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[2016] ZACC 36
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Wickham v Magistrate, Stellenbosch and Others (CCT118/16) [2016] ZACC 36; 2017 (1) BCLR 121 (CC) ;2017 (1) SACR 209 (CC) (25 October 2016)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 118/16
In the matter
between:
WAYNE
ANTHONY
WICKHAM
Applicant
and
MAGISTRATE,
STELLENBOSCH
First Respondent
DIRECTOR OF PUBLIC
PROSECUTIONS,
WESTERN
CAPE
Second Respondent
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
Third Respondent
DEVELOPMENT
ANNIKA
SLABBERT
Fourth Respondent
Neutral citation:
Wayne Anthony Wickham v Magistrate,
Stellenbosch and Others
[2016] ZACC 36
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mhlantla J, Musi AJ and Zondo J.
Judgment:
The Court
Decided
on:
25 October 2016
Summary:
Victims’ Charter — victim
impact statement — judicial discretion — Section 105A —
Criminal Procedure
Act — CPA — culpable homicide —
right to participate
ORDER
The following order
is made:
1.
The application for leave to appeal is
dismissed.
JUDGMENT
THE COURT (Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Musi AJ and Zondo J)
[1]
The applicant (Mr Wickham) seeks leave to
appeal against a judgment of the Western Cape Division of the High
Court (High Court),
dismissing an appeal from the Stellenbosch
Magistrates’ Court against the conviction and sentence of the
fourth respondent
(Ms Slabbert) on a count of culpable homicide. Mr
Wickham’s son was a passenger in a car driven by Ms Slabbert
and
was killed in the car accident that gave rise to the charge
against her. Underlying the application is the anxiety and
distress
caused to Mr Wickham by what he considers to be inadequate
regard given to his concerns as a parental victim of the crime.
[2]
The first respondent is the Magistrate,
Stellenbosch (Magistrate). The second respondent is the
Director of Public Prosecutions,
Western Cape (DPP). The third
respondent is the Minister of Justice and Constitutional Development.
[3]
Mr Wickham initially instituted a direct
application for leave to appeal to this Court (original application),
which was dismissed.
The reason was that it was not in the
interests of justice to hear the matter at that time because the
Supreme Court of Appeal,
which had jurisdiction, had not yet been
approached. Pursuant to this Court’s order, he applied
for leave to appeal
to the Supreme Court of Appeal through the
High Court and another application was brought directly to the
Supreme Court of Appeal.
In both instances leave to appeal
was denied.
[4]
Having exhausted all avenues, Mr Wickham
renewed his application to this Court. The facts remain
substantially the same as
in the original application.
Background
[5]
On the evening of 10 February 2012, a car
driven by Ms Slabbert collided with a stationary motor vehicle on the
R44 roadway outside
Stellenbosch.
Mr
Wickham’s
18-year-old son Cole, his
only child, was a passenger in Ms Slabbert
’
s
car.
Cole suffered severe head
injuries in the collision and died that night. The occupant of
the stationary car, Mr Jan-Hendrik
Matthee, also died as a result of
the collision. On that terrible night, no one informed Cole’s
parents of his death.
It was only after increasingly frantic
efforts to contact Cole that the Wickhams eventually learned that
their son was dead.
[6]
Mr Wickham obtained reports from two
accident reconstruction experts. Both experts concluded that Ms
Slabbert had been speeding,
and concluded that she had been driving
at 147-155 km/hour while the posted speed limit was 80 km/hour. The
reconstruction
indicated that the roadway was well-illuminated and
that Ms Slabbert would have had an unimpeded view for approximately
200 meters
prior to the collision.
In
Mr Wickham
’
s opinion, these were
significant aggravating factors with respect to Ms Slabbert
’
s
sentence and demonstrated that she had acted recklessly or, in the
alternative, with gross negligence.
[7]
It was not disputed that Ms Slabbert had
consumed a glass of wine before setting out and there was an empty
bottle of alcoholic
cider in her car. The car was also
overloaded, carrying six persons in total, one of whom sat on the lap
of the front seat
passenger.
In Mr
Wickham
’
s view, these factors also
demonstrated Ms Slabbert
’
s
recklessness.
[8]
The DPP charged Ms Slabbert with two counts
of culpable homicide. Mr Wickham regularly engaged with
the prosecution,
making available the reports of the accident
reconstruction experts and offering their testimony during the
proceedings. Mr
Wickham also made himself available to testify.
Later the prosecutor contacted him to ascertain whether he
would find a plea
and sentence agreement to be appropriate. He
opposed the intended agreement. When the prosecutor consulted
the widow
of Mr Matthee, she expressed her satisfaction with the
agreement.
[9]
On 2 May 2014, Mr Wickham
’
s
attorney met with the prosecutor in order to express Mr Wickham’s
objections to the plea and sentence agreement.
On
30
June
2014,
Mr
Wickham submitted written
representations to the DPP why the proposed sentence agreement was
inappropriate. On 3 July 2014,
Mr Wickham and his attorney met
with Advocate Galloway at the offices of the DPP. He again
voiced his objections to the plea
and sentence agreement. Advocate
Galloway expressed her misgivings whether a conviction could be
obtained without the plea
and sentence agreement. Mr Wickham
disagreed and explained what he perceived as strong aggravating
factors.
[10]
On 25 June 2014, in response to Mr
Wickham
’
s request for an opportunity
to address the court on the devastating consequences of Ms Slabbert
’
s
conduct, the DPP confirmed that Mr Wickham could draft an affidavit
“stating his objections/view on the sentence”
which would
be attached to the plea and sentence agreement. On 1 September
2014, however, the DPP informed Mr Wickham
that his affidavit would
not be attached because it did not properly qualify as a victim
impact statement. He suggested that
Mr Wickham be available to
testify should the court wish to hear him.
[11]
The parties appeared before the Magistrate.
The prosecutor placed on record that Mr Wickham was present in
court and willing
to testify. Mr
Wickham
’
s
attorney stated that he represented the immediate family of the
deceased and sought to hand up the victim impact statement. The
prosecutor contended that Mr Wickham had no standing and, unless the
court exercised its discretion in terms of section 105A(7)(b)(i)(bb)
of the Criminal Procedure Act (CPA),
[1]
was not entitled to hand up papers or address the court.
[12]
Ms Slabbert
’
s
attorney agreed that Mr Wickham lacked standing and objected to the
handing up of the victim impact statement. He contended
that
the document did not properly qualify as a victim impact statement
because it was primarily a discussion of the merits and
contained
facts inconsistent with the factual matrix relied on by the State.
The Magistrate concluded that Mr Wickham lacked
standing and
declined to accept the victim impact statement.
[13]
Ms Slabbert subsequently entered into a
plea and sentence agreement with the DPP in terms of section 105A of
the CPA. Pursuant
to the agreement, Ms Slabbert was sentenced
to a fine of R10 000 or 12 months
imprisonment,
which was conditionally suspended for three years. She was also
sentenced to serve 18 months
correctional
supervision. Ms Slabbert admitted her negligence in failing to
keep a proper lookout for other vehicles on the
road, and that a
reasonable person in her position would have foreseen that she might
cause a collision should she not take the
necessary care. She
further admitted that she could have avoided the collision had she
kept a proper lookout. Finally,
she admitted that she had
negligently and unlawfully caused the deaths of Cole and Mr Matthee.
High Court
[14]
Unhappy with the outcome, Mr Wickham
applied to the High Court for an order setting aside the conviction
and sentence of Ms Slabbert;
remitting the matter to the Magistrates’
Court at Stellenbosch for a new hearing before another presiding
officer.
Thus directing the new presiding officer and the DPP
to permit Mr Wickham to adduce evidence in aggravation of Ms
Slabbert
’
s sentence, including
testimony or a victim impact statement; and directing the DPP, in the
event of a conviction, to place before
the court evidence of the
aggravating circumstances, including inter alia the evidence of the
accident reconstruction experts.
[15]
The High Court dismissed Mr Wickham
’
s
application on two principal grounds. First, that he lacked
standing to have the plea and sentence agreement set aside.
Second,
that the Magistrate
’
s failure to
exercise his discretion in terms of section 105A(7)(b)(i)(bb) of the
CPA on whether to hear Mr Wickham
’
s
evidence or his victim impact statement could not be reviewed at the
instance of the applicant.
[16]
On the first ground, the High Court held
that prosecutors were obliged to give complainants an opportunity to
make representations,
but only where it was reasonable to do so in
light of all the circumstances relating to the offence, as well as
the interests of
complainants themselves. Failure to consult
with complainants or give them an opportunity to make representations
where reasonable
would be unlawful. In those circumstances, the
complainant would have standing in terms the Promotion of
Administrative Justice
Act.
[2]
Here, however, the DPP entered into the plea and sentence
agreement only after having given Mr Wickham an opportunity to
make
his voice heard, after having properly weighed the facts and
circumstances and without any misconduct, indolence or ineptitude.
In the High Court
’
s view, Mr
Wickham had been given a far more extensive opportunity to
participate than most victims. He thus lacked standing
to set
aside the plea and sentence agreement.
[17]
On the second ground, the High Court held
that the Magistrate had correctly declined to exercise his discretion
under section 105A(7)(b)(i)(bb)
of the CPA.
[18]
The High Court pointed out that victims are
not party to criminal proceedings and have no automatic right to
present evidence. It
found that Mr Wickham
’
s
victim impact statement mostly discussed the merits, and contained
facts inconsistent with the factual matrix agreed between the
DPP and
Ms Slabbert. The High Court held that facts presented during
the sentencing stage following a guilty plea must be
premised on the
factual matrix accepted by the State and the accused as set out in
the plea. Once the DPP and Ms Slabbert
had made the Magistrate
aware of the factual inconsistencies in Mr Wickham
’
s
evidence, the Magistrate correctly refused to receive it. The
High Court concluded that there was no irregularity in the
Magistrate
’
s conduct and his actions
were not susceptible to review.
[19]
The Court stated that it would have been
preferable, however, for the Magistrate to have “exercised some
degree of judicial
maturity, civility and empathy” to allow Mr
Wickham latitude to express his feelings at having lost his son,
provided this
could be done without infringing upon the rights of Ms
Slabbert.
[3]
In this Court
[20]
Mr Wickham’s submissions in this
application are substantively the same as in the original
application. He argues that
the High Court’s decision
sets a precedent that will undermine victims
’
rights
in terms of the Victims’ Charter in future criminal
proceedings. It therefore raises an arguable point of law
of
general public importance.
[21]
In the original application to this Court
the DPP opposed
the
application
on two grounds. First, the conviction and
sentence in a motor vehicle culpable homicide case raised neither a
constitutional
issue nor an arguable point of law of general public
importance. Second, there were no reasonable prospects of
success. There
was no reason to think that a new trial would
deliver a different result than the plea and sentence agreement,
rendering Mr
Wickham
’
s
application moot. Even assuming that a faster motor vehicle
speed could be proven at trial, speed is not necessarily indicative
or aggravating of negligence. The negligence here was Ms
Slabbert
’
s failure to keep a proper
lookout, and the plea and sentence agreement reflected her
culpability.
[22]
The DPP added that Mr Wickham
’
s
rights as a victim of crime were adequately addressed by his
extensive participation in the consultations and representations
preceding the plea and sentence agreement. He now effectively
seeks to dictate how the prosecutor should conduct the new
trial
sought. The
dominus litis
in criminal trials, however, is not the victim but the State. Even
if Mr Wickham were granted a new trial, the DPP would
still be free
to conduct the trial in whatever manner he or she saw fit. Ms
Slabbert opposed
Mr Wickham
’
s
application on similar grounds.
[23]
Mr Wickham’s application
substantively depends on the rights of victims contained in section 2
of the Victims’ Charter.
The Victims’ Charter is a
Charter of Rights adopted in terms of section 234 of the
Constitution,
[4]
which empowers Parliament to adopt Charters of Rights consistent with
the Constitution. The introductory sentence to the
rights in
the Charter states that “the following rights,
as
contained in the Constitution and relevant legislation
,
will be upheld during your interaction with the criminal justice
system”.
[24]
Section 2 provides as follows:
“
The
right to offer information:
·
You have the right to offer
information during the criminal investigation and trial.
·
The . . . prosecutor . . . will take
measures to ensure that any contribution that you wish to make to the
. . . prosecution . .
. is heard and considered when deciding on
whether to proceed with the . . . the prosecution. . . .
·
This right means that you
can
participate (if necessary and where possible) in criminal justice
proceedings, by attending the bail hearing, the trial, sentencing
proceedings
and/or Parole Board
hearing.
·
It means that you will have the
opportunity to make a further statement to the police if you realise
that your first statement is
incomplete.
You
may also, where appropriate, make a statement to the court or give
evidence during the sentencing proceedings to bring the impact
of the
crime to the court’s attention.”
[25]
As seen and emphasised above, section 2 of
the Victims’ Charter confers a general “right to offer
information during
the criminal investigation and trial” and
states that victims “can participate (if necessary and where
possible) in
criminal justice proceedings, by attending…the
trial [and] sentencing proceedings”. It also states that
victims
may “
where appropriate
,
make a statement to the court or give evidence during the sentencing
proceedings to bring the impact of the crime to the court
’
s
attention”.
[26]
In his papers Mr Wickham states that the
Magistrate’s rulings, in regard to both the victim impact
statement and his proposed
oral evidence, were grossly irregular and
constituted a denial of his rights as a victim to participate in the
proceedings. It
is, however, clear from the language contained
in section 2 of the Victims’ Charter that these rights are not
absolute. The
Victims’ Charter confers neither standing,
nor an unqualified right to give evidence or hand up papers, nor a
right to be
heard on demand.
[27]
A victim’s right to participation in
the sentencing proceedings in relation to the plea and sentencing
agreement must be read
with section 105A of the CPA, which deals
specifically with plea and sentencing agreements and includes the
rights of the victim
to participate in the process. Relevant to
the specific facts of this case are section 105A(1)(b)(iii) and
section 105A(7)(b)(i)(bb)
of the CPA, which the High Court took
pains to analyse in depth before coming to the conclusion that it
did.
[28]
With regard to the above, quoting
Du
Toit
the High Court noted that—
“
Section
105A(1)(b)(iii) provides that a prosecutor may enter into an
agreement contemplated in s 105A(1)(a) after affording the
complainant (or his representative) an opportunity of making
representations to the prosecutor. This requirement is qualified by
the words where it is reasonable to do so and taking into account the
nature of and circumstances relating to the offence and the
interests
of the complainant.”
[5]
It came to the
conclusion that the prosecutor is obliged to give the victim an
opportunity to make representations, but the prosecutor
is not
obliged to agree with the victim.
[29]
Mr Wickham’s rights as a victim were
duly addressed through the extensive participation that he was
afforded by the prosecutor
throughout the duration of the
prosecution. There is no reason to disagree with the High
Court
’
s reasoning and decision on
this point.
[30]
As to Mr Wickham’s right to place
evidence before the court relating to aggravating circumstances in
respect of the case,
section 105A(7)(b)(i)(bb) of the CPA provides as
follows:
“
(a)
If the court is satisfied that the accused admits the allegations in
the charge and that he or
she is guilty of the offence in respect of
which the agreement was entered into, the court shall proceed to
consider the sentence
agreement.
(b)
For purposes of paragraph (a), the court—
(i)
may—
(aa)
direct relevant questions, including questions about the previous
convictions of the accused,
to the prosecutor and the accused; and
(bb)
hear evidence, including evidence or a statement by or on behalf of
the accused or the complainant
. . . .”
[31]
What is clear from this text is that the
exercise of the victim’s right to place evidence before the
court (either through
a statement or by oral evidence) is wholly
within the court’s discretion.
[32]
The prosecutor gave Mr Wickham the
opportunity to do this by requesting a victim impact statement which
he undertook to attach to
the plea and sentencing agreement.
However, Mr Wickham prepared a victim statement which dealt
with the merits of the case
based on facts that were inconsistent
with the factual matrix agreed upon by the State and the accused in
the plea and sentencing
agreement. As a result, his statement
was not placed before the Court. In light of this, the
prosecutor then offered
Mr Wickham the opportunity to be present at
the sentencing proceedings in order that he may be given an
opportunity to adduce oral
evidence.
[33]
During the proceedings, the Magistrate was
made aware of the factual inconsistencies with Mr Wickham’s
statement by the accused’s
attorney and exercised his
discretion to refuse the statement. There is nothing on record
to show that the Magistrate improperly
exercised this discretion.
The court proceedings leading to Ms Slabbert’s
conviction and sentence were lawful,
proper and just.
[34]
The loss of a child is a terrible and
difficult one to bear. The situation the applicant finds
himself in commands our sympathy
and respect. We endorse the
High Court’s observation that the Magistrate of the trial
court could have exercised
some degree of judicial maturity, civility
and empathy to allow Mr Wickham latitude to express his feelings at
having lost his
son, provided this could be done without infringing
upon the rights of Ms Slabbert.
Order
[35]
The
application for leave to appeal is dismissed.
[1]
51 of 1977
[2]
3 of 2000.
[3]
Wickham v Magistrate, Stellenbosch and Others
[2015] ZAWCHC 152
;
2016 (1) SACR 273
(WCC) at para 92.
[4]
Section 234 provides that: “[i]n order to
deepen the culture of democracy established by the Constitution,
Parliament may
adopt Charters of Rights consistent with the
provisions of the Constitution.”
[5]
See above n 3 at para 52.