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[2014] ZASCA 168
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Porritt and Another v National Director of Public Prosecutions and Others (978/2013) [2014] ZASCA 168; [2015] 1 All SA 169 (SCA); 2015 (1) SACR 533 (SCA) (21 October 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 978/2013
In
the matters between:
GARY
PATRICK
PORRITT
.................................................................................................................................................................................
First
Appellant
SUSAN
HILARY
BENNETT
............................................................................................................................................................................
Second
Appellant
and
THE
NATIONAL DIRECTOR OF
PUBLIC
..................................................................................................................................................
First
Respondent
PROSECUTIONS
THE
DEPUTY NATIONAL DIRECTOR OF
PUBLIC
..............................................................................................................................
Second
Respondent
PROSECUTIONS
ETIENNE
MELLETT
COETZEE
..................................................................................................................................................................
Third
Respondent
JAN
MAATJAN
FERREIRA
........................................................................................................................................................................
Fourth
Respondent
GLYNNIS
BREYTENBACH
............................................................................................................................................................................
Fifth
Respondent
STEPHANUS
CHRISTIAAN
JORDAAN
......................................................................................................................................................
Sixth
Respondent
THE
COMMISSIONER OF THE SOUTH
AFRICAN
.............................................................................................................................
Seventh
Respondent
REVENUE
SERVICE
DEON
VICTOR
BOSHOFF
.............................................................................................................................................................................
Eight
Respondent
MARTIN
VAN DER
MERWE
........................................................................................................................................................................
Ninth
Respondent
DEON
KOEKEMOER
....................................................................................................................................................................................
Tenth
Respondent
THE
MINISTER OF JUSTICE
AND
........................................................................................................................................................
Eleventh
Respondent
CONSTITUTIONAL
DEVELOPMENT
THE
MINISTER OF
FINANCE
...................................................................................................................................................................
Twelfth
Respondent
Neutral
citation:
Porritt & another v
The NDPP & others
(978/13)
[2014]
ZASCA 168
(21 October 2014)
Coram:
Mpati P; Brand; Tshiqi; Saldulker JJA; and Fourie
AJA
Heard:
11 September 2014
Delivered:
21 October 2014
Summary:
Plea in terms of S 106(1)(
h
)
of Criminal Procedure Act 51 of 1977 (CPA) – relating to title
of prosecutor. Removal of prosecutor – apprehension
of bias not
founded on s 106(1)(
h
)
but on s 35(3) of Constitution – roles of prosecutor and
magistrate cannot be equated – removal of one of two
prosecutors
does not entitle accused to demand acquittal in terms of
s106(4) – not axiomatic that perception of bias held against
prosecutor
will lead to accused not having fair trial – s
319(1), read with s 322(1) of the CPA intended to allow state right
of appeal
on question of law
ORDER
On
appeal from:
South Gauteng High Court,
Johannesburg (Mailula J sitting as court of first instance):
1 The appeal is
dismissed and each party is ordered to pay its own costs.
2 The first question
of law reserved in terms of s 319 of Act 51 of 1977 is answered in
favour of the state.
2.1 The order of the
high court for the removal of Advocates Coetzee and Ferreira is set
aside and substituted with the following:
‘
The
application by the appellants for the removal of Advocates Coetzee
and Ferreira is dismissed’
2.2
The matter is remitted to the court below for it to proceed with the
criminal trial.
JUDGMENT
Tshiqi
JA (Mpati P, Brand, Saldulker JJA and Fourie AJA concurring):
[1]
The issues in this appeal arise as a result of an indictment served
on the appellants in 2004. The appellants were arrested
in December
2002 and March 2003 respectively. They appeared before the South
Gauteng High Court (Mailula J) on 5 March 2012, facing
more than 3000
counts involving contraventions of the Income Tax Act
[1]
,
the Companies Act
[2]
and the
Stock Exchange Control Act,
[3]
as well as racketeering and fraud. At the commencement of the trial
the appellants tendered a plea in terms of s
106(1)(
h
)
of the Criminal Procedure Act 51 of 1977 (the CPA), alleging that the
prosecution team, consisting of Advocates Etienne Coetzee
SC
(Coetzee) and Jan Ferreira (Ferreira), had no title to prosecute. At
the time of their appointment to conduct the prosecution
against the
appellants Ferreira was a senior Deputy Director of Public
Prosecutions at the Specialised Commercial Crime Unit (SCCU);
(formerly the Scorpions and now the Hawks) in Pretoria, while Coetzee
is an advocate in private practice at the Pretoria Bar.
[2]
The first ground on which Coetzee’s title to prosecute was
challenged was an alleged lack of compliance with the provisions
of s
38(1) of the National Prosecuting Authority Act No 32 of 1998 (the
NPA Act). In terms of s 38(1) the National Director may,
in
consultation with the Minister of Justice and Constitutional
Development, engage, under agreements in writing, suitably qualified
and experienced persons to perform services in specific cases. No
consultation is necessary if the appointment of such persons
has no
financial implications for the State (see s 38(3)). The appellants
alleged that such consultation with the Minister did
not take place.
This assertion was based on the fact that Coetzee is in private
practice and had to be paid for his services, thus
creating a
financial burden for the state. The second ground of objection
proffered was that the appointment of both prosecutors
was in breach
of the appellants’ fair trial rights as encompassed in s 35(3)
of the Constitution, read with s 179(4). Moreover,
it was alleged
that the appointment of the prosecutors was in conflict with the
provisions of s 32(1) of the NPA Act, which provide,
inter alia, that
a member of the prosecuting authority shall serve impartially and
carry out his or her duties and functions without
fear, favour or
prejudice. The complaint against Ferreira was that he had assisted in
the drafting of an affidavit in support of
an application for the
liquidation of a company in which the first appellant was involved.
In addition, it was alleged that Ferreira
was tainted because he had
supported the appointment of Coetzee.
[3]
The history of Coetzee’s appointment may be summarised as
follows: He was briefed in 2004 to assist Ferreira because of
the
magnitude of the prosecution’s case against the appellants and
Ferreira’s workload at the SCCU. Coetzee was chosen
because he
had previously been involved in other consultations, investigations
and in respect of certain criminal and civil litigation
which
concerned the appellants in their personal capacities as well as
entities to which they are linked. In all instances he was
either
representing or assisting the South African Revenue Service (SARS) or
the NPA. Because of this previous exposure, it was
felt that he would
add value to the quality of the prosecution against the appellants.
Although reliance was placed on his legal
expertise and previous
exposure as aforementioned, the final decision on the action to be
taken in each instance was always that
of the NPA. And in
circumstances where he was involved in plea and sentence agreements,
these were finalised subject to the approval
of the various
magistrates who presided in those matters.
[4]
Mailula J dismissed the plea on the first ground and upheld it on the
second ground. On the first ground the learned judge held
that there
had been proper consultation as required by the NPA Act; that there
were no irregularities in Coetzee’s appointment
and that the
appointment was therefore valid. The appellants do not take issue
with the court’s conclusion in that regard.
When dealing with
the second ground of objection the court criticised Coetzee’s
prior involvement with the cases involving
the appellants and, as
against Ferreira, it reasoned as follows:
‘
There
is no reasonable explanation before the court why as a prosecutor
employed with the NPA, he [Ferreira] would be involved in
drafting an
affidavit in respect of a civil matter. The affidavit is clearly a
response to the first applicant’s [Porritt’s]
allegations
in the liquidation application…Having regard to the contents
of the affidavit (directed at opposing or contradicting
the first
applicant’s affidavit) as well as his role in the appointment
of the third respondent (in light of SARS’s
proposal) his
conducts reasonably create a perception of bias/ partiality.
’
For
those reasons the court held that a proper basis had been established
for the objection (on the second ground) and ordered the
removal,
from the prosecution, of both Coetzee and Ferreira.
[5]
Although the court upheld the objection on the second ground, it
nonetheless rejected the contention by the appellants that
they were
also entitled to an acquittal in terms of s 106(4) of the CPA.
The
relevant parts of s106 read:
‘
(1)
When an accused pleads to a charge he may plead –
…
(
h
) that the
prosecutor has no title to prosecute.
…
(4)
An accused who pleads to a charge, other than a plea that the court
has no jurisdiction to try the offence, or an accused on
behalf of
whom a plea of guilty is entered by the court, shall, save as is
otherwise expressly provided by this Act or any other
law, be
entitled to demand that he be acquitted or be convicted.
With
regard to the appellants’ contention that they were entitled to
an acquittal the learned judge said:
‘
The
order for the recusal of the prosecutors is not based on any
impropriety on their part, but on the perception of lack of
impartiality…
Further the decision is not based on the merits
of the case… The present case is in my view akin to the
recusal of a presiding
officer. The proceedings in such a case
(recusal of a presiding officer) are a nullity, and the accused would
not be entitled to
demand either “conviction” or
“acquittal”….
It
should be borne in mind that the plea of lack of title to prosecute
relates to the individual/person who has been appointed prosecutor
in
the particular case… I am of the view that entertainment of
such a plea is not dispositive of the matter. It is similar
to
interlocutory proceedings in civil litigation… The prosecuting
authority should in the circumstances, be allowed an opportunity
to
appoint another prosecutor and to proceed with the criminal trial, in
the event it so decided.’
Having
ordered the removal of the two prosecutors the court added that ‘in
the event the National Prosecuting Authority decides
to proceed with
the prosecution of the applicants, a different Prosecutor(s) should
be delegated, appointed or assigned, as the
case may be’.
[6]
It is against the refusal by the court below to acquit the appellants
that they now appeal to this court, leave having been
granted by the
court below. The NDPP, on the other hand, successfully applied for
the reservation of a point of law in terms of
s 319 of the CPA. The
court below formulated the point of law reserved for this court as
follows:
(a) What is the
legal test to be applied, either in terms of s 106(1)(
h
) of
the CPA, or the common law, for the removal of a prosecutor; and
(b) was this test
correctly applied by the trial court on the facts as found by the
court?
[7]
It is convenient to deal with the appellants’ appeal first. The
appellants contended that once the court below upheld
their plea for
the removal of the prosecutors on the basis that their retention as
prosecutors in the case would infringe on their
(the appellants’)
fair trial rights entrenched in s 35(3) of the Constitution, it
should have acquitted them in terms of
s 106(4) of the CPA. The
contention was that once a plea tendered in terms of s 106(1)(
h
)
is successful, an accused person is, without more, entitled to an
acquittal. The legislature, so the argument went, viewed the
title to
prosecute as being fundamental to the validity of a trial and that if
a plea in terms of s 106(1)(
h
) is upheld, the accused has a
right to demand an acquittal. The NDPP, on the other hand,
contended that once the plea challenging
the title of a prosecutor
was dismissed, and no other plea, such as a plea of not guilty had
been tendered, the appellants cannot
rely on s 106(4) to demand an
acquittal.
[8]
The appellants were unsuccessful in their invocation of the
provisions of s 106(1)(
h
)
to challenge the title of the prosecutors. The decision of the court
below to remove the prosecutors was not based on their lack
of title
but on a different basis, namely, that there was an apprehension on
the part of the appellants that the two prosecutors
were biased. But
counsel for the appellants submitted, in this court, that where a
prosecutor is found to be biased, his or her
removal may be said to
be based on his or her lack of title to prosecute. The appellants
were therefore entitled to demand an acquittal
in terms of s 106(4),
so the argument proceeded. In my view, that cannot be so. It
was not necessary for the appellants to
place reliance on s 106(1)(
h
)
for their application for the removal of the prosecutors on the basis
that they were biased. The appellants did not have to tender
a plea
in order to place that objection before the court. Indeed, counsel
for the appellants advised from the Bar that the application
for the
removal of the prosecutors on the ground of an apprehension of bias
was separate from the s 106(1)(
h
)
plea. But the two issues were argued together by agreement between
the two sets of counsel. I conclude that the removal of the
prosecutors was not grounded on a lack of title in terms of s
106(1)(
h
)
of the CPA and the appellants were therefore not entitled to demand
an acquittal in terms of s 106(4) of the CPA.
[9]
It is in any event doubtful whether a plea in terms of section
106(1)(
h
), where an accused has not pleaded on the merits of
the matter, entitles him or her to an acquittal. However, I refrain
from expressing
a firm opinion on the issue.
The
questions of law:
[10]
Counsel for the NDPP, Ms Nkosi-Thomas, elaborating on the first
question of law reserved, submitted that the question that
could now
be posed was whether the role of prosecutors in a criminal trial
should be equated with the role of magistrates? This
question was
prompted by the test applied by the court below in considering
whether the prosecutors should be removed from the
appellants’
criminal case. The test applied by the court is that applied when the
recusal of a judicial officer is sought
on grounds of an apprehension
of bias, which was formulated as follows by the Constitutional Court
in
President of the Republic of South
Africa and Others v South African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 48 (
SARFU
):
‘
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence
and the
submissions of counsel.
’
[11]
There is a fundamental difference between the role and functions of a
prosecutor as opposed to those of a magistrate or a judge.
The
judiciary is held to the highest standards of independence and
impartiality because they are the decision-makers in an adversarial
judicial system. Prosecutors neither make the final decision on
whether to acquit or convict, nor on whether evidence is
admissible
or not. Their function is to place before a court what the
prosecution considers to be credible evidence relevant to
what is
alleged to be a crime. Their role excludes any notion of winning or
losing. It is to be efficiently performed with an ingrained
sense of
dignity, the seriousness and the justness of judicial proceedings.
[4]
[12]
The United Nations Guidelines on the Role of Prosecutors requires
prosecutors to perform their duties fairly, consistently
and
expeditiously, and respect and protect human dignity and uphold human
rights, thus contributing to ensuring due process and
the smooth
functioning of the criminal justice system (see paragraph 12
thereof).
Further
(in terms of paragraph 13), prosecutors are enjoined, in the
performance of their duties, to:
“
(a)
carry out their functions impartially and avoid all political,
social, religious, racial, cultural, sexual or any other kind
of
discrimination;
(b) protect the
public interest, act with objectivity, take proper account of the
position of the suspect and the victim, and pay
attention to all
relevant circumstances, irrespective of whether they are to the
advantage or disadvantage of the suspect”.
[13]
The principles that govern prosecutorial conduct must therefore be
seen and understood in the context of the role that prosecutors
play.
In adversarial criminal proceedings such as ours, it is inevitable
that prosecutors will be partisan. They conduct the case
for one of
the two sides in a trial, namely the State, as representing the
citizenry. They often carry out their prosecutorial
functions
vigorously and zealously. A prosecutor’s role in a criminal
prosecution therefore makes it inevitable that he or
she would be
perceived to be biased.
[5]
Prosecutors usually approach criminal prosecutions with a view,
sometimes a very strong view, that accused persons are guilty.
That
is permissible, subject to the caveat that they must not prosecute in
single-minded pursuit of a conviction. They have a duty
towards the
accused to ensure that an innocent person is not convicted. In this
regard, they have a duty to disclose, in certain
circumstances, facts
harmful to their own case.
[6]
In
S
v Van Der Westhuizen
[7]
this court made the following observation:
‘
In
our practice it is not the function of a prosecutor disinterestedly
to place a hotchpotch of contradictory evidence before a
court, and
then leave the court to make of it what it wills. On the contrary, it
is the obligation of a prosecutor firmly, but
fairly and
dispassionately, to construct and present a case from what appears to
be credible evidence, and to challenge the evidence
of the accused
and other defence witnesses, with a view to discrediting such
evidence, for the very purpose of obtaining a conviction.
That is the
essence of a prosecutor's function in an adversarial system and it is
not peculiar to South Africa.’
[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
[8]
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.”’
[15]
It is to be noted that our law recognises a wide range of other types
of prosecutors. In terms of s 22(8) of the NPA Act certain
state
officials are authorised to prosecute. Section 8 of the CPA makes
provision for entities or persons ‘upon whom the
right to
prosecute in respect of any offence is expressly conferred by law‘,
to ‘institute and conduct a prosecution
in respect of such
offence’ (s 8(1)). An example of one of those entities is a
Municipality which, if it institutes a prosecution,
is entitled to
all the fines recovered pursuant to the prosecution.
[9]
It accordingly has a direct financial interest in the outcome of the
prosecution. Can it be said that simply because the Municipality
instituted a prosecution and benefited from the fines the individual
prosecuted did not get a fair trial? I think not. In
Marshall
v Jerrico Inc
[10]
the Employment Standards Administration of the Department of Labor
(ESA) administered the prohibition of child labour under the
Fair
Labor Standards Act. Under s 16(
e
)
of that Act the penalties collected for the unlawful employment of
child labour were paid over to the ESA to reimburse their costs
of
the administration of the prohibition. The question was whether an
ESA prosecutor was disqualified from prosecution because
his office
had a financial interest in the outcome of the case. The court
unanimously held that he was not disqualified because
prosecutors
‘need not be entirely neutral and detached’.
[11]
[16]
Private prosecutions are permitted in terms of s 7 of the CPA. In
those instances the prosecutor would have a direct and substantial
interest in the case and might even be the complainant. That right
was described by Lord Wilberforce in
Gouriet v Union of Post
Office Workers
[1977] UKHL 5
;
[1978] AC 435
(HL) 477 as a’ valuable
constitutional safeguard’. The English Court of Appeal, in
R
(on the application of Haase) v Independent Adjudicator
[2008]
EWCA Civ 1089
para 24, held that the right to a fair and public
hearing by an independent and impartial tribunal did not include a
right to an
independent and impartial prosecutor, inter alia, because
such a right would be incompatible with prosecutions by statutory and
private prosecutors.
[17]
But this does not mean that a prosecutor can never be disqualified on
grounds of bias or apprehension of bias. Where his or
her bias
affects the accused’s right to a fair trial, a prosecutor may
well be disqualified. In
Smyth
v Ushewokunze
[12]
Mr Smyth ran several youth camps in Zimbabwe. He was charged with
culpable homicide as a result of the drowning of a boy at one
of the
camps and with five counts of
crimen
injuria
arising from his alleged molestation of some of the boys at the camp.
The prosecutor was the brother of a boy who had attended
both camps
and was a potential state witness. He conducted the prosecution in a
manner which was manifestly over – zealous,
vindictive and at
times patently dishonest in that he deliberately misled the court.
The court removed him from the case, holding
that the facts:
‘
Instil
a belief that if the case were to remain in his hands there is, at
the very least, a real risk that he will not conduct the
trial with
due regard to the basic rights and dignity of the applicant.’
[13]
It
concluded that there was ‘an inherent danger of unfairness to
the applicant attendant upon the first respondent prosecuting
at the
trial’
[14]
and
accordingly held that Mr Smyth had shown that his right to a fair
trial ‘is in jeopardy if the first respondent proceeds
as the
prosecutor in this matter’.
[15]
[18]
In the present matter the allegations of bias against Coetzee were
based largely on the fact that his appointment had been
proposed by
SARS; that his fees were paid by SARS and that he had previously
represented SARS in investigations conducted and litigation
contemplated or instituted against the appellants. As has been
mentioned above, the objection against Ferreira was based mainly
on
his involvement in the drafting of an affidavit in the process of the
liquidation of one of the companies in which the first
appellant had
an interest as well as his support for SARS’s proposal
regarding Coetzee’s appointment. In
Director
of Public Prosecutions, Western Cape v Killian
[16]
a trial prosecutor had fallen ill and was replaced with another
prosecutor, who had earlier interrogated the accused during an
enquiry held in terms of s 5(6) of the Investigation of Serious
Economic Offences Act 177 of 1991. After his conviction the accused
launched a review application, contending that his trial had been
unfair. The crux of his complaint was that the prosecutor had
played
the role of an investigator and later acted as prosecutor. This court
dealt with the issue in this way:
‘
The
question remains whether the prosecutor’s dual role in this
case created a substantive unfairness
per
se
.
Neither precedent nor principle persuades me that it did. Whether
fulfilment of that dual role does involve or bring about substantive
unfairness in an ensuing criminal trial will be a matter to be
decided on the facts of each case by the trial court.
Unfairness
does not flow axiomatically from a prosecutor’s having a dual
role.’
[17]
(My emphasis)
[19]
SARS has a statutory duty and obligation to enforce the tax laws of
the country on behalf of the government for the benefit
of the
citizens of South Africa. In order to achieve that objective, it is
required to ‘secure the efficient and effective
and widest
possible, enforcement’ of the various pieces of legislation
concerned.
[18]
To the extent
that SARS has any direct interest in any prosecution, its interest is
no more than that of the NPA. It is an interest
enforced on behalf of
and for the benefit of the public.
[19]
There are sufficient structural guarantees in place in the South
African justice system to ensure that an accused’s right
to a
fair trial is protected, irrespective of whether the prosecutor
concerned is an employee of the NPA or an outside counsel
funded by
SARS, or any other entity. It follows that the mere fact that Coetzee
was funded by SARS and linked to it through his
previous role
detailed above does not provide a basis to conclude that the
appellants would not get a fair trial. As was said in
Killian
,
unfairness does not flow axiomatically from a prosecutor’s
having a dual role.
[20]
The appellants’ argument that the involvement of Ferreira, a
senior prosecutor in the employ of the NPA, would compromise
their
right to a fair trial simply because he had previously assisted in
litigation to which the appellants were linked cannot
be sustained.
There are no allegations of impropriety on his part during the course
of the previous litigation, or during the course
of the present
proceedings. There is no suggestion of conduct on his part that could
have constituted a basis for the existence
of a reasonable
apprehension in the minds of the appellants that he was biased
against them. That he at all times performed his
normal duties as a
prosecutor and senior official of the NPA was uncontroverted. The
complaint by the appellants against Ferreira
amounts to this: An
official in the employ of the NPA should not be allocated to a matter
to which he had previously been involved,
for to do so would create
an apprehension of bias on the side of an accused. That cannot be so.
An acceptance of that contention
would undermine the independence of
the NPA and the NDPP and their powers to determine which official is
suitable to handle cases
at any given time. So too, would the concept
of the separation of powers be undermined. All the prosecutors in the
employ of the
NPA prosecute in cases where the state is the
complainant with a direct interest in the case. They cannot be
removed simply because
they are not independent of the complainant.
That applies to both Ferreira and Coetzee. The fact that Coetzee is
linked to SARS,
which is another component of the state, cannot be
held to be a basis for his removal from the case. He, like Ferreira,
was not
alleged to have conducted himself in an improper manner at
all. Considering the facts of the case in respect of both of them, I
am not persuaded that their previous roles would
per
se
bring about substantive unfairness
in the ensuing trial.
[21]
To answer the question posed by Ms Nkosi-Thomas, the role of
prosecutors in a criminal trial cannot be equated with that of
magistrates or judges. Their duties, functions and responsibilities
are different. In my view, the court a quo erred in applying
the test
enunciated in
SARFU
(above para 10) for the removal of the two
prosecutors in this matter. That test applies where the recusal of a
judicial officer
is sought on the basis of an apprehension of bias.
The test that should have been applied is that formulated by this
court in
Killian
.
[22]
As to the second question reserved, Ms Nkosi-Thomas was constrained
to concede that it was not a question of law but a matter
of fact. In
any event, in view of the fact that a wrong test was applied by the
court below, the second question does not arise.
[23]
The first question of law having been answered in favour of the NDPP,
the next question for consideration is the appropriate
order that
should issue. In
S
v Basson
the constitutional court remarked as follows:
[20]
‘
It
is plain from the legislative history of s 319 that its purpose was,
amongst others, to allow the State to appeal on a point
of law by
requesting the reservation of a question of law… This
legislative history of s 319 makes it clear that it was
intended to
afford the State the right to appeal a question of law to the SCA…
Section 319(2) indeed strongly suggests that
the Legislature intended
to permit an appeal against any order upholding or dismissing an
objection by way of a reservation of
a question of law.’
Section
322 of the CPA reads:
‘
(1)
In the case of an appeal against a conviction or of any question of
law reserved, the court of appeal may –
(a)
allow the appeal if it thinks that the
judgment of the trial court should be set aside on the ground of a
wrong decision of any
question of law or that on any ground there was
a failure of justice; or
(b)
give such judgment as ought to have
been given at the trial . . . ; or
(c)
make such other order as justice may
require . . . .’
Ms
Nkosi-Thomas submitted that an appropriate order would be for this
court to set aside the order of the court below, substitute
it with
an order dismissing the appellants’ application for the removal
of the two prosecutors and remit the matter to the
high court to
proceed with the criminal trial. That is the order that I propose
making.
[23]
I mention, in conclusion, that SARS was admitted as
amicus curiae
and its counsel was afforded an opportunity to make submissions on
its behalf. We are extremely grateful to counsel for his helpful
contentions.
Costs
Although
the appeal is unsuccessful, the substantial part of this matter
related to the reserved question of law which was initiated
by the
state. It follows that it would be appropriate for each party to bear
its own costs.
[24]
In the result, I make the following order:
1
The appeal is dismissed and each party is ordered to pay its own
costs.
2 The question of
law reserved in terms of s 319 of Act 51 of 1977 is answered in
favour of the state.
2.1 The order of the
high court for the removal of Coetzee and Ferreira is set aside and
substituted with the following:
‘
The
application by the appellants for the removal of Advocates Coetzee
and Ferreira is dismissed’
2.2
The matter is remitted to the court below for it to proceed with the
criminal trial.
_________________________
Z
L L TSHIQI
JUDGE
OF APPEAL
APPEARANCES
For
Appellants: Advocate KJ Kemp SC
Instructed
by: Frank Cohen Attorneys, Sandton
Honey
Attorneys, Bloemfontein
For
Respondents: Advocate L.G Nkosi – Thomas SC
Advocate
P.J Louw
Advocate
DWM Broughton
Instructed
by:
Director
of Public Prosecutions
For
Amicus Curiae: Advocate WM Trengrove
Instructed
by:
South
African Revenue Services
[1]
58
of 1962.
[2]
61
of 1973.
[3]
1
of 1985.
[4]
See
Bourcher
v The Queen
[1955] SCR 16 (SCC) 23-24.
[5]
S
v Du Toit
2004 (1) SACR 47
(T) at 65.
[6]
S
v Riekert
1954 (4) SA 254
(SWA) at 261F, referring to
S
v Steyn
1954 (1) SA 324
(A) at 337A-C.
[7]
S
v Van Der Westhuizen
2011 (2) SACR 26
(SCA) para 11.
[8]
S
v Shaik
[8]
[2007] ZACC 19
;
2008 (2) SA 208
CC para 43.
[9]
Section
24(2) of the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972;
s 25(2)
of the
Hazardous Substances Act 15 of 1973
and s 20(8) of
the Health Act 63 of 1977.
[10]
Marshall
v Jerrico Inc
[10]
[1980] USSC 72
;
446 US 238
(1980).
[11]
At
248
[12]
Smyth
v Ushewokunze & another
1998
(3) SA 1125
(ZS) at 1132A to 1134B.
[13]
At
1132A
[14]
At
1134B
[15]
At
1134J
[16]
Director
of Public Prosecutions, Western Cape v Killian
2008 (1) SACR 247 (SCA).
[17]
Para
28; see also
R
v Sole
2001 (12) BCLR 1305
(Les) at 1332F-H.
[18]
Section
4(1)(
a
)
of the South African Revenue Services Act 34 of 1997.
[19]
Metcash
Trading Ltd v South African Revenue Service & another
2001 (1) SA 1109
(CC) para 60.
[20]
S
v Basson
2007 (1) SACR 566
at 620.