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[2015] ZAWCHC 152
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Wickham v Magistrate, Stellenbosch and Others (20899/14) [2015] ZAWCHC 152; 2016 (1) SACR 273 (WCC) (14 October 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 20899/14
DATE:
14 OCTOBER 2015
REPORTABLE
In
the matter between:
WAYNE
ANTHONY
WICKHAM
...........................................................................................
Applicant
And
THE
MAGISTRATE,
STELLENBOSCH
.................................................................
First
Respondent
THE
DIRECTOR OF PUBLIC
PROSECUTIONS,
.............................................
Second
Respondent
WESTERN
CAPE
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
.................................
Third
Respondent
DEVELOPMENT
ANNIKA
SLABBERT
...............................................................................................
Fourth
Respondent
JUDGMENT:
14 OCTOBER 2015
Coram:
Veldhuizen, J
et
Henney,
J
HENNEY,
J:
Introduction
[1]
This is an application wherein the applicant seeks an order:
1.1
reviewing and setting aside the conviction and sentence imposed by
the First Respondent on the Fourth Respondent in the Magistrate’s
Court Stellenbosch on 19 September 2014 under case no: A125/2014;
1.2
remitting the matter to the Magistrate’s Court at Stellenbosch
for hearing
de novo
before another presiding officer;
1.3
directing the Second Respondent and the Magistrate who presides in
the resumed proceedings to permit the Applicant to adduce
evidence in
aggravation of sentence, including, but not limited to:
1.3.1
the applicant testifying in aggravation of sentence and providing an
oral victim impact statement and/or;
1.3.2
the applicant submitting to court a written victim impact statement;
and
1.4
directing the Second Respondent, in the event of a conviction in the
resumed proceedings, to place before the court evidence
of the
aggravating circumstances relevant to the offence, including, but not
limited to, the evidence of the accident reconstruction
experts, Prof
T P Dreyer (“Dreyer”) and Mr S Bezuidenhout
(“Bezuidenhout”), who have compiled these reports,
dated
31 October 2012 and 12 August 2013 respectively, in respect of the
collision.
[2]
Adv Webster SC appeared for the Applicant. Adv Downer SC
together with Adv Galloway appeared for the Second Respondent.
There
was no appearance for the First and Third Respondents and they abided
the decision of this court. Adv Botha appeared
for the Fourth
Respondent.
Background
[3]
On 10 February 2012, the Applicant’s 18 year old son, Cole, was
a passenger in a vehicle driven by the Fourth Respondent.
The
vehicle driven and owned by the Fourth Respondent, a Toyota Yaris
(“Toyota”), with registration number [CA……..],
at or near Nietvoorbij Farm on the R44, collided with a stationary
motor vehicle, a Ford Sapphire (“Ford”) with registration
number [CL……..]. Apart from the Applicant’s
son and the Fourth Respondent, there were 4 other persons
in the
vehicle. As a result of the collision, the Applicant’s
son was injured and subsequently passed away. An occupant,
one
Jan-Hendrik Matthee, in the Ford, into which the Fourth Respondent’s
car collided was also injured and later died.
The Second
Respondent charged the Fourth Respondent in the Magistrate’s
Court at Stellenbosch with 2 counts of culpable homicide
arising out
of the incident.
[4]
The Fourth Respondent entered into a plea and sentence agreement with
the Second Respondent in terms of the provisions of section
105A of
the Criminal Procedure Act 51 of 1977 (“the Act”) on both
counts. In the plea and sentence agreement the Fourth
Respondent
admitted that she was negligent based on the fact that while she was
driving, she was chatting with her friends and
did not give the
necessary attention or keep a proper lookout for other vehicles on
the road. She then suddenly noticed a
stationary vehicle, the
Ford , in front of her vehicle, parked on the road surface. She
attempted to swerve and tried to
stop, but the presence of vehicles
in the neighbouring lane prevented this.
[5]
As a result of this, she collided with the Ford. She further
admitted that the Applicant’s son, Cole, as well as
Jan-Hendrik
Matthee, the driver of the Ford, sustained several injuries which
resulted in them passing away. She admitted
that a reasonable
person in her position would have foreseen that he/she might cause a
collision should he/she not take the necessary
care. She
further admitted that had she given the necessary attention and kept
a proper lookout, she could have avoided the
collision and that she
thus caused the death of the deceased unlawfully and negligently.
[6]
In the sentencing agreement between the parties, Second and Fourth
Respondents agreed on the following aggravating factors:
1)
Two persons lost their lives due to the
Fourth Respondent’s negligence: Cole Anthony Wickham, who
was a young man in
the prime of his life, and Jan-Hendrik Matthee,
who was a married man with a family.
2)
The effect of the Fourth Respondent’s
negligence had a negative effect on the lives of the families of the
deceased.
3)
Several other persons (in the vehicle of
the accused and the deceased) were exposed to danger, due to the
negligence of the accused.
4)
The prevalence of crimes where the use of a
motor vehicle plays a role, i.e. collisions and the death of road
users, are increasing
in the jurisdiction of the court.
5)
The Second and Fourth Respondents agreed on
the following mitigating factors:
(a)
The Fourth Respondent is 23 years old and
has passed Grade 12 at school. She has obtained a BA degree in
Social Dynamics (2009
– 2011) and a post graduate diploma in
marketing (BCom 2012), as well as a further post graduate diploma in
2013.
(b)
She is employed as an Accounts Manager at a
marketing agency and earned R8 970,00 per month. She is
single and has no
children. She had no previous convictions.
(c)
She received psychiatric treatment as a
result of the incident and the guilt she carries in that her conduct
led to the death of
two people. She also developed post
traumatic depression and almost stopped her studies. Her
psychological recovery
was delayed due to several blaming messages
and comments put on her Facebook page by the family and friends of
the deceased, to
the extent that she eventually shut her page down.
(d)
She admitted the seriousness of the crimes
and has remorse and thus pleaded guilty. Her remorse is such
that she still has
to this day (day of sentence) strong feelings of
guilt.
[7]
The Second and Fourth Respondents agreed that both charges be taken
as one for the purposes of sentence and the court imposed
a sentence
of eighteen (18) months’ correctional supervision in terms of
the provisions of Section 276(1)(h) of the Act,
subject to certain
conditions which I omit because it is not relevant to the issues to
be decided. In addition to this sentence
a further sentence of
a fine of Ten thousand rand (R10 000,00) or twelve (12) months’
imprisonment, which sentence was
wholly suspended for a period of
three (3) years on condition that the accused is not convicted of
culpable homicide in respect
of which negligent driving of a motor
vehicle is an element, committed during the period of suspension.
It is common cause
that the Applicant was informed by the Second
Respondent about the fact that it intended to enter into a plea and
sentence agreement
with the Fourth Respondent. The Second Respondent
also informed the Applicant of and gave him a copy of the proposed
Plea and Sentence
Agreement.
The
Applicant’s Complaint
[8]
The Applicant, in representations made to the Second Respondent and
in this court, argued that the Plea and Sentence Agreement
was unjust
and not in the interests of justice on the following grounds:
a)
That as parents of Cole, they objected to
the proposed plea and sentence agreement;
b)
That it failed to address the extent of the
negligence on the part of the Fourth Respondent, and to properly
acknowledge the speed
at which the Fourth Respondent had driven and
the severity of the collision; and
c)
That the personal circumstances of the
Fourth Respondent had been over-emphasized, particularly if regard
was had to the fact that
she had not shown any remorse or accepted
the seriousness of her actions.
[9]
The Applicant further states that they pertinently stated at the
time, when the court was called upon to consider whether the
proposed
sentence was in the Plea and Sentence Agreement and before it be
accepted by the court, that it was their request that
at least he or
his wife be granted the opportunity to address the court on the
devastating consequences the conduct of the Fourth
Respondent had on
the family and would continue to have for the rest of their lives.
[10]
He further stated that on 3 July 2014, he, together with his
attorney, met with Adv Galloway of the offices of the Director
of
Public Prosecutions (“DPP”). He once again voiced
his objections to the Plea and Sentence Agreement. Adv Galloway
expressed her misgivings about taking the case on trial and obtaining
a conviction in the absence of a plea and sentence agreement.
Applicant said he disagreed and indicated that there was a strong
case to prove reckless conduct on the part of the Fourth Respondent.
Applicant said, based on the contents of the docket, the recklessness
of the Fourth Respondent is based on the following:
10.1
A Constable Rinquest said that he had
ascertained from the passengers of the Ford (stationary vehicle) that
the Toyota driven by
the Fourth Respondent had approached at speed.
10.2
The Fourth Respondent had explained to the
police that she had not seen the Ford in the road ahead of her.
She attempted to
apply brakes but the vehicle collided with the rear
of the stationary vehicle.
10.3
Although the police could not discern whether the Fourth Respondent
had been under the influence of alcohol,
he found a Smirnoff Storm
bottle in the right rear door of the vehicle.
10.4
Constable Rhodes, who also attended the
scene, had been advised by the occupants of the Ford after they had
left the vehicle “
toe kom ’n
voertuig vinnig in hulle rigting aangejaag en stamp hulle voertuig in
die linker kantse baan
”.
10.5
The same Constable Rhodes had been advised
by the Fourth Respondent that she had not seen the vehicle in the
road ahead of her and
had tried to brake, but had to swerve, and had
struck the Ford from behind. Rhodes was also unable to
determine whether the
Fourth Respondent had been under the influence
of liquor but confirmed that he found an empty Smirnoff Storm bottle
in the right
rear door of the vehicle.
10.6
The Applicant also referred to a statement
of the wife, Theresa, of the other deceased. She stated that
the second deceased
had been the driver in the Ford. He had
stopped at the road side, passengers had left the vehicle, leaving
the deceased behind
the wheel, with the engine running, the driving
lights and hazards activated.
10.7
The Applicant further contends that the
Second Respondent in concluding the Plea and Sentence Agreement
ignored crucial evidence,
relating to the likely dynamics of the
collision, certain expert accident-reconstruction witnesses, which
experts he had made available
to the prosecution with a view to
assisting them in their case.
10.8
The
Applicant contends that both experts, Dreyer and Bezuidenhout
concluded that prior to the collision the Fourth Respondent had
driven her vehicle well in excess of the prevailing speed limit of
80km/h. According to the Applicant, Dreyer concluded that
the
likely speed of the Toyota at the time of the collision with the Ford
had been approximately 130km/h on the basis of the coefficient
of
friction of 0,5
[1]
.
Applying unrealistically conservative friction coefficients of 0,4
and 0,3, he determined the respective speeds of the Toyota
driven by
the Respondent at the time of the impact to have been 118 km/h and
102 km/h.
10.9
Bezuidenhout on the
other hand found the coefficient of friction utilized by Dreyer to be
conservative and concluded that the speed
of the Toyota at the time
of the collision might have been as much as 163km per hour based on
the same calculations of Dreyer but
utilizing a different coefficient
of friction.
10.10
The Applicant with
the help of the experts took steps to determine the actual
coefficient of friction of the roadway in question
and after certain
tests were conducted on the road surface of the scene. After
determining the actual coefficient of function
to be 1.00 and
utilizing it in certain calculations it was indicated that the speed
of the Toyota prior to the collision was between
147 and 155km per
hour.
10.11
The Applicant
asserted that as a result of these expert calculations as well as
eye-witness accounts it was clear that the Toyota
that was driven by
the Fourth Respondent had been driven at a speed well in excess of
the speed limit prior to the collision.
The Applicant alleges
that it is also clear from the reconstruction that the section of the
roadway had been well illuminated by
proper lights and that the
approach to the stationary Ford vehicle would have offered the Fourth
Respondent a clear and unimpeded
for a considerable distance of
200m. The measurements and the width of the roadway also
indicated that there would have been
sufficient space for the Fourth
Respondent to safely overtake the Ford had she kept a proper lookout.
10.12
The Applicant alleged
that in the light of the above, the facts established that the Fourth
Respondent had been reckless or at least
in the alternative grossly
negligent in the manner in which she drove. He further alleged
not only did she drive at a speed
well in excess of the speed limit,
she also failed to keep a proper look out whilst driving an
overloaded vehicle, in circumstances
in which she had ample
opportunity to have avoided colliding with the Ford.
[11]
According to the Applicant these significant aggravating factors, as
well as the Fourth Respondent’s lack of demonstration
of
remorse, should have been placed before the court dealing with this
matter as they would have impacted significantly on the
sentence the
court would have imposed. It had been incumbent on the prosecutor
dealing with this matter to have placed these matters
before court.
However, in the proposed plea and sentence agreement there had been
no reference at all to the speed at which
the Toyota was travelling
before the collision, or to the Fourth Respondent’s failure to
demonstrate remorse to the family
of the first deceased.
[12]
The Applicant submits that he had been engaged through his legal
representatives with the prosecutor at an early stage and
had done so
continuously until the court proceedings on 19 February 2014, wherein
the Fourth Respondent had been convicted on the
basis of a plea and
sentence agreement.
[13]
During this time of interaction with the prosecuting authorities, he
had made available the reports of the reconstruction experts
and had
offered their testimony as state witnesses and he also made himself
available to testify. Following a protracted
investigation, the
Second Respondent eventually made a decision on 26 October 2013 to
prosecute the Fourth Respondent on two charges
of culpable homicide,
alternatively, reckless / negligent driving.
[14]
On 9 April 2014 he was contacted by a prosecutor at Paarl Regional
Court to enquire whether he and his wife would find a plea
and
sentence agreement to be a suitable mechanism for disposal of the
proceedings. The Applicant made it clear to the prosecutor
who
contacted him that they did not approve such a course of action.
Despite their objections it became apparent that the
plea and
sentence agreement was being pursued and the Applicant’s
attorney arranged to meet with the prosecutor in order
to further
advance these objections.
[15]
The Applicant submits that he objected to such measures for the
following reasons. No reference at all was made in the
proposed
agreement to the speed that the Fourth Respondent had travelled prior
to the accident. Furthermore, the sentence
proposed and
eventually imposed was nothing more than a slap on the wrist in
circumstances where their son had lost his life and
the plea and
sentence agreement did not take into account the seriousness of the
offence and the manner in which it had been committed.
Furthermore, at that stage the Fourth Respondent had not taken
responsibility for her actions (and up to this point has still not
done so) and that no effort had been made to contact him and his wife
regarding their son’s death, which had led them to
having to
find his body in the Stellenbosch morgue through their own efforts.
This prompted the Applicant and his wife to
make written
representations to the Second Respondent wherein they expressed their
opposition to the proposed plea and sentence
agreement on the grounds
as set out earlier.
[16]
The Applicant and his wife made a further request that at least one
of them be granted the opportunity to address the court
that would be
dealing with the plea and sentence agreement on the devastating
consequences the conduct of the Fourth Respondent
had had on their
family and the rest of their lives, when it considered whether the
sentence in the agreement was fair and just.
Despite an initial
understanding between the Second Respondent and the Applicant that
the latter would draft a victim impact statement
stating his and his
wife’s objections to the plea and sentence agreement, they were
advised on 1 September 2014 that the
Second Respondent had taken a
view that the Applicant’s representations were not in
accordance with the facts in the docket
and that their objections as
set out in the affidavit would not be attached to the section 105A
agreement for consideration.
On this point the Second
Respondent stated that the statement did not qualify as a proper
victim impact statement, and it suggested
that the Applicant be
available to testify should the court wish to hear them. This
statement was never received by the court
and did not form part of
the plea and sentence proceedings. The Applicant was also not
given an opportunity to testify at
the proceedings.
[17]
According to the Applicant he and his wife as victims were ultimately
denied the right to participate in the plea and sentence
proceedings
before the First Respondent despite their eagerness to exercise their
right to do so. During the proceedings
on 19 September 2014,
before the First Respondent, it was made clear from the outset that
the First Respondent and his wife were
opposed to the plea and
sentence agreement. It was also placed on record by the
prosecutor in court that the Applicant was
present and willing to
testify should the First Respondent exercise a discretion in terms of
section 105A(7)(b)(i)(bb) of the Act.
During the proceedings
the Applicant’s attorney made the First Respondent aware of his
presence. He was given an opportunity
to inform the court that
he represented the victims of the accused in court and that he sought
to exercise his client’s rights
in terms of the Victim’s
Charter and sought to hand in a victim impact statement on behalf of
the Applicant.
[18]
Both the prosecution as well as the Fourth Respondent’s
attorney were of the view that the Applicant had no standing
in the
proceedings and was not entitled to hand up papers or address the
court. The Fourth Respondent’s attorney took
the view
that he could not allow the affidavit to be handed in and that the
document was not purely a victim impact statement but
that the
majority of the contents consisted of issues relating to the merits.
[19]
The Applicant contends that the prosecution committed the following
gross irregularities:
(a)
Despite having
a duty to do so, it failed to address in the plea and sentence
agreement the significantly aggravating factor that
the Fourth
Respondent had travelled at an excessive speed significantly higher
than the speed limit;
(b)
It failed to
attach the victim impact statement to the plea and sentence agreement
after it had previously undertaken to do so.
(c)
It adopted a
view in the proceedings before the First Respondent which actively
sought to exclude the Applicant’s participation
in the
proceedings as a victim.
[20]
In relation to the First Respondent, the Applicant submits that he
committed the following gross irregularities during the
proceedings:
(a)
He decided
that the Applicant had no
locus
standi
to
participate in the proceedings as a victim who had such a right in
terms of the Victim’s Charter;
(b)
He failed to
request sight of the victim impact statement despite being aware that
the Applicant and his wife objected to the plea
and sentence
agreement, which resulted in him being uninformed of the impact of
the crime on the victims.
(c)
He failed to
exercise his discretion in terms of section 105A(7)(b)(i)(bb) to hear
the evidence of the Applicant or his wife despite
being aware of the
fact that they strongly objected to the sentence being imposed and
the Applicant was present in court to testify.
(d)
He concluded
that the sentence agreement was just in the absence of hearing the
objections and evidence regarding the impact of
the crime on the
victims, which meant he was not in a position to satisfy himself that
the sentence was just.
[21]
The Applicant further submitted that the Fourth Respondent’s
conduct in seeking to exclude the Applicant’s participation
in
the proceedings was improper and misdirected. The Applicant
further submits that the characterization by the Fourth Respondent
of
the victim impact statement that he sought to be handed in as
consisting merely of issues relating to the merits and that it
contained untruths was not an accurate portrayal thereof.
[22]
The Applicant submits that the statement merely contains an
expression of his outrage at the proposed plea and sentence agreement
in the light of the enormity of the loss of their son and the
devastating impact it had on their lives. This was part of
an
attempt by the Applicant to initiate a full and proper enquiry into
the circumstances of the offence and in the light of these
circumstances as indicated also to show that the propose sentence was
wholly inadequate.
The
Respondents’ Case (Second and Fourth Respondents)
[23]
Both the Second and Fourth Respondents contend that the Section 105A
proceedings before the Magistrate were not irregular.
The
Fourth Respondent also raised the following points in limine.
These are:
23.1That
the Section 105A proceedings are not reviewable;
23.2
That, in the
event of the Court finding the Section 105A proceedings to be
reviewable, the Applicant has no
locus
standi
to
bring this application (the Second Respondent also raised this point
in limine
);
and
23.3
That the
Applicant’s failure to join Mrs Matthee, the widow of the other
deceased, to these proceedings amounted to non-joinder.
[24]
Mr Botha for the Fourth Respondent argued that for the court to find
that the Applicant has
locus standi
,
the Applicant would have to make out a case that he has a direct and
substantial interest in the right that is the subject matter
of the
review. The difficulty according to Mr Botha that the Applicant
has, is that if he has a direct and substantial interest
in the
issues involved and the order which the court might make, so too
would Mrs Matthee, the widow of the deceased in count 2.
She
should therefore have been joined as a party to these proceedings.
I will deal with these aspects at a later stage, and
also with the
submissions made by Mr Botha with regards to these issues in section
105A proceedings.
The
Respondents’ argument regarding the merits of the application
[25]
The Second Respondent
contends that it became involved in this matter when the Applicant
filed representations that Fourth Respondent be charged with
murder
in the High Court. He submits that after having considered the
available evidence in the docket, the applicable case
law and the
representations made on behalf of the Applicant, it was decided not
to accede to the representations to prosecute the
Fourth Respondent
on murder charges but rather to charge the Fourth Respondent on
culpable homicide charges.
[26]
It was later brought to the attention of the Second Respondent by the
prosecutor in the lower court that negotiations in terms
of Section
105A of the Act were being considered between the prosecutor and
Fourth Respondent. As a result of this, in terms
of the
provisions of Section 105A(1)(b) of the Act both the Applicant and
Matthee’s widow were informed of the terms of the
agreement.
[27]
The Second Respondent denies that it or the First Respondent
committed any irregularities and any submissions to that effect
are
without merit.
[28]
Regarding the question whether the Fourth Respondent was reckless or
grossly negligent, due to the fact that the Fourth Respondent
drove
at a speed in excess of the speed limit, the Second Respondent
submitted the following:
a)
3
contradictory expert reports contained in the docket rendered proof
of speed questionable.
b)
No
eye-witnesses indicated in their witness statements that the Fourth
Respondent was speeding.
c)
The Fourth
Respondent did not and would not agree to include it as an
aggravating factor. The prosecution were informed by
the
attorney of the Fourth Respondent that she had her own expert who
disagreed with the state experts. As such, under the
circumstances, speed could not have been included in the agreement.
d)
The
prosecutor’s only choice was then, if it was thought to be
important to prove speed, to abandon the plea agreement and
proceed
to trial, during which the contradictory experts could testify.
The court’s likely answer on this issue after
a trial could not
reasonably be estimated from the docket particularly in the light of
the above.
e)
Based on
relevant case law and authority driving a vehicle at speed does not
constitute gross negligence, let alone recklessness.
Given the
circumstances of this case, a finding that the Fourth Respondent was
driving in excess of the speed limit would not have
significantly
affected the sentence even though it might be considered more
aggravating than if she had not been speeding.
Such a finding
however would ultimately not have been a weighty factor for the
purposes of either conviction and sentence.
f)
Given all the
circumstances, the advantages to the prosecution, the victims and the
public interests in securing a conviction and
appropriate sentence
and in avoiding a protracted trial and public acquittal convincingly
outweighed the minor disadvantage of
not testing the evidence
regarding possible speeding.
[29]
The Second Respondent argued that whilst the Applicant is of the view
that the facts established recklessness or in the least
gross
negligence and that Fourth Respondent’s negligence should have
been expressed as such in the plea and sentence agreement,
the fault
required for culpable homicide is negligence and that it is not
necessary or correct to express the element of negligence
for the
purpose of the charge or conviction in any other way.
[30]
The Second Respondent further takes issue with the contention of the
Applicant that the Fourth Respondent failed to demonstrate
remorse to
the Applicant and his family over the death of their son, Cole.
According to the Second Respondent, the remorse
that the Fourth
Respondent exhibited in her plea and sentence agreement was
manifested in many forms: she had to seek therapy,
her studies
were affected and she also pleaded guilty, and she did not seek to
blame the deceased Matthee for parking on a public
road at night or
that his lights were off. According to Second Respondent the
Fourth Respondent’s apparent lack of
remorse in her not
directly contacting the Applicant or his family to inform them about
his son’s death, as contended by
the Applicant, is without any
foundation. This is because this accusation of the Applicant
ignores the fact that the Fourth
Respondent and Cole were strangers
who only met that evening. This alleged failure, given the
facts and circumstances of
this case, in any event remains a neutral
factor which would not have played any significant role in the
evaluation of remorse.
[31]
Regarding the fact that the vehicle was overloaded, the Second
Respondent argued that there was no evidence that this fact
in fact
contributed to the accident or that it should play a part in
assessing the moral blameworthiness of the Fourth Respondent.
[32]
In answer to the allegations that the Second Respondent failed to
attach the victim impact statement to the plea and sentence
agreement, the Second Respondent argued that the contents thereof
contained inadmissible opinion evidence based on hearsay.
Despite these facts being brought to the attention of the Applicant,
he insisted that the statement be handed in. It was
for this
reason that the Second as well as the Fourth Respondent would not
consent to its admission into evidence. The Second
Respondent
could therefore not legally attach the statement to the plea and
sentence agreement in the face of the objections by
the Fourth
Respondent, even if it wanted to.
[33]
The Second Respondent argues that in the absence of the statement
which the Applicant wanted to present, the evidence admitted
in the
plea and sentence agreement relating to the impact the crime had on
the victim, namely, that the lives of the families of
the deceased
were negatively affected by the loss of the deceased, who was
accurately described as a young man in the prime of
his life, were
placed before the court for consideration.
[34]
The Second Respondent further argued that the Applicant’s
contention that significant evidence in aggravation was ignored
is
unfounded. The Second Respondent implored this court seized
with the review to judge whether the trial court should have
convicted the Fourth Respondent on the agreed basis and whether the
agreed sentence is just.
[35]
The Second Respondent referred to case law
[2]
involving more serious cases of culpable homicide involving motor
vehicles where the courts properly considered under which
circumstances
custodial sentences would be appropriate. It was
clear that only in cases involving negligence of a greater degree of
seriousness
than the present case, were custodial sentences
considered to be appropriate.
[36]
The Applicant, according to the Second Respondent, was not denied the
opportunity of presenting a statement for the purposes
of the
finalization of the plea and sentence agreement, but due it’s
containing inadmissible content, it could not be used.
[37]
The Second Respondent further contends that even if the First
Respondent did exercise his discretion either to admit the statement
of the Applicant or to hear his or his wife’s evidence, the
evidence relating to speed would not have altered the sentence,
and
the other additional factors relating to overloading, lack of
demonstrating remorse and the attempt to show that the Fourth
Respondent was reckless or grossly negligent are so utterly baseless
that the Magistrate would inevitably have discounted them.
[38]
Furthermore, the additional details that the Magistrate would have
heard about Cole’s character or qualities, the devastating
effects the death of Cole had on his family, although relevant, could
not affect the appropriate sentence, the Second Respondent
argued.
According to the Second Respondent the magnitude of the tragedy
resulting from the negligence should not be allowed
to obscure the
nature of the crime which was that of negligence as pointed out in
case law
[3]
. The court
would inevitably have found the sentence to be just.
[39]
The Second Respondent also contends that the Applicant has no general
locus standi
to seek to review the criminal proceedings in this matter. The
Second Respondent relies on the dictum in
Jacobs
en ‘n Ander v Waks en Andere
[1991] ZASCA 152
;
1992
(1) SA 521(A)
at 533J – 534C)
.
According to the Second Respondent, the
Applicant has no such general interest in either the trial or the
outcome thereof and cites
the following as reasons for its view:
(a)
Criminal
litigation is conducted between the State and the persons accused.
Applicant is not and has never been a party to
the proceedings.
(b)
The litigation
has been finalised between the parties who do have such a general
locus standi;
(c)
Applicant’s
general dissatisfaction and/or disagreement with the result of the
trial which has been finalised do not afford
him locus standi to seek
to contest the merits of the result.
[40]
Any
locus standi
,
so the Second Respondent holds, that the Applicant may have is
limited to the narrow issue of whether the prosecutor failed to
afford him the opportunity to make representations to the prosecution
in terms of Section 105A (1)(b)(ii) of the Act before entering
into
the plea agreement. The Second Respondent submits that he had
ample opportunity to do so, he did so and such was seriously
considered before entering into the agreement.
[41]
The Second Respondent points out that the fact that the complainants
or family members of deceased complainants do not have
general
locus
standi
to contest the merits of plea
agreements is in accordance with the prosecutor’s role
otherwise in criminal proceedings.
The prosecutor is dominus
litis regarding what charge to prefer, what plea to accept and on
what basis, what evidence to lead and
what sentence to suggest to the
court. According to the Second Respondent, the fact that it
made a decision with which the
Applicant does not agree is thus
neither a gross irregularity nor grounds for review.
[42]
The Second Respondent contends that the relief the Applicant seeks
should for the above reasons advanced be therefore dismissed.
[43]
Aside from raising the point that the Section 105A proceedings are
not reviewable at the instance of the Applicant, as well
as the fact
that the Applicant has failed to join the widow of the second
deceased, Mrs Matthee, the Fourth Respondent for reasons
similar to
that which were advanced by the Second Respondent, argues that the
relief that the Applicant is seeking cannot be granted
on the grounds
advanced by him.
[44]
The Fourth Respondent contends that the Section 105A proceedings are
not subject to a review in the ordinary course in terms
of the
provisions of Section 302
[4]
of
the Act, or a review as contemplated in terms of Section 304(4)
[5]
of the Act. It can also not be a review contemplated by
section
22
of the
Superior Courts Act, no 10 of 2013
which provides;
“
22. Grounds
for review of proceedings of Magistrates’ Court.
—
(1) The
grounds upon which the proceedings of any Magistrates’ Court
may be brought under review before a court
of a Division are—
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
(2) This
section does not affect the provisions of any other law relating to
the review of proceedings in Magistrates’
Courts.”
[45]
Fourth Respondent submits that
Section 22
, read together with rule 53
of the Uniform Rules of Court, as was held in the cases of
Narodien
v Andrews
2002(3) SA 500 (C), at
506D-E;
S v Williams
2005(2)
SACR 290 (C), at p.296, par [23];
S v
Singh
2013 (2) SACR 372
(KZD), at p.376
par. [20] clearly contemplates a review brought at the instance of
one of the parties to the proceedings sought
to be reviewed.
This submission is underscored by the fact that the power to
institute criminal proceedings as contemplated
by section 179 of the
Constitution vests in the National Prosecuting Authority, who is the
only authority to institute and conduct
criminal proceedings on
behalf of the State. The Fourth Respondent as such is of the
view that criminal litigation is conducted
by the State against
person(s) charged with a criminal offence and complainants (or their
families) are not parties to criminal
proceedings. For these
reasons the Fourth Respondent further submits that Section 22 of the
Superior Court’s Act is
not applicable.
[46]
The Fourth Respondent further submitted that although it has been
held in certain cases
[6]
that
the powers of review conferred upon a High Court by
Section 22
of the
Superior Courts Act sho
uld be interpreted in the light of the more
comprehensive powers in
section 173
[7]
of the Constitution, there is a general reluctance by our courts to
exercise their inherent powers to intervene, and that such
inherent
powers should be exercised sparingly and only in the most exceptional
cases, where grave injustice would otherwise result
[8]
.
[47]
No such case, so the Fourth Respondent submits, has been made out by
the Applicant. Fourth Respondent submits to the
contrary there
is a likelihood of a grave injustice to the Fourth Respondent, given
the fact that the matter has already been finalized
and she has
served a substantial portion of her sentence. Alone on the grounds
therefore that these proceedings are not reviewable,
these
proceedings fall to be dismissed.
[48]
The Fourth Respondent also argued that the Applicant has no
locus
standi
. Even if it is accepted
for purposes of argument that the Applicant does have
locus
standi
based on the provisions of
section 105A(1)(b)(iii), he does not have
locus
standi
to apply for an order to review
and set aside the conviction and sentence. This is particularly
so because the Applicant
as complainant is not a party to these
proceedings.
[49]
The Fourth Respondent also argued that there was compliance by the
Second Respondent with the provisions of section 105A(1)(b)(iii).
[50]
Section 105A(7)(b)(1) gives the Magistrate the discretion to hear
further evidence or to receive a statement on behalf of the
complainant or accused but does not entitle the complainant as of
right to partake in the section 105A proceedings. Furthermore,
the complainant’s involvement is limited to presenting evidence
as opposed, to partaking in, the Section 105A proceedings.
The
First Respondent’s decision therefore not to hear evidence and
to deny the Applicant’s participation in the proceedings
was
not irregular and was clearly a correct decision.
[51]
Issues for Consideration
The
primary issues for consideration in this matter are the following:
(a)
Whether the
Applicant has the necessary
locus
standi
to
bring this application;
(b)
Whether this
matter can be subjected to review;
(c)
Non-Joinder of
Mrs Matthee.
Evaluation
[52]
This court cannot better explain the purpose and underlying rationale
of section 105A (1)(b)(iii) than the learned author’s
in
Du
Toit et al Commentary on the
Criminal Procedure Act.
At
15-12 – 15-13
they state:
“
Section
105A(1)(b)(iii)
seeks to promote victim participation in the course
of negotiations aimed at reaching a plea and sentence agreement. This
section
also enhances the transparency of the process. See also Steyn
2007 SACJ 206
at 213 as well as the discussion by Lubbe &
Ferreira
2008 SACJ 151
of the National Prosecuting Authority's policy
and directives relating to post-Truth and Reconciliation Commission
prosecutions.
Quite apart from the fact that victim participation
accommodates the victim's personal interests (like retribution), it
is also
true that the broader interests of the criminal justice
system and society are served. In S v Sassin & others
[2003] 4
All SA 506
(NC) Majiedt J said (at [11.4]): 'Affording victims a say
in the plea bargaining process furthermore enhances transparency and
lends credence to the adage that justice must manifestly be seen to
be done.' Bekker
1996 CILSA 168
209 states:
'The
other interests advanced by giving the victim a right to participate
in the plea bargain are society's interests. Society benefits
from
victim participation in plea bargains in two ways. The first is that
according to the victim the right to participate will
result in more
information being provided to the decision-maker. The second benefit
which accrues to society from victim participation
in plea bargains
is that it promotes the effective functioning of the criminal justice
system. The theory is that if victims are
not consulted regarding the
plea bargain and so feel irrelevant and alienated, they will not
cooperate in reporting and prosecuting
a crime. As a result, the
system, which is dependent on them, functions less effectively.
Therefore, making victims feel their
contribution is critical,
regardless of its actual value, will motivate the victim to continue
to report crime and cooperate in
its investigation and prosecution.'
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'. See
s 105A(1)(b)(iii)
and Watney
2006
TSAR 224
at 226. However, even in the absence of a formal invitation
by the prosecutor, the complainant (or his representative) would be
entitled to make representations which the prosecutor should not
ignore. It should be emphasised, once again, that victim
participation
in the negotiation process is—especially in the
context of present criticisms of our criminal justice system—an
important
step or process which can cultivate or strengthen society's
acceptance of plea and sentence agreements as a method of avoiding a
traditional adversarial trial.”
[53]
The
Section 105A(1)(b)(iii)
states:
“
(b) The
prosecutor may enter into an agreement contemplated in
paragraph
(a)
—
(i)
after consultation with the person charged with the investigation of
the case;
(ii)
…
(aa)
…;
(bb)
…;
(cc)
…;
(dd)
…
(iii)
after affording the complainant or his or her representative, 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, the opportunity to make representations
to the
prosecutor regarding—
(aa)
the contents of the agreement; and
(bb)
the inclusion in the agreement of a condition relating to
compensation or the rendering to the complainant of some specific
benefit or service in lieu of compensation for damage or pecuniary
loss.”
[54]
In my view the prosecutor seeking to enter into a plea and sentence
agreement with an accused person must afford the complainant
or his
representative an opportunity to make representations but only where
it is reasonable to do so and taking into account the
circumstances
relating to the offence and the interest of the complainant.
This provision is peremptory subject to the proviso
that it is
reasonable to afford the complainant an opportunity to make
representations to the extent where it is reasonable to
comply with.
The reason why I say so is because in terms of
section 105A(4)(b)
,
the prosecutor is required to satisfy the court that it has complied
with the obligation placed on him or her in terms of
section
105A(1)(b).
This section reads:
“
(4)(a)
The prosecutor shall, before the
accused is required to plead, inform the court that an agreement
contemplated in
subsection
(1)
has been entered into and the
court shall then—
(i)
require the accused to confirm that
such an agreement has been entered into; and
(ii)
satisfy itself that the requirements
of
subsection
(1)
(b)
(i)
and
(iii)
have been complied with.
(b)
If the court is not satisfied that
the agreement complies with the requirements of
subsection
(1)(b)
(i)
and
(iii)
,
the court shall—
(i)
inform the prosecutor and the
accused of the reasons for non-compliance; and
(ii)
afford the prosecutor and the
accused the opportunity to comply with the requirements concerned.
(5)
If the court is satisfied that the
agreement complies with the requirements of
subsection
(1)
(b)
(i)
and
(iii)
,
the court shall require the accused to plead to the charge and order
that the contents of the agreement be disclosed in court.”
[55]
Should there therefore be non-compliance with
Section
105A(1)(b)(iii)
, then the accused shall not be required to plead.
The purpose of this provision is to ensure that the prosecutor has
given
the complainant an opportunity to make representations.
[56]
In entering into a Plea and Sentence Agreement, at the pre-trial
stage with an accused, the prosecutor or DPP performs an important
public function or power in terms of the provisions of
Section 105A
,
and in line with the broad mandate conferred upon it by Section
179(2) of the Constitution “
to
institute criminal proceedings on behalf of the State, and to carry
out the necessary functions incidental to criminal proceedings.”
As such, the entering into the plea and
sentence agreement cannot be described along the same lines as 2
parties entering into a
civil contract.
[57]
In concluding the above agreement, the prosecution performs an
administrative function. If there is a complaint that the prosecutor
in exercising its public power or in performing its public function
in terms of an empowering statute, in this case Section 105A,
adversely affects the rights of any person, such decision in my view
is subject to judicial review in terms of Promotion of Administrative
Justice Act 3 of 2000 (PAJA).
[58]
In a case where a victim or complainant alleges that the prosecutor
or Director of Public Prosecutions, in entering a plea
and sentence
agreement with an accused, did not afford them the opportunity to
make representations or did not adequately consult
with them, such
failure to afford an opportunity to make representations or to
adequately consult would be unlawful, where in the
circumstances it
was reasonable to do so and in such a case, the complainant or victim
would have the necessary
locus standi
in terms of Section 1 of PAJA or in terms of the common law on the
basis of the principle of legality.
[59]
In
NDPP and Others v Freedom Under Law
2014(2) SACR 107 (SCA)
at
117 paras 28 – 29 it was held that:
“
[28]
The legality principle has by now become well-established in our law
as an alternative pathway to judicial review where PAJA
finds no
application. Its underlying constitutional foundation appears, for
example, from the following dictum by Ngcobo J in Affordable
Medicines Trust and Others v Minister of Health and Others
2006 (3)
SA 247
(CC)
(2005 (6) BCLR 529
;
[2005] ZACC 3)
para 49:
'The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law. The doctrine of legality, which is an incident of the
rule of law, is one of the constitutional controls
through which the
exercise of public power is regulated by the Constitution.'
[29]
As demonstrated by the numerous cases since decided on the basis of
the legality principle, the principle acts as a safety
net to give
the court some degree of control over action that does not qualify as
administrative under PAJA, but nonetheless involves
the exercise of
public power. Currently it provides a more limited basis of review
than PAJA. Why I say 'currently' is because
it is accepted that
'(l)egality is an evolving concept in our jurisprudence, whose full
creative potential will be developed in
a context-driven and
incremental manner'.”
[60]
This case is clearly also not one of those exceptions to judicial
review as set out in paragraph 1 of the PAJA.
[61]
Due to the very nature of the plea bargaining process, wherein the
prosecutor and the accused without the intervention of the
court
agree to a conviction and sentence, the legislature in order to
promote transparency obligated the prosecution to afford
the victim
or complainant the opportunity to make representations. This
obligation is placed on the prosecutor only where
it is reasonable to
do so. See
S
v Sassin
and others
[2003]
4 All SA 506
(NC) at pg 510 para 11.5, where Majiedt J (as he then
was) said the following: “
The
subsection under discussion contains an important proviso, namely
“where it is reasonable to do so . . .”
The
court it seems under the provisions of this section will not readily
condone non-compliance with the provision, as is clear
from the
provisions of ss4 and 5 of s105A. Aside from section 105A,
there are no other provisions in the
Criminal Procedure Act placing
such an obligation on the prosecution, for example, where there is an
ordinary plea of guilty in terms of
Section 112(1)(b)
or
112
(2)
except a moral or ethical duty to inform them about the fact that an
accused person pleaded guilty.
[62]
I therefore agree with the submissions of the Second Respondent that
the basis on which a complainant or victim would have
locus
standi
is limited to the issue whether
the prosecutor in
section 105A
proceedings failed to afford him or
her the opportunity to make meaningful representations in terms of
Section 105A (1)(b)(iii)
of the Act before entering into the plea
agreement. Failure to do so would in my view make the decision
of the prosecution
to enter a plea and sentence agreement in terms of
Section 105A reviewable at the instance of the complainant or victim
only on
this limited ground.
[63]
The Second Respondent is only obliged to give a victim or a
complainant an opportunity, which in my view should be a meaningful
one to make representations. It is not required that the
complainant or victim or his representative should be in agreement
with the prosecutor or Director of Public Prosecutions as to the
precise nature of the plea or sentence agreement it intends to
conclude with an accused. It often happens that complainants in
criminal cases do not agree with a conviction and sentence
imposed by
a court. The plea and sentencing process in terms of section
105A, although also having as an objective the giving
of victims a
say in the plea bargaining process, serves the broader interest of
the criminal justice system, where such agreements
are entered into
to broaden access to justice, to dispose of cases quicker and more
cost-effectively, and to give effect to an
accused’s right to a
fair, as well as a speedy, trial.
[64]
In this particular case the DPP exercised its discretion to enter
into a plea and sentence agreement properly. In
Minister of
Police and Another v Du Plessis
2014 (1) SACR 217
(SCA), NAVSA
ADP with reference to other authorities made the following remark:
“
[29]
In Democratic Alliance v President of the RSA and Others
2012 (1) SA
417
(SCA)
(2012 (3) BCLR 291
;
[2012] 1 All SA 243
;
[2011] ZASCA 241)
this court, after a discussion concerning prosecutorial
independence in democratic societies, quoted, with approval, the
following part of a paper presented at an international seminar by Mr
James Hamilton, then substitute member of the Venice Commission
and
Director of Public Prosecution in Ireland:
'Despite
the variety of arrangements in prosecutor's offices, the
public prosecutor plays a vital role in ensuring due process
and
the rule of law as well as respect for the rights of all the parties
involved in the criminal justice system. The prosecutor's
duties are
owed primarily to the public as a whole but also to those individuals
caught up in the system, whether as suspects or
accused persons,
witnesses or victims of crime. Public confidence in the prosecutor
ultimately depends on confidence that the rule
of law is obeyed.'
We
should all be concerned about the maintenance and promotion of the
rule of law. Given increasing litigation involving the NDPP,
these
principles cannot be repeated often enough. We ignore them at our
peril.”
[65]
The same principle in my view applies in a case like this where DPP
and prosecutor, without misconduct, indolence or ineptitude,
after
having weighed up all the facts and circumstances as it should have
and after having given the Applicant who was assisted
by legal
representatives the opportunity to make his voice heard. The
procedure as set out in s105A cannot be used by victims as
a means to
interfere with the discretion of a prosecutor where it was exercised
properly and in accordance with the law.
And as NAVSA ADP
rightfully said in the
Minister
of Police v Du Plessis
(
supra
)
at para [31] “
Courts are
not overly eager to limit or interfere with the legitimate exercise
of prosecutorial authority
”
.
[66]
In my view the proper time to bring such an application for review
would be prior to the contents of such plea and sentence
agreement
being disclosed to the court. Once it is disclosed to the
court, the complainant or victim would have a very limited
right to
institute review proceedings. Thereafter, he or she is not an
active participant in the proceedings, because by
that time in terms
of s105A, he or she would have been given the opportunity to make
representations and the court must have been
satisfied in terms of
ss4(a) or ss4(b) that there was compliance with the provisions of
ss(1)(b)(iii).
[67]
If there is non-compliance the contents of the plea and sentence
agreement cannot be disclosed to court unless the prosecutor
and the
accused can satisfy the court of the reasons for non-compliance as
required in terms of ss4(b)(i) or (ii). If there
is compliance,
the proceedings would solely be in the hands of the court and the
prosecutor and the accused will only have a say
in the proceedings
where the court is not satisfied that the accused is guilty in terms
of ss6 in which case the trial shall start
de
novo
before another presiding officer
or where the court is not satisfied in terms of ss9 that the sentence
agreement is just, in which
case the accused and the prosecutor will
have to decide whether they wish to withdraw from the agreement or
proceed
de novo
before another presiding officer. There is therefore strict
judicial control over the content of the Plea Agreement as well
as to
whether the agreed sentence is just.
[68]
Where the court is satisfied that the accused is guilty then the
court may exercise its discretion as follows and may:
(a)
Direct
relevant questions, including questions about previous convictions of
the accused, to the prosecutor and the accused;
(b)
Hear evidence,
including evidence or a statement by or on behalf of the accused or
the complainant.
[69]
On a conspectus of the evidence presented in this case, the Applicant
has failed to show that the Second Respondent failed
to afford him or
his legal representative an opportunity to make representations.
In fact, I have seldom come across a case
where a victim or
complainant had been given an opportunity to participate to the
extent the Applicant was afforded an opportunity
in this case.
On this basis the Applicant failed to show it had the necessary
locus
standi
to have the plea and sentence
agreement set aside.
[70]
I agree with the Fourth Respondent contention that this is not a
review of the criminal proceedings in terms of section 302
or of
304(4). Section 302 and section 304(4) reviews in terms of the
Act deal with the questions whether criminal proceedings
before a
Magistrate’s Court were in accordance with justice or where an
accused’s right to a fair trial may have been
infringed (See
discussion in
Du Toit et al
(
supra
), under Section
304(4) and 304A at 30-18 – 30-22 as well as 30-24A –
30-24D). The type of review contemplated
in these two sections
is only open to an accused person and not to any other party involved
in criminal proceedings, like a victim
or complainant. These
types of review are also only applicable after or, in exceptional
cases, during the course of a criminal
trial.
[71]
In
S v Collard
2007(1)
SACR 522 (W), Moshidi J dealt with the conditions of a suspended
sentence imposed on an accused to ameliorate the situation
of a
complainant, and, in doing so, considered the question of whether the
accused would be prejudiced by the amendment of such
conditions
.
At page 526 para [12] the learned judge held: “
As
stated earlier, most review cases concerned the position of an
accused, for the better or worse.
There
should be no reason not to extend such review, where there was no
actual prejudice to the accused, to a complainant in
a criminal case
”.
At para [13] he further held that “
the
complainant in a criminal trial also has rights in terms of the
Constitution …
.” He went
on further to say that such right of review may be exercised in terms
of Section 173 of the Constitution. (own
underlining)
[72]
In
Collard
there was a need to review the proceedings for the benefit of the
complainant, where such proposed conditions would not result
in
actual prejudice to the accused. That case in my view however
cannot be seen as authority for the position that a complainant
in a
criminal trial has a right to have criminal proceedings reviewed as a
general rule. Certainly this can happen only on
rare occasions,
for the simple reason that a victim or complainant in a criminal
trial is not a party to the proceedings.
[73]
The next question to consider now is whether the First Respondent’s
failure to exercise his discretion in terms of the
provisions of
s105A(7)(b)(i)(bb) by not hearing evidence which included the
evidence or statement by or on behalf of the Applicant
or his
representative is reviewable at the instance of the Applicant. In my
view, for the reasons that follow, the Applicant had
no right to be
called as a witness or to have this evidence presented.
[74]
During the sentencing proceedings Mr Wille, a well-respected attorney
of this court representing the Applicant attempted to
hand in a
victim impact statement. He conceded he had no
locus
standi
to address the courts in terms
of Section 105A. There was an objection due to the fact that it
was not a pure victim impact
statement due to the fact that most of
what was contained therein consisted of issues regarding the merits
of the case. Those
facts were not consistent with the factual
matrix agreed to between the prosecutor and the Fourth Appellant.
In my view,
one cannot fault the decision of the First Respondent,
after it had been made aware of this, and after it had been addressed
in
court by the prosecutor and the Fourth Respondent not to hear the
evidence of the complainant. He was correct also in not
exercising his discretion in receiving this evidence in terms of
ss7(1)(b)(iii)(bb) where he was made aware it was in conflict
with
the factual matrix agreed upon by the prosecutor and the accused.
[75]
The Applicant made it difficult for the Magistrate to exercise his
discretion in the manner requested. He was adamant during
the
proceedings before the Magistrate that all the evidence regarding the
speed, the fact that the vehicle was overloaded, the
possibility that
the Fourth Respondent may have been under the influence of alcohol
and that she did not have any remorse be presented
to the
Magistrate. Even in this court he insisted contrary to the
authority and case law that the evidence be included.
For this
reason and the reasons that follow hereafter, the First Respondent
did not improperly exercise his discretion in not calling
the
Applicant to testify or in not admitting the “Victim Impact
Statement”. For the same reasons that follow
the Second
and Fourth Respondent’s conduct in objecting to have the
evidence admitted can also not be faulted.
[76]
It is trite that the facts to be presented during the sentencing
stage following on from a plea of guilty should be premised
on the
factual matrix as set out in the plea of an accused whether in terms
of Section 112(1)(b) or in terms of Section 112(2).
Once the
State accepts the plea of an accused on the facts he had pleaded
evidence cannot be presented by the State during the
sentencing stage
which contradicts such facts. See in this regard
S
v Jansen
1999(2) SACR 368(C) and
S
v Khumalo
2013 (1) SACR 96
(KZP).
Rampai J
in
S v Van Der Merwe and others
2011(2)
SACR 509 (FB) dealt with this point in a thorough judgment where he
held at
[20]
:
“
The sentence imposed on the
appellants should have been premised on the factual foundation as set
out in the plea explanation….”
and
further “
But they did not merely
plead guilty. They went a step further. They gave an
elaborate explanation. Their explanation
embodied the exclusive
facts on which they pleaded. The respondent State accepted the plea”
.
And further at para [21], “
In
those prevailing circumstances the court a quo could not have
approached the matter of sentence anyhow saves on those facts …
”
See also
S v Thole
2012(2)
SACR 306 (FB).
[77]
Du Toit et al
at 17-26 after a discussion of various authorities and case law
states “
By way of summary it can
be said that the Section 112(2) statement as accepted by the State
embodies “the exclusive facts”
for purposes of sentencing
(S v Thole (supra) at [10]), except insofar as there may be other
facts not inconsistent with the factual
matrix provided with the
Section 112(2) statement (S v Khumalo (supra) at [11])
.”
[78]
In my view the plea which forms part of the plea and sentence
agreement in terms of Section 105A wherein an accused admits
guilt
based on a certain factual matrix as accepted by the State is in
substance identical to a guilty plea tendered in terms of
Section
112(2). What is of particular pertinence is the fact that, the
accused person must be legally represented.
By parity of
reasoning therefore any sentence to be imposed after it had been
agreed to should be consistent with the factual matrix
as set out in
the plea explanation, even more so in this case given that the
accused and the prosecutor agreed to a specific sentence
on the basis
of a certain set of facts, whereas in the case of a Section 112(2)
plea, the sentence is entirely left in the hands
of the court.
[79]
As such, the Magistrate could only have admitted the statement had it
not been in conflict with the factual matrix agreed to
between the
prosecutor and the Fourth Respondent which was not the case.
The facts thus accepted by the prosecution in this
case was that the
Fourth Respondent’s negligence was based on her failure to keep
a proper lookout and her conviction on
two counts of culpable
homicide was based on this fact. The court
a
quo
during the sentencing proceedings
was bound to accept that. It would in any event not have had
the power either during the
Plea or Sentencing stage to intervene if
it had been made aware that there were facts that established that
the Fourth Respondent
was either reckless or grossly negligent.
The only power it would have had to intervene would be to enter a
plea of not guilty
if it was of the view that the Fourth Respondent
did not admit all the elements of the offence charged in terms of
ss6(b) of Section
105A. Any intervention therefore can only be
for the benefit of an accused person. Such intervention cannot
be to the
detriment of an accused person, where a complainant/victim
alleges that it does not agree with the facts upon which an accused’s
plea of guilty is based. In this case, on the facts presented,
the court was satisfied that the Fourth Respondent admitted
all the
allegations in the charge and that she is guilty of the offences in
respect of which the agreement was entered into.
The
complainant or victim does not have a right to intervene in such a
process in terms of the provisions of Section 105A or any
other
provision in the
Criminal Procedure Act. On
this basis
alone, there is no need for this court to decide whether the Fourth
Respondent, based on the facts as alleged by the
Applicant, was
reckless or grossly negligent, or whether any of the circumstances
and facts he presented either to the Second Respondent
or to this
court should have been considered.
[80]
For the further reasons that follow, I am also of the view that the
Second and Fourth Respondents were correct in objecting
either to the
Applicant giving evidence or him handing in the “Victim Impact
Statement” with the contents he wished
to place before court.
[81]
Where the prosecution enters into a plea and sentence agreement with
an accused person it fulfils a function incidental to
the institution
of criminal proceedings in terms of s179(2) of the Constitution, on
behalf of the State, as said earlier on in
this judgment.
[82]
As the learned authors in
Commentary on
the
Criminal Procedure
Act,
Du
Toit et al
at 1-2 correctly in my view
point out “
There can be no fair
and equal administration of the criminal justice system if
prosecutions for crime are entirely left to the
whim, initiatives or
resources of individual victims concerned. This is one of the
reasons why in our local criminal justice
system it is possible for
the prosecuting officials, in the exercise of their discretion to
prosecute, to decide to proceed with
the institution of a prosecution
despite the victim’s or complainant’s wish to have the
case withdrawn. Wider
public interests are at stake. On
the same basis the prosecuting officials may against the wishes of
the victim refuse to
institute a prosecution
”.
[83]
Similarly, as has happened in this case, the prosecuting authorities
may decide to exercise their discretion to enter into
a plea and
sentence agreement, against the wishes of a victim or a complainant,
where it is justified to do so. They do not
act or perform
their functions on the instructions or wishes of a victim or
complainant; they act in the broader public interests
after taking
into account the interest of the victim/complainant, society, as well
as the accused person.
[84]
The victim/complainant is therefore not a party to the criminal
proceedings. It is the State through the prosecuting
authorities that institutes criminal proceedings against an accused
person. A victim or complainant has no right therefore
to
demand to be heard during the criminal proceedings. Where the
State during sentencing proceedings therefore legitimately
exercises
its discretion not to call a victim or complainant, such failure to
do so would not be improper or make the proceedings
irregular.
Especially where the prosecutor of DPP gave them adequate opportunity
to make representations and where the prosecutor
properly represented
and placed the concerns and wishes of the victim before the court.
[85]
Where, however, a court during criminal proceedings upon application
by the prosecutor or accused refuses to hear evidence
of a
complainant, victim or any witness, such failure may lead to an
injustice, to one of the parties, i.e. the State or the accused,
in
which case it may be reviewable.
[86]
Similarly, the court is not obliged to call or exercise its
discretion to call a victim or complainant upon his or her request
as
a witness, due to the fact that the complainant or victim is not a
party to the criminal proceedings. They would have no standing
due to
the fact that the court is engaged in criminal proceedings.
[87]
A criminal trial cannot be regarded as mere litigation between the
State and an individual, but the exercise of a constitutional
power
by the State through the prosecuting authorities against an
individual to account for an alleged crime committed against
society. Another consideration as to why the application in
this matter should not succeed is that it will also affect the
rights
of the family members of the second deceased who was not joined in
these proceedings. They agreed and made peace with
the plea and
sentence agreement the Second and Fourth Respondents entered into.
For these reasons also the actions and conduct
of the First, Second
and Fourth Respondent are not susceptible to it being reviewed by
this court and they have therefore committed
no irregularity.
Conclusion
[88]
This court has been placed in a position to view all the evidence,
even though it did not attach any weight to the allegations
made by
the Applicant regarding the question whether the Fourth Respondent
was reckless or grossly negligent. And even if
the Applicant
did establish the necessary
locus standi
and even if the proceedings could be reviewed at his instance, I am
in any event convinced that the Second Respondent’s decision
to
secure a conviction based on the plea tendered by the Fourth
Respondent was eminently reasonable and rational and cannot be
faulted. The Second Respondent in my view clearly weighed up
all the evidence and the substantive representations made by
the
Applicant which included the evidence presented by the Applicant
regarding the alleged speed at which the Fourth Respondent
had
travelled before the collision. It is not disputed by the
Applicant that this evidence was contradictory in nature.
The
experts were not in agreement as to the approximate speed the Fourth
Respondent travelled. Moreover the most important
witnesses,
the eye-witnesses, emphatically said that the Fourth Respondent did
not travel at an excessive speed.
[89]
This fact was not disputed by the Applicant and, even if it was, it
cannot be said that on the evidence placed before the Second
Respondent it improperly exercised its discretion when he accepted
the plea tendered by the Fourth Respondent. There is also
no
suggestion that the Second Respondent had an ulterior motive in
accepting the plea as tendered by the Fourth Respondent.
[90]
In assessing whether a just sentence was imposed, I am mindful of the
fact that due to the Fourth Respondent’s negligence,
two
persons have lost their lives. The Applicant and his wife have
lost their son, a very young person, who had a bright
future ahead of
him. Whether they will ever be able to recover from the loss
they have suffered only time will tell.
It is perfectly
understandable why they wanted a harsher sentence to be imposed on
the Fourth Respondent.
[91]
This has to be counter-balanced against the fact that the Fourth
Respondent is also a young person. She has expressed
remorse,
regret and feelings of guilt for her actions. The mistake she
made will haunt her for the rest of her life.
Her remorse is
genuine; this is clear from the evidence. It was and cannot be
proven that her actions and conduct amounted
to a wanton disregard
for human life and that she did not care what happened. Even if
that is how the Applicant feels, ordinarily,
if such facts were
proven it would have been a case where direct imprisonment would not
have been inappropriate. Given the
totality of the evidence
placed before this court, and also given the fact that it was a
sentence agreed to as a result of plea
bargaining, this court is less
inclined to interfere even if it would itself not have imposed the
sentence as per the agreement.
It should be borne in mind that
it is the very nature of a plea bargain, that an accused would rather
accept and agree to a sentence
than take the risk of a court imposing
a harsher sentence. Otherwise an accused could tender a plea in
terms of
section 112(2)
and leave it to the court to sentence him or
her.
[92]
But having said that, in my view the Magistrate should have at least,
with the necessary restraint and careful scrutiny so
as not to
infringe upon the rights of the Fourth Respondent, exercised some
degree of judicial maturity, civility and empathy,
to allow the
Applicant or his wife some latitude give them the opportunity to
express their feelings and resentment they had in
having lost their
son.
[93]
In this regard, I align myself with the words of PONNAN JA in
S v
Matyityi
2011(1) SACR 40 (SCA) at 49 para 16 where the learned
judge said:
“
As
in any true participatory democracy its underlying philosophy is to
give meaningful content to the rights of all citizens, particularly
victims of sexual abuse, by reaffirming one of our founding
democratic values, namely human dignity. It enables us as well
to vindicate our collective sense of humanity and humanness”.
The
learned judge further went on to say “
By
giving the victim a voice the court will have an opportunity to truly
recognise the wrong done to the individual victim.”
[94]
A court should during the sentencing proceedings where possible
strive to give victims of crime a voice, while ensuring, through
efficient judicial control, that an accused right to a fair trial is
not infringed or evidence is not led in conflict with the
agreed
factual matrix. The failure of the Magistrate to adopt such an
approach in this case given the situation he was confronted
with
however does not result in the proceedings being irregular and does
not in any way make the proceedings reviewable at the
instance of the
Applicant.
Joinder
[95]
Given that the Applicant has no
locus
standi
, there is no need to deal with
the question of whether Mrs Matthee, the widow of the second
deceased, needed to be joined.
[96]
The Applicant has failed to make out a case that he is entitled to
the relief he is seeking and as a result for the reasons
given, the
application falls to be dismissed. In the result I would make
the following order:
[97]
Order
The
application is dismissed.
Costs
[98]
Only the Fourth Respondent and the Applicant incurred costs.
The Fourth Respondent seeks an order for costs. The Fourth
Respondent
argued she was justified to oppose this application because the order
that was sought against her would have adverse
consequences for her.
Whilst I agree with this, given the fact that these proceedings
result from a criminal prosecution,
wherein the Applicant felt
strongly about vindicating the rights of his and his family as
victims, and also given the fact that
this matter was of significant
importance to the Second Respondent, who did not incur any costs.
I would therefore make an
order that the Applicant and Fourth
Respondent each pay their own costs.
HENNEY,
J
Judge
of the High Court
I
agree and it is so ordered.
VELDHUIZEN,
J
Judge
of the High Court
[1]
A
coefficient
of friction
is a value that shows the relationship between the force of
friction
between two objects and the
normal
force
between the objects (
https://simple.wikipedia.org/wiki)
.
[2]
S
v Nyathi 2005(2) SACR 273 (SCA); S v Naicker 1996(2) SACR 557(A); S
v Mapipa
2010 (1) SACR 151
(ECG); S v Ndlanzi 2014(2) SACR 256
(SCA).
[3]
S
v Naicker at 560 f-g (
supra
).
[4]
Section
302
-
Sentences
subject to review in the ordinary course.
—(1) (
a
) Any
sentence imposed by a magistrate’s court—
(i)
which,
in the case of imprisonment (including detention in a child and
youth care centre providing a programme contemplated in
section
191
(2) (
j
)
of the Children’s Act, 2005 (
Act
No. 32 of 2005
)),
exceeds a period of three months, if imposed by a judicial officer
who has not held the substantive rank of magistrate or
higher for a
period of seven years, or which exceeds a period of six months, if
imposed by a judicial officer who has held the
substantive rank of
magistrate or higher for a period of seven years or longer;
(ii)
which,
in the case of a fine, exceeds the amount determined by the Minister
from time to time by notice in the
Gazette
for
the respective judicial officers referred to in
subparagraph
(i)
,
(iii)
. . . . . .
shall
be subject in the ordinary course to review by a judge of the
provincial or local division having jurisdiction.
[5]
Section
304(4) -
If
in any criminal case in which a magistrate’s court has imposed
a sentence which is not subject to review in the
ordinary course in
terms of
section
302
or in which a regional court has imposed any sentence, it is brought
to the notice of the provincial or local division having
jurisdiction or any judge thereof that the proceedings in which the
sentence was imposed were not in accordance with justice,
such court
or judge shall have the same powers in respect of such proceedings
as if the record thereof had been laid before such
court or judge in
terms of
section
303
or this section.
[6]
S
v Taylor 2006(1) SACR 51 (C), at p 58, par. [16] – [17]; S v
Salie 2007(1) SACR 55 (C), at p60 – 61, par. [12] –
[13].
[7]
“
Inherent
power
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice
.”
[8]
Sefatsa
and Others v Attorney-General, Transvaal, and Another
1989 (1) SA
821
(A), at p.834E; S v Makopu
1989 (2) SA 577
(E), at p.578A; S v
Bushebi
1996 (2) SACR 448
(NmS) at 451c; S v Ntswayi en ‘n
Ander
1991 (2) SACR 397
(C); Hansen v The Regional Magistrate, Cape
Town, and Another
1999 (2) SACR 430
(C); S v Williams, supra, at
p.297 – 299 par. [33] – [38].