S v PM

• Jurisdiction: South Africa
• Citation: 2022 (1) SACR 412 (WCC)

S v PM
2022 (1) SACR 412 (WCC)

2022 (1) SACR p412

Citation	2022 (1) SACR 412 (WCC)
Case No	279/2021
Court	Western Cape Division, Cape Town
Judge	Pangarker AJ and Henney J
Heard	November 30, 2021
Judgment	November 30, 2021
Counsel	Counsel details not supplied

Flynote : Sleutelwoorde

Plea — Plea-and-sentence agreement — Magistrate irregularly questioning accused prior to disclosure of entire agreement — Correct procedure set out — Criminal Procedure Act 51 of 1977, ss 105A, 105A(6)(a), 105A(7)(a) and 105A(8).

Headnote : Kopnota

A regional magistrate submitted the present matter on review to the High Court on the ground that she had in error imposed a sentence of seven years' direct imprisonment pursuant to a plea-and-sentence agreement in terms of s 105A of the Criminal Procedure Act 51 of 1977 (the CPA). The court noted that there were procedural irregularities committed during the proceedings involving the agreement, namely that the magistrate's questioning of the accused occurred after the legal representative had read the preamble and guilty plea and admissions into the record, and that the magistrate, after conducting said questioning, had then proceeded to make findings as to the accused's guilt, and convict him as charged.

Held, that the questioning of an accused in terms of ss (6)(a) had to occur only after the entire plea-and-sentence agreement had been disclosed in court. The section did not in any way allow for a piecemeal disclosure of the agreement, as adopted by the parties and the magistrate in the present

2022 (1) SACR p413

matter. The premature questioning of the accused was therefore incorrect and irregular. The incorrect procedure adopted by the magistrate then led to a further irregularity in the proceedings, in that she convicted the accused prior to the disclosure of the entire agreement and in disregard of ss 105A(7)(a) and (8). Those provisions did not vest the magistrate with any authority to make a finding or pronouncement on the accused's guilt, and to convict him after the plea and admissions had been disclosed. (See [9] and [12] – [14].)

Held, however, that the irregularities were of a procedural nature and were not fatal, as they did not impair the legal validity of the conviction. The accused was legally presented throughout the proceedings and the state advocate was duly authorised to conclude the plea-and-sentence agreement on behalf of the state; the accused confirmed concluding the agreement and signed it, admitting all the allegations in the charge freely and voluntarily and in sound and sober senses, without any undue influence. His conviction was therefore in accordance with justice. (See [20] – [21].)

Held, further, that the sentence of seven years' imprisonment exceeded the punitive jurisdiction allowed by s 276A(2)(b). The magistrate had acted correctly by sending the matter on special review, as she was not at liberty to rectify or amend the sentence in terms of s 298 of the CPA, as she was at that stage functus officio. The matter accordingly had to be remitted to the magistrate to reconsider the sentencing proceedings. (See [22] – [25].)

Cases cited

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): applied

S v CA 2021 (2) SACR 443 (WCC): followed

S v De Goede [2012] ZAWCHC 200: referred to

S v Knight 2017 (2) SACR 583 (GP): referred to

S v Mainga 2020 (1) SACR 666 (GJ): dictum in para [30] applied

S v Moabi 1979 (2) SA 648 (B): dictum at 648H applied

S v Ndwendwe FB R156/2017: referred to

S v Solomons [2005] ZAWCHC 45: referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 105A, 105A(6)(a), 105A(7)(a), 105A(8), 276A(2)(b) and 298: see Juta's Statutes of South Africa 2020/21 vol 1 at 2-305 – 2-306 and 2-352.

Review.

Order

1.

The conviction of the accused shall stand.

2.

In terms of the provisions of s 304(4) read with s 302(4)(c)(ii) of the Criminal Procedure Act 51 of 1977, the sentence imposed on 22 April 2021, which reads 'in terms of s 276(1)(i) of Act 51 of 1977 accused sentenced to seven years direct imprisonment', is set aside.

3.

The matter is remitted to the regional magistrate, Khayelitsha, to consider sentencing proceedings in terms of s 105A(9) of the Criminal Procedure Act 51 of 1977.

2022 (1) SACR p414

Judgment

Pangarker AJ (Henney J concurring):

Introduction

[1] The regional magistrate, Khayelitsha, referred this matter on special review to the High Court in terms of s 304(4) of the Criminal Procedure Act 51 of 1977 (the CPA), on the ground that she had in error imposed a sentence of seven years' direct imprisonment pursuant to a plea-and-sentence agreement in terms of s 105A of the CPA. In her covering letter motivating the request for a special review, the magistrate explains that, after finalisation of the matter and on returning to her office, she realised the error in respect of the sentence imposed. She had intended imposing a sentence in terms of s 276(1)(i) and realised that, in terms of s 276A(2)(b), the sentence agreed upon and imposed exceeded the fixed period of five years' imprisonment allowed by s 276A(2)(b) of the CPA.

[2] The magistrate requests that the sentence be set aside and the matter be referred back to her for purposes of imposing a just sentence in terms of s 105A(9) of the CPA.

Plea-and-sentence proceedings in the court a quo

[3] The accused was charged with contravening the provisions of s 55 read with chs 2, 3, 4, ss 1, 56 – 61, 71(1), (2) and (6) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with ss 92(2) and 94 of the CPA. The state alleged that, on 6 May 2020 at Khayelitsha, the accused unlawfully and intentionally attempted to commit a sexual offence by placing his penis between the buttocks of the minor victim, with the intention of penetrating the victim anally, after pulling down the victim's pants.

[4] The accused was at all times legally represented during the proceedings in the regional court. The state advocate was authorised in terms of s 105A(1)(a) to negotiate and conclude the agreement on behalf of the state and, pursuant to such negotiations, the parties concluded the plea-and-sentence agreement (exh A) in terms of s 105A. On 22 April 2021 the state advocate informed the magistrate that an agreement was concluded and that there was compliance with s 105A(1)(b) of the CPA. The record reflects that, on the magistrate's enquiry, the accused confirmed that he had entered into the agreement with the state. The magistrate declared that she was satisfied that the provisions of s 105A(1)(b) were met. Thereafter the charge was put to the accused, he indicated that he understood the charge and pleaded guilty thereto.

[5] The accused's legal representative read part A (the 'Preamble') and thereafter part B ('Plea of guilty and admissions') of the agreement into the record. As to the allegations in terms of the charge-sheet, the accused admitted that he is the uncle of the minor victim and, on the day, he was watching television from his bed while the victim was sleeping next to him. He then proceeded to remove his nephew's...