About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 187
|
|
Williams and Others v Director of Public Prosecutions: Western Cape (CC62/2020) [2021] ZAWCHC 187; [2022] 1 All SA 269 (WCC); 2022 (2) SACR 481 (WCC) (16 September 2021)
IN THE HIGH COURT OF
AFRICA
(
WESTERN
CAPE DIVISION, CAPE TOWN
)
[
Reportable
]
CASE
NO: CC62/2020
In
the matter between:
SADIQ
WILLIAMS
First
Applicant (Accused 7)
MOEGAMAT
ALIE SMART
Second
Applicant (Accused 8)
SHALINE
NAIDOO
Third
Applicant (Accused 14)
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS:
Respondent
WESTERN
CAPE
Date
of hearing: 20 April 2021 and further submissions received from
counsel on 4 August 2021
Date
of Judgment: 16 September 2021 (delivered via email to the parties’
legal representatives)
JUDGMENT
Henney
J:
Introduction:
[1]
The applicants are part of a group of 12 accused persons who had been
indicted in
the criminal division of this court, under case number
CC62/2020.
[2]
In the indictment, the first applicant is listed as accused 7, the
second applicant
as accused 8, and the third applicant as accused 14.
They had been indicted, together with the other accused
persons, on
a total of 101 charges, which may be divided into two
groups: 3 charges of the contravention of the provisions of section 9
of
the Prevention of Organised Crime Act 121 of 1998 (“POCA”);
while the other 98 offences relate to the ‘pattern
of criminal
gang activity’ referred to in the POCA charges. According
to the indictment, each of the applicants had
also been charged with
offences included in the ‘pattern of criminal gang activity’,
as set out therein.
[3]
In this application the applicants seek an order, by way of notice of
motion, that
their respective trials be separated from the other
accused persons mentioned in the indictment, in terms of the
provisions of
section 157 (2) of the Criminal Procedure Act 51 of
1977 (“the CPA”).
Summary
of the charges relating to all the applicants
[4]
All the applicants have been charged with counts 1, 2 and 3, which
are contraventions
of section 9 (1) (a), 9 (2) (a) and 9 (2) (b),
characterised as gang related charges under POCA. With regard
to these charges,
the respondent alleges that the applicants, and the
other accused not involved in this application, between 22 March 2008
and 17
September 2019, and at Lentegeur, Philippi, Kleinvlei, Nyanga
and Mitchells Plain, had:
1)
actively participated in or had been members of the criminal gang;
wrongfully,
unlawfully, and intentionally aided and abetted criminal
activity for the benefit of, and at the direction of, or in
association
with, the “Junior Cisco Yakkies” (“the
JCY”) criminal gang, by committing the offences as set out in
counts
4 to 101 in the indictment;
2)
wrongfully and unlawfully performed acts aimed at causing, bringing
about, promoting
or contributing towards a pattern of gang activity,
by committing the offences as set out in counts 4 to 101 in the
indictment;
3)
wrongfully and unlawfully incited, instigated, commanded, aided,
advised, encouraged
or procured other person/s to commit, bring
about, perform or participate in the pattern criminal gang
activities, which includes
the pattern as set out in counts 4 to 101
of the indictment.
Individual
charges relating to first and second applicants only
[5]
In counts 63 – 65, the first applicant is charged with
attempted murder, possession
of an unlicensed firearm, and the
unlawful possession of ammunition, which the respondent alleges
occurred on 28 August 2018, and
at or near Lentegeur in Mitchells
Plain, wherein it is alleged that he wrongfully and unlawfully
attempted to kill a person by
shooting at him or her with a firearm
and that, whilst doing so, he was in the unlawful possession of a
firearm and ammunition.
[6]
In respect of counts 76 – 78, the first and second applicants
are charged with
murder, possession of an unlicensed firearm and the
unlawful possession of ammunition, which the respondent alleges
occurred on
20 September 2018, in Mitchells Plain, in circumstances
where they acted in furtherance of a common purpose or conspiracy, by
killing
one Tasriq Attwood by shooting him with a firearm and that,
in doing so, they were also in the unlawful possession of a firearm
and ammunition.
[7]
The second applicant, aside from the POCA related charges, has only
one set of charges
against him where he is jointly charged with the
first applicant, and the first applicant has only one other set of
charges against
him. The other sets of charges in the amended
indictment do not relate to the first and second applicants at all.
Individual
charges in respect of the third applicant only
[8]
The third applicant (accused 14) appeared in the Mitchells Plain
regional court on
31 May 2018, where he was charged with offences
relating to three criminal case dockets, namely: CAS 159/10/2016, CAS
209/02/2017
and CAS 1333/02/2017. The third applicant entered a
plea of not guilty to all the counts, and the trial commenced before
the regional court in Mitchells Plain, under case number RCA
09/2018. As of July 2020 this matter has not yet been
concluded.
[9]
On 24 August 2020 the third applicant was charged on the fourth
criminal docket, namely
CAS 131/11/2020. At some stage, for
reasons not relevant to this application, an order was made in case
RCA 0946/2018 that
the trial was to commence de novo. Thus
these four criminal dockets, CAS 159/10/2016, CAS 131/11/2016, CAS
209/02/2017 and
CAS 1333/02/2017 have been included in this
indictment, under case number CC62/2002, on which the third
applicant, together with
the other applicants, is currently arraigned
in the criminal trial before this court.
[10]
Counts 10 – 13 relate to the third applicant, wherein he is
charged with murder, attempted
murder, possession of an unlicensed
firearm and the unlawful possession of ammunition, which the
respondent alleges occurred on
4 October 2016 and at Mitchells Plain.
The State alleges that he murdered one Erwin Human by shooting
him with a firearm,
during which event he also unlawfully possessed a
firearm and ammunition.
[11]
In the indictment the third applicant is also charged on counts 14 –
18, for the murder
of Wazeem Abrahams on 2 November 2016, during
which event the State alleges that he was in possession of an
unlicensed firearm
and unlawfully in possession of ammunition.
He is also charged on counts 23 – 27, wherein the State alleges
that he
attempted to murder Manuel Hamilton by shooting him with the
firearm, during which event he was also in the unlawful possession
of
a firearm and unlawfully in possession of ammunition.
Summary
of charges set out in counts 4 to 101 on which the pattern of
criminal gang activity is based
[12]
In the indictment, the State alleges that the applicants and the
remainder of the accused are
part of a ‘criminal gang’.
A ‘criminal gang’, in terms of section 1 (1) (iv)
of POCA, includes ‘any
formal or informal ongoing organisation,
association, or group of three or more persons, which has as one of
its activities the
commission of one or more criminal offences, which
has an identifiable name or identifying sign or symbol, and whose
members individually
or collectively engage in or have engaged in a
pattern of criminal gang activity’. In the indictment the
State alleges
that a ‘pattern of criminal gang activity’
exists, as set out in counts 4 – 73, and that the offences as
set
out in counts 4 – 101 are offences as contemplated in
schedule 1 of POCA.
[13]
Under section 1 (1) (xi) of POCA, a ‘pattern of criminal gang
activity’ includes
‘the commission of two or more
criminal offences referred to in Schedule 1: [p]rovided that at least
one of those offences
occurred after the date of commencement of
Chapter 4
[1]
and the last of
those offences occurred within three years after a prior offence and
the offences were committed:- (a) on separate
occasions; or (b) on
the same occasion, by two or more persons who are members of, or
belong to, the same criminal gang’.
(Own footnote
included.)
[14]
In the indictment the State alleges that the applicants and the other
accused belong to a criminal
gang, that has as one of its activities
the commission of one or more criminal offences, including the
commission of crimes of
violence, which includes murders and
attempted murders, the illegal possession and use of firearms, drug
possession and drug trafficking,
particularly but not limited to 16
Ivy Street and 123 Turksvy Street, and various parks and open fields.
[15]
As part of this criminal gang activity the State also alleges that
they made themselves guilty
of the robbery of vehicles, and that the
applicants and the accused are members of the JCY, a criminal gang,
who individually or
collectively engaged in a ‘pattern of
criminal gang activity’ as set out in the indictment.
[16]
It is not in dispute that the offences as set out in counts 4 –
101 are listed in Schedule
1 of POCA. These offences, on a
reading of the indictment, emanate from 29 criminal gang activities
either committed by a
single accused, or several of them, as part of
a pattern of criminal gang activity. The reason for the
multiple charges,
it seems, would be that a singular or particular
criminal gang activity, like the murder or attempted murder for
example, committed
either by a singular member of the gang or a group
of persons belonging to the gang, would result in the commission of
several
other offences, like the possession of firearms and
ammunition. It is for example alleged that accused 12 would
have, in
respect of the first criminal gang activity as listed in the
indictment, committed the crime of attempted murder on 22 March 2008
by attempting to kill some person by shooting at that person, and
simultaneously would have committed the crime of unlawful possession
of a firearm and ammunition.
[17]
In respect of the second criminal gang activity as listed in the
indictment, that was committed
on 21 March 2016 at Lentegeur,
Mitchells Plain, it is alleged that accused 1, 4, 10 and 12 would
have committed the crime of murder
in the furtherance of a criminal
gang activity, attempted murder and would simultaneously have
unlawfully possessed a firearm and
ammunition. In this regard,
the State alleges that they have committed counts 5, 6, 7, 8 and 9,
which forms part of a series
of criminal gang activities in which the
applicants and the other accused were involved. It is for these
reasons that all
the charges had been joined in one indictment.
The
first and second applicants’ submissions in the separation
application
[18]
The first applicant in particular submits that it is not necessary
for him to be charged with
the other 12 accused, for the respondent
to secure a conviction under section 9 (2) (a) and (b), because the
first applicant is
charged with two sets of predicate counts which
relate to two separate incidents. The respondent only needs to
prove those
predicate counts to prove that the first applicant is
guilty of the contravention of section 9 (2) (a) and (b). This
threshold,
he submits, will not be overcome by charging him jointly
with the 12 accused, nor will these predicate offences impact on the
other
12 accused’s cases as far as these charges are concerned.
[19]
Regarding the second applicant, it was submitted that the respondent
will not be able to prove
that the second applicant is guilty of
contravening section 9 (2) (a) and (b), because he is only charged
with one predicate set
of counts which relate to one incident only
and not separate incidents. It was further submitted that even
if he were to
be charged with the 12 other accused, his one set of
predicate counts will not push him over the threshold of what needs
to be
proved to secure a conviction against him under section 9 (2)
(a) and (b).
[20]
They further submit that although the applicants and the other
accused could be joined on the
POCA charges, the respondent has
failed to show that it cannot prove its case against applicants if
the trials were separated from
the other 12 accused. The
respondent has merely submitted that separation will prejudice its
case, but has advanced no reasons
to substantiate why that would be.
The applicants therefore submit that there are accordingly no reasons
why their trial
should be joined with the other accused simply on the
basis of the POCA charges.
[21]
In terms of the provisions of section 155 of the CPA, participants,
accessories and receivers
can be jointly charged and, in this
particular case, the applicants and the other accused are not charged
with being participants,
accessories or receivers in the same
offence. There are therefore no reasons why they should be
jointly charged in terms
of the provisions of section 155.
[22]
In terms of the provisions of section 156 of the CPA, persons who
committed a wrongful act at
the same time and place can also be
jointly charged. In terms of the indictment, the offences with
which the first and second
applicants are being charged were
allegedly committed on 28 August 2018 and 20 September 2018, and at
or near Lentegeur and Mitchells
Plain, respectively, and it seems
that none of the other charges that the other accused face, according
to the indictment, were
committed at the same time and place.
[23]
They further submit that whilst all 14 accused face the umbrella POCA
charges, as set out in
counts 1 – 3 of the amended indictment,
in order to be convicted of the POCA charges, the applicants as well
as the other
accused must be convicted of one of the predicate
offences, as set out in counts 4 – 101, to be convicted on
count 1, and
at least the predicate offences to be convicted on
counts 1 and 3. They submit that it is not necessary for them
to appear
with the co-accused in order for them to be successfully
prosecuted on counts 1 – 3, and that it is not necessary to
prosecute
a co-accused on counts 1 – 3 for the applicants to be
in the same trial.
The
third applicant’s submissions in the separation application
[24]
In respect of the third applicant it is submitted that, besides the 3
POCA charges, where he
is charged with all the other accused, he is
the only one charged on the 18 charges in the indictment which relate
to him.
He similarly submits that there are no reasons, in
terms of the provisions of section 156 of the CPA, why he should be
jointly
charged with the other accused. Also, it seems that the
provisions of sections 155 and 156 would not be applicable to the
joinder of the third applicant with the other accused. Firstly,
he is, on every count with which he is being charged, the
only
participant. He is also not being charged with being a
participant, accessory or receiver in the same offence as any
co-accused, as required in terms of the provisions of section 155.
Secondly, the offences the third applicant is being charged
with were allegedly committed on 4 October 2016, 2 November 2016, 4
February 2017 and 24 February 2017, and at or near Mitchells
Plain.
It seems that none of the charges faced by the other accused
were, according to the respondent, committed at the same
times and in
the same places. The third applicant therefore submits that
there is no reason why he should be jointly charged
with the other
accused.
[25]
The third applicant further submits that by holding a mass trial of
14 accused at the same time
where the charges are not related to each
other, is highly irregular and accordingly it is appropriate and
competent to separate
the trial of the applicant’s from the
other accused.
[26]
The applicants’ overriding grounds for separation are the
following:
a)
there is no reason for the applicants and the accused to be charged
jointly in
this matter;
b)
that charging the applicants jointly with all the other accused would
render
their trials unfair;
c)
that a separation of their trials would not hinder the respondent
from prosecuting
its case against the other key accused and the
applicants;
d)
that they would be prejudiced if their trials were not separated from
the other
12 accused, while the respondent and the other 12 accused
will suffer no prejudice if the applicants’ trials were to be
separated.
The
respondent’s case in the separation application
[27]
The respondent submits that the applicants are attempting to ignore
the POCA charges and the
gang-related contents of the other charges.
It submits further that it was made clear in the indictment and
summary of facts
that the applicants are members of a criminal gang,
and that the offences committed by each individual accused are
connected with
(or related to) the activities of the gang.
Requesting this court to separate the trials from the other
accused, undermines
the aims and purpose of POCA, because it does not
suit the applicants to have the full context of the offences that
they have committed
placed before the court. In considering
this application, the respondent submits that it is important for the
court to consider
the aims and objects of POCA, as the offences in
this case are gang-related offences. In this regard, the
respondent refers
to the preamble of the POCA, which sets out the
aims and purpose of the Act.
[28]
Regarding the question of a separation of trials in terms of the
provisions of section 157 (2)
of the CPA, there is no case law
dealing specifically with the separation of trials in POCA gang
related matters, whilst there
are cases that consider the separation
of trials in racketeering cases, which deals with contraventions of
section 2 (racketeering)
of POCA.
[29]
The respondent submits that the pronouncements made in the cases
dealing with a pattern of racketeering,
as set out in
S
v Naidoo
[2]
,
would also be applicable to criminal gangs and their activities.
Gang members also play different parts in the pattern of
criminal gang activity, the offences that makes up the ‘pattern
of criminal gang activity’ and in the criminal gang
itself.
[30]
Regarding the applicants’ grounds for the separation of trials,
the respondent submits
that the reliance on the provisions of
sections 155, 156 and 157 of the CPA is misplaced, because it
completely ignores that the
applicants have also been charged with
POCA gang-related offences, and that the offences referred to form
part of the ‘pattern
of a criminal gang activity’.
[31]
The respondent further submits that once the statutory requirements
have been fulfilled, the
mere number of offences that an accused is
charged with in the ‘pattern of criminal gang activity’
should not play
a significant role in an application for the
separation of trials. The second applicant (accused 8) places
some emphasis
on the fact that he is only charged with one set of
offences, but he is also charged with accused 7, who is also a gang
member,
on the same charges. The respondent submits that the
second applicant’s association with the criminal gang is of
such
significance that it was necessary for him to flee with his
family from his usual place of residence.
[32]
The investigating officer set out a brief history of the JCY criminal
gang for the relevant period,
and the nature of the involvement of
the applicants in the criminal gang activities. This includes
the fact that the use
of the same firearm by multiple accused in
multiple incidents is a particularly significant indication that
forms part of the ‘pattern
of criminal gang activity’.
This, the respondent submits, is a further factor in favour of
prosecuting the applicants
together with the other accused in a
single trial.
[33]
The respondent submits further that the purpose of having the accused
persons joined together
in one trial, is to avoid prejudice to both
the accused and the prosecution, and that a multiplicity of trials
should be avoided.
It further submits that the law allows for a
situation where all accused persons could be tried together, even
though all
of them were involved in committing different offences in
the furtherance of a criminal gang activity. The respondent
also
submits that they rely on the ongoing, continuing and repeated
participation of each of the accused in a pattern of criminal gang
activity. The overriding goal would be essentially the same,
which is to prove that they committed the offences in terms
of POCA.
The
appropriateness of this court dealing with the application on motion
The
applicants’ submissions
[34]
After having heard argument, and while preparing judgment, I caused a
notice to be sent to the
parties to file supplementary heads of
argument, wherein I made the following remarks:
“
It
seems that an application for a separation of trials may be applied
for under the following circumstances:
1)
Before any evidence had been lead in respect of the charge;
2)
At any time during the trial upon the application of the prosecutor
or the accused.
The
parties are requested to make further submissions whether the words
“at any time during the trial” in the section
means at
any time during the trial before the court dealing with the criminal
trial in terms of the CPA. This essentially
seems to be an
interlocutory application to be dealt with in the course of a
criminal trial, if one should have regard to the provisions
of the
act”
.
[35]
Miss Webb, for the first and second applicants, submitted that during
the pre-trial proceedings
this court made an order that this
application be dealt with by means of motion proceedings separately
from the criminal proceedings.
She further submitted that the
CPA is silent regarding the procedure to be followed when such an
application is instituted.
She further submitted, relying on
S
v Ramgobin
[3]
and
Naidoo
[4]
,
that the procedure regarding applications of this nature is not
regulated by the provisions of the CPA, nor is there case law
that
requires it to be brought in a particular way.
[36]
She further stated that the Uniform Rules of Court, under rule 10
(5), provide that the court
may order that an application for the
separation of trials may be heard in respect of the parties. Also
that a separation
application would by its nature be interlocutory to
the criminal procedure and is not irrevocable. She further
submits interlocutory
applications by their nature would be an
unnecessary burden to the trial court, and to place this application
before the trial
court, will no doubt be lengthy considering the
number of accused, the charges they face and the number of witnesses
in the trial.
It could have adverse effects on the evidence led
at the trial, because the investigating officer, for example, has
made
various allegations against the applicants in his affidavit in
this separation application, and if the court were to consider his
testimony before the trial this could adversely affect the way in
which the court deals with the matter.
[37]
Mr. Mckernan, appearing for the third applicant, submits that
although on a simple reading or
interpretation of section 157 (2) it
would seem that, since a trial only commences after the charges have
been put to the accused
who then pleads, section 157 (2) only finds
application after that point, that the CPA does not preclude or
prohibit such an application
from being heard prior to the
commencement of the trial. He also aligns himself with the
argument of Miss Webb, regarding
the fact that the respondent during
this application presented evidence which would be detrimental to the
applicants, if such evidence
were to be presented in such an
application before the trial court.
[38]
He furthermore submits that if the relief sought by the applicant is
not dispositive of the matter,
the judgment given would in a ‘civil
sense’ be open to appeal, which would unduly delay the criminal
trial. For
this reason, he submits it should characterise the
criminal interlocutory application. According to him if the
applicant
were to be acquitted he would have no interest in seeking
recourse regarding the refused application.
The
Respondent’s submissions
[39]
The respondent submits that the meaning of ‘at any time during
the trial’ is not
clear. It submits that when a trial
commences or begins is one of those concepts that may have different
meanings depending
on the circumstances and context. There is
no definition in the CPA that explains the phrase ‘at any time
during the
trial’. The respondent also submits that it
did not find any definition in any other legislation.
[40]
According to the respondent the problem in this case has arisen
because section 157 of the CPA
came into operation before the
Constitution, and these provisions do not properly deal with the
consequences of the Constitution
coming into operation. According
to the respondent, prior to the Constitution coming into operation,
the possibility of a
separation of trials usually arose during a
trial. Such matter will usually not be in dispute and could be
dealt with relatively
informally in submissions from the bar.
[41]
According to the respondent, as far as High Court matters are
concerned, the accused is transferred
to the High Court for trial
and, in practice, the matter is placed on the pre-trial roll, but the
case is transferred for trial.
The respondent therefore submits
that in these circumstances ‘during the trial’ could come
to have an extended
meaning which would cover applications such as
the application concerned in this case. The respondent submits
that the use
of motion court proceedings to bring applications before
plea in criminal proceedings, and even during a criminal trial, has
increased
considerably since the Constitution came into operation.
Such applications usually involve a constitutional challenge,
sometimes
combined with an aspect of criminal procedure from the CPA.
[42]
The respondent submits that there has been some criticism of the
practice of using a procedure
usually used in civil cases, when the
CPA provides a procedure for dealing with the issue in question.
According to the respondent,
the problem that has arisen in a
number of criminal cases has been caused not by the use of motion
proceedings, but rather by the
abuse of the procedure. Issues
that could have been dealt with jointly in one application are dealt
with in a fragmented
manner, and when a particular application is
refused, it is inevitably followed by at least one, and usually more,
appeals, which
results in long delays to the start of trials.
[43]
According to the respondent, it appears that the applicants were
entitled to bring the application
by means of motion proceedings
because there is a lack of any other way to bring such application at
a pre-trial stage. The
use of civil procedure, however, does
not change the nature of the application, because it’s an
interlocutory application
in a criminal matter.
The
legislation relevant to these proceedings
[44]
Section 157 of the CPA states:
‘
Joinder
of accused and separation of trials
(1)
An accused may be joined with any other accused in the same criminal
proceedings at any time before any evidence has been led
in respect
of the charge in question.
(2)
Where two or more persons are charged jointly, whether with the same
offence or with the different offences, the court may at
any time
during the trial, upon the application of the prosecutor or of any of
the accused, direct that the trial of any one or
more of the accused
shall be held separately from the trial of the other accused, and the
court may abstain from giving judgment
in respect of any of such
accused.’
[45]
The relevant sections of POCA provide as follows:
‘
9.
Gang related offences.
-(1) Any person who actively
participates in or is a member of a criminal gang and who--
(a)
wilfully aids and abets any criminal activity committed for the
benefit of, at the direction of, or
in association with any criminal
gang;
(b)
threatens to commit, bring about or perform any act of violence or
any criminal activity by a criminal
gang or with the assistance of a
criminal gang; or
(c)
threatens any specific person or persons in general, with retaliation
in any manner or by any means
whatsoever, in response to any act or
alleged act of violence,
shall
be guilty of an offence.
(2)
Any person who--
(a)
performs any act which is aimed at causing, bringing about, promoting
or contributing towards a pattern
of criminal gang activity;
(b)
incites, instigates, commands, aids, advises, encourages or procures
any other person to commit, bring
about, perform or participate in a
pattern of criminal gang activity; or
(c)
intentionally causes, encourages, recruits, incites, instigates,
commands, aids or advises another person
to join a criminal gang,
shall
be guilty of an offence.’
‘
11.
Interpretation of member of criminal gang.
-In considering
whether a person is a member of a criminal gang for purposes of this
Chapter the court may have regard to the following
factors, namely
that such person--
(a)
admits to criminal gang membership;
(b) is
identified as a member of a criminal gang by a parent or guardian;
(c)
resides in or frequents a particular criminal gang's area and adopts
their style of dress, their use
of hand signs, language or their
tattoos, and associates with known members of a criminal gang;
(d) has
been arrested more than once in the company of identified members of
a criminal gang for offences
which are consistent with usual criminal
gang activities;
(e) is
identified as a member of a criminal gang by physical evidence such
as photographs or other documentation.’
Evaluation
The
appropriateness of a separation application in these proceedings
[46]
Section 157 falls within the parameters of Chapter 22 of the CPA,
which deals with the conduct
of the proceedings in a criminal trial.
It refers to aspects which only the trial court can deal with.
I do not agree
with both the counsel for the applicants as well
as the respondent, that our courts have not pronounced upon the
question of what
is meant by the concept ‘at any time during
the trial’. In
S
v Hendricks
[5]
,
the meaning of the word ‘trial’ was discussed at length
with reference to certain cases by the Appellate Division.
where
Marais JA said the following:
‘
In
both juristic and statutory usage, the word trial has come to be used
as an appropriate description for criminal proceedings
in which a
verdict is required to be given, and, if the verdict be guilty, a
sentence imposed, irrespective of whether or not any
triable issue
has been raised by the accused's plea.
In colloquial usage
it may have a narrower meaning and be confined to a proceeding in
which a triable issue of fact has been raised
by an accused's plea.
R v Keeves
1926 AD 410
at 413;
R
v Tucker
1953 (3) SA 150
(A) at 159G-H
. None the
less, it has always been recognised that there are distinct phases of
a trial. I leave aside the preliminary
extracurial aspects of a
trial and confine myself to what happens in court when the
proceedings commence.’
(Own underlining.)
The
meaning of the phrase ‘during the trial’ was also
discussed in
R v Tucker
1953 (3) 150 (A) at 159B, to which the
court in Hendricks referred, and where the following was said:
‘
The
question whether the validity of an indictment arises “on the
trial” of an accused who pleads guilty appears to
have been
answered in the affirmative by the CHIEF JUSTICE in the case of
R
v Laubscher
,
1926 AD 276
. . .’
The
court went further, at 159G-H, to state:
‘
It
is true that the plea in
Laubscher's
case was one of not
guilty, but it is clear that the learned CHIEF JUSTICE approved the
statement of LORD COLERIDGE in relation
to a plea of guilty. I
am not losing sight of the fact that as a general rule it is correct
to say that a trial involves
the decision of some question at issue
and that a plea of guilty makes it unnecessary for a superior court
to try any issue of
fact.
But in my opinion the word “trial”
in sec. 372, as in sec. 370, is used to denote the proceedings after
arraignment,
whether upon a plea of guilty or not guilty. It
follows that the question whether an indictment discloses an offence
is one
which arises “on the trial” of an accused, even if
he pleads guilty.’
(Own underlining.)
In
Kerr v Rex
(1907) 21 EDC 324
at 332, Kotze JP held:
“
In
its usual and
ordinary
acceptation
the
arraignment
of
an
accused
person
means
putting
him
on
his
trial.
Such
is
the
recognised meaning of the word. It is so defined in the Termes de la
Ley, and Lord Hale, in his Pleas of the Crown (part 2,
ch. 28), says
that arraignment consists of three parts, viz., calling upon the
prisoner at the bar by name in order to ascertain
his identity,
reading the indictment to him, and calling upon him to plead or
answer thereto. This is still its meaning at the
present day
(Archbold's Criminal Pleading, 22nd ed. p. 165); so that when
once a prisoner has pleaded the arraignment is complete
”.
In
R v
Keeves
[6]
,
Innes CJ held that the word ‘trial’ in the juristic sense
includes the determination as well as investigation of an
issue. The
learned Chief Justice further stated that it was not meant to denote
merely the stage of the proceedings which
ends with the evidence,
within the meaning of the CPA in operation at that time.
With
regards to the stage when an application for the separation of
trials, within the meaning of section 157 (2), should be dealt
with,
the following was said in Ramgobin
[7]
at 73I-J:
‘
.
. . Furthermore, s 157 (2) seems to envisage
a situation where the
trial
has commenced; at least to the extent that
the accused have pleaded. Not only does the section refer to
any stage "during
the trial" (and not to any stage during
the proceedings) but it enacts that the Court may abstain from giving
judgment in
respect of any of the accused: a duty which it has only
after the accused has pleaded
.’
(own
underlining)
[47]
I am therefore of the view that, as clearly stated in Ramgobin, such
an application should be
brought when the trial has commenced before
a judge or magistrate after an accused has pleaded. The
subsection even goes
as far as to state that the court may abstain
from giving judgment in respect of any of the accused.
[48]
It would mean that a court would be entitled, in terms of the
provisions of section 157 (2) of
the CPA, to abstain from giving
judgment in respect of any accused after such an accused has pleaded
and a separation application
has been granted. This is a clear
indication that such an application can only be made after the
accused had entered a plea
to the charge. It seems to be an
exception from the provisions of section 106 (4)
[8]
which entitles an accused to demand that he or she be convicted or
acquitted.
This
is also the view of the learned authors of Du Toit et al –
Commentary
on the
Criminal Procedure Act
[9
]
,
where they expressed the view that where a separation of trials has
been granted in respect of an accused who has pleaded, such
accused
is not entitled to demand a verdict in terms of the provisions of
section 106
(4).
[49]
This is a clear indication, in my view, apart from the express
wording ‘at any stage during
the trial’, that the meaning
attached thereto should be that the trial court in a criminal case
must deal with such an application,
and not a civil court in motion
proceedings. The procedure that was therefore adopted to deal
with this matter, in terms
of rule 6 of the Uniform Rules of Court,
was clearly wrong, because it is not civil proceedings. It is
an application that
must be dealt with in a criminal trial in terms
of the provisions as laid down in the CPA. The submission of
the respondent,
as Director of Public Prosecutions in this province,
that there is no procedure prescribed in the CPA, is astonishing to
say the
least. It has been a practice in all criminal courts
for many decades that such applications are brought during the course
of the criminal trial. It is strange that the office of the
Director of Public Prosecutions would not know about that. In
all of the cases that have been reported such applications were
brought within the context of a criminal trial
[10]
.
It is part of the criminal proceedings and throughout the years
the criminal courts have dealt with such applications in
terms of the
provisions of the CPA.
[50]
In the lower courts (Regional and Magistrate’s Court), it is
practice for the criminal
courts to deal with all the interlocutory
issues. The practice where interlocutory issues are dealt with
in separate motion
court proceedings, is settled in civil cases (for
example, rule 35 proceedings, applications to strike out, special
pleas etc)
for which the Uniform Rules of Court make provision.
There is no such practice in criminal cases, because the CPA clearly
deals with the manner in which a criminal court should deal with
interlocutory applications (for example, an application for a
separation of trials in terms of section 157, special pleas in terms
of section 106, objections to a charge in terms of section
85,
requests for further particulars in terms section 87, etc).
[51]
The further argument raised by the respondent, which seems to justify
the practise of having
interlocutory applications being made through
the motion court, is that section 157 (2) of the CPA was enacted
prior to the Constitution
coming into operation, and the drafters of
the section did not envisage criminal trials being held in a
constitutional era.
This is not consistent with the authorities
laid down in various cases, especially those emanating from the
Supreme Court of Appeal
and the Constitutional Court, that the
various procedures laid down in the CPA under the overall protection
of an accused’s
right to a fair trial in terms of the
Constitution
[11]
, makes
provision for such applications to be heard during the criminal
trial. Every accused person in a criminal trial is
afforded the
necessary fair trial rights protection under the constitution.
This would include the proceedings during which
an application for a
separation of trials is sought during a criminal trial. There
would therefore be no need for an accused
person, in seeking to
protect his or her rights, to bring a separate application in motion
court to deal with an application for
a separation of trials, where
all criminal trials are adjudicated under the overall fair trial
provisions in terms of section 35
(3) of the Constitution.
[52]
In criminal cases, it has always been the practice that when a
judicial officer is confronted
with an interlocutory application, it
will deal with it expeditiously, make a ruling and then proceed with
the criminal trial.
Criminal court interlocutory applications
being dealt with in a civil court is a practice which is foreign to
criminal procedure.
Where an accused person is not satisfied
with the outcome of an interlocutory application, such an issue would
be dealt with
usually on appeal. Similarly, where an accused
person is not satisfied with the decision of a judge in the High
Court in
an interlocutory matter, such issue, after the completion of
the criminal trial, can be dealt with in an appeal.
[53]
It is therefore my considered view that this court, at this stage,
not being the court before
which the trial had commenced, would not
be the appropriate forum to decide whether an application for
separation should be granted
to the applicants. In my view,
such an application should be dealt with by the court before which
the trial has commenced.
Our courts have through the years
expressed our displeasure with this type of procedure followed in
criminal matters, and have
been averse to dealing with such
applications in this manner, because it would lead to piecemeal
adjudication of disputes and would
cause undue delays, and our courts
have ruled that such applications are best left to the trail court
dealing with the criminal
matter. It has also been used by
unscrupulous accused to unduly delay the proceedings, because it
would usually be followed
by an appeal to the Supreme Court of
Appeal, and thereafter to the Constitutional Court.
[54]
This issue of criminal matters being dealt with in the civil court
has been dealt with in other
divisions, as well as the Constitutional
Court and the Supreme Court of Appeal. In the Constitutional
Court, it was said
in
S v Bequinot
1997 (1) SACR 369
(CC):
‘
A Court
a quo
,
which has to deal daily with the hard realities of the criminal
justice system, is better placed than this Court to evaluate not
only
the effect of the reversal of the
onus
under s 37 on the
essential fairness of a criminal trial, but also of the likely
consequences of striking that provision or the
reverse
onus
it
contains from the statute book. The considered views of
experienced trial and appeal Court Judges on such matters are
valuable when this Court has to perform the difficult balancing
exercise demanded of it by s 33 (1) of the Constitution.’
[55]
Similarly, in the Supreme Court of Appeal in
Moyo and Another v
Minister of Justice and Constitutional Development and Others
2018 (2) SACR 313
(SCA) it was said:
‘
In s 35 the Constitution
guarantees a range of rights to arrested, detained and accused
persons. Section 35 (3) guarantees
to all accused persons the
right to a fair trial. That is secured in practice by the
provisions of the CPA. The appellants
do not seek to impugn the
provisions of the CPA in any way, yet they are seeking to assert
their fair-trial rights before a civil
court. That should give
pause for thought. Why are issues germane only in the context
of criminal proceedings being
canvassed and determined in civil
proceedings and not in the constitutionally compliant forum, and in
accordance with the constitutionally
compliant statute, provided for
the adjudication of criminal cases?’
[56]
In Wilkinson and Another v National Director of Public Prosecutions
and Others
2019 (2) SACR 278
(GP) the following was said at para 26:
‘
In my view, departures
from the procedures laid down in the CPA and the removal of criminal
proceedings to the civil courts should
not be encouraged. The
criminal trial has not yet commenced, and the criminal charges are
yet to be adjudicated upon. Because
the criminal charges are
yet to be adjudicated upon, the applicants require this court to
decide the constitutionality of the provisions
of the various
ordinances, without the benefit of the criminal-court findings on a
number of issues which have a bearing on the
question of whether or
not the provisions should be declared unconstitutional.’
Where,
however, in criminal proceedings there is no provision in the CPA to
deal with an issue, for instance which might be subject
to review by
a High Court for example, like the setting aside of a search warrant
or where an interlocutory decision by a magistrate
during the course
of the proceedings was clearly wrong and would lead to undue
hardship, it should be open to an accused person
to approach the High
Court by way of notice of motion on review. Only in such
exceptional circumstances, in my view, where
an accused person would
have no other suitable remedy, should such a person be allowed to
bring an application during the course
of criminal proceedings by
means of motion proceedings.
[57]
In this regard, I refer to what Langa CJ said in
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others; Zuma
v National Director of Public Prosecutions and Others
[12]
:
‘
[65] I nevertheless do
agree with the prosecution that this court should discourage
preliminary litigation that appears to have
no purpose other than to
circumvent the application of s 35 (5). Allowing such
litigation will often place prosecutors between
a rock and a hard
place. They must, on the one hand, resist preliminary
challenges to their investigations and to the institution
of
proceedings against accused persons; on the other hand, they are
simultaneously obliged to ensure the prompt commencement of
trials.
Generally disallowing such litigation would ensure that the
trial court decides the pertinent issues, which it is
best placed to
do, and would ensure that trials start sooner rather than later.
There can be no absolute rule in this regard,
however. The
courts’ doors should never be completely closed to litigants.
If, for instance, a warrant is clearly
unlawful, the victim
should be able to have it set aside promptly. If the trial is
only likely to commence far in the future,
the victim should be able
to engage in preliminary litigation to enforce his or her fundamental
rights. But in the ordinary
course of events, and where the
purpose of the litigation appears merely to be the avoidance of the
application of s 35 (5) or
the delay of criminal proceedings, all
courts should not entertain it. The trial court would then step
in and consider together
the pertinent interests of all concerned.
If that approach is generally followed the State would be
sufficiently constrained
from acting unlawfully by the application of
s 35 (5) and by the possibility of civil and criminal liability. The
nature
and degree of unlawfulness of the search warrant are important
factors to be borne in mind for the purposes of a decision under
s 35
(5). It is for this reason that the same court should consider
the unlawfulness of the warrant and its impact.
[66]
The suggestion that s 34 or s 38 of the Constitution might be
infringed by courts that adopt the approach commended in the
preceding paragraph is not justified. Section 34 of the
Constitution requires a dispute that can be resolved by law to be
determined by a court that is independent and impartial. The
court that hears the criminal trial will be both independent
and
impartial. Section 38 of the Constitution confers the right on
any person who alleges an infringement of or threat to
a right in the
Bill of Rights to approach a competent court and the court may “grant
appropriate relief”. It
will be appropriate for a court
not to entertain proceedings which are brought in terms of s 38
simply in order to avoid the application
of s 35 (5) or to achieve a
delay in criminal proceedings.’ (Internal footnotes
omitted.)
[58]
Therefore, for the reason that this court is not the court seized
with the criminal trial, and
that only that court can deal with such
an application, this application, for this reason alone, falls to be
dismissed. This,
in my view, should be the end of this matter
and the application should therefore be dismissed. It
seems, however,
that even though this court would not be the right
court to pronounce on the separation application, the parties have
filed extensive
heads and presented full argument before this court,
and given the fact that there seems to have been an increase in the
prosecutions
of POCA gang related matters not only in this court, but
also in the Regional courts of this division. A further reason
to
deal with this application is because the issue of a separation of
trials had been dealt with in POCA matters in the context of
racketeering and not in the context of criminal gang activity. This
is the first case that deals with the issue of separation in
gang
related POCA matters. The interests of justice demand that this
court deal with the separation application, so as to
avoid a
duplication of proceedings of the same issue before the criminal
court. I will therefore proceed to deal with this
application.
The
Separation Application
[59]
During these proceedings it was not disputed the applicants and the
other accused are part of
a criminal gang. It was further not
disputed that the offences that were committed in respect of counts 4
– 101 emanate
from the activities the applicants allegedly,
together with the other accused, undertook as a criminal gang, the
JCY.
[60]
These charges, the State alleges, are part of a pattern of gang
activity, which was also not
disputed in these proceedings. For
the purposes of showing that it was all part of a series of criminal
gang activities,
all the accused and the applicants were joined in
one indictment, even where the crimes they allegedly committed were
either not
committed by them jointly, or while they were at the same
place, or at the same time. The applicants and the other
accused
were joined in the indictment on the basis of their
involvement in, and being members of, the criminal gang. The
applicants
and the accused were charged with a series of activities
committed by them and the different accused for different crimes over
a period in pursuance of one overall plan, which is to further the
aims of the criminal gang they belong to.
[61]
The first question to consider is whether the joinder with the other
accused was permissible
in this particular case. Secondly,
whether the POCA intended, as one of its purposes, to have
prosecutions of members of
the same criminal gang be dealt with in
one criminal trial in this manner, even in cases where they were not
participants or accessories
after the fact to a crime, or to
prosecute members of a criminal gang where they, or some of them,
have not committed their wrongful
acts at the same time or at the
same place, as respectively permitted in terms of sections 155 and
156 of the CPA.
[62]
The series of activities or acts committed, according to the
indictment, constitute a pattern
of criminal gang activity, which led
to the commission of the Schedule 1 offences as set out in POCA. In
Ramgobin
[13]
,
at 78G–79G, it was held to be perfectly permissible where
separate acts are alleged, each of which constitutes a separate
offence, and where each would be the subject of a separate charge in
circumstances where the accused are not participants in the
same
offence for the purposes of section 155, or were present at the same
time and place for the purposes of section 156 of the
CPA. It
relied on the dictum in
R
v Adams and Others
[14]
where it was held, at 669F-G, that ‘a joinder of persons on the
basis of participation in “a course of conduct”
not for
the same periods, constitutes a departure from the usual or general
rule’.
[63]
A number of accused could nevertheless be joined in one indictment if
they were fully informed
of the particulars of the charges each of
them face. Joinder would be permissible on the basis of the
dictum in
R
v Heyne and Others
[15]
,
even though such joinder may not have been permitted in terms of the
provisions of the equivalent provisions of sections 155 and
156 of
the CPA
[16]
. In
Heyne
,
the erstwhile Appellate Division was prepared to uphold a joinder of
accused in circumstances different to those set out in sections
155
and 156 of the CPA.
[64]
In
Ramgobin
the court went further, relying on
Heyne
,
and held at 79G-H: ‘The practice, therefore, of charging a
series of acts committed by different accused at different times
over
a period in pursuance of one overall plan or design as one offence,
notwithstanding that each such act could form the subject
of a
separate charge, is well-established in our law, and rests on
Appellate Division authority.’
[65]
In
Heyne
various accused, which included 3 companies and 15
natural persons, were charged with fraud committed over a period of
two and
a half years. The facts of that case were briefly that
the accused consistently, over the period as stated, acted in concert
by creating books and documents containing false entries. They
also failed to make entries into various records in order
to deceive
the police and auditors. They were all joined together in the
same criminal proceedings. Schreiner JA said
the following at
626-627:
‘
Some
crimes, such as crimes of omission, may be continuous in their
nature. In the case of other crimes when there is a series
of
acts done in pursuance of one criminal design the law recognises the
practical necessity of allowing the Crown, with due regard
to what is
fair to the accused, to charge the series as a criminal course of
conduct, that is, as a single crime. (
Rex v Smit and
Another
,
1946 AD 862.)
In the present case the Crown has,
in the name of necessity or convenience, gone much further. In
advancing its claim
that prolonged criminal behaviour is a sequence
of shorter, separately punishable spells of criminality, the Crown
has argued that
the question is simply one of providing the accused
person with sufficient particulars to enable him to know what the
case is that
he has to meet. Each accused in the present case
was told that he was being charged with taking part, for such period
as
he was associated with the work of one or other bottle store, in a
scheme of illegal liquor selling and he told, so far as it was
known,
the values of the liquor which it was alleged was illegally supplied
during each of the months comprising that period.’
At
628 the court continues:
‘
The
correct view, it seems to me, is that if the Crown relies upon a
course of conduct, with such advantages from its point of view
as
there may be, the course of conduct must be regarded as one
continuing crime, provable in various ways, including the proof
of
individual criminal acts making up the course of conduct.’
[66]
It would seem that it is well-established in law that the joinder of
accused persons in one indictment
and trial is permissible in
circumstances other than those laid down in sections 155 and 156 of
the CPA. In
Heyne
it was held that such a joinder would
be permissible in circumstances where it is practical, necessary and
convenient. It
was further held that a court is not necessarily
obliged to grant a separation where there is a reasonable possibility
of prejudice
to an accused. A further factor is the
inconvenience to the prosecution, especially in exceptionally long
drawn out trials.
[67]
In S v Maringa and another
[17]
,
the SCA also made reference to the decision of
Heyne
where the two appellants in that case who were tried together with 5
other accused on that trial sought to be separated from the
other
accused, where they faced a trial in a total of 399 charges,
including fraud, forgery, uttering and corruption. The
first
appellant was charged with all the counts, barring those related to
the corruption charges. The second appellant was
charged with
only 34 counts of fraud. The appellants’ objection to be
jointly charged was based on the provisions of
section 155 and 156 of
the CPA as they did not all face the same charges.
[68]
The offences were all committed about the same time and place and
were in the furtherance of
a common purpose designed to fraudulently
sell property belonging to the Johannesburg Metropolitan Municipality
and to transfer
those properties to buyers, in order for the accused
to collect the proceeds of those sales. It was necessary for
them to
successfully effect such transfers to get the co-operation of
SARS and the Deeds officials in the furtherance of the common
purpose.
The officials were bribed and therefore corruption charges
were part and parcel of the overall design of the scheme. The
court held that there was a whole mosaic of evidence that was
necessary to prove the scheme as well as the participation of the
various accused in its different facets. This court found that
the Magistrate’s decision not to separate the trials
had been
properly exercised. It was the view of the court that the
purpose of section 155 and 156 was to avoid a multiplicity
of trials
where there were a number of accused and where essentially, the same
evidence on behalf of the prosecution was led on
charges faced by all
the accused.
[69]
I can think of an example in another context where a number of
persons, in order to defraud the
social grant system, commit theft or
fraud in the same manner without them being aware of each other, or
having participated in
each other’s crime, or being an
accessory after fact in each other’s crime. Or having
committed their offences
separately from each other, and without
being at the same place when they committed their individual
offences, and without having
done so at the same time.
[70]
In such a particular case, based on convenience and practical
considerations, it would not be
improper to charge the accused
together, even if none were aware of the existence of the other, and
the individual crimes each
one of them committed were at different
places and times, especially if the same witnesses would testify in
all of their cases.
[71]
In coming back to this case, the common denominator between the
applicants and the other accused
is that they belong to a criminal
gang, and that they have allegedly committed the offences, either
individually or together with
other accused, in the furtherance of a
criminal gang activity, which constitutes a pattern of criminal gang
activity. The
provisions of section 9 (1) (a) of POCA, with
which all the applicants and the accused are charged, make it an
offence to aid and
abet criminal gang activity, which the State
alleges was done in the instant case.
[72]
All the applicants and the accused are also charged with contravening
section 9 (2) (a) of POCA,
the crime of causing or contributing to a
pattern of criminal gang activity. Similarly, all of them are
also charged with
contravening section 9 (2) (b) of POCA, which
criminalises the incitement to commit, perform or participate in a
pattern of criminal
gang activity. It is therefore essential
for the accused to be charged jointly in one indictment, even though
they may have
committed separate offences at different times and in
different places in respect of counts 4 – 101, these being the
essential
elements or building blocks to prove a pattern of criminal
gang activity.
[73]
It is clear that POCA, as one of its purposes, and aims to
criminalise certain activities associated
with gangs. In my
view, it could clearly not have been the purpose of the legislation
to deal with gang members who are involved
in a criminal gang
activity, and where it is shown that such activities constitute a
pattern of criminal gang activity, on an individual
basis, by
prosecuting them not as members of the criminal gang collectively,
but independently of each other. Once it has
been shown that an
offence was committed in furtherance of the activities of, or for the
benefit of, a criminal gang, even by an
individual member of the gang
without having involved other members of the gang, I can see no
difficulty in joining all the gang
members together in one indictment
where they all committed offences individually and apart from each
other for the benefit of
that gang.
[74]
In my view, in order to achieve the aims and purposes of POCA, which
is to eradicate criminal
gang activity, it would be perfectly
permissible to join a number of accused who are members of a specific
gang, even though they
have committed a number of crimes with some of
the members of the gang or in their individual capacities.
Where firstly,
it has been proven that an accused person is a member
of a criminal gang and has made common cause with the criminal
activities
of the criminal gang, such an accused clearly aligned him
or herself with that gang and has an interest in the affairs of that
gang. Secondly, where it has been shown that an accused person,
either individually or as part of a group, participated to
commit a
specific crime with other members of the gang or he or she as a
member of the gang individually committed a crime in the
furtherance
of the aims and activities of the gang.
[75]
It can hardly be argued that when such an offence is committed by an
individual member of the
gang, that such gang member should not be
tried with other members of that gang, who either collectively or
individually committed
offences in furtherance of the activities of,
or for the benefit of, that gang. It would make practical sense
to join an
individual or group of persons who associates themselves
with a particular gang, where they voluntarily joined a gang, commit
criminal
offences in furtherance of the activities of that gang, and
make common cause with the criminal activities of that gang, in one
indictment to stand trial with other members of that gang. It
is clear that such a person, by doing all of this, established
an
active interest in the affairs and activities of such a gang, even
though he or she was not present at or participated in a
specific
activity of the gang which resulted in a criminal offence committed
in the name of that gang. The conduct and actions
of other gang
members will have an impact on such a person.
[76]
It would be essential, for the State to prove a pattern of criminal
gang activity, if all the
activities of such a gang in furtherance of
the gang’s activities and for the benefit of that gang which
results in criminal
offences, are placed before a court, even if they
were all involved in different criminal activities. What is
important is
the fact that ultimately the charge(s) against each of
the applicants and the other accused constitutes a pattern of
criminal gang
activity. Therein lies the link that would
justify a joinder as contemplated by the decision in
Heyne
.
[77]
In the preamble to POCA, the legislature clearly states that the
South African common law and
statutory law failed to deal effectively
with organised crime, money laundering and criminal gang activities.
Furthermore,
that our law failed to keep pace with
international measures aimed at dealing effectively with organised
crime, money laundering
and criminal gang activities. It
recognises the pervasive presence of criminal gangs in many
communities, which is harmful
to the well-being of those communities.
It was therefore necessary to criminalise participation in the
promotion of criminal
gang activities, and it seems it was for this
reason that the respondent, as stated in the affidavit
[18]
of Advocate Riley, a Deputy Director of Public Prosecution in the
Western Cape, chose to prosecute all of the applicants as well
as the
accused in this manner. She states: ‘Before the POCA
legislation was in place, prosecutors had few legal methods
to
prosecute an entire criminal group. Prosecutors were forced to
try gang related crimes individually, even though a large
number of
individuals may have been involved in the commission of a crime. It
is necessary and desirable for all accused
to be charged together in
order to place [as] full [a] picture as possible of the activities of
the JCY gang before the court hearing
the matter. A POCA trial
will [sic] give [a] broad overview of the criminal activities and
accused involved as part of the
gang’s effort to control their
turf. A joined trial will not be unfair to any of the accused
and is also fair to the
state and community affected by the
activities of the gang. A separation of trials will hinder the
respondent in presenting
its case against all the accused. Some
witnesses have to give evidence on more than one occasion.’
[78]
She states
[19]
further that
the respondent will not otherwise be able to place the full extent of
the activities of the JCY gang before the court.
Criminal gang
activities are one of the species of organised crime, like
racketeering, that POCA seeks to eliminate. In
this regard, I
refer to the judgment of the Constitutional Court in
Savoi
and Others v National Director of Public Prosecutions and Another
[20]
where the court said, at paragraph 15: ‘POCA seeks to ensure
that the criminal justice system reaches as far and wide as
possible
in order to deal with the scourge of organised crime in as many of
its manifestations as possible.’
[79]
The efficacy, impact and reach of the legislation to combat the
proliferation of criminal gangs
and gang activity, will be rendered
meaningless if prosecutions of the members of a criminal gang are to
be separated and staggered,
where their separate criminal conduct was
committed in furtherance of the pattern of gang activity and for the
benefit, existence
and survival of the gang.
[80]
It is important for the survival of a criminal gang to have the
ability to spread its presence
across a wide area, not only in the
various towns but also in rural areas. The manner in which the
JCY operates is set out
by the investigating officer, Detective
Sergeant Jamie Scholtz (“Scholtz”), in great detail in
his affidavit. He
states
[21]
that there is a strong presence of the JCY gang in the Mitchells
Plain area, which has spread to the suburbs of Lentegeur, Rocklands,
Eastridge, the Town Centre taxi rank area, Portlands and Westridge.
According to him, the JCY gang also has a strong presence
in
Hout Bay, Worcester, Philippi, Strandfontein and Macassar.
[81]
According to Scholtz, because of the JCY’s widespread presence,
in most instances they
would commit crimes in the furtherance of
their gang activity not in each other’s presence, or with the
participation of
others, and not at the same place and at the same
time. This happens when they’re fighting with other
gangs, where
another gang is in a different area, in order to claim
dominance and take over the area of a rival gang. One would
colloquially
referred to this as a “turf war”
[22]
.
This would then result in the commission of Schedule 1 offences, such
as those set out in counts 4 – 101, and that
would form part of
a pattern of gang activity.
[82]
According to Scholtz, in this particular case the third applicant
allegedly used what he described
as a so-called “pool gun”,
to kill three members of the Americans gang, which is set out in
counts 19 – 22. In
counts 23 – 27, a person was
killed and another seriously wounded, allegedly at the hands of the
third applicant.
[83]
That same gun the third applicant allegedly used, was also allegedly
used by accused 4 to commit
the murder which is the subject of counts
29 – 31. That was also a gang-related murder in the
furtherance of criminal
gang activity. According to Scholtz,
firearms are a valuable commodity in gangs. It is used by gang
members that act
as bodyguards for the gang, and is used for the
protection of the gang’s drug outlets. Guns that belong
to a specific
gang are also issued to gang members to carry out
specific tasks; these must be returned after a particular assignment
or mission
has been completed. He cites a further example of
where a specific firearm that was linked through ballistic evidence,
was
used to commit the murder of two rival gang members, belonging to
the Ghetto Kids, under counts 32 – 34.
[84]
He furthermore describes the third applicant as an important figure
in the JCY gang. In
paragraphs 32 – 33 of his affidavit,
he sets out how accused one became the leader of the JCY, after three
previous leaders
of the JCY were murdered, allegedly by a rival gang,
the Fancy Boys, which resulted in a number of violent attacks on the
Fancy
Boys gang. These incidents, where revenge attacks were
orchestrated on the Fancy Boys, are included in the indictment as
charges against some of the accused. Scholtz describes accused
1, accused 2, accused 3, accused 4, accused 5, accused 6, accused
7
(the first applicant), accused 13, and accused 14 (the third
applicant) as the hitmen of the JCY group in Mitchells Plain
[23]
.
[85]
According to him, the second applicant (accused 8), accused 11 and
accused 12, are the drivers
who drove the hitmen to the places where
the hits or murders and attempted murders took place, in the revenge
attacks launched
on the Fancy Boys gang by the JCY. It seems
that, based on the evidence of Scholtz, there is a practical
necessity, and it
would be convenient, for the accused and the
applicants to be joined together in one indictment. The
charges, as said earlier,
emanate from 29 incidents of criminal gang
activity and it would seem that even though the reasons for the
joinder are not based
on participation, or proximity in place and
time when the offences were committed, it is essentially interwoven
and closely associated
with each other on the basis of the individual
accused’s singular intention to advance a pattern of criminal
gang activity
for the benefit of the JCY gang. The consistent
link and golden thread that runs through all the individual charges
committed
by the different accused, where they acted either
individually or as a group, is their gang membership and their
allegiance to
the JCY gang.
[86]
The Constitutional Court ruling in
Savoi
[24]
,
albeit in the context of racketeering, is of equal importance and
application in cases of criminal gang activity, and at paragraphs
25
to 27 the court highlighted the manner in which organised crime and
criminal syndicates operate:
‘
[25] The respondents add –
correctly – that targeting specific offences for exclusion from
the schedule will fail to
reach the true nature of criminal activity
engaged in by criminal syndicates, both as to its scale and those who
are ultimately
responsible for it. Criminal syndicates work in
a complex weblike manner. They operate in different areas of
economic
activity, utilise different agents and organisations, and
thereby commit various offences – some relatively minor at face
value – over time, in complex combination. It is the
diversity of criminal activity, situated in complex organisational
structures, occurring over time, where the lines of authority are
deliberately obscured, that renders legislation in the nature
of POCA
a necessity. The concept of a “pattern of racketeering
activity” is thus tailored to meet the multifarious
ways in
which organised crime manifests itself.
[26]
To illustrate by reference to what, on the face of it, may be viewed
as relatively minor individual offences: common assaults
in the form
of threats of violence or actual application of force may be the
order of the day in the organised criminality of a
criminal
syndicate. A ready example is where an organisation that deals
in drugs on a large scale protects its turf and gains
new turf –
to use the colloquialism – to sustain and increase its sales by
requiring its henchmen to force competitors
into submission by means
of threats of violence and actual violence amounting to no more than
common assault. Quite conceivably,
these offences might fall
under the catch-all item 33 of sch 1. This would fit the
definition of “pattern of racketeering
activity”
perfectly. I give this example to show that it is idle to
attack the definition by isolating individual offences,
forming an
opinion on how relatively minor they are individually and concluding
that they are, therefore, unsuited to the notion
of organised crime
and “pattern of racketeering activity”. That is
shutting one’s eyes to how organised
crime works.
[27]
In short, what may appear to be “ordinary” or “garden
variety” commercial criminality may, in fact,
be very much part
of organised crime. And that is a question of fact.”
(Internal footnotes omitted.)
[87]
Our courts have also, in the context of the crime of racketeering,
which like criminal gang activity
is a species of organised crime in
terms of POCA, expressed its views with regards to the joinder of
accused, where various accused
were charged with various offences, of
which some could not be linked to all of them in time or by an act of
participation, and
where it was submitted by the State that the
situation was different because all of the accused were involved in
the same transaction,
that constituted the main count each of them
faced, while they played different roles in achieving it. This
was the situation
the court had to deal with in
Naidoo
[25]
,
where the appellant, the second of two remaining accused, was charged
with theft and fraud and various statutory offences, as
well as
contravening sections of POCA (racketeering). In
Naidoo
it was further stated that, despite the fact that the nature of the
part played by each accused would be different from that of
another
accused, the evidence to prove the conspiracy between them, or the
individual counts on which accused 1 had been charged
in the
alternative, would remain the same.
[88]
POCA clearly distinguishes between what constitutes a pattern of
racketeering and what constitutes
a pattern of criminal gang
activity. The requirement of what constitutes a pattern of
racketeering seems to be more circumscribed
than that of a pattern of
criminal gang activity. A pattern of criminal gang activity
does not require a planned, ongoing,
continuous or repeated
participation or involvement of a schedule 1 offence. It does
not require what Cloete JA described
in S v Eyssen
[26]
as
“
(8)
[N]either unrelated instances of prescribed behaviour nor an
accidental coincidence between them constitute a pattern and the
word
planned makes it clear:
[9] The participation must be by
way of ongoing, continuous or repeated participation or involvement.
The use of "involvement"
as well as the word
"participation" widens the ambit of the definition. So does
the use of the words "ongoing, continuous
or repeated".
Although similar in meaning, there are nuances of difference.
"Ongoing" conveys the idea of "not
as yet completed".
"Continuous" (as opposed to "continual") means
uninterrupted in time or sequence. 'Repeated'
means recurring.”
[89]
POCA merely requires for a pattern of criminal gang activity to be
shown that:
1)
The commission of two or more criminal offences
referred to in schedule 1;
2)
Of which at least one of those occurred after the
commencement of Chapter 4, and
3)
The last of those offences occurred within 3
years after a prior offence;
4)
The offences were committed
a) On separate
occasions; or
b) On the same
occasion by two or more persons who are members or who belong to the
same criminal gang.
[90]
This provision should be read together with section 9 of the Act
where section 9 (1)(a) for example,
makes it a criminal offence to
participate or to be a member of a criminal gang; or where there is a
wilful, aiding and abetting
of criminal activity at the direction of
or in association with any criminal gang. Section 9(2)(a) also
makes it a criminal
offence to bring about, promote or contribute to
a pattern of criminal gang activity. It is also a criminal
offence in terms
of Section 9(2)(b) to incite, instigate, command,
aide, encourage or procure any person to participate in the pattern
of criminal
gang activity.
[91]
Whilst POCA clearly distinguishes between a pattern of racketeering
and a pattern of criminal
gang activity, with regards to the
components and elements of each of the activities. The
requirement it would seem for a
pattern of racketeering are more
onerous and circumscribed. It must be planned, ongoing and
continuous conduct that would
constitute a pattern of racketeering.
What the two provisions, however have in common, is that there must
be an association
of some sort between the participants.
[92]
In the case of racketeering, there must be an association with a
particular enterprise and that
a person’s involvement may take
place in a number of ways. It can be by virtue of the
individual acts of association
with the enterprise. In the case
of criminal gang activity, the relation between the parties must be
their association with
a criminal gang. Similarly, as in the
case of racketeering, their involvement may take place in a number of
ways. It
can also be by virtue of their individual acts of
association with a criminal gang. POCA does not require that
there be a
planned, ongoing and continuous conduct to constitute a
pattern of criminal gang activity as in the case of racketeering.
What
is required, is clearly set out in section 9(2) of POCA to
constitute a pattern of criminal gang activity which can be in the
form
of individual acts of persons which are unrelated.
[93]
Notwithstanding these differences, with regards to the different
roles played by each accused,
all of them contributed to a pattern of
criminal gang activity. The fact that the applicants are charged
under POCA as was stated
in
Naidoo
albeit under section 2 (1)
of POCA in my view, is of equal application in this case. The
court held that even though the
accused were all involved in
different capacities in the illegal enterprise and various criminal
activities were undertaken, all
of those criminal activities has as
their ultimate purpose the facilitation of the various crimes listed
in schedule 1 of POCA.
[94]
Similarly, in this particular case, the various accused allegedly
committed various offences
in the furtherance of a pattern of
criminal gang activity, which resulted in them allegedly committing
various offences listed
in schedule one of POCA, for the benefit of
the JCY criminal gang. I am therefore in agreement with the
submission of the
respondent that the aims and objects of POCA apply
to all the forms of organised crime which POCA seeks to criminalise.
[95]
There was also a complaint by the accused in that matter that they
would have to sit through
a trial while evidence was being presented
which would not relate to the charges they faced. The court
held that the prejudice
the accused referred to was exaggerated, in
that the corruption and other charges in that matter were but part of
the scheme that
would be proved. The court further held that if
separation was ordered, the State would suffer prejudice because
there would
then have to be three separate trials where the same
witnesses would have to testify about the same facts. The court
was
further of the view that that was inimical to the interests of
the State and that there should not be a multiplicity of trials
relating to essentially the same facts and body of evidence.
[96]
Regarding the question of prejudice, it was held in
S
v Somciza
[27]
that in dealing with the question of prejudice, in the exercise of
its discretion in terms of section 157, the trial court has
to weigh
up the prejudice likely to be caused to the applicant by a refusal to
separate, against the likely prejudice to the other
accused or the
State if the trials were separated. The court in
S
v Shuma
[28]
,
at 489I-J and 490A–B, was of the view that the interests of
justice has a wide meaning, with Erasmus J opining:
‘
The
interests of justice is a wide concept. In the framework of s
157 it encompasses the interests of the individual
accused, as
well as – or as against – the wider interests of society.
It is in the interests of society as well
as of justice that
alleged perpetrators of the same crimes be tried jointly. The
alternative, namely separate trial as a
matter of course, will be
cumbersome and lead to huge wastage of State resources. It
will, too, inevitably bring about delay,
which will be to the benefit
of no-one – least of all the accused. Furthermore, as was
pointed out by Greenberg
JA in
R
v Nzuza and Another
(
supra
at
380G), there is much to be said for the view that it is in the
interests of justice that accused should be tried together
to enable
the court to have all the evidence before it, before deciding the
disputed question as to who is the guilty person. These
are
cogent reasons for the holding of joint trials. It is therefore
not surprising that – as far as I am aware –
the practice
of joint trials is universal in all legal systems. In South
Africa, s 157 (1) of the Code specifically empowers
the prosecuting
authority to join any number of accused in the same criminal
proceedings. Such procedure is consonant with
the interests of
justice.’
In
this particular case, having regard to the aims and objectives of
POCA, the court, in exercising its discretion, is of the view
that it
is in the interests of society as well as justice that all members of
a criminal gang be tried together, subject always
to an accused’s
right to a fair trial.
[97]
In
Naidoo
(para 12) the court fully appreciated the fact that
the CPA (sections 155 and 156) does not permit a situation where an
accused
might suffer prejudice if he or she would have to spend weeks
in court while evidence affecting his or her co-accused was dealt
with, which had nothing to do whatsoever with the objecting accused
and the charges faced by him or her, merely because, on other
counts,
he was charged with an offence of which his co-accused was not
convicted. The court, however, stated that to rely
on cases
such as
Ramgobin
,
S v Chawe and Another
1970 (2) SA 414
(NC),
S v Makganje
1993 (2) SACR 621
(B), as well as S v
Stellios Orphanou and Six Others, an unreported decision by Leveson J
on 18 October 1985 (WLD), would not be
useful because in none of
these cases prosecutions in terms of POCA was undertaken.
Further, that these cases are distinguishable
from those which apply
in the present proceedings. In each of these cases, the court
held that the various co-accused were
charged with various offences,
some of which could not be linked to all of them in time or by act of
participation.
[98]
I agree with the sentiments expressed by the court in
Naidoo
regarding the applicability of the cases in POCA related
prosecutions. The difference in this particular case is that
the
various offences of the accused and the applicants, which cannot
be linked by means of participation or proximity in place and time,
are the building blocks or foundation upon which a pattern of
criminal gang activity has been constructed by the respondent in
the
indictment. Should one remove some of the building blocks by
means of a separation, the pattern of criminal gang activity
which
POCA seeks to address will collapse. In my view, as said
earlier, the prejudice the State and the public interests
will suffer
would far outweigh any prejudice any of the applicants or the accused
will suffer. In my view, the prejudice
suffered in one
continuous trial stretching over a few months where all the accused
and applicants are joined together, would be
much less than if
separate trials were to be held.
Right
to a fair trial:
[99]
It is difficult to determine at this stage whether the joinder of the
applicants together with
the other accused in one trial would
infringe upon the applicants’ right to a fair trial. The
right to a fair trial
is not static and can be influenced by a
variety of factors and circumstances peculiar to the criminal trial.
At this stage,
it would be difficult to conclude whether the
joinder of the applicants would render the trial unfair. Such a
determination,
in my view, would be best made by the trial court,
after a consideration of all the facts, circumstances and even the
evidence
presented during the trial. Even if it would
constitute an infringement, the question that would remain is whether
it would
render the trial unfair. That is also a determination
for the trial court to make. The mere fact that an accused may
be prejudiced, is not sufficient grounds to order a separation of
trials, where it would be in the interests of justice in a case
like
this to have a joint trial. Especially in a case like this,
where an accused would stand trial with members of the same
gang he
or she belongs to, and where they committed criminal acts in the
furtherance of the interests of the gang, which forms
part of a
pattern of criminal gang activity to which they contributed.
[100]
I conclude, for all of the reasons mentioned, that the joinder of the
applicants in one trial with the other accused
is not impermissible.
Their application for a separation of trials therefore falls to
be dismissed. In the result therefore,
I make the following
order:
1.
That the application for separation of trials in respect of the
applicants from
the other accused persons as stated in the indictment
is dismissed.
2.
I make no order as to costs.
_________________________
R.C.A. Henney
Judge of the High
Court
[1]
Chapter
4 deals with criminal gan
g
activity as an organised crime.
[2]
2009 (2) SACR 674 (GSJ).
[3]
1986 (1) SA 68 (N).
[4]
Fn 2
above.
[5]
1995
(2) SACR 177
(A) at 186E-H.
[6]
1926
A.D. 410.
[7]
Fn 3
above.
[8]
Section 106(4) of the CPA states:-
‘
An
accused who pleads to a charge, other than a plea that the court has
no jurisdiction to try the offence, or an accused on behalf
of whom
a plea of not guilty is entered by the court, shall, save as is
otherwise expressly provided by this Act or any other
law, be
entitled to demand that he be acquitted or be convicted.’
[9]
RS 61,
2018 Ch15 p43.
[10]
R v Heyne (infra); R v Adams (infra); S v Ramgobin (fn 3 above); S v
Shuma (infra); S v Somciza (infra).
[11]
See cases referred to in paras 55, 56, 57 (infra).
[12]
2009
(1) SA 1 (CC).
[13]
Fn 3
above.
[14]
1959
(1) SA 646 (SCC).
[15]
1956
(3) SA 604
(A).
[16]
Sections
327 and 328 of the Criminal Procedure Act 56 of 1955.
[17]
2015 (2) SACR 629 (SCA)
[18]
Para
21.
[19]
Para
22.
[20]
2014
(1) SACR 545 (CC).
[21]
Para
16.
[22]
Paras
23, 24 and 25 of Scholtz’ affidavit.
[23]
Para
38.
[24]
Fn 19 above.
[25]
Fn 2 above
.
[26]
2009(1) SACR 406 (SCA); [(2010)] 132 4 All SA 13
[27]
1990
(1) SA 361
(A) at 367E-F.
[28]
1994
(2) SACR 486
(E).