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[2015] ZASCA 61
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Moussa v S and Another (181/2014) [2015] ZASCA 61; [2015] 2 All SA 565 (SCA); 2015 (2) SACR 537 (SCA) (14 April 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 181/2014
DATE: 14 APRIL
2015
Reportable
In
the matter between:
SYLLA
MOUSSA
..............................................................................................................
APPELLANT
And
THE
STATE
…...................................................................................................
FIRST
RESPONDENT
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
..........................................................................................
SECOND
RESPONDENT
Neutral
Citation:
Moussa v S
(181/2014)
[2015] ZASCA 61
(14 April 2015).
Coram:
Navsa ADP, Ponnan, Mhlantla, Mbha &
Zondi JJA
Heard:
5 March 2015
Delivered:
14 April 2015
Summary:
Private counsel engaged by National
Prosecuting Authority in terms of
s 38
of the
National Prosecuting
Authority Act 32 of 1998
to conduct prosecution on fraud charges –
prosecution requiring commercial expertise – challenge to
prosecutor’s
authority – constitutionality of
s 38
–
challenge on basis that it impinged on constitutional imperative of
prosecutions without fear, favour or prejudice –
ultimately
restricted to a challenge based on the fact that
s 38
does not
provide for an oath as required for permanent members of the National
Prosecuting Authority – held that private
counsel are required
to conduct themselves within the structure of the Act – and
that they conduct prosecutions under the
control and supervision of
the most senior members of the NPA –
s 38
held not to be
unconstitutional.
ORDER
On
appeal from
: Gauteng Local Division of
the High Court, Johannesburg (Campbell AJ sitting as court of first
instance):
The
following order is made:
The
appeal is dismissed with costs.
JUDGMENT
Navsa
ADP (Ponnan, Mhlantla, Mbha & Zondi JJA concurring):
[1]
This appeal, with the leave of the court below, concerns the
constitutionality of s 38 of the National Prosecuting Authority
Act
32 of 1998 (the NPA Act). The appellant, Mr Sylla Moussa, is a
Guinean national who, during June 2006, was charged with 16
counts of
fraud, alternatively, three counts of theft and three counts of money
laundering in terms of the provisions of the Prevention
of Organised
Crime Act 121 of 1998 (the POCA). The preamble to the indictment
reflects the following: The appellant was in control
of two accounts
held by corporate entities with Absa Bank. The accounts labelled
‘credit accounts’ bore a no-risk status
which meant that
the appellant could immediately make withdrawals against cheque
deposits into the account. Electronic transfers
can only be made from
such an account if sufficient funds exist in that account, even if
only by way of cheque deposits. The appellant,
so it is alleged
conducted ‘cross-fire fraud’ which is described in the
preamble to the indictment as follows:
‘
1.10.1.
No value cheques or cheques of insufficient value (“facilitation
cheques”) would be deposited into the beneficiary
bank account
at ABSA and drawn against the drawer’s account at ABSA.
1.10.2.
The lack of funds in the drawer’s account to support the
amounts depicted as per face value of the facilitation cheques,
resulted in an artificial credit being created in the beneficiary
bank account.
1.10.3.
The drawing and depositing of the facilitation cheques would be
recorded on the bank statements of the drawer’s and
beneficiary
bank accounts as debit and credit entries respectively.
1.10.4.
From the beneficiary bank account, the accused would then, on or
about the day that the cheques were deposited or shortly
thereafter,
remit
via
electronic banking transfer a similar amount
(“contra amount”) back to the drawer’s bank
account.
1.10.5.
When remitting the contra amount back to the drawer’s account,
the initial beneficiary account would be debited and
the drawer’s
account credited.
1.10.6.
The recording of the facilitation cheques on the drawer’s bank
account would however only happen after depositing
the cheques into
the beneficiary bank account, which would be on the same day or
shortly after the contra amount is remitted, creating
the impression
of availability of funds in the drawer’s account when the
facilitation cheques were recorded and/or debited.
1.10.7.
The balances and credits recorded on the respective bank statements
of the beneficiary and drawer bank account would therefore
not be
represented by genuine and/or sufficient underlying funds created in
bona fide
manner in the ordinary course of business, but such
balances and credits would record mere artificial or illusory
balances of a
temporary nature.
1.10.8.
Such credits and balances were designed to mislead ABSA into
accepting and/or believing that accused and/or the corporate
entities
were conducting
bona fide
transactions and/or are involved in
genuine and
bona fide
arms length business transactions and/or
doing well financially and that sufficient underlying funds existed
to honour the facilitation
cheques and subsequent contra payments.’
[2]
For present purposes it is not necessary to deal with the particulars
relating to the alternative charges of fraud, theft or
the charges
related to the contraventions of the POCA which are all founded on
the same allegations. The amount ABSA Bank is said
to have lost as a
result of the appellant’s alleged conduct appears in the
indictment, namely, R41 329 188.37.
[3]
Because of the nature of the commercial transactions in relation to
which the appellant was charged, the National Prosecuting
Authority
(the NPA) took the view that it required the skills of a specialised
prosecutor and thus engaged the services of Mr Zirk
Pansegrouw
(Pansegrouw), an advocate in private practice and member of the
Pretoria Bar and a former prosecutor. In doing so, the
NPA purported
to act in terms of s 38 of the NPA Act, which reads as follows:
‘
(1)
The
National Director
may in consultation with the
Minister
,
and a
Deputy National Director
or a
Director
may, in consultation with the
Minister
and the
National
Director
, on behalf of the State,
engage, under agreements in writing, persons having suitable
qualifications and experience to perform
services in specific cases.
(2)
The terms and conditions of service of a person engaged by the
National Director
, a
Deputy National Director
or a
Director
under subsection (1) shall be as determined from time
to time by the Minister in concurrence with the Ministers of Finance.
(3)
Where the engagement of a person contemplated in subsection (1) will
not result in financial implications for the State –
(a)
the
National
Director
; or
(b)
a
Deputy National
Director
or a Director, in consultation
with the National Director, may, on behalf of the State, engage,
under an agreement in writing,
such person to perform the services
contemplated in subsection (1) without consulting the
Minister
as contemplated in that subsection.
(4)
For purposes of this section, “services” include the
conducting of a prosecution under the control and direction
of the
National Director
, a
Deputy National Director
or a
Director
, as the case may be.’
[4]
After his arrest in June 2006, the appellant appeared in the Regional
Court, Johannesburg and was released on R100000 bail.
During March
2008, his trial was transferred to the Gauteng Local Division,
Johannesburg. Faced with Pansegrouw as the prosecutor
appellant’s
legal representative requested documentation to allay the appellant’s
concerns about Pansegrouw’s
authority to conduct the
prosecution. After the documentation was supplied and scrutinised,
the appellant correctly concluded that
the oath in terms of s 32(2)
of the NPA Act had not been taken by Pansegrouw. I interpose to set
out the relevant part of that
subsection:
‘
(a)
A National Director and any person
referred to in section 4 must, before commencing to exercise, carry
out or perform his or her
powers, duties or functions in terms of
this Act, take an oath or make an affirmation, which shall be
subscribed by him or her,
in the form set out below . . .
.
. .
(b)
Such an oath or affirmation shall –
(i)
. . .
(ii)
in the case of a prosecutor, be taken or
made before the Director in whose office the prosecutor concerned has
been appointed or
before the most senior judge or magistrate at the
court where the prosecutor is stationed,
who
shall at the bottom thereof endorse a statement of the fact that it
was taken or made before him or her and of the date on which
it was
so taken or made and append his or her signature thereto.’
[5]
Section 4 sets out the composition and hierarchical structure of the
National Prosecuting Authority as follows:
‘
The
prosecuting authority
comprises the –
(a)
National Director;
(b)
Deputy National Directors;
(c)
Directors;
(d)
Deputy Directors; and
(e)
Prosecutors.
’
Prosecutor
is defined as follows:
‘“
prosecutor”
means a prosecutor referred to in
section 16(1)’.
Section
16(1) in turn provides:
‘
(1)
Prosecutors
shall
be appointed on the recommendation of the
National
Director
or a member of the
prosecuting
authority
designated for that purpose
by the
National Director
,
and subject to the laws governing the public service.’
[6]
Having regard to the fact that at that stage Pansegrouw had not taken
the oath provided for in s 32(2) of the NPA Act, the appellant
gave
notice in terms of s 106(3), read with s 106(1)
(h)
of
the Criminal Procedure Act 51 of 1977 (the CPA), challenging
Pansegrouw’s authority to prosecute,
[1]
because he had not taken the oath provided for in s 32(2) of the NPA
Act. The appellant launched an application in the Gauteng
Local
Division in which he sought an order: (a) that Pansegrouw had no
authority to prosecute him; (b) that his trial was unfair
and (c) for
a permanent stay of his prosecution.
[7]
That application came before Mailula J in the Gauteng Local Division.
An exchange ensued between Mailula J and appellant’s
counsel,
during which the judge expressed reservations about whether a
prosecutor appointed in terms of s 38 of the NPA Act was
required to
take an oath. That view appeared to be shared by appellant’s
counsel, who consequently sought a postponement
in order to challenge
the constitutionality of s 32(2) of the NPA Act, ostensibly because
it did not provide for counsel appointed
from outside of the NPA to
take the oath provided for in that section. The original notice of
motion was amended and the second
respondent, the Minister of Justice
and Constitutional Development (the Minister) was joined, as a party,
as required by Uniform
rule 10A.
[2]
Before the merits of the case were addressed, the appellant’s
legal representative was asked by Mailula J whether the appellant
would abide Pansegrouw taking the prescribed oath before the trial
commenced. Since the appellant’s attitude was that it
was the
taking of the prescribed oath that was foundational to prosecutorial
independence, one would have thought that the suggestion
that
Pansegrouw would take the oath would put paid to the appellant’s
objections to him being the prosecutor. Alas, the appellant
changed
tack and chose, instead, to challenge the constitutionality of s 38
of the NPA Act, which as reflected in paragraph 3 above,
enables the
engagement of persons outside of the NPA to perform prosecutorial
services in specific cases.
[8]
Thus, the appellant launched an application seeking an order
declaring s 38 to be unconstitutional on the basis that it permitted
the appointment of a prosecutor outside the National Prosecuting
Authority’s normal staff complement and therefore did not
give
effect to the constitutional principle enshrined in s 179(4) of the
Constitution of the Republic of South Africa (the Constitution),
that
requires the prosecuting authority to exercise its functions without
fear, favour or prejudice. The State as prosecuting authority
and the
Minister opposed the application.
[9]
The application, in amended form, was heard by Campbell AJ. Three
years before that application was heard and subsequent to
the
appearance before Mailula J, Pansegrouw had in fact taken an oath to
act ‘without fear, favour or prejudice’. The
dispute
before Campbell AJ was narrowed to the constitutionality of s 38 on
the basis set out in the preceding paragraph.
[10]
Campbell AJ took into account that s 38 of the NPA Act, in
contradistinction to s 32(2)
(a)
, did not provide for the
taking of an oath. The learned judge reasoned that the starting point
of the enquiry was s 179(4) of the
Constitution, which dictated that
national legislation should provide for the prosecuting authority to
act without fear, favour
or prejudice. This led Campbell AJ to
consider the composition of the ‘prosecuting authority’
and in turn to s 179(1)
of the Constitution, which provides as
follows:
‘
(1)
There is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, and consisting
of –
(a)
a National Director of Public
Prosecutions, who is the head of the prosecuting authority, and is
appointed by the President, as
head of the national executive; and
(b)
Directors of Public Prosecutions and
prosecutors as determined by an Act of Parliament.’
This,
of course, must be read with the provisions of s 4 of the NPA Act as
set out in paragraph 5 above, which sets out the hierarchical
structure of the NPA.
[11]
Campbell AJ considered that when persons are engaged as prosecutors
in terms of s 38 of the NPA Act, they can hardly be regarded
as free
agents. In his view, they were subject to the control and direction
of senior officers of the NPA, within the structure
of the NPA Act.
The court below held that persons appointed in terms of s 38 were
‘prosecutors’ in the normal sense
of the word, but not
necessarily as contemplated in certain other sections of the NPA Act.
The court reasoned that Pansegrouw was
obliged to carry out his
functions as a prosecutor in the manner contemplated by s 179(4) of
the Constitution. Section 32 requires
permanently appointed
prosecutors to take an oath of office that they will carry out their
duties in the prescribed manner. The
absence of an oath in s 38 does
not detract from the manner in which private counsel appointed in
terms of the NPA Act are required
to perform their duties. The
following paragraphs of the judgment set out in succinct form the
reasoning and conclusions of the
court below:
‘
19.
To conclude: section 38 of the Act, on this construction, simply
authorises the employment of,
inter
alia, ad hoc
prosecutors to carry out
specific and limited tasks on behalf of the NPA, but does not specify
their constitutional duties because
such
ad
hoc
prosecutors are part of the
prosecuting authority and their constitutional duties are set out in
section 32 of the Act.
20.
It therefore follows that in my view section 38 of the Act is not
unconstitutional and that the application, as currently framed,
must
fail.’
The
court below dismissed the application with costs. It is against that
order and the findings referred to above that the present
appeal is
directed.
[12]
In written heads of argument it was contended on behalf of the
appellant that s 38 of the NPA Act is inconsistent with the
Constitution in that it does not specifically provide that such
persons should conduct themselves without fear, favour or prejudice
when prosecuting – the latter qualities being the hallmark of
prosecuting integrity in this country. Before us counsel on
behalf of
the appellant, when pressed about the precise ambit of the
appellant’s case, stated that he was contending that
s 38 of
the NPA Act was unconstitutional because it did not compel ‘outside
counsel’ to take the oath as prescribed
for permanent members
of the prosecution services by s 32 of the NPA Act. As I understood
the submission, it was contended that
it is the taking of the oath
that is foundational to the independence of a prosecutor.
[13]
The engagement of persons who have specialised skills, to assist in
prosecutions, is not statutorily novel. This emerges from
a brief
review of legislation over the last few decades.
[3]
[14]
Prior to the now repealed Attorney-General Act 92 of 1992 (the AGA),
which commenced on 31 December 1992, the CPA provided
for
prosecutions (ss 2-5) and the Attorney-General was the prosecuting
authority on behalf of the State. Section 4 of the CPA used
to
provide that an Attorney-General may, in writing:
‘
(a)
delegate to any person, subject to the control and directions of the
attorney-general, authority to conduct on behalf of the
State any
prosecution in criminal proceedings in any court within the area of
jurisdiction of such attorney-general, or to prosecute
in any court
on behalf of the State any appeal arising from criminal proceedings
within the area of jurisdiction of such attorney-general.’
[15]
Section 2 of the AGA provided for the appointment of an
Attorney-General by the State President in respect of each provincial
division and of the Witwatersrand Local Division of the Supreme Court
of South Africa. Section 6
(a)
of the AGA read as follows:
‘
6.
An attorney-general may, in respect of the area for which he has been
appointed, in writing –
(a)
delegate to any person who has the
right to appear in any court in terms of the Right of Appearance in
Courts Act, 1995 (Act No.
62 of 1995), subject to the control and
directions of the attorney-general, authority to conduct on behalf of
the State any prosecution
in criminal proceedings in any court within
the area of jurisdiction of such attorney-general, or to prosecute in
any court on
behalf of the State any appeal arising from criminal
proceedings within the area of jurisdiction of such
attorney-general.’
The
NPA Act repealed the AGA and ss 2-5 of the CPA which previously dealt
with the prosecuting authority.
[16]
In
S v Tshotshoza
2010 (2) SACR 274
(GNP), where the propriety
of private funding for a prosecution was discussed and decided, the
court, considering s 38 of the NPA
Act, said the following:
‘
[18]
It has not been argued that s 38 of the Act or any portion thereof is
unconstitutional. It is difficult to conjure up possible
arguments
for such a contention. After all, the Constitution acknowledges that
there is crime and that criminals are to be prosecuted
and punished,
and that for this purpose there has to be a prosecuting authority
which has to take the necessary initiative in respect
of the
institution of prosecutions and the fulfilment of all necessary steps
incidental thereto. The detail is to be enacted in
specific
legislation and has been enacted in terms of the Act. It is a
prerequisite that prosecutions must be fair and must not
violate an
accused’s right to a fair trial in terms of s 35(3) of the
Constitution.
[19]
All over the world, outside prosecutors are engaged to prosecute on
behalf of the State. There cannot be objection in this
country to the
engagement of outside prosecutors in specific cases. There are many
reasons why it may become necessary for the
NPA to engage outsiders.
One thinks of a shortage of staff or of staff with the necessary
expertise and experience to prosecute
in particular cases.’
[4]
[17]
In
Tshotshoza
the
court there was, of course, not dealing with the constitutional
challenge posed in the present litigation. I interpose to state
that
in the present case it is factually un-contentious that the State has
routinely and extensively engaged the specialised services
of outside
counsel,
[5]
particularly in
prosecutions requiring commercial expertise and that those
prosecutions were conducted without the oath of office,
or
affirmation, prescribed by s 32 of the NPA Act being taken.
[18]
I turn to deal with the appellant’s challenge to the
constitutionality of s 38 of the NPA Act. I agree with the court
below that the starting point is s 179(4) of the Constitution which
provides:
‘
National
legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice.’
The
NPA Act is that legislation. Section 2 provides for a single
prosecuting authority. Section 3 reiterates that there is a single
prosecuting authority consisting of ‘the Office of the National
Director and the offices of the prosecuting authority at
the High
Courts, established by section 6(1)’. Section 4 referred to
above sets out the composition of the prosecuting authority.
Section
5 established the office of the National Director of Public
Prosecutions and places the National Director at its head.
Section 6
established offices for the prosecuting authority at the seat of each
High Court division. A number of sections of the
NPA Act deal with
hierarchical appointments. Section 16, alluded to above, provides for
the appointment of prosecutors. Section
20(1) states that the power
to institute criminal proceedings contemplated in s 179(2) of the
Constitution ‘vests in the
prosecuting authority and shall, for
all purposes, be exercised on behalf of the Republic.’
[19]
Significantly, s 20 subsecs (2)-(5) provide as follows:
‘
(2)
Any
Deputy National Director
shall
exercise the powers referred to in subsection (1) subject to the
control and directions of the
National
Director
.
(3)
Subject to the provisions of the
Constitution
and
this Act
,
any
Director
shall, subject to the control and directions of
the
National Director
, exercise the powers referred to in
subsection (1) in respect of –
(a)
the area of jurisdiction for which he or she has
been appointed; and
(b)
any offences which have not been expressly
excluded from his or her jurisdiction, either generally or in a
specific case, by the
National Director.
(4)
Subject to the provisions of
this Act
, any
Deputy Director
shall, subject to the control and directions of the
Director
concerned, exercise the powers referred to in subsection (1) in
respect of –
(a)
the area of jurisdiction for which he or she has
been appointed; and
(b)
such offences and in such courts, as he or she has
been authorised in writing by the
National
Director
or a person designated by the
National Director
.
(5)
Any
prosecutor
shall be competent to exercise any of the
powers referred to in subsection (1) to the extent that he or she has
been authorised
thereto in writing by the
National Director
,
or by a person designated by the
National Director
.’
[20]
Section 21, consistent with s 179(5) of the Constitution,
[6]
provides for the National Director, with the concurrence of the
Minister and after consultation with other Directors, to determine
prosecution policy and issue policy directives which must be observed
in the prosecution process. Section 22(1) of the NPA Act
provides:
‘
(1)
The
National
Director
,
as the head of the
prosecuting
authority
,
shall have authority over the exercising of all the powers, and the
performance of all the duties and functions conferred or imposed
on
or assigned to any member of the
prosecuting
authority
by the
Constitution,
this Act
or any other law.’
[7]
[21]
Section 23 deals with the powers, duties and functions of Deputy
National Directors and reads as follows:
‘
(1)
Any
Deputy National Director
may exercise or perform any of the powers, duties and functions of
the
National Director
which he or she has been authorised by the
National
Director
to exercise or perform.’
[22]
Section 24 of the NPA Act sets out the powers, duties and functions
of Directors and Deputy Directors. Section 24(1) provides
as follows:
‘
(1)
Subject to the provisions of section 179 and any other relevant
section of the
Constitution, this Act
or
any other law, a
Director
referred
to in section 13(1)
(a)
has,
in respect of the area for which he or she has been appointed, the
power to –
(a)
institute and conduct criminal
proceedings and to carry out functions, incidental thereto as
contemplated in section 20(3);
(b)
supervise, direct and co-ordinate the
work and activities of all
Deputy
Directors
and
prosecutors
in the Office of which he or she is the
head;
(c)
supervise, direct and co-ordinate
specific investigations; and
(d)
carry out all duties and perform all
functions, and exercise all powers conferred or imposed on or
assigned to him or her under
any law which is in accordance with the
provisions of
this Act.
’
[23]
Section 25 deals with prosecutors at the lower end of the
prosecutorial hierarchy. Section 25(1) reads as follows:
‘
(1)
A
prosecutor
shall
exercise the powers, carry out the duties and perform the functions
conferred or imposed on or assigned to him or her –
(a)
under
this
Act
and any other law of the
Republic
;
and
(b)
by the head of the Office or
Investigating Directorate
where
he or she is employed or a person designated by such head; or
(c)
if he or she is employed as a
prosecutor
in
a lower court, by the
Director
in
whose area of jurisdiction such court is situated or a person
designated by such
Director
.’
[24]
That brings us to s 32(1)
(a)
of the NPA Act which provides:
‘
(1)
(a)
A member of the
prosecuting
authority
shall serve impartially and
exercise, carry out or perform his or her powers, duties and
functions in good faith and without fear,
favour or prejudice and
subject only to the
Constitution
and the law.’
[25]
The picture that emerges from the statutory scheme, in line with the
constitutional imperative of ensuring independence, impartiality
and
prosecutions without fear, favour or prejudice, is the establishment
of a single national prosecuting authority with strict
controls,
directions and hierarchical supervision from the top downwards. It
was not suggested that the policy and policy directives
presently in
place are not consonant with that model. Section 38 of the NPA Act,
which is at the heart of the present litigation,
ensures that the
appointment of persons with suitable qualifications and experience to
perform ‘services’ in specific
cases occurs only after
consultation at the highest level involving the Minister, the
National Director and/or Directors or Deputy
National Directors.
Importantly, s 38(4) provides:
‘
(4)
For purposes of this section, “services” include the
conducting of a prosecution
under the
control and direction
of the
National Director,
a
Deputy National Director
or
a
Director
,
as the case may be.’(My emphasis.)
This
must mean that when persons from ‘outside’ are engaged as
prosecutors, they do so after consideration at the highest
level and
that the prosecutions that they are involved in are subject to the
control and direction of the highest ranking officials
within the
NPA, who themselves have taken the oath of office prescribed by s 32.
This translates into ensuring that the decision
and basis of the
prosecution are within the control of those officials. All of this is
to ensure that constitutional imperatives
are met.
[26]
Given the structure of the NPA Act and the controls and supervision
referred to above, I struggle to understand how prosecutorial
independence and impartiality are, without more, undermined by s 38.
This is something that counsel on behalf of the appellant
himself had
difficulty with. In my view, it is that difficulty that drove him to
reliance, on the failure by the legislature, in
section 38 to provide
for an oath, to be taken by outside counsel in the same manner as is
required of permanent members of the
NPA. As stated above, my
understanding of the submission was that it was the oath of office
that guaranteed the independence and
impartiality that the
Constitution demands. That meant, as counsel was constrained to
concede, that the reading-in of an oath would
have the effect of
saving s 38 from constitutional invalidity. Having regard to the fact
that Pansegrouw had by then taken an oath
the attitude of the
appellant in continuing to challenge his prosecution is strange, to
say the least. I consider it necessary
to record that, initially, the
appellant attacked Pansegrouw’s conduct in the prosecutorial
process up until the time that
he noted his objection. That was
abandoned. It will be recalled that, initially, the appellant’s
challenge was based on the
constitutionality of s 32 of the NPA Act.
After the exchange with Mailula J, that stance altered and the attack
was directed at
the constitutionality of s 38. When pressed about why
s 38 was lacking, the argument reverted to the failure to provide for
the
oath in terms similar to that contained in s 32. It leads one to
the compelling conclusion that the latest argument on behalf of
the
appellant is contrived.
[27]
It must also be borne in mind that Pansegrouw is a member of the Bar
who upon admission took an oath of fidelity to the Republic
and the
Constitution and is required to subscribe to and practice in the best
traditions of his profession.
[8]
Members of the Bar are ultimately officers of the court and required
to conduct themselves as such. Pansegrouw is a former prosecutor
and
thus not a stranger to the workings of the NPA.
[28]
I agree with the reasoning of the court below that prosecutors
appointed in terms of s 38 of the NPA Act are statutorily required
to
perform their functions as part of the NPA, in the manner dictated by
s 32(1)
(a)
. The structure of the NPA Act is such that control
and supervision are in place to ensure compliance with s 32(1)
(a)
and constitutional norms.
[29]
It is not the taking of the oath that guarantees prosecutorial
independence and impartiality. Nor can the taking of the oath
by
itself ensure an accused’s fair trial rights. It is the manner
in which prosecutions are initiated and conducted that
is the test of
prosecutorial independence. Whether a trial is fair usually falls to
be determined on a case by case basis. Our
courts will be astute to
ensure that the constitutional guarantees of prosecutions without
fear, favour or prejudice and fair trial
rights are met. The
appellant’s contentions have the effect of placing form above
substance. In
Porritt v The NDPP
[2015] 1 All SA 169
(SCA),
this court in dealing with a challenge of impartiality to a
prosecution said the following in para 14:
‘
The
protection of an accused person, therefore, lies not in a general
standard of independence and impartiality required of all
prosecutors, but in the right to a fair trial entrenched in s 35(3)
of the Constitution. That right was described in
S
v Shaik
[2007] ZACC 19
;
[2008 (2) SA 208
(CC) para 43]
in these terms:
“
The
right to a fair trial requires a substantive, rather than a formal or
textual approach. It is clear also that fairness is not
a one-way
street conferring an unlimited right on an accused to demand the most
favourable possible treatment. A fair trial also
requires ‘fairness
to the public as represented by the State. It has to instil
confidence in the criminal justice system
with the public, including
those close to the accused, as well as those distressed by the
audacity and horror of crime.’”’
[30]
I can find no flaw in the essential reasoning of the court below in
dismissing the appellant’s application. I turn now
to consider
whether there is anything in comparable jurisdictions that might
detract from that conclusion.
[31]
At our invitation, counsel filed a joint written note on the position
in comparative jurisdictions in relation to the question
of whether
‘outside prosecutors’ are required to take an oath when
appointed to prosecute on behalf of the state in
a particular matter.
We are grateful for their assistance in this regard. The note had
regard to legislation and case law in England,
Canada, the United
States of America, India and Australia. It is clear that the
appointment of outside prosecutors is not unique
to South Africa. We
were informed that counsel could find only one local jurisdiction
(the Canadian province of Quebec) that requires
an outside prosecutor
to take the same oath as that required of a permanent state
prosecutor.
[32]
In those countries the scope of authority and powers delegated differ
significantly. It does appear, though, that in all instances
the
mandate given to a person recruited from ‘outside’ is
subject to the control of the prosecuting authority.
[33]
In England and Wales, the Prosecution of Offences Act 1985 makes
provision for the appointment of external counsel to conduct
prosecutions on behalf of the Crown Prosecution Service. Part 1,
section 5 of Chapter 23 of the Prosecution of Offences Act provides
in relevant part:
‘
(1)
The Director may at any time appoint a person who is not a Crown
Prosecutor but who has a general qualification (within the
meaning of
section 71 of the Courts and Legal Services Act 1990) to institute or
take over the conduct of such criminal proceedings
or extradition
proceedings as the Director may assign to him.
(1A)
. . .
(1B)
. . .
(2)
Any person conducting proceedings assigned to him under subsection
(1) or exercising functions by virtue of an appointment made
under
subsection (1A) shall have all the powers of a Crown Prosecutor but
shall exercise those powers subject to any instructions
given to him
by a Crown Prosecutor.’
[34]
There is no legislative indication that members of the Bar in England
and Wales are required to take the prosecutors’
oath in
addition to the oath taken by barristers on their admission to the
Bar.
[35]
In Canada, in terms s 7(2) of the Director of Public Prosecutions Act
S.C. 2006 c. 9, s 121, the Public Prosecution Service
has the power
to appoint outside counsel to act as prosecutors. That section reads
as follows:
‘
(2)
The Director may also for that purpose retain on behalf of Her
Majesty, the services of barristers and, in the Province of Quebec,
advocates to act as federal prosecutors and, with the approval of the
Treasury Board, may fix and pay their fees, expenses and
other
remuneration.’
In
terms of section 7(3) of the Director of Public Prosecutions Act, the
person whose services are retained under subsection (2)
must be a
member of the bar of one of the ten Canadian provinces.
[36]
It is clear from s 9 of that Act that the person authorised, acts
under the control and direction of the Director and acts
as his/her
agent. There does not appear to be any legislative requirement for a
barrister to take the prosecutors’ oath.
As stated earlier,
Quebec requires an oath in the prescribed form to be taken by outside
counsel.
[37]
In India the position appears to be regulated by ss 24 and 25A of the
Criminal Procedure Code. The Central Government and State
Government
are empowered to appoint a Special Public Prosecutor for purposes of
any case or class of case, if the so appointed
person has been in
practice as an advocate for not less than ten years. The
circumstances in which a special private prosecutor
may be appointed
is limited to cases where, having regard to the nature of the case,
the gravity of the matter and the public interest
involved in the
matter, such appointment is necessary.
[38]
In
K.V. Shiva Reddy v State of Karnataka
2005 CriLJ 3000
in
paras 16 and 25 the following appears:
‘
There
is a clear distinction between a private Counsel engaged to assist a
Public Prosecutor and private Counsel, who has been appointed
as a
Special Public Prosecutor by the State. In the latter case, he is a
Public Prosecutor because he has been appointed as such
while in the
former case, he is a Public Prosecutor because he has been acting
under the direction of a Public Prosecutor.
.
. .
.
. . Section 2(u) of the Code states that “Public Prosecutor”
means any person appointed under Section 24 and includes
any person
acting under the directions of Public Prosecutor. Therefore, the
words “Public Prosecutor” includes Public
Prosecutor,
Additional Public Prosecutor, Special Public Prosecutor and a Pleader
instructed by a private person under Section
301(2) of the Code. . .
.’
[39]
We were referred to Rule 22 of the Rules for the Conduct of Legal
Affairs of Government, 1984 which sets out the manner in
which a
special private prosecutor in India may be appointed. As far as could
be ascertained, no provision is contained in the
Criminal Procedure
Code or the Rules for the special private prosecutor to take the
prosecutor’s oath on their appointment
in terms of section 24
of the Code. Section 22 provides:
‘
22.
Engagement of Special Public Prosecutor –
(1)
The Government in the Law and Judiciary Department, either
suo
motu
, or on the request of any aggrieved party or the concerned
Department in the Government, may, engage an Advocate for not less
than
ten years, and having regard to his general repute, legal acumen
and suitability, by appointing him, as a Special Public Prosecutor
in
any criminal case or class of cases, as the case may be:
Provided
that, no order under this sub-rule regarding appointment of a Special
Public Prosecutor shall be made unless, for the reasons
to be
recorded in writing, the Remembrance of Legal Affairs is satisfied,
having regard to the nature of the case, gravity of the
matter and
public interest involved in the matter that such appointment is
necessary.
(2)
On the request of a private complainant not being the aggrieved
party, the Government in the Law and Judiciary Department may,
[appoint] any of the Public Prosecutor or Additional Public
Prosecutor as a Special Public Prosecutor in accordance with the
provisions
of sub-rule (1), for conducting any such case.
(3)
Fees for such Special Public Prosecutor, appointed under sub-rule (1)
or (2) may be borne by the Government or the aggrieved
party or the
private complainant, as may be directed by the Remembrance of Legal
Affairs;
Provided
that, in cases where the aggrieved party is, a Bank or an Institution
or Trust or the like, the fees shall be borne by
such aggrieved
party;
Provided
further that, the amount of the fees to be paid to such Special
Public Prosecutor, shall be deposited with the Government
in the Law
and Judiciary Department first, and the same shall be paid by it to
such Special Public Prosecutor on completion of
the trial, unless
directed otherwise by the Remembrance of Legal Affairs.’
[40]
The U.S. Attorney’s Office is the chief prosecutor for the
United States in criminal cases. Title 28 Code of Federal
Regulations
(“CFR”) § 600.1 empowers the attorney general to
appoint special counsel in limited circumstances,
often related to
sensitive matters, matters in the public interest or matters which
may raise a conflict of interest for Department
of Justice Personnel.
Special counsel appointed under these provisions are supervised by
the Attorney General who must be notified
of all significant actions
that the special counsel is to take and may countermand any proposed
action by the special counsel.
Moreover, appeals by the special
counsel have to be approved of by the Attorney General.
[41]
Australia has the Commonwealth Office of the Director of Public
Prosecutions (CDPP), which is headed by a Director of Public
Prosecutions and each state or territory has a uniquely structured
state prosecution service. At a federal level, the Attorney
General
is responsible for the Commonwealth criminal justice system and is
accountable to Parliament for decisions made in the
prosecution
process. The Office of the CDPP runs independently of the Attorney
General. In addition, there are areas where Commonwealth
agencies
conduct straightforward regulatory prosecutions by arrangement with
the CDPP (for example, the Australian tax office and
the Australian
securities and investment commission). In the office of the CDPP,
both the Director and Assistant Director of Public
Prosecutions are
required to take the oath of office contained in the schedule to the
Director of Public Prosecutions Act 113 of
1983. At federal level the
Governor-General is empowered to appoint special prosecutors for a
renewable period of five years in
terms of the Special Prosecutors
Act 79 of 1982. Special prosecutors are not appointed for a
particular criminal prosecution but
for a fixed period. There does
not seem to be a requirement for Special Prosecutors to take an oath
of office.
[42]
There is nothing in the comparable survey that detracts from the
conclusion set out above. If anything, the survey supports
the
conclusion. In any event, the challenge by the appellant has to be
decided by reference to our Constitution and provisions
of the NPA
Act. It is that exercise that leads to the conclusion that the appeal
falls to be dismissed.
[43]
The following order is made:
The
appeal is dismissed with costs.
MS NAVSA
ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR APPELLANT:
Adv. L J Lowies
Instructed
by:
Du
Toit Attorney, Johannesburg
Lovius
Block, Bloemfontein
FOR
RESPONDENT: Adv. N Rajab-Budlender (with her S Kazee)
Instructed
by
The
State Attorney, Johannesburg
The
State Attorney, Bloemfontein
[1]
Section
106(3) reads as follows:
‘
An
accused shall give reasonable notice to the prosecution of his
intention to plead a plea other than the plea of guilty or not
guilty, and shall in such notice state the ground on which he bases
his plea: Provided that the requirement of such notice may
be waived
by the attorney-general or the prosecutor, as the case may be, and
the court may, on good cause shown, dispense with
such notice or
adjourn the trial to enable such notice to be given.’
Section
106(1)(
h
) provides:
‘
(
h
)
that the prosecutor has no title to prosecute.’
[2]
Uniform
rule 10A provides:
‘
If
any proceedings before the court, the validity of a law is
challenged, whether in whole or in part and whether on
constitutional
grounds or otherwise, the party challenging the
validity of the law shall join the provincial or national executive
authorities
responsible for the administration of the law in the
proceedings and shall in the case of a challenge to a rule made in
terms
of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of
1985), cause a notice to be served on the Rules Board for Courts
of
Law, informing the Rules Board for Court of Law thereof.’
Rules regulating the Conduct of Proceedings of the Several
Provincial and Local Divisions of the Supreme Court of South Africa
GN 48 of 1965.
[3]
See
Harksen
v DPP, Cape
1999
(4) SA 1201
(C) and
The
Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd; in re Hyundai Motor Distributors
(Pty) Ltd v
Smit NO
2000 (10) BCLR 1079
(CC), where transition from former dispensation
is discussed.
[4]
Cf
Bonugli
& another v DNDPP & others
2010 (2) SACR 134
(T) at 142F-145F, where it was held that a private
practitioner can be appointed as prosecutor subject to the
perception of the
reasonable, objective and informed person of
acting without fear, favour or prejudice, thus setting out the test
for private
prosecutions. That case was decided on its own facts and
was primarily concerned with the funding of a prosecution.
[5]
This
appears from para 48 of the respondent’s heads of argument and
I did not understand it to be contested.
[6]
Section
179(5) reads as follows:
‘
(5)
The National Director of Public Prosecutions –
(a)
must determine, with the concurrence of the
Cabinet member responsible for the administration of justice, and
after consulting
the Director of Public Prosecutions, prosecution
policy, which must be observed in the prosecution process;
(b)
must issue policy directives which must be
observed in the prosecution process;
(c)
may intervene in the prosecution process when
policy directives are not complied with; and
(d)
may review a decision to prosecute or not to
prosecute, after consulting the relevant Director of Public
Prosecutions and after
taking representations within a period
specified by the National Director of Public Prosecutions, from the
following:
(i)
The accused person.
(ii)
The complainant.
(iii)
Any other person or party whom the National Director considers to be
relevant.’
[7]
A
Code of Conduct was issued by the National Director on 1 October
1999 together with the Policy Manual, the former was published
under
GN R1257 in GG 33907 dated 29 December 2010 with effect from 18
October 2010.
[8]
See
the comparable case of
Prince
v President, Law Society of Good Hope & others
2000 (3) SA 845
;
2000 (7) BCLR 823
(SCA) paras 3-6 of the separate
concurring judgment of Mthiyane AJA, where the learned judge pointed
out the interrelation between
the professional oath of office and
loyalty to the Republic and to the Constitution.