By Phindile Raymond Msaule

A guilty plea is meant to obviate the need for the state to adduce evidence to prove the guilt of the accused. The accused accepts that their conduct complies with the definitional elements of the charge(s) preferred against them. In terms of s 112(2) of the Criminal Procedure Act 51 of 1977, the accused who pleads guilty to the charge(s) is required to set-out the ‘facts which he admits and on which he has pleaded guilty.’ The accused need not set-out the conclusions of the law but facts from which the court would come to a legal conclusion of guilty. It is, therefore, not necessary for the accused to recite the definitional elements of the offence with which they are charged in their plea statement.

In Mkhize v S (KZP) (unreported case no AR365/21, 3-2-2023) (Chetty J (Ploos van Amstel J concurring)) the High Court failed to appreciate this trite proposition. The accused was charged with murder in terms of s 51(1) read with part 1 of schedule 2 of the Criminal Law Amendment Act 105 of 1997. At his trial, the accused pleaded guilty and the court a quo found him guilty as charged based on his plea. Events leading to the commission of the offence were that the accused and the deceased were involved in a romantic relationship. On 4 August 2019, the deceased informed the accused that she was visiting her mother and that she would be spending the weekend with her. The appellant discovered that this was not the case (para 4). On her return home the following morning the appellant confronted the deceased about her lies. The deceased confirmed that she had visited another man. On hearing this, the appellant’s plea of guilty states he:

‘… became enraged at the deceased’s admission that she was seeing another man under the pretext of visiting her mother. He grabbed hold of a knife in the house and stabbed the deceased repeatedly. She attempted to flee without success’ (para 5).

The appellant appealed his conviction on the basis that in his plea explanation he had not admitted that he had the necessary intention to kill the deceased and that his conduct was unlawful. In upholding his appeal, the court said:

‘Although the appellant admitted to having stabbed the deceased repeatedly and that she died as a result of the wounds inflicted, these do not constitute facts from which the court a quo could have justifiably drawn the conclusion that the appellant had the necessary intention to kill the deceased’ (para 6).

This conclusion is mindboggling. It is trite that the accused who pleads guilty to the charge of murder need not expressly state that they had the intention to kill. Intention as understood in law is a term of art, it encompasses more than the so-called ‘colourless intention’. Intention entails the cognitive and the conative elements (CR Snyman Criminal Law (Durban: LexisNexis 2014) at 176). From the plea statement, there is nothing to suggest that the two elements were not satisfied. For example, on learning of the deceased’s infidelity the appellant became angry and took the knife and repeatedly stabbed the deceased. It is clear from this statement that the conduct of the appellant was voluntary and goal oriented. The appellant did not claim the presence of any ground of justification. It is inconceivable that the usage of the word ‘grabbed’ in the plea explanation could have meant anything other than that when the appellant took a knife, he intended to stab the accused, an act that is unlawful. There is nothing in the judgment that suggests that the appellant did not fully admit the definitional elements of the crime of murder (perhaps the shortcoming of the plea statement is that it does not admit to premeditation, something, which was not the court’s concern).

The court held that it is improper for the court to draw inferences from the admitted facts (para 8). If by the drawing of inferences, the court meant that the court convicting on the plea of guilty should not rely on circumstantial evidence then the court was correct. However, if the court meant that the court could not draw legal conclusions from the facts as presented in the plea of guilty then the court is wrong. The court must be satisfied that the facts contained in the plea of guilty establishes the offence with which the accused is charged. Conclusions whether the accused had intention or not are for the court to determine from the stated facts. For the accused to say he had intention is a conclusion of law, which is reserved for the court, and in fact is superfluous. The reasoning of the court seems to suggest that the elements of the offence such as unlawful conduct and intention must be expressly stated in the plea of guilty (para 8). However, this is not the position in our law. At the risk of repetition, the question whether the accused who pleads guilty has intention or not is the question that the court and the court alone must decide based on the state facts. Whether the word’s intention is included in the plea of guilty or not is immaterial. As Snyman puts it ‘[t]here is no rule to the effect that a court may find that X acted with intention only if he (X) admitted that he had intention’ (Snyman (op cit) at 185). There is nothing in the portion of the plea of guilty statement that points to a conduct that indicates that the appellant might not have acted with intention, at the very least dolus eventualis. To conclude otherwise would compel courts dealing with guilty pleas to put legal questions to accused persons, something not envisaged by the Act. That the accused states that they had intention in his plea of guilty does not absolve the court from scrutinising the alleged facts to satisfy itself that indeed the accused had the requisite intention. Therefore, the court was wrong in concluding that the accused plea of guilty statement was deficient.

Phindile Raymond Msaule LLB LLM (NWU) is a lecturer at the University of Limpopo.

This article was first published in De Rebus in 2023 (Aug) DR 44.