THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 446/08

In the matter between:

SIPHESIHLE PROTAS MSHENGU                              APPELLANT

v

THE STATE

RESPONDENT

Neutral citation:
Mshengu
v
the
State
(446/2008)
[2009] ZASCA
(29 May 2009)

Coram:

Jafta, Ponnan and Mhlantla JJA

Heard:

13 May 2009

Delivered:
29 May 2009

Summary:
Plea of guilty in terms of s 112 of the Criminal Procedure Act 51
of 1977 – the requirements therefor restated.

ORDER

On appeal from: High Court Petermaritzburg (Natal Provincial Division,
(Van Niekerk AJ and Moleko J concurring)

In the result the following order is made:

1.
The appeal is allowed and the conviction and sentence are set
aside.

JUDGMENT

JAFTA JA (Ponnan and Mhlantla JJA concurring)

[1] On 22 September 2004, the appellant, a 13-year-old, quarrelled
with a 14-year-old boy and stabbed him once in the chest with a knife.
The victim died as a result of the injury inflicted by the appellant. The
next day the appellant was arraigned before the regional court on a charge
of murder. He was represented by an attorney at the trial. He pleaded
guilty to murder and a statement setting out the basis of his plea was
tendered in terms of s 112 of the Criminal Procedure Act 51 of 1977. He
was duly convicted on his plea of guilty and sentenced to eight years’
imprisonment.

[2] He appealed against the conviction and sentence to the
Pietermaritzburg High Court (Van Niekerk AJ, Moleko J concurring).
The conviction was challenged on the basis that the statement tendered
did not satisfy the requirements of s 112(2) in that it failed to admit that
the appellant was criminally liable for his conduct. Accordingly, it was
argued, that the magistrate should not have been satisfied that the
appellant was indeed guilty. The sentence was attacked on the ground that
it was excessive.
[3] The appeal against conviction was dismissed but the sentence
imposed by the trial court was set aside. The matter was remitted to the
trial court for sentence to be considered afresh. This appeal is with the
leave of the high court.
[4] Two issues arise in this mater. The first issue is whether, in view of
the appellant’s age, the statement tendered on his behalf complied with s
112(2) of the Act. If not, whether the matter should be remitted to the trial
court following the setting aside of the conviction.
[5] Before the Act was enacted the prosecution was required to lead
evidence in all trials, including cases where the accused had pleaded
guilty.1 Section 112 of the Act introduced a different procedure that
dispensed with the leading of evidence where a plea of guilty is
tendered.2 However, Parliament sought to protect accused persons against
the consequences of convictions based on incorrect pleas of guilty by
including in the section two safeguards designed to determine whether a
plea of guilty was properly tendered.3 The primary purpose of the written

1 R v Nathanson 1959 (3) SA 124 (A) and S v Roux 1975 (3) SA 190 (A).
2 The relevant part of the section is quoted below.
3 S v Naidoo 1989 (2) 114 (A).

statement in terms of s 112(2) is to set out the admissions of the accused
and the factual basis supporting his or her guilty plea.
[6] Section 112 provides:
‘(1)
Where an accused at a summary trial in any court pleads guilty to the offence
charged, or to an offence of which he may be convicted on the charge and the
prosecutor accepts that plea –
(a)
….
(b)
the presiding judge, regional magistrate or magistrate shall, if he or she is of
the opinion that the offence merits punishment of imprisonment or any other form of
detention without the option of a fine or of a fine exceeding [R1500], or if requested
thereto by the prosecutor, question the accused with reference to the alleged facts of
the case in order to ascertain whether he or she admits the allegations in the charge to
which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of
the offence to which he or she has pleaded guilty, convict the accused on his or her
plea of guilty of that offence and impose any competent sentence.
(2)
If an accused or his legal adviser hands a written statement by the accused into
court, in which the accused sets out the facts which he admits and on which he has
pleaded guilty, the court may, in lieu of questioning the accused under subsection
(1)(b), convict the accused on the strength of such statement and sentence him as
provided in the said subsection if the court is satisfied that the accused is guilty of the
offence to which he has pleaded guilty: Provided that the court may in its discretion
put any question to the accused in order to clarify any matter raised in the statement.’
[7] Section 112(2) requires that the statement must set out the facts
which he admits and on which he has pleaded guilty. Legal conclusions
will not suffice. The presiding officer can only convict if he or she is
satisfied that the accused is indeed guilty of the offence to which a guilty
plea has been tendered. If not, the provisions of s 113 must be invoked.

[8] The statement tendered by the appellant in this mater must be
examined against the above backdrop. It reads:
‘2.
The charge has been explained to me and I understand the charge that is being
brought against me. I was not forced or influenced by any person to plead guilty. I am
making this statement freely and voluntarily in front of my mother Ester Mshengu.
My explanation is as follows:
3.
I admit that I killed Nkosikhona Ngobese, a 14 year old male person, on the
22nd day of September 2004 at and or near Idube Road near House No 324
Mpophomeni in the regional division of Kwa-Zulu Natal. On the day in question I had
an argument with the deceased. As a result of the argument I then took out the knife
from the motor vehicle, went straight to him and stabbed him once in the chest. The
deceased fell on the ground and at that stage he was bleeding. The deceased died as a
result of the wound and bleeding. I then ran away. Few minutes later I was
apprehended by members of the community who called the police. I was then arrested
and charged with murder.
4.
I admit that my actions in stabbing the deceased with a knife resulted in the
deceased’s death. Further to the above I admit that my actions were unlawful and
intentional.
5.
I admit that my actions at the time of the commission of the offence were
unlawful and intentional and that I intended to cause the death of the deceased.’
[9] The above statement does not admit the charge in all of its
ramifications. Section 112 requires as much. It amounts instead to a
simple regurgitation of what must have been the content of the charge
sheet. The accused in this particular instance is rebuttably presumed to be
criminally non-responsible. The burden of rebutting this presumption
rests on the prosecution. An important step in the proceedings was to
ascertain whether his development was sufficient to rebut the
presumption. That plainly did not occur. The prosecution would
obviously have been relieved of that obligation had an appropriate

admission been made by the accused. That likewise did not occur. No
evidence capable of rebutting that presumption had been placed before
the magistrate.  When regard is had to the record in its entirety, it is
obvious that none who were involved in the trial were alive to the
presumption of criminal non-responsibility, that was in operation in
respect of this child.
[10] What was said in the statement was too terse and open to the
construction that, with the benefit of hindsight and the experience of
finding himself in a courtroom, he knew that he had done wrong. The
statement told the magistrate nothing about his state of mind at the time
of the stabbing or of his level of perception then. Nor, if he was mature
enough to answer for his behaviour. For, as it was put by Didcott J in S v
M 1982 (1) SA 240 (N) at 242 D-E:
‘Accused persons sometimes plead guilty to charges, experience shows, without
understanding fully what these encompass. The danger of doing so is obvious in a
society like ours, which sees many who are illiterate and unsophisticated coming
before the courts with no legal assistance. The danger is greater still, it goes without
saying, when such a one is a young child with a limited grasp of the proceedings.
[11] Before us counsel for the state conceded that standing on its own
the statement was deficient in this important respect. He did suggest that
any such deficiency was cured by the fact that the child had legal
representation. I cannot agree. On the facts of this case, there appears to
be no outward manifestation that counsel appreciated that this issue was a
live one. One can hardly therefore take any comfort from that.
[12] It follows that the conviction cannot stand and must be set aside.
[13] The next issue that calls for consideration is whether the course
suggested in s 312 of the Act should be followed in this case. If a

conviction is set aside solely on the basis that s 112 was not complied
with the section requires that the matter be remitted to the trial court for it
to comply with or act in terms of s 113. Section 312(1) provides:
‘(1)
Where a conviction and sentence under section 112 are set aside on review or
appeal on the ground that any provision of subsection (1)(b) or subsection (2) of that
section was not complied with, or on the ground that the provisions of section 113
should have been applied, the court in question shall remit the case to the court by
which the sentence was imposed and direct that court to comply with the provision in
question or to act in terms of section 113, as the case may be.’
[14] In the past the language of the section has been construed to mean
that its provisions were peremptory.4 In S v Arendse and Another5 the
Cape High Court held that s 312 was peremptory but declined to remit the
case because, in its opinion, it was clear that the remittal would serve no
purpose. The court said: 6
‘It seems to me that, notwithstanding the provisions of s 312 (1), that section does not
compel this Court to commit a fatuity. The Act cannot intend that this Court must
remit, in a case where all are ad idem, ie the State is ad idem and the Court agrees
with the State and that is also the attitude of the appellants’ representative that no
conviction can accrue in this case. It seems to me that in those circumstances no Court
is even compelled to follow a course and give an order that certain proceedings must
now take place which are pointless, can have no purpose and can have no outcome,
other than the acquittal of the accused.’
[15] The question that arises is whether the language of the section is
indeed peremptory. The construction that favours the view that it is
peremptory is influenced by the use of the word ‘shall’ in the section. The
word does not, by itself, conclusively determine that a provision is
peremptory. The courts have found it impossible to lay down a conclusive

4 S v Khupiso; S v Africa 1979 (2) SA 605 (O).
5 1985 (2) SA 103 (C) at 108F.
6 Ibid p 107J-108F.

test.7 A court called upon to determine whether a particular provision is
peremptory or directory must construe the language of the concerned
provision in the context, scope and object of the Act of which it forms
part.8 Thus in Maharaj and Others v Rampersad9 this court rejected the
argument that ‘shall’ in the context of the enactment it was concerned
with indicated that the provision was mandatory. The court said:10
‘[Appellant’s counsel] pointed out that the regulation used the word “shall” –
translated in the Afrikaans version by the word “moet” – in relation to the requirement
of attaching to the application a plan or map tracing and, on the authority of such
decisions as Messenger of the Magistrate’s Court, Durban v Pillay 1952 (3) SA 678
(A), and Feinberg v Pietermaritzburg Liquor Licensing Board 1953 (4) SA 415 (A) at
p 419, he contended that this was a “strong indication” that the requirement was
peremptory. In the former of the two cases referred to immediately above
Van den Heever JA described the word “moet” in Kantian terms as embodying the
“categorical imperative”. It would be a work of supererogation to refer to the long list
of examples in our reported case-law where that word, in the light of considerations
pointing to another conclusion, has had to surrender this resounding accolade and
been reduced to the status of a mere directory verb.’
[16] In addition to statutory context, the section must be construed
consistently with the Constitution and if possible it must be given a
construction which will not be inconsistent with an accused’s fair trial
rights. Section 39(2) of the Constitution obliges every court to promote
the spirit, purport and objects of the Bill of Rights when interpreting
legislation. In Fraser v ABSA Bank Ltd (National Director of Public
Prosecutions as Amicus Curiae) the Constitutional Court said:11

7 Leibbrandt v South African Railways 1941 AD 9.
8 Charlestown Town Board v Vilakazi 1951 (3) SA 361 (A).
9 1964 (4) 638 (A).
10 Ibid p 643G-644B.
11 2007 (3) SA 484 (CC) para 47.

‘The
question
raised
by
this
application
is
whether
the
Supreme
Court of Appeal’s interpretation of s 26 [of the  Prevention of Organised Crime Act]
has failed to promote the spirit, purport and objects of the Bill of Rights in terms of s
39(2). …Section 39(2) requires more from a Court than to avoid an interpretation that
conflicts with the Bill of Rights. It demands the promotion of the spirit, purport and
objects of the Bill of Rights. These are to be found in the matrix and totality of rights
and values embodied in the Bill of Rights. It could also in appropriate cases be found
in the protection of specific rights, like the rights to a fair trial in s 35(3), which is
fundamental to any system of criminal justice, and of which the rights to legal
representation and against unreasonable delays are components. The spirit, purport
and objects of the protection of the right to a fair trial therefore have to be
considered.’

[17] The purpose of s 312 is to prevent an injustice which may occur if
an accused person were to escape punishment for his or her crime only
because his or her conviction was set aside on the ground that there was a
failure to comply with s 112 of the Act. But an injustice cannot occur
where the accused has served the entire sentence by the time the
conviction is set aside on appeal. Nor can it occur where a fresh
conviction cannot be achieved following a remittal to the trial court. To
construe s 312(1) in the manner that renders its provisions peremptory
may result in an injustice or even an infringement of an accused person’s
right to a fair trial. There can be no justification for ordering that an
accused person, who has already served the entire punishment, be
subjected to a second trial. Such an order would be inconsistent with the
right to a fair trial. In my view it could never have been the intention of
the legislature that a court is obliged to comply with the section
irrespective of the injustice or unfairness that it may cause. I therefore
conclude that s 312(1) is not peremptory.

[18] The course prescribed by the section must, however, be followed
unless the court on review or appeal is of the view that it would lead to an
injustice or would be a futile exercise. The court retains the discretion not
to order a remittal if the circumstances of the case are such that the
remittal will be inappropriate.

[19] In this matter the appellant had served more than two years of the
original sentence imposed by the trial court when he appeared before it
for re-sentencing. Having had regard to a probation officer’s report and
the time spent by the appellant in detention, the trial court imposed a
sentence of three years’ imprisonment wholly suspended for five years on
certain conditions. There has already been a remittal of the matter to the
trial court which considered it appropriate to impose a non-custodial
sentence. In these circumstances it would be unfair, in my view, to order
a remittal of the case once more.

[20] In the result the appeal is allowed and the conviction and sentence
are set aside.

________________________
C N JAFTA
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:
A M Skelton (Ms)

Instructed by

Mastross Incorporated

Pietermaritzburg

Honey Attorneys

Bloemfontein

FOR RESPONDENT:
S Sankar

Instructed by

The Director of Public Prosecutions

Pietermaritzburg

The Director of Public Prosecutions

Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
29 May  2009

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.

Today, the Supreme Court of Appeal (the SCA) has set aside a judgment of the
Pietermaritzburg High Court which confirmed the conviction of murder against a
teenager.

The appellant who was 13 years at the time the offence was committed, had
quarrelled with a 14-year-old boy and stabbed him once in the chest with a knife.
The next day the appellant appeared before a regional court charged with murder.
He pleaded guilty and was convicted on the basis of his plea of guilty and sentenced
to 8 years’ imprisonment. An appeal to the high court succeeded on sentence only
and the matter was remitted to the trial court to pass a new sentence. It sentenced
him to 3 years’ imprisonment wholly suspended for 5 years on certain conditions.

On a further appeal to the SCA it was argued on the appellant’s behalf that the
statement he made to the trial court and on which that court relied for convicting was
deficient, in that it did not satisfy the requirements of s 112(2) of the Criminal
Procedure Act 51 of 1977. The statement had failed to admit that the appellant had
matured to the level that he could be held criminally liable. In law a child below the
age of 13 years is regarded as not criminally liable unless the prosecution can show
that it is liable.

Having considered the statement the SCA concluded that it indeed failed to comply
with s 112(2) and set aside the conviction.