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Qoko v La Grange and others (CA344/2002)  ZAECHC 14 (22 May 2002)
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In the High Court of South Africa
(Eastern Cape Division) Case No CA 344/2002
In the matter between
FUSILE QOKO Applicant
WA LA GRANGE NO First Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS, EASTERN CAPE Second Respondent
V SANDOW NO Third Respondent
DETECTIVE SERGEANT NDAYI Fourth Respondent
L CUSHE Fifth Respondent
[Review of conviction and sentence following plea of guilty - plea allegedly induced by police threats and a promise of a light sentence - onus on applicant on review.]
On the night of 14 February 2002 members of the South African Police Services arrested the applicant on a quiet country road near Bathurst in the Eastern Cape after his vehicle had left the road and overturned during a police chase. In the boot of his vehicle were six stolen goats and, on the back seat, a stolen sheep. He was taken into police custody.
The upshot was that on 18 February 2002 the applicant was brought before the magistrate in the district court of Port Alfred on a charge of stock theft. He pleaded guilty. The provisions of section 112(1)(b) of the Criminal Procedure Act were applied. During the course of the questioning the applicant admitted that he had stolen the sheep and the goats from a grazing camp on a farm called Martindale Estates near Bathust, and put them in his car. He said that he had been assisted by two young men who had managed to run away. He wanted the stock to start his own farming operations. The magistrate was satisfied that he was indeed guilty of the offence charged, and convicted him. He was given a sentence of 36 months’ imprisonment, of which 12 months’ imprisonment was conditionally suspended for 5 years.
On 4 April 2002 the applicant launched this application. His notice of motion asks for a review of his conviction and sentence, and for an order setting aside his sentence to enable the magistrate to consider entering a plea of not guilty in terms of section 113 of the Act. Section 113 provides for a trial court to enter a plea of not guilty in certain circumstances, in spite of a plea of guilty initially tendered by an accused person. The applicant cites the trial magistrate as first respondent, the Director of Public Prosecutions as second respondent, the public prosecutor of the district court at Port Alfred as third respondent, the police investigating officer as fourth respondent, and the court interpreter of the district court at Port Alfred as fifth respondent. Only the fourth respondent has filed papers in opposition.
The applicant uses the short form notice of motion in terms of rule 6 and not the special procedure for review for which rule 53 provides. No point was made of this at the hearing. The appropriate parties are all before court, and also all the relevant documents and information, except that there are no reasons from the presiding officer because he was not called upon in terms of rule 53 to furnish them. The ground of review is such that the magistrate would not be able to throw any light on the matter even if he gives reasons. Indeed, he has not participated in the proceedings, and has filed a notice in which he abides the decision of the court. So does the second respondent, and also the third and fifth respondents. The application is opposed by the fourth respondent on behalf of the South African Police Services.
The ground of review is that the applicant tendered a plea of guilty to the charge as a result of inducements and threats made to him by the fourth respondent. His case is that when he was interviewed by the fourth respondent on the morning after his arrest he told him what his defence was. He told him that on the night in question, as he was driving home in his vehicle, he offered a stranger a lift. The stranger and two other men got into his car and then hijacked him at gunpoint. They forced him to go to the complainant’s farm where they loaded the stolen animals into his car. They then forced him to drive away from the farm. En route, they drove past a police van blockading the road. The hijackers ordered him to drive through the blockade. He did so. During the course of the police chase which ensued his vehicle went out of control, left the road, and overturned. The hijackers made off before the police arrived. But he waited for the police. When they arrived they were not prepared to listen to his story. The next morning he was advised of his rights by the investigating officer, the fourth respondent. He took the opportunity to tell his story then, which was as outlined above and which was recorded in a so-called warning statement. His version of what happened between him and the fourth respondent thereafter is given in paragraphs 10, 11, 12 and 13 of his affidavit:
… He [the fourth respondent] then told me that it is going to be difficult to investigate the matter. He told me that if I persist [with the defence] I may spend between two and three years awaiting trial while he completes his investigations. He said he would ask the magistrate for several postponements which he would obtain. He showed me some police dockets from 1997/98 which have only recently been finalised.
The fourth respondent then offered me advice. He said if I plead guilty to the charge I would make things easy for myself. He told me he would ask the magistrate to impose a suspended sentence, which the magistrate would do. I asked whether I can obtain a legal representative. He told me that a legal representative would only delay matters. He further told me that if the magistrate asks if I wanted legal representation I should say no.
The fourth respondent assured me that if I do as he tells me the matter would be finalised on Monday the 18 February and I would be allowed to go home. Alternatively, he advised me that I would be released on bail. He further told me that I should arrange to have money with me on Monday because I may need money for a fine or for payment of bail. He assured me that I would be released on Monday. The fourth respondent also discussed with me what I should answer to the questions asked by the magistrate when I appear in court.
I accepted the advice the fourth respondent gave me and honestly believed that it would be in my interest to plead guilty to the charge so as to finalise the matter. I decided to plead guilty because of the assurances I received that I would be released. I was also fearful of the prospect of spending two or three years in prison awaiting trial should I not plead guilty.
Advice from a policeman to a suspect that it is better to make a clean breast of things in court is not necessarily improper or irregular, and will not necessarily result in a plea of guilty being set aside. But it may be different if the advice is coupled with a promise of a light sentence, and is surely different if coupled with a threat of prolonged imprisonment awaiting trial as a result of a plea of not guilty. If the promise and the threat are made to an unsophisticated, poorly educated accused person who is in awe of the police, there is reason to regard it as improper. I am prepared to accept for the purposes of this case that if the fourth respondent acted in the manner alleged by the applicant
his conduct was improper;
it improperly induced the applicant to plead guilty;
this constituted an irregularity in the section 112(1)(b) plea procedure;
the magistrate was obviously unaware of the irregularity, and, had it been brought to his attention, he would have entered a plea of not guilty;
the applicant’s plea of guilty, and the consequent conviction and sentence, should not be allowed to stand;
the magistrate should be placed in a position to entertain an application by the applicant to change his plea from one of guilty to not guilty.
The question is whether it has been established that the fourth respondent acted in the manner alleged by the applicant. He denies on oath that he did so, and places a different version of the facts before us. He has furthermore placed other evidence before us in support of this denial, notably the evidence of the police who arrested the applicant at the scene on the night of the stock theft, and the evidence of the public prosecutor and the court interpreter about what happened in the magistrate’s court after the applicant had been convicted and sentenced.
The applicant’s counsel, Mr de Jager, has argued that the applicant bears an onus of showing on a balance of probabilities no more than that there is a reasonable possibility that he was wrongly induced to plead guilty. He cites Attorney-General v Botha 1993 (2) SACR 587 (A) 592 as authority. He submits that all the applicant need do is to give a reasonable explanation why he falsely pleaded guilty. If he does so, his plea of guilty should be set aside and the matter should be referred to trial. This argument is unsound. It is tantamount to saying that there is no onus at all on an applicant to prove the irregularity upon which he relies for the relief he seeks on review.
The general rule is that an applicant for an order setting aside a criminal conviction and sentence on review on the ground of an irregularity must establish his case. He must prove the irregularity upon which he relies on a balance of probabilities. If authority is necessary for so trite a proposition, it is to be found, for example, in the recent authorities in the Supreme Court of Appeal and the Constitutional Court dealing with the review of a trial judge’s failure to recuse himself on grounds of bias. They are President of the Republic of South Africa and others v South African Rugby Football Union and others  ZACC 9; 1999 (4) SA 147 (CC) at 175 para 45 and 177 para 48; South African Commercial Catering and Allied Workers Union and others v Irvin & Johnson Ltd (Seafoods Division Fish Processing)  ZACC 10; 2000 (3) SA 705 (CC) 713 para 12; Sager v Smith 2001 (3) SA 1004 (SCA) 1010 para 16. See also Geidel v Bosman NO and Another 1963 (4) SA 253 (T) where the irregularity was the giving of evidence in a language which the accused did not understand. The following passage appears from the judgment of Trollip J as he then was at 255 E-F:
In regard to the onus of proof in such proceedings, it is clear from the authorities that the … applicant … must first prove the existence of the irregularity, and that it was so gross that it was calculated to prejudice him, and, if he discharged that onus, then his adversary or opponent must satisfy the Court that he in fact suffered no prejudice.'
The Botha case upon which the applicant relies deals with a different situation. There, the Appeal Court was faced with conflicting decisions in the provincial divisions about the incidence of the onus of proof in a case where an accused person applies to the trial court to change his plea from one of guilty to one of not guilty before he is sentenced. Smalberger JA refers to the following decisions which bear on the interpretation of s 113, which provides for changing a plea of guilty in terms of the Criminal Procedure Act: S v Mbhele 1980 (1) SA 295 (N); S v Zwela 1981 (1) SA 335 (O); S v Pillay 1981 (4) SA 151 (N); S v Mazwi (supra); S v Hazelhurst 1984 (3) SA 897 (T); S v Dingile en 'n Ander 1986 (3) SA 253 (NC); S v De Bruin 1987 (4) SA 933 (C); S v Malili en 'n Ander 1988 (4) SA 620 (T); S v Booysen 1988 (4) SA 801 (E); S v Fourie 1991 (1) SACR 21 (T) and S v Zakay 1991 (1) SACR 167 (E). The learned judge of appeal holds that section 113 places no onus on an accused person who applies to withdraw a plea of guilty before sentence is imposed. He reiterates at 589 C-G the rule that at common law there is also no onus on an accused in these circumstances:
The common law approach was correctly enunciated as follows in S v Britz 1963 (1) SA 394 (T) at 398H-399B:
The accused wishing to withdraw his plea of guilty must give a reasonable explanation as to why he had pleaded guilty and now wishes to change his plea. A reasonable explanation could be, for example, that the plea was induced by fear, fraud, duress, misunderstanding or mistake. If he fails to give an explanation the court would be entitled to hold him to his plea of guilty. If he does give an explanation there is no onus on him to convince the court of the truth of his explanation. Even though his explanation be improbable the court is not entitled to refuse the application, unless it is satisfied not only that the explanation is improbable, but that beyond reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he should be allowed to withdraw his plea of guilty.
There is every justification for not saddling an accused person with an onus where he wishes to change his plea from guilty to not guilty at the trial stage. The presumption of innocence, the duty on the prosecution to prove guilt beyond reasonable doubt, and our notion of what is meant by a fair criminal trial within the framework of the Constitution cry out against imposing any kind of onus on an accused person at that stage. All he need do is to give a reasonable explanation for wanting to change his plea. The position is different when the trial is over. A person who has been convicted and sentenced can no longer approach the trial court for further relief. It is functus officio. He is no longer presumed to be innocent. He has been convicted. He has relieved the State of the onus of proving his guilt beyond reasonable doubt by pleading guilty in the course of a procedure which is designed to satisfy the trial court that he is in fact guilty. He must now approach a superior court either on appeal or review. In either case he must discharge an onus. For example, if he comes on appeal he must satisfy the court of appeal that the trial court was wrong by reason of a misdirection of law or fact or because the court has incorrectly accepted the evidence for the State and incorrectly rejected the evidence for the defence as false. Thus, in a well-known passage on the powers of a court of appeal to disturb a trial court’s findings of fact, Smalberger JA says in S v Francis 1991 (1) SACR 198 (A) at 204C-F
This Court's powers to interfere on appeal with the findings of fact of a trial Court are limited (R v Dhlumayo and Another 1948 (2) SA 677 (A)). Accused No 5's complaint is that the trial Court failed to evaluate D's evidence properly. It is not suggested that the Court misdirected itself in any respect. In the absence of any misdirection the trial Court's conclusion, including its acceptance of D's evidence, is presumed to be correct. In order to succeed on appeal accused No 5 must therefore convince us on adequate grounds that the trial Court was wrong in accepting D's evidence - a reasonable doubt will not suffice to justify interference with its findings (R v Dhlumayo (supra); Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk 1974 (2) SA 450 (A) at 452A-B). Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this Court will be entitled to interfere with a trial Court's evaluation of oral testimony (S v Robinson and Others 1968 (1) SA 666 (A) at 675G-H). [My underlining.]
An applicant on review is in a similar position. Mr De Jager argues that there is no good reason for placing an onus on an accused person after he has been sentenced where he does not have such onus at any earlier stage. This argument is without merit. The short answer is that the incidence of onus is different at the trial stage for sound reasons of social policy and legal principle. Once the trial is over there is no basis for treating an applicant for review on the ground of an irregularly obtained plea of guilty any differently from applicants who bring their application for review on other grounds.
In the present case the applicant bears the onus of proving on a balance of probability that he was wrongfully induced by threats and promises to tender a plea of guilty. He must establish his bona fides by giving a proper explanation of why he pleaded guilty and why he now wishes to change his plea to one of not guilty, which involves setting out a bona fide defence to the charge. He does not have to prove his defence. For the purpose of the review application it is sufficient to raise a defence which might reasonably possibly be true. For the rest, he must discharge the onus resting upon him on a balance of probability.
In my opinion the applicant has failed to discharge this onus. His version of what happened between him and the investigating officer is not worthy of credence and his defence of being hijacked by three unknown gunmen cannot reasonably possibly be true. His entire story is fraught with improbability. Why did the police see only one person - the driver - in his car when he drove through the blockade? What happened to the three hijackers? How could they possibly have made their way out of an overturned vehicle with jammed doors and have completely disappeared, before the police, who were hot on their heels, arrived at the scene? How could the fourth respondent have anticipated the magistrate’s questioning during the section 112(1)(b) plea procedure, and schooled the applicant in the answers he should give? Furthermore, when the applicant’s version is viewed against the evidence as a whole it is shown to be false. It is “so far-fetched [and] clearly untenable that the Court is justified in rejecting [it] merely on the papers (Plascon-Evans Paints Limited v Van Riebeeck Paints (Proprietary) Limited  ZASCA 51; 1984 (3) SA 623 (AD) 634E-635C especially at 635B-C, and Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 923G - 924D). This is established beyond question by the evidence of the third respondent, the public prosecutor who appeared for the State when the applicant pleaded guilty. Her affidavit reveals that in the course of answering the questions put to him by the magistrate in elaboration of his plea of guilty the applicant spontaneously volunteered the information that there were two other “outjies” with him when he committed the stock theft, but that they had run away. Asked what he meant by “outjies” he said they were two young boys whom he had taken with him. The magistrate apparently adjourned and left the court room immediately after imposing sentence. The prosecutor then approached the applicant with a view to ascertaining the identity of the two young boys so that they could be prosecuted. Her affidavit reads:
After the accused had pleaded guilty and was sentenced I approached the applicant and asked if he wanted to tell me who the two young boys were that he took with him in order to commit the offence.
The applicant advised me that the two young boys were in court and pointed them out to me. I immediately requested the police to arrest the two suspects pointed out by the applicant and charged them on the same charge of stock theft. They thereafter appeared in court and [were] released in the custody of their parents.
[The affidavit continues by naming two boys, aged 16 and 17 years,. They are the applicant’s half-brothers. It proceeds as follows:]
I thereafter made a note in the investigation diary for the investigating officer in this matter to approach the applicant and obtain a statement from him in respect of the involvement of the two accused that [were] pointed out by the applicant.
I … subsequently received the investigating officer’s report that the applicant refused to make a statement and accordingly at the next hearing when the two suspects appeared on 18 March 2002 I withdrew all charges … .
The applicant does not deny these allegations. His only comment is that the incident deposed to by the prosecutor occurred after conviction but before sentence. He also admits that the investigating officer called upon him at the Grahamstown prison for a statement implicating the young boys and that he refused to make a statement because they were members of his family, although he denies orally confirming to the policeman at that time that they had been involved. Even if oral evidence and cross-exanimation would resolve the conflicts of fact which emerge from the papers, the applicant cannot get around the effect of the facts to which the prosecutor deposes, which are common cause, and which, in my view, are fatal to his case. The effect of implicating members of his own family in the commission of the stock theft is damning. There is no reasonable possibility of the defence set out in the warning statement being true in the light of his subsequent preparedness to point out members of his family as his assistants. His story of being hijacked is nothing short of fanciful, and that story is inextricably linked with his version of the policeman persuading him to plead guilty. His explanation for pleading guilty when he was not guilty and his exposition of the defence he wishes to put up if given the opportunity to plead not guilty are both part of the same enquiry, which is whether or not he has shown good cause for an order setting aside his conviction and sentence. His case must be evaluated as a whole. In my view, his explanation is hopeless. It must be dismissed out of hand.
In the result the application is dismissed. There are no prayers for costs, and I make no order for costs.
Judge of the High Court
22 May 2002
PICKERING J: I agree.
Judge of the High Court