Director of Public Prosecutions Gauteng Division, Pretoria v Cornelius Johannes Heunis

The respondent was charged with murder, alleged to have unlawfully and intentionally killed Michelle Curgenven on 4 July 2013 in Nelspruit by shooting her with a firearm. The respondent pleaded not guilty and tendered a comprehensive plea explanation in terms of s 115(2)(a) of the CPA, admitting he shot and killed the deceased but averring it was negligent and not intentional. The deceased was shot whilst seated in the driver's seat of her vehicle parked in her garage. The respondent was the only person who could explain how this occurred, as the domestic worker inside the house did not hear the shot. The respondent elected not to testify. Captain Christiaan Mangena, the police forensic expert, gave unchallenged evidence that the bullet trajectory (entering the deceased's left breast and exiting below her right shoulder blade) showed the deceased was facing forward when shot, and that it was impossible for the shooting to have occurred as described in the respondent's s 115 statement (where he claimed the deceased pushed down the firearm he was holding). The trial court convicted the respondent of culpable homicide based solely on his s 115 statement.

• What weight should be accorded to the exculpatory aspects of a s 115 plea explanation tendered by an accused which is not repeated in evidence?
• Whether the trial court misdirected itself in giving too much probative value to the respondent's s 115 plea explanation
• Whether the trial court erred in not drawing an adverse inference from the respondent's failure to testify in the face of strong circumstantial evidence
• Whether the trial court properly applied the legal principles pertaining to circumstantial evidence
• Whether a prima facie case established by the State becomes conclusive proof when the accused fails to rebut it

The appeal was upheld. The conviction of culpable homicide and the sentence of 8 years' imprisonment wholly suspended for 5 years on suitable conditions was set aside and replaced with a conviction of murder. The matter was remitted to the trial court for reconsideration of an appropriate sentence in light of the new conviction.

A plea explanation made in terms of s 115(2)(a) of the CPA, while required to be considered by the court, should not be given determinative weight when its crucial exculpatory aspects are contradicted by credible and unchallenged evidence. The exculpatory parts of such statements must be accepted or rejected according to their cogency, and courts should refuse to attach value to statements which are purely self-serving or contradicted by the evidence. Where the State establishes a prima facie case and it lies exclusively within the power of the accused to explain the true facts, the accused's failure to provide a credible explanation (whether through testimony or other cogent evidence) can result in the prima facie proof becoming conclusive proof beyond reasonable doubt. While an accused has a constitutional right to remain silent, this failure to testify may be taken into account against him when assessing whether the State has discharged its onus of proof beyond reasonable doubt.

The Court noted that s 115 provides a procedure whereby material can be placed before the court, but emphasized that courts should ensure that accused persons do not abuse this procedure by refusing to attach any value to statements which are purely self-serving. The Court also commented that the constitutional right to silence under s 35(3)(h) does not operate in a vacuum and must be considered in the context of the overall evidentiary picture. The judgment demonstrates judicial concern about accused persons using s 115 statements as a shield to avoid testifying under oath while attempting to introduce exculpatory versions that are contradicted by the evidence.

This case is significant in South African criminal law for clarifying the probative value to be accorded to s 115 plea explanations, particularly their exculpatory aspects. It reaffirms that while courts must consider both inculpatory and exculpatory parts of such statements, they should not be given determinative weight when contradicted by credible evidence, especially when the statement is not made under oath and not subject to cross-examination. The judgment reinforces the principle that when an accused provides a s 115 statement but fails to testify, and where the exculpatory aspects are contradicted by strong evidence, an adverse inference may be drawn. It confirms that where a prima facie case is established and lies exclusively within the power of the accused to explain, failure to provide a credible explanation can result in the prima facie proof becoming conclusive. The case serves as an important reminder that the right to silence does not prevent a court from drawing adverse inferences when an accused fails to rebut strong incriminating evidence.