necessarily on
account of the state having proved its case against
the respondent
beyond reasonable doubt in respect of the original dispute or
lis
as the
main charge of murder in the indictment had fallen away
.
15.5
Applying
the reasoning offered by the learned author Heinst
r
a
above
,
[10]
the
court took the view that the admissions in terms of
S220
of his
guilty statement, the main dispute (murder charge) which was accepted
by the state
,
indubitably
,
extinguished
the need to adjudicate the state witness evidence since the
trial/dispute was pr
e
maturely
terminated
.
The
usual
process
of evaluation of the totality of the evidence was curtailed by the
changed plea to one of guilty
,
thus
eliminating the
lis
between
the state and accused. When
,
as
in this case
,
there
was a change of plea to one
of
guilty
,
(from
not guilty) no facts are in dispute
.
No
evaluation of the evidence would still be required as if the trial
unfolded to its logical conclusion. There was
,
therefore
,
no
evidence
left
for
the court to evaluate
.
See,
S
V Ngubane
1985(3)
SA677(A) of 683
.
15.5
By
accepting the admission statement under
S220
in circumstances w
h
ere
the respondent admitted his guilt to a lesser offence, the state
invariably bound itself
to
that
admission in terms of
S.12
of Act 86 of 1996
[11]
.
The corollary is failure by the state then to have objected to the
facts admitted in the S220 admiss
i
on
statement analogous to admission of guilt
,
is
a
c
cordingly
held to it. See in general
,
S
V Chironga
1980(4)
SA 353(Z
)
[12]
.
15.6
I according
l
y
find that the latter question
,
l
i
ke
the first, is equally liable to fail for not me
e
ting
the t
h
reshold
in S
.
319
of the CPA.
[16]
The last
quest
i
on
i
s
whether the trial court erred in law by disregarding the e
s
tablished
legal prin
c
iple
in S175 of the CPA
1
977,
by not affording the appellant and the respondent to address the
court prior to judgement.
16.1
This question
i
s
regulated by the provisions of S175(1) of the CPA. The operative
words are:
-
"
after
all the evidence has been adduced
"
,
the
prosecutor and
thereafter the accused (his/her counsel) may address the court
.
16.2
As already shown, in
the instant case
,
the trial
proceedings did not unfold to an extent where it reached its tail end
for the court to evaluate the totality of the evidence,
or to assess
at the end of the defense
'
s
case
.
The
respondent admitted his guilt in the middle of the proceedings by
changing his plea. In that way, the court was left in no doubt
about
the guilt of the accused (respondent) in respect of culpable homicide
and ancillary charges to which he admitted guilt.
16.3
This court
found no potential or actual prejudice occasioned
,
to the after
being satisfied about his guilt
,
that he be
convicted on the strength of his changed plea to admission of guilt
pursuant to S220 statement. Crucially
,
the respondent
was throughout the trial proceedings
,
legally
represent
e
d.
16.4
It can
,
therefore
,
not be sa
i
d
that he could not have had a fair trial in the circumstances
,
not to have
addressed the court subsequent to handing up his S220 statement.
(Exhibit A)
.
16.5
His handing up
of the S220 admiss
i
on
statement was
,
i
n my view
,
an admission
of his guilt
,
unequivocab
l
y
so
,
and
thus constituted waive
r
to address the
court at that stage
.
See generally
,
S V Kwinda
1993
(
2
)
SACR 408(V) at
410. Waiver by an accused person
,
particularly
,
legally
represented
,
is no
t
something
foreign in our law. See also
;
R v Cooper
1926 AD
54
, and also
R
v Podbrey
1948(2)
SA 181 (C) at 185.
16.6
Regard being
had to the foregoing considerations, I am of the view
t
hat
there could not have been an irregularity that would otherwise
justify reservation of a question of law as formulated by the
state
.
THE
APPROACH:
[17]
It
often
happens, as in the present instance, that the accused in the course
of trial changes the pleas to one of guilty to a lesser
offence which
is then a compe
t
ent
verdict on the main charge, which the prosecutor may accept.
17.1.
The
appellate court in
S
v Sethoga and Others
[13]
aptly
explained the material distinction between the acceptance of a plea
by the state before and after the commencement of the
trial
,
at
the plea stage
,
where
the latter is
dominus
litis
and
thus entitled after acceptance of a plea of guilty to ano
t
her
offence, to limit the ongoing
lis
between
the state and the accused. However, upon commencement of the trial,
the duty rests on the court to adjudicate the case as
defined on the
admitted facts or as in the remaining charge and the changed plea
occasioned by the S220 statement of guilt. It
is in my view, not open
to the prosecution to interfere with the exercise by the trial court
of this duty, after acceptance of
the facts of guilt accepted by the
accused
from
adjudicating
on the
case.
This
is particularly so in that there was no stoppage of the prosecution
by the DPP. I, therefore
,
factually
took the view that the court could still decide the issue of
conviction on a lesser charge of culpable homicide in which
the
respondent admitted his guilt in terms of S.220 statement. See in
general,
S
v Tladi and Another
1994(1)
SACR 174 (NC) At 178.
17.2.
If
my factual conclus
i
on
as aforementioned was a mistake of fact
,
t
h
en
inevitably
,
the
question as formulated for consideration by the SCA
,
does
not constitute a question of law
.
My
understanding is that
"
a
question of law is not raised by asking whether the evidence
established one or more of the factual ingredients of a particular
crime
,
where
there is no doubt or dispute as to what those ingredients are.
"
[14]
[18]
If
my conclusion leading to a conviction on a lesser offence after
satisfying myself about the respondent's guilt
,
was
a mistake of fact
,
it
follows that the latter question sought to be reserved is incompetent
in terms of S
.
319(1)
of the CPA. This is because such
"
question
is not raised by asking whether the evidence establishes one or more
of the factual ingredient of a particular crime
,"
in
casu,
culpable
homicide as admitted in Exhibit A The issue of
culpa
required
is one usually drawn from the primary
f
acts
and therefore
,
is
a question of fact not law
[15]
.
[19]
The
issue is whether the questions
r
eserved
by the state in the present case were unbundled in the
DPP
:
Western
Cape v Schoeman and Another
[16]
.
T
his
judg
e
ment
breathed in and settled legal prin
c
iples
that clearly distinguished fac
t
ual
and legal erro
r
s
for purposes of S
.3
19
of the CPA.
CONCLUSION:
[20]
I
n
ligh
t
of
the foregoing considerations
,
I am of the
view that the following o
r
der
wou
l
d
issue:
-
(a)
Application
for reinstatement of the previously withdrawn reservation of question
of law is granted.
(b)
The
reservation of the questions of law brought by the state in terms of
S.319
of the
Criminal Procedure Act 51 of 1977
, are refused.
M.
G. PHATUDI J
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
REPRESENTATION:
For
the state
:
Adv C Chauke
On
brief
:
The Director of Public Prosecutions,
Limpopo, Polokwane.
For
the
Respondent
:
Mr M Mahlaela
On
brief
:
c/o Malope D Mahlaela Burgersfort
Trial
date
:
18 July 2023
Reasons
for judgment sought
(conviction)
:
26 January 2024
Delivered
electronically
:
16 August 2024
[1]
Act
51 of 19
77
as
amanded
[2]
Act
105
of1997
[3]
Act
60
of
2000
[4]
P7
lin
e
1-10,
Record
.
[5]
Copy
o
f
the
court order
marked
"MGP
1)
".
[6]
Paginated
nde
x
PP7-8,
R
e
cord
(Man
appli
ca
tion)
dated 07 M
ay
20
2
4.
[7]
2
0
20
(1)
SACR
4
49
(
sca
)
P
A
R
A:
[3
9
)
S
EE
A
L
S
O.
D
P
P
,
W
a
t
a
l
v
Ma
g
id
a
l
a
& a
n
o
th
e
r
2
0
00
(1
_
)
SACK
458
(
SCA
)
pa
r
a:
[9
]
[8]
"
Hi
e
m
stra
'
s
c
r
i
mi
na
l
pro
ce
dur
e
,
I
ss
ue
1
2,
(
20
1
9
)
a
t
PP1
5
[9]
Pag
inat
e
Ind
ex,
P38,
pa
ra
[
15]
R
ec
ord.
[10]
I
b
i
d
.
s
ub
-
pa
r
agra
ph
4
.
1.4
,
jud
g
m
e
nt,
a
nd
th
e
a
uthorit
e
s
ci
t
ed
t
h
e
r
e
in
[11]
Cr
im
i
n
a
l
Pr
oce
dur
e
A
m
e
ndm
e
n
t
Act,
1
99
6
.
Thi
s
a
m
e
ndm
e
n
t
c
r
ea
t
e
d
a
s
itu
a
t
io
n
w
h
er
e
th
e
s
t
ate
bind
s
itse
l
f
t
o
i
ts
ow
n
ad
mi
ss
i
ons,
e.g.
th
e
p
a
rti
c
ul
a
r
s
in
i
t
s
c
har
g
e
,
or
i
ts
fa
ilu
re
to
o
bj
e
ct
to
cer
t
a
in
e
vid
e
n
ce/fac
t
s.
[12]
C
hir
onga
c
i
ted
with
a
p
p
ro
va
l
by
Hiem
s
t
ra
a
t
p2
4
in hi
s
"
Cr
imin
al
P
roce
dur
e"
r
e
f
e
rr
ed
to a
b
o
v
e.
[13]
1990
(1)
SA
27
0
(AD)
at
275
[14]
Magmoe
d
v
J
a
n
se
va
n
Re
n
sb
ur
g
& O
th
e
r
s
1993
(
1
)
SACR
67
(
A
)
a
t
94
(
b
)
-
(
c)
[15]
See
,
S
v Pe
tr
o
Loui
se
Ent
er
pri
s
e
s
(P
t
y
)
Lt
d
& O
th
e
r
s
1
978
(1)
SA
27
1
(
T
)
[16]
202
0
(
1
)
SAC
R
44
9
(SC
A)
pa
ra
[
5
1]
t
o
[
58]