IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO.23/00
In
the matter between:
SKHOMBISO
ISAAC MKHATSHWA APPELLANT
VS
REX RESPONDENT
CORAM :
STEYN J
A
:
BROWDE J
A
:
BECK J
A
FOR
THE APPELLANT : MR. TWALA
FOR
THE RESPONDENT : MRS. DLAMINI
JUDGMENT
Steyn
J
A:
Appellant
appeared in the High Court on a charge of murder. He was found guilty
and sentenced to 12 years' imprisonment. He has appealed both against
his conviction and sentence. His appeal was noted on grounds set out
in a letter dated the 24th of November 1999. One of the grounds
raised by him was that "the witnesses did not deliver the
evidence in chief before the Court." In order to understand this
complaint it is necessary to summarize what took place at the trial
before Sapire CJ.
2
The
record reflects that the murder charge was read to the appellant and
he was asked to plead. His response is recorded as follows: "ACCUSED:
My Lord I understand the charge and I plead guilty to culpable
homicide." The appellant was represented by counsel who is then
recorded as saying: "I confirm the plea." Crown counsel
then proceeded to read into the record what was subsequently referred
to by her as "agreed facts." Because of our views
concerning the undesirability of conducting proceedings in the manner
evidenced by the record in this case, these "agreed facts"
are set out in full.
They
are recorded as follows: "CC: PW1 who is a sister to the
accused... Your Lordship its as it appears in the summary of evidence
although there are some few additions...
PW1
who is a sister to the accused and a daughter of the deceased saw
accused at about 0500 hours arriving home. Accused had been away for
a long time from home.
Deceased
was a blind woman. Accused got into the house and slept. He woke up
at about 1000 hours and went to the neighbours. He came back carrying
a stick and went straight to the deceased. He assaulted the deceased
with it. PW1 raised an alarm. PW2 responded to the alarm. PW2 was
also assaulted by accused. PW2 then took deceased with her to her
homestead. Along the way accused came running and stabbed deceased
several times with a knife. PW2 ran away to raise an alarm. PW3
responded to the alarm. He found accused stabbing deceased. Accused
then ran away to hide inside a homestead in the same area. Deceased
was rushed to a nearby clinic but was pronounced dead few minutes
later. The matter was reported to the police and PW5 arrested the
accused on the same day."
JUDGE: Are
those all the agreed facts?
CC: I
will add more Your Lordship.
JUDGE: Please
carry on.
CC: The
accused then stated the reasons for stabbing the deceased to death as
that deceased refused him to have his clothes put in deceased's
homestead. The second reason was that he believed that his father had
died because of deceased's
3
witchcraft
actions. Those are the reasons that he stated when he was arrested
Your Lordship.
JUDGE: Is
that the complete..?
CC: That
is all Your Lordship."
The
Court then asked defence counsel what he had to say about the "agreed
facts" as read into the record by Crown counsel. He responded as
follows:
"DC: My
Lord the main reason which led to this incidence (sic), according to
the accused, as my learned friend has pointed out, was that the
accused was no longer residing at the homestead. When he came back
returning home the deceased, which is the mother to the accused
person, refused him permission to reside at the homestead or to
return his property. The accused felt provoked by this as he had no
other accommodation."
At
this point the court interrupted counsel and said:
"So
he is entitled to stab his mother because of this?" To which
counsel responded by saying: "That's the point..."
The
record next shows that the court then asked counsel to explain to him
"Why this is culpable homicide and not murder?"
Defence
counsel then makes the following comment:
"And
My Lord further, the accused originally believed that the deceased
was responsible for the death of the father through witchcraft My
Lord and as such he always held the deceased at fault for the death
of the father.
JUDGE: Yes?
DC: Those
are the reasons My Lord which led to this incident and that is how
the quarrel started after the argument regarding these two points and
which led to the killing."
4
The
Chief Justice, clearly concerned about the propriety of the
acceptance of a plea of guilty of culpable homicide, in these
circumstances said:
"Once
this plea has been accepted have I got any discretion in the matter?"
To
this Crown counsel responded by saying that the appellant had not
pleaded guilty to culpable homicide. When asked by the judge what he
had pleaded, Crown counsel said: "He was read the charge and he
pleaded guilty as charged." He added: "Those were
extenuating circumstances." The record then reads as follows:
"JUDGE: I
am sorry I missed that. Because I find this ...
CC: He
is saying he is not challenging anything, that is, there is no need
to call witnesses.
JUDGE: In
that event, I find him guilty of murder as charged. Are the facts you
read out what I must rely for mitigating circumstances?
DC: I
have some few points." (these were points to be raised in
mitigation)
A
dialogue then ensued between the Court and defence counsel. During
the course thereof the latter said:
"DC: My
Lord my instructions are that the problem started after the death of
the father and the accused left the homestead to say at his place of
employment and he was subsequently retrenched during this time of
this incidence and he came back home. And it was on his arrival that
he asked to go and fetch the other property which he had left back at
his work place and only to be denied by the deceased to do that. And
I am saying that he had no other place to live at except the
homestead after the retrenchment at his workplace. Those are the
extenuating circumstances that we have."
The
Court then asked Crown counsel whether she accepted the facts stated
by the appellant as "extenuating factors" to which she
responded by saying:
"CC: The
belief in witchcraft Your Lordship."
5
Further
facts and submissions were presented by defence counsel. At the
conclusion of these the Court proceeded to give reasons for sentence
and passed a sentence of 12 years' imprisonment on the appellant.
It
is on the above facts that this appeal has to be decided.
The
following questions arise:
1. How
did the appellant plead in the Court below?
Mrs.
Dlamini who appeared for the Crown both in the High Court and in this
court assured us that the appellant had pleaded guilty as charged. If
this was the Crown's contention, an application for the amendment of
the record should have been made, duly supported by affidavits
explaining how the error occurred. No such application has been made,
and it would be improper for us to make a finding on this issue in
the absence of acceptable evidence as to the fact that the record
incorrectly reflected appellant's plea.
In
the light of the order we intend to make, it is not necessary to give
directions as to how the matter is to be resolved.
2. "What
is the appropriate procedure to be followed in the event of an
accused pleading guilty to a murder charge"
Section
238(1) of the CRIMINAL PROCEDURE AND PROCEDURE ACT 67/1938 provides
that if an accused pleads guilty in the High Court to an offence
other than murder the Court may sentence him for such offence without
hearing any evidence.
Evidence
had therefore to be led to enable the Court to determine not only
that the offence had been committed but, in the event of such proof,
whether after a proper enquiry extenuating circumstances were found
to be present. As to the need to prove the commission of the offence
by admissible and satisfactory evidence, see: R VS KHUMALO 1930 AD
193; S V LOMBARD 1967(4) SA(A) 538 at 541; S V K AND ANOTHER 1964(2)
SA539(T), at 540 and R V FOUCHE 1958(3) SA767 (T), at 774.
6
Mrs.
Dlamini contended that the statement of agreed facts was sufficient
evidence for this purpose. She relied in this regard on the provision
of Section 272(1) of Act 67 of 1938 which reads as follows:
"In
any criminal proceedings the accused or his representative in his
presence may admit any fact relevant to the issue and any such
admission shall be sufficient evidence of such fact."
In
the work "COMMENTARY ON THE CRIMINAL PROCEDURE ACT," du
Toit, de Jager et al, at 24-80, the learned authors say: "An
accused may only admit facts, not evidence of those facts."
In
the same paragraph they also say: "Care should therefore be
taken in regard to the form in which these admissions are made."
See in this regard S V NZUZA 1963(3) SA (A) 631; S V SEROME AND
ANOTHER 1968(4) SA420 (A) at 426.
The
portion of the record cited above demonstrates clearly how far the so
called statement of agreed facts falls short of the requirements to
enable its contents to constitute "sufficient proof as provided
for in Section 161. Certainly the incoherent, unintelligible and
confused contributions of Crown and defence counsel, failed to lay a
factual foundation on which a court could rely with any confidence to
make its findings. This, in turn, meant that the court's
determination of what in fact the extenuating circumstances were and
the extent to which they and other personal factors mitigated the
offence allegedly committed by the appellant, was inevitably based on
unclear and incoherent material.
It
is in any event our view that the proper procedure when trying an
accused on a charge of murder is always to lead evidence. It is a
long standing and salutary practice when an accused pleads guilty of
murder, to enter a plea of not guilty. (See SOUTH AFRICAN CRIMINAL
LAW AND PROCEDURE 2nd ED., page 373). The court then proceeds to hear
evidence not only of the fact that the offence has been committed,
but also
7
evidence
which will satisfy the court of the fact of the accused's guilt and
his degree of legal and moral blameworthiness.
None
of this was done in this case. There has therefore in our view been a
serious irregularity which vitiates the proceedings in the High
Court.
3. What
is the proper order for this Court to make in these circumstances?
It
is our view that the proceedings in the High Court were a nullity.
The appeal must therefore be upheld and the conviction and sentence
are set aside. The Director of Public Prosecutions is at liberty to
have the appellant arrested, to re-indict him and to have him retried
in the High Court on the same charge. In view of the gravity of the
offence with which he was charged, it is manifest that the Director
of Public Prosecutions should do so. In view of the irregularity the
accused was never in jeopardy of being convicted and cannot plead
autrefois acquit.
J.H.
STEYN
J
A
I
AGREE:
J.
BROWDE
J A
I
AGREE:
C.
E.
L.
BECK J
A
Delivered
on the
13th
day
of
December 2000.
