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2022
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[2022] ZAFSHC 244
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Sodi and Others v S In re S v Mokhesi and Others (45/2021) [2022] ZAFSHC 244 (16 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 45/2021
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
In
the matter between:
PHEANE
EDWIN SODI Applicant
2/ Accused 3
BLACKHEAD
CONSULTING (PTY) LTD Applicant
2/ Accused 4
THABANE
WISEMAN ZULU Applicant
3/ Accused 11
ELIAS
SEKGOBELA MAGASHULE Applicant
4/ Accused 13
and
THE
STATE Respondent
In
re:
THE
STATE
versus
NTHIMOTSE
MOKHESI Accused
1
MAHLOMOLA
JOHN MATLAKALA Accused
2
PHEANE
EDWIN SODI Accused
3
BLACKHEAD
CONSULTING (PTY) LTD Accused
4
As
represented by accused 3
DIAMOND
HILL TRADING 71 (PTY) LTD Accused
5
As
represented by Lindikhaya Mpambani
605
CONSULTING SOLUTIONS (PTY) LTD
Accused
6
as
represented by Michele Antia Mpambani
SELLO
JOSEPH RADEBE Accused
7
MASTERTRADE
232 (PTY) LTD Accused
8
ABEL
KHOTSO MANYEKI Accused
9
ORI
GROUP (PTY)
LTD Accused
10
as
represented by accused 9
THABANE
WISEMAN ZULU Accused
11
SARAH
MATAWANE MLAMLELI
Accused 12
ELIAS
SEKGOBELA MAGASHULE Accused
13
NOZIPHO
BELINA MOLIKOE Accused
14
THABISO
MAKEPE Accused
15
ALBERTUS
VENTER Accused
16
JUDGMENT
CORAM:
NAIDOO,
J
HEARD
ON:
Heads
of Argument filed for consideration in Chambers
DELIVERED
ON:
This
judgment was handed down electronically
by circulation to the
parties’ legal representatives via email. The date and time for
hand-down is deemed to be 11h00 On
16 September 2022.
[1]
Four separate applications for leave to appeal against the judgment
in this matter,
handed down on 28 March 2022, served before me,
having been brought by Applicant 2, Pheagane Edwin Sodi (Sodi) and
Blackhead Consulting
(Pty) Ltd (Blackhead) (accused 2 and 3) in one
application, the latter being represented by Sodi, applicant 3
(accused 11), Thabane
Wiseman Zulu (Zulu) and the third application
by applicant 4 (accused 13), Elias Sekgobela Magashule (Magashule).
The applications
are opposed by the respondent (the state). The
applicants assailed the judgment on various grounds which, although
similar in some
respects, differed as a result of the orders granted
against each. By arrangement with the parties, they each filed
Heads
of Argument for consideration of the applications in Chambers,
as is the practice in this Division. As reflected in the Heads of
Argument, Sodi, Blackhead and Magashule were represented by Adv LM
Hodes SC, with Adv (Ms) T Govender and Zulu was represented
by Adv SS
Maakane SC, with Adv AN Tshabalala. The respondent (the state) was
represented by Adv N Cassim SC, with Adv (Ms) S Freese
and Adv (Ms) T
Ngubeni. As the grounds upon which each applicant assails the
judgment differ, it would be prudent to set out those
grounds
separately.
SODI
AND BLACKHEAD
[2]
The applicants in this matter filed their application for leave to
appeal outside
the time allowed by the Uniform Rules and consequently
filed an application for condonation, supported by the attorney
representing
the applicants. He explained fully that the papers were
timeously drawn by counsel and sent to his email address but seemed
to
have ended up in his “junk mail” folder, which he did
not immediately detect. He rectified the error upon discovering
same
and the papers were filed two days out of time. The state took no
issue with the late filing of the application for leave
to appeal and
stated that no prejudice was suffered by such late filing. I,
therefore, see no impediment to granting condonation
for the late
filing of the application. To the extent necessary, such condonation
is granted.
[3]
The applicants assert, in essence, that the court erred in:
3.1
finding that they selectively underlined the wording of Regulation
8(2) of the Regulations pertaining to the
State Capture Commission
(SCC), and thus glossed over the qualification therein that such
statements must be self-incriminatory.
The Regulation in fact
provides that
any
statement made by a witness (at the SCC) are
not admissible against that witness in criminal proceedings. The
import of the Regulation
must be considered against the terms of
reference for the SCC;
3.2
not considering, dealing with or following the order of Judge
President Musi at the pre-trial hearing in this
matter on 3 November
2021), who ordered that the applications concerning the issues raised
by the applicants must be heard prior
to the trial. The effect of
that order is that any argument to the contrary would be subject to
the application of
res judicata
;
3.3
finding that section 85 of the Criminal Procedure Act 51 of 1977 (the
CPA), which related to an objection
to a charge was the appropriate
mechanism for the applicants to challenge the charges brought against
them at the trial. This rendered
the judicial case management process
nugatory;
3.4
finding that the court was called upon to decide the application in a
vacuum, and that the trial court was
the correct forum to decide
declaratory relief, whereas this court was in as good a position as
trial court to decide the issues
before it.
[4]
In opposing the application, the state contended that:
4.1
the court correctly held that the applicants’ challenges in
respect of their fair trial and constitutional
rights are to be
raised and determined by the trial court;
4.2
the correctly exercised its discretion in finding that the
application brought by the applicants
ought not to be
determined at this stage;
4.3
the interpretation that the applicants seek to ascribe to Regulation
8(2) is absurd and impermissible, and
the determination of such an
interpretation can only be undertaken by the court hearing the
criminal trial, after a challenge to
the admissibility of such
evidence is raised in that court;
4.4
JP Musi made no order that the issues raised by the applicants must
be determined before the trial, as he
was not permitted in law to
fetter the discretion of another judge to grant declaratory relief or
not. The contention of the applicants
that JP Musi had already
determined the matter is incorrect, as the record of proceedings
before him shows otherwise;
4.5
He merely ordered the postponement of the matter to 21 and 22
February 2022 and nothing further. He indicated
all the objections
raised could be dealt with once all the papers had been filed. He
further indicated that the judge hearing the
interlocutory could
determine whether the objections were to be dealt with during trial
or at the preliminary stage.
4.6
the applicants’ contention that the court found that section 85
of the CPA was the appropriate mechanism
to challenge the charges
against them is incorrect. The court stated that the law provides for
preliminary objections, raised by
an accused, to charges against him
as provided for in section 85.
ZULU
[5]
Zulu challenges the judgment on the basis that the court erred in:
5.1
not granting the relief he sought, more especially in view of his
reliance on section 27 of the Prevention
and Combating of Corrupt
Activities At 12 of 2004 (PRECCA);
5.2
not finding that the respondent’s deliberate non-compliance
with section 27 of PRECCA renders all charge
based on that Act and
all alternative charges thereto incompetent or invalid and that the
relief sought should have been granted
in consequence thereof;
5.3
finding that the preliminary issues (raised by the applicant) can be
raised as a special plea in the main
trial.
[6]
I pause to not that on 23 May 2022, Zulu filed a Supplementary Notice
of Appeal, in
terms of which he sought to add a further ground of
appeal. This was not done with the leave of the court, or apparently,
with
the consent of the state. No explanation was forthcoming from
him regarding this step, which can only be described as irregular,
or
why it was necessary. To this end, no application for condonation was
filed nor an application to amend his Notice of Appeal.
There is no
obligation on this court to entertain such a document which, in my
view, constitutes an abuse of the Rules of Court
and court processes,
and I will deal no further with it.
[7]
In its opposition to Zulu’s application, the state contends
that:
7.1
the court considered the nature of the relief and concluded that the
relief sought was declaratory in nature,
which called for the court
to exercise its discretion in such a case;
7.2
the court found that the issues raised were in the
nature of being hypothetical, abstract or academic and that
it was
called upon to decide the application in a vacuum, without all the
evidence to be led by the state being put before it;
7.3
even if the state admitted that there was non-compliance with section
27 of PRECCA, another court cannot find
that such admission amounted
to a concession that the state was obliged to comply. A proper
interpretation thereof can only be
embarked upon by the trial court;
7.4
the court’s finding that the charges faced by Zulu under
section 34 of PRECCA are the third alternative
to the charge of fraud
and that it would be inappropriate to deal with it at this stage, is
correct;
7.5
the court did not hold that the applicant’s contentions
regarding the state’s non-compliance with
the provisions of
PRECCA can only be raised as a special plea.
MAGASHULE
[8]
Save for certain grounds, the
rest of the grounds of appeal are the same as those raised
in the
Sodi application. The additional grounds raised in this application
are that the court erred in:
8.1
not dealing with the state’s striking out application in
respect of the applicant’s Founding and
Replying Affidavits, in
spite of submissions made to dismiss the state’s striking out
application. Magashule’s application
was very similar to that
brought by Sodi and Blackhead, and the court dismissed the state’s
application in respect of the
latter accused with costs;
8.2
not deciding upon the declaratory relief sought in the Notice of
Motion, relating to the state’s non-compliance
with section 27
read with section 34 of PRECCA, and in not declaring that accused 13
(Magashule) was not an “executive authority”
as defined
in the Public Finance Management Act 1 of 1999 (PFMA);
8.3
not declaring Ms Cholota was never a state witness, alternatively
that she is a defence witness, and that
the state’s conduct in
respect of Ms Cholota is
prima facie
prosecutorial misconduct;
8.4
not granting the remaining prayers in the Notice of Motion.
[9]
The grounds for state’s opposition to the Magashule application
are the same
as in the Sodi and Blackhead application, in respect of
the state’s non-compliance with section 27 of PRECCA, this
court’s
failure to comply with the order of the JP at a case
management meeting, the court’s finding in respect of section
85 of
the CPA, and its finding that it was called upon to consider
this application in a vacuum. It is not necessary to repeat it here.
With regard to the additional grounds set out above the state
contends that:
9.1
the court correctly exercised its discretion with regard to the
declaratory relief sought, and dismissed the
application;
9.2
the court correctly held that the relief sought by the applicant in
respect of Ms Cholota was moot and/or
academic, as she was to be
charged as a co-accused. Granting the declaratory relief would serve
no purpose.
9.3
the hearing of an appeal was not necessary in respect of the court’s
omission to make an order in respect
of the state’s striking
out application against Magashule. It was implicitly considered and
dealt with by the court when
the Sodi and Blackhead was determined,
which application was dismissed with costs; The court is empowered in
terms of Rule 42(1)(b)
to vary any patent error or omission in its
order.
[10]
Counsel for the applicants and the state correctly set out the test
applicable to an application
for leave to appeal. For the sake of
completeness, I repeat the legal position as it currently stands.
Section 17
of the
Superior Courts Act 10 of 2013
regulates the test
to be applied in an application for leave to appeal. The relevant
provisions of
section 17(1)
provide as follows:
“
(1) Leave to appeal may
only
be given where the judge or judges
concerned are of the opinion that
(a)
(i) the appeal
would
have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the matter under
consideration;”
(my
emphasis and underlining)
[11]
Previously, an applicant was merely required to show that there is a
reasonable possibility that
another court, differently constituted,
would find differently to the court against whose judgment leave to
appeal is sought. It
is clear from
section 17(I)
, set out above, that
the situation is now somewhat different, and an applicant for leave
to appeal is required to convince the
court that there is a
reasonable prospect of success and not merely a possibility of
success. In the matter of
The Mont Chevaux Trust v Tina Goosen +
18 2014 JDR LCC,
Bertelsmann J held that:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a high court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion….The
use of the word ‘would’ in the new statute indicates a
measure of certainty that another court will differ from the
court
whose judgment is sought to be appealed against.”
[12]
The Mont Chevaux decision was cited with approval in a number of
cases, one such matter being
Matoto v Free State Gambling and
Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8 June 2017)
, a
decision emanating from this Division, where my brother Daffue J
echoed the remarks of Bertelsmann J at paragraph 5 and remarked
that
“There can be no doubt that the bar for granting leave to
appeal has been raised…The use by the legislature of
the word
“only” emphasized supra, is a further indication of a
more stringent test.”
The
Full Court in
Acting National Director of Public Prosecutions and
Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC 489 (24 June
2016)
also cited Mont Cheveaux with approval.
[13]
The judgment sets out comprehensively the reasons for the court’s
findings in respect of
each application, and I do not intend
repeating those reasons here. Preliminary litigation prior to the
commencement of a criminal
trial has been strongly discouraged by the
apex court of this country, as well as the Supreme Court of Appeal.
The legal position
has been fully set out in the judgement, and it is
also not necessary to repeat it here. One of the grounds of appeal is
that JP
Musi, who dealt with a case-management hearing, “ordered”
that the preliminary issues being raised by the applicants
be heard
and determined prior to the trial. A perusal of the transcript of
those proceedings indicates this not to be the case.
[14]
The civil applications that were heard on 21 and 22 February 2022,
were not launched at the time
of the case management hearing on 3
November 2022, so it defies logic that the case- management judge
would order another judge
to determine the issues. The transcript of
the proceedings on 3 November 2022 does not support the applicants’
contentions.
The court simply adjourned the matter for the applicants
to ventilate the issues and objections they raised. The court did not
order, nor could it permissibly so order, that the court hearing the
applications was obliged to hear and determine the issues.
The order
that JP Musi made at the case management hearing can be found on p
692 of the papers at lines 11 -19 and reads:
·
the matter against
the accused is postponed to 21
st
February 2022.
·
All natural persons
are warned to be in this court again at 9am, the morning of 21
February 2022.
·
With regard to the
objections, the applicants to file their notices of motion on 19
November 2020 (sic).
·
The State then to
answer by the 7
th
of December.
·
The applicants to
reply on the 15
th
of December 2021”
The
state correctly pointed out that the case management judge provided
an opportunity for the applications to be heard, and indicated
that
the judge hearing the applications will decide if the issues raised
by the applicants should be heard before the trial or
at the trial
(refer to P673, lines 6 – 13). That is the discretion that this
court exercised. There is, consequently, merit
in this contention,
which is not based on correct facts.
[15]
Tthe applicants’ contentions in respect of the state’s
non-compliance with the relevant
provisions of PRECCA, have been
dealt with in the judgment. The applicants’ contentions that
such non-compliance on the part
of the state must result in those
charges being quashed, are untenable as the contraventions of the
provisions of PRECCA relate
to the third alternative to the charge of
fraud. The admissibility of the evidence can only be decided by the
trial court, which
will decide on whether the charges have been
validly proferred against the applicants, after hearing arguments
and/or evidence
in this respect All the other issues raised as
grounds of appeal by the applicants have been dealt with in the
judgment.
[16]
The contentions raised by Zulu have likewise, been dealt with in the
judgment. His only complaint
is the non-compliance by the state of
section 27 of PRECCA. The contentions in this regard are untenable
for the same reasons I
set out in respect of the Sodi and Blackhead
application.
[17]
The relief sought in the Magashule application was purely
declaratory, and for the reasons set
out in the judgment it was not
appropriate for the court to have determined the application at this
stage. With regard to the state’s
striking out application
against Magashule, it was indeed an oversight on the part of the
court in not including the court’s
order in respect of that
striking out application. The submissions made in respect of this
application were indeed taken into account,
and the court had
intended to dismiss the application to strike out brought against
Magashule, with costs
[18]
As correctly pointed out by the state, Rule 42 does make provision
for the order to be corrected,
which the court will do, without the
need for that aspect to be decided on appeal. The relevant provision
is Rule 42(1)(b), which
reads thus:
1)
The court may, in addition to any other powers it may have,
mero
motu
or upon the application of any party affected, rescind
or vary:
(a)
……
(b)
an
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity, error
or”
omission;
[19]
With regard to all three applications for leave to
appeal, I am satisfied that the applicants did not meet
the threshold
required for such applications, namely that another court would come
to a different conclusion. If regard is had
to the established legal
position regarding preliminary litigation in respect of matters
pending in a criminal court, it is clearly
not in the interests of
justice for this matter to be delayed in the manner that it has been.
It was contended in the Sodi and
Magashule applications that the test
for appealability has been extended, and that the interests of
justice is the standard that
underpins all such applications.
[20]
While in the case referred to by the applicants, namely
City of
Tshwane v Afriforum 2016(6) SA 279 (CC),
the court was dealing,
in the extract quoted, with the appealability of interim orders, I am
in agreement with the principle that
the interests of justice should
be the standard that underpins all judicial considerations and orders
that a court makes. The constitutional
imperative that trials should
begin and be finalised expeditiously refers not only to the interests
of accused persons, but also
those who complain. The latter are
equally entitled to expect that their complaints will be brought to
court and determined to
finality, speedily and expeditiously. In this
matter, the complainants are the general citizenry of South Africa,
on whose behalf
these prosecutions have been instituted. It is in the
public interest and in the interests of preserving public confidence
in the
proper functioning of the criminal justice system that the
trial in this matter should commence without undue delay. In my view,
the current applications have no merit and to grant such applications
would not serve the interests of justice.
[21]
A further matter that requires mention is the filing by Sodi and
Magashule, of Volume 2, Part
4 of the State Capture Report.
Correspondence between the legal representatives of these applicants
and the state has been filed,
indicating that there was agreement
reached between the parties to bring this report to the attention of
the court. The letter,
dated 3 May 2022, from BDK Attorneys,
representing Sodi and Blackhead, to the State Attorney representing
the state gives a clue
as to the purpose of filing this report. The
attorneys assert that the state referred in its consolidated practice
note, in the
main application, to Part 1 of the Report of the State
Capture Commission. They quote the relevant portion of that practice
note
which cites p803 of the report to say that “
accused no.
4 made payments amounting to millions of rand to the ANC after
receiving contracts from government, including the Asbestos
project
contract with the Department, Acting Chief Justice Zondo says that
this matter, and two others referred to in the same
context need to
be prioritised by the NPA”
[22]
They then assert in para 4 of the letter that the state’s
express reference to Part 1 of
the SCC Report opens the way for
further portions of the Report to be brought to the attention of the
court. In para 5, the attorneys
assert that the state’s
argument that Sodi did not make any self-incriminating statements at
his attendance at the SCC is
factually incorrect, as is borne out by
Part 4 of the Report, and a plain reading of the transcripts, which
no doubt had a bearing
on the judgment. They then seek permission to
send the letter and Report to the court.
[23]
The State attorney responded the next day, in which they disagree
that that Part 1 of the Report
had any bearing on the judgment. They
further assert that the Report and recommendations flowing therefrom
constitute an opinion
and have no evidential value in a criminal
trial, but that they will not object if the attorneys wished to bring
the Report to
the attention of the court. The State Attorney further
pointed out that any self-incriminating statements by Sodi cannot be
used
against him due to the protection afforded him by the
constitution, the SCC Regulations and the common law. The State
Attorney
pointed out that they rely on extrinsic evidence and not the
Report to prove a
prima facie
case against Sodi. The State
Attorney also requested BDK Attorneys to point out which portions of
the Report they rely on to contend
that Sodi made self-incriminating
statements. No response to this request appears to have been
forthcoming, or if there was a response,
it was not brought to the
attention of the court.
[24]
The Table of Contents of Part 4, Volume 2 of the Report reads
“
The
Free State Asbestos Project Debacle………………292
The
Free State R1 Billion Housing Project Debacle……456”
The
Report commences on p 265 and concludes at p547. The leave of the
court was not sought to introduce what is new evidence, which
did not
feature in the hearing of the main applications. No indication
whatsoever was given to the court of which portions of this
Report
are relied on or how it advances the case of the applicants. It is
trite that there is no obligation on a court to trawl
through reams
of documents to establish what a party relies on.
[25]
The applicants have lost sight of the fact that the court
specifically refrained from dealing
with or pronouncing upon the
merits of the state’s case for the reason that it would be the
subject of criminal proceedings
in the trial court. The reference to
Part 1 of the Report by the state does not make any mention of how
the information contained
on p803 was obtained, and had no bearing on
the issues that were considered in the judgment. Part 1 of the Report
was not taken
into consideration in the judgment. This much is
obvious, even on a cursory reading of the judgment. Therefore,
the contention
that the appellants were entitled to place this
portion of the Report before this court is misplaced. Part 4, Volume
2 of the Report
has no bearing on the judgment in this matter and was
not considered in the current applications. This is exactly the kind
of evidence
that must serve before the trial court in order for
arguments and/or evidence to be heard in order to determine the
relevance or
otherwise of the Report.
[26]
Victor Nkhwashu Attorneys Inc, representing Magashule, wrote an
almost identical letter on the
same day, to the State Attorney as BDK
Attorneys did and received the same response the next day. It is not
understood what relevance
this Report has to Magashule’s case
or which portion thereof is being relied on, as no indication has
been given. The only
paragraph of this letter that was different from
the letter by BDK Attorneys is para 5, where they allege that Part 4
of the Report
demonstrates that there is no criminal case against
their client (Magashule) capable of successful prosecution. It must
be borne
in mind that Magashule did not testify at the SCC, and Part
1 refers to Sodi. Without any further explanation, it makes no sense
for Magashule to have forwarded this Report to the court as it does
not appear to have any bearing on the issues he raised in the
main
application. My comments relating to the role of the Report on the
judgment also apply in respect of the Magashule application.
[27]
In my view, Part 1 of the Report played no part in this court’s
deliberations and consideration
of the issues in the application, and
serve no purpose, other than to unduly burden the already voluminous
papers. Additionally,
Part 4, Volume 2 of the Report plays no part in
the judgment in respect of the applications for leave to appeal.
[28]
Consequently the following orders are made:
28.1
The application for leave to appeal brought by Pheane Edwin Sodi and
Blackhead Consulting (Pty) Ltd is dismissed with
costs, such costs to
include the costs of two counsel;
28.2
The application for leave to appeal brought by Thabane Wiseman Zulu
is dismissed with costs, such costs to include the
costs of two
counsel;
28.3
The application for leave to appeal brought by Elias Sekgobela
Magashule is dismissed with costs, such costs to include
the costs of
two counsel.
S
NAIDOO J
On
behalf of Applicants 2/
Accused
3 & 4: Adv
L Hodes SC, with
Adv (Ms) T Govender
Instructed
by:
BDK Attorneys
c/o Symington De Kok
Attorneys
169B Nelson Mandela Drive
Westdene
Bloemfontein
(Ref: Mr D Möller)
On
behalf of Applicant 3/ Accused 11: Adv SS
Maakane SC, with
Adv AN Tshabalala
Instructed
by: Ntobeko
Dlamini Attorneys Inc
Durban
c/o Strauss Daly
Attorneys
104
Kellner Street
Westdene
Bloemfontein
On
behalf of Applicant 4/Accused 13: Adv L
Hodes SC, with
Adv (Ms) T Govender
Instructed
by:
Victor Nkwashu Attorneys Inc
Bryanston, Johannesburg
c/o Moroka Attorneys
84 Pres Reitz Ave
Westdene
Bloemfontein
(Ref: AG-TM-GG/si)