THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 650/12
Not reportable

In the matter between:

TSHIRANGWANA MASOTSHA TSHILIDZI

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Tshilidzi v S (650/12) [2013] ZASCA 78 (30 May 2013)

Coram:

Lewis, Shongwe and Majiedt JJA and Van der Merwe

and Swain AJJA

Heard:

23 May 2013

Delivered:

30 May 2013

Summary: Criminal procedure ─ acceptance by prosecutor of plea of
guilty on lesser or  alternative charge at the outset of the trial ─ court
bound thereby.

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ORDER
______________________________________________________________

On appeal from: Limpopo High Court, Thohoyandou (Hetisani J sitting as
court of first instance):

The conviction and sentence are set aside.
______________________________________________________________

JUDGMENT
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VAN DER MERWE AJA (LEWIS, SHONGWE AND MAJIEDT JJA AND
SWAIN AJA CONCURRING):

[1] The appellant was convicted by Hetisani J in the Limpopo High Court
of rape and sentenced to life imprisonment. The court a quo granted leave to
appeal against the sentence, but leave to appeal against the conviction as
well was granted by this court. On 23 May 2013 this court set aside the
conviction and sentence and indicated that reasons for the order would follow.
These are the reasons.

[2] In terms of the indictment the appellant was charged with a main
charge of rape and an alternative charge of contravention of s 14(1) of the
Sexual Offences Act 23 of 1957. At the outset of the trial, the appellant, who
was legally represented, pleaded not guilty on the main charge but guilty on
the alternative charge. For this purpose, a statement in terms of s 112(2) of
the Criminal Procedure Act 51 of 1977 was prepared and signed by the
appellant. The prosecutor told the court that she had read the statement and
accepted the plea. The statement was then read into the record, confirmed by
the appellant and handed to the court. The contents of the statement clearly
indicated that the appellant was guilty of the offence to which he had pleaded
guilty.

[3] Hetisani J, however, refused to accept the plea of guilty on the
alternative charge. As a direct result thereof, the appellant withdrew the plea
of guilty on the alternative charge and pleaded not guilty on both the main and
alternative charges. The trial proceeded on this basis.

[4] It is clear from the record that the trial judge refused to accept the plea
of guilty on the ground that it was inconsistent with the summary of substantial
facts that accompanied the indictment in terms of s 144(3)(a) of Act 51 of
1977. In so doing, as I will show, he committed a gross irregularity.

[5] In S v Cordozo 1975 (1) SA 635 (T) the appellant had been charged in
the magistrate’s court with reckless driving, or, alternatively, negligent driving.
The appellant pleaded guilty to negligent driving and the prosecutor accepted
the plea. The magistrate indicated that the court was not bound by the
acceptance of the plea and the trial proceeded, resulting in a conviction of
reckless driving.

[6] On appeal, this conviction was set aside on the grounds set out as
follows by Botha J at 638E-G and 639D:
‘In my view it is clear that the magistrate was under a misapprehension, namely, that
he could prevent the prosecutor from accepting a plea as was tendered in the
present case. It is the function of the Attorney-General and his representatives to
decide the charges upon which an accused should be brought to trial and the
function of the Attorney-General and his representatives in that regard extends up to
the time when a plea is tendered and the decision has to be made whether the plea
is to be accepted or not.

The magistrate seems to have thought, according to his reasons for
judgment, that the prosecutor was usurping the rights of the court; on the contrary, in
my view, it was the magistrate who was trying to encroach upon a power pertaining
to the prosecutor, as to the exercise of his discretion in accepting or refusing the plea
tendered.
. . .
When the prosecutor accepted the plea of guilty to negligent driving, it was implicit in
his attitude that he was abandoning the main charge, which was one of reckless
driving. This was quite clearly again a matter entirely within the discretion of the

prosecutor, and the magistrate was powerless to do anything to change the position
created by the acceptance of the plea.’

[7] In S v Ngubane 1985 (3) 677 (A) at 683E-F, this position was
confirmed by this court when it said the following in respect of the acceptance
of a plea by a prosecutor at the commencement of the trial:
‘It must be seen as a sui generis act by the prosecutor by which he limits the ambit of
the lis between the State and the accused in accordance with the accused’s plea.
Whether one in a case such as the present speaks of amendment, withdrawal or
abandonment of the murder charge does not really seem to matter. That the lis is
restricted by acceptance of the plea appears from ss 112 and 113. The proceedings
under the former are restricted to the offence “to which he has pleaded guilty” and
the latter must be read within that frame.’

[8] Today this is even more clear. The independence of the prosecuting
authority concerning prosecutions is entrenched in s 179 of the Constitution
and effect is given thereto by the provisions of the National Prosecuting Act
32 of 1998 (see for instance ss 20(1) and 32. See also National Director of
Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) paras 28-39).

[9] The acceptance by the prosecutor of the plea of guilty on the
alternative charge had the result of removing the main charge from the
indictment. It follows that the conviction on the main charge could not stand.
In addition, as a result of the subsequent withdrawal of the plea of guilty on
the alternative charge, this court could not substitute the conviction with one
of guilty on the alternative charge. Because of the ineptitude of the trial judge,
the appellant spent several years in prison in respect of a crime that he was
not in jeopardy of being legally convicted.

[10] For these reasons the conviction and sentence were set aside.

_____________________
C H G VAN DER MERWE
ACTING JUDGE OF APPEAL

APPEARANCES:
For Appellant:

L M Manzini
Instructed by:
Justice Centre, Bloemfontein

For Respondent:

Ms S M Mahada
Instructed by:
The Director of Public Prosecutions,
Thohoyandou

The Director of Public Prosecutions,

Bloemfontein