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[2010] ZAGPPHC 62
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Ehmke v Minister of Defence and Others (57292/2008) [2010] ZAGPPHC 62 (14 July 2010)
IN
NORTH GAUTENG HIGH COURT: PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
number: 57292/2008
Date:
14/07/2010
In
the matter between:
KAREL
FREDERIK EHMKE
Applicant
And
THE
MINISTER OF DEFENCE
First
Respondent
THE
HEAD OF THE SOUTH
AFRICAN
DEFENCE FORCE
Second
Respondent
THE
HEAD OF THE SOUTH
AFRICAN
AIR FORCE
Third
Respondent
THE
DIRECTOR: MILITARY
PROSECUTIONS
Fourth
Respondent
JUDGMENT
TOKOTA
AJ
[1]
The applicant is employed by the South African National Defence Force
as a Brigadier-General stationed as such at Air Force
division as a
Director Technical Support Services. On 23 February 2007 he was
placed on compulsory special leave by Lt. General
Gagiano on the
instructions of the CSANDF. He was then precluded from communicating
with any member of the Directorate Technical
Support Services and
prohibited from visiting Head Quarters or Security area. Charges of
sexual harassment and disgraceful conduct
have since been preferred
against him.
[2]
The purpose of this application is to seek an order staying those
proceedings permanently and lifting his "skorsing"
(suspension) from duty and that it be ordered that he be reinstated
to his post. The said charges were a sequel to complaints of
sexual
harassment which were laid against him by one Ms De Kok and Ms Smith.
He was then, on 23 January 2007, placed on special
leave on the
instructions of the Chief of the South African National Defence Force
(CSANDF)
[3]
After he was placed on compulsory leave he heard nothing from the
department until the 12
th
of February 2008 when he was called by Col. Hartley to report at Air
Force Head Quarters. He was informed that he would be required
to
report in order to meet legal personnel who were going to either
arrest him or release him on warning. He informed Colonel Hartley
that the time period within which he was required to report was
unreasonably short as he needed to contact his lawyers to represent
him at the meeting. He requested that he be given documentary proof
of what he was required for. He was then faxed what is termed
'Account of Offence'
[4]
On
13 February 2008 he was again called by Major Kodisang and informed
that he was required to report to the Chief of the Air Force
offices
to be given a warning that there were pending investigations of
charges of sexual harassment and disgraceful conduct. He
informed
Kodisang that he was already aware of such allegations since February
2007, thereupon Kodisang undertook to come back
to him. On
11
A
pril
2008 Kodisang once again called the applicant and informed him that
the Senior prosecutor together with the Chief of the Air
Force wanted
him to appear before the Chief of the Air Force.
[5]
On 14 April 2008 Lt.Col. Roger Coetzee delivered a letter from the
Chief of the Air Force in which the applicant was informed
of the
need to initiate legal proceedings and that he should report to the
Chief of the Air Force's office on 23 April 2008. On
23 April 2008
the applicant and his lawyers were informed at the parking area that
the Chief of the Air Force was not available
to see them as he was
engaged with other commitments.
[6]
On 6 May 2008 applicant's attorneys wrote a letter to the department
of Defence ("the department") requesting that
arrangements
be made for a further meeting and proposed certain dates. The third
respondent replied and suggested a meeting of
the 14
th
of May 2008. The applicant was, at the meeting of the 14
th
May
2008, informed of the charges of indecent assault and improper
conduct. He was represented by his lawyers. It was at this meeting
that counsel for the applicant raised certain objections on the
grounds of irregularities allegedly committed by the department.
The
third respondent left the meeting and his secretary handed over to
the applicant the charges preferred against him.
[7]
On 2 July 2008 the applicant appeared in the Military Court before
Senior Military Judge Captain R P Masutha. His Counsel put
on record
that the applicant was insisting that forma! investigations be held.
He requested the fourth respondent to furnish him
with statements and
that an agreement be reached for the date of the proceedings. The
case was then postponed to 1 September 2008
for further investigation
and for the preliminary investigation.
[8]
On 7 August 2008 applicant's counsel agreed with Kodisang that the
preliminary investigation be held on 18 August 2008. On 14
August
2008 applicant's counsel further requested that the matter be heard
on 29 September 2008 to 1 October 2008. Kodisang once
again agreed to
this proposal.
[9]
On 15 September 2008 the applicant's attorney wrote a letter to
Kodisang informing him that there were still outstanding statements
and information which he considered to be relevant and necessary for
the hearing. On 17 September 2008 Kodisang wrote back to applicant's
attorney and informed him that he had given him all the statements.
In that same letter Kodisang suggested that a pre-trial conference
be
held to discuss the issues raised by applicant's attorney in his
letter.
[10]
On 17 September 2008 applicant's attorney wrote another letter to
Kodisang informing him that he was adamant that he did not
receive
all the statements and information that he required and requested
that a docket be made available for making copies of
the contents
thereof. On the same date Kodisang responded to the applicant's
attorney and informed him that the recording officer,
as a result of
prior commitment, would not be available on the scheduled dates and
suggested that the preliminary investigation
be commenced on 29
September 2008 and at the same time be postponed to further dates to
be agreed upon, if necessary.
[11]
On 29 September 2008 the applicant appeared before the recording
officer Captain J J Renecke for the preliminary investigation.
During
these proceedings applicant's legal representatives insisted that the
prosecuting authority be informed that he was insisting
on the formal
preliminary investigations and that witnesses should be called to
give viva voce evidence and be cross-examined.
Despite this, the
recording officer suggested the witnesses' statements be read out
because that was a prescribed procedure. Applicant's
legal
representatives, however, indicated that there was no need to read
out the statements but insisted that the witnesses be
called to give
evidence. The rights of the applicant in terms of
section 30(12)
of
the
Military Discipline Supplementary Measures Act 1999
were
explained and the applicant was given the document to sign that he
understood his rights which he did.
[12]
After the above procedure was followed the recording officer
announced that the preliminary investigations were completed.
Applicant's legal representatives objected to this and noted in the
last page of the record of the preliminary investigation that
the
proceedings were not finalised.
[13]
I do not deem it necessary to deal with the events that took place
after the preliminary investigation was allegedly completed.
Suffice
it to say that there were exchanges of correspondence between the
parties until 21 January 2009. No further hearing was
held
thereafter.
[14]
At the hearing of this matter two preliminary issues were brought to
my attention. First, the condonation of the late filing
of the
answering and the replying affidavits. Both parties were in agreement
that condonation should be granted. This was accordingly
granted.
Second, Mr Barnardt, who appeared for the applicant, applied for the
striking out of a portion of the typed affidavit
of Ms De Kok
(annexure SANDF 4) on the grounds that;
(a)
it
has not been attested to;
(b)
it
scandalous and irrelevant;
(c)
it
is hearsay evidence.
Mr
Dreyer SC, who, together with Mr Britz, appeared for the respondents
argued that the statement has been incorporated to the manuscript
statement, which has been sworn to, by reference. Furthermore it has
not been tendered to prove the truth thereof but merely to
show that
a communication was made. The argument went further and he argued
that the scandalous and irrelevant allegations have
not been
identified in the statement.
[15]
In my view the objection to the statement is a technical issue which
does not affect the determination of the real issues in
the matter.
It can be disposed of by reference to the case of
Trans-African
Insurance Co Ltd
v
Maluleka
1956 (2) SA 273
(A) at
278F
where
it was stated that
"No
doubt parties and their iegal advisers should not be encouraged to
become slack in their observance of the Rules, which
are an important
element in the machinery for the administration of justice. But on
the other hand technical objections to less
than perfect procedural
steps should not be permitted, in the absence of prejudice, to
interfere with the expeditious and, if possible,
inexpensive decision
of cases on their real merits."
[16]
In my view the applicant has suffered no prejudice resulting from the
inclusion of the statement. For the determination of
the real issues
in the matter it is not necessary to have regard to the statement.
Accordingly the application must be refused.
[17]
The issue that has to be decided now is whether this court has the
power to stay the disciplinary proceedings of the Military
Court and
to uplift the alleged suspension. The power to institute disciplinary
proceedings in the Military Court vests in the
Military Prosecution.
Section 22
of
Military Discipline Supplementary Measures Act No. 16
of 1999
stipulates functions, directions and control of military
prosecution authority It provides that the
"(p)rosecutions
in any military court shall be conducted, and the prosecuting
authority shall be exercised on behalf of the
State."
Subsection
(2) provides that
"(w)here
the available evidence against any person subject to the Code prima
facie discloses the commission of an offence,
that person shall be
prosecuted unless the charge has been rendered non-justiciable, or
has prescribed, or any other legal impediment
renders the charge or
person incapable of being tried, either by a military court or at
all."
Subsection
(3) provides that the
"Director:
Military Prosecutions-fa) shall institute and conduct prosecutions on
behalf of the State;
(b)
shall
carry out all necessary functions incidental to instituting and
conducting prosecutions, including the determination of whether
or
not investigations are complete; and
(c)
may
discontinue prosecutions."
[18]
Mr Barnardt submitted that the alleged sexual harassments having
taken place during 2005 and 2006 and the witnesses being unwilling
to
continue with case, the insistence to proceed with the matter casts
suspicions that there may be a hidden agenda on the part
of the
department. However, one must not loose sight of the fact that these
complaints were only brought to the notice of the department
in 2007.
It is true that these witnesses have already left the department and
are unwilling to continue with the case. However
Ms De Kok has
indicated that although she is no longer interested in the matter she
is nevertheless willing to give evidence, if
needs be.
[19]
In terms of section 35(3)(d) of the Constitution of the Republic of
South Africa Act 108 of 1996 an accused person has a right
to have
his
"trial
begin and conclude without unreasonable delay".
Section
342A
of the
Criminal Procedure Act 51 of 1977
deals with unreasonable
delays in criminal trials It provides
"(1)
A court before which criminal proceedings are pending shall
investigate any delay in the completion of proceedings which
appears
to the court to be unreasonable and which could cause substantial
prejudice to the prosecution, the accused or his or her
legal
adviser, the State or a witness."
For
the determination as to whether there has been unreasonable delay the
court must investigate various factors including, the
duration of the
delay; the reasons therefore; whether any person can be blamed for
the delay; the effect of the delay on the personal
circumstances of
the accused and witnesses; the seriousness, extent or complexity of
the charge or charges; actual or potential
prejudice caused to the
State or the defence by the delay, including a weakening of the
quality of evidence, the possible death
or disappearance or
non-availability of witnesses, the loss of evidence, problems
regarding the gathering of evidence and considerations
of cost; the
effect of the delay on the administration of justice; the adverse
effect on the interests of the public or the victims
in the event of
the prosecution being stopped or discontinued; any other factor which
in the opinion of the court ought to be taken
into account.
These
factors have not been canvassed in the papers.
[20]
The unreasonable delay in the context of the
Criminal Procedure Act
51 of 1977
is usually dealt with by the trial court. The charges
preferred against the applicant usually form the basis of a
disciplinary
process and not of a criminal nature. I am not sure
whether the Military court in instances of this offence sits as
criminal court
or not. However, in view of the course I prefer to
take in the matter it is not necessary to decide this issue.
[21]
If regard is had to facts of this case there appears to have been an
unreasonable delay in deciding where or not to proceed
with the
complaints. It took the department a year to decide to
prosecute
the applicant, in my view this aspect should have been raised at the
trial court during the preliminary hearing. It was
not raised,
instead dates were arranged to proceed with the matter. I do not
think it is far fetched to attribute the stance of
the applicant to
stop these proceedings to the fact that the witnesses are no longer
employed and interested in the matter.
[22]
The issue of stopping prosecution permanently already enjoys judicial
precedent. I can do no better than quote extensively
from the case
Zanner
v Director of Public Prosecutions, Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) at 50B-J51A-B
where
the Learned Acting Judge of Appeal, as she then was, stated
"[10]
(T)his is, however, a drastic remedy which is grant
ed
sparingly and only for very compelling reasons. Describing the remedy
in Sanderson v the case of
Sanderson
v Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998 (1) SACR 227
(CC)
(1998 (2) SA
38
;
1997 (12) BCLR 1675)
para [38],
where
the Court was dealing with an accused's right to a speedy trial under
s 25(3)(a)
of the interim Constitution, the precursor to s 35(3) (d)
of the Constitution (which, although worded differently, has the same
object), Kriegler J said:
'[J]he
relief is radical, both philosophically and socio-poiitically.
Barring the prosecution before the trial begins and consequently
without any opportunity to ascertain the real effect of the delay on
the outcome of the case is far-reaching. Indeed it prevents
the
prosecution from presenting society's complaint against an alleged
transgressor of society's rules of conduct. That will seldom
be
warranted in the absence of significant prejudice to the accused. An
accused's entitlement to relief such as this is determined
by s
7(4)(a) of the interim Constitution', [the similarly worded precursor
to s 38 of the Constitution.] The learned Judge continued
at para
[39]: 'A bar is likely to be available only in a narrow range of
circumstances, for example, where it is established that
the accused
has probably suffered irreparable trial prejudice as a result of the
delay.' The remedy may be granted in the absence
of trial-related
prejudice, where 'there are circumstances rendering the case so
extraordinary as to make the otherwise inappropriate
remedy of a stay
nevertheless appropriate'.
(See
Wild and Another v Hoffert NO and Others
[1998] ZACC 5
;
1998 (2) SACR 1
(CC)
(1998
(3) SA 695
;
1998 (6) BCLR 656)
para [27]; see also McCarthy v
Additional Magistrate, Johannesburg, and Others
2000 (2) SACR 542
(SCA) ([2000]
4
All
SA 561).)
[11]
Section 35(3)(d) entrenches an accused's right to a speedy trial and
provides:
'Every
accused person has a right to a fair trial, which includes the right
to have their trial begin and conclude without unreasonable
delay.'
The
object of this provision is to protect an accused's liberty, personal
security and trial-related interests (see Sanderson para
[20];
Wild
para
[5]).
[12]
The protection of these three rights is described in a judgment of
the Supreme Court of Canada, R v Morin (1992) 8 CRR (2d)
193 at 202,
quoted with approval in Sanderson para [20], as follows:
'The
right to security of the person is protected . . . by seeking to
minimise the anxiety, concern and stigma of exposure to criminal
proceedings. The right to liberty is protected by seeking to minimise
exposure to the restrictions on liberty which result from
pre-trial
incarceration and restrictive bail conditions. The right to a fair
trial is protected by attempting to ensure that proceedings
take
place while evidence is available and fresh.' (See also Barker v
Wingo, Warden
[1972] USSC 144
;
407 US 514
(1972) at 532.) Trial-related prejudice
refers to prejudice suffered by an accused mainly because of
witnesses becoming unavailable
and memories fading as a result of the
delay, in consequence whereof such accused may be prejudiced in the
conduct of his or her
trial.
(See
S
v
Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC)
(2000 (4) SA
1078
;
2000 (11) BCLR 1252)
para [51].)"
[23]
If one were to investigate the trial related prejudice by the
applicant one can only speculate in this regard. There is no
evidence
that he has witnesses which he would have called but have now
disappeared or that their memories have now faded. He has
not is
established that he has suffered irreparable trial prejudice as a
result of the delay.
[24]
Regard being had to the above principles and applying the same to the
facts of the present matter I am not persuaded that it
has been shown
that there are trial related prejudicial issues The only issue to me
which appears to have been shown is the fact
that the State witnesses
are no longer interested in the matter. The department has decided
not to proceed with charges concerning
Ms Smith.
[25]
It is for the Military Prosecuting authority to decide whether or not
to proceed with the matter as that function has been
assigned to it
by section 22 quoted above. In my view the applicant is free also to
raise the point once again before the trial
court at the commencement
of the proceedings. I am therefore not persuaded that this is a
typical case where this drastic remedy
should be granted.
[26]
Concerning the relief relating to the upliftment of "suspension",
Mr Barnardt argued that the special leave granted
to the applicant
was effectively a suspension. However, it does not appear to me that
the applicant is on suspension. There is
a certain procedure to be
followed when a member is to be suspended in terms of the policy.
Firstly, the member concerned must
be given hearing before a
suspension can be effected. Secondly, other measures must first be
considered such as transfer, warning
not to interfere with witnesses
and granting of leave to the member concerned, in this case the
latter has been considered appropriate.
Therefore the question that
remains is whether the person who granted it had authority to do so.
[27]
Mr Barnardt argued that even if it were to be ruled that the
applicant is on special leave such leave was invalidly granted
in
that the person who granted it had no power to do so. It is only the
Chief
of the South African National Defence Force who has the power to
grant such leave.
[28]
In my view if the decision, as appears from the letter addressed to
the applicant putting him on special leave, was taken by
the Chief of
the South African National Defence, it is not necessary that he
should communicate the same himself to the member
concerned. In the
letter addressed to the applicant it is stated
"that
the CSANDF has authorised CAF to order the leave on instruction on
CSANDF's behalf and that CSANDF will furnish the relevant
documentation to him in due course."
From
the contents of this letter it is therefore clear that the CSANDF
took the decision himself. The fact that it was communicated
to the
applicant by someone else is irrelevant.
1
Accordingly the argument cannot be sustained.
[26]
Furthermore I was informed from the bar by Counsel for the applicant
that it is a process for the applicant to resume his duties.
Certain
formalities must be negotiated. I am therefore of the opinion that
the applicant should approach the Chief of the Defence
Force to
reconsider his decision in this regard in the light
'
See Jeewa v Donges NO 1950(3) SA 414(A) at 4201
of
the fact that the witnesses are no longer employees of the
department. Only thereafter should consideration be given as to
whether
the decision taken in that regard, if it is negative, should
be reviewed and set aside.
[27]
As regards costs the general rule is that they should follow the
event. Mr Dreyer SC for the respondents argued that this is
case
where the respondents have considered it to be wise and a
precautionary measure to employ two Counsel and therefore in the
event they are successful I should award costs of two counsel.
Although i agree that employment of two Counsel was not unreasonable
I have decided in the exercise of my discretion not to award costs of
two Counsel. In the result I make the following order.
1.
The application is dismissed with costs.
B
R TOKOTA
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARING: 9 JUNE 2010.
DATE
OF JUDGMENT:
Appearances
For the applicant: Adv HM Barnadt instructed by Marinus Incorporated
For
the respondents Adv JH Dreyer SC
Adv
E Britz Instructed by the State Attorney Pretoria
1
See
Jeewa v Donges NO 1950(3) SA 414(A) at 4201