Moamogoe v The State

The appellant, Mr Ofentse Lofentse Moamogoe, was indicted in the Gauteng Division of the High Court on charges including two counts of robbery with aggravating circumstances, one count of murder, and unlawful possession of a firearm and ammunition. On 14 November 2011, the appellant, who was legally represented, entered into a plea and sentence agreement with the State in terms of s 105A(1) of the Criminal Procedure Act 51 of 1977. The plea agreement was signed by the appellant, his counsel and the Deputy Director of Public Prosecutions. Under the agreement, the appellant pleaded guilty to counts 2 and 3 and was sentenced to 25 years' imprisonment, of which 5 years was suspended. The agreement provided that 10 years of the remaining 20 years would run concurrently with a 10-year sentence previously imposed by the Regional Court, Randburg, resulting in an effective sentence of 10 years' imprisonment. The appellant confirmed the terms of the plea agreement before Borchers J, who convicted and sentenced him accordingly. Subsequently, the appellant applied for leave to appeal against sentence, initially acknowledging he understood the sentence to be 10 years in addition to the previous 10-year sentence. However, in his application for special leave to appeal to the Supreme Court of Appeal, the appellant changed his position, alleging for the first time that the plea agreement did not accurately reflect the verbal agreement regarding sentence, claiming he was told his total direct imprisonment would be 10 years for both cases combined.

• Whether allegations that a plea and sentence agreement did not correctly record what was verbally agreed can be raised on appeal
• Whether such allegations constitute matters extraneous to the record that should be dealt with by way of review application rather than appeal
• Whether the appeal process is the appropriate remedy when challenging the accuracy of a plea and sentence agreement entered into under s 105A of the Criminal Procedure Act

The appeal was dismissed.

Allegations that a plea and sentence agreement entered into under s 105A of the Criminal Procedure Act does not accurately reflect what was verbally agreed between the parties constitute matters extraneous to the record and cannot be raised on appeal. An appeal is decided on the record of the proceedings in the lower court, and in the absence of an application to adduce further evidence on appeal, the court is bound by that record. Where an appellant seeks to challenge the accuracy of a plea agreement on the basis that it does not reflect the verbal agreement, the proper remedy is a review application where the allegations can be set out on affidavit and the State can respond under oath, not an appeal.

The Court noted in a footnote that there is conflicting authority on whether a plea and sentence agreement under s 105A of the Criminal Procedure Act excludes an appeal altogether. In S v De Koker 2010 (2) SACR 196 (WCC), it was held that the process under s 105A settles the dispute between the State and the accused once and for all. However, a contrary view was taken in S v Armugga and Others 2005 (2) SACR 259 (N). The Court stated it was inappropriate to decide this issue without the benefit of oral argument and refrained from doing so. The Court also observed that the belated allegations of the appellant appeared, prima facie, to be tenuous, though this was not determinative of the appeal.

This case is significant for establishing the proper procedural route for challenging the accuracy of a plea and sentence agreement entered into under s 105A of the Criminal Procedure Act. It clarifies that matters extraneous to the record - such as allegations that a plea agreement does not reflect what was verbally agreed - cannot be raised on appeal but must be pursued through a review application. The case reinforces the principle that appeals are decided on the record of the lower court proceedings and that an appellant cannot introduce new factual allegations on appeal without following proper procedures to adduce further evidence. It provides important guidance on the binding nature of plea and sentence agreements once confirmed before the court and the limited grounds upon which they can be challenged.