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[2011] ZAGPJHC 51
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Phillips v Director of Public Prosecutions and Another (09/27346) [2011] ZAGPJHC 51 (10 June 2011)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
Case No:09/27346
Date:10/06/2011
In the matter between:
PHILLIPS, ANDREW
LIONEL
................................................................,
Applicant
and
THE DIRECTOR OF PUBLIC
PROSECUTIONS
......................
First
Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.........................................................................
Second
Respondent
JUDGMENT
SATCHWELL J:
INTRODUCTION
This application seeks an order to
stay an appeal brought by the prosecution against the decision of
the Magistrates Court acquitting
an accused.
The applicant, Andrew Lionel Phillips
(‘Phillips’), was arrested and detained on 2
nd
February 2000. Certain of his property was attached in terms of the
Prevention of Organised Crime Act (‘POCA’) on
22
nd
December 2000
1
.
Charges were put to him in the Regional Court at Johannesburg on 12
January 2004 when he pleaded not guilty. He was acquitted
on 26
th
November 2008.
On 5 December 2008, the first
respondent, the Director of Public Prosecutions (‘the DPP’),
gave notice that it
intended to appeal against Phillip’s
acquittal and called upon the Regional Magistrate to state a case in
terms of section
310 (1) of the Criminal Procedure Act (‘CPA’).
The stated case was provided on 26
th
January 2009. The DPP lodged a notice of appeal with the Registrar
of the High Court on 17
th
February 2009 appealing “against the decision of questions of
law” in terms of section 310 (1) of CPA
2
.
Such appeal essentially seeks to have Phillip’s acquittal set
aside and the matter remitted to the Regional Court for
the trial to
be re-opened.
Independently of the appeal noted by
the DPP, this application was launched by Phillips on 3
rd
July 2009 seeking orders:–
“
1. Striking from the roll
the first respondents appeal against the judgment and order handed
down by Mr S. P. Bezuidenhout in
the Regional Magistrates Court for
the Regional Division of Gauteng in Case No 41/1899/00 on 26 November
2008 in which the Learned
Magistrate acquitted the applicant.
In the event that this court holds
that it is necessary for the purposes of the relief claimed in prayer
1 above,
2. Declaring that Section 310 of
the Criminal Procedure Act, 51 of 1997 (“the Act”) is
inconsistent with the Constitution
and invalid.
3. Directing that the first
respondent, and in the event of opposition from second respondent,
both respondents, jointly and severally
pay the costs of the
applicant
.”
The application relies upon a number
of grounds: the appeal has lapsed or been abandoned as a result of
the failure of the DPP
to advance or prosecute it within a
reasonable time; to allow it to continue would violate Phillips’
constitutional rights
to a fair trial and particularly the right to
be tried without unreasonable delay; an appeal by the DPP against
the acquittal
violates Phillip’s constitutional rights to a
fair trial and in particular the right against double jeopardy
entrenched
in section 35(3)(m) of the Constitution; to the extent
that section 310 of the CPA purports to authorize such an appeal,
section
310 is unconstitutional and invalid.
By reason of the challenge to
constitutionality, the second respondent, the Minister of Justice
and Constitutional Development
(‘The Minister’) was
joined and, although his counsel advised the court that the Minister
really occupied the position
of “an amicus” in this
matter, the Minister has filed opposing papers.
PROCEDURAL ISSUES
Condonation
The application was filed and served
on 3
rd
July 2009. The DPP and the Minister filed
notices of intention to
oppose on 8
th
and 29
th
July 2009 respectively. The DPP filed a ‘preliminary answering
affidavit’
3
on 30
th
September 2010 and a ‘supplementary answering affidavit’
on 25th November 2010 (only served on 15th December 2010)
and the
Minister filed an answering affidavit on the 10
th
December 2010 (only served on 15
th
December 2010).
Phillips contends that the DPP and
the Minister have filed their answering papers “
egregiously
out of time and without a proper explanation for their delay”
since their answering affidavit, treated as an ordinary application,
was required to be filed within a reasonable time, and
so would
have been due by 29
th
July 2009.
4
Neither the DPP nor the Minister have
brought an application for condonation of the late filing of their
answering affidavits
5
.
Both respondents have submitted that they were not out of time (by
any great margin) in filing their papers. They take the
view that
the Record of the criminal trial was only made available on the 4
th
November 2010 and accordingly their Answering Affidavits only fell
due 15 days after such record had been filed, i.e. on the
25
th
November 2010.
I am in agreement with Advocate
Hellens, appearing for Phillips, that the DPP and the Minister have
been delinquent in their approach
to this application. There has
been no attempt to meet any of the requirements for condonation of
their non-compliance with
the Rules (no matter how lengthy or how
limited any delay might have been). In the ordinary course, I would
have acceded to Mr
Hellens request that this court refuse to grant
condonation for the irregular filing of both sets of answering
affidavits and
disregard their contents.
However, this is not an ordinary
application. It has ramifications far wider than this particular
applicant/accused and this
particular prosecution. To find that an
appeal by a prosecution has lapsed or been abandoned; to find that
particular delay is
in breach of the accused’s right to a fair
trial; to find that the provisions of section 310 of the CPA are
unconstitutional
and invalid because it violates the right against
double jeopardy – all of these findings would have significant
implications
for the criminal justice system.
I am of the view that the responses
by the DPP and the Minister to those averments and submissions
raised in Phillip’s founding
and supplementary founding
affidavits and heads of argument must be given proper consideration.
To do otherwise would result
in my hearing only one side of an
important debate and making findings which might not be appropriate.
In the absence of the
averments in the DPP and Ministers affidavits
and the submissions in their (also late) heads of argument, I would
not be doing
justice to an important issue. One which, I might
add, Phillips has treated as significant - in his employment of
three counsel
6
and their careful work on this matter.
I am mindful of the need for the
relevant State organ to be heard in matters of such importance –
not only concerning the
Constitutional challenge to an Act of
Parliament (viz the CPA) but also where the relevant Ministry has
overall responsibility
for the administration of the criminal
justice system and public policy issues which arise.
7
Issue not before court –
notice of motion not amended
In its answering affidavit, the DPP
contended that Phillips had failed to comply with section 10A and
16A of the Rules which contention
was disposed of by reference to
the revised and expanded affidavit filed with the registrar on 8
th
September 2010.
8
From this complaint, then emerged the
submission that the
“so-called
application for undue delay is not before this court”
9
because the respondents never received an application for amendment
of the notice of motion to incorporate same.
However, Phillips’
supplementary affidavit dated 8
th
September 2010
10
,
paragraph 4.2 stated “
I…
introduce a new cause of action for the relief that I seek in prayer
1 of the notion of motion”
while paragraph 5 stated
“in
this regard, I set out in this affidavit, facts upon which I rely
for the submission that, the first respondents appeal
should be
struck from the roll because the appeal has now lapsed due to the
first respondents failure to prosecute that appeal
within a
reasonable time”
.
On reading this supplementary
affidavit in conjunction with the original (and un-amended notice of
motion) it is clear that the
relief sought in the notice of motion
has never changed. All that has happened is that a new ‘cause
of action’
has been included. No amendment was needed to
the notice of motion since the same relief continued to be sought.
In argument, Advocate Mtshaulana
appearing for both the DPP and the Minister, indicated that it
appeared that the respondents
had failed to read the supplementary
founding affidavit properly, conceded that no new notice of motion
was needed and rightly
said that “
this is too important a
matter to take a silly point”.
Single Judge/ Appeal or
application
I heard this application sitting as a
single judge. At the hearing there was discussion whether this was
an application to be
dealt with in the ordinary course or whether,
because it might dispose of an appeal, it should be heard by two
judges sitting
as an appeal court.
Advocate Mtshaulana pointed out that
on the one hand this hearing might require two judges because if the
application was successful,
it would lead to striking off a criminal
appeal while, on the other hand, this application was independent
of the appeal and
could have been brought in the ordinary course in
the motion court. In the result, Advocate Mtshaulana argued that
this was
to be treated as an application in the civil court to which
the rules of that court apply
It was agreed that I was not asked or
expected to express any view on the merits of the criminal appeal
itself.
Advocate Hellens referred to the
Supreme Court Act and took the view that I was not hearing an appeal
but that this was an interlocutory
application to be disposed of
prior to the hearing (or not) of an appeal.
It is my view that this application
was brought independently of the appeal – in fact it is heard
under case number 09/27346
whilst the appeal is enrolled under case
number A531/2010. I note that the DPP “removed the appeal
from the roll, pending
the outcome of the motion application”
on 17
th
February 2011. This matter could certainly have
been set down by Phillips in the ordinary motion court. I am not
required to
give any consideration to the merits of the appeal
itself and this application requires no findings whatsoever on the
merits
of the appeal itself. The decision of the learned
magistrate in the trial court is not the subject of this
application. This
is a precursor to the setting down (or not) of an
appeal. I am of the view that it is appropriate that this
application be
heard by a single judge sitting in motion court (a
special motion court by reason of the time required for argument)
and that
this is not a matter to be heard by two judges sitting as
an appeal court.
APPEAL NOT PROSECUTED TIMEOUSLY
Delay is First Issue
I am in agreement with both Advocates
Hellens and Chaskalson for Phillips that first to be determined in
this application is the
issue of delay in prosecuting this appeal.
This must be decided before I even turn to consideration of the
constitutionality
or otherwise of section 310 of the CPA. This
constitutional challenge will only be considered if Phillips fails
on his other
causes of action.
11
The DPP lodged its notice of appeal
with the Registrar of the High Court on 17 February 2009. As at the
hearing of this application
on 29
th
and 30
th
March 2011, the appeal had still not been heard.
In summary, Phillips seeks to have
the DPP’s appeal permanently struck from the roll by reason of
the failure of the DPP
to timeously prosecute this appeal and, by
failing so to do, violating Phillips right to a fair trial.
It is pointed out that Phillips was
arrested in February 2000, over eleven years ago. He stood trial
over the period January 2004
to November 2006. He was acquitted on
26
th
November 2008 on the basis that various of the
prosecutors lacked title to prosecute.
The Rules of Court
A criminal appeal must be noted
within the time and in the manner prescribed by the Rules of Court
12
.
Rule 67 of the Magistrates Court
Rules provides that where the DPP contemplates an appeal under
section 310 he shall, within 20
days after the conclusion of the
criminal proceedings, in writing request the judicial officer to
state a case. Upon receipt
of such request the clerk of the court
shall prepare a copy of the record of the case, including a
transcript thereof, (‘the
record’) before the judicial
officer. The judicial officer shall then, within 15 days thereafter,
furnish his stated case
to the clerk of the court. The DPP may,
within15 days after the receipt of the stated case, deliver notice
of appeal against
the decision on questions of law.
It is not in dispute that the DPP
noted its appeal timeously
13
.
This appeal has not been finalized
and cannot be finalized because there is, as yet, no complete record
to be used in any appeal.
It is common cause that the record is not
yet, at date of hearing of this application, ready. Absent the
record, the appeal cannot
be heard.
Provision of the Record
Phillips has argued that, in terms of
the Rules
14
,
the record ought to have been prepared and filed with Registrar
within 10 days of the filing by the Regional Magistrate of
his
stated case and the filing by the DPP of its notice of appeal -
i.e. by no later than 3rd March 2009.
I am not persuaded that this
understanding is either correct or practicable. Firstly, it is
known by all practitioners that it
is not the clerk of the court who
prepares the record. It is one of the private companies who operate
in the many courts around
the country which record the proceedings
and then type same out in order to provide a transcript. This is
done at cost to the
appellant. The same or another private company
then collates all documents (from charge sheet/indictment to
evidence in the
form of reports, photographs, maps and plans etc)
and usually paginates and indexes and binds them for the benefit of
the appeal
court. For what it is worth, the clerk of the court
certifies the record. Secondly, in the present case, both parties
are in
agreement that the record is voluminous. The record, as
presently prepared, fills four cardboard boxes in my chambers
15
.
A record of such length could not have been filed with the Registrar
by 3rd March 2009.
However, the date by when the record
should or could have been made available is not of importance. The
point is that the first
time the record was made available was on
4th November 2010 and it was agreed at the hearing of this
application that the record
is still not complete.
The Saga of the Record
Phillips complains that the record,
with which he has been provided, was only furnished in November 2010
and that what purports
to be the record is a unilateral
reconstruction by the DPP and therefore not in compliance with court
procedure. In any event,
it now turns out to be incomplete. The DPP
details the many and various difficulties in procuring the record.
I would not choose to trawl though
all the documentation pertaining to procurement or non-procurement
of a complete record save
that such chronology reveals what has
transpired over the 2 years 2 months since the appeal was noted.
On 23
rd
April 2009 the DPP received the record
.
On 4
th
May 2009, the DPP wrote to Phillips attorneys advising that it had
received the final portion of the record from the clerk
of the
regional court only on 23 April 2009, that the chronological order
and pagination was incorrect and accordingly indicated
the
intention of the DPP to remedy same. Once the record is
“remedied
”
a copy would be sent to Phillips attorneys and the matter placed on
the roll.
16
On 20
th
May 2009 Phillips attorneys responded that
“the rules do not make provision for either the State or the
defence to interfere with, or amend, the record produced
and
certified by the clerk. Any direction from the parties relating to
the duty of the C of the C to compile the appeal record,
such as
one of the litigants arrogating to itself, this function will
constitute a fatal irregularity. Any errors in the record
as
compiled and certified by the Clerk are to be dealt with by the
parties once the papers have been prepared in such as manner
as
deemed fit before the High Court
.”
17
.
On 12
th
October 2009,
Adv. Roberts SC prepared a lengthy email concerning the case, the
appeal, the record and the funding required
from the Department.
The
“notorious accused
”,
Phillips, “
well known in prosecution circles
”
who had instituted several applications against the state and the
NPA which show
“the attitude and character of the
accused
” had been discharged on a technical point.
The state was appealing and, as
appellant,
“is responsible for a proper and complete
record
”.
However, the record received from
the clerk of the court “
was not properly bound, not in
sequence and not complete and in a total mess”
The DPP had approached a private
company for a quote to prepare the record. The state had
already
“invested
millions in this prosecution”
and it was recommended that the quote be “
favourably
considered
”.
18
Subsequently, a memorandum was
prepared by the DPP concerning the quotes supplied and the rules
of procurement of a record.
19
On 5
th
March 2010 the
DPP wrote again to Phillips attorneys advising
“
This office is still in
the process of reconstructing the voluminous record
.”
which was
“a time consuming exercise
”.
The
DPP
“was of the opinion that it is not necessary to place the
entire record of approximately 6000 pages before the appeal
court
in order to address the legal issues of this appeal. Only a
limited portion of the record will be applicable for the
appeal as
well as your motion application
”.
“
It will be in the
interests of the administration of justice if, by way of
consensus, the parties can agree on the relevant
parts of the
record for the purposes of adjudication this matter. This will
also dramatically limit the volume reading
to be done and will
also prevent any further delays in this matter
.”
20
The response of Phillips attorneys
on 9
th
April 2010 was to:
Refer to earlier correspondence
wherein they had indicated their disagreement with the procedure
whereby the state sought
to unilaterally reconstruct a record and
reminding the DPP that
“the law with regard to
reconstruction of a record is well known and set out in many
decided cases. Certainly the one
procedure not envisaged by the
law is that the state on its own would set about a reconstruction
of the record. There is
no possible explanation in the fact of
our objection to a unilateral reconstruction being undertaken by
the state and in
the face of decided cases as to the manner in
which an appeal record is to be reconstructed”
Furthermore,
“We accept it
is not uncommon for parties to limit voluminous record on appeal;
and, if in the interest of justice to
do, the parties can by way
of consensus agree on the relevant parts of the record….[
in any event we disagree with
the contention that “only a
limited portion of the record will be applicable for the appeal…”.
We place
on record that it is essential that the entire record be
produced for the appeal.” “The judgment by the
learned
magistrates deals inter alia with the absence of title to
prosecute of various prosecutors engaged by the State in the case.
It was argued before the court a quo that the absence of the
title to prosecute was exacerbated by aspects of prosecutorial
misconduct throughout the trial. By way of example , these were
manifested in inter alia :- Adv Wessels requesting the
court to
adjourn and consulting to a witness he was leading and who was
manifestly having difficulty in providing the evidence
Adv Wessels
was attempting to led before the court and who after the
consultation managed to provide the evidence to the
court with no
difficulty at all; the decision taken by the state to withdraw
Mr Hardeker a key state witness when he was
about to be cross
examined and in order to avoid the cross examination on the issues
that had been raised by our client in
his section 115 statement;
the failure by the state to recall the witness Grove from the Dept
of Home Affairs, who was
to follow up on certain aspects and
documents in her testimony relating to the issue of certain
section 41 permits and
to report back to the court; the fact
that the prosecution was and is driven for asset forfeiture
purposes and not for
the purposes of prosecuting a crime”.
Finally, the attorneys advised that
they did not accept that the
“inordinate
delay of some 16 months in producing the record, which is yet to
be completed
”.
The DPP had failed to set out the aspects in which the record was
incomplete or the steps taken to reconstruct it.
In any event,
Advocate Wessels had offered a copy of the record to the
magistrate before he delivered his ruling on the
section 174
application.
21
.
An email from the office of the
Johannesburg DPP to the National DPP on 10
th
May 2010 reports that
“the
problem appears to be with our procurement or finance. There is
only one service provider which can prepare the
record in the
manner that the Supreme Court of Appeals want. They have already
started working on the matter but have stopped
due to non payment
.
”
The process is stuck
here”.
22
By 28
th
June 2010 the Minister had accepted responsibility for payment of
compilation of the record.
23
.
On 29
th
June 2010 the DPP wrote to the state attorney advising “
finally
the record”
would
be referred to Appeal Document Services to commence with the
record.
On 1
st
November 2010 the
DPP wrote to Phillips attorneys advising that the record was now
ready for filing. The record was filed on
4
th
November.
At the hearing of this application –
end March 2011 – I was informed that it is common cause that
the record is still
not complete
24
.
There is no certificate from the clerk; certain days of the trial
have not yet been transcribed (23
rd
Sept 2004, 30
th
November 2004, 24
th
April 2005, 28
th
November 2005, 31
st
January 2006, 14
th
November 2006, 28
th
March 2007, 29
th
March 2007, 19
th
July 2007, 20
th
July 2007, 26
th
November 2008), there are in each volume missing pages, portions of
the record are listed as being “inaudible”,
certain
pages (pages 955 to 1052 of Volume 12) have been unilaterally
reconstructed and retyped at the instance of the DPP.
Advocate Mtshaulana conceded that the
record was still not complete as at time of this hearing. He
explained the process underway
as provision of
“the initial
document”
which would enable “
issues to be
discussed
” and
“identification of what is
missing”.
Now available to the parties was, he submitted,
“an initial record to which the applicant [Phillips] would
still have the opportunity to make input
”.
Delay and the Record
It is trite that the DPP is
dominus
litis
in this appeal and has responsibility for ensuring that
the appeal is heard sooner rather than later. That responsibility
appears,
to my mind, neither to have been diligently nor effectively
undertaken.
Firstly, it appears that the DPP
reached a decision to appeal on 5
th
December 2008 which
was confirmed by the notice of appeal of 17th February 2009. Yet,
it is only on 12
th
October 2009 that the request is made
for funding to meet the quote from Appeal document Services. This is
a lapse of some nearly
8 months. It appears the enthusiasm or zeal
of the DPP to pursue an appeal overtook the realities of the
situation and appropriate
preparation.
Secondly, the ‘record’
which was received by the DPP at the end of April 2009 was
apparently defective in a number
of respects yet no details thereof
were ever provided to Phillips attorneys in order to reassure them
as to the difficulties
confronted or the steps which were being
taken.
25
It is unsurprising that Phillips attorneys were suspicious as to the
bona fides
of the DPP and sceptical as to the reasons for the delay in
obtaining the record.
Third, the scepticism of Phillips
attorneys was apparently well-founded when one learns that the
service provider had ceased to
prepare the record by reason of
non-payment and that “
the process is stuck here
”.
For what period the service providers had been working on the
record is unknown and for how long they had been unpaid
is also
unknown.
Advocate Mtshaulana’s heads of argument
describes the advice of the Minister in June 2010 that the Ministry
would pay for
compilation of the record as a
“breakthrough
”.
Indeed so – after 17 months of logjam (February 2009 notice to
appeal to this advice) - there was now about to
be some progress.
Fourth, with that background it was
disingenuous of the DPP to approach Phillips attorneys advising that
the entire record was
not necessary for purposes of the appeal and
that the parties should try to agree that only portions of the
record need be obtained.
Quite clearly, the issue at this stage for
the office of the DPP was funding and bureaurocratic and financial
inability to procure
a record. This was not disclosed as the cause
of delay. Instead the DPP approached Phillips attorneys under the
guise that certain
portions only of the record were really required.
Fifth, whilst the DPP was apparently
unaware of the need to fund the procurement of the record, the DPP
was blithely advising
Phillips attorneys (over the period May 2009
to March 2010 and perhaps longer) that the office of the DPP was
“
remedying the
faults
” and
“
reconstructing the
record
”. This
continued to be the public and expressed approach to Phillips
attorneys; notwithstanding those attorneys advice
that it was
impermissible for the DPP to unilaterally prepare a record and that
there is authority as to the procedure to be
followed.
26
Sixth, the attention of the DPP to
the appeal appears to have waxed and waned. The first ‘record’
arrived in April
2009 with a letter to Phillips attorneys in May
2009. The next communication from the DPP to Phillips attorneys is a
year after
the first intimation of problems with the record, in
March 2010 when use of the partial record is suggested. In November
2010
the DPP writes of the good news of the forthcoming record. Two
letters of moment over a period of 19 months is hardly reassurance
that the DPP is carefully pursuing its appeal. Only in October 2009
is there an application for funds, by May 2010 there is
still no
progress, only in June 2010 is there a commitment to funding.
Seventh, when the next version of the
‘record’ is produced in November 2010, there is no
advice as to whether this
constitutes a supplemented or re-worked or
remedied or reconstructed record – or not. Nor is there any
proposal how the
defects in the ‘records’ can be
resolved in accordance with accepted procedures.
The DPP has failed to offer any
explanation for what Phillips legal representatives called the
“
egregious delays in prosecuting its appeal”.
The
court was presented with no more than the above chronology.
It was left to Advocate Mtshaulana,
appearing for both the DPP and the Minister, to urge me to have
regard to the systemic problems
apparently found in both the
Magistrates Court and the office of the DPP. As he said
“the
system is not functioning well
”. The Rules envisage that
the clerk of the court would file the record which was not done. The
DPP sought to have the
record prepared by a third party but
financial constraints of the DPP prevented that being done in time.
Such plea
ad misericordiam
must carry little weight.
When it is argued that the NDPP had
to
“examine case law which states that the appellant is
responsible for the record
”, then I despair of legal and
procedural knowledge in the office of the DPP.
When it is pointed out that the DPP
“tried to have the record reduced
”, I wonder if
anyone in that office ever read the correspondence from Phillips
attorney. In any event that issue was
disposed of by the office of
the Deputy Judge President.
When I am told that the Rules
envisage that the clerk will file the record, I am concerned at the
lack of appreciation of the
office of the DPP that the clerk of the
court does not himself or herself record evidence, type it out,
paginate and index
same and photocopy it all in multiple volumes –
at no charge.
When I am informed that financial
constraints in the office of the DPP are the major source of
these problems, I am perplexed
because the papers disclose that
the DPP has spent “
millions”
on this prosecution, employing no less than four advocates in
private practice to prosecute Philips
27
.
It was not absence of funds but misguided zeal which led the DPP
to leap into an appeal without ensuring the availability
of funds.
It was not absence of funds but ineptitude which led the DPP to
waste months and years on ‘reconstruction’
of the
‘record’, fail to pay the private service provider.
It is now some 17 years since the
facts which gave rise to the judgment of the Constitutional Court
in
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC)
. It is 14 years since the Constitutional Court indicated
that
systemic factors are probably more excusable than cases of
individual dereliction of duty. Nevertheless, there must come a time
when systemic causes can no longer be regarded as exculpatory
[at
para 35]”.
Earlier generosity and leniency by
our courts towards limitations in State resources and the resulting
impact on the work of the
South African Police Services, the
National Prosecuting Authority and court management cannot endure
indefinitely.
I cannot find other than that the DPP
has been dilatory in attending to procurement of the record, naïve
in failing to appreciate
the need for funds to be made available in
advance of contracting with service providers, stubborn in seeking
to resolve the
problems of an inadequate record by unilateral
reconstruction thereof, disingenuous in advising that the DPP was
still reconstructing
alternatively that portion only of the record
need be utilized.
I am in agreement with the view of
the DPP
28
that there has been “
an
inordinate delay
” in
filing the record. The result has been an inordinate delay in
pursuing the appeal. This delay can be laid at the door
of the DPP
and nowhere else.
Delay in Appeal and the
Constitutional Rights of the Accused
The timing of the hearing of an
appeal post conviction or acquittal is not and cannot be cast in
stone. There are so many variables,
ranging from procurement of a
record to allocation of date for hearing, which are beyond the
control of the litigants. However,
what can be required of an
appellant are diligence on the part of those managing the process,
knowledge of both law and procedure
on the part of legal
representatives, mindfulness of and adherence to Constitutional
principles on the part of litigant and legal
representatives. Where
the appellant is an organ of the State and where the State seeks to
appeal an acquittal, then there standards
should be more stringently
demanded and more carefully observed.
Section 39(2) of the Constitution
requires that all law, which includes Rule 67 which regulates
appeals from the Magistrates Court,
should be interpreted so as to
promote the spirit, purport and object of the Bill of Rights. The
object of the DPP’s appeal
is to have Phillips’
acquittal set aside and to re-open the criminal proceedings against
him. For as long as the appeal
is pending, the charges against
Phillips remain capable of prosecution and he continues to be at
jeopardy of conviction. He
remains an accused person and entitled
to claim the protections of section 35 of the Constitution.
Until the appeal process is
concluded, it cannot be said that a trial has reached finality. The
standards of expedition to procure
a ‘fair trial’
continue to apply to all appeals. Accordingly, in scrutinizing
appeals from the Magistrates Court,
one must be mindful that every
accused person has the right
“to
have their trial begin and conclude without unreasonable delay
”.
29
At the crux of this application is
the question what constitutes ‘reasonable’ or
‘unreasonable’ delay?
This question must be answered
against the background of the time already elapsed from arrest and
the reasons therefore, the time
elapsed from noting the appeal and
the reason therefore, the time likely to pass before the appeal is
finalized, the nature
of the charges, the import of the appeal, the
implications of delay upon trial proceedings, the impact upon the
accused and broader
considerations for the criminal justice system.
First, more than eleven years have
elapsed since Phillips was arrested. Seven years have passed since
he first pleaded. The trial
concluded some four and a half years
ago. There has been a hiatus of two and a half years since judgment
was handed down. I have
no knowledge that any delay has been
irregularly or deliberately occasioned by Phillips in order to
frustrate the conduct of
the trial.
Second, the State noted its appeal
two years and five months ago on 17
th
February 2009. That
appeal has not yet been heard which delay, as I have already
discussed in this judgment, must be ascribed
to the office of the
DPP.
Third, absent a complete record, the
epic continues without land in sight. There is no indication when
or how the missing portions
of the record will be reconstructed to
the approval of an appeal court. Even if this task were completed in
the course of 2011,
it is unlikely that a date for the hearing of
the appeal could be allocated before 2012 – twelve years after
arrest, in
the sixth year after acquittal, three years after noting
an appeal. I repeat that such further delay would continue to fall
upon
the shoulders of the office of the DPP.
Fourth, Phillips was charged with
four counts in terms of the Sexual Offences Act No 23 of 1957, one
count in terms of the Aliens
Control Act No 96 of 1991 and one count
of perjury.
Fifth, this is not an appeal by a
convicted accused but an appeal by the prosecution against the
acquittal of Phillips. The purpose
of the appeal is to have his
acquittal set aside and have him referred back to trial. I leave,
for this moment, the question
of the Constitutionality or otherwise
of section 310 of the CPA. Instead, I note that the clear intention
and possible result
of the appeal will be to once again place
Phillips in jeopardy of conviction. I am mindful of section 35(3)(m)
of the Constitution
which prohibits that an accused person
“be
tried for an offence in respect of an act or omission for which that
person has previously been either acquitted or
convicted.” .
Accordingly, if such an appeal is permitted, this would
constitute an extraordinary process. At the very least, it would
have
to be prosecuted with greater diligence, knowledge of law and
cognizance of Constitutional principles than required in ordinary
appeals. Intrinsic to such requirements is promptitude.
Sixth, if Phillips’ acquittal
is overturned and the trial is reopened, then Phillips will have to
mount his defence at least
eleven to twelve years after he was
initially charged. The prejudice to Phillips is considerable:
witnesses become unavailable
and neither Phillips nor defence
witnesses can be expected to remember events more than eleven years
ago clearly or confidently
30
.
Au contraire
,
the State has already led all its evidence and closed its case some
five to seven years ago when events were less distant.
There can be
no doubt that the prosecution in this trial would have an unfair
advantage over the defence.
Seventh, Phillips suffers ongoing
prejudice as a result of the delays in pursuit of and finalizing
this appeal. Some of these
would be suffered by all accused persons
in his position. Others are unusual and unique to himself.
First, for over a decade he has
been identified as an accused person with criminal charges pending
against him. He is described
in this application as the
“
notorious accused
”,
whose frequently successful litigation against the NPA shows “t
he
attitude and character of the accused
”.
The stigma in all circles in South Africa is considerable.
There must have been and continues to be anxiety and
stress in
contemplating this apparently neverending saga
.
It is not inappropriate
to describe this as the “
exquisite
agony of the accused
”
31
.
Where imposition of
psychological stress and
social stigma is unwarranted, such imposition would violate
Phillips constitutional rights to dignity
and personal security.
Secondly, the financial burden
cannot have been or continue to be inconsiderable. The State has
disclosed it has spent “
millions
” on this
litigation and so, I must assume, has Phillips.
Thirdly, Phillips exercises no
control over the future conduct of this process. He is precluded
from finalizing the criminal
proceedings against him. He is
dependant upon the office of the DPP to finalise this matter and
their endeavours, thus far,
cannot inspire confidence that this
ordeal will be expeditiously concluded.
Fifth, certain of Phillips assets
were restrained at the instance of the NPA in terms of Chapter 5 of
POCA in December 2000.
No judge of the South Gauteng Division can
fail to have knowledge of this restraint and the differences of
opinion between
Phillips and the curator of these assets over the
past eleven years
32
.
Notwithstanding his acquittal by a court of competent
jurisdiction, these assets have not been released from restraint
and returned to Phillips unencumbered. For so long as the
appeal is pending, these assets are not returned to Phillips.
This is a most significant curtailment of Phillips use and
enjoyment of his property.
Eighth, there are public policy
considerations regarding the entitlement of the general population
to believe that alleged criminal
conduct will be prosecuted to the
fullest extent and the importance of providing resources and
support to the prosecutorial
agencies. Of course “
there
is a tension between …the public interest in bringing
criminals to book and… the equally great public interest
in
ensuring that justice is done to all…
”
33
This application does not concern “
technical
niceties and ingenious legal stratagems
”
34
.
One is not asked to weigh up the interests of the general public in
their safety and security and confidence in organs of the
state as
against maudlin sympathy for an accused person. This application
goes to the very heart of the ‘fair trial’
provisions of
the Constitution.
Phillips contends that a
Constitutional interpretation demands that Rule 67 be interpreted to
require that appeals by the State
be pursued not just timeously but
as “expeditiously as possible”. I am in agreement. It
could hardly be otherwise.
No court could countenance appeals being
pursued “as tardily one fancies”. However, there is no
agreement as to
what is possible.
Advocate Mtshaulana has conceded that
“
the complaint of the applicant [Phillips] is not out of
place
” but urged that one should be mindful of the
systemic delays “
consistent with the development of the
country
” but which will be incrementally remedied. I have
already commented that organs of State entrusted with great power
must
now cease to claim indulgences. The South African Constitution
leads the normative values of our society not bureaurocracy and
red
tape.
There has indeed been inordinate
delay in finalizing this trial and this appeal, all of which delay
must be laid at the door of
the office of the DPP. Further delay is
inevitable. Any prosecutorial appeal and any ensuing trial would
place Phillips back
in jeopardy of conviction – double
jeopardy. Renewed trial proceedings will unfairly advantage the
State which has already
led all its evidence some seven years ago
while Phillips has not. The personal impact of the litigation upon
Phillips cannot
be disregarded. The longevity and continuation of
the POCA restraint order is without precedent. All these factors
have apparently
been disregarded by the DPP when exercising its
prosecutorial powers. The interests of the general South African
community and
the integrity of the criminal justice system are not,
in this case, antithetical to the interests of Phillips.
I am satisfied that the right of
Phillips to a fair trial is and has been infringed by delay in
finalising the appeal. The right
to be protected against
unreasonable delay is located in both the substantive right to a
fair trial as well as section 35(3)(d)
of the Constitution to which
I have referred. I take the view that in this case, the delay in
prosecuting the appeal serves
“inevitably
and irremediably to taint the overall substantive fairness of the
trial
“
35
(if it were to be reconvened) and hence the right to a fair trial
would be infringed.
Remedy
Phillips has postulated three
possible remedies in the present application – to deem the
appeal to have lapsed or to have
been abandoned or to permanently
strike the appeal off the roll.
A court is entitled to treat an
appeal as having lapsed when the appeal record has been lodged
significantly out of time and where
the appellant has failed to
tender a satisfactory explanation for the delay. In these
circumstances the court is entitled to
strike the appeal from the
roll
36
.
Even if the appeal has not lapsed, a court is entitled to deem it
abandoned if an appellant delays unreasonably in advancing
its
appeal
37
.
In the present case I do not think it
appropriate to find that this appeal has either lapsed or been
abandoned. No specific time
periods are +of application. There has
been activity in the office of the DPP although dilatory, ill
advised, ineffective and
ultimately without satisfactory result.
An appeal may be struck off the roll
in exceptional circumstances. This is an extraordinary remedy to be
exercised with caution.
38
In the present case, I find the delay of the DPP inexcusable, the
prejudice real and significant, that Constitutional rights
have been
infringed.
I take the view that the appropriate
remedy is to order a permanent stay of the appeal noted by the DPP
against the conviction
of the Phillips. The appeal will therefore
be permanently struck off the roll.
SECTION 310 OF THE CPA
By reason of the view I have taken of
the delay in prosecuting this appeal and the implications for
Phillips’ constitutional
rights, I do not need to deal with
the challenge to section 310 of the CPA.
However, I must express my concern
at the approach taken by both the DPP and the Minister to this
aspect of the application.
Neither the DPP nor the Minister in their
answering affidavits address the Constitutional challenge to Section
310 of the CPA.
The DPP does no more than rely on
that which is stated in the Ministers affidavit.
The Minister concedes that an appeal
by the DPP against an acquittal which leads to an accused person
being remitted to trial
infringes the right against double jeopardy
entrenched in section 35(3)(m) of the Constitution. However, the
Minister makes
no attempt, in terms of section 36 of the
Constitution, to justify such limitation by setting out the
legitimate government purpose
that he seeks to achieve and
establishing that it is proportionate to the limitation of the right
Instead, the Minister simply
referred the court to the work of the
South African Law Commission which has found that such limitation is
permitted in certain
foreign jurisdictions. This takes the matter
no further.
I am concerned that the Minister’s
office in preparation of the answering affidavit did not carefully
and clearly seek
to justify the opposition to this application and
the Constitutional challenge to section 310 of the CPA. The
Minister was
not, as suggested by Advocate Mtshaulana, in the
position of ‘an amicus’. The Minister was not seeking to
assist
the court as an interested party. The Minister is a
respondent who has chosen to oppose this application
COSTS
Costs must follow the result.
The orders sought by Phillips were,
firstly, to have the appeal of the DPP struck from the roll and
alternatively, a declaration
that section 310 of the CPA is
inconsistent with the Constitution and invalid. The relief sought
in the first prayer could only
be against the DPP because the
Minister is not party to the appeal.
The Minister has argued that, since
he was not a party to the first prayer because he has no
jurisdiction in respect of either
the appeal or the delay; there
can be no costs order against the Minister in respect of the first
prayer. Insofar, as the
second prayer is concerned, the Minister
has perceived his role as that of an
amicus
who has come to
assist the court in reaching a proper decision. There should be no
costs order in respect of the second prayer.
However, the Minister is in court as
a litigant, a cited party, who did not furnish an
amicus
notice. The Minister has adopted the attitude of a protagonist.
The Minister did so notwithstanding prayer 3 asking that he
be held
liable for costs of Phillips if he opposed the relief sought.
I have determined this application on
the question of delay alone. I have not dealt with the
constitutional challenge to section
310 of the CPA. That might
suggest that the Minister not be mulcted in costs.
However, the crux of, or perhaps the
ultimate purpose of, this application has always been the challenge
to constitutionality
of Section 310 of the CPA. I do not think that
Phillips could have brought this application on delay alone –
it was always
essential that the issues be joined – delay and
the Constitution, double jeopardy and the Constitution, Section
310
and the Constitution.
I have learnt from this application
of the extremely shallow, even denuded pockets, of the office of the
DPP. At the end of the
day it was the Minister to whom the DPP
turned to be in a financial position to pursue the appeal. Whatever
costs order I make,
it will not be the budget of or the piggybank of
the DPP which makes payment.
In the result the costs of this
application will be paid by the State – whether the DPP or the
Minister from taxpayer provided
funds.
ORDER
An order is made as follows:
The appeal of the first respondent
(‘Director of Public Prosecutions’) against the judgment
and order handed down
by Mr S. P. Bezuidenhout in the Regional
Magistrates Court for the Regional Division of Gauteng in case No
41/1899/00 on 26 November
2008 in which the Learned Magistrate
acquitted the applicant (‘Andrew Lionel Phillips’) is
permanently struck from
the roll of the South Gauteng High Court
Division and thus the right of the first respondent to appeal such
acquittal is permanently
stayed.
Both Respondents shall pay the
applicants costs in this application, jointly and severally, the one
paying the other to be absolved.
________________________
SATCHWELL J
Judge of the High Court
Date of hearing: 29-30 March 2011
Date of judgment: 10 June 2011
Applicant’s counsel: MR Hellens
SC, M Chaskalson SC, I Goodman
Applicant’s attorneys: Shannon
Little Attorneys
First and Second Respondent’s
counsel: PM Mtshaulana SC, TF Mathibedi
First and Second Respondent’s
attorneys: State Attorney
1
Order of Labe J, case number 2000/27885.
2
ALP2
3
In which it purported to reserve the right to deal with the issues
in full in due course.
4
See Rule 6.
5
In which application they would have had to comply with Rule 27(3)
of the Uniform Rules of Court which provides that the Court
may
condone any non-compliance “on good cause shown” - where
there is reasonable explanation for the delay, the delay
has not
been occasioned by disregard for the Rules, any prejudice
suffered by the other party can be compensated by an appropriate
costs award, the merits of the case of the party seeking condonation
is not ill founded.
6
Advocate M Hellens SC, Advocate M Chaskalson SC, Adv I Goodman
7
See
Phillips
and Another v Director of Public Prosecutions
[2003] ZACC 1
;
2003 (3) SA 345
(WLD)
at
[35]
per Madala J
:
‘It must
always be remembered that in confirmation proceedings the issue is
the constitutional validity of a parliamentary
or provincial
statute…It will often have wide and far-reaching
repercussions for the whole country and the conduct of
those who
will be affected by the decision of the court.’ See also
Van
der Merwe v Road Accident Fund
[2006] ZACC 4
;
2006 (4) SA 230
(CC) at 241(7):
‘On a
number of occasions, this Court has emphasised that when the
constitutional validity of an Act of Parliament is impugned,
the
Minister responsible for its administration [in this instance the
minster of Justice and Constitutional Development] must
be party to
the proceedings inasmuch as his or her views and evidence tendered
ought to be heard and considered. Rudimentary
fairness in litigation
dictates so. There is another important reason. When the
Constitutional validity of legislation in is
issue,
considerations
of public interest and separation of powers suffice
.
Ordinarily Courts should not pronounce on the validity of the
impugned legislation without the benefit of hearing the State
organ
concerned on the purpose pursued by the legislation, its legitimacy,
the factual context, the impact of its application
and
justification, if any, for limiting an entrenched right. The views
of the State organ concerned are also important when considering
whether, and on what conditions, to suspend any declaration of
invalidity (own emphasis added).’ See also
Beinash
and Another v Ernst & Young and Others
1999 (2) SA 116
(CC) at
127C-E:
‘The
Minister of Justice, who is responsible for this legislation, has a
direct interest in whether or not this legislation
is found to be
constitutional. He should be given an opportunity to defend the
legislation should he wish to do so. Often the
relevant organ of
state is best positioned to provide the necessary arguments of
justification should the issue of the provision’s
constitutionality come down to the question of the rights
limitation.’
8
See ALP21 and the notice in terms of section 16A.
9
Paragraph 1 of Respondents Heads of Argument
10
Filed and served some 15 months before the DPP and Minister filed
their answering affidavits.
11
See
Zantsi v Council of State of Ciskei & Others
[1995] ZACC 9
;
1995 (4) SA
615
CC
12
See section 309(2) of the CPA read with section 310(3).
13
It is should be noted that the Regional Magistrate prepared and
furnished his ‘stated case’ without waiting for the
record of the case to be prepared. This is of no moment. If he had
not prepared his stated case, everyone would still be waiting
for
the record and the DPP would not yet have noted its appeal. The
issue has never been whether the learned magistrate was precipitate
in furnishing his stated case without the record. This issue has
always been whether or not the DPP has pursued its appeal timeously,
having regard to the constitutional rights of Phillips.
14
See 67(15)(a)
15
I have neither opened the boxes nor read the partial record
16
ALP5
17
ALP6
18
XJK1
19
XJK3
20
XJK5/ALP7
21
XJK7/ALP8
22
XJK8
23
XJK12
24
See pages 626 to 631 of Phillips’ replying affidavit for
details of the incomplete ‘record’ of November 2010.
25
As Phillips heads of argument point out, the DPP
failed to explain to the court what steps were taken for ensuring
all copies,
what steps were taken between 2 March 2009 and 23
April 2009 date on which final portion allegedly received, when it
was first
apparent that the chronological order and pagination
incorrect, what the errors in pagination were, who was allocated
responsibility
for correcting same, what steps were taken to
correct these problems, which particular portions were identified
missing, when
and by whom were the missing portions identified,
what missing or defective portions have been reconstructed, which
officials
in the office of the DPP participated in the unilateral
process of reconstruction etc etc.
26
See
S v Joubert
[1990] ZASCA 113
;
1991 (1) SA 119
(AD); and S v Ntantiso and others [
1997] 3 All SA 576
(E)
27
Advocates Wallis SC, Advocate Cockerel, Advocate Vermeulen SC,
Advocate Wesssels as well as Advocates Davidowitz, van Wyk and
Wassermann from the office of the DPP
28
Expressed in the letter of 29
th
June 2010
29
See Section 35 (3) (d) of the Constitution.
30
See
Sanderson supra at para 22
;
S v Dzukuda
2000 (4) SA
1078
CC at para 51
and
R v Askov (1990) 74 DLR (4
th
)
at page 1220
31
Per Cory J in
R v Askov supra at 1219.
32
Numerous judgments have been handed down in this court - see
reference to some of these in
National Director of Public
Prosecutions
v
Phillips and others
[2001] JOL
9015
W
;
National Director of Public Prosecutions and others
2002(1) BCLR 41 (W)
;
Phillips and another v Van Den Heever NO
& others
[2005] 2 All SA 417
W
;
Phillips and another v
Van Den Heever NO & others
[2007] 3 All SA 159
W.
33
Per Kriegler J in
Key v Attorney General, Cape Provincial
Division and Another
[1996] ZACC 25
;
1996 (2) SACR 113
CC at para 13.
34
Key supra at para 13
35
Bothma v Else
2010 (2) SA 622
(CC) para 33
36
Mamabolo v Rustenburg Regional Local Council
2001(1) SA 135 SCA at para 7
37
S v Carter 2007(2) SACR 415 (SCA) at para 10
, “…Undue
delay may in appropriate circumstances even amount to the
abandonment of the appeal.’
38
Wild v Hoffert
[1998] ZACC 5
;
1998 (3) SA 695
(CC) at para 11-12
;
Broome v Director of Public Prosecutions, Western Cape and
others
2008 (1) SACR 178
(CPD).