[MEDIA SUMMARY] Shiburi v The State

The appellant, Mr Ntsako Shiburi, who was unrepresented, pleaded guilty to three counts of rape in the regional court. During questioning under s 112(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA), the appellant explained that his companion, who was older than him and wielding a knife, had instructed him to rape the complainants in counts 1 and 2. The regional court convicted him on his guilty plea in respect of counts 1 and 2. In count 3, the court altered his plea to not guilty in terms of s 113 of the CPA, but after the State led evidence, he was convicted. The appellant had previously been legally represented. The high court (full bench of the Limpopo Division, Polokwane) dismissed the appellant's appeal on all grounds.

• Whether the appellant's right to legal representation was adequately explained to him
• Whether the proper procedure under s 112(1)(b) of the CPA was followed when questioning an accused who pleaded guilty
• Whether the appellant's explanation during s 112 questioning disclosed a defence of compulsion that should have resulted in the plea being altered to not guilty
• Whether the State's evidence in count 3 was sufficient to sustain a conviction
• Whether the regional court misdirected itself in evaluating the evidence in count 3

The majority of the Court (per Makgoka AJA with Shongwe ADP, Saldulker JA and Hughes AJA concurring) upheld the appeal, set aside the convictions and sentences, and remitted the matter to the regional court to proceed in terms of s 113 of the CPA in respect of counts 1 and 2. In respect of count 3, the majority upheld the appellant's appeal and set aside the conviction.

When questioning an accused in terms of s 112(1)(b) of the CPA following a guilty plea, the court's duty is to determine whether the accused's factual statements and answers adequately support the conviction on the charge. It is not the court's function at this stage to evaluate the plausibility of the answers or to determine their truthfulness. For purposes of s 112(1)(b), the accused's explanation must be accepted as true, and on that premise, the court should consider whether the explanation discloses a possible defence in law to the charge. If the explanation discloses a possible defence (such as compulsion), the court must alter the plea to not guilty in terms of s 113 and call on the State to lead evidence, regardless of how doubtful the explanation may appear. In evaluating evidence, a trial court must consider the totality of the evidence rather than considering evidence of witnesses separately or in isolation.

The court observed that the appellant's right to legal representation had been adequately explained to him, taking into account that he had previously been legally represented. On the peculiar facts of the case, the court noted that the appellant's fair trial right had not been infringed and he suffered no prejudice from proceeding unrepresented. The minority judgment noted that the charge sheet did not inform the appellant of the applicable minimum sentences, which would have been a basis for correcting the sentences had the convictions been upheld.

This case is significant in South African criminal procedure law as it clarifies the proper approach to questioning an accused under s 112(1)(b) of the CPA when a guilty plea is entered. It establishes important principles regarding the court's duty during plea proceedings, emphasizing that the court must accept the accused's explanation as true for purposes of the section and determine whether it discloses a possible defence in law, rather than evaluating plausibility or credibility at that stage. The case reinforces procedural safeguards for unrepresented accused persons and the proper application of statutory procedures designed to protect against wrongful convictions based on guilty pleas. It also addresses the evaluation of evidence and the need to consider evidence in its totality rather than in isolation.