Naidoo v The State

The appellant, a 35-year-old widow, was charged in the Regional Court at Verulam, KwaZulu-Natal with attempted murder. In April 2003, her sister Visparani called her after being assaulted by her husband Roland Chetty (also referred to as Selvin Pillay). The appellant contacted Bonginkosi, a vendor, and contracted him to kill Roland for R10,000 payable after the killing. The appellant took out a life insurance policy on Roland's life with Visparani as beneficiary and deposited R124 into Roland's account to cover the premium. The plan was for Bonginkosi to shoot Roland at his home between 18h00-18h30 when he returned from work. Roland was shot but survived, sustaining a shoulder injury where the bullet grazed him. The appellant pleaded guilty and made a full statement under s 112(2) of the Criminal Procedure Act 51 of 1977 admitting all essential elements. She was convicted and sentenced to 5 years imprisonment under s 276(1)(i). After the full bench dismissed her appeal, she appealed to the Supreme Court of Appeal.

• Whether the magistrate should have invoked s 113(1) of the Criminal Procedure Act based on evidence emerging during sentencing that suggested the appellant may have had a valid defence
• Whether Bonginkosi acted on his own volition contrary to the agreement with the appellant, making his actions not subjectively foreseeable
• Whether the appellant withdrew from the common purpose before her actions constituted an attempt to commit the offence
• Whether the magistrate misdirected herself in imposing sentence

The appeal against both conviction and sentence was dismissed.

A magistrate is not required to invoke s 113(1) of the Criminal Procedure Act and convert a guilty plea to not guilty unless evidence emerging during proceedings genuinely demonstrates that the accused may have a valid defence. In the context of attempted murder through incitement and procurement, purported withdrawal from a common purpose is ineffective where: (1) the accused has already set in motion a complete chain of events including hiring an assassin, identifying the victim, location and time, and arranging payment; (2) the only steps taken to withdraw were unsuccessful attempts to contact the co-conspirator without detail of what was done; and (3) no warning was given to the intended victim despite knowledge of the imminent danger and ability to prevent it. Such circumstances do not constitute genuine withdrawal that would negate criminal liability for attempt.

The court observed that the magistrate had erred on the side of leniency in imposing only five years imprisonment. The court commented that hiring an assassin to kill a family member for insurance reward, surreptitiously taking out a life policy and paying the premium, then allowing the execution to proceed, is a horrendous crime for which a far more severe sentence was called for. The court also noted that the aggravating features far outweighed the mitigating factors. Additionally, the court made a brief comment declining to enter into the debate of when an attempt in law is complete on a charge of incitement and procurement, as it was unnecessary to determine this issue given the findings on withdrawal.

This case clarifies the circumstances in which a magistrate should invoke s 113(1) of the Criminal Procedure Act after a guilty plea. It establishes that evidence emerging during sentencing must genuinely suggest a valid defence before the court is required to convert the plea to not guilty. The judgment also addresses the requirements for effective withdrawal from a common purpose in the context of incitement and procurement to commit murder, emphasizing that merely attempting to contact a co-conspirator without warning the intended victim does not constitute genuine withdrawal. The case demonstrates the seriousness with which South African courts view contract killings involving family members and insurance fraud.