About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 525
|
|
Legal Aid South Africa v Van der Merwe and Others (A409/2010) [2010] ZAWCHC 525 (4 November 2010)
In
the Western Cape High Court of South Africa
(Western
Cape High Court, Cape Town)
Case
No: A409/2010
In
the matter between:
Legal
Aid South Africa
….................................................................
Appellant
Versus
Gary
Walter van der Merwe
….............................................
First
Respondent
Paul
Killian
…..................................................................
Second
Respondent
National
Director of Public Prosecutions
…........................
Third Respondent
Judgment
delivered on: 4 November 2010
LOUW
J
[1]
The appellant is the Legal Aid Board (LAB), a body corporate
established in terms of section 2 of the Legal Aid Act, 22 of
1969
(the Act).
[2]
The first and second respondents are businessmen who face multiple
charges of fraud in the Western Cape High court. They appeared
in
person to oppose both the appeal as well as the application by the
LAB for condonation of its late filing of a notice of appeal.
I will
refer herein to the first respondent as Mr van der Merwe and to the
second respondent as Mr Killian and to them together,
as the
respondents. Mr van der Merwe also applied for the postponement of
the hearing of the appeal. I deal later with this application.
[3]
The third respondent, the National Director of Public Prosecutions,
does not oppose the appeal and abides the decision of
the court.
[4]
The respondents are both charged on counts 1 to 3 which relate to
the allegedly fraudulent sale of shares in two companies
namely
World On Line Limited, a company registered in Mauritius and
Wellness International Network Pty Limited, a company registered
in
South Africa. It is alleged that investors in the two companies were
defrauded of millions of rands.
[5]
Mr van der Merwe is charged alone on eight further counts of fraud.
Counts 4 and 5 relate to Mr van der Merwe's personal income
tax
returns for the tax years 2002 and 2003. In respect of the first
year it is alleged that he misrepresented his gross income
by
declaring an amount of R22 000.00 whereas he received more than R2
million as gross income, and for the second year that he
declared an
amount of R60 000.00 whereas he received in excess of R22 million as
gross income. Counts 6 to 11 relate to offences
allegedly committed
under the Value-Added Tax Act, 61 of 1993.
[6]
The respondents applied to the LAB for legal aid to fund their
representation at the criminai trial on 21 July 2009 and 4
August
2009, respectively. The Cape Town Justice Centre, the representative
of the LAB in Cape Town, requested the respondents
to provide it
with information regarding their financial positions so as to enable
the LAB to make an informed decision on their
applications.
[7]
Mr van der Merwe responded on 6 August 2009 in writing to the
request for information as follows:
Your
request for further information in your letter dated 3/8/09 refers,
please note I will answer in order of the requests made.
I
have no fixed income.
I
have no monthly rental nor rental contract.
I
have attached copies of some Judgments and liabilities against me
totalling some R80 million, please note these are not exhaustive
of
the claims against me.
I
have no assets, property, investments, shares or cash.
I
have attached details of liabilities of some R80 million for your
records.
I
am not a member of any close corporation, I am a director of
several companies all of which are dormant, have no assets and
are
not in operation any longer with substantial liabilities save for
Executive Helicopters LTD (EH), which is a trading entity,
EH has
no longer any assets but I hope to be able to turn this around in
the future, I have no shares in EH.
I
am not a Beneficiary of any trust."
[8]
Mr Killian responded in writing on 6 August 2009 and set out a
number of his of assets and liabilities as follows:
ASSETS
LIABILITIES
Costa
Atlantica Properties Pty Ltd
21 Central Drive, Camps
Bay
SHAREHOLDER AND DIRECTOR R9, 000, 000 BOND
Summer Symphony
Pty Ltd R800,
000 BOND
15
The Fairways, Camps Bay
SHAREHOLDER
AND DIRECTOR
Pony Ranch Trust
R3,
800,000 R1, 350,
00 BOND
33
Anderson Street
P/m
tenant paying R20,00 BOND REPAYMENT IS R 21, 000
Joostenbergvlakte
I
am a TRUSTEE my children are beneficiaries
I
am a TRUSTEE my children are beneficiaries
Paul
Killian Family Trust
52
Hely Hutchinson Ave
Camps
Bay
8005
R10, 000,000 R 6, 000,000
Bond
is R72, 000 per month
Sang
Yong 2004 R 250,000 R 113,000
4X4
REXTON
(divorce
settlement belongs to wife SR KILLIAN)
Surety
Ship
Simply
Export CC R150,000
CREDIT
CARDS
Amex
R54,000
VISA
R44,000
Master
card R40,000
Virgin
card R36,000
Standard
Master R35,000
Mini
Cooper
R120,000
R
120,000
Mini
CooperS
R180,000
R
180,000
CURRENTLY
TRYING TO GET A NEW BUSINESS GOING NO INCOME Skyforce Corporation CC
50% shareholder and member business closed down
[9]
The LAB responded to the information provided by the respondents in
letters dated 18 August 2009. It is apparent from these
letters that
the LAB was of the view that, on the basis of information already
available to the LAB there were material non-disclosures
and
inconsistencies in the information provided by the respondents. The
LAB informed the respondents that it had decided to refuse
legal aid
in the interim 'on the basis that you exceed the means test' and
invited the respondents to provide further information
that may
influence the LAB's decision. The respondents were further informed
of their right to an internal appeal against the
decision to refuse
legal aid to them.
[10]
On 2 November 2009 the criminal trial came before Yekiso J to whom
the matter had been allocated for hearing. The respondents
were
unrepresented and appeared in person. The representative for the
state and the respondents addressed the court as some length
on the
issue of legal aid for the respondents. Mr Cloete of the LAB was
present in court and provided information to the court.
On 3
November 2009 in Yekiso J made an order setting out the procedure to
be followed by the respondents in their internal appeals.
The order
also directed the respondents to disclose certain specified
information to the LAB. The criminal trial was postponed
to 18
November 2009, pending the outcome of the internal LAB appeals.
[11]
The respondents on 11 and 10 November 2009 respectively, provided
further information to the LAB.
[12]
Mr van der Merwe stated, inter alia, that he had no income over the
past six months and longer, that he had resigned the
positions
previously held by him in all companies he had been a director of,
none of which had in any event entitled him to a
salary or drawing,
that he had no shares in any company and that he was not a
beneficiary of any trust. He further stated that
he would request
the LAB to appoint senior/junior counsel assisted by junior counsel,
all of his choice.
[13]
In his reply Mr Killian stated that he was a minority shareholder in
two companies. Both owned immovable properties in Camps
Bay that
were bonded and, according to Mr Killian, attempts were being made
to sell the properties. No income was derived from
these companies
and while the one property was being conducted as a guest house, the
income was not sufficient to pay any dividends.
In addition he
disclosed that he was the trustee of two trusts of which his
children were the beneficiaries. Both these trusts
owned immovable
properties which were bonded. The one property was let out but the
lessee was not meeting the monthly lease payments
and while the
other property was being operated as a guest house, the income was
not enough to pay the bond instalments. He also
disclosed two motor
vehicles on hire purchase and his personal liability as a surety in
the amount of R100 000.00 for the debts
of the Simply Export CC. He
further disclosed a debt of some R200 000.00 outstanding on 5 credit
cards. Finally he disclosed
that he is a member of a close
corporation that owns immovable property in Hout Bay.
[14]
On 18 November 2009 the LAB requested further specific information
from the respondents.
[15]
The particulars requested from Mr van der Merwe are set out as
follows:
During
court proceedings on 10 September 2009 you advised the court that
you were employed to recovered helicopters. Please
provide us the
details of your employer and with a copy of your employment
contract.
Please
advise who is funding the matters below also state who is
representing you in these matters and at what stage these matters
are. Reference is made to 6 cases in which Mr van der Merwe is
involved as a litigant (5 of which are in the High Court). Please
provide us with a list of all property owned by the Eagles Trust.
Mr van der Merwe is the donor, a trustee, and a beneficiary
of this
trust.
The
LAB required proved of resignation as a director of ten named
companies set out in the request.
Mr
van der Merwe was asked to provide information as to income derived
from him acting as manager of Zonnekus Mansions Pty Limited.
Mr
van der Merwe was asked to provide bank statements for the last 3
months.
[16]
Mr van der Merwe did not respond at all to this further request for
information.
[17]
Mr Killian was requested to provide details regarding the property
owning companies and trusts disclosed in his previous
response. He
was also asked to provide the value of certain motor vehicles
disclosed by him, a copy of his divorce settlement
as well as copies
of his latest credit card statements. He was also asked to state how
he financed the fees of counsel in an
appeal which was heard on 14
November 2009. Mr Killian responded with further information.
[18]
When the criminal trial again came before Yekiso, J on 18 November
2009, Mr Esterhuizen, a representative of the LAB, informed
the
court that the LAB was of the opinion the respondents had not
complied with the order made on the 3 November 2009 and that
since
the LAB required the information stipulated in the order, it could
not take an informed decision on legal aid for the respondents.
After hearing the parties (the respondents again appeared in person)
and the representative of the LAB, the trial was postponed
to 2
December 2039 with a direction that the LAB furnish the learned
Judge with a report by 30 November 2009 and, in any event,
consider
the appeal against the refusal of legal aid on the basis of the
information the LAB then had before it.
[19]
The matter came before Yekiso, J on 2 December 2009. By this time,
the report the LAB had drawn up pursuant to the direction
made by
the court in terms of section 3B (1) (b), together with the
annexures to the report, had been placed before the learned
Judge.
It was recorded that the respondents' internal appeals against the
refusal of legal aid had been unsuccessful. Yekiso
J then made the
following order, which order is the subject of this appeal, in terms
of section 3B of the Act:
1.
It is hereby recorded that both the accused appeal against the
refusal by the Legal Aid South Africa, to grant them legal aid
assistance has been
UNSUCCESSFUL.
2.
It is further recorded that the matter involving the charges
prepared against both the accused is complex and that it would
be
desirable if each of the accused were to be represented by counsel
who is knowledgeable and has experience in matters pertaining
or
relating to complex commercial crimes.
3.
Arising from what has been stated in paragraph 2 of this order,
substantial injustice would thus result if the matter were
allowed
to proceed to trial without each one of the accused being afforded
legal representation.
4.
In view of what is stated in paragraph 3 of this order, and despite
the refusal by Legal Aid South Africa to grant both the
accused
legal assistance, and despite an unsuccessful appeal against such
refusal to grant legal aid by each one of the accused,
Legal Aid
South Africa is directed to grant both the accused legal aid
assistance, by appointing counsel of its choice in respect
of each
accused person provided counsel so appointed, in respect of each of
the accused person shall as far as is reasonable
possibly and
consistent with principal of equality of arms, be of the same level
of seniority to the most senior of the legal
representatives of
representing the Sta:e.
5.
Appointment
of counsel as contemplated in paragraph 4 of this
order, shall -
(a)
Be made no later than the expiry of five court days of the handing
down of this order.
(b)
Within seven court days of the handing down of this order, such
counsel shall be furnished with a copy of the indictment including
copies of all the relevant evidential material as would facilitate
proper trial preparation.
6.
To the extent that the accused are alleged to be possessed of
assets, in the instance of accused number one, in excess of R120
million and in the case of accused number two, in excess of R40
million. If it is proved that the accused are possessed of such
assets in the context of ownership, then in that event, Legal Aid
South Africa shall be at liberty to proceed against each one
of the
accused for recovery of whatever amount Legal Aid South Africa shall
have dispersed on behalf of each accused.
7.
The matter is postponed until Monday the 1
st
February,
2010 for trial.
[20]
The LAB applied for leave to appeal against the order of 2 December
2009. When the criminal trial resumed on 1 February 2010,
the matter
was postponed to 16 February 2010 for purposes of hearing the
application for leave to appeal.
[21]
On 16 February 2010, after hearing argument on the application for
leave to appeal, Yekiso J refused leave to appeal. The
criminal
trial was then postponed to 25 March 2010 and on that date the trial
was further postponed to 21 April 2010 pending
the outcome of a
petition for leave to appeal which the LAB had in the interim filed
with the Supreme Court of Appeal. On 21
April 2010 the matter was
further postponed to 8 June 2010, pending the outcome of the LAB's
petition for leave to appeal to
the SCA.
[22]
On 6 May 2010, the SCA granted the LAB leave to appeal to the full
bench of this court against the order made by Yekiso J
on 2 December
2010.
[23]
Section 3B (1) and (2) of the Act is the source of the power of a
court in criminal proceedings to make the order that legal
aid be
afforded to an accused person. It provides as follows:
3B
Direction for legal aid by court in criminal matters
(1)
Before a court in criminal proceedings directs that a person be
provided with legal representation at State expense, the court
shall-
(a)
take
into account-
the
personal circumstances of the person
concerned;
(ii)
the
nature and gravity of the charge on which the person is to be tried
or of which he or she has been convicted, as the case
may be;
whether
any other legal representation at State expense is available or has
been provided; and
(iv)
ary
other factor which in the opinion of the court should be taken into
account; and
(b)
refer
the matter for evaluation and report by the board.
(2)
(a) If a court refers a matter under subsection (1) (b), the board
shall, subject to the provisions of the Legal Aid Guide,
evaluate
and report on the matter.
(b)
The report in question shall be in writing and be submitted to the
registrar or the clerk of the court, as the case may be,
who shall
make a copy thereof available to the court and the person concerned.
(c)
The report snail include-
a
recommendation whether the person concerned qualifies for legal
representation;
particulars
relating to the factors referred to in subsection (1) (a) (i) and
(iii); and
(iii)
any
other factor which in the opinion of the board shou d be taken into
account.
[24]
When the court a quo made its decision and granted the order of 2
December 2009, the learned Judge had the report prepared
by the LAB
in terms of section 3B (1)(b), before him. The report is dated 30
November 2009 and records the LAB's conclusion that
on the
information at its disposal, Mr van der Merwe had a nett assejt
value of R120 million while Mr Killian has a nett value
of R14, 711
million and, that the respondents' appeal against the refusal of
legal aid had been refused. The report made the
following
recommendation to the court.
Based
on the information provided to Legal Aid South Africa by the
applicants, it is recommended that legal aid should not be
granted
to the applicants herein as they are
neither
indigent nor unable to afford the costs of their own legal
representation,
(my
emphasis)
[25]
The court a quo did not provide separate reasons for making the
order in terms of section 3B. Paragraph 2 of the order, however,
records that the matter is complex, and that it would be desirable
if each of the accused were to be represented by counsel who
is
knowledgeable and who is experienced in matters pertaining or
relating to complex commercial crimes and, in paragraph 3 of
the
order it is stated that:
arising
from what has been stated in paragraph (2) of this order,
substantial injustice would result if the matter were allowed
to
proceed to trial without each of the accused being afforded legal
representation.
[26]
As was pointed out by Mr Budlender during argument, paragraphs 2 and
3 of the order explain why the respondents require legal
representation. This is common cause and it is not disputed that as
a result of the nature and gravity of the charges which they
face
and the anticipated complexity of the trial, the respondents do
require legal representation at the trial. Paragraphs 2
and 3 of the
order do, however, not explain why such legal representation should
be provided at the expense of the State and
why substantial
injustice would result if legal representation were not provided at
the expense of the State.
[27]
In giving reasons for refusing to grant the LAB leave to appeal, the
court a quo dealt as follows with the respondents' financial
position and information regarding the respondents' financial
position:
on
the basis of the report furnished to me by Legal Aid South Africa,
which amongst others, contain both the accused personal
circumstances and as well as financial circumstances, I could not
come to the conclusion that the accused were, in the first
instance,
possessed of assets in the order of a R120 million in the instance
of first accused, and R14 million in the instance
of the second
accused, nor could I conclude that the accused were possessed of
assets, in the form of ownership, to the value
asserted by the Legal
Aid South Africa.
[28]
Mr Budlender submitted that the above passage from the judgment of
the court a quo embodies an incorrect approach to the
matter,
because the enquiry made by the court in terms of section 3B is that
of the court and because there is no onus on the
LAB or anyone else
to prove what the assets of the respondents are. These submission
are borne out by the judgment of the SCA
in
Legal
Aid Board v The State
(363/09)
[2010] ZASCA 112
(21 September 2010) which was delivered on 22
September 2010, after the hearing of the appeal before this court.
The SCA was
concerned with an appeal against an order similar to the
order made in this case by a court in criminal proceedings.
Borchers,
J in the court a quo made two findings. The first
concerned the question whether legal aid should be granted at state
expense.
The court a quo found that legal representation of the
accused in that matter was necessary, that the accused had
shown
themselves to be indigent as defined
and
that the LAB should consequently be directed to provide them with
legal representation. Borchers, J then turned to consider
a further
question, namely, the scope and the extent of the legal
representation to be provided by the state. And in this latter
regard, Borchers, J ordered the LAB to provide two legal
practitioners to represent each of the accused, such practitioners
to be remunerated at the maximum fee permitted by the Legal Aid
Guide.
[29]
The SCA considered both these questions, namely whether the legal
aid should have been afforded to the accused at the expense
of the
state and, secondly, whether the court had the power to prescribe
the scope and extent of the legal representation to
be afforded to
the accused at the expense of the state.
[30]
The SCA first considered the question whether legal aid should be
afforded to the accused and at paragraph [29], held (in
a unanimous
decision, per Ponnan, JA) that a court undertaking an enquiry in
terms of section 3B must ask itself two questions:
1.
would substantial injustice ensue were the accused to proceed to
trial without representation, and if so,
2.
could the costs of the representation been borne by the accused from
his or her own resources?
[31]
The answer to the first of these questions was not in dispute in
that case and, in this case it is also not in dispute. The
accused
in that case required and the respondents in this case clearly
require legal representation given the serious charges
and complex
nature of the trial.
[32]
In paragraph [33] of the judgment Ponnan JA stated the following in
regard to the approach to be adopted by the court when
it considers
the second of the two questions, namely, whether the accused was
able to bear the costs of representation from his
or her own
resources:
Section
3B makes plain that it is in fact the court's enquiry. It follows
that the employment of terminology such as 'burden or
onus of proof
is particularly unhelpful and would serve to obfuscate rather than
elucidate the enquiry. In those circumstances
it would be wholly
inappropriate for a court to saddle an accused person with an onus
and to decide the matter on the strength
of whether or not that has
been discharged. That is not to suggest that persons such as the
respondents would be free to adopt
a supine attitude. On the
contrary, particularly where, as here, the information sought is
peculiarly within their knowledge,
they have as much - if not more -
of an obligation as the State to assist the court's enquiry. Failure
in those circumstances
to assist the court may well be fatal to
their quest for legal assistance at State expense. For, if the court
is left in the
dark as to one's personal circumstances it can hardly
properly undertake the postulated enquiry. Were that to be the case
it
must perforce decline to issue the directive contemplated by s
3B(I). In this case Borchers J observed that 'the court has not
the
administrative machinery to investigate the correctness of the
information supplied'. That may be so. But that ignores the
court's
power to subpoena witnesses and documents or to place witnesses such
as the respondents under oath and if necessary for
them to be
subjected to cross examination. Those are formidable weapons in the
judicial
armoury
that must, where necessary, be employed by a court to enable it to
discharge its constitutional mandate.
[33]
In paragraph [36] Ponnan, JA stated that the responses of both the
accused in that matter, to information which was sought
by the LAB
and which information was peculiarly within the knowledge of the
accused, fell "far short of satisfying one that
their personal
circumstances are such that they do indeed qualify for legal
representation at state expense". The court
therefore set aside
the order made by the court a quo in terms of which the LAB was
ordered to provide legal representation to
the accused.
[34]
At paragraphs [39] to [49] of the judgment, Ponnan, JA considered
the further question mentioned above, namely, whether the
court had
the power to prescribe the scope and the extent of the legal
representation to be afforded to the accused at state
expense and
whether the right to be assigned counsel by the LAB comprehended a
right as generous as that discerned by the court
a quo.
[35]
The SCA came to the conclusion that the court a quo lacked the power
to order the LAB to provide each of the respondents
with two
advocates in private practice to be remunerated in accordance with
maximum rates permitted by the legal aid tariff.
The court held at
paragraph [45] that it was not for the courts but that it is for the
other arms of government to ensure that
adequate provision is made
for legal representation at state expense. Here they have chosen to
do so through the LAB. Demands
other than legal aid on the public
purse may limit the availability of funds. Courts should be slow to
attributes a superior
wisdom to themselves in respect of matters
entrusted to other branches of government.
The
court found the LAB undoubtedly be such an institution with specific
expertise in the area whose opinion must be shown respect
by the
courts. Therefore, the SCA held at paragraph [48], that save where a
decision by such an institution is objectively irrational,
in which
case a court would have the power to intervene and set aside the
decision, the courts do not have the power to intervene
and
substitute its opinions as to what is appropriate, for the opinion
of the institution in whom the power vests.
[36]
Section 3B (1)(a)(i) of the Act provides in peremptory terms that
before a court in criminal proceedings directs that a person
shall
be provided with legal representation at state expense, the court
shall take into account the personal circumstances of
the person
concerned. The court must therefore have before it the personal
circumstances of the person concerned in order to
be able to take
them into account and for the court to be competent to exercise the
power conferred on it. It is therefore a
jurisdictional fact for the
court's exercise of the power to make the order.
[37]
The main source of information placed before the court a quo was the
section 3B report by the LAB, and the annexures to that
report. The
list of companies referred to in the report is taken from the
affidavit deposed to by Mr van der Merwe on behalf
of those
companies and in his capacity as a trustee of the Eagles Trust in
the matter of
GW
van der Merwe and 14 Others v The Additional Magistrate Cape Town &
4 Others
Case
Number 5880/2008. One of these companies is Zonnekus Mansions Pty
Limited, a company which according to a Deeds office search,
is the
owner of 5 immovable properties. Each of these properties is bonded,
but it was not possible from the information available
to the LAB to
determine what value those properties have to Zonnekus Mansions Pty
Limited.
[38]
In an affidavit dated 7 May 2009 deposed to by Mr van der Merwe in
the matter of
Antares
and Another v Executive Helicopters (Pty) Limited,
Western
Cape High Court Case Number 8853/2009, Mr van der Merwe stated that
he is a director of Executive Helicopters Limited
which "has
assets comprising helicopters, engines, spares, plant and equipment
and motor vehicles having a value in excess
of R200 million rands".
It is further stated by Mr van der Merwe in that affidavit that the
company has no liabilities save
for current liabilities not yet due
for payment and that it does not have any borrowings and that
against current liabilities
the company had a "comfortable
surplus of current assets". In a further affidavit dated 19 May
2009 in the same matter,
Mr van der Merwe stated "these assets
(against which there are neither borrowings nor amounts due to
creditors) have a value
in excess of R200 million rands".
[39]
These statements made under oath by Mr van der Merwe on 7 May and 19
May 2009 must be contrasted with the statement made
by him in his 6
August 2009 letter to the LAB wherein he stated that Executive
Helicopters Limited no longer had any assets and
that he has no
shares in that company. There is no explanation whatsoever of what
had happened in the intervening three months
to the very substantial
assets he alleged the company had.
[40]
In his letter of 6 August 2009 to the LAB, Mr van der Merwe stated
that he is not a beneficiary of any trust. However, according
to the
trust deed of the Eagles Trust, Mr van der Merwe is the donor to the
trust, is a trustee of that trust and is both an
income beneficiary
and a residual capital beneficiary of the trust. Mr van der Merwe
has made no disclosures with regard to the
Eagles Trust and it is
consequently not possible to know what the current assets of that
trust are. Mr. Budlender did point out
in argument, however, that
according to the audited annual financial statements for the period
up to 31 July 2001 of Wellness
International Network Ltd one of the
companies, the sale of whose shares forms the subject matter of the
first three fraud charges
against the respondents, the Eagles Trust
had made an interest free loan of R9,8 million to the company.
Incidentally, the same
financial statements reflect that Mr. van der
Merwe had also made an interest free loan, as a shareholder, to the
company in
the amount of R28, 4 million.
[41]
Mr van der Merwe stated in his application for legal aid that he is
unemployed. However, during the course of several hearings
before
the court a quo, Mr van der Merwe stated that he is a pilot and is
employed to recovered helicopters in Africa. He does
maintenance,
the retrieval, rebuilding and repair of helicopters. He is according
to him, also involved in a certain amount of
property transactions.
From his statements to the court it further appears that he has
often travelled to destinations elsewhere
in Africa, Mauritius and
Germany. In an affidavit deposed to by Mr van der Merwe on 24
September 2009 in an application for an
amendment of his bail
conditions he stated that since his arrest in 2004 he had travelled
internationally on 35 occasions. In
2007 for instance he planned a
three week trip to the United States of America.
[42]
At a hearing in the court a quo on 9 September 2009 Mr Botha, the
representative of the State suggested that Mr van der Merwe's
financial position must have changed since he applied for and was
granted bail in 2004 as he had told the LAB that he was unemployed
and no longer had any assets and did not have any money. Mr van der
Merwe responded by saying "my financial position has
not
changed since the day I was arrested. So that is a lie from Mr
Botha's side".
[43]
In an email dated 29 September 2009, Mr van der Merwe repeated that
"my personal financial position has not changed
since my
arrest." He was arrested during 2004 and was granted bail on
the 28 October 2004.
[44]
The following document, purported to have been signed by Mr Killian,
it seems in 2004, is an annexure to the LAB report to
the court:
PROFILE
- PAUL LAWRENCE COXIE KILLIAN
1.
Date of birth: 5 January, 1950 - presently 54 years old.
2.
Married to Sonja Rene Killian, by antenuptial contract, for 11
years.
Has
2 children, boys, Lawrence, 11 years old and in grade 5 at Redham
School, Greenpoint. Luke, 9 years old, grade 3 at Redham
School.
Businessman,
a member of Skyforce CC as well as Silver Solutions 546CC and
Silver Solutions 552 CC.
5.
Carries on business at Skyforce CC in property development and
property sales. Employs approximately 20 people.
6.
Business address is 5 La Mer, Sluyjsken Avenue, Hout Bay.
Place
of residence: 14 Hely Hutchinson Avenue, Camps Bay. The
aforementioned property is registered in Mr Killian's wife's name
and they have lived there for the last three years.
Mr
Killian is a 50% member in the above mentioned Close Corporations,
two of which own property valued at approximately R2.6
million,
being numbers 5 and 6 La Mer, Sluyjsken Avenue, Hout bay.
Mr
Killian is a South African citizen and holds a South African
passport.
Mr
Killian's average monthly income is between R25 000.00 and R30
000.00 per month.
11.
Mr Killian intends travelling to Spain in December for approximately
2 weeks with his family on a family holiday.
[45]
Mr Killian's attention was drawn to this document in the LAB's
letter to him of the 18 August 2009. There has, however, been
no
response by Mr Killian in regard to this document. I agree with the
submission by Mr Budlender that the picture painted of
Mr Killian in
this document, albeit it that it appears to reflect his position in
2004, is not one of a man who is without income
or resources or of a
man who is dependant on the State for funding his legal
representation in a criminal case.
[46]
On 19 November 2009 Mr Killian provided certain further information
in regard to his financial affairs pursuant the court
order of 3
November 2009 and the request by the LAB dated 18 November 2009 to
provide information regarding the various companies
and trusts which
he listed as part of his assets as well as the liabilities which he
listed. On the basis of this document provided
by Mr. Killian, the
LAB compiled an estimate of Mr Killian's current financial position.
This estimate is based on the values
Mr Killian placed on the assets
and liabilities which he set out in his response. It reflects a nett
value of R14, 711 million.
The LAB estimate listed the following
information.
REPORT
ON THE FINANCIAL POSITION OF PAUL KILLIAN
ASSET
LIABILITY NET VALUE
Pure
Platinum Holdings 15 000 000 10 012 000 4 988 000
Summer
Symphony 9 000 000 800 000 8 200 000
Pony
Ranch Trust 2 000 000 1 350 000 650 000
Killian
Family Trust 7 000 000 6 000 000 1 000 000
Mini
134 000 161 000 -27 000
Simply
Export 100 000 -100 000
14
711 000
[47]
Mr Budlender concedec in argument that the estimate is unlikely to
be a precise indication of the value of Mr Killian's assets.
The
amount may, with fuller information being provided, have to be
varied either upwards or downwards. No further information
was
placed before the court a quo nor has any such information been
placed before this court on appeal. The court a quo, and
this court
for that matter, is therefore not in a position to make a decision
on any other basis than that reflected in the papers
that were
before the court a quo.
[48]
The preamble to the Legal Aid Act list as one of the objects of the
Act as "to provide legal aid for indigent persons"
and the
objects of the LAB is stated in section 3 of the Act to be "to
render or make available legal aid to indigent persons
and to
provide legal representation at state expense as contemplated in the
constitution". I agree with Mr Budlender's submission
that that
the court cannot make an order under section 3B unless the
respondents are not able to fund their legal representation
from
their own resources.
[49]
The LAB must, in carrying out the objectives of the Act and the
objectives of the board make use of its resources as economically
as
possible. It should not be required by a court to provide legal
representation at state expense where this is not necessary,
because
the person concerned is able to afford such representation him or
herself.
[50]
It is not clear from the order made by Yekiso J on 2 December 2009
that the learned Judge concluded that the respondents
did not have
sufficient resources to be able to pay for their legal
representation. However, the information which was before
the court
a quo, read in the context of statements made by the respondents on
other occasions, suggest that the true picture
of their personal
circumstances, were not before the court. The information before the
court a quo, did not, in my view, constitute
a basis upon which the
court a quo could reach the conclusion that the respondents could
not afford the costs of legal 'epresentation
and that the
respondents qualify for legal representation at state expense or
that substantial injustice will result if the respondents
are not
provided with legal representation at state expense. I agree with Mr
Budlender's submission that, on the information
before the court
there is at least a probability that the respondents are in fact
wealthy men. In these circumstances the court
a quo should, in my
view, not have made an order for legal representation at the expense
of the state to be afforded to the respondents
and, at best for the
respondents the court should have conducted its own enquiry into the
personal circumstances of the accused.
[51]
I turn to the orders made by the court a quo in paragraphs 4 and 6
of the order under appeal.
[52]
In paragraph 4 the court a quo ordered, in terms of section 3B, that
counsel appointed by the LAB for the respondents should
as far as is
reasonably possible, and consistent with the principal of equality
of arms, be of the same level of seniority as
the most senior of the
legal representatives representing the State,
and
in paragraph 6, the court further ordered that
to
the extent that the accused are alleged to possessed of assets, in
the instance of accused number 1, in excess of R120 million
rand,
and in the case of accused number 2, in excess of R14 million rands,
if it is proved that the accused are possessed of
such assets in the
context of ownership, then in that event Legal Aid South Africa
shall be at liberty to proceed against each
one of the accused of
recovery of whatever any amount Legal Aid South Africa shall have
disbursed on behalf of each accused.
[53]
The Act as explained by the SCA in the
Legal
Aid Board v The State
,
supra does not contemplate that the court may make orders of the
nature the court a quo made in paragraphs 4 and 6. The order
in
paragraph 4 seeks to prescribe who should be appointed by the LAB by
specifying the seniority of the representatives which
should be
appointed. The order in paragraph 6 seeks to limit the right of the
LAB to recover from the respondents monies paid
over in respect of
their legal representation, should it appear that the respondents
misrepresented their financial positions.
The right to recover
cannot be restricted to the situation where it is proved that the
respondents are possessed of R120 million
and R14 million,
respectively "in the context of ownership". In my view the
court does not have the power to make the
orders set out in
paragraphs 4 and 6.
[54]
The LAB applied for condonation of its failure to file the notice of
appeal timeously. The respondents opposed the application.
The LAB
has in an affidavit deposed to on its behalf by Mr. Mtati an
executive of the LAB, explained that the delay occurred
as a result
of an oversight and misunderstanding as to the LAB's obligations as
appellant. The notice was filed on 30 July 2010.
It is not suggested
in the affidavit of Mr. van der Merwe, filed in opposition to the
application for condonation, that the respondents
were prejudiced by
the relatively short delay. The respondents were at all times aware
of the fact that the LAB intended appealing
the order of Yekiso, J
and the LAB filed the record and its heads of argument timeously.
The late filing of the notice of appeal
must, in my view, be
condoned.
[55]
Mr. van der Merwe also sought the postponement of the hearing of the
appeal for the finalisation of what he contended to
be a pending
application to the LAB for legal aid to be afforded to him for the
appeal itself. The application was argued at
the same time as the
merits of the appeal and the application for condonation.
[56]
There is no pending application for legal aid by Mr. van der Merwe
in regard to the appeal. He did apply for legal aid in
the LAB's
application for leave to appeal. This application was turned down by
the LAB and Mr. van der Merwe was so informed
on 11 February 2010.
Mr. van der Merwe did not appeal this decision, but on 23 April
2010, he sought reasons for the refusal
from the LAB, reserving his
right to appeal. On 6 May 2010 the SCA granted the LAB leave to
appeal, rendering the issue of whether
leave to appeal should be
granted, moot. Mr. van der Merwe did not thereupon apply for legal
aid in respect of the appeal itself.
There is therefore no pending
application for legal aid.
[57]
The application for postponement of the appeal therefore has no
merit and should be refused.
[58]
The LAB does not seek an order for costs if successful in the
appeal. [59] The following order is therefore made.
1.
The application for the postponement of the appeal is refused.
2.
The LAB's application for condonation of its late filing of the
notice of appeal, s jcceeds;
3.
The appeal succeeds; and
4.
The orders made by the court a quo on 2 December 2009 are set aside.
W.J.
LOUW
Judge
of the High Court
I
agree
R.
ALLIE
Judge
of the High Court
I
agree
D.
V. DLODLO
Judge
of the High Court