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[2012] ZASCA 140
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Director of Public Prosecutions and Minister of Justice and Constitutional Development v Phillips (803/2011) [2012] ZASCA 140; [2012] 4 All SA 513 (SCA) (28 September 2012)
Links to summary
23
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 803/2011
Reportable
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
.......................
FIRST
APPELLANT
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
....................................................................
SECOND
APPELLANT
and
ANDREW
LIONEL PHILLIPS
.............................................................
RESPONDENT
Neutral Citation:
The
DPP and Minister of Justice and Constitutional Development v Phillips
(803/11)
[2012] ZASCA 140
(28 September 2012)
Coram:
NAVSA,
CLOETE, SHONGWE and TSHIQI JJA and PLASKET AJA
Heard:
3 September 2012
Delivered:
28 September 2012
Summary: Permanent
stay of prosecution –
Criminal Procedure Act 51 of 1977
–
Constitution – assertion of fair trial rights – right to
have trial begin and conclude without unreasonable
delay –
undue delay by the Director of Public Prosecutions in prosecuting
appeal – trial having endured for many years
– factors to
be taken into account and weighed in determining whether permanent
stay of prosecution warranted
______________________________________________________________
ORDER
______________________________________________________________
On
appeal from
: South Gauteng High Court, Johannesburg (Satchwell J
sitting as court of first instance).
(1) The appeal is
dismissed with costs, including the costs of two counsel.
(2) Paragraph 1 of the
order of the court below is altered to read as follows:
‘
1. The appeal of the first
respondent (“Director of Public Prosecutions”) against
the judgment and order handed down
by Mr S.P. Bezuidenhout in the
Regional Magistrates Court for the Regional Division of Gauteng in
case No 41/1899/00 on 26 November
2008 in which the Learned
Magistrate acquitted the applicant (“Andrew Lionel Phillips”)
is permanently stayed.’
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Cloete, Shongwe
and Tshiqi JJA and Plasket AJA concurring)
Introduction
[1] This is an appeal,
with the leave of this court, against a judgment of the South Gauteng
High Court, Johannesburg (Satchwell
J). It arises because of an
abortive appeal – at least up until now – in terms of s
310 of the Criminal Procedure Act
51 of 1977 (the Act), by the first
appellant, the Director of Public Prosecutions (the DPP), against an
acquittal by the Johannesburg
regional court of the respondent, Mr
Andrew Lionel Phillips.
[2] Pending the appeal in
terms of s 310 – referred to in the preceding paragraph, which,
it must be said at the outset, the
DPP did not prosecute with any
real intent or efficiency – Phillips brought an application in
the court below, in terms of
which he initially sought, inter alia,
that the appeal be permanently struck off the roll on the basis that
s 310, read with s
39(2)
1
of the Constitution, did
not authorize the hearing of an appeal by the State against an
acquittal. He contended that this was particularly
so where the
necessary consequence of a successful appeal would be the re-opening
of the criminal trial as this would result in
him being tried twice
for the same offence. An alternative basis was that, if s 310 did
authorize such an appeal, it was unconstitutional
and therefore
invalid. Later, he added to the relief sought, an order that the
prosecution against him be permanently stayed on
the bases referred
to above, as well as on the basis of an unjustifiable delay in the
prosecution of the appeal. In this regard,
it was contended that the
delay in prosecuting the appeal which in itself was inordinate, had
to be considered alongside the elapsed
time from his arrest through a
very lengthy trial. It was submitted that this infringed his right in
terms of s 35(3)
(d)
of the
Constitution to have his trial begin and conclude without
unreasonable delay.
[3] Phillips was
successful. The court below struck the appeal from the roll on the
basis of the inordinate delay in finalizing
both the trial and the
appeal and declared the DPP’s right to appeal the acquittal
permanently stayed. The court also ordered
the DPP and the second
appellant, the Minister of Justice and Constitutional Development
(the minister), jointly and severally,
to pay Phillips’ costs.
It is against these conclusions that the present appeal is directed.
[4] A detailed background
leading up to the appeal is set out hereafter. For reasons that will
become apparent and, in part, due
to the manner in which the present
appeal arose, the record before us is undesirably sketchy,
compounding an already shambolic
litigation history.
Background
[5] Phillips was arrested
and detained on 2 February 2000 and, on 22 December 2000, certain of
his property was attached in terms
of the provisions of the
Prevention of Organised Crime Act 121 of 1998 (POCA). The charges on
which he had been arrested, and later
prosecuted, are related to the
keeping of a brothel and alleged further breaches of the law,
apparently connected to that main
activity. More specifically, the
following were the charges faced by Phillips:
Contraventions of:
i Section 2 of Act 23 of 1957 (Keeping
a brothel);
ii Section 10
(a)
of Act 23 of
1957 (Procuring females to have carnal intercourse);
iii Section 12A of Act 23 of 1957
(Foreseeing that a person may have intercourse against payment of a
fee);
iv Section (1)
(a)
of Act 23 of
1957 (Living off the proceeds of prostitution);
v Section 32(1)
(a)
of Act 96 of
1991 (Contravening the Immigration Act);
and
vi Perjury.
[6] In January 2004 the
trial commenced in the regional court, Johannesburg. Phillips pleaded
not guilty to the charges and proceedings
in that court continued
until November 2006. During the duration of the State’s case a
number of prosecutors were engaged
in the prosecution. After the
State closed its case on 20 November 2006, Phillips applied for a
discharge in terms of s 174 of
the Act, which was refused.
[7] The defence case was
scheduled to commence on 2 June 2008. Prior and subsequent to that
date Phillips’ legal representatives
sought further information
from the prosecuting authority. On 24 June 2008 Phillips raised an
additional plea in terms of s 106(1)
(h)
2
of the Act, namely, that
a number of the prosecutors who conducted his prosecution lacked
title to prosecute. The regional magistrate
considered the question
whether such a plea could be raised at any stage of the trial as
opposed to only at the beginning when
an accused is required to plead
to the charges, and answered it affirmatively in favour of Phillips.
The magistrate went on to
consider whether the appointment as
prosecutors of members of the private bar, to assist in Phillips’
prosecution, had taken
place in terms of the National Prosecuting
Authority Act 32 of 1998 (the NPA Act). He concluded, after
considering relevant sections
of that Act, that they had participated
in the prosecution unlawfully and held that this had the result of
vitiating the entire
prosecution. He then proceeded to acquit
Phillips on all the aforesaid charges. This occurred on 26 November
2008.
[8] Aggrieved, the DPP
required the magistrate, in terms of s 310
3
of the Act, to state a
case for consideration on appeal by the South Gauteng High Court. On
26 January 2009 the magistrate formulated
the questions of law as
follows:
‘
i)
Is
it permissible to raise a plea in terms of section 106(1)
(h)
of the CPA at any stage of
a trial or could it only be raised before the commencement of the
trial?
If a plea succeeds in terms of
section 106(1)
(h)
of
the CPA, is a court compelled to acquit the accused in view of the
peremptory provisions of section 106(4)
4
of the CPA, or may it resort to
alternative relief instead?
Does section 20 of the National
Prosecuting Authority Act 32 of 1998 (the NPA) provide for the
appointment of prosecutors or does
it merely regulate a prosecutor’s
powers and functions?
Is the taking of an oath in terms of
section 32
of the
National Prosecuting Authority Act of 1998
a
prerequisite for a person appointed in terms of section 38(1) of the
Act?
If, during the course of a trial,
more than one person acted as prosecutor, and one or more of them
are not properly appointed
as such, will this affect the entire
trial, or only those portions which were dealt with by the
prosecutor not properly appointed?’
[9] Delays occurred in
the prosecution of the appeal, with the DPP and Phillips’ legal
representatives ostensibly unable to
agree about the extent of the
appeal record, and whether the record, allegedly improperly compiled,
could be ‘corrected’.
5
It appears that the full
record of the trial, at that stage, was voluminous – apparently
comprising more than 6000 pages.
The DPP then contended that, given
the narrow ambit of the questions formulated by the magistrate in
terms of s 310 of the Act,
a very limited part of the record was
relevant. Phillips’ legal representatives disagreed.
Correspondence was exchanged between
the parties and the Deputy Judge
President of the high court concerning the appeal. The Deputy Judge
President insisted that an
appeal record be prepared and the appeal
be enrolled in the ordinary course. Several months passed without any
real progress being
made by the DPP in the prosecution of the appeal.
In July 2009 Phillips launched the application referred to in para 2
above, requesting
that it be considered at the hearing of the appeal.
I shall, later in this judgment, revert to correspondence between the
DPP’s
office and the Deputy Judge President which is an aspect
that has to be addressed, and in respect of which the DPP’s
office
is deserving of censure.
[10] It is necessary to
record that subsequent to Phillips’ acquittal by the
magistrate, his legal representatives wrote to
the curator appointed
in terms of the provisions of POCA to Phillips’ seized assets,
concerning the release thereof, notifying
him of an intended
application to the high court for a rescission of the restraint order
in terms of which his assets were being
held. Because of the pending
appeal, the threatened application did not eventuate.
[11] Subsequent to the
launching of the application to have the appeal struck from the roll,
and after failed attempts to reach
agreement on the compilation and
extent of the record, Phillips filed a supplementary affidavit
indicating that, over and above
the legal bases already provided for
striking the matter from the roll, he would rely on the additional
ground of the inordinate
delay in prosecuting the appeal.
[12] In opposing the
application, the DPP contended that the appointment of private
counsel as prosecutors had occurred in terms
of the provisions of the
NPA Act. Because of the basis on which the present appeal is to be
decided, it is not necessary to consider
any further the legality of
the appointment of private counsel.
[13] In respect of the
delay in the prosecution of the appeal, the DPP stated that Phillips’
legal representatives had contributed
thereto by not reaching
agreement on the nature and extent of the record to be placed before
the high court, acting as a court
of appeal. The DPP persisted in the
view that the plea in terms of s 106 of the Act (that had been
upheld), raised legal issues
within a narrow compass that required
the appeal record to comprise only the documents related to the plea
itself and the magistrate’s
reasons for upholding it. It was
contended that the issues on appeal were legal issues that did not
involve the facts or evidence
placed before the regional court during
the trial. The following part of the answering affidavit by Ms
Xolisile Jennifer Khanyile,
on behalf of the DPP, is relevant:
‘
I further submit that the
matter could have been dealt with expeditiously by placing a core
bundle of documents and the relevant
portions of the record before
the court of appeal.’
[14] In her opposing
affidavit, Khanyile assured the court below that the filing of an
appeal record ‘is being attended and
a workable record has now
been obtained and will be filed in due course. I have also been
informed that the process is near to
completion’. It is common
cause that by the time Phillips launched his application to have the
appeal struck from the roll,
namely 3 July 2009, the record, as
envisaged by the DPP, had not been filed. Before us counsel on behalf
of the DPP rightly conceded
that it was inexcusable that this had not
been done.
[15] Moreover, it is
common cause that, when the application for the striking of the
appeal from the roll and for the permanent
stay of the prosecution
was ripe for hearing, no appeal record of any kind had been filed and
an appeal could thus not properly
have been enrolled. This was
recognized and expressly recorded by Satchwell J at para 31 of her
judgment. She went on to hear the
application as a single judge,
which is the usual manner in which applications are heard in motion
court. Counsel representing
the DPP ultimately and expressly agreed
in the court below that Satchwell J was entitled to hear the
application sitting as a single
judge.
[16] Satchwell J
considered the delay in the prosecution of the appeal, related in the
main to the filing of the record, to be the
primary question to be
addressed. She stated that since the DPP was
dominus
litis
in the appeal, it was his primary
responsibility to ensure its compilation and filing with the court of
appeal. She had regard to
the DPP’s tardiness in obtaining
funding for obtaining the record. The learned judge noted that it
took almost eight months
after the DPP’s notice of appeal
before his office applied for such funding. Satchwell J took into
account that details of
the difficulties the DPP allegedly
encountered in respect of the record that had been supplied by the
service provider, had not
been communicated to Phillips’ legal
representatives. This, she reasoned, rightly caused them to be
sceptical, which scepticism
was borne out by the service provider
failing to provide the record because of non-payment of its fees.
Against that background,
so Satchwell J reasoned, it was disingenuous
for the DPP to approach Phillips’ legal representatives to
agree to a limited
record. The real reason for the delay, she held,
was funding and bureaucratic ineptitude. Satchwell J had regard to
the inexplicable
extensive delays that occurred subsequent to the
record being supplied by the service provider. This, she reasoned,
was due to
waning enthusiasm for the pursuit of the appeal on the
part of the DPP. She rejected a plea on behalf of the DPP to have
regard
to systemic problems, both in the magistrate’s court and
the office of the DPP.
[17] The court below
stated the following:
‘
52. I cannot find other than
that the DPP has been dilatory in attending to procurement of the
record, naïve in failing to
appreciate the need for funds to be
made available in advance of contracting with service providers,
stubborn in seeking to resolve
the problems of an inadequate record
by unilateral reconstruction thereof, disingenuous in advising that
the DPP was still reconstructing
alternatively that portion only of
the record need be utilized.
53. I am in agreement with the view of
the DPP that there has been “
an inordinate delay”
in
filing the record. The result has been an inordinate delay in
pursuing the appeal. This delay can be laid at the door of the
DPP
and nowhere else.’
[18] Satchwell J went on
to consider whether the delay was such as to justify a permanent stay
of the DPP’s appeal. The following
is the greater part of the
factors the court below considered relevant:
‘
59. First, more than eleven
years have elapsed since Phillips was arrested. Seven years have
passed since he first pleaded. The
trial concluded some four and a
half years ago. There has been a hiatus of two and a half years since
judgment was handed down.
I have no knowledge that any delay has been
irregularly or deliberately occasioned by Phillips in order to
frustrate the conduct
of the trial.
60. Second, the State noted its appeal
two years and five months ago on 17
th
February 2009. That
appeal has not yet been heard which delay, as I have already
discussed in this judgment, must be ascribed to
the office of the
DPP.
61. Third, absent a complete record,
the epic continues without land in sight. There is no indication when
or how the missing portions
of the record will be reconstructed to
the approval of an appeal court. Even if this task were completed in
the course of 2011,
it is unlikely that a date for the hearing of the
appeal could be allocated before 2012 – twelve years after
arrest, in the
sixth year after acquittal, three years after noting
an appeal. I repeat that such further delay would continue to fall
upon the
shoulders of the office of the DPP.
62. Fourth, Phillips was charged with
four counts in terms of the Sexual Offences Act No 23 of 1957, one
count in terms of the Aliens
Control Act No 96 of 1991 and one count
of perjury.
63. Fifth, this is not an appeal by a
convicted accused but an appeal by the prosecution against the
acquittal of Phillips. The
purpose of the appeal is to have his
acquittal set aside and have him referred back to trial. I leave, for
this moment, the question
of the constitutionality or otherwise of
section 310 of the CPA. Instead, I note that the clear intention and
possible result of
the appeal will be to once again place Phillips in
jeopardy of conviction. I am mindful of section 35(3)
(m)
of
the Constitution which prohibits that an accused person “
be
tried for an offence in respect of an act or omission for which that
person has previously been either acquitted or convicted.”
Accordingly, if such an appeal is permitted, this would
constitute an extraordinary process. At the very least, it would have
to
be prosecuted with greater diligence, knowledge of law and
cognizance of constitutional principles than required in ordinary
appeals.
Intrinsic to such requirements is promptitude.
64. Sixth, if Phillips’
acquittal is overturned and the trial is reopened, then Phillips will
have to mount his defense at
least eleven to twelve years after he
was initially charged. The prejudice to Phillips is considerable:
witnesses become unavailable
and neither Phillips nor defense
witnesses can be expected to remember events more than eleven years
ago clearly or confidently.
Au contraire,
the State has
already led all its evidence and closed its case some five to seven
years ago when events were less distant. There
can be no doubt that
the prosecution in this trial would have an unfair advantage over the
defence.
65. Seventh, Phillips suffers ongoing
prejudice as a result of the delays in pursuit of and finalizing this
appeal. Some of these
would be suffered by all accused persons in his
position. Others are unusual and unique to himself.
First, for over a decade he has been
identified as an accused person with criminal charges pending
against him. He is described
in this application as the “
notorious
accused”,
whose frequently successful litigation against
the NPA shows “
the attitude and character of the accused.”
The stigma in all circles in South Africa is considerable. There
must have been and continues to be anxiety and stress in
contemplating
this apparently neverending saga. It is not
inappropriate to describe this as the “
exquisite agony of
the accused”.
Where imposition of psychological stress and
social stigma is unwarranted, such imposition would violate
Phillips’ constitutional
rights to dignity and personal
security.
Secondly, the financial burden cannot
have been or continue to be inconsiderable. The State has disclosed
it has spent “
millions”
on this litigation and
so, I must assume, has Phillips.
Thirdly, Phillips exercises no
control over the future conduct of this process. He is precluded
from finalizing the criminal proceedings
against him. He is
dependant upon the office of the DPP to finalise this matter and
their endeavours, thus far, cannot inspire
confidence that this
ordeal will be expeditiously concluded.
Fifth, certain of Phillips’
assets were restrained at the instance of the NPA in terms of
Chapter 5 of POCA in December
2000. No judge of the South Gauteng
Division can fail to have knowledge of this restraint and the
differences of opinion between
Phillips and the curator of these
assets over the past eleven years. Notwithstanding his acquittal by
a court of competent jurisdiction,
these assets have not been
released from restraint and returned to Phillips unencumbered. For
so long as the appeal is pending,
these assets are not returned to
Phillips. This is most significant curtailment of Phillips’
use and enjoyment of his property.’
[19] The court below went
on to conclude that any prosecutorial appeal and any ensuing trial
would place Phillips in double jeopardy.
This is another aspect to
which I will revert in due course.
[20] Satchwell J was
satisfied that Phillips’ right to a fair trial had been
infringed by the delay in finalizing the appeal.
She took the view
that the delay in prosecuting the appeal served inevitably and
irremediably to taint the overall substantive
fairness of the trial.
The learned judge reasoned that an appeal may be struck from the roll
in exceptional circumstances and that
it is a measure to be resorted
to with due caution. She concluded as follows:
’
75. I take the view that the
appropriate remedy is to order a permanent stay of the appeal noted
by the DPP against the conviction
of Phillips. The appeal will
therefore be permanently struck off the roll.’
[21] Although the court
below did not find it necessary to consider the constitutionality of
s 310 of the Act, it nevertheless thought
it necessary to criticize
the deponent who opposed the application on behalf of the minister,
for failing to engage with the question
whether such limitation which
s 310 might impose on fair trial rights, was justified in terms of s
36 of the Constitution. The
minister’s deponent was criticized
for merely referring to the work of the South African Law Commission
which had found that
such limitation is permitted in certain foreign
jurisdictions. I shall say something about this in due course.
[22] Before us the DPP
and the minister relied on only three grounds of appeal. First it was
submitted that Satchwell J sitting
as a single judge had no
jurisdiction to hear a matter related to the appeal in terms of s
310. In this regard sections 22 and
13 of the Supreme Court Act 59 of
1959 were relied upon. The relevant part of s 22 reads as follows:
‘
The appellate division or a
provincial division,
or a
local division having appeal jurisdiction
,
shall have power–
. . .
to confirm, amend or set aside the
judgment or order which is the subject of the appeal and
to give
any judgment or make any order which the circumstances may require
.’
(Emphasis added.)
The relevant parts of s
13 read as follows:
‘
Constitution of courts of
provincial or local divisions-
(1)
(a)
Save as provided in this
Act or any other law, the court of a provincial or local division
shall, when
sitting as a court of first instance for the hearing
of any civil matter, be constituted before a single judge of the
division concerned
: Provided that the judge president or, in the
absence of both the judge president and the deputy judge president,
the senior available
judge of any division may at any time direct
that any matter be heard by a full court consisting of so many judges
as he may determine.
(b)
. . .
(2)
(a)
The court of a
provincial or local division shall, except where it is in terms of
any law required or permitted to be otherwise
constituted–
(i)
for the hearing of any appeal
against a judgment or order of an inferior court, be constituted
before not less than two judges
.’ (Emphasis added.)
[23] It was submitted on
behalf of the DPP that counsel representing him and the minister had
wrongly agreed in the court below
that Satchwell J had jurisdiction
to hear the application and that they were not bound by his error of
law.
[24] The second point
relied on before us is that the DPP could not be blamed for the delay
in filing the appeal record. As stated
earlier, it was contended that
the delay was occasioned principally by the unreasonable insistence
of Phillips’ legal representatives
to have a full record placed
before the court that would hear the appeal in terms of s 310. It was
submitted that an appeal in
terms of s 310 is, by its nature, a very
limited one and that findings of fact are not susceptible to
alteration on appeal. Thus,
so it was argued, only a limited record
was required to be placed before the court that would hear the
appeal.
[25] The third point
relied on by the DPP and the minister was that the relief granted by
the court below had not been properly
foreshadowed in the application
brought by Phillips or in the supporting documentation. This point
can be dealt with briefly and
immediately. Counsel on behalf of the
DPP and the minister rightly did not press this point with any
enthusiasm or conviction.
There is no merit whatsoever in this point.
The further basis for seeking a striking of the appeal from the roll,
namely the undue
delay in prosecuting the appeal, was communicated by
way of a letter to the DPP and was fully traversed in a supplementary
affidavit
as was the consequence of reliance on that additional
ground, namely a permanent stay of the appeal. The DPP and the
minister could
have been under no illusion as to the nature and
extent of the relief sought by Phillips. In any event, the notice of
motion was
amended
ex abudante cautela.
[26] As noted by the
court below, the DPP had not, up until the application had been
heard, sought
condonation
for the
inordinate delay in filing the appeal record. Indeed, as stated
before, as things presently stand, no appeal record of any
kind has
been filed.
Conclusions
Jurisdiction
[27] It is common cause
that the DPP had removed the appeal against the magistrate’s
decision from the roll on the day prior
to the hearing of the
application by Satchwell J.
[28] It was rightly
conceded by counsel representing the DPP and the minister that,
notionally, one could have an application to
the high court in
respect of a trial that has not been completed and that the
application could be unrelated to substantive issues
raised on appeal
by the prosecution in terms of s 310 of the Act. Counsel was
constrained to accept that in those circumstances
the high court
could hear the application in the ordinary course. In those
circumstances a single judge would usually hear the
matter.
[29] The submission on
behalf of the minister and the DPP in respect of the jurisdictional
point is misplaced. It fails to take
into account that the appeal in
terms of s 310 could not be heard because no record of any kind had
been finalized or filed. Thus,
it could as a first step not be
properly enrolled. If the appeal in terms of s 310 had in fact been
heard by the high court constituted
as a court of appeal, that court
would have been confined to dealing with only those issues raised as
a result of the magistrate’s
conclusions in relation to the
plea by Phillips in terms of s 106 of the Act and to procedural
matters directly related to that
appeal.
[30] An appeal court
becomes seized of an appeal when it has been duly prosecuted in terms
of the rules of that court, and in accordance
with any applicable
statutory provision.
6
[31] The application
before Satchwell J was not interlocutory and certainly was not
accessory or subordinate to the appeal in terms
of s 310 of the Act.
7
It was a self-standing
application, distinct from the main proceedings. This is particularly
so in respect of reliance by Phillips
on the delay in the prosecution
of that appeal, which he contended ultimately infringed his rights to
a fair trial guaranteed by
s 35(3) of the Constitution. I agree with
the submission that this part of his case is based on distinct facts
which arose, in
the main, subsequent to the order that is intended to
be appealed against in terms of
s 310 of the Act.
[32] In the event that
any accused intends to challenge procedural irregularities in the
magistrates’ court, or raise the
kind of issues raised by
Phillips in the application before Satchwell J, particularly in
respect of the undue delay in prosecuting
the appeal, it would
ordinarily require a proper notice of motion, specifying the relief
sought supported by the necessary affidavits.
Interested parties
would have to be given notice and the matter would ultimately be
decided after all the affidavits had been filed.
In the present case
that was done. The application was ripe for hearing. The appeal was
not.
[33] Furthermore, a
litigant such as Phillips would, according to the DPP and the
minister’s view, have to wait until the
DPP finally properly
enrolled an appeal, if at all. This would mean that a litigant such
as the DPP could unduly frustrate an accused
who might well have
legitimate grievances concerning irregularities in a criminal trial
or about the prosecution of an appeal,
not directly related to the
issues raised in a contemplated appeal.
[34] The concession on
behalf of the DPP, set out in para 28 above, was rightly made and the
point was not pursued with any real
conviction. It is clear that the
court below was properly constituted in terms of s 13(1)
(a)
of
the Supreme Court Act 59 of 1959. I do not wish to be understood as
laying down the principle that an application, such as that
brought
by Phillips, can only be heard by a single judge.It may be considered
necessary or convenient for the matter to be heard
by two, or indeed,
by three judges.
Delay in filing the
appeal record
[35] It is necessary to
record that counsel for the DPP and the minister rightly admitted
that there was no evidentiary material
before us, or indeed, before
Satchwell J, that demonstrated any wilful obstruction by Phillips of
the appeal process. As stated
earlier, counsel for the DPP and the
minister conceded that, at the very least, the DPP could have filed
the limited record his
office insisted was all that was required for
the hearing of the appeal in terms of s 310 of the Act. The DPP could
then have abided
a decision by the court of appeal on whether the
record was adequate.
[36] In my view the
communication and litigation history between the DPP’s office
and Phillips, noted by the court below and
recorded in paras 17 and
18 above, in respect of the prosecution of the appeal, as well as its
conclusion that the inordinate and
continuing delay can rightly be
placed at the door of the DPP, cannot be faulted.
[37] Rule 51(3) of the
Uniform Rules of Court, which applies in general to the setting down
of criminal appeals from magistrates’
courts, provides that the
ultimate responsibility of ensuring that all copies of the appeal
record are in all respects properly
before the court, rests on the
appellant or his or her legal representative. Further, it provides
that, where an appellant is unrepresented,
that responsibility rests
on the DPP. The latter can hardly escape responsibility when
he
appeals from the magistrates court in terms of s 310 of the Act.
[38] Generally speaking,
where there is a delay in prosecuting an appeal, courts require an
appellant to apply for condonation for
failure to comply with
prescribed time limits and to fully explain why there has been a
delay. In
Napier
v Tsaperas
1995
(2) SA 665
(A), there was no such application for condonation when an
appellant filed the record more than four months late. At 671A-C this
court stated the following:
‘
I must not, however, be taken
to express, in this judgment, any firm views on the merits of an
application for condonation. For
present purposes, it suffices to say
that there appear to be several weaknesses in the explanations
offered for the late lodging
of the record, and that the Court, in
deciding on condonation, may also have regard to the appellant’s
failure to bring the
application timeously. In
Rennie
v Kamby Farms (Pty) Ltd
1989
(2) SA 124
(A) at 129G it is said that an appellant, when he realises
that he has not complied with a Rule of Court, should apply for
condonation
without delay. His inaction may also be relevant, in my
view, when he should have realised, but did not, that he has not
complied
with a Rule. The matters to be taken into account in an
application for condonation include the respondent’s interest
in
the finality of a judgment, the avoidance of unnecessary delay in
the administration of justice and, last but not least, the
convenience
of the Court.’
In
Napier,
absent an application for
condonation, this court struck the matter from the roll.
[39] In
Beira
v Raphaely-Weiner
[1997] ZASCA 59
;
1997
(4) SA 332
(SCA) at 337D-E, the following appears:
‘
There is no explanation on the
papers for the delay between the second and the third dates. In the
circumstances of this case this
is fatal, even should there be
prospects of success, because an application for condonation must be
made as soon as it is realised
that the Rules have not been complied
with; the petitioner is required to give a full and satisfactory
explanation for whatever
delays have occurred; and the respondent’s
interest in the finality of the judgment is a factor which weighs
with the Court
. . . .’
[40] In
Toyota
South Africa Motors (Pty) Ltd v Commissioner, South African Revenue
Service
2002
(4) SA 281
(SCA) para 15, Howie JA, with reference to
Beira,
said the following:
‘
A party seeking condonation
must, among other things, give a full and satisfactory explanation
for whatever delays non-compliance
has occasioned; an inadequate
explanation could well bar the grant of condonation . . ..’
[41] It is more than two
years beyond the time envisaged by rule 67 of the magistrates’
court rules for the provision of the
record to the court of appeal,
in respect of which, as pointed out above, an appellant holds
ultimate responsibility. As noted
by Satchwell J, there is still no
end in sight. I recorded earlier that counsel for the DPP was at
pains to explain to this court
that he was unable to justify the
failure by the DPP’s office to file even the limited record it
insisted was all that was
required. The asserted justification by the
DPP for the inordinate and continued delay was rightly rejected by
the court below.
Having regard to the authorities set out above, an
application for condonation in the ordinary course might well be
doomed to failure.
In addition, where there has been a flagrant
disregard of the rules of court, that on its own may render prospects
of success irrelevant.
In this regard see
Darries
v Sheriff, Magistrate’s Court, Wynberg
1998
(3) SA 34
(SCA) at 41B- E.
[42] I interpose to state
that, arguably, a more extensive record than contended for by the DPP
was required to answer the questions
of law posed by the magistrate
in terms of s 310. It might well have been necessary for the high
court sitting as a court of appeal
to consider the extent of the
involvement of the ‘private’ prosecutors and their impact
on the trial. As stated earlier,
and as will become clear, that is a
question that does not require to be addressed by us. I merely
restate that, in any event,
the DPP was entitled to assert his
perspective on the extent of the appeal record by filing the limited
record he contended was
justifiable, and then abiding the court of
appeal’s decision in relation thereto.
[43] I now turn to deal
with whether the decision by the court below to order a permanent
stay of the prosecution was correct. In
order to do so, it is
necessary to address Phillips’ contention that his right to a
fair trial was infringed, more especially
because of the delay in
prosecuting the appeal.
[44] Section 35(3)
(d)
of the Constitution 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.’
[45] Ordinarily, when
fair trial rights are asserted on the basis of any of the
sub-categories of s 35, including, for example,
the right to have a
legal practitioner assigned by the State, if substantial injustice
would otherwise result, it is pre-eminently
a matter for the trial
court to adjudicate upon. This would involve having regard to the
alleged infringement of rights and the
resultant prejudice, if any.
8
It does not, however,
exclude a higher court, in the event of established facts clearly
indicating an infringement of rights, from
making that determination.
[46] In
Sanderson
v Attorney-General, Eastern Cape
1998
(2) SA 38
(CC), the Constitutional Court dealt with a case of an
accused who was well known in entertainment circles who had allegedly
sexually
interfered with two young girls years before his arrest. For
various reasons, there was a lengthy delay in bringing him to trial
in the regional court. The accused approached the high court seeking
a permanent stay of the prosecution on the basis that there
had been
an unreasonable and inexcusable two year delay in prosecuting him,
infringing his rights to a speedy trial as provided
for in the
interim Constitution. He failed in the high court and proceeded to
appeal the matter in the Constitutional Court. Kriegler
J considered
why the right to a trial within a reasonable time was included as one
of the specifically enumerated elements of a
fair trial. He had
regard to comparative constitutional provisions. The Constitutional
Court held that liberty, security, trial
and non trial-related
interests should all be regarded as protected.
[47] In
Sanderson,
the Constitutional Court
considered that an accused person is subject to various forms of
prejudice and penalty, merely by virtue
of being an accused. That
court noted that socially, doubt would have been sown
in the eyes of family,
friends and colleagues as to the accused’s integrity and
conduct. The repercussions would vary from
case to case but with the
reality of the criminal justice system. In addition to social
prejudice, an accused is subject to invasions
of liberty that range
from incarceration to onerous bail conditions to repeated attendance
at remote courts for formal remands.
Kriegler J recorded that this
kind of prejudice resembled closely the kind of ‘punishment’
that ought ideally to be
imposed on convicted persons. He had regard
to our apartheid past in which the machinery of the criminal justice
system was abused.
The response of the Constitution has been
pragmatic. The trial accompanied by the forms of prejudice set out
above must be ‘within
a reasonable time’.
[48] The Constitutional
Court, in
Sanderson
¸
addressed the critical question of how to determine whether a
particular lapse of time is reasonable. First, the amount
of elapsed
time is obviously central to the enquiry. Factors generally relied on
by the State, such as waiver, the inherent time
requirements of the
case and systemic reasons for delay, all seek to diminish the impact
of elapsed time. In
Sanderson
at
para 30 the Constitutional Court said the following:
‘
The courts will apply their
experience of how the lapse of time generally affects the liberty,
security and trial-related interests
that concern us. Of the three
forms of prejudice, the trial-related variety is possibly hardest to
establish, and here as in the
case of other forms of prejudice, trial
courts will have to draw sensible inferences from the evidence. By
and large, it seems
a fair although tentative generalisation that the
lapse of time heightens the various kinds of prejudice that s
25(3)
(a)
seeks to diminish.’
[49] The following were
considered to be the most important factors bearing on the enquiry.
First, the nature of the prejudice suffered
by the accused, from
incarceration to restrictive bail conditions and trial prejudice even
carried through to mild forms of anxiety.
The greater the prejudice,
the shorter should the period be within which the accused is tried.
Second, the nature of the case is
important. In this regard, judges
must bring their own experiences to bear in determining whether a
delay is over-lengthy. Third,
systemic delay should be considered.
Systemic failures, so the Constitutional Court stated, are probably
more excusable than cases
of individual dereliction of duty.
Nevertheless, there comes a time when systemic causes can no longer
be regarded as exculpatory.
[50] Kriegler J, in
Sanderson
, considered
that it is by no means only the accused who has a legitimate interest
in a criminal trial commencing and concluding
reasonably
expeditiously. At para 37 he stated the following:
‘
Since time immemorial it has
been an established principle that the public interest is served by
bringing litigation to finality.’
[51] Importantly the
Constitutional Court noted that barring a prosecution – in
Sanderson
, there was
an application for an order in those terms before the trial began –
was far reaching. In that case, because the
trial had not begun,
there was no real opportunity to ascertain the real effect of the
delay on the outcome. Kriegler J observed
that such an order prevents
the prosecution from presenting society’s complaint against an
alleged transgressor of society’s
rules of conduct and that in
the absence of significant prejudice to an accused, it would seldom
be warranted. In favour of the
prosecution, the Constitutional Court
considered the difficulty in handling complaints of sexual abuse in
children. In
Sanderson
,
after weighing all the necessary factors, the Constitutional Court
held that it was not an appropriate case to order a stay of
the
prosecution.
[52] In
Bothma
v Els
2010 (2) SA 622
(CC), the
Constitutional Court dealt with a 37-year pre-trial delay. It
concerned the prosecution of someone for allegedly having
raped a
13-year-old school girl and thereafter repeatedly subjecting her to
sexual abuse. The alleged victim had waited decades
before turning to
the criminal justice system. In
Bothma,
the Constitutional Court considered that in the
balancing of the various factors relating to prejudice to the
accused, the nature
of the offence was a necessary counter weight to
be taken into account. It referred with approval to the decision of
this court
in
Zanner v Director of Public
Prosecutions, Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA), in which it was considered important to have regard to those
distressed by the horrors of the alleged offence. In
Zanner
,
this court thought that against the accused’s interests should
be juxtaposed the societal demand in serious offences that
an accused
should stand trial. The Constitutional Court noted that child rape is
an especially egregious form of personal violation.
It had regard to
the fact that only recently have adult women come to grips with
sexual abuse they suffered as children and were
more willing to
confront their abusers. This process, however, generally takes quite
a long time. It is clear in
Bothma
,
that the special character of the sexual abuse of children, its
impact on them and the time it takes to come to terms with it,
are
especially important when a permanent stay of prosecution is sought
in relation thereto.
[53] In my view,
Satchwell J properly weighed up the necessary factors. Even
contemplating that the position of women, as a vulnerable
class,
might well have come into play in the trial, given the lack of
particularity supplied by the DPP, it is difficult to take
it into
account. There is no engagement by the DPP on affidavit about how
such factors impacted on the duration of the trial and
on the delay
in the prosecution of the appeal. There is no indication that the
prosecution has endured for so long and the appeal
was unduly delayed
due to the difficulties attendant upon a particularly vulnerable
class of victims. There was no reliance thereon
by the DPP.
[54] It is true that
there is reference by the DPP to foreign nationals who apparently had
testified that they had been brought
to South Africa and forced into
prostitution. One would have expected that the DPP, allegedly
concerned about the issues thrown
up by the evidence already adduced,
would act with greater purpose and commitment. Should a court,
without an end in sight in respect
of the proposed appeal (in terms
of s 310) and therefore no indication of when the trial might resume,
in the event of a successful
outcome for the DPP, expect an accused
to continue to be in limbo? In the totality of the circumstances of
this case, I think not.
[55] I can find no fault
with Satchwell J’s reasoning in her path toward concluding that
a permanent stay of the prosecution
was justified. She was correct in
laying the fault for the delay at the door of the DPP. She was
correct to conclude that the inordinate
delay was inexcusable. The
learned judge was correct in her reasoning about the impact of the
delay on the trial that itself was
unduly prolonged. This was ironic,
given that the justification for engaging ‘private’
prosecutors was that it would
result in greater efficiency and
expedition.
[56] In my view, the
permanent stay of the prosecution ordered by the court below was
justified. I express caution concerning Satchwell
J’s remarks
about a successful result in the appeal by the DPP in terms of s 310,
resulting in double jeopardy for Phillips
or, indeed, for any
accused. It is an open question whether an irregularity resulting in
an acquittal or conviction is in effect
a decision properly arrived
at on the merits and whether it truly results in double jeopardy. The
answer to that question might
very well depend on the circumstances
of the case, more particularly the nature of the irregularity, the
evidence already heard
and the prejudice that might ultimately result
for an accused. We do not make any pronouncement on that issue and it
was unnecessary
for the court below to say anything in that regard.
Additionally, it was not necessary for the court below and,
considering the
reasons provided above, it is also not necessary for
us to engage in a discussion on the constitutionality of s 310 of the
Act.
Phillips was arrested more than twelve years ago. An appeal
record has still not been finalised. The time has come to put an end
to a sorry saga. This, the high court below rightly attempted to do.
[57] Satchwell J’s
criticism of the deponent on behalf of the minister for failing to
provide justification for the right
of an appeal by the DPP in terms
of s 310 was in my view not well-grounded. An extensive international
comparative study of the
right by prosecution authorities to appeal
decisions against acquittals was referred to. That study was relevant
and would certainly
have been of assistance in the event that the
constitutionality of s 310 of the Act had to be decided.
[58] It is now necessary
to address an issue referred to earlier, namely an unethical letter
sent to the Deputy Judge-President
of the South Gauteng High Court by
the DPP’s office, concerning the prosecution of the appeal in
terms of s 310 of the Act.
In a letter dated 3 June 2010 Mr GS Maema,
the then Acting Director of Public Prosecutions, based at the South
Gauteng High Court,
Johannesburg stated, inter alia, the following:
‘
1. The accused is the owner of
a well-known brothel – The Ranch - that was situated in
Rivonia.
. . .
3. This case is a prime example of
human trafficking as some of the prostitutes testified that they were
brought to SA under false
pretences and forced to work at The Ranch.
The trafficker testified that he brought the women to SA in
conjunction with the accused.
The accused also paid for the traveling
expenses of the women brought to SA.’
[59] Counsel representing
the DPP rightly conceded that the letter was indefensible and
ethically questionable. He agreed that it
was deserving of censure.
It is unacceptable for the office of the DPP to engage in a
communication, in a tone that was rightly
described by Phillips’
legal representatives as being familiar and collaborative. The Deputy
Judge President rightly registered
his dismay in a letter to the
DPP’s office. The office of the DPP should know better than to
communicate with the head of
a court on the merits of an appeal
before it is heard.
[60] There is one
remaining aspect that requires brief attention. The court below
ordered that the appeal in terms of s 310 be permanently
struck from
the roll. Given that the appeal in terms of s 310 had not been
properly enrolled, and that, in any event, it had been
withdrawn from
the roll, that part of the order of the court below is difficult to
understand. The permanent stay of the prosecution
of the appeal
ordered by the court below would in any event have been the end of
the litigation path between the parties. Accordingly
the order
requires to be adjusted minimally. The parties were agreed that in
the event of an outcome favourable to Phillips, the
order was to be
altered in the form that appears hereafter.
[61] The following order
is made:
1 The appeal is dismissed
with costs, including the costs of two counsel.
2 Paragraph 1 of the
order of the court below is altered to read as follows:
‘
1. The appeal of the first
respondent (“Director of Public Prosecutions”) against
the judgment and order handed down
by Mr S.P. Bezuidenhout in the
Regional Magistrates Court for the Regional Division of Gauteng in
case No 41/1899/00 on 26 November
2008 in which the Learned
Magistrate acquitted the applicant (“Andrew Lionel Phillips”)
is permanently stayed.’
____________________
MS NAVSA
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT: P. Ellis SC
Instructed
by:
The
State Attorney, Johannesburg
The
State Attorney, Bloemfontein
FOR
RESPONDENT: MR Hellens SC (with him David Unterhalter SC)
Instructed
by
Shannon
Little Attorneys, Alberton
Webbers
Attorneys, Bloemfontein
1
Section
39(2) provides:
‘
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.’
2
Section
106(1)
(h)
reads as follows:
‘
When an accused
pleads to a charge he may plead–
. . .
(h)
that the
prosecutor has no title to prosecute.’
3
Section
310(1) of the Act provides as follows:
‘
When a lower
court has in criminal proceedings given a decision in favour of the
accused on any question of law, including an
order made under
section 85(2), the attorney-general or, if a body or a person other
than the attorney-general or his representative,
was the prosecutor
in the proceedings, then such other prosecutor may require the
judicial officer concerned to state a case
for the consideration of
the provincial or local division having jurisdiction, setting forth
the question of law and his decision
thereon and, if evidence has
been heard, his findings of fact, in so far as they are material to
the question of law.’
4
Section
106(4) reads as follows:
‘
An
accused who pleads to a charge, other than a plea that the court has
no jurisdiction to try the offence, or an accused on behalf
of whom
a plea of not guilty is entered by the court, shall, save as is
otherwise expressly provided by this Act or any other
law, be
entitled to demand that he be acquitted or be convicted.’
5
Rule
67 of the Rules Regulating the Conduct of the Proceedings of the
Magistrates’ Courts of South Africa regulates the
preparation
of a record of proceedings on appeal to the high court. Rule 67(5)
provides:
‘
Upon
an application for leave to appeal being granted the registrar or
clerk of the court shall prepare a copy of the record of
the case,
including a transcript thereof if it was recorded in accordance with
the provisions of rule 66(1), and place such copy
before the
judicial officer who shall within 15 days thereafter furnish to the
registrar or clerk of the court a statement in
writing showing–
the
facts he or she found to be proved;
his or her reasons for
any finding of fact specified in the appellant’s statement of
grounds of appeal; and
his or her reasons for
any ruling on any question of law or as to the admission or
rejection of evidence so
specified as appealed against.’
6
See
D & H (Pty) Ltd v Sinclaire
1971 (2) SA 157
(W) at
158C-E, citing
Campbell v Monto
1952 (3) SA 82
(T) at 84H-85A
and
R v Kluyts
1951 (1) SA 474
(C) at 478F-H
7
See
Massey-Ferguson (South Africa) Ltd v Ermelo Motors (Pty) Ltd
1973
(4) SA 206
(T) at 214G-H.
8
See
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC) para 30;
The Legal Aid Board (Ex parte) v Pretorius
[2007]
1 All SA 458
(SCA) para 43 and
Betts v Brady
(1941) 316 US
455
at 472.