S v Jansen

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Davis J
• Judgment Date: 21 June 1999
• Citation: 1999 (2) SACR 368 (C)
• Counsel: N Nel for the accused at the request of the Court A de Lange for the State

Davis J:

On 19 October 1998 the accused appeared in the regional court in Malmesbury and was found guilty on a charge of rape in terms of Part 1 of C Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as a result of the age of the complainant, who was 9 years old. The accused pleaded guilty and the plea was accepted in terms of s 112(2) of the Criminal Procedure Act 51 of 1977.

There was some confusion regarding the question of the appropriate forum for D sentence and hence the application of Act 105 of 1997 ('the Act') in that the minimum sentence for such a crime was that of life, save under exceptional circumstances. Such sentences are beyond the jurisdiction of the regional court. The position was finally clarified and the matter was referred in terms of ss 51(1) and 52(1)(a) of the Act to this Court for sentence. E

In this Court the conviction was confirmed in terms of s 52(2)(b) which provides as follows:

'Unless the High Court in question -

(i)

is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded; or F

(ii)

is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence

the Court shall make a formal finding of guilty and sentence the accused as contemplated in s 51.' G

There was some disagreement between representatives of the State and accused regarding the factual matrix upon which the accused had pleaded guilty and in terms of which the conviction had been based. This difference is based to a large extent on the explanation of the plea by the accused which read as follows: H

'Ek, die ondergetekende, Hendrik Jansen, pleit hiermee as volg op die klag teen my gestel. Ek erken dat ek op 17 Mei 1998 te Droërugplaas gemeenskap gehad het met . . . Ek erken dat gemelde . . . 9 jaar oud was en dat ek geweet het sy is onder die ouderdom van 16 jaar. Ek erken dat ek geweet het dit is verkeerd om met 'n vroulike persoon gemeenskap te hê as sy onder die ouderdom van 16 jaar is, selfs al het sy toestemming gegee tot gemeenskap. Ek pleit dus skuldig aan die klagte soos gestel.' I

In terms of s 112(2) the plea was accepted by the State and the question thus arose as to whether the plea had to be considered in terms of the account of the accused, as set out in the explanation of his plea, namely that there had been a measure of consent. J

Davis J

Ms Nel, who appeared on behalf of the accused, submitted that the State was A bound by the plea and the explanation which accompanied it. She relied upon a number of decisions in support of the submission that the plea, if accepted by the State, defines the lis (see for example S v Moorcroft 1994 (1) SACR 317 (T) at 320; S v Swartz 1983 (3) SA 261 (C)). B

Ms De Lange, who represented the State, contested this approach. She placed heavy emphasis upon the evidence which was led subsequent to the acceptance of the plea. In short, Ms De Lange referred to evidence which had been given by the complainant to the effect that the accused had employed force in order to have sex with her. C

The problem is that this evidence was led after the acceptance of the plea. In terms of a dictum by De Klerk J in Moorcroft's case at 320g it would appear that in circumstances such as that in the present case, the State is bound by that which is stated in the plea. As De Klerk J said:

'Die bevinding daar was dat na skuldigbevinding mag die raam deur die aanklaer ingevul word met detail-getuienis vir vonnisbepaling. Die beskuldigde se erkennings waarop hy skuldig bevind is kan slegs met detail aangevul word, maar sy weergawe mag egter nie in wesenlike opsigte weerspreek word nie.' D

Although the State can lead evidence to fill in the framework set by the plea, the essential factual matrix is set by the plea and cannot be extended or altered by evidence subsequent thereto. Ms De Lange would have this Court go far beyond E the filling in of the picture painted in the plea. She wishes to contend that the entire basis of the plea could be altered by further evidence. This is not supported by the authorities.

It is most unfortunate that neither the magistrate nor the prosecutor was able to appreciate these basic principles. In short, the prosecutor and/or the magistrate F should have realised that there was some measure of contest with regard to the factual matrix and accordingly the plea should not have been accepted which would then have allowed evidence to have amplified the facts which were placed before the court. However, having established the basis of the crime, it is within that framework that this Court must now operate. It is necessary thus to examine the applicable legislation within the factual context. G

Section 51 of the Criminal Law Amendment Act 105 of 1997

This important piece of legislation has in its short period been the subject of considerable criticism. In the first place the question arises as to the jurisdiction of H the regional courts to hear cases where such court has no jurisdiction to impose an appropriate sentence. Section 51(1) appears to give exclusive jurisdiction to the High Court in these cases, for no mention is made of the regional court in s 51(1). The poor quality of the drafting could lead to the conclusion that this matter was improperly referred. Indeed, in S v Mofokeng and Another 1999 (1) SACR 502 (W) Stegmann J said at 151i-152f: I

'The Schedule 2 offence in the present case is one referred to in Part 1 of the schedule. Section 51 does not expressly invest a regional court with any penal jurisdiction in respect of any such offences. Therefore the requisite jurisdictional fact is not present, and this Court accordingly appears to me not to have J

Davis J

jurisdiction to deal with the matter in terms of s 52(3) on referral from the regional court. A

If the Attorney - General, or Director of Public Prosecutions, is of the opinion that a particular offence referred to in Part 1 of Schedule 2 is one for the imposition of a statutory sentence of imprisonment for life in terms of s 51(1), then he is free to indict the accused in the appropriate High Court in the first place. If the offence should then be proved, in a trial before the High Court, to be one referred to B in Part 1, the high Court would be obliged to impose a sentence of life imprisonment (unless any "substantial and compelling circumstances" contemplated by s 51(3)(a) were found to justify the imposition of a lesser sentence; or unless, in terms of s 51(3)(a), the accused was 16 or over but under 18 at the time of the commission of the act constituting the offence, and the Court found no good reason to impose such a sentence). C

If, on the other hand, the Attorney - General or Director of Public Prosecutions does not regard a particular matter referred to in Part 1 of Schedule 2 as one for the imposition of a life sentence, he is free to charge the accused in a regional court. The matter would in those circumstances fall entirely outside ss 51, 52 and 53 of Act 105 of 1997. D

. . .

In other words, so far as appears from the express provisions of ss 55 and 52 of Act 105 of 1997, the procedure for a regional court to commit a person convicted by it to the High Court for sentence applies only in respect of offences referred to in Parts II, III and IV of Schedule 2.'

There is much force in this interpretation but I am bound, as Ms Nel conceded, by E the decision of the Full Bench in this Division in S v Ibrahim (case No 980006373) [*] where Cleaver J, on behalf of the Court, found that the regional court retained jurisdiction to try offences referred to in Part 1 of Schedule 2 of the Act. I have reservations about the propriety of this procedure, as well as...