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[1993] ZASCA 159
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Attorney-General, Transvaal v Botha (614/91) [1993] ZASCA 159; 1994 (1) SA 306 (AD); [1993] 2 All SA 632 (A); [1994] 1 All SA 464 (A) (30 September 1993)
Case No : 614/91
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the appeal of:
THE ATTORNEY-GENERAL OF THE
TRANSVAAL
APPELLANT
and
MARTHA HELENA BOTHA
RESPONDENT
SMALBERGER, JA :-
Case No : 614/91 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
THE ATTORNEY-GENERAL OF THE
TRANSVAAL
APPELLANT
and
MARTHA HELENA
BOTHA
RESPONDENT
CORAM
: CORBETT, CJ, HOEXTER, SMALBERGER,
KUMLEBEN, et VAN DEN HEEVER, JJA
HEARD
: 9 SEPTEMBER
1993
DELIVERED
: 30 SEPTEMBER 1993
JUDGMENT
SMALBERGER, JA :-
This is an appeal, with the necessary leave, by the Attorney-General of
the Transvaal against a decision of the Full Bench of the
Transvaal Provincial
Division. The appeal turns upon the proper interpretation of sec 113(1) of the
Criminal Procedure
2
Act - 51 of 1977 ("the Act") which provides for
the
correction of a plea of guilty in certain circumstances. Since
its introduction sec 113 has been the subject of widely divergent views
and
differing interpretations in the various Provincial Divisions, as reflected in a
large number of reported decisions. This Court
has not previously been called
upon to pronounce definitively on the meaning and ambit of the section, although
the vexed question
of onus was obliquely touched on in
S v Naidoo
1989(2)
SA 114(A) at 122F-123C.
The respondent, who at the time was not legally represented, pleaded
guilty to six counts of fraud in the Magistrate's Court, Barberton.
She was
questioned in terms of sec 112(1)(b) of the Act. As the magistrate was satisfied
that she admitted the allegations in the
charges in question, he convicted her
on all six counts. The matter was then postponed for sentence. At the resumed
hearing (some
ten months
3
later) the respondent was represented by an attorney. He applied on her
behalf to retract her original pleas of guilty. The respondent
testified in
support of the application. She alleged that she had been unduly influenced by
the investigating officer to plead guilty.
She also claimed that he had
threatened to lock up certain members of her family. The effect of her evidence
was that she had pleaded
guilty because of duress. In her evidence in chief she
did not specifically claim to have a valid defence to any of the charges.
Under
cross-examination, however, she raised a defence to two of them - the other four
were not alluded to. The investigating officer
gave evidence denying her
allegations of duress. The magistrate, relying upon the decision in
S v
Mazwi
1982(2) SA 344(T), held that the onus rested upon the respondent to
prove her allegations on a balance of probabilities, and that
she had failed to
do so. The application was
4
accordingly dismissed, and the respondent was sentenced to a fine of R100
or two months imprisonment on each count.
The respondent appealed to the Transvaal Provincial Division. A Full
Bench of three judges was constituted to hear the appeal. Her
appeal succeeded.
The convictions and sentences were set aside, as well as the order dismissing
her application to amend her pleas.
It was ordered that pleas of not guilty be
substituted for the original pleas of guilty on all six counts, and the matter
was remitted
to the magistrate for further hearing. The judgment of the court a
quo
is reported - see
S v Botha
1990(1) SA 668(T).
Amongst the reported decisions which bear on the interpretation of sec
113 are
S v Mbhele 1980(1)
SA 295(N);
S v Zwela
1981(1) SA 335(0);
S v Pillay
1981(4) SA 151(N);
S v Mazwi
(
supra
);
S v
Hazelhurst
1984(3) SA 897(T);
S v Dingile en 'n Ander
1986(3)
SA
5
253(NC);
S v De Bruin
1987(4) SA 933(C);
S v Malili en 'n
Ander
1988(4) SA 620(T);
S v Booysen
1988(4) SA 801(E);
S v
Fourie
1991(1) SACR 21(T) and
S v Zakay
1991(1) SACR 167(E). No
useful purpose would be served by analysing each of them. They give full
expression to the maxim
quot homines tot sententiae
. The mere passing
reference to these judgments is not meant to detract from the considerable time,
thought and effort that went into
their preparation, nor do I seek to minimize
the valuable assistance I have gained from consulting them. The proper meaning
of sec
113, however, ultimately depends upon its purpose, the language of the
section, seen in its proper context, and the calling in aid
of such canons of
interpretation as may be relevant.
The procedure to be followed upon a plea of guilty at a summary trial is
regulated by secs 112 and 113 (1) of the Act. The two sections
are
complementary
6
and -must be read in conjunction. Sec 112(1)(b) deals with the
interrogation of an accused who pleads guilty in order to test the
validity of
the plea. Sec 113(1) provides for various grounds upon which a plea of guilty
should be corrected to one of not guilty.
The predecessor to the Act, the
Criminal Procedure Act 56 of 1955, did not contain similar provisions. In terms
of sec 258(1)(b)
of Act 56 of 1955 a lower court in serious cases meriting
imprisonment could only convict upon a plea of guilty if there was evidence
aliunde
i.e. evidence, other than the unconfirmed evidence of the
accused, that the offence in question had actually been committed. As a
safety
mechanism, which it was intended to be, evidence
aliunde
ensured that an
accused did not plead guilty to an offence which had not been committed. It
provided no other safeguards. Nor did
it necessarily establish the identity of
the offender. It therefore failed to protect adequately an innocent
7
accused who mistakenly considered himself guilty, nor
did it
serve to eliminate or negate the effect of duress
calculated to
induce an accused to plead guilty. (I
include under duress, for the purposes of this judgment,
undue influence, fear, fraud and the like.) Sec
112(1)(b), which imports inquisitorial elements into the
criminal procedure, provides additional safeguards. It
was
specifically designed to protect an accused from the
consequences of an unjustified plea of guilty and in
conformity with that object the courts have generally
applied the section with care and circumspection (S v
Naidoo
(
supra
) at 121F).
Act 56 of 1955 contained no provisions dealing
with the correction or retraction of a plea of guilty.
The matter fell to be dealt with under the common law.
The common law approach was correctly enunciated as
follows 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
8
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."
Prior to the decision in
S v
M
1986(4) SA 958(ZSC) it appears to have been generally accepted that this
approach (to which I shall refer as "the Britz principle")
applied when the
retraction of a plea of guilty was sought at any time before sentence i.e. even
beyond the stage of conviction.
The decision in
S v M
has raised doubts
as to whether this is correct. I shall revert to this later.
9
The relevant provisions of secs 112 and 113 of the Act provide as
follows:-
"112(1) Where an accused at a summary trial in any court
pleads guilty to the offence charged, or to an offence of which he may be
convicted on the charge and the prosecutor accepts that plea-fa) the presiding
judge may, if he is of the opinion that the offence
does not merit the sentence
of death, or the presiding judge, regional magistrate or magistrate may, if he
is of the opinion that
the offence does not merit punishment of imprisonment or
any other form of detention without the option of a fine or of a whipping
or of
a fine exceeding the amount determined by the Minister from time to time by
notice in the
Gazette
, convict the accused in respect of the offence to
which he has pleaded guilty on his plea of guilty only and -
(i) impose any competent sentence, other than the sentence of death or
imprisonment or any other form of detention without the option
of a fine or a
whipping or a fine exceeding the amount determined by the Minister from time to
time by notice in the
Gazette
; or
10
(ii) deal with the accused otherwise in accordance with
law;
(b) the presiding judge shall, if he is of the opinion that the offence
merits the sentence of death, or the presiding judge, regional
magistrate or
magistrate shall, if he is of the opinion that the offence merits punishment of
imprisonment or any other form of detention
without the option of a fine or of a
whipping or of a fine exceeding the amount determined by the Minister from time
to time by notice
in the
Gazette
, or if requested thereto by the
prosecutor, question the accused with reference to the alleged facts of the case
in order to ascertain
whether he admits the allegations in the charge to which
he has pleaded guilty, and may, if satisfied that the accused is guilty
of the
offence to which he has pleaded guilty, convict the accused on his plea of
guilty of that offence and impose any competent
sentence:. Provided that the
sentence of death shall not be imposed unless the guilt of the accused has been
proved as if he had
pleaded not
guilty.
(2) ...
(3)
11
113(1) If the court at any stage of the proceedings under section 112 and
before sentence is passed is in doubt whether the accused
is in law guilty of
the offence to which he has pleaded guilty or is satisfied 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, 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.
(2) ......"
It
appears from the reported decisions to which I have referred that the cardinal
issues which have arisen in the interpretation of
sec 113(1) are (1) whether it
supersedes the provisions of the common law with regard to the correction
(including the retraction)
of a plea of guilty; (2) whether it places an onus on
an accused in relation to the correction of such a plea; (3) if so, what the
nature of such onus is; and (4)
12
whether the nature or incidence of the onus varies depending upon whether
the question of correction arises before or after conviction.
I shall deal with
these issues in due course, but first it is necessary to consider more closely
the precise field of operation of
sec 113(1).
As is apparent from its wording, sec 113(1) caters for four distinct
situations in which a court is required ("shall") to correct
a plea of guilty
under sec 112 and substitute one of not guilty. They are where the court (1) is
in doubt whether the accused is
in law guilty of the offence to which he has
pleaded guilty ("situation 1"); (2) is satisfied that the accused does not admit
an
allegation in the charge ("situation 2"); (3) is satisfied that the accused
has incorrectly admitted any such allegation in the charge
("situation 3") or
(4) is satisfied that the accused has a valid defence to the charge ("situation
4"). Any of these
13
situations can arise "at any stage of the proceedings under section 112
and before sentence is passed". On a literal interpretation
of secs 112(1) and
113(1) (and there is nothing to detract from such an interpretation) "the
proceedings under section 112" commence
at the point where "an accused at a
summary trial in any court pleads guilty to the offence charged". It is this
plea of guilty which
brings the provisions of sec 112(1) into operation and
leads the presiding judicial officer to act under either sec 112(1)(a) or
sec
112(1)(b), depending upon the opinion which he forms.
I do not agree with the view that has been expressed in certain judgments
that "the proceedings under section 112" only commence when
the presiding
judicial officer decides that the matter is one that falls under sec 112(1)(b)
and embarks upon questioning of the
accused. There is no legal or
logical
14
justification for limiting "the proceedings under section 112" to that
stage onwards, thereby effectively excluding sec 112(1)(a)
from the operation of
sec 113(1). The natural meaning of the words embrace all proceedings under sec
112 i.e. under both sec 112(1)(a)
and (b). There is clearly scope for the
operation of sec 113(1) in respect of both those sub-sections. This can be
illustrated by
the following example. An accused pleads guilty as charged to
assaulting a complainant by slapping him once in the face. The presiding
judicial officer is of the opinion that the offence only merits a fine (within
the permissible limits) and convicts the accused in
terms of sec 112(1)(a).
During the accused's address in mitigation of sentence it appears that he
slapped the complainant in self
defence (private defence). If the judicial
officer concerned is satisfied that the accused has a valid defence to the
charge, he
is obliged by sec 113(1)
15
to enter a plea of not guilty. There is no reason to
believe that the Legislature intended to exclude sec 112(1)(a) from the
operation
of sec 113(1) simply because - it deals with lesser offences. An
accused person's right to protection against a wrong conviction
is no less
important if the offence is minor than if it is major. In either case there is
an equal possibility of an unjustified
plea of guilty, and in the case of a
minor offence the primary protection afforded by preconviction interrogation is
lacking. What
is more, such a limited interpretation does not conform to the
well-known rule of interpretation that the Legislature intends all
persons
affected by its enactments to be treated equally. In the circumstances I must
respectfully differ from the contrary view
expressed by the majority of the
court a
quo
at 672E-F (read with 674A) of the reported
judgment.
It must also be noted that the provisions
of
16
sec 113(1) apply at any time "before sentence is passed". The Legislature
has not sought to distinguish between the position before
and after conviction.
It - has advocated a uniform approach to the proceedings from plea to sentence.
As will appear later, this
is relevant to the question of onus.
I have hitherto dealt with the position
where
an accused pleads guilty at a summary trial to
the
offence charged. Sec 112(1) also caters for the
case
where an accused pleads guilty to an offence of which
he
may be convicted on the charge i.e. one which is
a
competent verdict. In that case the provisions of
sec
112(1)(a) or (b) only come into operation if
"the
prosecutor accepts that plea". It is the
acceptance
of the plea, not the plea itself, which brings
either
sec 112(1)(a) or (b) into operation. Without
such
acceptance neither sub-section has any application -
the
trial will simply have to proceed on the offence
as
17
charged. That being so, it is arguable that "the proceedings under
section 112" only commence, for the purposes of sec 113(1), when
the prosecutor
accepts the plea to the lesser offence. If that is so then there is nationally a
period between the plea to the lesser
offence and the acceptance thereof by the
prosecutor (e.g. where the prosecutor needs to obtain the consent of the
Attorney-General
to accept the plea) when the accused could seek to withdraw
such plea. That situation, if it were to arise, might not be capable
of being
dealt with under sec 113(1) but only under the common law. This situation does
not, however, arise in the present matter
and it is therefore not necessary to
express a definite view on it.
I come now to the question whether sec 113(1), in the four situations in
which a court is obliged to correct a plea of guilty, places
any onus on an
accused. I commence with certain general observations. Sec 112
18
introduced an inquisitorial plea procedure previously unknown. As I have
mentioned, the intention of the Legislature, in enacting
secs 112 and 113, was
to afford an accused greater protection than before against a wrong conviction.
Sec 113 must accordingly be
interpreted in a manner consonant with such an
intention. The proper approach to plea correction is
in favorem
innocentiae
which militates against saddling the accused with an onus. The
Legislature must also be taken to have been aware of the common law
principles
relating to the withdrawal of a plea (as enunciated in cases such as
S v
Britz
(
supra
)) which placed no onus on an accused. (I am assuming for
the present that those principles apply at any time up to sentence.) If
the
Legislature had intended in sec 113(1) to place an onus on an accused where none
had existed before under the common law, one
would have expected it to express
such intention in clear and unambiguous language. This it
19
has not done.
While situations (2), (3) and (4) require that
the court be satisfied with regard to the matters referred to, sec 113(1) is
silent
on who (if anyone) is to satisfy the court and what standard of
satisfaction is required. It does not specifically place any onus
on the
accused. By contrast, when the Legislature is minded to place an onus on an
accused it does so unequivocally. Thus section
114(2) of the Act, which deals
with the committal of an accused who has pleaded guilty in a magistrate's court
for sentence in a
regional court, provides,
inter alia
, that "the plea of
guilty and any admission by the accused shall stand unless the accused satisfies
the court that such plea or such
admission was incorrectly recorded". Sec 122C
(4) of the Act, which deals with a plea of guilty in a magistrate's court on a
charge
to be adjudicated in a regional court, provides
inter
alia
:
20
"If the accused satisfies the court that the
plea of guilty or
an admission which is
material to his guilt was
incorrectly
recorded, or if the court is not
satisfied
that the accused is guilty of the offence
to
which he has pleaded guilty
"
Here we have a juxtaposition of two
different situations
- where the accused is required to satisfy the
court, on
the one hand, and where the court is required to
be
satisfied (as in sec 113(1)) on the other. In the
latter instance there is no suggestion that the accused
must
provide, by way of discharging an onus, such
satisfaction. (See too secs 121(5) (a), (aA) and (b),
122C 3(a) and (b) and 140(2)(a) of the Act.) The
aforegoing considerations lead inexorably to the
conclusion that sec 113(1) does not burden an accused
with an onus, and that the phrase "is satisfied" cannot
be taken to mean " if proved by the accused to the
satisfaction of the court".
In my view all four situations envisaged
in
21
sec 113(1) are premised on reasonable doubt. Situation 1 is a clear case.
The words "in doubt" presuppose a reasonable doubt in relation
e g to whether an
accused falls within the- terms of a particular statutory prohibition or his
conduct constitutes the offence charged.
Such doubt can arise either in response
to questioning by the court in terms of sec 112(1)(b), or from information
volunteered by
the accused or because the court
mero motu
entertains a
doubt on the law. (The instances listed are not intended to be exhaustive.)
Where the court, in those circumstances,
is in doubt as to whether the accused
is in law guilty of the offence to which he has pleaded guilty, it is obliged to
record a plea
of not guilty.
Situations 2 and 3 require the court to be satisfied in each instance as
to the existence of a certain state of affairs, being essentially
matters of
fact. Situation 4 requires satisfaction in relation to
22
a matter of law, or part law and part fact. The change in wording between
situation 1 ("in doubt") and the other three situations
("is satisfied" -
Afrikaans "oortuig is") may at first blush seem significant. Had situations 2
and 3 been cast in negative terms
i e had sec 113(1) in this respect read "is
not satisfied that the accused admits an allegation in the charge or that the
accused
has correctly admitted any such allegation", they would perhaps have
fallen in line more conveniently with the test of reasonable
doubt in situation
1. The effect of the wording, however, in either instance is largely the
same.
There are compelling reasons for holding that the phrase "is satisfied"
does not postulate a test other than that of reasonable doubt.
Firstly, there is
no apparent reason why in principle the test in situation 1 should differ from
those in the other three situations.
Secondly, there is a measure of
23
overlapping between situations 1 and 4. Defences such as private defence,
compulsion and necessity could, depending upon the circumstances,
be brought
within the ambit of both situations. One would expect the test to be the same in
both instances. Thirdly, in criminal
matters, as a general principle, the
operative test is one of reasonable doubt. As there is no onus on the accused, a
test of balance
of probabilities would be inappropriate. Fourthly, the greater
protection that secs 112 and 113 were designed to provide to an innocent
accused
would be stultified by too stringent a test. Fifthly, secs 112 and 113 relate to
procedural steps that follow on a plea of
guilty. They were not designed to be
used as part of the normal State case to prove an accused's guilt. They should
therefore not
be interpreted in a manner which would place an undue obstacle in
the way of an accused who seeks to retract a plea of guilty or
admissions made
in relation thereto.
24
Sixthly, the words "is satisfied" or their Afrikaans equivalent "oortuig
is", given their ordinary, grammatical meaning, do not necessarily
exclude a
test of reasonable doubt. Within the framework of criminal law or procedure, to
be satisfied that a certain state of affairs
exists excludes any reasonable
doubt in that regard. Finally, sec 113 should be interpreted in a manner
consonant with the common
law principle which requires no more than that an
accused place sufficient material before a court to raise a reasonable doubt
concerning
the correctness of a plea of guilty. In this regard it is unlikely
that the Legislature would have placed a higher onus on the accused
under sec
113(1) than under the common law.
The conclusion to which I have come in respect of situations 2, 3 and 4
is therefore the following. If a court, in the course of questioning
an accused
in terms of sec 112(1)(b), or in consequence of the
25
accused's response to questions put by it after conviction but before
sentence, or because of submissions made or information volunteered
by the
accused, or from other material placed before it, has a reasonable doubt as to
whether the accused admits an allegation in
the charge, or has correctly
admitted any such allegation, or is reasonably left in doubt as to whether the
accused has a valid defence
to the charge, it is obliged to enter a plea of not
guilty.
The correction of a plea in terms of sec 113(1) will in many
instances involve the retraction of an admission. Such correction should
normally follow when the accused indicates that he no longer admits the charge
or an allegation in the charge. At that stage of the
proceedings the question
whether the retraction of the admission may later be proved to be false is
irrelevant. The court is still
involved in a pre-trial procedure. All that is
needed is a reasonable
26
explanation from the accused why he seeks to withdraw the admission or
change his plea.
In passing it should be noted that the Legislature
probably intended sec 112 to provide for the expeditious and inexpensive
disposal
of a matter where an accused pleads guilty while at the same time
creating a safety mechanism designed to prevent as far as possible
an innocent
accused from being wrongly convicted. Where correction of a plea of guilty is
sought in terms of sec 113(1) a "trial
within a trial" is frequently held. While
opposed applications for retraction of a plea under the common law have usually
been dealt
with in this way, it would not seem to be appropriate to do so under
sec 113(1). Such a procedure is generally cumbersome and time-consuming,
does
not always serve a useful purpose and may ultimately prejudice an accused (cf
S v Booysen
(
supra
) ) . In most instances it may well be
preferable
27
to enter a plea of not guilty with the minimum of delay and proceed with
the trial. It is, however, not necessary to express a firm
view on the
matter.
I now come to the critical question, particularly as far as
the present appeal is concerned, whether sec 113(1) supersedes the common
law.
In seeking to set aside her pleas of guilty in the trial court on the ground of
duress, the respondent relied upon the ordinary
relief available under the
common law. She did not, and indeed could not, invoke the provisions of sec
113(1). Grounds for setting
aside a plea of guilty such as duress, undue
influence and the like arise from events which occur anterior to the proceedings
under
sec 112 and do not have their origin in that section. They cannot on their
own (i.e. without being coupled to a valid defence, which
is the case in respect
of four of the six charges against the respondent) be brought within any of the
situations
28
catered for in sec 113(1). The reason is that standing
alone
they do not raise a reasonable doubt that the
accused is in law
guilty of the offence to which he has
pleaded guilty or that he has
a valid defence to the
charge (situations 1 and 4) . Nor do they relate to
any
allegations in the charge (situations 2 and 3) . Sec
113(1) therefore provides no protection or safety
mechanism
for an accused who pleads guilty because of
duress, undue influence or the like. Yet these are
valid grounds under the common law which are frequently
raised for setting aside a plea of guilty. In my view
it is unthinkable that the Legislature could have
intended to exclude such common law rights without any
corresponding protection being afforded by sec 113(1).
I agree with what was said by the court a
quo
in the reported judgment at 673H-I, namely:
"[D]ie reg van 'n beskuldigde om onskuldig te pleit al kan hy nie aanvoer
dat hy onskuldig is nie en om bewys van sy skuld te verg
word deur ons reg
erken. Daardie reg kan nie ' n
29
beskuldigde ontse word wanneer hy aanvanklik weens 'n onbehoorlike daad soos
dwang skuldig pleit nie."
Justice connotes
that a wrongdoer should be fairly tried
in accordance with the principles of the law (
R v
Rose
1937 AD 467
at 477). A wrongdoer who has
pleaded
guilty under duress cannot be fairly tried if his
plea
is allowed to stand. In this respect the remarks of
RUMPFF,
CJ, in
S v Mushimba en Andere
1977(2) SA 829(A)
at 844H are apposite, in that justice, in the sense in
which
it applies here:
"is nie 'n begrip wat veronderstel dat die beskuldigde noodwendig onskuldig
is nie. Geregtigheid wat geskied het in hierdie sin is
die resultaat wat 'n
bepaalde eienskap van verrigtinge aandui. Die eienskap toon aan dat aan
vereistes wat grondbeginsels van reg
en regverdigheid aan die verrigtinge stel,
voldoen is."
Furthermore, the
provisions of a statute are
not intended to alter or exclude the common law unless
the words thereof do so expressly or by necessary
30
implication (
Casserley v Stubbs
1916 TPD 310
at 312) . The words
of sec 113(1) in my view do neither. There is accordingly no basis for holding
that sec 113(1) excludes the common
law in relation to such matters as do not
fall within its purview. It follows that the ground raised by the respondent for
setting
aside her pleas was not excluded by sec 113(1).
I revert now
to the question to which I alluded earlier in this judgment
viz
whether
the Britz principle applies where a retraction of a plea of guilty is sought
after conviction but before sentence. In
S v
M (
supra
) it was held
that the test propounded in
Britz's
case is only applicable where a
change of plea is sought before a verdict of guilty is entered. Once a finding
of guilt is made,
additional considerations come into play. One such
consideration relied upon is that the presumption of innocence no longer
operates
in favour of the accused. The court concluded that
31
where an accused seeks to withdraw his unequivocal plea of guilty after
conviction he is required to show on a balance of probabilities
that the plea
was not voluntarily made. This view was followed in
S v De Bruin
(
supra
) at 935I-936A.
Britz's
case involved an application to retract a plea of guilty
before conviction. In propounding the test at 398H-399A quoted above CLAASSEN,
J, (with whom JANSEN, J, concurred) did not specifically seek to limit its
application to a retraction sought before as opposed to
after conviction. It was
suggested in
S v M
, with reference to what appears at 397A-B of the
judgment in
Britz's
case, that the learned judge was apparently of the
opinion that no such application could be entertained after conviction.
Therefore
the test he propounded could only have been intended to apply to the
position before conviction.
I am not satisfied that the
somewhat
32
inelegantly worded passage at 397A-B necessarily
reflected a view that no application for a change of
plea can
be entertained after conviction (but before
sentence). (As convincingly pointed out in
S v Mazwi
(
supra
) at 346F-348H the common law clearly permits
the
withdrawal of a plea of guilty before sentence.) The
passage in question reads:
"It sometimes happens that an accused person who has pleaded guilty on
arraignment later applies to have his plea changed to one of
not guilty. Such an
application is sometimes made before the leading of evidence, during the State's
case or during the defence case
or at the end of all the evidence, but before
judgment. In
R v Plummer
1902(2)" K.B. 339, it was held that a plea
cannot be changed after judgment. There is also a case on record where such an
application
has been made after judgment. See
R v Blakemore
, (1948) 33
Cr. App. R 49, but this case was overruled in
R v McNally
, 1954 Cr. App.
R 90."
R v Plummer
laid down that an accused is
entitled to withdraw his plea of guilty at any stage
before sentence.
R v Blakemore
was a case where a
33
withdrawal of a plea of guilty was allowed after sentence, a view not
followed in
R v McNally
. CLAASSEN, J, could hardly have been under a
mistaken impression as to what was held in those cases. In my view the
references in
the passage quoted to "judgment" are only explicable on the
assumption either that the court had in mind
the final stage of judgment
i.e. sentence, or that it
per incuriam
used the word "judgment" instead
of "sentence". This appears to be the only reasonable explanation for what
appears in the passage
quoted. I am therefore unable to accept that
Britz's
case was premised on the understanding that no correction of a
plea of guilty could be sought after conviction, and see no reason
for limiting
the application of the Britz principle on that ground. The principle has been
applied in cases where applications to
retract a plea of guilty after conviction
have been made (see
S v Zwela
(
supra
) and
S v Pillay
(
supra
)).
34
And in both
S v Mazwi
(
supra
) at 348H and
S v Hazelhurst
(
supra
) at 910B-F it was accepted that the Britz principle
necessarily applies in respect of the common law both before and after a verdict
of guilty has been entered (but before sentence).
I see no logical reason why this should not be so. In a case of duress,
where the common law principles apply, the same duress which
induces the plea of
guilty is also likely thereafter to operate on the mind of the accused and to
govern any subsequent answers given
or admissions made in response to
questioning under sec 112(1)(b) by the presiding judicial officer. Its insidious
influence extends,
or is likely to extend, beyond the plea of guilty up to and
including the time of conviction. The danger of a wrong conviction is
therefore
as great after as before a verdict of guilty has been entered. Duress vitiates
both the plea and the conviction. In such
circumstances why should an
35
accused be burdened with a heavier onus after conviction than immediately
before? It is no answer to say that the presumption of innocence
no longer
operates in his favour after conviction.
In my view it was therefore
open to the respondent to seek to withdraw her pleas of guilty after her
conviction under the common law
on the grounds of duress. I do not propose to
deal with the evidence. Suffice it to say that I agree with the court
a
quo
that despite the somewhat unconvincing nature of her evidence the
respondent gave a reasonable explanation for her pleas which has
not been shown
beyond reasonable doubt to be false. Her application to retract her pleas of not
guilty should therefore have been
granted, as found by the court a
quo
.
In the result the appeal must fail.
In terms of sec 311(2) of the Act this Court has a discretion to award
costs against the appellant,
36
such costs being those "to which the respondent may have been put in
opposing the appeal", duly taxed. In my view there is no reason
in this matter
to depart from the general principle that costs should follow the result. The
respondent is accordingly entitled to
an order for costs.
The appeal
is dismissed. The appellant is ordered, in terms of sec 311(2) of Act 51 of
1977, to pay the respondent's costs of appeal.
J W SMALBERGER JUDGE OF APPEAL
CORBETT, CJ)
HOEXTER, JA)
KUMLEBEN, JA) concur
VAN DEN HEEVER, JA)