S v Sethoga and Others

• Jurisdiction: South Africa
• Citation: 1990 (1) SA 270 (A)

S v Sethoga and Others
1990 (1) SA 270 (A)

1990 (1) SA p270

Citation	1990 (1) SA 270 (A)
Court	Appellate Division
Judge	Smalberger JA, Nestadt JA, Vivier JA, Kumleben JA and Friedman AJA
Heard	August 18, 1989
Judgment	September 12, 1989

Flynote : Sleutelwoorde B

Criminal procedure — Trial — Plea — Change of — After evidence led — Court not bound by plea accepted by prosecutor — Prosecutor not able to interfere with Court's duty to determine issues raised between State and accused by accused's plea by accepting a plea of guilty to a lesser C offence and thereby seeking to limit the lis between the parties.

Headnote : Kopnota

Where several accused who had been charged with several counts and had initially pleaded not guilty on all counts, sought, after evidence had been led, to change their pleas to guilty to certain of the charges, acceptance by the prosecutor of the pleas at that stage of the D proceedings was held not to have the same effect as the acceptance of a plea before the commencement of the trial in that the Court was not bound thereby. Once an accused had pleaded not guilty the Court was seized with the duty of determining the issues raised between the State and the accused by the latter's plea, and the prosecutor could not interfere with that duty and compel the Court to enter a plea of guilty on lesser charges, thereby seeking to limit the lis between the State E and the accused. The trial Court had accordingly been entitled to convict appellants on counts on which they had pleaded not guilty provided the evidence was sufficient to justify their convictions. Their appeals on that ground against their convictions fell to be dismissed.

Case Information

Appeal against convictions and sentences in Transvaal Provincial Division (De Klerk J). The facts appear from the judgment of Smalberger F JA.

G Bizos SC (with him S L Joseph ) for the appellants referred to the following authorities: S v Ngubane 1985 (3) SA 677 (A) at 683E and 685A - E; S v Dladla en Andere 1980 (1) SA 1 (A) at 3F - H and 4A; S v Sigwahla 1967 (4) SA 566 (A) at 570A - F; S v Nkombani and Another 1963 (4) SA 877 (A) G at 895E - H and 896A - B; S v De Bruyn en 'n Ander 1968 (4) SA 498 (A) at 510E - H; S v Burger 1975 (4) SA 877 (A) at 879B - C; S v Nhlapo and Another 1981 (2) SA 744 (A) at 751B - E; S v Nkwenja en 'n Ander 1985 (2) SA 560 (A) at 568E - 569D; S v Coetzee en 'n Ander 1974 (3) SA 571 (T) at 574A - C; S v Mula 1975 (3) SA 208 (A); S v Mapatsi H 1976 (4) SA 721 (A) ; S v Letsolo 1970 (3) SA 476 (A) at 476F - H; S v Ngomo 1984 (3) SA 666 (A) at 674E - G; S v Mohlobane 1969 (1) SA 561 (A) at 565C - E; S v Lehnberg en 'n Ander 1975 (4) SA 553 (A) at 561A - H; S v Ceaser 1977 (2) SA 348 (A) at 351A - F; S v Jansen and Another 1975 (1) SA 425 (A) at 427H; S v Mzinyane and Others 1988 (2) SA 151 (A); S v Van der Berg 1968 (3) SA 250 (A).

I D P van den Berg for the State referred to the following authorities: S v Cordozo 1975 (1) SA 635 (T); S v Dladla en Andere 1980 (1) SA 1 (A) at 3 - 4; S v Dlodlo 1966 (2) SA 401 (A) at 405; R v Du Plessis 1944 AD 314 at 318; S v Du Preez 1972 (4) SA 584 (A); S v Grove-Mitchell 1975 (3) SA 417 (A) at 422; S v Henning 1964 (1) SA 703 (O); R v Karg 1961 (1) SA 231 (A); R v Komo 1947 (2) SA 508 (N); S v Kritzinger en 'n Ander J 1973 (1) SA 596 (C)

1990 (1) SA p271

A at 602; S v Mapatsi 1976 (4) SA 721 (A); S v Mienies 1978 (4) SA 560 (A) at 562; S v Mlangeni 1976 (1) SA 528 (T); S v Mnyandu 1973 (4) SA 603 (N); S v Mohlobane 1969 (1) SA 561 (A); S v Mokoena 1981 (1) SA 148 (O); S v Mokhobo 1989 (1) SA 939 (A); S v Ngubane 1985 (3) SA 677 (A); S v Sikweza 1974 (4) SA 732 (A).

B Cur adv vult.

Postea (September 12).

Judgment

Smalberger JA:

The six appellants appeared before De Klerk J and two assessors in the Transvaal Provincial Division on four counts of murder C (counts 1 to 4), four counts of attempted murder (counts 5 to 8) and one count of arson (count 9). The charges related to an occurrence which took place at approximately 9.15 pm on 2 July 1987 when the house of Mrs Elinah Masupa at 12743 Mocke Street, Daveyton, Benoni, was deliberately set on fire. The house was occupied by a number of people at the time. Four of them died from burn wounds sustained in the fire; yet another D four suffered serious injuries, but survived the ordeal.

The appellants initially all pleaded not guilty to the charges against them. Certain formal admissions were made on their behalf in terms of s 220 of the Criminal Procedure Act 51 of 1977 (the Act). These related mainly to the identity of the four deceased and their causes of death. E The State then proceeded to call a number of witnesses. The salient features which emerge from their evidence are the following. At about 8 pm on the night in question the six appellants, who were under the influence of intoxicating liquor in varying degrees, created a disturbance (inter alia by fighting amongst themselves) in a café in Daveyton. Hendrik Masupa (Mrs Elinah Masupa's son) was at the time F temporarily employed at the café. Because of their behaviour the appellants were eventually refused service, and ordered by Hendrik to leave. They did so, but only after the fourth appellant had struck Hendrik a blow with his fist. They were apparently resentful of Hendrik's attitude towards them. They returned to the café a short while later, and the second and fifth appellants threatened to set the café and its occupants on fire. They then left the scene and proceeded to the G house of one Sibisi. They borrowed a 25 litre container from him. At their demand Sibisi took them to a nearby garage where they purchased approximately R12's worth of petrol. The petrol was poured into the container. Sibisi then drove them to a spot about a kilometre from Mrs Masupa's house, where he dropped them. For his trouble he was given H approximately five litres of petrol. He was admonished to keep quiet about the events that had taken place.

At about 9.15 pm there were a number of people present in Mrs Masupa's house. The house is a relatively small one consisting of a kitchen, two bedrooms and a sitting/dining room. There are doors leading from the I kitchen to the three other rooms. Both the kitchen and the sitting room have outside doors. The house has normal sized windows. The lights of the house were on. Four people were watching television in the sitting room. The other people in the house were in one or other, or both, of the bedrooms. Suddenly all the lights in the house went off. Shortly thereafter they went on again. Two men (identified by one witness as the J third and

1990 (1) SA p272

Smalberger JA

A fourth appellants) entered the kitchen from outside. They called one of the deceased, Christina Masupa, to the kitchen. She went there. At that stage her mother was also in the kitchen. The lights went off again. Petrol was poured over the floor of the kitchen and a match was struck. The petrol caught alight, and very soon the whole house was engulfed in flames. Four of the occupants eventually succumbed from their burn B wounds, while four others were seriously injured. Two babies in the house were miraculously saved from injury.

At the conclusion of Mrs Masupa's evidence the six appellants altered their pleas as follows:

The first and sixth appellants pleaded guilty to arson (count 9).

The second appellant pleaded guilty to arson (count 9) and four counts C of attempted murder (counts 5 and 8).

The third, fourth and fifth appellants pleaded guilty on all nine counts.

In conjunction with their pleas of guilty the appellants each handed D in a signed statement in terms of s 112(2) of the Act admitting all the material elements of the crimes to which they pleaded guilty. The statement of the first appellant (which is identical to that of the sixth appellant) reads as follows:

'I, the undersigned, Johannes Sethoga, do hereby plead guilty to the E charge of arson. The statement herein sets out the facts which I admit and on which I plead guilty:

1.

On the evening of 2 July 1987 I accompanied my co-accused in this case to house No 12743 Mocke Street, Daveyton.

2.

The house is the property of and/or was in the lawful possession and occupation of Elinale Masupa.

3.

F The said house constitutes an immovable structure.

4.

I, together with my co-accused, proceeded to the said house in order to set fire to it.

5.

On our arrival, the said house was set on fire with the use of petrol. Although I did not set fire to the house personally, I nevertheless identified myself with the actions of those who did set the house on fire.

6.

G I had formulated a common purpose with my co-accused to set the said house on fire.

7.

I understood that my conduct aforesaid was unlawful.

8.

I understood that by setting the house on fire it will result in damage and prejudice to the owner thereof.'

The second appellant's statement is to the following effect:

H 'I, the undersigned, Lazarus Motsamai, do hereby plead guilty to the following charges:

(a)

Arson.

(b)

Four counts of attempted murder.

The statement herein sets out the facts which I admit and on which I plead guilty:

1.

I On the evening of 2 July 1987, I...