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[2010] ZASCA 129
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Van der Merwe v National Director of Public Prosecutions and Others (373/09) [2010] ZASCA 129; 2011 (1) SACR 94 (SCA) ; [2011] 1 All SA 600 (SCA) (30 September 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 373/09
In the matter between:
GARY WALTER VAN DER MERWE
.........................................................
Appellant
and
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
..........................
1
st
Respondent
THE HEAD OF THE DIRECTORATE OF
SPECIAL
OPERATIONS
...........................................................................................
2
nd
Respondent
THE MINISTER OF SAFETY AND SECURITY
........................................
3
rd
Respondent
SENIOR SPECIAL INVESTIGATOR
PHILLIPUS
DU TOIT HAYWOOD
................................................................................
4
th
Respondent
INSPECTOR LIONEL TAYLOR
................................................................
5
th
Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.......................................................................................
6
th
Respondent
Neutral citation:
Van der
Merwe v NDPP (373/09)
[2010] ZASCA 129
(30 September 2010)
Coram:
HARMS DP, NUGENT,
SHONGWE and TSHIQI JJA and BERTELSMANN AJA
Heard:
20 AUGUST 2010
Delivered: 30 SEPTEMBER 2010
Summary:
Fair trial –
appellant charged with transgressing Exchange Control Regulations and
defeating ends of justice – appellant
alleging that
investigation against him conducted by the Directorate of Special
Operations (DSO) (Scorpions) acting outside their
mandate –
appellant before pleading launching application in terms of section
172(1) of the Constitution to have consequences
of DSO's alleged
conduct declared unlawful, invalid and unconstitutional –
whether court obliged by s 172(1) to issue a declaratory
order if
consequences of alleged conduct are found to be such –
application amounting to preliminary litigation which must
be
discouraged – court not obliged to issue declarator, even if
appellant could have established a case on the facts –
issues
arising from DSO's alleged conduct to be resolved by trial court –
dismissal of application by High Court confirmed
on appeal.
__________________________________________________________________
ORDER
_______________________________________________________________________
On appeal from: Western Cape High
Court (Cape Town) (Olivier AJ sitting as court of first instance).
The following orders are made:
1. The appeal is dismissed with costs
which include the costs of two counsel.
2. The cross-appeal is dismissed.
3. The appellant is to pay the costs
of the application for condonation and of the application for a
postponement.
________________________________________________________________
JUDGMENT
________________________________________________________________
BERTELSMANN AJA (Harms DP, Nugent,
Shongwe and Tshiqi JJA concurring)
INTRODUCTION
[1] The appellant –
Mr Gary Van der Merwe – is a businessman who faces two criminal
charges of having contravened the
Exchange Control Regulations and of
defeating the ends of justice respectively. The offences are alleged
to have been committed
during July 2004 when the appellant was
arrested at the Cape Town International Airport. Foreign currency
found in his possession
was attached in terms of
s 20
of the
Criminal
Procedure Act 51 of 1977
. An application to have the currency
released was dismissed by the Cape High Court. An appeal to the full
court of that division
was unsuccessful.
1
An appeal to the
Constitutional Court also failed.
2
[2] After several postponements the
appellant’s trial was set down for 9 June 2008 in the Regional
Court Bellville. The appellant
has not yet pleaded to the charges and
indeed on 9 June 2008 he launched an urgent application for a
declaratory order that the
Directorate of Special Operations (DSO)
(known before the unit’s disbandment as the Scorpions) and one
of its members, Inspector
Haywood, had acted outside the legislative
and operational mandate of the Scorpions by investigating the
offences the appellant
is alleged to have committed. Such offences,
it is common cause, did not fall within the definition of serious and
organised crime
the Scorpions were mandated to investigate and
combat. Such conduct, the appellant argued, was in conflict with the
Constitution
and invalid and should be declared to be such.
[3] Needless to say, conduct cannot be
declared to be invalid, but only the legal consequences of that
conduct. During the hearing
of the appeal the order the appellant
sought was amended to read: ‘It is declared that the Second and
Fourth Respondents
acted outside of the legislative and operational
mandate of the DSO and the consequences of their conduct are
accordingly unlawful,
inconsistent with the Constitution and
invalid’.
[4] A further declarator was sought in
the notice of motion that the charges brought against the appellant
were unlawful, unconstitutional
and invalid. This relief was not
persisted with.
[5] The court below dismissed the
application on the ground that the issues raised by the appellant
should best be decided by the
trial court. It made no order as to
costs. The appellant was granted leave to appeal to this court. The
first and second respondents
– the National Director of Public
Prosecutions and the Head of the DSO respectively – were
granted leave to cross-appeal
against the costs order.
[6] The Ministers of Safety and
Security and of Justice and Constitutional Development were cited in
the proceedings in the court
below but they played no active role and
abided the decision of the court. Inspector Lionel Taylor, an
inspector in the service
of the South African Police Service, who was
the investigating officer responsible for the appellant’s case
docket, was also
cited, and similarly abided the decision of the
court. The application was opposed only by the first, second and
fourth respondents,
the last-mentioned being Mr Phillipus Haywood,
the fourth – a senior special investigator of the DSO. He was
joined in his
personal capacity because of his alleged transgression
of the DSO’s mandate by investigating the appellant.
THE RELEVANT FACTS
[7] The DSO was created by s 7 of the
National Prosecuting Authority Act 32 of 1998 ('the NPA Act') and
commenced operations in
2001. It was created to deal with national
priority crimes, in particular organised crime and other specified
serious offences.
It was disbanded during 2009 after the amendment of
s 7 of the NPA Act by
s 3
of the
National Prosecuting Authority
Amendment Act 56 of 2008
.
[8] At the time that is relevant to
this appeal the appellant was under investigation by the DSO. The
investigation was authorised
in terms of
s 28(1)
prior to the
amendment referred to above. Various charges of fraud, theft and
contraventions of the Company Act were preferred
against the
appellant and others allegedly acting in concert with him.
[9] Mr Haywood was the lead
investigator in the DSO investigation. He received information on 7
July 2004 that the appellant intended
to take more than R 1 million
in foreign currency out of South Africa on 11 July 2004.
[10] After discussing the matter with
his superiors it was decided to inform the relevant law enforcement
agencies; the Commercial
Crime Unit of the SAPS, the SAPS Border Unit
and SARS.
[11] It is common cause that the
conduct or the anticipated conduct of the appellant – if it
constituted an offence –
did not fall within the definition of
serious and organised crime that the Scorpions were mandated to
investigate. That notwithstanding,
Mr Haywood took an interest in the
matter and he travelled to the airport on 11 July 2004 in the company
of Mr Louw of SARS. There
he learnt that the appellant had changed
his flight to 13 July 2004.
[12] On that day Mr Haywood returned
to the airport with another DSO member, Mr Koekemoer. There they met
Captain Koegelenberg and
Inspector Gululu of the Border Unit and Mr
Guerreiro of Customs. Mr Haywood pointed the appellant out to the
Border Unit.
[13] Mr Nico Maree of the SARS was
requested by Mr Guerreiro to assist by obtaining a customs
declaration from the appellant. The
appellant agreed to a search of
his luggage in which the foreign currency was discovered.
[14] The matter was handed to the
Border Unit. Captain Koegelenberg and Inspector Gululu allowed the
appellant to board the plane
as they were uncertain which regulation
of the Exchange Control Regulations the appellant might have
transgressed. Enquiries from
the Commercial Branch and from Mr
Haywood elicited the information that regulation 3(1)(a) was
contravened. Inspector Gululu then
had the appellant removed from the
aircraft. He was arrested and the currency confiscated. The appellant
was handed over to the
Commercial Branch.
[15] The next morning Inspector Taylor
was assigned to investigate the matter and he interviewed the
appellant on 14 July 2004.
At the subsequent bail application on the
same day, Adv Van Vuuren of the DSO appeared, duly authorised by a
written delegation
by the Director of Public Prosecutions; Western
Cape. Another member of the DSO, Adv Bunguzana, received a similar
delegation.
Inspector Taylor consulted with Adv Van Vuuren on the
bail application and the bail amount. Mr Haywood was present at the
bail
hearing.
[16] On 28 October 2004 the appellant
was arrested on the fraud charges that were being investigated by the
DSO. According to Mr
Haywood he approached Inspector Taylor with an
eye to a joinder of the fraud and exchange control charges, but met
with a negative
response. Nonetheless, it is common cause that from
that date until the end of 2007 the matters were dealt with on the
basis that
the appellant would be tried in the High court on all the
charges.
[17] According to the appellant, all
postponements of the matter, of which there were several, were, with
one exception, attended
to by members of the DSO. On 22 April 2005,
Adv Bunguzana informed the court at one such postponement that the
case was investigated
by the Scorpions after initially having been
the responsibility of the SAPS. Correspondence on behalf of the
prosecution and the
investigators was sent on the DSO letterhead. One
potential witness to the exchange control charges, Ms Rohr, informed
the appellant
that Mr Haywood had told her that he was the
investigating officer when he subpoenaed her.
[18] As it turned out, the appellant
was arraigned for trial in the regional court. The trial was
postponed when the present application
was launched and has still not
commenced.
THE ARGUMENT IN THE COURT A QUO
[19] The appellant’s case is
that the entire investigation against him was conducted
surreptitiously by the DSO, using other
agencies as puppets, and the
process of identifying witnesses, collecting evidence and preparing
the prosecution was orchestrated
by the department because of an
improper intention on the part of the DSO to persecute the appellant.
[20] The appellant submitted that in
doing so the DSO – and in particular Mr Haywood – acted
outside its statutory authority
by becoming engaged in the case
against him. It was submitted that the investigation was not and
could not be authorised in terms
of s 28 of the NPA Act, which
restricted the DSO mandate to organised crime and other specified
offences. Exchange control violations
admittedly did not resort under
the DSO. Mr Haywood and the other members of the DSO, so it was
submitted, therefore acted unconstitutionally,
irregularly and
unlawfully by orchestrating the investigation against him.
[21] The appellant argued that s
172(1) of the Constitution obliged the court to issue a declaration
that the investigation conducted
in the manner alleged was unlawful.
That section provides, amongst other things, that when deciding a
constitutional matter within
its power, a court ’must declare
that any law or conduct that is inconsistent with the Constitution is
invalid to the extent
of its inconsistency’. The appellant
sought no consequent relief.
[22] It was not entirely clear from
the appellant’s papers why a declaratory order was sought in
vacuo, without any consequent
relief. In the course of argument
before us, however, counsel for the appellant informed us quite
frankly that a declaratory order
would bind the trial court when it
was called upon to decide what evidence might be admitted.
[23] The respondents denied any
suggestion that the DSO had played any part in the investigation
against the appellant, other than
to pass information of the possible
commission of an offence on to other law enforcement agencies. The
DSO had co-operated with
the prosecution services while it was
intended to prosecute all charges in one trial.
[24] The respondents furthermore
submitted that the issue raised by the appellant was one that ought
not to be decided piecemeal,
but that the trial court was the
appropriate forum to deal with questions relating to the
admissibility of evidence, the authorisation
of the public prosecutor
to prefer the charges against the appellant and the appellant’s
right to a fair trial.
[25] The court a quo found in a
meticulous and closely reasoned judgment that the appellant had
failed to establish that the DSO
had driven the investigation against
him. It also held that the respondents’ version was neither so
unreliable nor so far-fetched
that it would justify a referral to
oral evidence.
[26] That notwithstanding, the court
below considered the question whether the declaratory relief in terms
of section 172(1) of
the Constitution should be granted in the event
of its findings on the merits being incorrect. After a careful
consideration of
relevant authorities the court concluded that it had
the discretion to consider whether an order of this nature should be
issued
or not. Weighing the facts of the matter the learned judge
concluded that it would be inappropriate to decide the constitutional
issue raised by the appellant, which should best be left to be
decided by the trial court. The application was therefore dismissed.
No costs order was made.
THE ARGUMENTS BEFORE US
[27] The court below held against the
appellant on the merits and found that the allegedly, unlawful and
unconstitutional conduct
of the DSO and Haywood had not been
established. Although it would be difficult to fault the court below
on this finding, I will
assume for present purposes that the
appellant indeed made out a case that the DSO exceeded its statutory
mandate and that its
conduct was thus inconsistent with the
Constitution. The question that remains is whether a court is obliged
in the circumstances
to issue a declaratory order, notwithstanding
that no consequent relief is claimed.
[28] It was argued
on behalf of the appellant that s 172(1) of the Constitution allows
no room for the exercise of a discretion
once conduct is found to be
unconstitutional. But that argument does not find support in the
decided cases. On the contrary, the
following was said in
Islamic
Unity Convention v Independent Broadcasting Authority & others:
3
‘
A
Court's power under s 172 of the Constitution is a unique remedy
created by the Constitution. The section is the constitutional
source
of the power to declare law or conduct that is inconsistent with the
Constitution invalid. It provides that when a Court
decides a
constitutional matter, it
must
declare
invalid any law or conduct inconsistent with the Constitution. It
does not, however, expressly regulate the circumstances
in which a
Court should decide a constitutional matter. As Didcott J stated in
J
T Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others:
"Section
98(5) admittedly enjoins us to declare that a law is invalid once we
have found it to be inconsistent with the Constitution.
But the
requirement does not mean that we are compelled to determine the
anterior issue of inconsistency when, owing to its wholly
abstract,
academic or hypothetical nature should it have such in a given case,
our going into it can produce no concrete or tangible
result, indeed
none whatsoever beyond the bare declaration."
.
. .
In
determining when a Court should decide a constitutional matter, the
jurisprudence developed under s 19(1)(a)(iii) will have relevance,
as
Didcott J pointed out in the
J T Publishing
case. It is,
however, also clear from that judgment that the constitutional
setting may well introduce considerations different
from those that
are relevant to the exercise of a Judge's discretion in terms of s
19(1)(a)(iii).’
[29] The
appellant’s counsel relied for the proposition that a court
before whom a constitutional issue is raised has no alternative
but
to rule on the matter on
Dawood
& Minister of Home Affairs & others,
4
and
Matatiele
Municipality & others v President of the RSA & others (No
2).
5
Neither decision
supports the argument. In both matters the court was faced with
constitutional issues that needed to be decided
in the interests of
justice.
[30] The very
wording of section 172 (1) imposes a duty upon a court that is
approached to decide a matter said to be constitutional
in nature to
consider whether an order should be granted or not: ‘
When
deciding
a constitutional matter . . .’
[31] In its context
the word ‘when’ means ‘in the, or any, case or
circumstances in which’ (The Shorter
Oxford English Dictionary
on Historical Principles Oxford University Press 1988 reprint p
2534). A court faced with an unmeritorious
forensic finesse, clothed
in constitutional garb, designed to delay or avoid the necessity of
having to plead in a criminal trial,
or to pre-empt a consideration
by the trial court of the admissibility of evidence in terms of s
35(5) of the Constitution, has
a duty to refuse an order that would
encourage preliminary litigation. In
National
Director of Public Prosecutions v King
6
Harms DP said:
'Fairness
is not a one-way street conferring an unlimited right on an accused
to demand the most favourable possible treatment,
but also requires
fairness to the public as represented by the State. This does not
mean that the accused's right should be subordinated
to the public's
interest in the protection and suppression of crime; however, the
purpose of the fair trial provision is not to
make it impracticable
to conduct a prosecution. The fair trial right does not mean a
predilection for technical niceties and ingenious
legal stratagems,
or to encourage preliminary litigation - a pervasive feature of white
collar crime cases in this country. To
the contrary: courts should
within the confines of fairness actively discourage preliminary
litigation. Courts should further be
aware that persons facing
serious charges - and especially minimum sentences - have little
inclination to co-operate in a process
that may lead to their
conviction and 'any new procedure can offer opportunities capable of
exploitation to obstruct and delay'.
7
One
can add the tendency of such accused, instead of confronting the
charge, of attacking the prosecution.’
And in
Thint
(Pty) Ltd v National Director of Public Prosecutions & others;
Zuma & another v National Director of Public Prosecutions
&
others
8
Langa CJ said:
‘
I
nevertheless do agree with the prosecution that this court should
discourage preliminary litigation that appears to have no purpose
other than to circumvent the application of s 35(5). Allowing such
litigation will often place prosecutors between a rock and a
hard
place. They must, on the one hand, resist preliminary challenges to
their investigations and to the institution of proceedings
against
accused persons; on the other hand, they are simultaneously obliged
to ensure the prompt commencement of trials. Generally
disallowing
such litigation would ensure that the trial court decides the
pertinent issues, which it is best placed to do, and
would ensure
that trials start sooner rather than later. There can be no absolute
rule in this regard, however. The courts' doors
should never be
completely closed to litigants.’
In
Key
v Attorney-General, Cape Provincial Division, & another
9
Kriegler J
emphasized that, if evidence is tendered to which the accused
objects, it is for the trial court to decide in the light
of all the
circumstances of the case whether fairness requires the evidence to
be led or to be excluded.
[32] The same
considerations must apply in this case. It was well-established
before the present constitutional era that a criminal
trial is not to
be conducted piecemeal, and that continues to apply today. An accused
is not entitled to have the trial interrupted
– or to have it
not even begin – so as to have alleged irregularities reviewed
by another court in the course of the
trial. It is important to bear
in mind that while the Constitution guarantees to an accused a fair
trial that does not mean that
the prosecution must satisfy the
accused in advance that the trial will indeed be fair. It is the duty
of the trial court to try
a charge, and to ensure that the trial is
fair, and if it turns out that it was not, then any conviction that
followed might be
set aside. It might even turn out that the accused
is acquitted, in which case the alleged irregularities will be
irrelevant. Litigation
of the kind that is before us falls squarely
into the category of preliminary litigation that ought to be avoided
and discouraged.
As Davis J said in
Sapat
& others v The Director: Directorate for Organised Crime and
Public Safety & others:
10
‘
For
these reasons, I find that the essential purpose of applicants'
notice of motion was directed to the constitutionality and hence
admissibility of certain evidence which has been extracted by way of
blood, semen and other samples. I consider that these questions
should be determined by the trial court when appraised of the full
factual context within which this evidence is sought to be admitted.
In this way a correct balance between the right to due process and
the imperative of crime control can be struck.'
[33] No grave injustice would result
were the issues raised by applicants to be determined by the trial
court. It was said on behalf
of the appellant that a regional court
has no jurisdiction to decide constitutional issues, but that is only
partly correct. A
regional court, as with any criminal court, has the
duty to ensure that a trial is fair, and that duty necessarily
requires it
to determine at times whether the accused’s
constitutional rights have been breached.
[34] I have pointed out above that a
court is not obliged to entertain a constitutional claim in a vacuum
and thus declaratory relief
is not there for the asking. At this
stage the appellant asks for a declaration to be made in vacuo. No
good reason commends itself
why a court should consider such a claim.
The court below was correct in dismissing the claim and the appeal
must fail.
THE CROSS-APPEAL
[35] The trial court made no costs
order in the light of what it regarded as serious constitutional
issues that the appellant raised.
[36] The first and second respondents
submit that the application was vexatious and purely intended to
delay the criminal proceedings.
For this reason, it was submitted
that the costs of the proceedings a quo should be awarded to the
respondents.
[37] Had this court sat as court of
first instance, I would have been strongly minded to grant a costs
order against the appellant.
However, it cannot be said that the
trial court exercised its discretion not to award costs to the
successful respondents capriciously
or injudiciously. There are no
exceptional circumstances that might justify interference with the
order.
[38] The cross-appeal must therefore
be dismissed.
[39] As the hearing of the
cross-appeal only occupied a short period of the hearing of this
appeal no costs order will be made in
respect thereof.
THE CONDONATION AND POSTPONEMENT
APPLICATION
[40] While the appeal was pending, the
appellant failed to adhere to the time limits laid down for the
prosecution thereof. The
record was filed late. The appellant
launched an application for condonation of the late filing of the
appeal and for a postponement
thereof, but arranged an extension for
the filing of the record with the office of the Registrar of this
court. The respondents
opposed the application for condonation and
the application for a postponement.
[41] The application for a
postponement was not persisted with, nor was the opposition to the
application for condonation. The respondents
are nonetheless entitled
to the costs of those applications as neither was withdrawn and
remained live issues until the matter
was called. The respondents are
entitled to have this aspect disposed of in their favour.
[42] The following orders are made:
1. The appeal is dismissed with costs
which include the costs of two counsel.
2. The cross-appeal is dismissed.
3. The appellant is to pay the costs
of the application for condonation and of the application for a
postponement.
__________________
E BERTELSMANN
ACTING JUDGE OF APPEAL
APPEARANCES:
For
appellant: A Katsz SC
D
Simonsz
Instructed
by:
Carl van der Merwe Attorneys c/o
Cornel Stander Attorneys, Cape Town
Webbers
Attorneys, Bloemfontein
For
respondent: A de V la Grange SC
A
Erasmus
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
1
Reported
as
Van der Merwe & another v Nel &
others
2006 (2) SACR 487
(C).
2
Reported
as
Van der Merwe & another v Taylor N O &
others
2008 (1) SA 1
(CC).
3
[2002] ZACC 3
;
2002
(4) SA 294
(CC) paras 10-11.
4
[2000] ZACC 8
;
2000
(3) SA 936
(CC).
5
[2006] ZACC 12
;
2007
(6) SA 477
(CC).
6
2010
(2) SACR 146
(SCA) para 5.
7
R
v H; R v C
[2004] UKHL 3
([2004
[2004] UKHL 3
;
2 AC 134
;
[2004] 1 All ER 1269
;
[2004] 2 WLR 335
;
[2004] HRLR 20
; [2004]
2
Cr App R 10
[2004] UKHL 3
; ;
16 BHRC 332
para 22
per
Lord Bingham of Cornhill.
8
2009
(1) SA 1
(CC) (also reported at
[2008] ZACC 13
;
2008 (2) SACR 421
(CC)) para 65.
9
[1996] ZACC 25
;
1996
(4) SA 187
(CC) para 13-14.
10
1999
(2) SACR 435
(C) 443 c-f.