Motlhaping v S (CAF17/15) [2015] ZANWHC 60 (17 September 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

CASE NO.: CAF 17/15

In the matter between:

BEN MOTLHAPING

APPELLANT

and

THE STATE

RESPONDENT

LANDMAN J, GURA J & CHWARO AJ

JUDGMENT

Landman J:

Introduction

[1] Ben Motlhaping, the appellant, was arraigned before Hender J in 2001 on two counts of murder, one count of the unlawful possession of a firearm and one count of the unlawful possession of ammunition. He was sentenced to life imprisonment on the counts involving murder and 5 and 2 years imprisonment respectively on the remaining counts. The appellant appeals against conviction and sentence with leave of a judge of this court as the trial judge are retired.

Appeal against conviction

[2] An accused facing a trial for allegedly committing a criminal offence is entitled to hear the indictment and to be given an opportunity to plead to the indictment before any evidence is led. This right is a basic human right.

[3] Section 35 of the Constitution of the Republic of South Africa provides, inter alia, that:

(3) Every accused person has a right to a fair trial, which includes the right –

(a) to be informed of the charge with sufficient detail to answer it;

…

(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;

(4) Whenever this section requires information to be given to a person, that information must be given in a language that the person

understands.

[4] Section 105 of the Criminal Procedure Act 51 of 1977 provides:

“Accused to plead to charge

The charge shall be put to the accused by the prosecutor before the trial of the accused is commenced, and the accused shall, subject to the provisions of sections 77, 85 and 105A, be required by the court forthwith to plead thereto in accordance with section 106.”

Section 106 sets out the nature of the pleas that an accused may enter.

[5] In this case when the prosecutor requested that the indictment be read to the appellant, the trial Judge turned to appellant’s

counsel and asked her whether she represented the appellant and then said: “And the accused is familiar with the charges against him?” When counsel replied in the affirmative the trial Judge said “And he has instructed you to plead?” Counsel replied: “Not guilty.” The trial judge then said:

“Just confirm with the accused that he pleads not guilty on all the charges. No, just ask him if he pleads not guilty on all the charges. You will interpret what I say and not what you want to interpret.”

The appellant replied: “Not guilty.”

[6] In S v Sithole and Others 1999 (1) SACR 227 (TPD) at 230 c – d where Jordaan AJ said:

“To convict an accused on a charge he was not requested to plead to is in my view such a departure from the rules and principles governing the conduct of criminal proceedings that it cannot be countenanced. It is further a fundamental right in terms of s. 35(3)(a) of our Constitution Act 108 of 1996, that an accused has a right to a fair trial which includes the right to be informed of the charge with sufficient detail to answer it.”

See also S v Mamose and Others 2010 (1) SACR 121 (SCA) at par. 7) which approved this dictum.

[7] The approach adopted by the trial judge, in requiring or permitting counsel to plead on behalf of the appellant is not in accordance with the provisions of the CPA. There is some support for this approach, although pre-dating the present constitutional dispensation in S v Mbatha and Others 1962 (2) SA 454 (N) at 456 where Henning J, James J concurring, in the context of several accused charged with faction fighting, said:

‘It seems to me that if he authorized another, for example his attorney, to convey his plea to the presiding officer and that plea is properly and correctly conveyed, then he has duly pleaded.’

In R v Chinowaito and Others 1967 (2) SA 494 (R,AD) the court said at 495:

‘It is not TYPE. Counsel has no right to plead on behalf of an accused persons.’

It is not unknown for an accused to plead and then for counsel to inform the court that the plea is not in accordance with his or her instructions. In my view it is best to follow the letter of the law and have the indictment read to an accused and have the accused plead to it.

[8] Counsel for the appellant submitted that the convictions and sentences ought to be set aside on this ground alone. That is not the correct way in which to evaluate the complaint. The inquiry on appeal is whether the complaint is of such a nature that it can be said that the accused did not have a fair trial. In undertaking this task it needs to be borne in mind that the right to a fair trial conferred by s 25(3) of the Constitution of the Republic of South Africa, Act 108 of 1996 is broader than the list of specific rights set out in paras (a) to (o) of the subsection. And the trial must be fair in accordance with "notions of basic fairness and justice”. S v Zuma and Others 1995 ZACC 1; 1995 (2) SA 642 (CC) para [16].

[9] I am satisfied from a reading of the record that the appellant knew he was indicted on two counts of murder and that he confirmed

counsel’s statement that he pleaded not guilty to those charges. I need not deal with the other two counts as they cannot

stand. No evidence was adduced before the court that the appellant was in unlawful possession of a firearm or unlawful possession of ammunition. The inference, presumably drawn by the trial judge, that because the deceased were shot that the firearm used and the ammunition were possessed by the appellant unlawfully is not the only reasonable inference that can be drawn.

[10] No further submissions were made as regards the appeal on sentence.

[11] There is no indication on record prior to sentence that the minimum sentence legislation was applicable and no warning of any kind was given to the appellant or his counsel. Counsel for the respondent does not support the sentences imposed.

[12] It follows that the judge was not entitled to sentence the appellant, as he did, in accordance with the minimum sentence dispensation. See S v Machongo 2014 ZASCA 179. This means that this court is entitled to impose sentence afresh.

The personal circumstances of the appellant

a) The appellant was the grandson of the deceased.

b) He was 38 years old at the date of his trial.

c) He was married and had a son aged 13 that he cared for while his wife worked in Johannesburg.

d) He completed standard 7.

e) He worked for the Railways as from 1984 until his arrest.

f) He earned R1 600 per month.

g) He was in custody for two years prior to his conviction and sentence.

h) He has no relevant previous convictions.

The crime

a) The appellant killed his grandmother and his grandfather. This is especially heinous.

b) No motive was provided but clearly there was a motive of some magnitude that drove him to kill them.

a) The appellant expressed no remorse.

The interest of society

[13] Society expects that the court will express its abhorrence of these crimes and impose an appropriate punishment.

[14] Taking all the factors and circumstances into account together with the goals of sentencing and not forgetting a measure of mercy I am of the view that a sentence of 25 years would have sufficed on each count and that the sentence should have run concurrently. But the accused had been in custody for two years awaiting trial. This equates roughly to four years imprisonment as a sentenced inmate. A sentence of 21 years imprisonment would therefore be opposite backdated to 18 June 2001.

Order

[15] In the premises I make the following order:

1. The appeal against conviction on counts 1 and 2 is dismissed.

2. The appeal against the conviction on counts 3 and 4 succeeds and the convictions and sentences are set aside.

3. The appeal against sentence on counts 1 and 2 succeeds.

4. The sentences of life imprisonment on counts 1 and 2 are set aside and replaced with a sentence of 21 years imprisonment on each count.

5. The sentences imposed in paragraph 4 of this order are to run concurrently.

6. The sentences are backdated to 18 June 2001.

A A Landman

Judge of the High Court

I agree

Samkelo Gura

O K Chwaro

Acting Judge of the High Court

APPEARANCES:

Date of hearing:

31 July 2015

Date of Judgment:

17 September 2015

Counsel for the Appellant:

Adv Nkhahle

Instructed by:

The Mafikeng Justice Centre

Counsel for the Respondent:

Adv Nontenjwa

The Director of Public Prosecutions