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[1995] ZASCA 119
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S v Bogosi (487/94) [1995] ZASCA 119 (28 September 1995)
Case No 487/94 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter of:
SELWYN BOGOSI
FIRST APPELLANT
HENDRIK BALOYI
SECOND APPELLANT
ANDREW MOGWANE
THIRD APPELLANT
and
THE STATE
RESPONDENT
CORAM
: HEFER, F H GROSSKOPF JJA et
SCOTT AJA
HEARD
: 19 SEPTEMBER 1995
DELIVERED
: 28 SEPTEMBER 1995
JUDGMENT
SCOTT AJA/
...
2
SCOTT AJA
:
The question in issue in this appeal is whether the
appellants were entitled to have their pleas changed from guilty to not guilty.
On 11 December 1987 and in the Pretoria-North Magistrates' Court the appellants
were required, in terms of
s 119
of the
Criminal Procedure Act, 51 of 1977
("the
Act"), to
plead to three counts of fraud and two counts of theft. The charges of
fraud related to the unauthorised withdrawal of funds from
a bank. The total
amount involved was in excess of R388 000. The two charges of theft related to
the theft of four cheque forms.
The first appellant pleaded guilty on one of the
counts of fraud, involving an amount of R132 296,00 and not guilty on the
remaining
four counts. The second and third appellants both tendered a plea of
guilty on all five counts. At the time of pleading the three
appellants were
legally represented and on behalf of each a written and signed statement was
handed into Court. Each
3
appellant thereafter confirmed the contents of the statement in which all the
allegations contained in the charge or charges to which
he pleaded guilty were
admitted.
The proceedings were thereupon stopped in terms of
s 121
(2)(a) of the
Act
pending
the decision of the Attorney-General. In due course the
Attorney-General, acting in terms of
s 121
(3)(a) gave instructions for the
appellants to be arraigned before the Regional Court for sentence, and the
matter was then postponed
for hearing in that Court. It appears that the first
appellant's plea of not guilty on all the counts save one was accepted by the
State. On 11 November 1988 and in the Regional Court the three appellants were
represented by a new attorney who indicated that his
clients wished to change
their pleas from guilty to not guilty. He informed the Court that the grounds on
which they wished to do
so were that prior to pleading they had been threatened
and, in addition,
4
had been promised bail in the event of pleading guilty. By agreement the
matter was then postponed. On 26 February 1990 when the matter
was resumed, the
appellants were represented by counsel who indicated his intention to call the
appellants to give evidence in support
of their application. Before this was
done, however, the Court formally returned a verdict of guilty on the counts in
respect of
which the appellants had pleaded guilty. It is not entirely clear why
this course was adopted and why the question of the change
of plea was not
disposed of first. From the remarks subsequently made by the regional magistrate
in his judgment it would seem that
the decision to adopt this course was based
on a misunderstanding of
s 121
(5)(b) of the
Act, to
which I shall refer later
in this judgment. But whatever the reason, it has not been suggested that the
irregularity resulted in
a failure of justice within the meaning of the proviso
contained in
s 309
(3) of the
Act and
it need not be considered further,
save
5
to observe that had the change of plea been allowed the conviction, of
course, would not have stood.
What followed was a "trial within a trial",
interspersed with lengthy postponements, at which all three appellants testified
as did
a number of witnesses called by the State in rebuttal. Finally, and on 14
April 1992, the regional magistrate gave judgment in which
he rejected the
appellants' evidence as false and dismissed their application to change their
pleas. In doing so, he accepted that
the standard of proof to be applied was
that of the common law and that the State had been obliged to establish beyond
reasonable
doubt that the explanations tendered by the appellants for having
pleaded guilty were false. The earlier finding of guilty was accordingly
allowed
to stand. The first appellant was sentenced to three years imprisonment subject
to the provisions of
s 276
(l)(i) of the
Act, while
the other appellants, who
had been convicted on all five counts, were
6
sentenced to an effective period of five years imprisonment, but also
subject
to the provisions of
s 276
(l)(i). An appeal, against the conviction
only,
to the Transvaal Provincial Division was unsuccessful and the
appellants,
with the necessary leave, now come to this Court.
Section 121
(5)(b) of the
Act makes
provision for the
conviction of an accused by the court before which he has been arraigned
for sentence following a plea of guilty as contemplated in
s 121
(1).
Section 121
(5)(b) reads:
"Unless the accused satisfies the court that a plea of guilty or an admission
was incorrectly recorded or unless the court is not
satisfied that the accused
is guilty of the offence to which he has pleaded guilty or that the accused has
no valid defence to the
charge, the court may convict the accused on his plea of
guilty to the offence to which he has pleaded guilty 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."
Section 121
(6), in turn, imposes a duty upon the court
in certain
7
circumstances to record a plea of not guilty and to proceed with the trial.
The section reads:
"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 or that the accused has no valid defence to the charge, the court
shall record a plea
of not guilty and proceed with the trial as a summary trial
in that court: Provided that an admission by the accused the recording
of which
is not disputed by the accused, shall stand as proof of the fact thus
admitted."
This section, although different from
s 113
, has a
number of features in
common with it. The latter section, of course, deals with the correction
of
a plea of guilty during a summary trial up to the stage when sentence is
imposed. Subsequent to both the trial in the instant case and the appeal
in
the Court below, this Court has had occasion in
Attorney-General.
Transvaal v Botha
[1993] ZASCA 159
;
1994 (1) SA 306
(A) to consider the proper
interpretation to be placed on
s 113.
It was held in that case, briefly
stated,
8
that: (a)
section 113
does not burden an accused with an onus to establish
any one of the four particular situations dealt with therein (at 328 D - G);
and
(b) the section does not exclude the common law with regard to the setting aside
of a plea of guilty on the grounds of duress
or undue influence (330 I - J)).
Regarding (a), it should be noted that the four situations dealt with in
s 113
include: (i) where there is doubt whether the accused is in law guilty of the
offence to which he has pleaded guilty; and (ii) where
the court is satisfied
that the accused has a valid defence to the charge. Both these situations are
dealt with in
s 121
(5)(b) as well as
s 121
(6). That an accused bears no onus
in relation to either is made even clearer in
s 121
(5)(b) and
s 121
(6) by
reason of their juxtaposition in each of these sections with the situation where
an accused is obliged to satisfy the court
(and accordingly bears the onus) in
relation to the incorrectness of the record, and further, the use of the
negative in the expression,
"is not
9
satisfied" (cf the
Botha
case at 328 D and H -I). With regard to (b),
there is similarly nothing in
s 121
(5)(b) or
s 121
(6) to suggest that the
common law with regard to the setting aside of a plea of guilty on the grounds
of undue influence and the
like has been excluded.
It follows that an accused arraigned for sentence under
s 121
of the
Act
would
bear the onus of establishing that a plea of guilty or an admission
material to his guilt has been incorrectly recorded. He does
not, however, bear
an onus in the true sense of the word in respect of the other situations
referred to in the section which would
require the court to record a plea of not
guilty. Nor is he precluded from seeking to withdraw his plea of guilty on the
grounds
that it was vitiated by duress and the like. In that event, he would be
obliged to give an explanation for his plea of guilty, but
there would be no
onus on him to convince the court of its truth. A court would only be entitled
to refuse his application if it
were satisfied that
10
the explanation is false beyond reasonable doubt. (See
S v Britz
1963
(1) SA 394
(T) at 398 H - 399 B, cited with approval in the Botha case at 324 I-
325 A.)
Mr Reinders
, who appeared on behalf of the appellants in this Court,
submitted that even if the Regional Court had correctly dismissed the
appellants'
application to retract their pleas of guilty brought under the
common law, that is to say on the grounds of duress or undue influence,
the
Court had failed to take into account the further protection afforded to an
accused person in terms of
s 121
(5)(b) and
s 121
(6). The protection which is
relevant in the present case, it was contended, is that a court is obliged to
enter a plea of not guilty
if there is a reasonable possibility that the accused
is not guilty of the offence to which he has pleaded guilty.
Mr Reinders
stressed that the appellants in their evidence had not only testified as to the
duress to which they allegedly had been subjected
but, in addition,
11
they had asserted their innocence. He submitted that this assertion, in the
absence of any other evidence relating to the guilt of
the appellants, must have
been sufficient to create a reasonable doubt and that the Court accordingly had
been obliged in terms of
the section to record a plea of not guilty. In support
of this submission he placed much reliance on certain passages in
S v Malili
en 'n Ander
1988 (4) SA 620
(T) at 625 as authority for the proposition that
a mere assertion by an accused that he is innocent or that he does not admit an
allegation made in the charge is sufficient to require a plea of not guilty to
be recorded in terms of
s 113
of the
Act, and
he argued that the same is true of
s 121
(5)(b) and
s 121
(6).
Common sense dictates, I think, that a person who is innocent will not
ordinarily plead guilty to a criminal charge preferred against
him. I refer in
this context to a plea of guilty which is confirmed by questioning in terms of
s
112
(l)(b) or by a written statement in terms of
s 112
(2).
12
The qualification is important because the procedure provided for in
s 112
is
aimed at preventing, in the case of a serious offence, a plea of guilty which is
based on a misunderstanding or error on the part
of the accused, so that a
subsequent assertion of innocence must necessarily involve the retraction of
allegations previously admitted
under judicial supervision. The inference of
guilt arising from a plea of guilty together with an admission of the facts
alleged
in the charge in these circumstances is such that, in my view, it will
not be displaced or its correctness rendered subject to reasonable
doubt simply
by a bald assertion of innocence made on a subsequent occasion. Something more
is required. There must at least be some
explanation for the plea of guilty
which, although even improbable, is such as to give rise to a reasonable
possibility of innocence.
S v Malili,
supra, on which
Mr Reinders
relied, was, of course, decided prior to the decision in
Attorney-General,
Transvaal v Botha
, supra. In the latter case,
13
this Court accepted that
s 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 the plea of guilty" and, in this regard, concluded
that "(a)ll
that is needed is a reasonable explanation from the accused why he seeks to
withdraw the admission or change his plea"
(per Smalberger JA at 329 D - E and
H). To the extent, therefore, that
Malili
's case, supra, is in conflict
with the above, it must be regarded as having been overruled.
In the present case the evidence upon which reliance is sought to be placed
amounts to no more than a number of bald assertions of
innocence. The appellants
did, of course, offer an explanation for their pleas of guilty, but the
submission which is made is premised
on a finding that the explanations tendered
by the appellants were correctly held to be
14
false beyond reasonable doubt. All that remains therefore are their
unexplained and subsequent assertions of innocence. In my view,
these were
insufficient to give rise to a reasonable doubt and accordingly did not require
a plea of not guilty to be recorded in
terms of
s 121
(6) of the
Act. As
previously indicated, the regional magistrate found the explanation offered by
the appellants for pleading guilty to be false beyond
reasonable doubt. The
correctness of this finding was challenged on appeal and this is the issue to
which I now turn.
All three appellants testified that for a period of two or more days prior to
their first appearance in Court on 4 December 1987,
they were repeatedly
assaulted by the investigating officer and other members of the South African
Police. The assaults, they said,
took the form of punching, kicking and
slapping. They were also, they said, subjected to electric shocks. In addition,
each appellant
said that he was threatened that if he
15
did not plead guilty he would be kept in custody without bail. These
allegations were all denied by the investigating officer as well
as by a number
of other policemen who had been named or otherwise identified by the
appellants.
It was common cause that when the appellants first appeared in Court on 4
December 1987 an attorney, Mr Kamfer, who appeared for the
second and third
appellants, requested that the second appellant be examined by the district
surgeon because his client complained
that he had been assaulted while in
custody. An order was made to this effect and the second appellant was examined
by a doctor.
The latter's report, however, was not available as the police
docket had subsequently been mislaid and according to the investigating
officer,
Warrant Officer Els, had been stolen. Mr Kamfer testified that when the
complaint had been made to him he had examined the
appellant's head and had seen
no sign of injury, save for what
16
appeared to be a missing tuft of hair. His evidence did not support that of
the second appellant who testified that he had visible
cuts on his head and that
there were blood stains on his shirt. Mr Kamfer testified that he had
subsequently confronted Mr Els but
the latter had denied the alleged assault.
The description given by the first and third appellants of the injuries they had
sustained
in the assaults was similarly such that Mr Kamfer could hardly have
failed to observe them in court on 4 December 1987. Yet he had
no recollection
of seeing any injuries.
The second and third appellants in their evidence-in-chief gave an account of
what they had told their attorney, Mr Kamfer, both during
the consultation prior
to pleading guilty and subsequently when they terminated the latter's mandate.
On the strength of this disclosure
and on the application of the prosecutor they
were held by the trial Court to have waived their privilege in relation to the
incompetence
of their former legal
17
representative to give evidence against them (see
s 201
of the
Act). In
making this ruling the Court relied mainly on a passage in
Wigmore on
Evidence
vol VIII (Mc Naughton Revision) para 2327 which was approved by
this Court in
Ex Parte Minister van Justisie: In Re S v Wagner
1965 (4)
SA 507
(A) at 514 and relied upon in a number of subsequent cases (see for
instance
Msimang v Durban City Council and Others
1972 (4) SA 333
(D) at
337;
Euroshipping Corportion of Monrovia v Minister of Agricultural Economics
and Marketing and Others
1979 (1) SA 637
(C) 645 G - 646 E;
S v Nhlapo
and Others
1988 (3) SA 481
(T) 482). The correctness of this ruling and
hence the admissibility of Mr Kamfer's evidence in relation to what had
transpired on
the occasions in question, was not challenged in this Court. Mr
Kamfer's evidence of what had been said differed sharply from the
appellants'
version. He testified that when taking instructions from the second and third
appellants he had a lengthy
18
and in depth discussion with them during which they had discussed precisely
what the appellants had done and what they had not done;
what evidence the State
was likely to be able to adduce against them, and the full implications of a
plea of guilty as opposed to
a plea of not guilty. The impression which Mr
Kamfer gained was that the alleged assault on the second appellant had played no
role
whatsoever in their decision to plead guilty. As far as the subsequent
occasion was concerned, Mr Kamfer denied that the second and
third appellants
had ever told him, as they subsequently testified they had, that they were not
guilty of the charges in question
and that they had pleaded guilty merely
because of threats emanating from the police. His impression was that they were
dissatisfied
with the advice he had given them and that for whatever reason they
had decided to plead not guilty.
The regional magistrate in his judgment found the first
19
appellant to be a poor witness. This much is apparent from the record. He
contradicted himself both with regard to where the alleged
assaults took place
and also as to the number of persons involved. He was unable to offer any
satisfactory explanation why, if he
was acting under duress, he should have
pleaded guilty to only one of the 5 charges preferred against him. His
suggestion at one
stage that he was charged with only the one count was clearly
false while his contradictory assertion that the police required him
to plead
guilty to only one of the charges and not the others, was most improbable.
The version of the second and third appellants as to why they had pleaded
guilty was wholly inconsistent with the evidence of Mr Kamfer.
No basis could be
advanced for suggesting that Mr Kamfer was an untruthful witness. On the
contrary, he was clearly reluctant to
give evidence against his erstwhile
clients and very properly raised the issue of
20
their privilege. It is true that the second appellant's contemporaneous
complaint of having been assaulted gives some credence to his evidence.
But on the other hand, his description of his injuries and his condition
following the alleged assault was not supported by Mr Kamfer. Nor is the
fact that he complained to his attorney and permitted the latter to bring
the
alleged assault to the attention of the Court on 4 December 1987
consistent
with his version that he pleaded guilty out of fear of the police. The
question in issue, of course, is not whether there was an assault or not,
but
whether, if there was one, it played any role in the appellants' pleading
guilty. As observed by Nestadt AJA in
S v Shabalala
1986 (4) SA 734
(A)
at 747 A:
"There must, naturally, be a causal connection between the alleged duress and
the making of the statement (in court).
This will not be assumed."
Also of significance in this regard was the concession made by the third
21
appellant that he and the second appellant were told by Mr Kamfer that bail
had been arranged on the morning of 11 December 1987 and
prior to the court
appearance at which they pleaded guilty.
On the basis of the foregoing, the regional magistrate, in my view, was
justified in coming to the conclusion he did and I can see
no basis for
interfering with his finding.
The appeal is accordingly dismissed.
D G SCOTT
HEFER JA)
- Concur F H GROSSKOPF JA)