S v Ngubane

• Jurisdiction: South Africa
• Judge: Jansen JA, Corbett JA, Miller JA, Trengove JA and Viljoen JA
• Judgment Date: 28 May 1985
• Citation: 1985 (3) SA 677 (A)
• Hearing Date: 24 February 1985
• Court: Appellate Division

Jansen JA:

The appellant was convicted in the Natal Provincial Division (per THIRION J and assessors) of murder with H extenuating circumstances and sentenced to 10 years' imprisonment. He appeals against the conviction on the following "special entry" made, on his application, by the presiding Judge:

"... whether the effect of the prosecutor's willingness to accept a plea of guilty to culpable homicide had the effect of reducing the charge from murder to one of culpable homicide and I whether the Court therefore acted irregularly in adjudicating on the charge of murder."

The appellant's case is that it was incompetent for the Court to convict him of murder and that the Court should have convicted him of culpable homicide, with a consequential reduction of the period of imprisonment by, it is suggested, five years.

It is clear from the record and the presiding Judge's reasons for making the special entry that, when called upon to plead to J the indictment for

Jansen JA

A murder, the appellant pleaded guilty to culpable homicide after counsel for the appellant had told the Court that the prosecutor was prepared to accept that plea. The prosecutor did not at any stage inform the Court to the contrary and the Court consequently assumed that the prosecutor had accepted the plea B of guilty to culpable homicide. It is common cause that it was in fact the prosecutor's intention to do so and that the Court's assumption was fully justified. Counsel for the appellant then handed in a statement signed by the appellant. Counsel described it as

"a written statement of admissions and a version of events which I have checked with the accused and which my learned friend for the prosecution is prepared to accept as a record of what happened on the occasion in question".

C The presiding Judge understood this to be a statement in terms of s 112 (2) of Act 51 of 1977. Paragraph 5 of the statement read as follows:

"When he stabbed the deceased, the accused did not act intentionally, but negligently, in that a reasonable man would in the circumstances have realised that he was acting unlawfully and that his actions would cause the death of the deceased."

D The presiding Judge says in this regard:

"I perused the statement... and came to the conclusion that para 5 of the statement was worded in a manner which, although it might set out the law correctly, would hardly have made sense to the accused. I accordingly decided not to proceed on the strength of the statement but to question the accused. I proceeded to do so without actually having obtained confirmation from the prosecutor that he was prepared to accept E the plea. I simply assumed that he was prepared to accept the plea because of what counsel for the accused had said.

The accused told me his version of the killing. In the course of doing so the accused said that he was 'much' under the influence of liquor at the time of the killing and that a quarrel arose between him and the deceased. He said: 'I don't know how I stabbed her but she got injured. I stabbed her.' He was unable to say how many times he stabbed her or how it all F came about. On the facts stated by the accused and particularly because of his vagueness about what happened I was not satisfied that the accused was admitting facts which would prove all the elements of the crime of culpable homicide and consequently I... changed the plea to one of not guilty."

The presiding Judge considered himself entitled to do so in terms of s 113 of the Act. (In his reasons he adds "but I G venture to say that quite apart from the provisions of that section I would have had that right", a matter which, however, need not now be considered.) He then directed the prosecutor to call the State's evidence. This was done and the appellant also gave evidence on his own behalf. The conviction of murder with extenuating circumstances then ensued.

Section 106 (1) (a) of the Act clearly entitles an accused on H indictment for murder to plead "that he is guilty of the offence charged or of any offence of which he may be convicted on the charge", including culpable homicide (s 258 (a)), and s 112 clearly envisages that the prosecutor may accept such plea, with the result that, subject to certain safeguards, the accused, on his plea of guilty, may be convicted "of the I offence to which he has pleaded guilty". However, s 113 provides that in certain circumstances a plea of not guilty must be recorded:

"If the court at any stage of the proceedings under s 112 and before sentence is passed is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty or is satisfied that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the J charge, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution: Provided

Jansen JA

that any allegation, other than an allegation referred to A above, admitted by the accused up to the stage at which the court records a plea of not guilty, shall stand as proof in any court of such allegation."

It is a matter of some difficulty, in the absence of specific provision in the Act, to determine what the provision is where eg a plea of culpable homicide is accepted by the prosecutor in respect of an indictment for murder and the court subsequently B records a plea of not guilty in terms of s 113 and requires the prosecutor "to proceed with the prosecution". Does the plea so entered relate to the charge of murder or does it relate to culpable homicide? Does the prosecutor proceed with a prosecution for murder or for culpable homicide? Our writers on criminal procedure are not in agreement on this. Hiemstra C Suid-Afrikaanse Strafproses 3rd ed at 268 Second Cumulative Supplement 1983 at 16 is of the opinion that a plea recorded in terms of s 113 relates to the original charge and that the prosecution proceeds in respect of such charge, whereas writers such as Van der Merwe, Barton and Kemp Plea Procedures in D Summary Trials at 41 - 43 hold the opposite view.

Many of the apparent difficulties seem to arise from an attempt to categorise acceptance of a plea (as envisaged by s 112) as being either a withdrawal under s 6 (a) or a stopping of a prosecution under s 6 (b). (Cf Kotzé 1978 De Jure 211, 1979 THRHR 44; Joubert 1982 De Jure 345.) Strictly speaking it would E seem to be neither. It must be seen as a sui generis act by the prosecutor by which he limits the ambit of the lis between the State and...