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[1989] ZASCA 128
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S v Singh (308/88) [1989] ZASCA 128; [1990] 1 All SA 400 (A) (29 September 1989)
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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
RASHIED SINGH
and
THE STATE
CORAM
: JOUBERT, SMALBERGER, VIVIER, KUMLEBEN JJA et FRIEDMAN AJA
HEARD
: 11 SEPTEMBER 1989
DELIVERED
: 29 SEPTEMBER 1989
JUDGMENT
KUMLEBEN, JA
/....
1.
KUMLEBEN, JA
:
On 8 March 1985 the appellant stood trial in the regional court for the
regional division of the Cape held at Wynberg on a charge
of culpable homicide.
It alleged that on 15 November 1982 he had unlawfully killed the deceased,
Samsodien Parker. At the outset
of the hearing Mr Pienaar, who at the time
appeared on behalf of the appellant, raised the defence of
autrefois
acquit
and, in terms of
sec 106(1)(d)
of the
Criminal Procedure Act, No 51
of 1977
("the
Act"), such
a plea was entered. No formal admissions were made or
evidence led in support of this plea. In the course of argument certain
documents
were handed in by consent and certain statements of fact made by
counsel from the Bar were apparently accepted as correct. The magi-strate
dismissed the special plea. On appeal to the
2/...
2.
Cape of Good Hope Provincial Division of the Supreme
Court it suffered the same fate. The judgment of Lategan J, with Van Heerden
J
concurring, has been reported: 1986(4) S.A. 263. Leave was, however, granted by
the court a
quo
for a further appeal to this court.
From the record the facts giving rise to the special plea may be thus
summarised.
On 17 November 1982 the appellant first appeared in the magistrate's court at
Athlone pursuant to the provisions of
sec 119
of the
Act. The
matter was
remanded to 15 December 1982. On that date the prosecutor informed the court
that he proposed putting the charge to the
appellant in terms of
sec 119.
His
legal representative pointed out to the appellant that he was not standing
trial. The charge was one of
3/...
3. murder of the said Samsodien Parker with an alternative
charge of culpable homicide. The appellant pleaded not guilty to both counts.
In
terms of
sec 122(1)
the court was thus required to and did act in terms of
sec
115
of the
Act by
asking the appellant whether he wished to disclose his
defence. He responded by handing in a signed written statement containing
certain admissions. The magistrate thereupon in terms of
sec 122(1)
"stopped the
proceedings and adjourned the case" pending a decision of the Attorney-General.
The bail which had been granted was
extended and the case postponed to 12
January 1983. The case (No F 3145/82) was adjourned several times, the
appellant's last appearance
in that court being on 13 June 1983.
The Attorney-General having decided in terms of
sec 122(2)(i)
that the
appellant should stand trial
4/...
4.
in the regional court, the appellant first appeared in such court in the
present case (No F 3346/84) on 4 December 1984, on which
occasion the case was
remanded. On 8 March 1985, when it was intended that the trial should proceed on
the merits, the appellant,
as I have said, raised the special plea.
In support of this plea the appellant relied on what was alleged to have
taken place on 13 June 1983 at his last appearance in the
magistrate's court.
His case, as presented by counsel, was that on that date the presiding
magistrate had a letter in his possession
written by the Attorney-General, or on
his behalf, addressed to the magistrate in which the Attorney-General informed
him that he
(the Attorney-General) declined to prosecute. The magistrate told
this to the appellant and added "jy kan maar gaan".
5/...
5. The appellant did just that, after retrieving his bail
money.
The position as regards this letter is anything but clear. In fact the
record in this regard is a masterpiece of obfuscation. The
appellant handed in
written heads of argument in support of the special plea and the argument and
proceedings at this hearing, which
were recorded and tr anscribed, form part of
the record. According to it, the court said that the letter was attached to the
heads
of argument marked Exhibit A. This exhibit is in fact the written
statement in terms of
sec 115
, to which I have referred, and no document is
annexed to it. Counsel said, or implied, that the relevant letter was attached
to the
Notice of Special Plea. In fact the document attached to this notice is
an unsigned copy of a letter to the Senior Public
6/...
6. Prosecutor, Wynberg in which he is told
inter
alia
that "The Attorney-General has decided not to institute a prosecution
at this stage." The most plausible explanation of what happened
is to be
inferred from what is said in the magistrate's judgment, namely, that there were
two letters and that the wrong, or less
relevant, one was inadvertently included
in the record. It does, however, appear that the magistrate was quoting from the
other letter
when he said in his judgment:
"Die skrywe van die Prokureur-Generaal was aan die Landdros Wynberg gerig en
verwys na die saak F 3145/82 en waarvan die afskrif
as bewysstuk C ingehandig
is. Dit lees 'die Prokureur-Generaal versoek dat u die beskuldigde Rashied Singh
sal meedeel dat hy weier
om 'n vervolging teen hom in te
stel'".
For the purposes of this case I am prepared to assume
that this was the instruction in the letter and that it
was communicated
to the appellant. (It, one notes in
7/...
7.
passing, does not purport to stop a prosecution but
intimates that one will not be instituted.) As regards the statement to the
appellant
that he may go, if the magistrate at the time had before him or knew
of the other letter, which qualified the Attorney-General's
instruction with the
words "at this stage", the magistrate's informal, and somewhat ambiguous,
dis-charge of the appellant is less
likely to have been intended as an acguittal
or verdict of not guilty. Be that as it may, for the purposes of argument I also
assume
in favour of the appellant that such was his intention and the ef fect of
his dismissal of the appellant.
Turning to the special plea, in
Rex v Manasewitz
1933 A.D. 165
at 168
this court (per Wessels C.J.), in explaining the nature of the defence of
8/...
8.
autrefois acquit
, stated:
"There is no doubt whatever that by our law an accused person when once
acquitted of an offence may not be tried again for the same
offence if he was in
jeopardy on the first trial. 'He was so in jeopardy if (1) the Court was
compëtent to try him for the offence;
(2) the trial was upon a good
indictment on which a valid judgment of conviction could be entered, and (3) the
acquittal was on the
merits, i.e., by verdict on the trial or in summary cases
by dismissal on the merits followed by a judgment or order of acquittal.'
(Russell on
Crimes
, 8th ed. at p. 1818.)"
See too
S v
Ndou and Others
1971(1) S.A. 668 (A) at 672, in which
Rex v
Manasewitz
is referred to with approval. In the former case -
S v Ndou
and Others
-the accused were arraigned in the Supreme Court on a charge of
contravening certain statutory provisions. They pleaded not guilty
and whilst
the trial was in progress the Attorney-General stopped the prosecution pursuant
to
sec 8
of the Criminal Procedure
9/...
9. Act No 56 of 1955 ("the 1955 Act"), as a result of which
they were entitlcd to a verdict in terms of the said section. Óne
of not
guilty was pronounced and they were discharged. On appeal it was not disputed
that the verdict of not guilty in such circumstances
was to be regarded as an
acquittal on the merits - see p 671 G - H. (The disputed issue on appeal in that
case was whether there
was a "substantial identity" of the respective offences,
an aspect which does not presently arise since the offence of culpable homicide
featured in the charge in both instances.)
It is clear from these two decisions - and indeed others - that there must
have been a
trial
or a
prosecution
, followed by an acquittal,
before a plea of
autrefois acquit
can be sustained when an accused is
again charged. (In this judgment I shall refer
10/...
10. either to "trial" or "prosecution" sincé they
are for
present purposes synonomous and interchangeable.)
A trial , though not defined in the Act, has a settled and well-recognised
connotation:
"'In a general sense, the term 'trial' denotes the investigation and
determination of a matter in issue between parties before a
competent tribunal,
advancing through progressive stages from its submission to the court or jury to
the pronouncement of judgment.
When a trial may be said actually to have
commenced is often a difficult question but, generally speaking, this stage is
reached
when all preliminary questions have been determined and the jury, or a
judge in a non-jury trial, enter upon the hearing and examination
of the facts
for the purpose of determining the questions in controversy in the litigation.'
Catherwood v. Thompson
,
(1958) O.R. 326
,
per
Schroeder, J., at
p.331."
(cited in the 1986 Supplement of "Words and Phrases
Legally Defined", 2nd Edition (Butterworth), at page 316 s.v. "TRIAL"). This
word
is always to be
11/...
11.
interpreted in the context in which it appears and in
particular circumstances may have a more restricted meaning. Thus in
R v
Tucker
1953(3) S.A. 150 (A), in considering its meaning in sec 372(1) of the
"Criminal Code" (Act 31 of 1917), Hoexter J.A. observed at
159 G - H:
"I am not losing sight of the fact that as a general rule it is correct to say
that a trial involves the decision of some guestion
at issue and that a plea of
guilty makes it unnecessary for a superior court to try any issue of fact. But
in my opinion the word
'trial' in sec. 372, as in sec. 370, is used to denote
the proceedings after arraignment
, whether upon a plea of guilty or not
guilty." (My underlining.)
"Prosecution", in turn, generally
means:
"A criminal action; a proceeding instituted and carried out by due course of
law, before a competent tribunal, for the purpose of
determining the guilt or
innocence of a person charged with crime." (Black's Law Dictionary (5th. Ed.)
1099.)
12/...
12. With these prefatory general comments, I turn to
examine the case as presented by Mr Farlam, on behalf of the appellant in this
court. In essence it was that f rom the time that the appellant pleaded before
the magistrate in terms of sec 119 the prosecution
commenced; that the appellant
was conse-quently from that point entitled to a verdict in terms of sec 106 of
the Act; that the Attorney-General
by his letter stopped the prosecution in
terms of sec 6(b) of the Act; and that the magistrate thereupon found him not
guilty. Thus,
so it was argued, the special plea ought to have been upheld. The
above three sections, which are relied upon and bear directly on
the question,
read as follows:
Sec 119
:
"When an accused appears in a magistrate's court and
the alleged offence may
be tried by a superior court only
or is of such a nature or magnitude
13/...
13.
that it merits punishment in excess of the jurisdiction of a magistrate's
court, the prosecutor may, notwithstanding the provisions
of section 75, on the
instructions of the attorney-general, whether in general or in any particular
case, put the charge, as well
as any other charge which shall, in terms of
section 82, be disposed of in a superior court, to the accused in the
magistrate's court,
and the accused shall, . ..., be required by the magistrate
to plead thereto forthwith." (My underlining.)
Sec 106(4):
"An accused who pleads to a charge, other than a plea that the court has no
jurisdiction to try the offence, or an accused on behalf
of whom a plea of not
guilty is entered by the court, shall, save as is otherwise expressly provided
by this Act or any other law,
be entitled to demand that he be acquitted or be
convicted."
Sec 6(b)
"An attorney-general or any person
conducting a prosecution
at the
instance of the State or any body or person conducting a prosecution under
section 8, may -
(a)
(b) at any time after an accused has pleaded, but
before conviction,
stop the prosecution
in respect
of that charge, in which event the
court trying
14/...
14.
the accused shall acquit the accused in respect of
that charge: " (My
underlining.)
In examining the contention that the plea during
the sec 119 proceedings initiated, or was part of, the trial, one must in the
first
place consider how the procedure envisaged by sec 119 came to be
introduced into the Act. It is a new section not to be found in
the former 1955
Act. Sec 119 is the first of four new sections comprising Chapter 19 of the Act.
They appear under the caption "Plea
in Magistrate's Court on Charge Justiciable
in Superior Court". It (sec 119) was introduced to enable the inquisitorial
elements
of secs 112 and 115 to be enlisted in a magistrate's court with
reference to a charge justiciable by the Supreme Court as a matter
of
convenience and to avoid delays in the interest of all concerned. (Cf.
S v
Makama
1979(4) S.A. 104 (SH) 105 E
15/...
15. - F and
S v Seleke en 'n Ander
1980 (3) S.A.
745
(A) 753 G - 754 A.) It is for this particular and restricted purpose that
such a charge (i.e., one relating to an offence which may
only be tried in a
superior court) is put to an accused in the magistratê's court and he is
reguired to plead to it. The other
three sections in Chapter 19, which follow
upon sec 119, implement this objective and ensure that, if there is to be a
trial, the
accused will in due course be arraigned in court for it to take
place.
Throughout Chapter 19 the language of the sections bears out and makes plain
the distinction between sec 119 "proceedings", as they
are explicitly and
consistently termed, and any subseguent arraignment or committal for "trial".
Thus, for instance, sec 122 provides
that:
16/...
16.
"(1) Where an accused under section 119 pleads not guilty to the offence
charged, the court shall act in terms of section 115 and
when that section has
been complied with, the magistrate shall stop the
proceedings
and adjourn
the case pending the decision of the attorney-general.
(2) Where the
proceedinqs
have been adjourned under subsection (1),
the attorney-general may
(i)
arraign
the accused on any charge at a summary trial before a
superior court or any other court having jurisdiction, including the
magistrate's
court in which the
proceedings
were adjourned under
subsection (1); or
(ii) institute a preparatory examination against the accused,
and the attorney-general shall advise the magistrate's court concerned of his
decision.
(3) The magistrate, who need not be the magistrate before whom the
proceedings
under section 119 or 122(1) were conducted, shall advise the
accused of the decision of the attorney-general, and if the decision
is that the
accused be
arraigned
-
(a) in the magistrate's court concerned, proceed with the trial from the
stage at which the
proceedings
were adjourned under subsection (1) or, if
the accused
17/...
17.
is
arraigned
on a charge which is different from the
charge to which he has pleaded, require the accused to plead to that charge,
and, if the
plea to that charge is one of guilty or the plea in respect of an
offence of which the accused may on such charge be convicted is
one of guilty
and the prosecutor accepts such plea, deal with the matter in accordance with
the provisions of section 112, in which
event the provisions of section 114(1)
shall not apply, or, if the plea is one of not guilty, deal with the matter in
accordance
with the provisions of section 115 and proceed with the trial;
(b) in a regional court or a superior court,
commit
the accused for a
summary
trial
before the court concerned."
(My underlining.)
The substance of these provisions similarly refutes the contention advanced
on behalf of the appellant. Section 119, one need hardly
repeat, refers to an
alleged offence which may be tried by a superior court only. It is incongruous
and
18/...
18. contradictory to argue that the trial commehces with a
plea in terms of sec 119 before a court lacking jurisdiction to hear the
matter.
And, apart from the absence of jurisdiction, the magistrate is in any event
statutorily prohibited from proceeding to trial:
he is obliged in terms of sec
122(1) "to stop the proceedings and adjourn the case." Moreovêr, as the
guoted provisions of
sec 122 clearly indicate , it is only after the proceedings
in terms of sec 119 have been completed that the accused, if such be
the
decision, is committed for summary trial in a court selected by the
attorney-general.
A further consideration serves to illustrate the fallacy of the appellant's
contention. In terms of sec 119, the purpose of which
is a further enquiry
should an accused plead guilty or not guilty, an accused is
19/...
19. obliged to plead. The pleas he is entitled to raise
are set out in sec 106 of the Act, one of which is that the court has no
jurisdiction
to try the offence. If it is so that the court at this stage is
involved in a trial, as the appellant contends, such a plea, when
proferred,
would have to be upheld since in the nature of things it would be well-founded.
On the appellant's argument the magistrate
would then be bound in terms of sec
110(2) to adjourn the case to the court (the supreme court) having jurisdiction.
Thus, if appellant's
premise is sound, the avowed object of sec 119 proceedings
could in this manner be frustrated. This could never have been the intention
of
the Legislature.
An argument along similar lines to that of the appellant in this case was
advanced in a somewhat
20/...
20. different context before Milne J in
S v Hendrix and
Others
1979(3) S.A. 816 (D). The State proposed calling a witness, one Abdul
Morera, who had featured as an accused with others in sec 119
proceedings and
had pleaded not guilty. The trial was a seguel to such proceedings. The defence
objected to his being called, submitting
that he was not a competent witness for
the prosecution. As it was put in the judgment at page 818 A- B:
"The simple ground for this submission was that these proceedings, that is to
say this trial, is a continuation of the s 119 proceedings
and that Morera is
still an accused person before this Court; alternatively, or as part of the same
submission, that Morera, having
pleaded to the charge which was put to him in
terms of the proceedings under s 119 read with s 115, was entitled to a verdict
in
respect of that charge."
In rejecting this argument the
learned judge said at page 819 C - F:
21/...
21.
"In my view s 119, indeed the provisions of chap 19 of the 1977 Act, do not,
where the accused pleads not guilty, envisage a trial
nor that anything more
shall be held than a preliminary enquiry in order to clarify the matters in
respect of which the State and
the accused are at issue. It is necessary for a
'charge' to be put to the accused in order for him to know what the State case
against
him is eventually going to be. It is necessary for him to 'plead' to
that charge to indicate what his answer to that charge is. If
his plea is one of
guilty, then there is provision for the proceedings to continue to finality. If,
however, he pleads not guilty
then it seems to me quite clear that the
proceedings thereafter are not trial proceedings. It is expressly provided in s
122 that
the proceedings shall be stopped and the provisions of ss (2), (3) and
(4) are merely procedural provisions which are formal preliminaries
to the trial
which is to be held thereafter. If in fact the subsequent trial envisaged in s
120 (2)(i) were a continuation of the
s 119 enquiry or proceedings it would have
been guite unnecessary to provide that the record of those proceedings shall
form part
of the record of the court in the trial. Nevertheless ss (4) expressly
provides that that is the position, from which it is a necessary
inference in my
view that the trial is not a continuation of the same proceedings but fresh
proceedings altogether."
Thus, for substantially the same reasons, the
22/...
22.
court in that case ruled that the sec 119 proceedings could
not be regarded as the start of, or part of, the subsequent trial. (See
too
S
v Lubbe en Andere
1989(3) S.A. 245 (T).)
It remains to deal with certain
other submissions of Mr Farlam.
He, as did counsel in the
Hendrix
case, sought to rely on sec 106(4),
which has been quoted above. It, so it was submitted, states in unqualified
terms that once an
accused has pleaded he is entitled to demand that he be
acquitted or convicted. And in the instant case, so the argument ran, since
he
was acquitted he cannot be tried again. This submission is manifestly unsound.
It is clear that an accused person cannot claim
to have been acquitted by a
court which was not competent to try him and therefore that the plea, to which
this subsection refers,
is one tendered
23/...
23.
at the commencement of a trial and not the plea to which sec
119 refers. (See too
S v Hendrix
(supra) at 818C - F.) This conclusion is
confirmed by the opening and concluding sections of Chapter 15 of the Act in
which the provisions
relating to "The Plea" are set out. Section 105 implicitly
refers to the charge being put to an accused at the commencement of the
trial
itself. And sec 108 provides that, if an accused tenders a plea other than one
of guilty, he shall by such plea be deemed to
demand that the issues raised by
the plea be tried. But, as has been pointed out, upon a plea of not guilty in
the sec 119 proceedings
an accused has no such right: on the contrary, the
magistrate is obliged in terms of sec 122(1) to stop the proceedings and adjourn
the case pending the decision of the attorney-general.
24/...
24. Counsel next submitted that, should the
attorney-general decide in terms of sec 122 (2)(i) to arraign the accused before
the magistrate's
court in which the sec 119 proceedings were held, the accused
is not required to plead again. This, so it was submitted, indicates
that the
plea in the course of the sec 119 proceedings was a plea at the trial. Section
122(3)(a) - quoted above - provides that
in such a case the magistrate's court
concerned may proceed with the
trial
from the stage at which the
proceedings
were . adjourned without, it follows, requiring the accused
to plead again. But "proceed with the trial" cannot, for the reasons
given, mean
that it had already commenced. Sec 122 (3)(a), in order to avoid an act of
superfluity, in effect provides that in such
a case the plea in the sec 119
proceedings is taken to be the plea at the trial in the magistrate's court
concerned. As a
25/...
25.
counter to this submission, counsel was asked why, if the
interpretation of a plea in the sec 119 proceedings contended for by him
is
correct, an accused when arraigned in the Supreme Court or in some
other
court pleads again. His answer was that this is an unnecessary practice not
authorised by any provision in the Act. Not so. Section
105, as has been
mentioned, enjoins the prosecutor to put the charge to an accused before his
trial
is commenced, without any proviso in that section exempting the
prosecutor from this duty should the charge have been previously
put, and a plea
recorded, in sec 119 proceedings.
In the course of the debate before us the question was raised whether sec
122(2) authorises the attorney-general to stop the proceedings
after they have
been adjourned by the magistrate in terms of sec
26/...
26.
122(1) or whether the attorney-general is obliged to arraign
the accused for trial or institute a preparatory examination. The factual
position in this case is that the Attorney-General did not stop a prosecution
because, as has been shown, none had commenced. Thus
the pertinent question,
correctly posed in reference to the facts of this case, is whether the
attorney-general can décide
against taking further action in a matter
which has been the subject of sec 119 proceedings and has been adjourned and
referred to
him for consideration in terms of sec 122(1). Sec 122(2) is in my
view no bar to his doing so. It postulates, and caters for, the
situation where
the attorney-general
does
decide to proceed with the matter and it
enunciates the two options open to him: to arraign the accused on a charge or to
institute
a preparatory examination. It goes without saying that,
27/...
27. if the explanation given by an accused in his
statement in terms of sec 115 at the sec 119 proceedings can be verified and
establishes
his innocence, or if for any other reason the attorney-general is
satisfied that a prosecution is not warranted, he is not
obliged
to send
the matter to trial or institute a preparatory examination. If that were the
position, he would be obliged to go through
the unnecessary formality of
-proceeding to trial only to stop the prosecution in terms of sec 6 (b) as soon
as the accused has pleaded.
The relevant point in the instant case is that,
should he decide not to prosecute at the stage when the sec 119 proceedings are
adjourned
and the case referred to him for his decision, and convey his decision
to the accused, he would not be doing so at a time when he
is "conducting a
prosecution" in terms of sec 6. For this reason a right to claim an acquittal in
terms of
28/...
28. paragraph (b) of this section would not accrue. Thus,
the intimation by the Attorney-General in this case to "refuse to prosecute",
if
it is to be taken to mean that he was not proceeding with the matter, did not
and could not preclude him from subsequently changing
his mind and charging the
accused, as he did, in the regional court on the count of culpable homicide.
Such an intimation can have
no more relevance or efficacy than the withdrawal of
a charge
before
plea, in which event an accused can always be charged
again.
The special plea was, in my view, correctly rejected by the trial court. The
appeal is dismissed.
M E KUMLEBEN
JUDGE OF APPEAL JOUBERT JA) SMALBERGER JA) VIVIER JA)
Concur FRIEDMAN AJA)