S v Hendricks

• Jurisdiction: South Africa

S v Hendricks
1995 (2) SACR 177 (A)

1995 (2) SACR p177

Citation	1995 (2) SACR 177 (A)
Court	Appellate Division
Judge	Hefer JA, Steyn JA and Marais JA
Heard	May 11, 1995
Judgment	May 30, 1995
Counsel	J P Marais for the appellant.; A Hattingh for the State.

Flynote : Sleutelwoorde

G Indictment and charge — Joinder of charges — When charges may be joined — In terms of s 81(1) of Criminal Procedure Act 51 of 1977 charges may only be joined 'before any evidence has been led' — What accused has said during plea proceedings is not included in concept of 'evidence' as used H in s 81(1) — Additional charges may accordingly be joined after plea proceedings.

Headnote : Kopnota

In terms of s 81(1) of the Criminal Procedure Act 51 of 1977 additional charges may be joined only 'before any evidence has been led'. What the I accused has said during that part of the proceedings which is devoted to ascertaining what he or she pleads to the charges and what the issues are between the prosecution and the accused which require to be tried, is not included in the concept of 'evidence' as used in s 81(1).

The Court in the instant case held that admissions made by the accused during questioning in terms of s 112(1)(b) of the Criminal Procedure Act which were not recorded as admissions in terms of s 220 but none the less in terms of s 113(1) 'stand as proof in any Court' of those allegations J did not amount to

1995 (2) SACR p178

evidence within the intention of s 81(1) and additional charges could accordingly be brought against the accused after such questioning.

Case Information

Appeal from the dismissal of an appeal by the Eastern Cape Division (Kannemeyer JP and Rein AJ) which had dismissed an appeal against a B conviction and sentence for rape in a regional court.

J P Marais for the appellant.

A Hattingh for the State.

Cur adv vult.

Postea (30 May 1995). C

Judgment

Marais JA:

Appellant was arrested on Friday 19 February 1993. That very day he made a statement to a magistrate. He spent the week-end in custody and appeared in the regional court on Monday 22 February 1993. At that stage three charges and an alternative charge had been brought D against him. The first (count 1) was a charge of housebreaking with intent to steal and theft allegedly committed on 11 February 1993 at the home of Mr S H in Port Elizabeth. The second (count 2) was a charge of housebreaking with intent to rob and robbery allegedly committed on 19 February 1993 at the same address, it being alleged that the person who E was robbed was Mrs C H. The third (count 3) was a charge of attempted rape of Mrs C H allegedly committed at the same time as the aforesaid robbery was allegedly committed. The alternative charge was one of indecent assault based upon the same incident.

Appellant was asked whether he wished to be legally represented and the possible availability of legal aid was explained to him. He elected to F defend himself. The charges were then put to him by the prosecutor. He pleaded guilty to the three charges, adding that he had not taken all the articles listed in the first charge. The regional magistrate proceeded to question him in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 ('the Act') in order to ascertain whether he admitted the G allegations in the charges, and to satisfy himself that appellant was guilty of the offences to which he had pleaded guilty. Appellant proceeded to describe in some detail what he had done. The regional magistrate was satisfied that appellant did admit the allegations in the first charge (subject to the qualification that not all the articles listed in the charge sheet were admitted to have been stolen), the H prosecutor indicated that he accepted the qualification, and the plea of guilty remained standing. The regional magistrate was not satisfied that appellant's pleas of guilty to the second and third charges were borne out by the admissions made by him, and he entered pleas of not guilty to those charges. The alternative charge does not appear to have been put to appellant. As a fact, his explanation of what he had done to I complainant amounted to an admission of the particular allegation made against him in that charge. Indeed, his explanation showed that he had also committed other indecent acts which had not been particularised in the alternative charge.

Appellant was not asked thereafter whether or not he was prepared to allow anything said by him during the process to stand as an admission made in terms of s 220 of the Act, but the effect of the proviso to s J 113(1)

1995 (2) SACR p179

Marais JA

A of the Act was that factual allegations adverse to himself made during the enquiry for which s 112 provides, 'stand as proof in any court' of those allegations, provided of course that they are not allegations which the court is satisfied are incorrectly admitted allegations. See S v Ncube; S v Mphateng en 'n Ander 1981 (3) SA 511 (T) at 513E-G. The allegations adverse to appellant which he admitted, could not have been B regarded as incorrectly made admissions, and they therefore stood 'as proof' against him in the trial.

The prosecutor at this juncture introduced another charge, namely, one of rape (count 4). Whereas he had previously been accused of attempting to C rape, alternatively, indecently assaulting Mrs C H at her home on 19 February 1993, he was now accused of raping her on that occasion. The record does not show that appellant objected to the charge of rape being brought against him at that stage. Indeed, he pleaded guilty to the charge. What he had said earlier in connection with the other charges was plainly inconsistent with his plea of guilty to the charge of rape, D because he had denied specifically then that he had had intercourse with complainant or that he intended to do so. Not surprisingly, the regional magistrate questioned him pertinently on this aspect of the matter after he had pleaded guilty to the charge of rape and, having elicited a specific denial that appellant had sexual intercourse with complainant on that occasion, the regional magistrate, in terms of s 113 of the Act, E altered appellant's plea to one of not guilty to the charge of rape.

The hearing of viva voce evidence thereupon commenced. By the end of that day (Monday 22 February), complainant and a policewoman had testified. The policewoman had responded to a radio call and encountered F complainant in an allegedly hysterical and tearful state. Complainant is alleged to have complained to her that she had been raped. Both were cross-examined by appellant. The burden of appellant's cross-examination of complainant was devoted to the issue of penetration (actual or attempted) which was the only central issue in dispute by that stage. The day concluded with appellant raising the matter of a possible grant G of bail and indicating that he wished to apply for legal aid because of the introduction of the charge of rape. He said 'I feel misled not by anyone else but myself. I feel I should have someone who is more qualified'. The regional magistrate declined to grant bail at that stage and indicated that he would be prepared to reconsider the question on 26 H February 1993. He thereupon remanded the case to that date.

On 26 February the regional magistrate was informed that the application for legal aid had not been successful. He telephoned an official of the legal aid board and recommended the grant of legal aid to appellant. His intervention bore fruit and an attorney appeared later that day to represent appellant. No evidence was heard on that day and the case was I remanded to 3 March for the hearing of an application for bail. The trial itself resumed on 26 April 1993. On that day, the district surgeon who had examined complainant, testified. He was cross-examined by appellant's attorney with specific reference to the issue of penetration. The prosecutor closed the State's case and appellant testified. He denied penetration or any attempt to have sexual intercourse. The J defence case was closed without

1995 (2) SACR p180

Marais JA

A any application having been made by appellant's attorney for the recall for further cross-examination of complainant and the policewoman referred to earlier. Argument ensued and judgment was reserved.

On 29 April 1993 the regional magistrate delivered his judgment. He convicted appellant upon counts 1, 2 and 4, and, because the allegations B in count 3, and the alternative to it, related to what he considered to be preparatory acts intimately associated with the act of rape (count 4) of which appellant had been convicted, he acquitted him on count 3 (and, impliedly, the alternative to count 3). After hearing evidence both in mitigation and in aggravation of sentence, and considering the submissions made to him, the regional magistrate sentenced appellant to C two years' imprisonment on count 1, four years' imprisonment on count 2, and 10 years' imprisonment on count 4. He ordered the sentence imposed in respect of count 1, and two years of the sentence imposed in respect of count 2, to run concurrently with the sentence imposed in respect of count 4. Appellant was thus sentenced effectively to 12 years' imprisonment.

D On 3 May 1993 appellant addressed from St Alban's prison in Port Elizabeth a letter to the regional court complaining of his conviction and sentence upon the charge of rape (count 4). He attacked the conviction upon its merits. He raised no complaint about any procedural aspect of the trial and made no suggestion that he had suffered any E prejudice by reason of the promptitude with which he was brought to trial, or the raising of the charge of rape after he had pleaded to the other charges, and made the statements which he did during questioning in terms of s 112(1)(b). The...