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Panayiotou v S and Others (CC26/2016) [2016] ZAECPEHC 50; 2017 (1) SACR 354 (ECP) (20 September 2016)

75 Reportability
Criminal Procedure
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Brief Summary

Access to documents — Criminal procedure — Applicant seeking disclosure of documents from case docket prior to trial — Central issue whether applicant established a right to further discovery — Applicant indicted on multiple charges, including murder — Application for access to specific sections of the docket and affidavits — Respondents opposing on grounds of relevance and necessity for fair trial — Court held that an accused is entitled to access documents that may bear upon the charges, with the burden on the State to justify non-disclosure.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a substantive application in the High Court (civil in nature) brought by an accused person in the context of pending criminal proceedings. The application sought orders compelling the production and disclosure of specified materials associated with the police investigation docket and related witness statements, and it further raised issues concerning the propriety and effect of subpoenas duces tecum issued by the applicant.


The applicant, Mr Christophoros Constantinou Panayiotou, had been arraigned for trial on seven charges arising from the murder of his wife. The first respondent was the State, the second respondent was the Director of Public Prosecutions (as cited in the re-issued application), and the Minister of Police intervened as an intervening party primarily in relation to subpoenas issued to members of the South African Police Service.


Procedurally, the applicant was indicted in the High Court on 26 July 2016 following earlier appearances in the magistrates’ court. The matter was enrolled for a High Court pre-trial hearing on 25 August 2016, as part of the Eastern Cape Division’s practice to facilitate finalisation of pre-trial matters in lengthy trials. Shortly before that pre-trial hearing, the applicant launched an application for access to a broad range of documents beyond those already furnished by the prosecution. The application was initially set down for 25 August 2016 but was later agreed to be heard on 14 September 2016 after the filing of opposing papers.


The applicant withdrew the initial application on 26 August 2016 and on the same day re-issued an application in identical terms, with the principal change being the citation of the Director of Public Prosecutions as a respondent. As the matter developed, the relief sought was progressively narrowed through a notice of amendment dated 9 September 2016 and concessions made in argument. A further procedural complication arose when the applicant caused a number of subpoenas duces tecum to be issued and served on police officials, prompting objections and ultimately an intervention application by the Minister of Police.


The general subject-matter of the dispute concerned the extent of an accused person’s entitlement to obtain further “discovery”-type relief in advance of a criminal trial, specifically access to portions of a police docket not ordinarily disclosed (the B and C sections), and the permissible use of subpoenas to obtain documents prior to trial and in relation to an interlocutory application.


2. Material Facts


It was common cause that the applicant faced trial in the High Court on seven charges, including conspiracy to commit murder, kidnapping, murder, robbery, and possession of firearms and ammunition, arising from the murder of his wife. The court treated this as background relevant to the procedural setting, rather than as factual matters bearing on guilt.


The court accepted as undisputed that the Director of Public Prosecutions, in line with established pre-trial practice, had made available to the defence copies of the investigation docket materials upon which the prosecution would rely, described as those contained in the A section of the docket (witness statements, expert reports, and documentary evidence). The applicant nonetheless sought additional access to materials in the police docket that were not provided as part of that disclosure.


By the commencement of the hearing, the application had been narrowed to a request for four categories of material: access to the B and C sections of the police docket; specified cellphone billing records linked to a witness (Ndedwa); and the affidavits/statements of Theresa Botha and Lt Rhynhardt Swanepoel. During argument, the applicant abandoned the request for the witness Ndedwa’s cellphone billing information after it emerged from the investigating officer’s evidence that the investigation team had not obtained such billing records, and that the prosecution was therefore not in possession of them. The court recorded that the only means of obtaining the information from the service provider would have been through a subpoena in terms of section 205 of the Criminal Procedure Act 51 of 1977, but that the investigators could not meet the requirements for such process given what had been established.


In relation to the affidavits/statements of Botha and Swanepoel, the applicant maintained the request for production despite an apparent acceptance that the prosecution was not yet in possession of the statements at the time of the hearing. The prosecution, however, provided an undertaking that it would be in possession of both statements by 23 September 2016 and would immediately make them available to the defence.


The remaining central factual dispute concerned whether the applicant had established a basis for access to the B section (internal police reports, memoranda, certain correspondence including section 205 applications, and related administrative records) and the C section (the investigation diary). The Deputy Director of Public Prosecutions explained the nature of the B section and asserted that it contained no material that was exculpatory or that prima facie favoured the applicant, and that correspondence with evidential value was filed in the A section and had already been disclosed. The applicant’s reply suggested that section 205 applications in the B section might reveal information relevant to cellphone data already in the applicant’s possession, but the court characterised the broader relevance claim to the entire B section as speculative.


A further set of undisputed material facts related to subpoenas. On 29 August 2016, the applicant caused 14 subpoenas duces tecum to be issued, directed at various members of the South African Police Service (including those identified in the original notice of motion), requiring them to attend in person on 14 September 2016 and to produce specified documents. The subpoenas were issued while the applicant was still seeking, by motion proceedings, to compel the respondents to produce many of the same documents. The applicant subsequently indicated, by notice of amendment on 9 September 2016, that he would no longer pursue significant portions of that relief. The Minister of Police intervened to challenge the subpoenas as irregular, alternatively to seek an order that compliance be suspended until the underlying dispute was resolved.


It was accepted in argument that the application before the court on 14 September 2016 would be determined on the affidavits, and that the subpoenaed documents had no bearing on the decision in that application. The applicant’s explanation for issuing subpoenas for 14 September 2016 was that he sought access to documents before the criminal trial, which was scheduled to commence on 11 October 2016.


3. Legal Issues


The first central legal question was whether, in the circumstances of a pending criminal trial, the applicant had made out a case for an order compelling disclosure of materials from the police docket beyond what the prosecution had already furnished, specifically the B and C sections. This required the court to determine the scope and limits of pre-trial access grounded in an accused’s right to a fair trial, and whether the applicant had demonstrated prima facie relevance sufficient to overcome the ordinary limitations on disclosure (including the attenuated form of litigation privilege recognised in criminal proceedings).


A related legal question concerned the applicant’s entitlement to statements/affidavits not yet in the prosecution’s possession, and how an undertaking by the prosecution affected the relief to be granted.


The second major legal question was whether the subpoenas duces tecum issued by the applicant were authorised by the Rules in the form and manner used, particularly whether an accused may cause witnesses to attend and produce documents on a date other than the trial date (here, the date of hearing of a civil interlocutory application), relying on Rule 38(1)(b) and the ability to obtain documents “as soon as possible.”


These disputes involved a combination of law (interpretation of constitutional fair trial rights and procedural rules governing subpoenas), application of law to fact (whether the applicant’s allegations established prima facie relevance and whether the subpoenas were irregular in the circumstances), and an element of discretionary or evaluative judgment (whether to set aside subpoenas as an abuse of process or to fashion alternative relief).


4. Court’s Reasoning


The court approached the access-to-docket issue through the constitutional and common-law framework articulated in Shabalala and Others v Attorney-General, Transvaal and Another 1995 (2) SACR 761 (CC) and later authority, including National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA). It noted that a police docket is typically divided into three sections: A (witness statements, expert reports, documentary evidence), B (internal reports, memoranda, and administrative or investigatory correspondence), and C (the investigation diary). While Shabalala rejected a blanket “docket privilege” and recognised that an accused should ordinarily have access to exculpatory material and relevant docket contents required for a fair trial, the court emphasised that this does not amount to a blanket right to all information in the prosecution’s possession.


Relying on King, the court underscored that litigation privilege and “work product” concepts persist in criminal matters in an attenuated form, and that criminal “discovery” requires a compromise. The court drew from King the principle that a mere assertion of entitlement to “relevant” documents, without prima facie facts demonstrating relevance to guilt or defence, is insufficient. It further reasoned that certain materials may be relevant to the prosecution’s internal preparation but still not be relevant “for the purpose of making full answer and defence.”


Applying those principles, the court found that the applicant had not set out in his papers, with the requisite specificity, why the B section was needed for the exercise of fair trial rights. The court examined the correspondence and affidavits relied upon and concluded that, while detailed motivations were advanced regarding other information and the C section, the request for the B section lacked a factual foundation establishing relevance in the King sense. The applicant’s reply relied on the possibility that section 205 applications in the B section might be useful in relation to cellphone information, but the court treated this as speculative, particularly because the applicant did not tailor the relief to the particular class of documents allegedly relevant, and instead persisted in seeking the entirety of the B section.


In the absence of prima facie facts pointing to relevance, the court accepted the prosecution’s assertion that the B section contained no exculpatory material and no material prima facie favouring the applicant, and that evidential correspondence had been placed in the disclosed A section. On this basis, the court held that the B section was not discoverable and refused that aspect of the relief.


The court adopted a different approach to the C section (the investigation diary). It accepted, with reference to the police standing order description, that the C section serves as a chronological record of investigative steps and may function as an index and reference where the investigation process is challenged. The court considered the applicant’s correspondence in which he indicated an intention to challenge the conduct of the investigation from the outset and to seek exclusion of allegedly implicating evidence on the basis of how it was obtained. Without assessing the merits of that contemplated challenge (which the court treated as a matter for the trial court), it found that the applicant had, at least prima facie, signalled that aspects of the investigation would be put in issue. In that context, and in the absence of a justified ground of non-disclosure advanced by the respondents, the court concluded that the Shabalala principle favoured granting access to the C section as material required to enable the accused to adduce and challenge evidence at trial.


Regarding the statements of Theresa Botha and Lt Swanepoel, the court accepted the prosecution’s undertaking that the statements would be available by 23 September 2016 and would be provided immediately upon receipt. It treated this as a sufficient basis to grant relief in line with the undertaking.


On the subpoenas duces tecum, the court began by restating the statutory and rules-based sources permitting compulsory process: section 179(1) of the Criminal Procedure Act 51 of 1977 (enabling the prosecutor or an accused to compel attendance or production in criminal proceedings), section 35 of the Superior Courts Act 10 of 2013 (enabling parties to procure attendance/production in proceedings before superior courts), and the relevant rules, including Rule 38 and the criminal procedure rules 54 and 55. Although there was argument about whether Rules 54 and 55 contemplated subpoenas at the instance of an accused, the court considered it unnecessary to decide that issue given that the applicant had, in fact, utilised Rule 38.


The court accepted that an accused may use the machinery of subpoenas to secure witnesses and documents for the criminal trial, and that Rule 38 must be applied mutatis mutandis to criminal trials. It also accepted that subpoenas may be used in civil proceedings to secure evidence for a civil trial. The decisive issue, however, was whether subpoenas issued for the pending criminal trial entitled the applicant to compel attendance and document production on the date of the interlocutory application hearing, especially where the documents were irrelevant to the determination of that application.


Emphasising the nature of a subpoena as a court order designed to secure evidence in trial proceedings, the court held that Rule 38(1)(a) and (b) require that attendance and production be compelled “at the trial.” It reasoned that this serves substantive functions: disputes about compellability, competence, privilege, relevance, and admissibility are matters for the trial court, and similarly, disputes about compelled production should be addressed by the court receiving the evidence. The court rejected the applicant’s reliance on Rule 38(1)(b) as authorising the nomination of a different attendance date (here, 14 September) merely because documents must be handed to the registrar “as soon as possible.” It interpreted that phrase as facilitating earlier delivery prior to the trial date, without changing the fundamental requirement that the subpoena compels production at trial.


The court considered the authority of Trust Sentrum (Kaapstad) Edms Bpk v Zevenberg 1989 (1) SA 145 (C) and treated it as explaining the purpose of Rule 38(1)(b), namely to reduce trial delays by enabling earlier inspection, but not as authority permitting a party to compel attendance on a non-trial date. It therefore concluded that the procedure adopted—compelling attendance at the application hearing—was not authorised by the Rules and was irregular.


The court then addressed whether to set aside the subpoenas. It referred to statutory power in section 36(5) of the Superior Courts Act 10 of 2013 and the court’s inherent jurisdiction to set aside unsustainable subpoenas or subpoenas constituting an abuse of process. The court criticised the conduct of the applicant’s attorney in issuing subpoenas while aware that disputes about production remained live and described the conduct as unacceptable and to be deprecated. Nevertheless, it declined to find that the subpoenas were used for a purpose extraneous to the objectives of subpoenas (namely obtaining evidentiary material for trial), and therefore did not treat them as an abuse warranting setting aside.


As an evaluative remedy, the court accepted that setting the subpoenas aside would serve little practical purpose beyond marking disapproval. It considered it preferable, and consistent with the Minister’s suggestion, to defer compliance to the criminal trial date so that any disputes over production could be determined by the appropriate forum, namely the trial court. The court thus fashioned an order deferring the attendance/production date to the trial date while making clear that this did not exempt subpoenaed persons from the obligations described in Rule 38(1)(b) concerning early handover to the registrar.


Finally, the court made no costs order. It noted that no party sought costs and indicated that, had costs been in issue, it would have considered a punitive order to reflect dissatisfaction with the applicant’s conduct, but it did not make such an order.


5. Outcome and Relief


The court granted partial relief. It ordered the second respondent to provide the applicant with a copy of the C section (investigation diary) of the investigation docket within 10 days of the order.


It directed the second respondent, in accordance with the undertaking given, to provide the applicant with copies of the statement of Theresa May Botha (with accompanying documents and digital presentations) and the statement of Lt Rynhardt Swanepoel on or before 23 September 2016.


In respect of each of the subpoenas duces tecum issued under case number CC26/2016 requiring attendance on 14 September 2016, the court ordered that the date for attendance and production of the specified documents be deferred to the trial date, being 11 October 2016, subject to the provisions of Rule 38(1)(b).


The court made no order as to costs.


Cases Cited


Shabalala and Others v Attorney-General, Transvaal and Another 1995 (2) SACR 761 (CC)


R v Steyn 1954 (1) SA 324 (A)


National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA)


Minister of Police v Premier of the Western Cape and Others 2014 (1) SA 1 (CC)


Trust Sentrum (Kaapstad) Edms Bpk v Zevenberg 1989 (1) SA 145 (C)


Attorney-General, Transvaal v Kader 1991 (4) SA 727 (A)


South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) Ltd 2007 (6) SA 628 (D)


Beinash v Wixley 1997 (3) SA 721 (SCA)


Legislation Cited


Constitution of the Republic of South Africa, 1996, section 35


Criminal Procedure Act 51 of 1977, sections 179(1), 187, 189, 205


Superior Courts Act 10 of 2013, sections 35, 36


Rules of Court Cited


Uniform Rules of Court, Rule 4


Uniform Rules of Court, Rule 38(1)(a) and Rule 38(1)(b)


Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa in Criminal Cases, Rule 54(5)


Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa in Criminal Cases, Rule 55


Held


The court held that the applicant did not establish, on the papers, prima facie facts demonstrating that the contents of the B section of the police docket were relevant in the sense required for pre-trial disclosure in order to exercise fair trial rights, and therefore the applicant was not entitled to an order compelling disclosure of that section.


The court held that the applicant had, at least prima facie, shown an entitlement to access the C section (investigation diary) because the applicant signalled an intention to challenge aspects of the police investigation at trial, and no justified ground for non-disclosure was advanced. Access to the C section was therefore ordered.


The court held that subpoenas duces tecum issued for the purposes of the pending criminal trial could not properly compel the attendance of witnesses and production of documents on the date of the interlocutory application hearing, because Rule 38 compels production at the trial, and Rule 38(1)(b) does not authorise the nomination of an alternative attendance date. The subpoenas were thus irregular in that respect, but the court declined to set them aside and instead deferred compliance to the trial date.


The court granted relief consistent with the prosecution’s undertaking to provide the statements of Botha and Swanepoel by 23 September 2016, and made no costs order.


LEGAL PRINCIPLES


An accused person’s fair trial rights may ground entitlement to pre-trial access to police docket contents, but the entitlement is not a blanket right to all information in the hands of the prosecution; disclosure is shaped by relevance to making full answer and defence and by recognised limitations, including an attenuated form of litigation privilege in criminal proceedings.


A request for disclosure of withheld docket materials requires more than a general assertion of relevance. The applicant must place before the court prima facie facts demonstrating that the documents sought are relevant in the sense that they may be important to enable the accused properly to adduce and challenge evidence at trial.


Internal police reports, memoranda, and administrative “work product” material commonly contained in the B section may fall outside what is discoverable where relevance to the accused’s guilt or defence is not established on a prima facie basis.


Where an accused signals, on a prima facie basis, that the investigation process will be put in issue at trial, access to the investigation diary (C section) may be justified as necessary to enable the accused to adduce and challenge evidence, absent a justified basis for non-disclosure.


A subpoena duces tecum is a compulsory court process designed to secure evidence for trial proceedings. Under Rule 38, subpoenas must require attendance and production at the trial, and Rule 38(1)(b) facilitates early handover of documents to the registrar “as soon as possible” prior to trial, but does not authorise compelling attendance or production on a date other than the trial date.


Where subpoenas are irregular in their timing or use, the court may exercise its inherent powers to set them aside or craft appropriate relief. A finding of abuse of process requires use of court procedures for an extraneous purpose; irregularity alone does not necessarily justify setting aside subpoenas if a less disruptive remedy better serves the interests of justice.

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[2016] ZAECPEHC 50
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Panayiotou v S and Others (CC26/2016) [2016] ZAECPEHC 50; 2017 (1) SACR 354 (ECP) (20 September 2016)

IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NO: CC 26/2016
Date
heard: 14 September 2016
Date
delivered: 20 September 2016
In the
matter between
CHRISTOPHOROS
CONSTANTINOU PANAYIOTOU

Applicant
And
THE
STATE

First Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent
THE
MINISTER OF POLICE

The
Intervening
Party
JUDGMENT
GOOSEN,
J.
[1]
The applicant, who has been arraigned for trial
on seven charges arising from the murder of his wife, seeks orders
compelling the
second respondent to disclose and to furnish copies of
certain documents contained in the case docket. The first and second
respondents
oppose the relief sought. The central issue to be
determined is whether, in the circumstances, the applicant has made
out an appropriate
case for the granting of what amounts to further
“discovery” in the context of a pending criminal trial.
[2]
It is necessary to set out by way of background
the circumstances in which the application was brought.
[3]
The applicant was indicted on seven counts,
including conspiracy to commit murder, kidnapping, murder, robbery
and possession of
firearms and ammunition, before this court on 26
July 2016. Prior to this the applicant, along with a number of
co-accused, made
appearances in the magistrates’ court before
the matter was transferred to this court.
[4]
The procedure followed by the Director of Public
Prosecutions in relation to matters enrolled upon the High Court
trial roll, is
to arrange for one or more appearances before this
court as part of a procedure to facilitate the finalisation of all
pre-trial
procedures. Upon service of the indictment the prosecution
makes available to the defence copies of the investigation docket,
specifically
such documents and statements and reports as are
contained in the docket and upon which the prosecution is to be
based.
[5]
The case is then set down for what is termed a
pre-trial hearing at which a determination is made whether the matter
is ready for
trial and whether it may formally be allocated a trial
date. This procedure is, particularly in matters such as the present
where
the duration of the trial is expected to be lengthy, directed
to ensure that the matter may, as far as is reasonably possible,
commence and then proceed to finality in a single allocated trial
period. In accordance with this procedure the matter was enrolled
for
a pre-trial hearing on 25 August 2016.
[6]
Shortly before that hearing the applicant
launched a substantive application for access to a broad range of
documents in addition
to those already furnished by the prosecutor.
The application was set down for hearing on the day of the pre-trial
hearing. However,
in the light of the substantive nature of the
application and its status as civil proceedings, it was agreed that
the application
be heard on 14 September after opposing papers had
been filed.
[7]
On 26 August 2016 the applicant filed a notice
withdrawing the application and on the same day caused an application
in identical
terms to be issued. The only difference being that the
Director of Public Prosecution was cited in the application as the
second
respondent. The respondents filed a notice of intention to
oppose the application on 6 September 2016 and on the same date filed

answering affidavits by the second respondent as well as a supporting
affidavit by Swanepoel, the investigating officer in the
criminal
matter.
[8]
On 9 September 2016 a Notice of Amendment was
filed by the applicant indicating the applicant’s intention to
delete paragraphs
2.1, 2.2, 3, 4 (a), 4 (b) (i), 4 (c) to (g), 5, 6
and 9 of the prayers set out in the notice of motion and further
stating that
the applicant will no longer seek such relief. I shall
return to the content of the relief sought in these paragraphs
hereunder.
On the same day, 9 September 2016, the applicant filed its
replying affidavit.
[9]
It should be mentioned here that on 8 September
2016 the first and second respondents filed a notice of irregular
proceedings which
related to the fact that the applicant had caused
to be issued and served a number of subpoenas
duces
tecum
on various members of the South African
Police Service requiring them to attend the hearing on 14 September
2016 to give evidence
and to produce certain documents specified in
the respective subpoenas
duces tecum
.
[10]
Included in the case file are 14 subpoenas
duces
tecum
issued by the registrar of this court
and furnished to the sheriff of the court for service on 29 August
2016. The persons in respect
of whom the subpoenas were issued
include the 12 persons named in paragraph 3 of the notice of motion
and, it appears, the relevant
officials who are the commanding
officers of the two police stations referred to in paragraph 2.1 of
the notice of motion.
[11]
On 12 September 2016 the Minister of Police filed
an application to intervene in the proceedings together with a notice
of irregular
proceedings setting out the basis of the objection to
the subpoenas issued by the applicant. In the notice of motion
seeking leave
to intervene in the proceedings the Minister sought
orders that the subpoenas referred to above be set aside as being an
irregular
step in the proceedings, alternatively that it be ordered
that the members of the police services need not comply with the
terms
of the subpoenas until the underlying dispute between the
parties has been resolved by order of this court. The applicant filed

a notice to oppose the relief sought by the Minister on the basis
that the subpoenas are not irregular and that they do not pre-empt

any relief sought in the notice of motion issued by the applicant.
[12]
At the commencement of the hearing the Minister
moved for an order granting leave to intervene. This was not opposed
by the applicant.
Accordingly the Minister was granted leave to
intervene and is accordingly cited as such.
[13]
I shall deal with the issues raised in this
matter under separate headings as accords with the manner in which
the application was
argued before me.
The
access application
[14]
As I have already indicated the ambit of the
access application became more and more attenuated as it progressed.
At the commencement
of the hearing, the applicant sought only
disclosure of (a) the so-called B and C sections of the case docket;
(b) the cellphone
billing information or records of cell phone
number, 0834919039, being the cellphone of the witness Ndedwa; (c)
the affidavit of
Theresa Botha; and (d) the affidavit of Rhynhardt
Swanepoel.
[15]
During the course of argument applicant’s
counsel, Mr Hattingh, abandoned the order sought in respect of the
cellphone billing
information in respect of the witness Ndedwa. The
reason for doing so appeared to be the unanswerable basis of the
second respondent’s
opposition to the order. In the supporting
affidavit deposed to by Swanepoel it was stated that the cell phone
number belonging
to Ndedwa was not used during the relevant period
and that the investigation established that no telephonic contact was
made between
that number and any of the telephone numbers of the
‘role players’. Accordingly the billing information was
not obtained
by the investigation team. The prosecution was therefore
not in possession of the requested documents. In argument, Mr Stander
pointed out that the only means by which the information could be
obtained from the relevant service provider was by way of issuing
a
subpoena in terms of s 205 of the Criminal Procedure Act. In the
light of the information at the disposal of the investigators,
it was
not possible to meet the requirements of s 205 in relation to these
records. It was pointed out in the affidavit of Swanepoel
that, with
reference to the cell phone records of those persons whom the state
alleged played a role in the commission of the offences,
it was
possible to establish that the witness Ndedwa’s telephone
number 0834919039 was not used to make contact with any
of the
relevant persons.
[16]
In regard to the affidavits of Botha and
Swanepoel the applicant persisted with seeking an order compelling
production, whilst apparently
accepting that the prosecution is not
yet in possession of the two affidavits. Mr Stander indicated that
the prosecution would
be in possession of both of the statements by
23 September and further undertook to immediately make them available
to the defence.
[17]
With this in mind the central issue raised in
respect of the access application was therefore the applicant’s
right of access
to the B and C sections of the case docket. Mr
Stander’s opposition to making these portions of the docket
available to the
applicant was founded upon the assertion that the
applicant had not set out with any particularity in his papers why
the said documents
would be required, nor established that the
documents contained in the investigation docket in the two sections
concerned bear
any relevance to the matters to be addressed at trial.
It was also argued that the applicant’s reliance upon the
provisions
of the relevant Standing Orders which deal with docket
management and the contents of the various portions of a police
investigation
docket serve merely as guidelines as to what the
portions should contain and in any event did not support the
applicant’s
assertion that these documents would be necessary.
Mr Stander further submitted that the allegations pertaining to the
assertion
of the applicant’s right to a fair trial and the
applicant’s assertion of the relevance of the documents are, at
best,
generally asserted in the applicant’s founding papers and
that upon close analysis no basis is established upon which it could

be found that the requested documents are reasonably required for the
purpose of ensuring that the applicant has a fair trial.
[18]
In countering these arguments Mr Hattingh argued
that it is not necessary for the applicant to establish that the
documents he seeks
will indeed be relevant and therefore potentially
admissible at the trial. All that the applicant needs to establish in
asserting
the right to a fair trial is that there are documents in
the possession of the respondents which would bear upon the subject
matter
of the charges and the police investigation conducted against
the applicant and which are not subject to any accepted ground of

justification for nondisclosure that the prosecution might assert. In
those circumstances the legal principles applicable to disclosure
of
documents establish a balance in favour of an accused person and,
accordingly, in favour of disclosure irrespective of the
considerations of relevance at the stage of pre-trial disclosure of
information.
[19]
In
Shabalala and others v
Attorney General, Transvaal and another
[1]
the Constitutional Court was called upon to consider an accused’s
right of access to the contents of the police docket prior
to trial
in the context of an assertion of a right to a fair trial. The court
held that the assertion of a blanket docket privilege
[2]
was unreasonable and unjustifiable in an open and democratic society.
The court declared that ordinarily an accused person should
be
entitled to have access to documents in the police docket which are
exculpatory (or which are
prima facie
likely to be helpful to the defence) unless, in very rare cases, the
State is able to justify the refusal of such access on the
grounds
that it is not justified for the purposes of a fair trial.
[3]
The court further declared that ordinarily the right to a fair trial
would include access to the statements of witnesses (whether
or not
the State intends to call such witnesses),
and
such of the contents of the police docket as is relevant in order to
enable an accused person properly to exercise that right
,
but the prosecution may, in a particular case, be able to justify the
denial of such access on the grounds that it is not justified
for the
purposes of a fair trial.
[4]
[20]
A police docket normally consists of three
sections: section A, which contains the statements of witnesses,
expert reports and documentary
evidence; section B which contains
internal reports and memoranda and section C, which contains the
investigation diary
[5]
.
[21]
An accused person’s ordinary entitlement to
access to documents in the docket is not restricted to statements of
witnesses
or experts (i.e. those contained in the A section of the
docket) but extends to all documents that might be important for the
accused
to properly adduce and challenge evidence.
[6]
[22]
In the
King
matter the court was required to consider whether an accused is
entitled as of right to a full description of each of the documents

to which he was denied access (i.e. the B and C sections of the
docket), together with a detailed statement setting out the basis

upon which access was denied.
[23]
The court noted that an accused person does not
enjoy a blanket right to all information in the hands of the
prosecution,
Litigation privilege does still exist, also in criminal cases, albeit
in an attenuated form as a result of these limitations. Litigation

privilege is in essence concerned with what is sometimes called work
product and consists of documents that are by their very nature,

irrelevant because they do not comprise evidence or information
relevant to the prosecution or defence.
[7]
[24]
“
Discovery in criminal cases”, the
court noted, “must always be a compromise.”
[8]
Although the
King
matter was not concerned with the assertion of a right of access to
the documents contained in the B and C sections of the docket
(as
opposed to a claim for access to a ‘motivated index’ of
the sections) the court’s treatment of the assertion
of the
right to a fair trial as founding the right to the index is
instructive. The court noted that King’s case was built
on the
general submission that one can assume that all withheld documents
are in some way relevant to the prosecution. He accordingly
asserted
an entitlement to be informed of the reason for nondisclosure on that
basis. The court however, in dealing with the relevance
of
non-disclosed documents, noted that ordinarily documents tendered by
the prosecution which are relevant to the accused’s
case, or
which are likely to comprise the case against the accused are those
contained in section A of the docket and are disclosed
on the basis
of the rule in
Shabalala
.
[9]
[25]
A document, however,
“… may be relevant to the prosecution, without being
relevant to the accused’s guilt or defence. For instance,
King
seeks a motivated list of opinions by prosecutors, notes on legal
research, and copies of judgments (reported and unreported).
These
documents are clearly relevant to the prosecution, but they are not
relevant “for the purpose of making full answer
and defence”.
In other words, as mentioned at the outset of this judgment, most of
the material covered by litigation privilege
in criminal cases would
in any event not be discoverable because the material is not germane
to the conduct of the trial, i.e.
is not relevant in the sense
discussed.
[10]
[26]
The court accepted that the mere assertion of a
right of access to “relevant” documents without any
prima
facie
facts to establish relevance is
insufficient.
[11]
[27]
The applicant seeks access to all of the
documents contained in the B and C sections of the case docket.
Reliance is placed on the
Police Standing Orders 321 and 323 relating
to case docket management to assert his entitlement to the documents.
Standing Order
321 describes the divisions in a docket as “clip”
A, B and C. It provides that the Clip B of the docket should include

correspondence in connection with the case, reports such as negative
fingerprint reports, reports from Prison Boards etc., replies
from
other police stations and newspaper clippings of any value, as well
as all documents not falling under A or C.
[28]
The supporting affidavit of attorney Griebenouw
does not deal with the basis upon which the documents included in the
B section
are sought by the applicant. His affidavit, however, refers
to correspondence in which the B section was requested. A reading of

the relevant correspondence, however, reveals only the request for
access to the B section of the case docket without any indication
of
the relevance of that class of documents to the applicant’s
right to adduce and challenge evidence. The correspondence
deals at
length with specific requests for documents or information not
contained in the B section of the docket as well as the
applicant’s
motivation for seeking disclosure of the C section. There is however
no treatment of the basis upon which the
B section is required.
[29]
In the opposing affidavit filed by the Deputy
Director of Public Prosecutions the following is stated in relation
to the contents
of the docket and the basis for opposition to
disclosure of the B and C sections:
8. The “B” section of the case docket contains
8.1 internal police status reports;
8.2 internal police memorandums;
8.3 correspondence with various stakeholders, including applications
in terms of Section 205 of Act 51 of 1977;
9. The balance of the documents in the “B” section are
covering sheets and police nodal point records which, like the

investigation diary, are neither exculpatory nor inculpatory, nor do
they
prima facie
favour the Applicant. Access thereto is not
justified for the purpose of enabling the applicant properly to
prepare his defence.
These documents are, in any event, also not
relevant to the Applicant’s guilt or defence.
10. Correspondence with evidential value that might or will be used
in court, must be filed in the “A” section of the
docket
as set out in the Standing Order.… This has been done and that
correspondence has been made available to the Applicant.
11. The “C” section of the docket is a record of events
with reference to documents filed in the case docket. The Applicant

is in possession of all the documents in the A section and the
description has been provided
infra
of those in the B section
of
this
case docket. The Police Standing Orders categorically
state that it should not be necessary for a prosecutor to refer to
the B
and C sections of the case docket at all.
[30]
In reply Griebenouw refers to the statement that
the B section contains the s 205 applications and suggests that these
may disclose
information relative to the service providers and cell
phone holders in respect of the cell phone records already in the
applicant’s
possession and that this underlines the relevance
of the documents contained in the B section of the case docket. He
goes on to
state that the other documents in the B section may
therefore also be relevant to the applicant’s case.
[31]
This latter statement reflects the speculative
basis of the assertion of relevance in relation to the B section of
the case docket.
It is striking that the applicant did not seek, in
the light of the contents of the affidavit of the Deputy Director of
Public
Prosecutions, to amend the relief sought in the notice of
motion to specifically require disclosure of the s 205 applications
for
the reasons advanced but persisted with the general assertion of
relevance and the need for disclosure of the entire contents of
the B
section.
[32]
When I consider all of the allegations advanced
by the applicant, both in the affidavits filed and the annexed
correspondence, it
is my view that the applicant has not established
prima facie
facts
which point to the contents of the B section of the case docket as
being relevant in the sense required in the
King
matter. The assertion by the second respondent that the B section
does not contain any material which is exculpatory or which
prima
facie
favours the applicant or is relevant to
the applicant’s guilt or innocence must, in the absence of the
allegation of facts
to the contrary, be accepted. In the
circumstances the B section is not discoverable and the applicant is
not entitled to the order
he seeks.
[33]
Different considerations, however, apply to the C
section. These may be dealt with briefly. The C section contains the
investigation
diary which, according to the Police Standing Order
323,
inter-alia
contains a chronological record of work done on the case; serves as
an index to all statements and documents contained in the case
docket
and serves as a reference in court should any aspect of an
investigation process be brought into question.
[34]
I have already referred to the correspondence
addressed to the second respondent in which the applicant sought
disclosure of the
C section of the case docket. As indicated the
reasons for seeking access are set out in some detail. The
correspondence pertinently
refers to the fact that the applicant
intends to challenge the conduct of the investigation from its
outset, in order to establish
that evidence allegedly implicating him
is, by reason of the manner in which it was obtained to be excluded
at trial. In setting
this out in the correspondence the applicant
has, in my view, signaled an intention to bring into question aspects
of the police
investigation. The merits of the challenge is of course
a matter for the trial court. In the context of a request for access
to
the C section of the docket however, it must be accepted that the
applicant has set out, at least
prima facie
,
an entitlement to such access on the basis that it is required in
order for him to be able to adduce and challenge evidence to
be
presented at trial. In the absence of a justified ground for
non-disclosure raised by the second respondent, the principle in
Shabalala
must apply
and, accordingly, in my view, access to the C section of the
investigation docket ought to be granted.
[35]
In regard to the applicant’s access to the
affidavits of Botha and Swanepoel, the second respondent has
undertaken to furnish
copies of both affidavits when they are
available by no later than 23 September. That aspect of the relief
can accordingly be granted
in accordance with the undertaking given
by the second respondent.
[36]
I turn now to deal with the second aspect of the
present application, namely the subpoenas issued by the applicant.
The
subpoenas
duces tecum
[37]
As already indicated subpoenas were issued in
respect of all of the persons named in paragraph 3 of the notice of
motion for the
documents referred to in that paragraph and in
paragraph 4 the notice of motion. In each instance the person
summonsed to appear
was required to appear.
“ in person before the Registrar of this Court….on
WEDNESDAY the 14
th
day of September 2016 at 09H00, and
thereafter to remain in attendance until excused by the Court, in the
above-mentioned matter,
to give evidence and/or to produce the
following documents, on request of the Applicant in this matter…”
[38]
What follows this is a description of the
particular documents sought from the person concerned. The witness is
then admonished
that, in terms of Rule 38 (1) (b) he is required to
hand over the specified documents, “to the Registrar as soon as
possible”.
[39]
The subpoenas were all issued on 29 August 2016
at a stage when the applicant was seeking orders to compel the
respondents to produce
the specified documents in this application.
It is this fact that prompted the second respondent to file a notice
of irregular
proceedings and prompted the Minister to intervene in
the proceedings. It is common cause that the applicant only
“abandoned”
the relief sought in relation to these
documents on 9 September when he filed both a replying affidavit and
a Notice of Intention
to amend the notice of motion.
[40]
During argument before me Mr Hattingh stated that
the subpoenas had been issued in relation to the criminal trial and
not for purposes
of the hearing of the application which served
before court on 14 September 2016. The witnesses had been subpoenaed
to produce
the documents on this date because the applicant was
entitled to obtain the documents prior to the trial. The only
procedure available
to the applicant was that provided for by Rule 38
of the Rules of Court.
[41]
Section 179 (1) of the Criminal Procedure Act
provides that:
(a) The prosecutor or an accused may compel the attendance of any
person to give evidence or to produce any book, paper or document
in
criminal proceedings by taking out of the office prescribed by the
rules of the court the process of court for that purpose.
[42]
The section, which is consonant with the
constitutional rights conferred by section 35 of the Constitution
conferring upon an accused
person the right to “adduce and
challenge evidence”, entitles an accused person to compel the
attendance of a witness
or the production of a document in criminal
proceedings pending against such accused person.
[43]
This right, also finds expression in section 35
of the Superior Courts Act, Act 10 of 2013, which provides that:
(1) A party to proceedings before any Superior Court in which the
attendance of witnesses or the production of any document or
thing is
required, may procure the attendance of any witness or the production
of any document or thing in the manner provided
for in the rules of
that court.
[44]
The relevant rules regulating criminal
proceedings in the High Court and the issuing of subpoenas are Rules
54 and 55.
[45]
Rule 54 (5) provides:
The subpoena or process for procuring the attendance of any person
before a superior court (other than a Circuit Court) to give
evidence
in any criminal case, or to produce any books, documents or things,
shall be sued out of the office of the registrar of
that court, by
the chief clerk to the Attorney-General (or where the prosecution is
at the instance of a private party, by himself
or his attorney); and
the same shall be delivered to the sheriff, at his office, for
service thereof, together with so many copies
of the subpoena or
process as the persons to be served. In the case of the Witwatersrand
Local Division, the process may also be
served out by the Deputy
Attorney General, Johannesburg, and delivered to the sheriff
concerned.
[46]
It was suggested in argument that Rule 54 (and
for that matter Rule 55 which deals with the process issued in
relation to Circuit
Courts) makes no reference to an accused person
and, accordingly, that the process envisaged by Rule 54 is not one
available to
an accused person. An accused person is, therefore, so
the argument went, required to utilise Rule 38 of the rules.
[47]
I need not decide the issue since it is common
cause that the applicant utilised the procedure provided for by Rule
38. It may be
mentioned that Rule 54 and Rule 55 serve to prescribe
the office out of which the process of court for securing the
attendance
of the witness in criminal trials is to be issued, as is
specifically envisaged by section 179 of the Criminal Procedure Act.
The
Rules provide for different offices to issue the relevant process
by virtue of the different administrative arrangements that apply
in
relation to permanent as opposed to Circuit Courts.
[48]
Rule 38 generally regulates the procedure for
procuring evidence for trial. The relevant portion of the Rule
provides as follows:
(1)          (a) Any
party, desiring the attendance of any person to
give evidence at
trial
, may as of right, without any prior proceeding whatsoever,
sue out from the office of the registrar one or more subpoenas for
that
purpose, each of which subpoenas shall contain the names of not
more than four persons, and service thereof upon any person therein

named shall be effected by the sheriff in the manner prescribed by
rule 4, and the process for subpoenaing such witnesses shall
be, as
nearly as may be, in accordance with Form 16 in the First Schedule.
If any witness has in his possession or control any deed, instrument,
writing or thing which the party requiring his attendance
desires to
be produced in evidence, the subpoenas shall specify such document or
thing and
require him to produce it to the court at the trial.
(b)
Any witness who has been required to produce any deed, document,
writing or tape-recording at the trial
shall hand it over to the
registrar as soon as possible, unless the witness claims that the
deed, document, writing or tape-recording
is privileged. Thereafter
the parties may inspect such deed, document, writing or
tape-recording and make copies or transcriptions
thereof, after which
the witness is entitled to its return.
(Emphasis added)
[49]
I accept that the applicant, as an accused person
in pending criminal proceedings, is entitled to utilise the machinery
provided
by s 179 (1) of the Criminal Procedure Act as read with the
rules of court, including Rule 54 and Rule 38, to sue out of the
office
of the registrar one or more subpoenas requiring the
attendance of witnesses and or the production of documents at the
trial of
the pending criminal proceedings. For this purpose Rule 38
must be applied
mutatis mutandis
to the circumstances of a criminal trial.
[50]
I accept also that the applicant as a party to
proceedings, in this case proceedings which are civil in nature, is
entitled to utilise
the machinery provided by section 35 of the
Superior Courts Act as read with rule 38 to secure the attendance of
witnesses and
/or the production of documents at trial proceedings to
which the applicant is a party.
[51]
The question that arises is whether the issue of
the subpoenas in the particular circumstances, i.e. in the exercise
of the right
of an accused person to secure the attendance of
witnesses at the pending criminal trial entitled the applicant sue
out subpoenas
and cause the attendance of witnesses and or the
production of documents at the hearing of application proceedings to
which the
applicant is a party.
[52]
Before dealing with this aspect it is necessary
to deal briefly with the circumstances in which the subpoenas were
issued.
[53]
On 29 August 2016, on the same day that the
re-issued application was served upon the second respondent, the
applicant’s attorney
caused subpoenas to be issued in respect
of the production of documents which formed the subject matter of the
application. In
the replying affidavit attorney Griebenouw explains
the process as follows:
5. As background to what follows infra, the following:
5.1 This application was initially set down for hearing on 25 August
2016 and the papers were timeously served on the Deputy Director
of
Public Prosecutions.
5.2. Mr Stander representing the State however, when appearing on the
25
th
of August 2016, which was also the date of the
pre-trial hearing, indicated that his office did not hand him the
papers, but that
he intends to oppose the application on the
following basis:
5.2.1 that he does not intend to supply the B- and C Section of the
docket;
5.2.2 that he will oppose the application inter-alia, in respect of
all documents which are not in his possession;
5.2.3 that he may take an
in limine
point on the basis that
the State should not have been indicated as Respondent, i.e. that the
wrong party was brought before court.
6. To avoid possible delays with an
in limine
point being
taken, I withdrew the original application against the State and
simultaneously filed a fresh application with the same
contents, but
with the State as First Respondent and the Director of Public
Prosecutions as Second Respondent. It is not clear
in respect of
which Respondent the opposite posing papers were filed.
7. I also commenced with the issuing of subpoenas
duces tecum
to address the approach by Mr Stander with regard to documents which
are not in his possession. The subpoenas were issued with
regard to
prayers 2.1, 2.2, 3, 4 (a), 4 (c) to (g) and the orders sought in
this regard are not proceeded with in this application.
8. As far as prayers 4 (a), 4 (c) to (g) are concerned, subpoenas
duces tecum
were issued to the police officials to provide a
cell phone accounts for the relevant periods to enable me to identify
the names
of the service providers, which will in turn have to be
subpoenaed to present the cell data required for us to prepare for
the
trial itself.
[54]
It is clear from this that at the stage that the
application was re-issued applicant’s attorney was aware that
the second
respondent would resist the relief sought in relation to
certain documents on the basis that they were not in his possession.
Applicant’s
attorney was also aware that the applicant was
vested with an alternative remedy by which to obtain documents in the
possession
of third parties, and immediately proceeded to utilise
that mechanism. What is not explained is why it was necessary to
issue an
application against the second respondent requiring
production of documents which were not in the second respondent’s
position
when the applicant knew that it had available to it a
procedure for obtaining such evidence at trial. What is also not
explained
is why, having launched the application against the second
respondent, it was then decided to issue subpoenas
duces
tecum
, notwithstanding the existence of a
dispute in relation to the production of those documents between the
parties to the application.
It is also not explained why and for what
purpose the subpoenas were issued in relation to the hearing of the
application on 14
September 2016.
[55]
The argument, as I understood it, was that se 35
of the Superior Courts Court entitles a party to proceedings before
the High Court
to issue a subpoena to secure the attendance of a
witness or the production of document and that the Rules entitle the
applicant
to seek access to the document prior to trial, so as to
enable it to prepare.
[56]
A subpoena “is a court order, commanding
the presence of a witness under a penalty of fine for failure”
[12]
.
Its primary purpose is to secure the attendance of a witness or the
production of documentary evidentiary material at court proceedings

in order to facilitate the presentation of the evidence in such
proceedings. A subpoena accordingly serves to facilitate the
administration
of justice between parties by making available a
mechanism to compel the production of evidence. The Acts – in
the form of
both the Criminal Procedure Act and the Superior Courts
Act – provide for the issue of subpoenas in relation to pending
proceedings.
It is a necessary condition for the issue of a subpoena
that court proceedings involving the presentation and admission of
evidence
in a trial process must be pending between the parties or
that the person issuing the subpoena is an accused in criminal
proceedings.
[57]
Rule 38 makes this clear in its terms where it
refers to ‘a party desiring the attendance of a person to give
evidence at
trial, and where it provides that a subpoena may ‘require
a witness to produce [a specified] document at the trial’.
[58]
The requirement that a witness present
him/herself or specified documents ‘at the trial’ serves
both procedural and
substantive purposes. Substantive issues relating
to the reception of the evidence by the trial court, namely issues
relating to
the compellability and competence of the witness as well
as the relevance of the evidence, and consequently it’s
admissibility
at the trial are matters to be determined by the trial
court in accordance with the law of evidence. In like manner disputes
relating
to the production of documents under compulsion of a
subpoena are matters to be dealt with by the court which is to
receive the
evidence or evidentiary material procured by way of the
subpoenas. It is for this reason that Rule 38 (1) (a) and (b)
specifically
require that the subpoena must require the attendance or
production of documents ‘at the trial’.
[59]
In argument before me it was conceded that the
subpoenas were issued in relation to the pending criminal trial
proceedings. Their
purpose was to secure evidentiary material for the
applicant to utilise at the trial of the criminal proceedings. The
subpoenas
were issued under case number CC26/2016, the criminal case
number assigned to the pending criminal trial. Although this
application
was also, in my view incorrectly issued under the same
case number, it was accepted that these proceedings were civil
proceedings
and not the pending criminal proceedings. It was accepted
that no evidence other than that produced by way of the affidavits
filed
in the matter would be heard. It was also accepted that the
documents sought to be produced by way of the subpoenas had no
bearing
upon the decision to be made in this application. The only
reason advanced for issuing the subpoenas for 14 September 2016 was
to secure access to the documents so as to enable the applicant to
prepare for the forthcoming trial scheduled for 11 October 2016.
[60]
Counsel for the Minister, Mr Wolmarans, argued
that the subpoenas were irregularly issued by reason of the fact that
the underlying
dispute was still alive and on the basis that the
subpoenas were issued for 14 September 2016. The applicant argued
that he is
entitled to issue the subpoenas for 14 September 2016 in
the light of rule 38(1) (b) which entitles a party to require the
handing
over of the required documents “as soon as possible”.
On this basis it was argued that the applicant was entitled to

nominate 14 September as the date for production of the documents.
[61]
In advancing the argument on this issue reference
was made to
Trust Sentrum (Kaaptstad) Edms Bpk
v Zevenberg
[13]
where the court noted that sub-rule (1) (b) was introduced as an
amendment to the Rule in order to obviate the delays caused by
the
practice of only producing documents under subpoena at the trial, or
when the witness was called to testify. This practice,
it was noted,
inevitably resulted in trial matters (particularly civil trials)
being delayed as a result.
[62]
The purpose of sub-rule (1) (b) is undoubtedly to
place the person subpoenaed under an obligation to produce the
documents and hand
them over to the Registrar as soon as possible
prior
to the trial
date. However, the language of the sub-rule makes it clear that the
compulsion to produce is ‘to the court at
the trial’,
i.e. on the scheduled date of the trial. Section 35 and 36 of the
Superior Courts Act provides for the manner
in which a court, before
whom a witness is summoned by subpoena, must deal with
non-compliance. Those powers of the court are subject
to ‘reasonable
excuse’ (s 35(2)) or ‘just excuse for such refusal or
failure’ (s36 (1) (c)) to comply.
In similar vein s 187 of the
Criminal Procedure Act requires a person subpoenaed to attend
criminal proceedings to remain in attendance
‘unless…excused
by the court’. In terms of s 189 the court may in a summary
manner enquire into a refusal or
failure to comply and may, ‘unless
the person so refusing has a just excuse’ impose a punishment
upon such person.
Such ‘just excuse’ is not confined to
lawful excuses arising from the rules of privilege, compellability of
witnesses
or the admissibility of evidence but will depend upon the
circumstances of the case.
[14]
[63]
What this points to is that it is the trial court
which is to consider the witnesses’ compliance with the terms
of a subpoena
and to act in accordance with the compulsion imposed
upon such witness by the subpoena ‘to appear at the trial’.
[64]
Rule 38(1) (b) does not, therefore, permit a
party seeking to compel the production of documents at trial to
nominate a date for
appearance of the subpoenaed witness other than
the date of trial. The
Trust Sentrum
matter is not authority for that proposition and the applicant’s
argument therefore, that he was entitled to issue the subpoenas
for
14 September, cannot be upheld.
[65]
The procedure adopted by the applicant, in
causing subpoenas to be issued compelling the attendance of witnesses
at the application
hearing of 14 September 2016 was not authorised by
the Rules and was accordingly irregular. The question that arises is
whether,
as was urged upon me by counsel for the Minister, to set
aside the subpoenas.
[66]
Section 36 (5) of the Superior Courts Act
provides for the setting aside of a subpoena by a judge (i.e. a judge
sitting in chambers)
if it appears that (a) the person concerned is
unable to give any evidence or to produce any book which would be
relevant to any
issue in the proceedings; (b) such book, paper or
document could properly be produced by some other person, and (c) to
compel the
person concerned to attend would be an abuse of the
process of court.
[67]
This court however, has inherent jurisdiction to
set aside a subpoena if it is satisfied that it is unsustainable
[15]
or if it constitutes an abuse of the process of court.
[16]
An abuse of process occurs where the procedures permitted by the
Rules to facilitate the pursuit of truth are used for a purpose

extraneous to that purpose.
[17]
[68]
A court will not lightly come to the conclusion
that the issue of process constitutes an abuse of the process and
will not readily
set aside a subpoena.  I have already pointed
to the circumstances in which the subpoenas came to be issued in this
matter.
The conduct of the applicant’s attorney in so issuing
the subpoenas whilst knowing that the issue as to the production of

the documents remained in dispute between the parties, is clearly
unacceptable and is to be deprecated. It suggests a disregard
for the
process of this court and reflects poorly upon the manner in which
this matter was conducted. Having said that, I do not
consider that
the applicant sought, by the issue of the subpoenas to achieve a
purpose extraneous to the object served by the issue
of such
subpoenas. That the procedure followed was irregular is plain. One
would have expected an attorney of the experience of
the applicant’s
attorney to have known better and, to have been able to consult the
rules of court to know what procedure
is permitted. It is for this
reason that the conduct is to be deprecated. I should mention that no
party sought any cost order
in the matter. Had it been necessary to
consider an appropriate cost order I would have given very serious
consideration to registering
this court’s dissatisfaction with
the conduct of the applicant and/or the applicant’s attorney in
the form of a punitive
cost order.
[69]
Setting aside the subpoenas and effectively
requiring that they be re-issued for the trial date would, in my
view, serve little
purpose other than to mark this court’s
disapproval of the conduct. It would not serve the interests of
justice in my view.
When asked, during argument, as to how this court
might treat the subpoenas, it was suggested by counsel for the
Minister that
in the absence of an order setting them aside it would
be appropriate to defer the obligation to comply to the date of the
trial.
Such an order could be carried into effect by reason of the
Minister’s intervention in the proceedings on behalf of the
subpoenaed
members of the Police Service. That suggestion, it seems
to me to be an eminently reasonable one. It has the additional
benefit
of ensuring that any disputes in relation to the production
of the documents sought to be obtained by way of the subpoenas will

fall to be determined by the appropriate forum, namely the trial
court. The deferred compliance does not however exempt the persons
so
subpoenaed from complying with the obligations set out in Rule 38(1)
(b).
[70]
In the result I make the following order:
1.
The
Second Respondent is ordered to provide the Applicant with a copy of
the C Section (Investigation Diary) of the investigation
docket
Kabega Park CAS 229/04/2015 within 10 days of the date of this Order;
2.
The
Second Respondent is directed, in accordance with the undertaking
furnished, to provide the Applicant with a copy of the statement
of
Theresa May Botha as well as any accompanying documents and digital
presentations and a copy of the statement of Lt. Rynhardt
Swanepoel
on or before 23 September 2016;
3.
In
respect of each of the subpoenas
duces tecum
issued by the Applicant under case number CC26/2016 requiring the
attendance of witnesses on 14 September 2016, the date for such

attendance and production of the specified documents is deferred to
the date of trial being 11 October 2016, subject to the provisions
of
Rule 38(1) (b) of the Rules of Court.
4.
There is no order as to costs.
____________________
G.
GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Adv. A Hattingh
Instructed by Griebenouw Attorneys
For the First and Second Respondents
Adv. M Stander
Office of the Director of Public Prosecutions
For the Intervening Party
Adv. G Wolmarans
Instructed by the State Attorney
[1]
1995 (2) SACR 761 (CC)
[2]
R v Steyn
1954 (1) SA 324 (A)
[3]
Shabalala
at par 72, A3
[4]
Shabalala
at par 72, A4
[5]
Shabalala
at par 10;
National Director of Public
Prosecutions v King
2010 (2) SACR 146
(SCA) at par 1
[6]
Shabalala
at par 57;
King
at par 1
[7]
King
at par 2
[8]
King
at par 5
[9]
King
at par 29 - 30
[10]
King
at par 30
[11]
King
at par 32
[12]
Minister of Police v Premier of the Western Cape and others
2014 (1) SA 1(CC)
at par 1 (fn 1)
[13]
1989 (1) SA 145
(C) at 148C-J
[14]
See
Attorney-General, Transvaal v Kader
1991 (4) SA 727 (A)
[15]
South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) Ltd
2007 (6) SA 628 (D)
[16]
Beinash v Wixley
1997 (3) SA 721 (SCA)
[17]
Beinash v Wixley
at 734F-G

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