THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 196/2017
In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
GAUTENG DIVISION, PRETORIA

and

CORNELIUS JOHANNES HEUNIS
RESPONDENT

Neutral citation: DPP v Heunis (196/2017) [2017] ZASCA 136 (29
September 2017)

Coram:
Bosielo and Seriti JJA and Molemela, Tsoka and Gorven
AJJA

Heard:

29 August 2017

Delivered:
29 September 2017

Summary:
Criminal Law and Procedure: appeal by NDPP against
conviction in terms of the Criminal Procedure Act 51 of 1977 (CPA): the
respondent charged with murder read with s 51(2) of the Criminal Law
Amendment Act 105 of 1997: found guilty of culpable homicide based on his
statement in terms of s 115 of the CPA: reserved question of law: probative
value of a statement made in terms of s 115(2)(a) of the CPA.

___________________________________________________________________________

ORDER

On appeal from: The Circuit Court, Gauteng Division, Pretoria, sitting at
Nelspruit (Mabuse J sitting as court of first instance):

The appeal is upheld.
The conviction of culpable homicide and the sentence of 8 years’
imprisonment wholly suspended for 5 years on suitable conditions as
imposed by the trial court is set aside and replaced with the following:
‘The accused is found guilty of murder’.
The matter is remitted to the trial court for the reconsideration of the
sentence in the light of the new conviction.

JUDGMENT

Bosielo JA (Seriti JA and Molemela, Tsoka and Gorven AJJA concurring):
[1] This is an appeal by the appellant pursuant to the reservation of questions
of law in terms of s 319 of the Criminal Procedure Act 51 of 1977 (CPA). The
appeal is with the leave of the court below.

[2] A brief factual background to this case is as follows: the respondent was
charged with murder, the state alleging that he unlawfully and intentionally
killed one Michelle Curgenven (the deceased) by shooting her with a firearm on
4 July 2013 in Nelspruit. Having pleaded not guilty to the charge, the
respondent tendered a comprehensive plea explanation in terms of s 115(2)(a)

of the CPA wherein he set out the basis of his defence. Essentially, the
respondent admitted that he shot and killed the deceased but averred that it was
negligent and not intentional. He also gave an account of how the fatal shooting
came about. The admissions contained in this explanation were formally
recorded as admissions in terms of s 220 of the CPA. In addition, the respondent
made other formal admissions in terms of s 220 of the CPA.

[3] The deceased was shot whilst occupying the driver’s seat of her vehicle
which was parked in the garage of her home. Her domestic worker was inside
the deceased’s house, but did not hear a shot. The admissions made by the
respondent included that he shot the deceased once and that she died as a result.
The respondent is thus the only person who could explain how this took place.
He elected not to testify.

[4] The crucial evidence for the state for the purposes of this appeal is that of
Captain Christiaan Mangena (Mangena), the police forensic expert. The aspect
on which this appeal largely revolves related to his opinion arising from the
path of the bullet which killed the deceased. The bullet entered at the base of her
left breast on her left side. It exited just below her shoulder blade on her right
side. It then made a hole in the driver’s door of the vehicle. The trajectory
clearly showed that, at the time she was shot, she was facing forward. His
unchallenged evidence was that it was not possible for her to have pushed down
the firearm held by the respondent in the position described by him in his s 115
statement. This much was conceded in argument before us.

[5] In his evaluation of the evidence, the trial judge correctly characterised
the issue in this matter as follows:

‘The issue between the parties in [t]his matter is whether the accused shot the deceased as he
set it out in his plea explanation or whether he had the necessary intention to kill her as set
out in the indictment.’

[6] Having analysed the state’s version together with the appellant’s s 115
statement, the trial court found as follows:
‘In the circumstances, the court will not be justified to find the accused guilty of murder on
the facts before it but instead in accordance with section 115 of the CPA the accused should
be convicted of culpable homicide as he has pleaded in terms of the said section and that is
the conviction of the accused in this matter.’

[7] Based on the above reasoning, the trial court found the appellant guilty of
culpable homicide and not murder. It is clear from the reasoning of the trial
judge that his conviction of the respondent on culpable homicide and not
murder is based solely on the respondent’s s 115 statement. The trial judge
rejected the evidence of the police forensic expert without giving any reasons.
Aggrieved by this finding, the appellant applied for the reservation of questions
of law in terms of s 319 of the CPA, which application was duly granted by the
court below. Hence this appeal.

[8] The appellant’s questions of law that were reserved by the trial court are:
‘1. It is respectfully submitted that the trial court misdirected itself in finding that the
appellant had a duty to inform the respondent before plea that, the facts contained in the plea
explanation in terms of section 115 of Act 51 of  1977, was not sufficient and/or adequate.
2. It is further respectfully submitted that the trial court erred in expecting of the expert
witness, Capt. Mangena (ballistic expert) to draw an inference on the guilt of the respondent,
and then to lean heavily on this inference in determining the guilt of the appellant.
3. It is also respectfully submitted on behalf of the appellant that the trial court misdirected
itself in giving too much probative value to the plea explanation of the appellant (in terms of
section 115 of Act 51 of 1977).

4. It is respectfully submitted that the trial court misdirected itself in not drawing any
inference from the failure of the appellant to forward a detailed, factual explanation. No such
factual, detailed explanation was forwarded in cross-examination, neither did the appellant
testify under oath.
5. It is respectfully submitted that the trial court misdirected itself in not drawing an adverse
inference from the failure of the respondent to testify; in the face of strong circumstantial
evidence.
6. It is respectfully submitted that the trial court misdirected itself in applying the legal
principles pertaining to circumstantial evidence.’

[9] As indicated above, this appeal comes before us by way of s 319 of the
CPA which provides as follows:
‘(1) If any question of law arises on the trial in a superior court of any person for any offence,
that court may of its own motion or at the request either of the prosecutor or the accused
reserve that question for the consideration of the Appellate Division, and thereupon the first-
mentioned court shall state the question reserved and shall direct that it be specially entered
in the record and that a copy thereof be transmitted to the registrar of the Appellate Division.
(2) The grounds upon which any objection to an indictment is taken shall, for the purposes of
this section, be deemed to be questions of law.’

[10] As it is clear from this section, the appellant’s right of appeal is not a
general right but is limited to the questions of law reserved. See Director of
Public Prosecutions, Gauteng v Pistorius [2015] ZASCA 204;2016 (2) SA 317
(SCA) para 24.

[11] On appeal before us, both counsel confined themselves to the approach
adopted by the trial court to the respondent’s s 115 statement. The vexed
question is what weight to accord to the exculpatory parts of a s 115 plea
explanation.

[12] The part of the respondent’s s 115 statement that is relevant for the
purpose of this appeal reads as follows:
‘24.1 Ek en die oorledene is toe saam na die voertuig waar dit in die motorhuis geparkeer
was.  Sy het aan die bestuurskant ingeklim en ek het aan die passasierskant voor langs haar
ingeklim en die skootrekenaarsak met die vuurwapen op my skoot gehou.

24.2
Ek het die vuurwapen uit die skootrekenaarsak uitgehaal en vir die oorledene gesȇ dat
ek my eie lewe gaan neem. Die oorledene het vir my gesȇ om die vuurwapen weg te sit.

24.3
Ek het na haar gedraai en die vuurwapen onder my ken gehou. Ek het my vinger op
die sneller van die vuurwapen gehad.

24.4
Die oorledene het by my gepleit om dit nie te doen nie. Ek het die vuurwapen laat sak
en vir die oorlede gevra “maar hoekom nie”?

24.5
Die oorledene het toe my hand waarin die vuurwapen was probeer afdruk. Op dié
stadium het ŉ skoot afgegaan.’

[13] It is clear from paragraphs 24.1 to 24.5 of the respondent’s s 115 plea
explanation that he had admitted the following essential facts: that he was
seated in the front seat of the vehicle; that the deceased was seated in the
driver’s seat whilst he was seated in the passenger seat; that he had his loaded
firearm in his hand; that the firearm went off and a bullet hit the deceased; that
the deceased died as a result of the gunshot; that he acted negligently. Crucially,
the two reports compiled by Captain Mangena were also admitted.

[14] It is no exaggeration to say that the issue of what weight to accord to the
exculpatory aspects of a s 115 plea explanation tendered by an accused, which
is not repeated in evidence has long engaged our courts and spawned many
judgments.

[15] This Court enunciated the correct approach in R v Valachia & another
1945 826 (AD) as follows:
‘Naturally, the fact that the statement is not made under oath, and is not subject to cross-
examination, detracts very much from the weight to be given to those portions of the
statement favourable to its author as compared with the weight which would be given to them
if he had made them under oath, but he is entitled to have them taken into consideration, to be
accepted or rejected according to the Court’s view of their cogency.’

[16] This salutary approach has since been consistently followed and was
recently restated in S v Cloete 1994 (1) SACR 420 (A) at 428B-C and E-G
where this Court cited that matter with approval and elaborated on this approach
as follows:
‘. . . I can think of no other reason why a court should be entitled to have regard to the
incriminating parts of such a statement while ignoring the exculpatory ones.’
and
‘It seems to me that . . . the Legislature has, in s 115, provided a procedure whereby material
can be placed before the court. It is true that an accused may try to abuse it, but the court
should ensure that such an attempt does not succeed by refusing to attach any value to
statements which are purely self-serving, and, generally, by determining what weight to
accord to the statement as a whole and to its separate parts.’
This approach was further clarified in S v December 1995 (1) SACR 438 (A) at
444B-E:
‘Statements contained in a confession which are not supported by credible evidence can
obviously not be taken for the truth, especially when they are exculpatory in nature . . . . But
they may serve to alert a court to a possibility of events or circumstances not otherwise

revealed by the evidence . . . . And if that possibility is a reasonable one having regard to the
evidence and the probabilities as a whole the appellant, even if he repudiates the statement, is
entitled to have his conduct and state of mind assessed in the light thereof.’

[17] Having considered the evidence as a whole, including the respondent’s
s 115 statement, I am of the view that the trial court did not apply the law as set
out above. The clear and unchallenged evidence of Captain Mangena was to the
effect that the crucial part of the respondent’s statement as to how the shot came
to be fired, could not be true.  This left in place the admitted shooting without
any credible explanation as to how this came about. The clear evidence is that
the respondent shot the deceased while she was facing forward in the vehicle
and that no action of hers caused the shot to go off. Taking into account the
trajectory of the bullet, the only reasonable inference is that the respondent
intended to shoot the deceased. This must, thus, amount to a direct intention to
kill, absent any explanation by the respondent.

[18] To my mind, this damning evidence called for an answer from the
respondent. No answer came forth from him. Instead, he elected to rely on his
unsworn s 115 statement which, as indicated above, was problematic in its
essential feature.

[19] On a proper reconsideration of the evidence including the respondent’s
s 115 statement, I am of the view that although the respondent was exercising
his constitutional rights in terms of s 35(3)(h) ‘to remain silent and not to testify
during the proceedings’, his failure to do so must be taken into account against
him. See Ex parte The Minister of Justice: In Re R v Jacobson & Levy 1931 AD
466 at 478-479 where this Court held:

‘In the absence of further evidence from the other side, the prima facie proof becomes
conclusive proof and the party giving it discharges his onus’.
This salutary approach was confirmed in S v Boesak 2000 (1) SACR 633 (SCA)
where this Court stated that:
‘[46] It is trite law that a court is entitled to find that the State has proved a fact beyond
reasonable doubt if a prima facie case has been established and the accused fails to gainsay it,
not necessarily by his own evidence, but by any cogent evidence.
‘[47] . . . . Of course, a prima facie inference does not necessarily mean that if no rebuttal is
forthcoming, the onus will have been satisfied. But one of the main and acknowledged
instances where it can be said that a prima facie case becomes conclusive in the absence of
rebuttal, is where it lies exclusively within the power of the other party to show what the true
facts were and he or she fails to give an acceptable explanation. In the present case the only
person who could have come forward to deny the prima facie evidence that he had
authorised, written or signed the letter, is the appellant. His failure to do so can legitimately
be taken into account.’

[20] Based on Boesak (supra) the failure by the respondent to tender evidence
under oath has resulted in the state’s strong evidence becoming conclusive
proof of his guilt beyond reasonable doubt. It follows that the trial court erred in
deciding the case solely on the respondent’s s 115 statement. The respondent
should have been convicted of murder and not culpable homicide.

[21] The question now remains what now? Section 322 of the CPA allows this
Court to set aside the conviction, if incorrect, and substitute the correct one. It
also gives this Court a discretion concerning sentence. It follows that the
conviction of culpable homicide must be set aside and replaced with one of
murder in terms of s 322(3) of the CPA.

[22] Regarding sentence, it is only fair that this matter be remitted to the trial
court for a reconsideration of an appropriate sentence in the light of the findings
of this Court as set out in this judgment.
[23] In the result, the following order is made:
The appeal is upheld.
The conviction of culpable homicide and the sentence of 8 years’
imprisonment wholy suspended for 5 years on suitable conditions as
imposed by the trial court is set aside and replaced with the following:
‘The accused is found guilty of murder’.
The matter is remitted to the trial court for the reconsideration of the
sentence in the light of the new conviction.

________________________
L O Bosielo
Judge of Appeal

Appearances
For the Appellant:
JJ Kotzè

Instructed by:
Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein

For the Respondent:
PF Pistorius
Instructed by:
Coert Jordaan Inc., Nelspruit
Giorgi & Gerber Attorneys, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

29 September 2017

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

DPP v Heunis (196/17) [2017] ZASCA 136 (29 September 2017)

Today the Supreme Court of Appeal (SCA) handed down a judgment on appeal lodged by the
appellant in terms of s 319 of the Criminal Procedure Act 57 of 1977 (CPA) against the
judgment of the Circuit Court, Gauteng Division.

The respondent had been charged with the murder of the deceased by shooting her with a
firearm. Although the respondent had pleaded not guilty to the charge, he tendered an
elaborate plea explanation in terms of s 115 of the CPA; in which he basically admitted all the
elements of the crime save for intent. He explained that he shot the deceased negligently and
not intentionally.

The appellant’s case revolved around the evidence of a police ballistic expert, whose
conclusions are that, contrary to the respondent’s version in the s115 plea explanation, the
deceased was shot at close range. He concluded, based on his expertise that the respondent
shot the deceased intentionally and not negligently.

At the end of the state’s case, the respondent closed his case without tendering evidence to
refute the state’s case.

In his evaluation of evidence, the trial judge rejected the state’s evidence and convicted the
respondent on culpable homicide based on his s115 plea explanation.

The most crucial attack against the judgment of the court below is that the trial judge erred by
giving undue evidentiary value to the respondent’s s115 plea explanation whilst it was not
repeated under oath as evidence.

The SCA found unanimously that the trial judge adopted an incorrect approach to the
evaluation of evidence. It found that, although it was legally permissible to consider the
respondent’s s115 plea explanation as part of the body of evidence presented, the trial court
erred in giving it evidentiary value. The SCA held that by virtue of the fact, the s115 statement
was not repeated under oath and further that it was not subjected to cross-examination, it
carried less if any evidentiary value.

In the result, the appeal was upheld and the conviction of the appellant on culpable homicide
was set aside and replaced with a conviction on murder.

Regarding sentencing, the case was remitted to the trial judge for a reconsideration of the
sentence in the light of the new conviction on murder.