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[2014] ZASCA 197
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Delport and Others v S (861/13) [2014] ZASCA 197; [2015] 1 All SA 286 (SCA); 2015 (1) SACR 620 (SCA) (28 November 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 861/13
In
the matter between:
HENDRIK
FREDERICK
DELPORT
.................................................................
FIRST
APPELLANT
CHRISTOPHER
ARTHUR ILSTON PICKARD
.........................................
SECOND
APPELLANT
PETRUS
CASPARUS
HORNE
..........................................................................
THIRD
APPELLANT
HENDRIK
FOURIE
........................................................................................
FOURTH
APPELLANT
IOANNIS
PAPOULIAS
........................................................................................
FIFTH
APPELLANT
MICHAEL
HERMANUS
KINNEAR
.................................................................
SIXTH
APPELLANT
VICTOR
WILLIAM
ARLOW
......................................................................
SEVENTH
APPELLANT
DEIDRE
ARLOW
.............................................................................................
EIGHTH
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Delport v The State
(861/13)
[2014] ZASCA 197
(28 November
2014)
Coram
:
Cachalia, Leach, Theron and Majiedt JJA and Schoeman AJA
Heard:
26 November 2014
Delivered:
28 November 2014
Summary:
Criminal proceedings – whether
order of the high court (sitting as a court of appeal) remitting
matter to a magistrate for
trial to continue appealable –
authority of prosecutor to prosecute challenged five years after
commencement of trial –
whether in the interests of justice for
appeal to be entertained – no unusual circumstances –
remittal order not appealable
– whether Supreme Court of
Appeal has jurisdiction to entertain appeal where leave is granted by
high court on specific
rather than general grounds.
ORDER
On
appeal from:
North Gauteng Division,
Pretoria (Makgoba J and Van der Byl AJ sitting as court of appeal):
The
following order is made:
‘
The
appeal is struck from the roll.’
JUDGMENT
Cachalia
JA (Leach, Theron and Majiedt JJA and Schoeman AJA
concurring)
[1]
After hearing the parties in this matter the appeal was struck from
the roll on the ground that the order of the high court
(sitting as a
court of appeal) remitting the matter to a magistrate for the
continuation of a criminal trial is not appealable.
These are the
reasons for the decision.
[2]
The appellants were among 13 accused who were arraigned before a
regional magistrate on multiple charges, including fraud and
racketeering. The main allegation against them is that during the
period May 1998 and March 2002 they defrauded the South African
Revenue Service (SARS) of approximately R264 million.
[3]
The accused first appeared in court on 2 June 2003. The trial
commenced about thirteen months later, on 12 July 2004. Mr P A
van
Wyk SC of the Pretoria Bar informed the court that he would prosecute
the case on behalf of the State and that Ms T Kannemeyer,
an employee
of SARS and also an advocate, would be assisting him. He handed in
two
documents signed by the Director of
Public Prosecutions (DPP), without objection from the defence,
indicating that they had been
engaged in terms of ss 38(1) and
(3) of the National Prosecuting Act 32 of 1998 (the NPA Act) to
undertake the prosecution.
The propriety of their appointments became
an issue in the trial seven years later, and is an issue in this
appeal.
[4]
At the commencement of the trial all the accused pleaded not guilty
to the charges. The trial ran for five years. After the
testimony of
many witnesses, the State closed its case. The accused applied to be
discharged under s 174 of the Criminal Procedure
Act 51 of 1977 (the
CPA).
[5]
On 10 December 2008 the magistrate granted the application for five
of the accused, but refused to discharge the eight others.
He also,
mero
motu
,
asked the parties to prepare written argument on the applicability of
the principle enunciated in
Bonugli
v Deputy National Director of Public Prosecutions
,
[1]
to
the instant case. There the North Gauteng High Court had held that
two advocates from the Johannesburg Bar were disqualified
from
conducting a prosecution on behalf of the National Prosecuting
Authority (NPA) as the complainant – a bank – would
be
paying them. Furthermore, one the advocates, a senior counsel, had
advised the bank on the prospects for a criminal prosecution
after
the State had withdrawn charges. The case against the accused was
reinstated at the bank’s behest. At the same time
there was
civil litigation pending between the bank and a trust closely linked
to the accused. These facts, in the learned judge’s
view, gave
rise to a reasonable apprehension that the advocates would not act
without fear, favour or prejudice,
[2]
and
that the right of the accused to a fair trial would be infringed if
the prosecution continued in these circumstances. Their
appointments
were thus set aside.
[6]
On 1 April 2009, after hearing the parties’ submissions on the
applicability of
Bonugli
to
the facts of this case, the magistrate found, as in
Bonugli
,
that the appointments of both Mr van Wyk and Ms Kannemeyer gave rise
to a reasonable perception that they would not conduct the
prosecution fairly. This was because Mr van Wyk, said the
magistrate, was being paid directly by SARS, the complainant, and
not
by the NPA, which meant that SARS was in effect his client. And in
the case of Ms Kannemeyer, she had been in the employ of
SARS for
about ten years. The magistrate thus ordered that the matter be
referred to the high court for special review the effect
of which was
to suspend the trial.
[7]
On 14 January 2011 the high court (Van der Merwe DJP, Du Plessis J
concurring) delivered its judgment. It found, without considering
the
merits, that there were no proper grounds for the magistrate to have
referred the case for review before the conclusion of
the trial. It
accordingly remitted the matter for the trial to continue.
[8]
But the trial was delayed further because the second and sixth
appellants had terminated the services of their counsel and engaged
new ones. On 7 November 2011, the second appellant filed an
application to amend his earlier not guilty plea. He now sought
to
introduce a special plea, purportedly in terms of s 106(1)
(h)
of the CPA, challenging the prosecutors’ title to prosecute the
trial. Soon thereafter all his co-accused, excluding the
sixth
appellant, grasped at the opportunity and joined the second
appellant’s application.
[9]
After hearing argument the magistrate delivered his judgment on 20
March 2002 upholding the appellants’ contentions. In
doing so
he made three rulings: The appellants, excluding appellant six, who
was the only accused not to have joined the proceedings,
were
entitled to amend their pleas to enable them to challenge the
authority of the prosecutors under s 106(1)
(h)
of the CPA after the State had closed its case; their special plea
putting the title of the prosecutors in issue should be upheld,
and
consequently, their acquittal in terms of s 106(4) of the CPA had to
follow.
[10]
The State appealed the decision in terms of s 310 of the CPA, which
permits it to appeal any question of law given in a lower
court in
favour of an accused. This time, appellant six, who was not party to
the dispute over the title of the prosecutors, joined
the other
accused in opposing the appeal. The high court seems to have
incorrectly laboured under the impression that he had also
been party
to this dispute and entertained his appeal along with the other
appellants even though he apparently had no legal interest
in the
outcome of the appeal.
[11]
There were six questions the high court identified the magistrate as
having considered in arriving at his decision. These were:
(i)
Whether an accused may at any stage during a criminal trial raise a
plea in terms of s 106(1)
(h)
of the CPA even though s 106
in terms permits the plea to be raised when the accused pleads to the
charge – in other words
before the trial commences;
(ii)
What legal consequences follow in the event of a court upholding such
a plea in those circumstances;
(iii)
What in law is to be understood by the expression ‘engage,
under agreements in writing’ as it used in ss 38(1)
and (3) of
the NPA Act;
(iv)
Whether a person appointed in terms of s 38 requires written
authorisation in terms of s 20(5) to institute and conduct
prosecutions;
(v)
In the event of this question being answered affirmatively, whether,
in addition, the authorisation must, in terms of s 20(6)
specify the
area of jurisdiction, the offences and the court or courts in which
the powers are to be exercised; and
(vi)
Whether a person appointed in terms of s 38 must also take the oath
or make an affirmation in the terms prescribed s 32(2).
[12]
The high court (Makgoba J and Van der Byl AJ) delivered its judgment
on 13 June 2013. It found that the documents signed
by the DPP
and handed in by the State at the commencement of the trial
indicating that the prosecutors had been engaged in terms
of s 38 to
conduct this prosecution substantially complied with the requirements
of the NPA Act. This finding, it said, disposed
of the appeal. It
nevertheless considered the questions identified by the magistrate by
way of
obiter dicta
and answered all of them in the State’s favour. In the result
it again remitted the matter for the trial to continue.
[13]
Not satisfied with this outcome, on 18 September 2013, the appellants
applied to the high court for leave to appeal to this
court against
the remittal order. The application was considered by Makgoba and
Kgomo JJ,
who granted all the appellants,
including appellant six, leave to appeal to this court specifically
on the six questions mentioned
above. The judgment granting leave to
appeal makes no reference to its finding that the appointment of the
prosecutors substantially
complied with the NPA Act. I return to this
question later when I consider whether, in light of this omission,
this court has jurisdiction
to entertain the appeal.
[14]
After the parties, including appellant six, filed their written
submissions in this court they were afforded an opportunity
to submit
further argument on whether the remittal order is appealable. They
did so. Separate heads of argument were also filed
on behalf of
appellant six for the appeal to be upheld on basis of the decision in
Bonugli
,
even though the high court had earlier refused to consider this issue
when the matter was referred for special review.
[15]
The appellants submit that the remittal order is appealable. This is
because, they say, the dispute concerns the proper appointment
of the
two prosecutors in terms of the relevant provisions of the NPA Act,
which was enacted pursuant to s 179(4) of the Constitution,
to
ensure that the prosecuting authority exercises its functions without
fear, favour or prejudice. The dispute therefore concerns
the
violation of their constitutional rights and ought to be appealable.
[16]
In support of this contention the appellants rely, in the first
instance, on a judgment of this court in
Phillips
v SA Reserve Bank
,
[3]
where
it held appealable an order of the high court that a party was liable
for the wasted costs occasioned by a postponement. This
was because
the cause of the postponement, the high court held, was a party’s
failure to give proper notice in terms of rule
16A(1) of the Uniform
Rules that he intended to raise a constitutional issue. The court
said that even though the order was not
definitive of the rights of
the parties, nor dispositive of a substantial portion of the relief
claimed, it was nevertheless appealable.
This is because, the court
reasoned, an incorrect order, which the order of the high court was,
‘. . . may well give rise
to considerable inconvenience and
prejudice and impede the attainment of justice in constitutional
matters where arguments arise
as to whether rule 16A(1) had been
complied with . . .’.
[4]
[17]
Philips
v Botha
,
[5]
a
judgment of the high court, also supports their submission that the
remittal order is appealable, say the appellants. That case
concerned
the standing of a private prosecutor to conduct a prosecution, which
the Attorney-General had declined to prosecute.
The crux of the
dispute was whether the appellant had shown, as s 7(1)
(a)
of the CPA requires, a ‘substantial and peculiar interest in
the issue of the trial arising out of some injury’ which
he had
suffered in consequence of an alleged fraud. An
obiter
dictum
of
the court, which the appellants rely upon said the following:
‘
.
. . It seems to me that the failure to take objection by way of
pleading to a charge does not prevent an accused from raising
it
thereafter. Absence of title in the prosecutor is fundamental
to the proceedings, a jurisdictional void . . . since the
statute
only recognises and empowers persons who possess the specified
attributes. Accordingly, if the magistrate was correct
in his
conclusion, his judgment was as effective as if it had been given
pursuant to a plea to the private prosecutor's title.
The
proceedings are not a nullity when such a plea is upheld since s
106(4) provides that the accused is entitled to demand
that he be
acquitted, as the magistrate did.’
[6]
[18]
Arising from this statement the appellants contend that if there is
such a ‘jurisdictional void’ in the title of
the
prosecutors, they should not be expected to suffer the inconvenience,
delay and prejudice until the end of the trial and a
possible appeal
to correct the error.
[19]
Before I consider these submissions it is necessary to review the law
on the appealability of orders as they relate to uncompleted
criminal
proceedings. Under s 21(1) of the Supreme Court Act 59 of 1959,
and since 23 August 2013 when it was replaced by
s 16 of the Superior
Courts Act, the courts have treated ‘decisions’ made by
high courts in criminal proceedings as
having the same meaning as
that ascribed to a ‘judgment or order’ in civil
proceedings.
[7]
[20]
This court has applied a ‘salutary general rule’ in civil
and criminal proceedings for many years that appeals
are not
entertained piecemeal.
[8]
Orders
of the high courts have generally been held to be appealable only if
they have three attributes. They must be final in effect,
definitive
of the rights of the parties and effectively dispose of a substantial
part of the relief claimed in the main proceedings.
This court has,
however, increasingly been willing recently to apply these criteria
flexibly and pragmatically directing itself
to what is appropriate in
a particular case rather than being hamstrung by the classification
of the order. In this regard considerations
of convenience, delay and
prejudice all of which have a bearing on the interests of justice
come into play.
[9]
[21]
In the context of criminal proceedings the courts have for many years
set themselves firmly against the idea that a trial should
be stopped
for disputed points of law to be resolved by appellate courts only
for the trial to resume thereafter. In
R
v Adams & others
[10]
Steyn
CJ cited a statement of a provincial division going back to 1917, to
support this view. It has much resonance in this case:
'The
idea of a trial is that it should be as much as possible continuous,
and that it should not be stopped. If this kind of procedure were
to be allowed it would mean that a trial may become protracted, and
may extend over a number of months. The magistrate would sit
on one
day and hear part of the evidence of a witness; then the hearing
would have to be postponed till the opinion of the Supreme
Court
could be taken, perhaps a month or two later. Thereafter the trial
would again be continued, after some months and immediately
it is
resumed objection might again be raised in connection with some
evidence, with an application again to the Supreme Court,
and again
back to the magistrate. I think that would produce an
intolerable condition of things.'
[11]
[22]
Those sentiments were confirmed in the constitutional era. In
S
v Mhlungu
,
[12]
one
of the questions the Constitutional Court had to consider was the
referral of a constitutional issue from a provincial division
to the
Constitutional Court under s 102(1) of the interim Constitution
(Act 200 of 1993). The referral was required if the
issue was
decisive for the case and in the interests of justice to do so. This
is what Kentridge AJ said:
‘
.
. . Interrupting and delaying a trial, and above all a
criminal trial, is in itself undesirable, especially if it means
that witnesses have to be brought back after a break of several
months. Moreover, once the evidence in the case is heard it may
turn
out that the constitutional issue is not after all decisive. I would
lay it down as a general principle that where it is possible
to
decide any case, civil or criminal, without reaching a constitutional
issue, that is the course which should be followed.’
[23]
Section 35(3)
(d)
of the Constitution states emphatically that criminal trials must
‘begin and conclude without unreasonable delay’.
Implicit
in this command is that appeals should not be entertained in stages
before a trial has run its course. It is therefore,
as Corbett JA
said in
S
v Stevens
,
[13]
in the interests of justice that finality should be reached in
criminal cases and that they should not be allowed to drag on
indefinitely.
[24]
Legislative policy, pre-dating the Constitution, is also firmly
against the idea that disputes concerning the irregularity
or
illegality of criminal proceedings before a high court may be
appealed before the end of trial. Sections 317 and 318 of the
CPA, in
terms, permit an accused to appeal to this court only after
conviction in a high court, not before. And s 319 makes provision
for
an appeal on a question of law on the trial in a high court only
after conviction or acquittal.
[14]
It
would, in my view, be incongruous to allow an accused, before
conviction, to appeal to this court against a remittal order
following
an adverse finding against him in the high court (sitting
as a court of appeal) on whether the proceedings in a lower court
were
conducted irregularly – which is the contention in this
case – whereas an appeal, before conviction, would not be
competent
if this finding were made in trial proceedings in the high
court.
[25]
However, even though judicial and legislative policy do not allow
appeals that impede the continuation and completion of criminal
trials, the courts have recognised that while the superior courts
will be slow to exercise its review or appellate jurisdiction
upon
uncompleted criminal proceedings in the magistrates’ courts, it
does have the power to do so and will do so ‘.
. . in rare
cases where grave injustice might otherwise result or where justice
might not by other means be attained . . . ’.
[15]
[26]
It has further been accepted that a departure from the general rule
shall be permitted also in proceedings in the high court
‘where
unusual circumstances called for such a procedure’.
[16]
In
S
v Western Areas Ltd & others
[17]
Howie
P, writing for a unanimous court, also acknowledged that the general
rule against piecemeal appeals may conflict with the
interests of
justice in a particular case.
[18]
He
put it thus:
‘
It
is surely not in the interests of justice to submit an accused person
to the strain, expense and restrictions of a lengthy criminal
trial
if that can be avoided, in appropriate circumstances, by allowing
an appeal to be pursued out of the ordinary sequence
and so
obviating the trial or substantially shortening it.’
[19]
[27]
To conclude this discussion on the appealability of legal questions –
which include constitutional questions –
arising from
uncompleted criminal proceedings, the general rule, underpinned by s
35(3)
(d)
of the Constitution is against permitting piecemeal
appeals. It is therefore in the interests of justice that criminal
trials should
commence and be completed without unreasonable delay
and that appeals should not be entertained before the trial is
completed.
However, the interests of justice may also require –
in unusual circumstances – a departure from the general rule.
The general rule therefore requires a remittal order not to be
appealable, unless unusual circumstances warrant this.
[28]
What amounts to unusual circumstances obviously depends on the facts.
In this regard considerations of convenience, delay,
prejudice must
all be weighed to decide whether the advantages of entertaining the
appeal outweigh the disadvantages. This analysis
does not require the
court to give a decision on the merits. But it must consider the
efficacy of the points raised to assess whether
there is a reasonable
likelihood that the advantages will materialise.
[20]
[29]
I mentioned earlier that Mr van Wyk handed in two documents signed by
the DPP indicating that he and Ms Kannemeyer had been
engaged in
terms of ss 38 of the NPA Act to conduct the prosecution in this
matter. The appellants’ case is that their appointments
were
invalid because they had not entered into ‘agreements in
writing’ as contemplated in ss 38(1) and (3)
[21]
and
obtained written authorisation in terms of ss 20(5) and (6).
[22]
In
addition they ought to have taken an oath or affirmation of
impartiality as envisaged in s 32, which they also had not done.
Their appointments, they argue, are therefore invalid and the
appellants were entitled to amend their pleas in terms of s 106
(1)
(h)
[23]
and
to be acquitted under s 106(4) of the CPA.
[30]
I turn to consider whether the circumstances of the present case
warrant a departure from the rule. I shall assume in favour
of the
appellants – without deciding the point – that the
appointment of the prosecutors was irregular for want of
strict
compliance with the relevant provisions of the NPA Act. I shall also
assume that the appellants were entitled to invoke
s 106 (1)
(h)
midway through the trial although this
is by no means clear.
[31]
As I have mentioned the appellants rely on
Phillips
v Botha
[24]
to
support its contention that the absence of the prosecutor’s
title to prosecute is so fundamental to the conduct of criminal
proceedings that it results in a jurisdictional void, which the
appellants should not be required to endure until the end of the
trial. It is, however, important to bear in mind that, that case was
concerned with the right or standing of a prosecutor to conduct
a
private prosecution in accordance with s 7 of the CPA. To decide that
question the court had to consider whether the prosecutor
had a
‘substantial and peculiar interest in the issue of the trial
arising out of some injury’
[25]
which
the complainant had suffered in consequence of an alleged fraud.
[32]
Properly understood the dispute in this case, however, is not over
the prosecutors’ standing to prosecute but about whether
they
were properly appointed and authorised to prosecute. And even if I
accept for present purposes that s 106(1)
(h)
may be invoked not only where the standing of a prosecutor is in
issue
[26]
but
also where it is asserted that the appointment is irregular, it does
not follow that an accused is entitled to demand an acquittal
in
terms of s 106(4), as was suggested in
Philips
v Botha
,
and relied upon by the magistrate in this case.
[33]
Section 106(4) provides that an accused who has pleaded to a charge,
other than a plea that the court has no jurisdiction to
try the
offence, or an accused on whose behalf a plea of not guilty is
entered by the court, shall unless provided for differently
in this
Act or any other law, be entitled to demand that he be acquitted or
convicted. The section operates in favour of an accused
who has
pleaded to a charge.
[34]
In
S
v Sibuyi
[27]
this
court said that s 106(4) read with s 84, which provides for the
particularity of charges, entitles an accused to demand an
acquittal
or conviction on that with which he has been charged, and not an
entirely different offence to which he might have admitted
to during
the course of the trial, even if similar to that with which he was
charged. In my view the section also fulfils another
purpose: to
prevent trial proceedings from hanging over the head of an accused
indefinitely after he has pleaded. But I do not
think it can be
invoked in the circumstances of this case. For if this were the case,
it would cause immense prejudice to the prosecution
and allow an
unscrupulous accused to use it for purposes other than those for
which it was intended.
[35
Before us counsel for the appellants contended that even if the
objection to the prosecutors’ ‘title’ on the
ground
of standing was bad, the fact that their appointments were irregular
nullified the proceedings. If this contention were
to be upheld it
would mean that this trial would have to commence de novo. This
submission is preposterous. The question in regard
to irregularities
is always whether they have resulted in a failure of justice.
[28]
Bearing
in mind that irregularities do not in and of themselves lead to a
failure of justice, there is little likelihood of this
court, or any
other, holding that they did in these circumstances.
[36]
The appellants do not claim that they have suffered any trial-related
prejudice by the irregular appointment of the prosecutors.
Whatever
other prejudice they may now suffer in conducting their defences in
the event of an adverse decision against them on the
appealability of
the remittal order would have been of their own making.
[29]
They
received the documents indicating that the prosecutors had been
‘engaged’ in terms of ss 38(1) and (3) of the NPA
to
undertake this assignment, before the trial started. They did not
object to the appointments then or require the prosecutors
to prove
their authority. They took the point that the prosecutors were not
properly appointed seven years into their trial and
after they had
unsuccessfully applied to be discharged at the end of the State’s
case. The real prejudice occasioned by all
these delays has been to
the State.
[37]
To recap: The trial commenced in July 2004. In April 2009 the
magistrate referred the case to the high court for review. In
January
2011 the high court remitted the case to the trial court. In March
2012 the magistrate acquitted all, except one of the
accused. The
matter went back to the high court after the State appealed –
as it was obliged to – the magistrate’s
legal findings on
the prosecutors’ titles to prosecute. On this occasion
appellant six, who was not party to the legal challenge
against the
prosecutors, opportunistically joined in opposing the State’s
appeal. In June 2013 the high court, sitting as
a court of appeal,
again remitted the matter to the trial court for finalisation. This
time all the accused, including appellant
six, appealed and were
granted leave to this court, yet again delaying the trial.
[38]
Appellant six, has now withdrawn his appeal to this court in light of
its recent ruling in
Porrit
v NDPP
[30]
which
implicitly overrules the high court’s ruling in
Bonugli
and
removes any legal basis for challenging the prosecutors’ title
on the ground of perceived bias because of their association
with
SARS. So the resumption of his trial must await the fate of the
appeal of his co-accused, who have persisted with their appeal.
[39]
For the courts to allow a piecemeal appeal in the circumstances that
have arisen in this case would, to quote from what the
courts said
almost one hundred years ago, ‘produce an intolerable condition
of things’.
[31]
The
appellants have not been able to persuade me that there is anything
unusual that obliges this court to entertain this appeal.
On the
contrary what is unusual is for a criminal trial of this nature to
take longer than a decade to be completed. Considerations
of
convenience, delay and prejudice to both the State and the appellants
point heavily to it being contrary to the interests of
justice and
its proper administration to countenance this appeal.
[40]
But there is another reason why the appeal is not properly before
this court. This is because the high court granted leave
on very
limited grounds, which did not include its principal finding –
and which is the
ratio decidendi
of the judgment – that the appointment of the prosecutors
substantially complied with s 38 of the NPA. This means that this
court has no jurisdiction to consider the appeal.
[41]
In this regard it is well established that when a high court grants
leave to appeal to this court it may limit the grounds
of appeal to
be addressed or it may grant leave generally so that all the relevant
issues might be canvassed.
[32]
Where
the high court has limited the grounds of appeal, as it did here,
this court has no jurisdiction to expand the grounds of
appeal. If an
appellant is dissatisfied with a high court decision to limit the
grounds of appeal his remedy is to petition this
court to expand the
grounds of appeal, not to appeal directly to this court.
[42]
Counsel for the appellants contended that when read with the notice
of appeal and the judgment of the high court, the third
ground upon
which leave was granted – ie what in law is to be understood by
the expression ‘engage, under agreements
in writing’ as
it is used in ss 38(1) and (3) of the NPA Act – is broad enough
to include the finding that the National
Prosecuting Authority had
substantially complied with the section in the appointment of the
prosecutors. I cannot agree with this
submission. This ground relates
only to the meaning of the section, and is not directed at the
court’s finding.
[43]
It may be that the learned judges who considered the application for
leave to appeal in error omitted to include the issue
of whether
there had been substantial compliance with the s 38 of NPA Act. If it
was an error the appellants ought to have approached
the high court
to correct it. And if that court had declined to do so, they could
have applied to this court to expand the grounds
of appeal. There is
in any event no reasonable likelihood of the appellants succeeding in
disturbing the high court’s finding
that there was substantial
compliance with s 38 of the NPA Act.
[33]
[44]
For all these reasons the appeal was struck from the roll.
_________________
A
CACHALIA
JUDGE
OF APPEAL
APPEARANCES
For
1
st
– 5
th
, 7
th
and 8
th
Appellants: B Pretorius
Instructed
by:
Thys
Cronje Inc, Menlo Park
Van
der Merwe & Sorour, Bloemfontein
For
Respondent: L G Nkosi-Thomas SC (with her L A Friester- Sampson and
P J Louw)
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
Bonugli
& another v Deputy National Director of Public Prosecutions &
others
2010
(2) SACR 134 (T).
[2]
Ibid
144G-I.
[3]
Phillips
v SA Reserve Bank & others
2013
(6) SA 450
(SCA)
.
[4]
Ibid
para 28.
[5]
Philips
v Botha
1995
(2) SACR 228 (W).
[6]
Ibid
231H-232C.
[7]
S
v Western Areas Ltd & others
2005
(5) SA 214
(SCA) para 19.
[8]
Wahlhaus
& others v Additional Magistrate, Johannesburg & another
1959
(3) SA 113
(A) at 120E.
[9]
Phillips
v SA Reserve Bank
2013
(6) SA 450
(SCA) paras 26-28.
[10]
R
v Adams & others
1959
(3) SA 753
(A) at 763C-D.
[11]
McComb
v Assistant Resident Magistrate, Johannesburg and the
Attorney-General
1917
TPD 717
at 719.
[12]
S
v Mhlungu & others
[1995] ZACC 4
;
1995
(3) SA 867
(CC) at 895D-E.
[13]
S
v Stevens
1983
(3) SA 649
(A) at 661D-E.
[14]
S
v Western Areas Ltd & others
2005
(5) SA 214
(SCA) para 18.
[15]
Wahlhaus
& others v Additional Magistrate, Johannesburg & another
1959
(3) SA 113
(A) at 120A-C.
[16]
R
v Adams & others
1959
(3) SA 753
(A) at 763B-C;
S
v Malinde & others
1990
(1) SA 57
(A) at F-G.
[17]
S
v Western Areas Ltd & others
2005
(5) SA 214 (SCA).
[18]
See
International
Trade Administration Commission v Scaw South Africa (Pty) Ltd
SA
2012 (4) SA 618
(CC) paras 47-53 where the Constitutional Court
confirmed this approach.
[19]
Ibid
Western
Areas
(supra) fn 17 para 27.
[20]
S
v Malinde & others
1990
(1) SA 57
(A) at 68C-F.
[21]
‘
Engagement
of persons to perform services in specific cases
(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) . . .
(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.’
[22]
‘
Power
to institute and conduct criminal proceedings
(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
.
(6) A written
authorisation referred to in subsection (5) shall set out-
(a)
the area of jurisdiction;
(b)
the offences; and
(c)
the court or courts,
in
respect of which such powers may be exercised.’
[23]
‘
Pleas
(1) When an accused
pleads to a charge he may plead-
.
. .
(h)
that the prosecutor has no title to prosecute.’
[24]
Phillips
v Botha
(supra) fn 5.
[25]
Section
7(1)
(a)
of the CPA.
[26]
Ndluli
v Wilken NO & andere
[1990] ZASCA 107
;
1991
(1) SA 297
(A) at 306C-D.
[27]
S
v Sibuyi
1993
(1) SACR 235
(A) at 248H-J.
[28]
Cf
Williams & another v Janse van Rensburg & others (2)
1989
(4) SA 680
(C) at 683D-684B.
[29]
Cf
Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996
(3) SA 1
(A) at 7D-I.
[30]
Porrit
& another v The NDPP & others
(978/13)
[2014] ZACSA 168 (21 October 2014).
[31]
See
fn 11 above.
[32]
S
v Sikosana
1980
(4) SA 559
(A) at 563A-C.
[33]
Cf
S
v Safatsa
1988 (1) SA 868
(A) at 877B-G.