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[1995] ZASCA 67
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S v Hendricks (455/94) [1995] ZASCA 67; [1995] 3 All SA 300 (A) (30 May 1995)
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CASE NO
455/94
IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the
matter between
S
J HENDRICKS
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
:
HEFER, STEYN et MARAIS JJA
HEARD:
11 MAY 1995
DELIVERED
:
30 MAY 1995
JUDGMENT
MARAIS JA/
2
MARAIS JA:
Appellant
was arrested on Friday 19 February 1993. That
very
day he made a statement to a magistrate. He spent the week-end
in
custody and appeared in the Regional Court on Monday 22 February
1993. At that stage three charges and an alternative
charge
had been brought against him. The first (Count 1) was a
charge
of housebreaking with intent to steal and theft allegedly
committed
on 11 February 1993 at the home of Mr Stephen H.
in Port
Elizabeth. The second (Count 2) was a charge of
housebreaking
with intent to rob and robbery allegedly committed on
19
February 1993 at the same address, it being alleged that the person
who was robbed was Mrs
C.H.. The third (Count 3) was
a charge of attempted rape of
Mrs C.H. allegedly
committed at
the same time as the aforesaid robbery was allegedly
3
committed.
The alternative charge was one of indecent assault based
upon
the same incident.
Appellant
was asked whether he wished to be legally
represented
and the possible availability of legal aid was explained to
him.
He elected to defend himself. The charges were then put to
him
by the prosecutor. He pleaded guilty to the three charges, adding
that he had not taken all
the articles listed in the first charge. The
regional
magistrate proceeded to question him in terms of sec 112(2) (l)(b) of
Act No 51 of 1977 ( the Act) in order to ascertain
whether
he
admitted the allegations in the charges, and to satisfy himself that
appellant was guilty of
the offences to which he had pleaded guilty. Appellant proceeded to
describe in some detail what he had
done. The
regional
magistrate was satisfied that appellant did admit the
allegations
in the first charge (subject to the qualification that not all
4
the
articles listed in the charge sheet were admitted to have been
stolen), the prosecutor
indicated that he accepted the qualification, and
the
plea of guilty remained standing. The regional magistrate was not
satisfied that
appellant's pleas of guilty to the second and third charges
were
borne out by the admissions made by him, and he entered pleas
of
not guilty to those charges. The alternative charge does not appear
to have been put to
appellant. As a fact, his explanation of what he
had
done to complainant amounted to an admission of the particular
allegation made against
him in that charge. Indeed, his explanation showed that he had also
committed other indecent acts which
had not
been
particularised in the alternative charge.
Appellant
was not asked thereafter whether or not he was prepared to allow
anything said by him during the process to stand as
an
admission made in terms of sec 220 of the Act, but the effect of the
5
proviso
to sec 113(1) of the Act was that factual allegations adverse to
himself made during the enquiry for which sec 112 provides,
"stand
as proof in any court"
of those allegations, provided of course that
they
are not allegations which the court is satisfied are incorrectly
admitted allegations. See
S v Ncube
1981(3) SA 511(T) at 513 E-G.
The
allegations adverse to appellant which he admitted, could not have
been regarded as incorrectly made admissions, and they therefore
stood
"as proof" against him in the trial.
The
prosecutor at this juncture introduced another charge,
namely,
one of rape (Count 4). Whereas he had previously been
accused
of attempting to rape, alternatively, indecently assaulting Mrs C.H.
at her home on 19 February 1993, he was now
accused
of raping her on that occasion. The record does not show that
appellant objected to the charge of rape being brought against
him at
6
that
stage. Indeed, he pleaded guilty to the charge. What he had said
earlier in connection with the other charges was plainly inconsistent
with his plea of guilty
to the charge of rape, because he had denied
specifically
then that he had had intercourse with complainant or that
he
intended to do so. Not surprisingly, the regional magistrate
questioned him
pertinently on this aspect of the matter after he had pleaded guilty
to the charge of rape and, having elicited a
specific
denial
that appellant had sexual intercourse with complainant on that
occasion, the regional
magistrate, in terms of sec 113 of the Act,
altered
appellant's plea to one of not guilty to the charge of rape.
The
hearing of viva voce evidence thereupon commenced.
By the end
of that day (Monday 22 February), complainant and a policewoman had
testified. The policewoman had responded to a
radio
call and encountered complainant in an allegedly hysterical and
7
tearful
state. Complainant is alleged to have complained to her that
she
had been raped. Both were cross-examined by appellant. The
burden
of appellant's cross-examination of complainant was devoted
to
the issue of penetration (actual or attempted) which was the only
central issue in dispute
by that stage. The day concluded with
appellant
raising the matter of a possible grant of bail and indicating
that
he wished to apply for legal aid because of the introduction of the
charge of rape. He said
"I feel misled not by anyone else but myself.
I
feel I should have someone who is more qualified". The regional
magistrate declined to
grant bail at that stage and indicated that he
would
be prepared to reconsider the question on 26 February 1993.
He
thereupon remanded the case to that date.
On
26 February the regional magistrate was informed that
the
application for legal aid had not been successful. He telephoned
8
an
official of the legal aid board and recommended the grant of legal
aid to appellant. His
intervention bore fruit and an attorney appeared
later
that day to represent appellant. No evidence was heard on that
day
and the case was remanded to 3 March for the hearing of an
application for bail. The trial
itself resumed on 26 April 1993. On
that
day, the district surgeon who had examined complainant, testified.
He
was cross-examined by appellant's attorney with specific reference
to
the issue of penetration. The prosecutor closed the State's case and
appellant testified. He
denied penetration or any attempt to have
sexual intercourse.
The defence case was closed without any
application
having been made by appellant's attorney for the recall for
further
cross-examination of complainant and the policewoman
referred
to earlier. Argument ensued and judgment was reserved.
On 29
April 1993 the regional magistrate delivered his
9
judgment.
He convicted appellant upon Counts 1, 2 and 4, and,
because
the allegations in Count 3, and the alternative to it, related to
what be considered to be
preparatory acts intimately associated with
the
act of rape (Count 4) of which appellant had been convicted, he
acquitted him on Count 3
(and, impliedly, the alternative to Count 3).
After
hearing evidence both in mitigation and in aggravation of
sentence,
and considering the submissions made to him, the regional
magistrate
sentenced appellant to 2 years imprisonment on Count 1, 4
years
imprisonment on Count 2, and 10 years imprisonment on Count
4.
He ordered the sentence imposed in respect of Count 1, and 2
years
of the sentence imposed in respect of Count 2, to run
concurrently
with the sentence imposed in respect of Count 4.
Appellant
was thus sentenced effectively to 12 years imprisonment.
On 3
May 1993 appellant addressed from St Alban's
10
prison
in Port Elizabeth a letter to the Regional Court complaining of
his
conviction and sentence upon the charge of rape (Count 4). He
attacked the conviction
upon its merits. He raised no complaint about any procedural aspect
of the trial and made no suggestion
that he had
suffered
any prejudice by reason of the promptitude with which he
was
brought to trial, or the raising of the charge of rape after he had
pleaded to the other
charges, and made the statements which he did
during
questioning in terms of sec 112(l)(b). The letter was regarded
as
an application for a judge's certificate granting leave to appeal to
appellant in terms of
Rule 67(1)
of the
Magistrates' Courts Act No 32
of
1944
and it was forwarded to the Eastern Cape Division. Leave
was
granted to him to appeal against only the conviction of rape.
Appellant
appears to have been able to engage the
services
of attorneys thereafter because there appears in the record a
11
notice
of appeal dated 8 December 1993. Although stated to be only
against
"the conviction of the appellant", one of the grounds of
appeal
was that an
excessively harsh sentence had been imposed and that
insufficient
weight had been given to the personal circumstances of the
accused.
No leave to appeal against the sentence had been granted by
the
learned judge who granted a certificate in terms of
Rule 67(1)
, and
in so far as the notice
of appeal purported to initiate an appeal against
the
sentence, it was grossly out of time. No application for
condonation
of the failure to note timeously an appeal against the
sentence
was made. There was therefore no procedurally valid appeal
against
the sentence before the Eastern Cape Division. It is of some
significance that, once
again, no point was made in the notice of
appeal
of the addition of Count 4 at the particular juncture at which
it
was added, and no suggestion was made that appellant had suffered
12
any
prejudice because of the promptitude with which he was tried.
When
the appeal was heard by the Eastern Cape Division,
counsel
appears to have represented appellant at the request of the
court,
and not upon the instruction of the attorneys who filed the
notice
of appeal to which reference has been made. He raised for the
first
time the contention that confronting appellant with the charge of
rape (Count 4) after he
had pleaded to the other charges and had been questioned thereanent
in terms of
sec 112(l)(b)
, was fatally irregular
because
of the provisions of sec 81(1) of the Act, and therefore
vitiated
his conviction upon that charge. That provision prohibits the
joining
of further charges in the same proceedings after "evidence has
been led in respect of any particular charge". The
Eastern Cape
Division considered
that no evidence had been led within the meaning
of
the provision, so that the preferring of the charge of rape was not
13
irregular.
It added that, even if it had been irregular, no prejudice had
resulted, and that, in
the absence of prejudice, the irregularity could
not
avail appellant. The court proceeded to consider the merits of the
appeal and concluded that penetration had been proved beyond
reasonable doubt, so that the
appeal against the conviction should fail. Despite the fact that
there was no procedurally valid appeal
against the sentence before
the court, the court observed that the sentence, "though
robust", was proper
in the circumstances. The appeal was dismissed.
On
8 April 1994, some five months after the Eastern Cape
Division
had given its judgment, appellant applied to that division for
condonation of his
failure to apply timeously for leave to appeal to
this
court, and for leave to appeal against both the conviction of rape
and the sentence imposed. Yet a further point was raised; it
was
alleged that "[t]he
proceedings as reflected in the reconstructed record
14
indicate
that the [appellant] did not receive a fair trial". When the
application was argued,
this ground of appeal was elaborated upon.
The
alleged unfairness was said to flow, firstly, from the fact that what
was described as the "reconstructed" record had been
improperly
reconstructed;
secondly, from the fact that appellant was brought to
trial
with undue haste; and thirdly, from the belated addition of the
charge of rape. The
technical propriety of adding the charge of rape
was
also raised again, as were the merits of the conviction. In the
result, the court granted
limited leave to appeal to this court only on
the
question whether the addition of the charge of rape was irregular,
if
so, whether it rendered the proceedings pro tanto null and void, or
merely voidable if
prejudice resulted, and, if the latter, whether there
was
any such prejudice. A petition to the Chief Justice resulted in
appellant being granted leave to appeal generally against the
15
conviction
for rape, thus enabling him to canvass the merits of the
conviction
in this court. I turn now to the submissions advanced
before
us.
The allegedly irregular
joinder of the charge of rape (Count 4).
Sec 81(1)
of the Act reads:
(1)
"Any number of charges may be joined in the same proceedings
against an accused at any
time before any evidence has been led
in
respect of any particular charge, and where several charges
are
so joined, each charge shall be numbered consecutively".
Counsel
for appellant contended that what had been said
by
appellant during the phase of the case when he was being
questioned
in terms of sec 112(l)(b) "in order to ascertain whether he
admit[ted]
the allegations in the charge[s] to which he
pleaded
guilty",
coupled with the fact that the prosecutor had accepted
appellant's
qualified plea of guilty on Count 1, amounted to the
leading of
evidence within the meaning of sec 81(1). It followed, so
16
he
submitted, that the addition of the charge of rape after that had
happened, was irregular,
despite the failure of appellant or his attorney to object to that
being done. He invited us to hold that
the irregularity
was of
so fundamental a kind that it precluded any enquiry into whether or
not any prejudice had been occasioned, and that the resultant
proceedings were pro tanto void. It was contended
alternatively
that even if the proceedings were not ipso facto rendered
void,
the belated addition of Court 4 rendered the trial pro tanto
unfair,
and the conviction and sentence liable to be set aside. I
understood
counsel to mean by this that appellant had, or might have,
been
prejudiced.
In
order to impress upon us the importance in a fair
criminal
trial of an accused knowing, before he or she is asked to
plead,
precisely what crimes are alleged to have been committed, and
17
how they
are alleged to have been committed, so that an informed
election
as to how to plead, and how to meet the State's case can be
made,
counsel referred us to a number of apposite dicta in the reported
cases. The
principle is uncontentious and, subject to one exception,
I see no
need to cite those dicta. In
S v Thipe
1988(3) SA 346(T) at
pages 349J
to 350B,
Schabort J
said:
"Saamgelees
met die vereiste van art 81(1) dat samevoeging
van
aanklagte die aflê van getuienis moet voorafgaan, is dit
klaarblyklik die uitgangspunt van die Wet dat 'n persoon wat
voor
die strafhof gedaag word voor aanvang van sy verhoor die
presiese
bestek van sy potensiële blootstelling aan
skuldigbevinding
en straf in die saak moet kan weet. Eers in
die
lig van sodanige sekere kennis sou 'n aangeklaagde sy posisie
behoorlik kon oorweeg; sou hy kon besluit oor die
raadsaamheid
om regsverteenwoordiging te bekom; oor die
strategic
van sy verdediging, oorhoofs en in besonderhede, en
les
bes, oor die dienstigheid om skuldig te pleit met die oog op
18
strafversagtiging of, byvoorbeeld,
om die verhoor vir persoonlike redes gou agter die rug te kry".
If all that the learned judge
meant to convey by these remarks was that
a prosecutor may not, at any stage
of a criminal trial, confront an
accused belatedly and without
forewarning, with an additional charge,
and then insist upon the accused
pleading to it and proceeding with his
or her defence instanter, there
can be no quarrel with that. If, on the
other hand, he intended to suggest
that no further charge or charges of
which no prior timeous notice has
been given to the accused, may be
added by the prosecutor at any
stage of a criminal trial even although
the acccused is not obliged to
plead to it, or to present the defence to
it, instanter, I am unable to
agree with the suggestion. For reasons
which I shall elaborate in due
course, I think it is plain that sec 81(1)
explicitly sanctions the raising
by the prosecutor without forewarning
19
of
additional charges against an accused even after the accused has
pleaded to the charges
originally brought. The raising of such
additional
charges may, or may not, precipitate a postponement of the trial, but
the plain and unambiguous language of sec 81(1)
shows that
it
is procedurally competent for the prosecutor to add further charges
right up to the moment
before evidence commences to be led. That
moment
is usually, if not always (a question to which I shall return),
a
moment which will only arrive after the recording of the accused's
plea. If, by the use of the words "voor aanvang van sy
verhoor",
the
learned judge meant
before a start is made in the presentation of
evidence that is
another matter, but it would leave open, and
unanswered,
the question which concerns us in this case, namely, what
the
legislature intended to convey by the use of the words "before
any evidence has been led in respect of any particular charge".
As a fact,
20
a
witness had already testified viva voce at the behest of the
prosecution before the
further charge was added in
Thipe's
case, supra,
and, in those circumstances, the joining of that
charge was undoubtedly forbidden by sec 81(1).
The nub of the argument advanced
by counsel for
appellant was
that while a plea of guilty, or not guilty, simpliciter
would
not amount to the leading of evidence within the meaning of
sec
81(1), anything further said in explanation or elaboration of the
plea by an accused, or by
his legal representative and confirmed by
him,
would amount to that. It is the validity of that proposition which
is
the issue.
Counsel
for appellant developed the argument by pointing to the evidentiary
use which the Act permits to be made of statements
made
by the accused during that phase of the proceedings which is
21
designed
to ascertain what his or her plea truly is, and, if one of
guilty,
whether he or she is indeed guilty. He drew attention to the
proviso
to sec 113(1) of the Act, the relevant portion of which, I
quoted
earlier in this judgment. Sec 115 of the Act, which deals with
the
procedure applicable where the accused pleads not guilty, also
makes
provision for the accused to be invited to formally admit
allegations
which have not been placed in issue in the course of any
accompanying
statement indicating the basis of the defence, or in
response
to questions put by the court in order to establish which
allegations
in the charge are in dispute. He is of course not obliged
to
do so, and must be so informed, and warned of the implications of
doing so, but, if he does
consent to do so, the admissions must be
recorded,
and they are deemed then to be admissions under sec 220 of
the
Act. It is trite that the effect of such admissions is to relieve the
22
State
of the burden of adducing evidence to prove the admitted
allegations.
S
v Sesetse en 'n Ander
1981(3) SA 353(A) at 374A. The admissions
are
statutorily ordained by sec 220 to be "sufficient proof of such
facts. Even if the
accused declines to consent to what has been said
during
the process being recorded as an admission, to the extent that what
has been said is adverse to his or her interests, it
constitutes
evidential material which
may be used against the accused in
considering
whether or not guilt has been proved.
S
v Daniels
1983(3)
SA
275(A) at 300 E-F;
S v
Sesetse en 'n Ander
,
supra, at 375H -
376D. The short point is that what is said by
the accused when
pleading to the
charge, may, depending on the circumstances, yield
material
upon which the prosecution will be entitled to rely in
discharging
the burden of proof which rests upon it. That is the basic
23
foundation
upon which the contention of counsel for appellant rests.
It
follows inexorably, so he argues, that such material must be
regarded
as "evidence
led
in respect of [the] particular charge"
within the
meaning of sec 81(1).
Whether
one describes that material as "evidence",
"bewysmateriaal", or
"evidential", or "evidentiary", or "probative
material", the
question will remain: is it evidence within the meaning
of
sec 81(1)? It is trite that the meaning to be given to particular
words is influenced by
the context in which they are used and that the
same
word may not always have the same meaning in a statute. If the
purpose which a
particular provision is designed to achieve is manifest, a word
appearing in it which is capable of a variety of
meanings
will be assigned the meaning most apt to attain the manifest
purpose
of the provision.
Public
Carriers Association v Toll Road
24
Concessionaries
1990(11 SA 925(A) at 943A - 944B;
South
African
Transport
Services v Olgar and Another
1986(2) SA 684(A) at 697D;
Hleka
v Johannesburg city Council
1949(1) SA 842(A) at 852-3. That
does
not mean of course that one may indulge in what is no more than
speculation as to the aim
sought to be achieved and run the risk of wrongly attributing to the
legislature an object which it may
never
have
had in mind. If the object of the legislation is wrongly
understood,
a wrong interpretation of the words used is likely to be the
result.
Dadoo Ltd v
Krugersdorp Municipal Council
1920 AD 530
at
555.
Is
it apparent for what purpose the words "at any time
before
any evidence has been led in respect of any particular charge"
were inserted in 1977
into a provision the rest of which had been in
existence
in substantially the same form since 1917? At first blush
25
they might
appear to be designed solely
to limit
a pre-existing and
more
extensive power to join charges. Yet that is not actually so.
The
history of the provision shows, I think, that it was primarily
intended
to confer greater
power
than had
existed previously. In
successive
Criminal Procedure and Evidence Acts (sec 125 of Act No
31 of
1917; sec 312 of Act No 56 of 1955) provision was made for
any number
of counts to be joined in the same charge. However, the
provisions
were silent on the question of when, if at all, the power of
the
prosecution to add a further count came to an end in criminal
proceedings.
It appears to have been thought that the power did not
extend
beyond the commencement of the proceedings. In 1936 in R
v
Mabuzi
Justice Summary 647//36(EC)
Gane J
said:
"
the
procedure adopted was irregular. Our law contains
no
provision by which a new count can be added to an
26
indictment
during the progress of the case, nor by which an
additional
charge on a separate charge sheet can be propounded
in
a case already begun, and the trial of both charges then
continue
pari passu." (Cited in Ferreira,
Strafproses
in die Laer
Howe
, 2nd edition at page 275 Cf
R v
Janawarie en ander
1954(1) PH H 74(0)).
I
have been unable to find any other case decided while this provision
in the Act
of 1917 and the Act of 1955 was in operation, and which
throws any
direct light on the question. Obliquely relevant, is the
decision
of
Rex v Kataleki and Another
1948(2) SA 207(EDL).
Gardner
J and Hoexter J
dealt
with a case in which A and B were
charged
with the theft of sheep, and after three witnesses had testified
against
them, C was arrested and joined as a co-accused in the same
trial.
Gardner J
said:
"Now
it appears that at the trial three small boys were called for
the
prosecution when the case opened against A and B. They
27
gave
certain incriminating evidence against A and B. At the
conclusion
of their evidence C was arrested and put into the
dock, and
then the three boys were recalled. And on this
occasion
they gave no evidence incriminating A and B, that is
the
present two appellants. The question arises whether the
magistrate
was entitled to rely upon the evidence given by the
small
boys in the proceedings that he heard against A and B for
the
purpose of convicting in this case. To us it appears that the
proceedings against A and
B were entirely separate and, when
the
case started against A, B and C, the proceedings had to
begin
de novo. And, consequently, when it so began, the
evidence
of the boys vanished and all that was left were the
statements
made by the police of findings at the kraals of A and
B.
Neither counsel has been able to produce direct authority on
the
point, but it seems to be quite clear that the proceedings
were
separate, and Mr
van der Walt
, who appeared for the
Crown,
has so fairly pointed out that sec 220 of Act 31 of 1917
clearly
stipulated that the witnesses shall, save as is otherwise
provided
by the Act, give their evidence viva voce in the
presence
of the accused. It is clear too that the evidence given
28
by
the boys against the three accused must be given in open
Court,
and on this occasion they gave no evidence incriminating
the
accused". (At page 209.)
That
was a case of the joinder of an accused, and not a further count,
in
mid-trial, but it illustrates the problems which can arise if the
power
to join
other persons or counts is not sensibly restricted.
In 1977,
Act No 51 of 1977 was enacted and sec 81(1)
supplanted
the provisions in the Acts of 1917 and 1955 which had
been
silent on this question. As has been seen, the power to add
counts
(now styled charges) was no longer confined to the period
before the
taking of the accused's plea as the court in
Mabuzi's
case,
supra,
might be taken to have impliedly held. It was plainly to extend
beyond
that. Quite how far beyond that, is the question. That a limit
was
intended to be set, is also plain. What mischief would have
resulted
if a limit had not been set? The most obvious mischief would
29
appear
to be (he kind of problem which arose in
Kataleki's
case supra,
in connection
with the joinder of another accused in mid-trial.
Evidence
given in the trial prior to the raising of the further charge,
but
in some way relevant to it, would not have been given at a time
when
the accused was facing such a charge. Technically, it could not
be
taken into account in considering whether or not the further charge
had been established. There may have been no cross-examination
upon aspects of the already
given evidence, which were critical to the
newly
brought charge, because they were unimportant to the charges
originally brought.
Witnesses might have to be recalled for further
cross-examination.
The plea procedures for which the Act provides,
and
which can entail questioning of the accused by the court, might have
to be carried out in the middle of a trial after a substantial
amount
of evidence has been led. It is, in my view, also inherently
30
undesirable
to subject an accused person whose trial is well and truly
under
way, to the disruptive and unsettling impact of having to apply his
mind to, and deal with, yet further charges which the
prosecution
wishes to level at him as
the trial progresses. These considerations all
seem
to me to be legitimate concerns of which the legislature is likely
to
have been aware. Hence, no doubt, the imposition of a limit upon
the
power to join charges. It is obvious that the moment at which the
power ceases, was
intended to be some moment
after
,
and not
before
.
the putting of the
originally brought charges to the accused. If the
legislature
had intended the power to cease as soon as the accused was
called
upon to plead, it would have employed language very different
from
that which it did employ. However, the language which it has
employed, shows that it
certainly envisaged that, at some time after the
accused
had been called upon to plead, a moment would be reached
31
after
which it would no longer be desirable or expedient to allow
charges
to be joined. It has chosen to describe that moment as the last
moment "before any
evidence has been led in respect of any particular
charge".
Those words must be sensibly interpreted. They cannot be
read
to mean that the power to join charges ceases only after all the
evidence has been led in
respect of any particular charge, because that
would
entail ignoring the word "any". Nor, for the same reason,
can
they be read to mean,
for example, that if the first witness called by
the
State has not yet completed giving his evidence in chief, it remains
open to the prosecution
to interrupt his testimony in order to join
another
charge. It seems plain that what was meant, was the moment
before
evidence
commences
to be led.
The
question which yet remains to be answered, is
whether
the legislature intended the words "evidence has been led"
to
32
include
what an accused has said during that part of the proceedings
which
is devoted to ascertaining what he or she pleads to the charges,
and
what the issues between the prosecution and the accused which
require
to be tried, are. I have come to the conclusion that they do
not,
for these reasons.
In
both juristic and statutory usage, the word trial has
come
to be used as an appropriate description for criminal proceedings
in
which a verdict is required to be given, and, if the verdict be
guilty,
a sentence
imposed, irrespective of whether or not any triable issue has
been
raised by the accused's plea. In colloquial usage it may have a
narrower meaning and be
confined to a proceeding in which a triable
issue
of fact has been raised by an accused's plea.
Rex
v Keeves
1926
AD
410
at 413;
R v Tucker
1953(3) SA 150(A) at 159 G-H.
None
the less, it has always been recognised that there are distinct
33
phases
of a trial. I leave aside the preliminary extracurial aspects of
a
trial and confine myself to what happens in court when the
proceedings commence. The
charges are put to the accused and he or
she
is required to plead to the charges. The nature of the pleas raised
may differ greatly. A
plea that the court has no jurisdiction, or a plea
of
autrefois convict or autrefois acquit will raise issues very
different
from those
raised by a plea of not guilty. The accused may have to
adduce
evidence in support of a particular plea before the prosecution
does
so. The accused may even bear a fully fledged onus of proof if
he
raises a particular plea. If any such pleas are upheld, there will be
no trial of the merits of
the charges at all. Viva voce evidence may
have
been led by both the prosecutor and the accused in respect of
such
pleas. If the pleas (which are in the nature of special pleas not
going to the merits of
the charge) fail, could it ever have been
34
intended
that, because evidence has been led in respect of those pleas,
no
further charges may be joined, even although the accused may not yet
have pleaded on the merits to the originally preferred charges?
The
answer, I think, is no. The words "in respect of any particular
charge" in sec 81(1)
show, in my view, that what the legislature had
in
mind, was evidence relevant to a particular charge, and not evidence
relevant only to special
pleas of the kind I have mentioned. That
shows
that the legislature was not only alive to the distinction between
the various phases of
criminal proceedings, but aware that even within
a
particular phase (here, the pleading phase), there are sub-phases
which necessitate a
qualification of the language it uses, so that its
sweep
is not too broad, and so that it does not curtail prematurely, and
unnecessarily, the power to join charges.
The object of the plea phase of
criminal proceedings
35
admittedly
extends beyond merely identifying what it is that is in issue
between
the prosecution and the accused. Provision is made, for
example,
in sec 115(2)(b), for the elimination of the need for the
prosecution
to prove allegations which have not been placed in issue
by
a plea of not guilty, and which the accused has consented to being
recorded as admissions.
The process can therefore also serve to
narrow the issues in
respect of which evidence will have to be
adduced.
But what requires to be emphasised, is that all this occurs
in
the context of a phase of the proceedings which is anterior to the
actual trial of the
issues which emerge from it. No evidence of any
kind
may be placed before the court during that phase. If the accused
has
pleaded guilty, and the replies given under questioning in terms of
sec 112(l)(b) satisfy the
court that he or she is guilty, and a conviction
follows,
those replies are not converted by some mysterious alchemy
36
into
"evidence". They remain what they were: simply unsworn
responses to questions put by
the court in a situation where the
accused
has not sought, by his or her plea, to put anything in issue,
but
the statute nevertheless requires the court to satisfy itself of the
correctness of the plea
of guilty by appropriate questioning of the
accused.
Where
the accused pleads not guilty, it may be that a
position
is ultimately reached during the plea phase where what the
accused
has said in explanation of plea, or some of it, is recorded as
an
admission which relieves the prosecution of the burden of proving
in
the ensuing trial the allegation so admitted, but that is not because
the admission is properly
classifiable as "evidence led in respect of
any
particular charge", nor because it is in fact an admission
specifically made in terms of sec 220 of the Act and therefore
37
regarded
as "evidence".
S
v Mjoli and Another
1981(3) SA 1233(A)
at
1243 C-D and 1247 - in fine. It is because the legislature has
artificially bestowed a
status upon it which is
sui
generis
, by providing
in sec 115(2)(b) that the admission made "shall be
deemed
to be
an admission under section 220". But for the deeming provision,
it could not properly
have been regarded as such. Deeming provisions
are
common in legislation and they are usually an indication that resort
is being had to a
fiction.
Chotabhai v
Union Government and Another
1911 AD 13
at 33, 59.
As
was pointed out by counsel for the State, there are
many
provisions in the Act in which the word "evidence" is used,
for
example, secs 81(1),
87(1), 88, 115A, 118, 150, 157(1), 174, 196(2)
and
(3), 209, 210, 219, 256 to 270, and 272. In some of these
provisions
the word is used in conjunction with other words which are
38
identical
to those used in that part of section 81(1) with which we are
concerned, or bear some
resemblance to them without being identical.
I
list below some examples and give as shortly as possible the context
in which the relevant words appear.
sec 87(1)
- "at any stage before any evidence in respect
of
any particular charge has been led" -
when
an accused may ask for particulars or
further particulars of a
charge.
sec 115A -
"made before any evidence is tendered" -
when a
request may be made by the
prosecutor
in the magistrates' court for the
accused
to be referred for trial to a regional
court.
sec 118 -
"and no evidence has been adduced yet" -
when a
trial may be continued before
another
judicial officer if the judicial officer
who
commenced hearing it is not available.
sec 150 -
"before any evidence is adduced" - when the
39
prosecutor
may make an opening address,
sec 157(1) - "at any time
before any evidence has been
led
in respect of the charge in question" -
when the
prosecutor may join another accused.
The
absurd consequences which would follow if one were
to
interpret these expressions as including anything of evidential value
or which
relieves the State of the onus of proving a particular
allegation
it has made against the accused, even although it came into
existence
during the pleading phase of the proceedings, are readily
apparent.
An accused who pleads not guilty and intends to ask for
particulars
of the charge, would lose his right to such particulars if he
were to
admit one of the allegations in the charge during questioning
by the
court in terms of sec 115. The accused in such a case would
also,
wittingly or unwittingly, have succeeded in preventing the
40
prosecutor,
if the prosecution had been minded to do so, from
requesting
the magistrate to refer the accused for trial in a regional
court.
The accused would also have made it impossible for his trial
to
be continued before another judicial officer if the judicial officer
who conducted the plea proceedings were to become unavailable
subsequently. The accused would
also have succeeded in preventing the prosecutor from making an
opening address. He would also have
made
it impossible for the prosecutor to join another accused. These
things would not have
come about as a consequence of anything done
by
the prosecutor. They would have come about as a consequence of
what
the court and the accused did during the recording of the
accused's
plea to the charge, a process over which the prosecutor has
virtually
no control. If, on the other hand, one interprets the words in
issue
as meaning once the prosecutor has commenced to place before
41
the
court the evidence which he desires to place before the court, these
absurdities do not arise,
and the exercise of his own powers will not
be
frustrated by what the accused may choose to say during the plea
proceedings. Similarly,
the accused's right to further particulars of the
charge
will not be lost merely because the accused, when asked to
plead,
candidly admits one of the allegations in the charge.
It
is not difficult to see why once the leading of evidence
has
commenced, no further charge or accused persons may be joined,
and
no other judicial officer may continue to hear the matter if the
judicial officer who commenced hearing the trial is no longer
available. In these instances
there is an easily discernible reason for
the
limitation. One cannot join additional accused persons who have
not
heard some of the evidence which has already been given viva
voce.
An accused is entitled to see and hear the witness giving
42
evidence
so that he can make appropriate submissions regarding the
demeanour
of the witness when the stage of argument is reached.
Giving
such an accused an opportunity of cross-examining a witness who has
given his evidence in chief, and may even have been cross-
examined
in the absence of the accused, does not adequately
compensate
for the disadvantage arising from not having seen and
heard
the witness testify. Reading the evidence of such a witness to
the
accused or providing the accused with a transcript of the evidence
given in his absence is,
for the same reason, not a sufficient cure. It
is
basic to the concept of a fair trial in South Africa that, save in
exceptional circumstances
clearly and unambiguously prescribed by
constitutionally
competent statute, evidence upon which the State
intends
to rely in support of the charge against the accused, must be
adduced
in the presence of the accused.
43
One
cannot allow a substitute judicial officer who has not
heard
the evidence given earlier in a trial, to hear the rest of the
evidence given in the
trial, and then purport to evaluate all the
evidence
given and return a verdict. The reason is obvious. Some of
the
witnesses have not been seen or heard by that judicial officer and
the accused may be
deprived of the potential benefit which may have
accrued to
him if the demeanour of those witnesses had been
unsatisfactory
and indicative of unreliability. That being the obvious mischief
which the limitation is designed to prevent, there
is no good
reason
to include within the concept of "evidence
led
in respect
of the charge" (sec 157(1))
or "evidence
adduced"
(sec 118),
what
may have emerged during the plea taking phase of the case. No
question of the demeanour
of a witness arises and there is no need for
either
an accused who is joined later, or a substitute judicial officer,
44
to
know more than
what
was said during that phase. What was said
then
or, if it be documentary, what was placed before the court, was
not
evidence given under oath; it was not subject to cross-
examination;
it was not admissible against anybody other than the accused from
whom it has emanated. It is true that its evidential
value,
if any, would have to be evaluated at the end of the trial, but
the
evaluation would not depend upon the demeanour of the accused
when
making the statements which he did during the taking of his
plea,
nor, if a written explanation of plea was tendered, would the
question of demeanour
arise at all. The potential prejudice to an
accused
which is present in the case where viva voce evidence on oath has
been given in his absence, or where a substitute magistrate
takes
over the hearing of a
case at a stage where viva voce evidence has
already
been given, is absent where all that has happened in the way
45
of
generation of evidential material, is what happened during the
taking
of the accused's plea. In
S v Namba and Another
1990(2) SACR
101 (Tk) it was held that admissions made during the plea
phase
did not amount to "evidence
adduced"
for the purposes of
sec
119 of Act 13 of 1983(Tk). That provision is identical to sec 118
of
the South African Act.
In
the case of a request to refer the matter for trial in a regional
court, the reason for the limitation is not the same because
the
hearing of evidence would have to commence de novo before the
regional court. Yet what seems
plain, is that the prosecutor's power
to
require the magistrate to refer the accused for trial in a regional
court, arises only once
the accused has pleaded not guilty. The
process
of pleading not guilty to the charge is not complete until it is
clear to what extent, if any, either the accused or the
court intends
to
46
make
use of the provisions of sec 115. There may be accompanying
statements by the accused
indicating the basis of the defence, or
statements
made by the accused in response to questioning by the
magistrate.
The statements may be recorded as admissions deemed to
have
been made under sec 220. It follows that the prosecutor's right
to
require the magistrate to refer the accused for trial to the regional
court will not arise
until this process is complete. If what has
happened
during that process is to be regarded as "evidence
tendered"
within the meaning of sec 115A, it would largely nullify the
power
of the prosecutor to make such a request. His power is
obviously
not intended to be restricted by what may have happened
during
the plea phase of the case, for sec 115A specifically provides,
by
the use of the words "subject to the provisions of section 115",
for
the process to take
place, and for the "record of the proceedings in the
47
magistrate's
court" to "be received by the regional court and form part
of the record of that
court". In this instance therefore, it is apparent
from
the language alone that what may have resulted from the plea
process
(even an admission deemed to have been made under sec 220)
is
not "evidence
tendered"
within the meaning of sec 115A, even
although
it may have some, or even conclusive, evidential value in the
trial.
The underlying considerations of policy which prompted the
legislature to terminate
the prosecutor's power to make such a request
once
a start had been made with the tendering of evidence, are not as
easy
to discern as the policy considerations which underlie the
limitation
provisions in secs 118 and 157(1). It is unneccessary to
attempt
to discover what they might be, because the language alone makes it
so clear that evidence tendered does not include what
has
emerged
during the taking of the accused's plea. The same can be
48
said
of sec 150. If the prosecutor wishes to make an opening address,
he
is not enjoined to do so before the plea is taken; he is enjoined to
do so "before any
evidence is adduced" and what it is envisaged he
will do,
is indicate "what evidence
he intends adducing
(my
emphasis)". Again, the
language is plain and excludes the notion that
what
might have been said by the accused during the taking of his
plea
(and over which the prosecutor has no control), can deprive the
prosecutor of the right to make an opening address.
There
are other provisions in Act 51 of 1977 which can
be
subjected to similar analysis and which show, likewise, that even
if
what happens during the taking of the plea in a criminal trial may
be
regarded as evidential material in the broad sense, it is not
evidence
led, or adduced,
or tendered within the meaning of those expressions
where
they occur as limiting expressions in many of the provisions of
49
the Act.
There is little point in piling Ossa on Pelion.
I
conclude therefor that in casu no evidence had been led
within
the meaning of that expression in sec 81(1) and that the joinder
of
the charge of rape was procedurally permissible and not irregular.
It
is inherent in this conclusion that in so far as they are
inconsistent
with that
conclusion, the cases of
S
v Witbooi
1980(2) SA
911 (NC)
and
S v Hulbert and Another
1982(2) PH H
150(C) were wrongly
decided, and
that the cases of
S v
Slabbert en Andere
1985(4) SA 248
(C) and
S
v Nsobeni
1981(1) SA
506 (B) were correctly decided. The
case
of
S v Makgolelo and
Others
1995(1) PH H
4(T) must also be
regarded
as having been wrongly decided if, as appears to have been
the
case, the admission made by the accused and which was
considered
by the court to amount to evidence led within the meaning
of
sec 81(1), was not in fact an admission made in terms of sec 220
50
(dehors
the plea phase of the case, but an admission made during the
plea
phase which was
deemed
to be an admission made under sec 220. The court does not appear to
have been alive to the distinction. I
leave
open the question of whether or not the unilateral placing on
record
by the accused of an admission at the inception of that phase
of
a case in which the court commences to receive evidence in the
narrow
sense, can be said to amount to the leading, or adducing, or
tendering of evidence
within the meaning of the various provisions
discussed
in this judgment. That did not occur in casu. Indeed,
appellant
cannot even be deemed to have made admissions under sec
220.
The highest the case can be put for appellant is that the effect of
sec 113(1) of the Act was
that some of the things which he said
during
the plea phase of the case "stand as proof of those things. As
I
have said, I am unable to accept that that amounts to evidence led
51
with the
meaning of sec 81(1).
The
court in
Makgolelo's
case thought that the use of the
word
"getuienis", instead of the word "getuie", in the
Afrikaans
version of sec
81(1), and the use of the words "aangevoer" in sec
118(1),
supported its interpretation of the provision. In my view, there
is
little to be learnt from that. The Act makes provision for the mere
handing in by the
prosecutor of all manner of documentary evidence
without
the need to place a witness in the witness stand. Plainly, once
a
prosecutor commences doing that, the trial is under way and he is
leading or adducing evidence. If the word "getuie"
or
"witness" had
been
used, it would not have achieved the legislature's object of
demarcating a clear
dividing line between the plea phase and the
evidence
receiving phase of criminal proceedings. The court also
regarded
sec 81 as what it described as a safety valve designed to
52
protect an
accused from having further charges joined as a
consequence
of knowledge gained from evidence (of whatever nature)
placed
before the court. Whatever else its object may be (and 1 have
indicated earlier in this
judgment what I conceive it to be), this cannot
be
one of them, for it is plainly open to the State to institute a
separate
prosecution upon
such charges notwithstanding that it may only have
been
able to do so by reason of knowledge gained in the previous trial
of
the accused.
Having
concluded that the joinder of Count 4 was not
irregular,
it is unnecessary to decide the further question debated
before
us, namely, whether an impermissible joinder of a charge
renders
the proceedings pro tanto fatally defective, or liable to be set
aside only if prejudice
to the accused may have been caused.
53
The
alleged unfairness of the trial
.
It
is not clear to me that it is open to appellant to
complain
that even if the addition of count 4 was not irregular, he did not
have a fair trial. No leave to raise that contention
was granted by
the Eastern Cape Division and I doubt that leave to do so was
comprehended in the general
grant of leave to appeal against the rape
conviction
which was granted on petition to the Chief Justice.
However,
I shall assume in his favour that it was. In my view, the
contention
cannot be upheld. It does not appear ex facie the record
that
appellant was, or might have been prejudiced. He has not sought
to
place any other evidence before the court to support an allegation
of
prejudice. Ultimately, he did have legal representation at his trial
and, if any good purpose
would have been served by the recall of
witnesses
who had already testified for further cross-examination, we
54
must
assume that appellant's attorney would have sought their recall.
He
elected not to do so. There had been ample time between 26
February
and 26 April for appellant and his attorney to confer fully and
prepare for the resumption of the trial. In view of the
attitude
adopted by him shortly
after his arrest, it was in his own interests that
he
be brought to trial promptly rather than be held indefinitely as an
awaiting trial prisoner.
There is no basis for the contention that
appellant was, or
may have been, unfairly prejudiced by the
promptitude
with which the case was initially brought to trial.
The
merits of the conviction
.
I
turn to the appeal on the merits of the conviction on the
charge
of rape (count 4). The fate of the appeal turns solely on the
question of whether or
not it was proved beyond reasonable doubt that
appellant
penetrated the vagina of complainant with his penis. No
55
question
of consent arises, nor does any question as to whether or not it was
appellant who assaulted complainant, both in the ordinary
sense
of
that word, and in the sexual sense. Appellant's own evidence is to
that effect. What counsel
for appellant contended, was that the
regional
magistrate should have entertained a reasonable doubt as to
whether
complainant was being truthful and honest when she claimed
that
there had been penetration, alternatively, if she was honest, as to
whether she was not
mistaken. In my view, these contentions cannot
prevail for
these reasons.
There
is no good reason why the honesty of complainant
should be
doubted. Her evidence is corroborated in numerous
important
and material respects by appellant himself. Moreover, there
are
also aspects of her evidence which demonstrate convincingly that
she
did not shrink from making a full disclosure of a highly unusual,
56
and
personally extremely embarrassing, aspect of the matter, even
although she could have withheld it, or denied it, with relative
impunity. I say with
relative impunity, because only appellant could
have
contradicted her, and because it was, in any event, so bizarre an
aspect of the matter,
that, if appellant chose to mention it, or if it was
put
to her in cross-examination, her denial that such a thing had
happened, was very likely
to be believed. Her candour in relation to
this
aspect of the matter is, I think, a telling illustration of her
honesty
as a witness. To
appreciate why that is so, it is necessary to know
what that
aspect of her evidence was.
She
testified that despite the fact that she had been
compelled
at knifepoint to submit to being blindfolded, gagged to a
considerable extent, tied
to a bed by her hands and feet with her legs
spread
apart, having her breasts exposed and sucked and her vagina
57
mouthed
and fingered by appellant, and despite the fact that she had
urinated
twice in her anxiety and fear, she none the less experienced
an
orgasm as a consequence of appellant fingering her genitalia. The
candour inherent in her account speaks volumes as to her testimonial
honesty.
Nor does
it end there. She said other things in her
evidence
in chief which were entirely inconsistent with a dishonest
desire
to convert an indecent assault into a rape, by fabricating an
allegation of
penetration. She said that appellant had assured her that
he
would not rape her, and that when his penis penetrated her vagina,
the degree of penetration was not great, and his penis was
not stiff.
In cross-examination, she said his penis was not completely erect and
that the depth of the
penetration which occurred was approximately
one inch. Those
are hardly allegations which a dishonest woman
58
intent
upon securing a conviction for rape against a person who had not
raped her, but had indecently assaulted her, would make,
if she knew
that she would have to convince the court that penetration had
occurred.
Yet
another factor which makes the submission that
complainant
was deliberately fabricating the allegation that penetration
had
occurred grossly improbable, is her status as a married woman. If she
knew she had not been penetrated, she would surely not
have wished to
bring her husband under the impression that she had been
penetrated.
It would only have served to aggravate an already difficult
situation
with which he would have to come to terms. It is no doubt
theoretically conceivable
that she might have told him that she
intended
to fabricate an allegation of penetration to aggravate the case
against the appellant,
but the other factors indicative of her honesty
59
and
to which I referred earlier, are so inconsistent with there having
been any such plot
hatched between them, that the possibility may be
safely
discounted.
It
was submitted that the failure to charge appellant ab initio
with rape showed that complainant could not have made an
allegation
of rape when she first made a statement to the police, and
that
any subsequent allegation to that effect must of necessity be false.
The submission fails because there was credible evidence from
a policewoman who responded to a radio call to proceed to
complainant's home, and who
arrived there not long after the incident
occurred,
that complainant was in a traumatised state, and alleged that
she
had been raped. It was argued that her evidence was suspect, but
the
reasons advanced in support of the submission lacked substance.
The
regional magistrate's acceptance of her evidence cannot be faulted.
60
It
negatives the suggestion that complainant failed to allege that she
had been raped until very
much later. The entire tenor of complainant's
evidence
is incompatible with a deliberately fabricated allegation of
penetration.
What
is more deserving of serious consideration, is the
alternative
contention that complainant was honestly mistaken in
thinking
that penetration had occurred. She was undergoing an extremely
traumatic experience and was in a highly agitated and fearful
state.
She was blindfolded and could not see what was happening. Appellant
claimed he was incapable of achieving an
erection
and her own evidence confirms that to be so. She conceded
too
that he had disavowed any intention of raping her. The result of
tests carried out on
vaginal smears taken from complainant by the
district
surgeon was negative. The degree of penetration alleged by
61
complainant
is slight. All these circumstances made it necessary to
consider
very carefully whether complainant's insistence that she was
indeed
penetrated, was sufficiently reliable to be accepted as correct
beyond reasonable doubt. The regional magistrate did so, and
concluded that it was. I am not
satisfied that he was wrong.
Complainant
is a sexually experienced married woman
with
children. The fact that she was blindfolded would have had little,
if
any, effect upon her capacity to know whether or not penetration of
her vagina was occurring. It is obviously a question of what
is
experienced physically,
rather than what can be seen to be happening.
It
seems plain that despite his difficulty in achieving an erection,
appellant was seeking
sexual stimulation. While it may be that he
planned
initially to seek sexual gratification only by indecently
assaulting
complainant in the manner I have described, it is obvious
62
that a
point was reached when he decided to attempt to rape
complainant.
On his own admission, he lay upon her. The reason he gave for doing
so was quite ludicrous and manifestly not the real
reason.
He claimed that he was fully clothed and that his purpose was to
prove to complainant that he could not achieve an erection.
He was
quite unable to say why he felt the need to prove this to her.
Complainant testified that he
had removed his trousers by the time he mounted her, that he
succeeded in penetrating her to a limited
extent
notwithstanding
the relative flaccidity of his penis, that he made the
thrusting
movements which ordinarily accompany sexual intercourse, experienced
an orgasm, and ejaculated inside her vagina. She
added
that
she could feel his semen exuding from her vagina. The possibility
that she could have
imagined all this, and that it did not actually
happen,
is so fanciful and unrealistic that it cannot be regarded as
63
reasonable.
The very fact that appellant chose to lie about his state of
dress
when he mounted her, and his inability to give any plausible
explanation for mounting
her, shows that the true reason was one
which
he thought it would be damaging to him to disclose. That tends
to
confirm that complainant's version as to what happened, is true.
The
evidence of the district surgeon was that, although uncommon, it is
physiologically possible for a woman to experience an orgasm
even
in
such distressing circumstances, if the physical stimulation of her
genitalia is sufficiently
prolonged; that it is also possible for a male
who
cannot achieve an erection, to experience an orgasm if stimulated
for
sufficiently long a period; and that vaginal smears taken to detect
semen often produce
negative results even although semen has in fact
been
ejaculated into the vagina. When penetration has been slight, as
it
was here, the absence of residual spermatazoa is even less
64
significant.
There is therefore nothing in these factors which
necessarily
militates against acceptance of complainant's evidence.
It
was also suggested that the cautionary rule applicable
in
"sexual cases" had not been sufficiently respected. The
suggestion
cannot be
entertained. The regional magistrate did not lose sight of it.
The
fact that relatively little was said in elaboration of his
application
of it is not
surprising in the particular circumstances of the case. The
need
for its application in the circumstances which prevailed, was a
very
limited one. All other aspects of appellant's indecent assault upon
complainant being
virtually common cause, and identity not being in issue, it fell to
be applied only to complainant's allegation
that
penetration
had occurred. The reasons given by the regional
magistrate
for finding the allegation to be both honest and reliable are
cogent
and satisfy the cautionary rule. They have much in common
65
with what
has been said in this judgment.
There were
some other criticisms of complainant's
evidence
made by counsel for appellant, but the foundation for them
was
so slender, and the countervailing factors supportive of her
credibility to which I
have drawn attention earlier so compelling, that
the
criticisms do not merit more detailed treatment. No good grounds
exist for disturbing the
regional magistrate's conclusion that penetration
had been
proved beyond reasonable doubt.
The appeal
against the conviction of rape is dismissed.
R M MARAIS
JA
HEFER, JA)
concur
STEYN, JA)