About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2020
>>
[2020] ZASCA 106
|
|
Moamogoe v S (191/2019) [2020] ZASCA 106; 2021 (1) SACR 121 (SCA) (18 September 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 191/2019
In
the matter between:
MOAMOGOE,
OFENTSE LOFENTSE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Moamogoe
v The State
(191/2019)
[2020] ZASCA 106
(18 September 2020)
Coram:
SALDULKER,
MBHA, VAN DER MERWE and SCHIPPERS JJA and MABINDLA-BOQWANA AJA
Heard:
The
parties agreed that the appeal may be disposed of without the hearing
of oral argument in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
This judgment was handed
down electronically by circulation to the parties’
representatives by email, publication on the Supreme
Court of Appeal
website and release to SAFLII. The date for hand-down is deemed to be
18 day of September 2020.
Summary:
Criminal
law and procedure – appeal against sentence imposed in terms of
a plea and sentence agreement in terms of
s 105A
of the
Criminal
Procedure Act 51 of 1977
– whether plea and sentence agreement
correctly reflected what had been agreed – can in the
circumstances only properly
be challenged in a review application and
not on appeal – appeal dismissed.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Borchers J
sitting as court of first
instance):
The
appeal is dismissed.
JUDGMENT
Saldulker
JA (Mbha, Van Der Merwe and Schippers JJA and Mabindla-Boqwana AJA
concurring):
[1]
The appellant, Mr Ofentse Lofentse Moamogoe, was indicted in the
Gauteng Division of the High Court, Johannesburg (the high
court) on
the following charges: two counts of robbery with aggravating
circumstances (counts 1 and 2), both read with s 51(2)
of the
Criminal Law Amendment Act 105 of 1997 (the Act); one count of murder
(count 3), as read with s 51(1) of the Act; one count
of unlawful
possession of a firearm (count 4); and one count of unlawful
possession of ammunition (count 5).
[2]
On 14 November 2011, the appellant entered into a comprehensive plea
and sentence agreement (plea agreement) with the State
in terms of
s 105A(1) of the Criminal Procedure Act 51 of 1977 (the CPA).
[1]
The plea agreement recorded, inter alia, that the Deputy Director of
Public Prosecutions of the high court (the DPP), and the appellant,
who was represented by an attorney and counsel, had negotiated and
entered into the plea agreement, which involved a plea of guilty
to
be tendered by the appellant in respect of certain offences of which
he may be convicted based on the charges, as well as the
just
sentences for such offences to be imposed by the high court. The plea
agreement was signed by the appellant, his counsel and
the DPP.
[3]
In terms of the plea agreement, the appellant pleaded guilty on
counts 2 and 3. The agreed sentence was recorded as follows:
‘
22.1 Counts 2 and 3 are taken
together for the purpose of sentence. The [appellant] is sentenced to
25 years’ imprisonment
of which 5 years’ imprisonment is
suspended for 5 years on the following conditions:
22.1.1
That the [appellant] is not
found guilty of murder or robbery or any attempt to commit robbery or
murder within the period of suspension;
and
22.1.2
That the [appellant] testify as
a state witness in the criminal matter of his co-perpetrators under
case number….
22.2
It is agreed that 10 years
of the remaining 20 years’ imprisonment will run concurrently
with the 10 years’ imprisonment
imposed by the Regional Court,
Randburg on 12 July 2011 as is provided for in
Section 280(2)
of the
Criminal Procedure Act, 51 of 1977
;
22.3
The effective sentence
agreed to is therefore 10 years’ imprisonment.’
(My emphasis.)
[4]
The matter came before Borchers J. During the proceedings the
appellant was asked to confirm the terms of the plea agreement,
which
he did. The transcript of the court proceedings reads as follows:
‘
Court: Mr Moamogoe you have no
doubt been through the document which you have just signed where
there were changes is that correct?
[Appellant]: Yes your lady.
Court: Do you confirm the terms of
this agreement and the admissions that you have made in it?
[Appellant]: Yes M’Lady.
Court: Do you admit the allegations to
the charge that you have just had read to you and to which you
pleaded guilty?
[Appellant]: Yes M’Lady.’
[5]
Thereafter, Borchers J convicted and sentenced the appellant in
accordance with the terms of the plea agreement as follows:
‘
Counts 2 and 3, are taken
together for the purposes of sentence. You are sentenced to 25 years’
imprisonment, of which five
years’ imprisonment is suspended
for five years on the following conditions:
1.
That you are not found
guilty of murder or robbery or any attempt to commit murder or
robbery committed within the period of suspension,
namely five years;
and
2.
That you testify as a
state witness in the criminal matters in which your co-perpetrators
are to be charged.
I note that it is agreed that ten
years of the effective 20 years’ imprisonment will run
concurrently with the ten years’
imprisonment imposed in
another matter by the Regional Court Randburg on 12 July 2011, as
provided for in
section 280(2)
of the
Criminal Procedure Act, and
I
note further that the effective sentence of imprisonment in this case
today is thus one of ten years’ imprisonment.’
(My
emphasis.)
[6]
Subsequent to his conviction and sentence, the appellant applied for
leave to appeal against sentence. In his affidavit in support
of the
application, the appellant exhibited a clear understanding that he
had been sentenced by the high court to ten years’
imprisonment
in addition to the ten year sentence imposed by the regional court.
He declared that the sentence in accordance with
the plea agreement
was as follows:
‘
Counts 2 and 3 were taken
together for the purpose of sentence. I was sentenced to 25 years[’]
imprisonment of which 5 years
were suspended.
I had been previous[ly] sentenced to
10 years on another matter. 10 years from the 20 years was ordered to
run concurrently with
the previous 10 year sentence.
My effective sentence was therefore 10
years[’] imprisonment. (The Plea Agreement is annexed to the
application).’
He
continued to say that ‘the 20 years I was given was too harsh
and induces a sense of shock.’ He submitted that a
sentence of
ten years’ imprisonment that runs concurrently with the
regional court sentence would be just.
[7]
On 24 August 2017, Du Plessis AJ heard and dismissed the application.
Aggrieved, the appellant successfully petitioned this
Court for
special leave to appeal against the sentence.
[8]
In his affidavit in support of the application for special leave to
appeal to this Court, the appellant changed tack. He alleged,
for the
first time, that the plea agreement did not accurately reflect the
verbal agreement between him and the State. Both the
application and
the written argument before us were limited to this point. The
affidavit stated inter alia, the following:
‘
Plea agreement negotiations
7.1 The [appellant] was legally
represented during the 105A plea negotiations.
7.2 . . .
7.3 The Sentence was explained as
follows to the [appellant] first by Legal Counsel and then in person
by the Prosecution:
7.3.1 He would receive a 25 year
sentence for the two counts he plead guilty to as per the plea
agreement.
7.3.3 That the sentence would be
structured in such a way that 15 years of the 25 years would be
suspended and the 10 years remaining
would run concurrently with a
previous sentence of 10 years. Meaning that the [appellant’s]
total direct imprisonment for
the current matter and the previous
matter would be 10 years imprisonment.
7.3.4 The Prosecution specifically
even told him that based on the agreement he would be [eligible] for
parole in 2016.
What brought about this appeal?
7.1 The [appellant] laboured under the
impression that he had been sentenced as was verbally explained to
him during the plea negotiations.
He did not understand the legal
wording on the 105A plea agreement.
7.2 It was only when he inquired with
the prison authorities about his parole date that he was shocked to
learn that his sentence
was actually 10 years direct imprisonment,
plus 10 years for a previous case. Meaning that he had an effective
sentence of 20 years.
7.3 This meant that what the
[appellant] was specifically verbally told in the plea agreement
negotiations was different from what
was eventually put down on the
105A plea agreement placed before the court.
Proof that the 105A plea agreement
[was] an error and did not represent the oral agreement during the
plea negotiations.
9.1 Firstly the [appellant] was
specifically told in person by the prosecution that the effect of
105A plea agreement would be that
the 10 years from this case and the
10 years from my previous case would run concurrently. Meaning that
my effective total sentence
would be 10 years. The prosecution
further told me that I would be [eligible] for parole in 2016. This
version was not contested
by the Respondent during the leave to
appeal application.
9.2 Secondly, during the appeal
hearing the Honourable Justice Du Plessis, questioned the
Prosecution. (The same prosecutor who
conducted the plea negotiations
and represented the State during the trial was present at the leave
to appeal application).
9.2.1
The prosecution during these
questions indicated that they were also under the impression that the
sentences ran concurrently and
that the [appellant] was to serve a
total of 10 years’ direct imprisonment for both cases.’
[9]
The fundamental question is whether the issue thus raised by the
appellant can be dealt with in this appeal or whether the appellant
should have brought a review application. In my view, for the reasons
that follow, this question must be answered in the negative.
[10]
The terms of the plea agreement are clear and were confirmed by the
appellant before Borchers J.
What
the appellant sought to raise in this Court, namely that the plea
agreement did not correctly record what had been agreed in
respect of
sentence, is a matter extraneous to the record. It is trite that an
appeal is decided on the record of the proceedings
in the lower
court. In the absence of an application to adduce further evidence on
appeal, this Court is bound by the record. The
only possible remedy
for the appellant would have been to launch an application for
review, setting out these allegations on affidavit,
so that the State
could have dealt with them under oath. Even though, prima facie, the
belated allegations of the appellant appear
to be tenuous, this Court
should not deal with them on appeal.
[2]
[11]
It is, therefore, not possible for this Court to deal with the issue
raised by the appellant on appeal, and for these reasons
the appeal
must be dismissed.
[13]
I accordingly make the following order:
The
appeal is dismissed.
___________________
H
K SALDULKER
JUDGE
OF APPEAL
APPEARANCES
For
appellant: W A Karam
Instructed
by: Legal Aid SA, Johannesburg
Legal
Aid SA, Bloemfontein
For
respondent: L Ngodwana
Instructed
by: Director of Public Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein.
[1]
Section 105A
of the CPA
provides as follows:
‘
105A. Plea and
sentence agreements
(1)
(a)
A
prosecutor authorised thereto in writing by the National Director of
Public Prosecutions and an accused who is legally represented
may,
before the accused pleads to the charge brought against him or her,
negotiate and enter into an agreement in respect of
–
(i)
a plea of
guilty by the accused to the offence charged or to an offence of
which he or she may be convicted on the charge; and
(ii)
if the
accused is convicted of the offence to which he or she has agreed to
plead guilty –
(aa)
a just sentence to be
imposed by the court; or
(bb)
the postponement of the
passing of sentence in terms of
s 297(1)
(a)
;
or
(cc)
a just sentence to be
imposed by the court, of which the operation of the whole or any
part thereof is to be suspended in terms
of
s 297(1)
(b)
;
and
. . . .
(b)
The prosecutor may enter
into an agreement contemplated in paragraph
(a)
–
(i)
after
consultation with the person charged with the investigation of the
case;
(ii)
with due
regard to at least the –
(aa)
nature of and
circumstances relating to the offence;
(bb)
personal circumstances
of the accused;
(cc)
previous convictions of
the accused, if any; and
(dd)
interests of the
community. . . .
. . . .
(6)
(a)
After the contents of the agreement have been disclosed, the court
shall question the accused to ascertain whether
–
(i)
he or she
confirms the terms of the agreement and the admissions made by him
or her in the agreement;
(ii)
with
reference to the alleged facts of the case, he or she admits the
allegations in the charge to which he or she has agreed
to plead
guilty; and
(iii)
the
agreement was entered into freely and voluntarily in his or her
sound and sober senses and without having been unduly influenced.’
[2]
There is
authority for the proposition that a plea and sentence agreement
under
s 105A
of the CPA excludes an appeal. In
S
v De Koker
2010 (2) SACR 196
(WCC) it was held that the process under
s 105A
settles the
lis
between the State and the accused once and for all. However, a
contrary view was taken in
S
v Armugga and Others
2005 (2) SACR 259
(N). It is however inappropriate to decide
this issue without the benefit of oral argument and we refrain from
doing so.