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[2022] ZAFSHC 347
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Nquru v National Director of Public Prosecutions and Others (153/2021) [2022] ZAFSHC 347 (2 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
153/2021
Reportable
Yes
Of
Interest to other Judges Yes
Circulate
to Magistrates: Yes/No
In
the matter between:
ZWELINZIMA
JOSEPH NQURU
Applicant
and
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
First
Respondent
DIRECTOR
OF PUBLIC PROSECUTION: FREE STATE
Second
Respondent
JW
HARRINGTON
Third
Respondent
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
Fourth
Respondent
REGIONAL
MAGISTRATE MEINTJIES
Fifth
Respondent
REGIONAL
MAGISTRATE GELA
Sixth
Respondent
CORAM
:
SNELLENBURG,
AJ
HEARD:
09
JUNE 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 2 December 2022 at 16h30.
INTRODUCTION
[1]
Mr
Zwelinzima Joseph Nquru [the applicant] is currently standing trial
as accused in two criminal cases involving stock theft, both
of which
are pending in the Welkom Regional Court
[1]
and the Virgina Regional Court
[2]
respectively. The third respondent is executing his duties as the
prosecutor in both cases.
[2]
The
applicant applies on motion for an order that the first and second
respondents, being the National Director of Public Prosecutions
[NDPP] and the Director of Public Prosecutions: Free State [DPP], be
ordered to remove the third respondent as prosecutor in the
aforesaid
criminal cases
[3]
and to replace
the third respondent with another suitably qualified, objective and
impartial prosecutor.
[4]
The
applicant seeks costs against the first, second and third respondent.
[3]
The first, second and third respondents
oppose the application and seek dismissal with punitive costs.
[4]
The fourth, fifth and sixth respondents
abide by the court’s decision.
[5]
I granted condonation to the respective
parties for late filing of various affidavits and granted leave to
the first, second and
third respondents to file further affidavits to
which the applicant replied. The issues are fully ventilated and
serve for adjudication.
THE
APPLICANT’S CASE
[6]
The applicant avers that the third
respondent has failed to act in accordance with the Constitution of
the Republic of South Africa,
1996 [the Constitution], the National
Prosecution Authority Act 32 of 1998 [the NPA Act] and the National
Prosecuting Authority
Code of Conduct in as far as his professional
and ethical duties as prosecutor are concerned.
[7]
The applicant relies on the following
professional and ethical duties:
7.1
In terms of the code of conduct for
prosecutors:
7.1.1
the third respondent must act with
integrity;
7.1.2
the third respondent’s conduct
must be objective, honest and sincere;
7.1.3
the third respondent must respect,
protect and uphold justice, human dignity and fundamental rights as
entrenched in the Constitution;
7.1.4
the third respondent must protect the
public interest and strive to be and has to be seen to be consistent,
independent and impartial;
7.1.5
the third respondent must maintain the
honour and dignity of the legal profession and act in a manner
consonant with his status
as a public prosecutor.
7.2
In execution of his prosecutorial duties
the third respondent is obliged to take into account all relevant
circumstances and ensure
that reasonable enquiries are made about
evidence, irrespective of whether the enquiries are to the advantage
or disadvantage of
an alleged offender.
7.3
To respect the rights of an accused
person in line with the Constitution, the relevant legislation and
applicable instruments as
required in a fair trial.
[8]
It is necessary to deal in some detail
with the applicant’s case as appears from the founding
affidavit. The applicant’s
case is founded on the following
events which the applicant contends entitles him to the relief
sought:
8.1
He knows the third respondent since 1997
when last mentioned was almost 20 years old from the District of
Bethlehem, Free State.
According to the applicant he knew the third
respondent’s father, Harrington Snr, by virtue thereof that his
own father worked
for a farmer who was acquainted with Harrington Snr
and from being a carrier for Harrington Snr and his own father’s
employer
when they hunted. The applicant says that he was amongst the
people attending the third respondent’s birthday party on 26
February 1997. The party was held on the farm Smaldeel which belongs
to Mr Wynand Botha of Bothaville.
8.2
According to the applicant he received a
call on Thursday, 7 August 1997 from Harrington Snr, who practices as
attorney in Bethlehem,
to assist him (Harrington Snr) to transport
and conceal the body of one Daniel Shezi (the conspiracy). The
applicant was 18 years
of age. A group of conspirators, who the
applicant identifies in the founding affidavit, were involved in what
the applicant refers
to as ‘the apparent murder’. The
group allegedly included two police officers of the Stock Theft Unit
stationed at
Vrede and Odendaalsrus respectively; two CID police
officers stationed at Theunissen; one police officer stationed at
Theunissen;
the wife of one of the farmers who was also part of the
conspiracy; and one police officer stationed at Odendaalsrus. The
other
participants were a businessman, a farmer and the owner of the
vehicle used to transport the body.
8.3
The applicant reported the matter at the
Theunissen Police Station the following day. A murder case with CAS
number 51/08/1997 was
opened and recorded. On 8 August 1997 the
applicant confessed the aforesaid incident to Magistrate Van Rensburg
at Virginia, Free
State. According to the applicant neither the
applicant nor the persons implicated by him in the matter have been
prosecuted to
date.
8.4
The applicant reported the matter to the
Organised Crime Unit at Welkom on 11 January 1998 and was interviewed
by one Krappies Meiring
of the unit to whom the applicant states he
made a full disclosure of the incident.
8.5
On 20 January 2004 the applicant
addressed a letter of complaint to the office of the then National
Police Commissioner, the late
Jackie Selebi, regarding the failure of
the police to investigate the matter. The applicant was informed that
the matter would
be allocated to Louis Bester and Piet Pieterse of
Serious Violence Crime, Pretoria. Although the applicant initially
had good communication
with the aforesaid Officers, the Officers
ceased communication with him without any explanation and valid
reason.
8.6
During August 2004 stock theft involving
theft of 93 cattle belonging to Becks Meintjies of White City Farm,
Theunissen was committed.
Wynand Botha and his son Chris Botha were
arrested and detained in connection with the aforesaid offense.
8.7
The applicant alleges that he and one
Philip Schutte were called ‘and transported’ to the
Theunissen police station
by Harrington Snr. On their arrival at the
police station, Harrington Snr and another attorney, Erasmus, who
practiced in Virginia,
were present. Detective Mokoteli of
Odendaalsrus Stock Theft Unit was the investigating officer, and, in
his presence, arrangements
were made that the applicant, against
payment, and Philip Schutte would ‘take a fall’ so that
Wynand Botha and his
son Chris could be released. Harrington Snr
would represent the applicant and attorney Erasmus would represent
Philip Schutte.
Wynand and Chris Botha were ‘unconditionally
released’ and the applicant and Philip Schutte were charged
with the crime
of stock theft. They were both released on bail on the
same day.
8.8
The Regional Court prosecutor, Raymond
McBethy, however presented Schutte’s evidence as s 204 witness.
Schutte implicated
the applicant in the commission of the crime.
Harrington Snr ‘appointed’ Anton Kruger, an attorney
practicing at Virginia
and Theunissen, to represent the applicant
during the trial.
8.9
The applicant states that he was not
involved in the commission of aforesaid stock theft and only became
the accused person as result
of an arrangement and the financial
benefit he was receiving. On advice of Mr Kruger the applicant
pleaded guilty to the stock
theft that he did not commit. He was
convicted by Regional Court Magistrate Jurie Human and sentenced to
an effective period of
12 years imprisonment.
8.10
The applicant avers that his mother
received a monthly income of R5 000.00 (five thousand rand) in return
for him pleading guilty
to the crime he did not commit. He states
that Harrington Snr arranged with Wynand Botha to make the payments
to his mother. These
payments were discontinued at some stage without
explanation. Whilst the applicant was incarcerated, Chris Botha
however deposited
amounts ranging from R100.00 to R200.00 to the
prison in the applicant’s favour. Wynand and Chris Botha
together with Harrington
Snr, in effort to keep peace between
themselves and the applicant and to ‘cover for their bad deeds
that landed him in prison
for the crime he did not commit’,
paid visits to the applicant until 2009.
8.11
According to the applicant there was an
attempt to kill him on 23 December 2009 when his food was poisoned.
Instead, another inmate
ate the food and died instantly. The
applicant avers that members of Correctional Services were involved,
‘apparently at
the request of Benny de Klerk, Wynand Botha and
Harrington Snr’.
8.12
During September 2010 and whilst he was
serving his prison term, a stock theft case was reported at
Theunissen under CAS number
75/09/2010. The complainant was Johan
Prinsloo of Goedehoop Farm Theunissen. The applicant was one of the
accused persons together
with Loutjie Smith, Seun Greysel and Hennie
Klopper who, ‘on turn of events’, turned State witnesses.
8.13
Mr Raymond McBethy again acted as
prosecutor. The case served before Regional Court Magistrate Ludidi
who acquitted the applicant
after a ‘thorough defence by Legal
Aid attorney Zanele Tomoso’ was presented. The applicant states
that the complainant
in this case, Johan Prinsloo, is the son in law
of Becks Meintjies who was the complainant in the case wherein he was
sentenced
to twelve (12) years imprisonment.
8.14
During 2011, a police officer, one
Styger, being one of the police officers implicated in the aforesaid
conspiracy, acted as an
investigating officer in the Welkom CAS
number 514/01/2011 that implicated the applicant in the commission of
another stock theft.
To the applicant’s surprise the
complainant once again was Johan Prinsloo, and his co-accused was
Chris Botha who later turned
a state witness. The Public Prosecutor
in this case was Radebe. Wynand Botha also testified on behalf of the
state in the matter.
Regional Court Magistrate, the late Mr Bosch,
convicted the applicant and sentenced him to an effective period of 8
years imprisonment.
The applicant states that he was convicted
despite the fact that the crime he was convicted of was committed
whilst he was serving
the 12-year sentence. He was therefore
incarcerated when the crime was committed.
8.15
The applicant is currently standing
trial for stock theft in the Welkom Regional Court in case number
SHBF11/2015 where the Regional
Magistrate Meintjies is presiding, and
the third respondent is acting as prosecutor. The applicant relies on
the fact that the
offences that he is accused of were committed
whilst he was still in prison serving the additional sentence that
was imposed by
the Regional Court Magistrate, the late Mr Bosch.
Harrington Snr volunteered to act on his behalf, an offer that the
applicant
avers he could not reject as result of the historic
promises and undertaking that were made to him. The applicant states
that Wimpie
Steenberg, Johannes Coetzee, Paulos Dlamini, Hendrik
Kroots, Luthando Tshangana (an attorney practising in Bloemfontein),
Zacharia
Mswati and one Paballo were his co-accused.
8.16
According to the applicant, Harrington
Snr arranged a plea-bargaining agreement with the third respondent in
terms whereof the applicant
would plead guilty in return for a
lighter sentence, namely that the sentence would run concurrently
with the 8 years sentence
he was serving, whilst the charges against
his co-accused would be withdrawn. The applicant further states that
it “was also
amongst others, the term of the agreement between
my then attorney Harrington Snr, the co-accused, with the approval of
the investigating
officer Greeff (one of the suspects in the
aforesaid murder case) that I was to take a fall against payment”.
8.17
The applicant avers that he ‘cunningly
agreed to the proposed agreement’ as he intended to end the
conspiracy deeds
that had been orchestrated against him over the
years.
8.18
The charges against the co-accused
persons were withdrawn and in return these persons made various
payments on different occasions
in terms of the agreement. The
applicant appended as annexure "FA1" a document evincing a
payment made to him by Luthando
Tshangana which he says proves the
allegation regarding co-accused persons making payments to him.
8.19
The applicant states that the third
respondent was aware of the fact that he was not involved in the
commission of the offences
when the plea-bargaining agreement was
negotiated and was notwithstanding prepared to accept a guilty plea
from the applicant and
not prosecute the ‘actual perpetrators’.
8.20
The applicant states that after having
received various payments from the co-accused persons he reneged on
the agreement by refusing
to plead guilty so that he could expose the
corrupt activities and the perversion of justice by the third
respondent, law enforcement
officers and court officers. The
applicant says that after he refused to plead guilty, and instead of
re-instituting criminal proceedings
against the co-accused persons
who were actually involved in the commissioning of crime whilst he
was in custody at correctional
facilities, the third respondent
presented all the co-accused persons’ evidence on behalf of the
state. This the applicant
says was as result of the history “that
we are having” and the involvement of Harrington Snr.
8.21
According to the applicant various
attorneys and advocates that he appointed to defend him were
instructed to put the version of
events to the witnesses, but they
failed to do so as result of which he consequently terminated their
mandates.
8.22
The applicant is also prosecuted for
stock theft in the Regional Court, Virginia, case STRV 91/2016.
Regional Magistrate Gela is
presiding, and the third respondent is
prosecuting the case. The applicant is represented by Mr Kriel, an
advocate.
8.23
The applicant avers that he was advised
by his former attorney, in consultation with the third respondent, to
testify for the state
against his co-accused in that matter as the
third respondent alleged that the applicant was merely passively and
not “actively
involved in the commission of crime due to his
incarceration”. The applicant informed the third respondent and
his former
defence counsel that he was not involved in the commission
of the alleged crime in any manner whatsoever, “be it passively
or actively”.
8.24
The applicant laid criminal charges of
bribery and defeating ends of justice at Bloemspruit Police Station,
Bloemfontein with CAS
numbers 185/10/2019 and 463/08/2019 against the
third respondent and ‘others’. The matter is currently
investigated
by the law enforcement agencies.
8.25
The applicant states that the
circumstances as set out above, prove that the third respondent is
compromised as result of which
the third respondent should recuse
himself as prosecutor from the two criminal trials currently pending
in the Welkom and Virgina
Regional Courts. In the event that the
third respondent does not recuse himself, the first and second
respondent should remove
him as prosecutor from the two cases.
8.26
The applicant avers that the third
respondent, at some stage, ‘made a vow’ to him that he
would ensure that he (the
applicant) “rot and die in prison”.
The applicant states that it is apparent that the third respondent is
“fighting
so many battles abusing his position due to his
involvement in various matters that is crystal clear from the history
of the relationship
I had with him or his people and in particular
his father Harrington Snr, who failed to act as a fit and proper
person in the circumstances
due to amongst others, the wrong advices
he furnished me with”.
8.27
The applicant laments that
notwithstanding the fact that he lodged various complaints with the
Free State Director of Public Prosecutions,
his complaints have not
been entertained by that office. In the circumstances the applicant
says that the first and second respondents
are constrained to remove
the third respondent as prosecutor in the two aforesaid criminal
trials as justice will not be seen to
be done if the third respondent
is allowed to continue to act as prosecutor in the two trials.
8.28
The applicant says that he instructed
his former attorneys, Messrs Mbodla Attorneys, out of desperation, to
communicate with the
Office of the first respondent to make the
representation appended to his founding affidavit in support of the
removal of third
respondent from all cases where he (the applicant)
is an accused. The representations were unsuccessful. The applicant
also appended
the first respondent’s response to the
representation.
8.29
The applicant states that the facts
satisfy the requirements for a final interdict/mandamus.
8.30
In conclusion the applicant contends
that his constitutional guaranteed right to a fair trial is violated
if the third respondent
is allowed to prosecute the trials where he
is an accused, as one of the most important components of a fair
trial is the prosecution
that is ‘bereft of fear, favour or
prejudice’.
THE
FIRST, SECOND AND THIRD RESPONDENT’S CASE
[9]
The Deputy National Director of Public
Prosecutions deposed to the answering affidavit on behalf of the
first to third respondents.
The second and third respondents
respectively also deposed to affidavits. The third respondent in
particular dealt with the allegations
levelled at him. I also granted
leave that the aforesaid respondents may file further affidavits to
deal with, amongst other, allegations
by the applicant in his
replying affidavit.
[10]
Before dealing in more detail with the
respondents’ evidence, it is convenient to summarise the main
grounds of opposition.
10.1
As point of departure the first and
second respondent join issue with the procedure the applicant
followed in making this application
to this Court to remove the third
respondent as prosecutor. The respondents contend that the applicant
should have made a substantial
application to the trial court(s) for
the third respondent’s recusal.
10.2
The decision to accept or reject the
applicant’s representations for the recusal of the third
respondent rests with the deponent
to the answering affidavit. Both
he and the second respondent considered the applicant’s
representations for removal of the
third respondent. All the
allegations against the third respondent were investigated and found
to be without merit. The Deputy
National Director of Public
Prosecutions therefor rejected the applicant’s representations
and directed that the prosecution
of the applicant by the third
respondent should continue.
10.3
The applicant has not made out a case
for the removal of the third respondent as prosecutor from the two
criminal trials.
[11]
Regarding the background and merits of
the matter, the following is relevant.
11.1
The applicant is an inmate in the
Grootvlei correction facility where he is currently serving a
sentence of imprisonment after being
convicted of numerous stock
theft charges. He is currently standing trial in Bultfontein and
Virgina Magistrate’s Courts
facing charges of stock theft. In
both cases the State is represented by the third respondent.
11.2
The two trials forming the subject
matter of this application commenced respectively in August 2015 and
on 1 November 2018. Both
trials have reached the stage where the
state has closed its case and the applicant must present his case, if
he so elects. In
the case serving in the Virgina Magistrate’s
Court, the applicant unsuccessfully applied for his discharge in
terms of
section 174
of the
Criminal Procedure Act 51 of 1977
[the
CPA].
11.3
The applicant has never made an
application for the recusal of the third respondent in either of
these cases despite the fact that
he had knowledge of the grounds and
allegations on which he now relies prior to the commencement of both
cases. The reasonable
inference to be drawn from the applicant’s
failure to apply for the third respondent’s recusal before
either of the
cases commenced, is that the request to remove the
third respondent was not bona fide, but an attempt to delay
prosecution of the
matters against him.
11.4
As far as the complaints to the first
and second respondents’ offices are concerned, including the
‘corruption complaint’
received by the first respondent’s
office through the Secretary of the Portfolio Committee on Justice
and Correctional Services,
the following:
11.4.1
The second respondent’s office
have been receiving complaints from the applicant over the years
where he made allegations
against a number of prosecutors and police
officials. The latest allegations is against the third respondent.
All the allegations
pertaining to prosecutors and police officials
were investigated and found to be without merit. The criminal
complaint against
the third respondent is dealt with later.
11.4.2
The applicant’s files are
voluminous and related to allegations made against prosecutors
involved in cases in which the applicant
was an accused, but
primarily against the third respondent.
11.4.3
During the investigation of complaints,
the Regional Head of the Department of Correction Services confirmed
that the applicant
had also over the years complained about wardens,
opened dockets against them and reported them to the Minister.
11.4.4
This appeared to be the applicant’s
modus operandi.
11.4.5
The Acting National Director of Public
Prosecutions’ office received various affidavits, contained in
dockets in respect of
the applicant’s cases in issue, that had
been submitted over the years during the investigation of the
applicant’s
allegations against the third respondent.
11.4.6
The first respondent’s office
updated the applicant’s various legal representatives on
regular basis.
11.4.7
The various letters, responses and
reports are appended to the answering affidavit by the respondents.
11.5
Regarding the criminal charges by the
applicant against the third respondent, the charges were opened
during 2019. The NPA has not
been advised of the outcome of these
investigations. The investigating officer was requested to supply a
report pertaining to his
investigation into the criminal allegations
levelled at the third respondent. Save to indicate at some point that
the investigation
was not finalised, no report has been received.
11.6
The first respondent points out that no
proof of any of the allegations have been produced, nor has any
collaborating evidence been
produced by the applicant.
11.7
Regarding the alleged proof of payment
by a co-accused, an affidavit by Mr Tshangana is appended to the
answering affidavit. Mr
Tshangana confirms that he was appointed to
administer the applicant’s estate and sell farms on his behalf
whilst the applicant
is incarcerated. The payment that the applicant
relies on was made to the applicant by Mr Tshangana in execution of
his aforesaid
duties. Mr Tshangana denies the allegations levelled
against him.
11.8
The applicant’s erstwhile legal
representatives are not spared. According to the applicant all his
erstwhile representatives
refused to put his version, as dealt with
in the founding affidavit, to state witnesses.
11.9
The
only allegations that implicate the third respondent directly are
contained in paras 9.31 and 9.42 of the founding affidavit.
These
paras contain bland allegations of an arrangement by the third
respondent of a plea bargain and a vow to ensure that the
applicant
rots and dies in prison.
11.10
The bulk of the founding affidavit deals
with a litany of alleged criminal offences which relates to the third
respondent’s
father, his friends and police officers. There is
no allegation that the third respondent was involved in those
matters, nor is
any evidence presented to that effect.
11.11
The applicant however admits to various
criminal activities, inter alia allegedly receiving payments for
pleading guilty and reneging
on agreements on his version.
11.12
The applicant accused the third
respondent of paying him an amount of R10 000 for not making any
accusation against his father in
respect of the conspiracy in a
complaint and representation. The allegation was however not repeated
in the representations he
made on 7 December 2020, nor is it relied
on in the founding affidavit. The applicant also alleged in an email
that a ‘plot
meeting’ was held at the office of the DPP
by the third respondent. This allegation does not appear in the
founding affidavit.
11.13
The third respondent appended a report
from the Deputy Provincial Commissioner, Free State Crime Detection
to his affidavit. In
terms of this report the applicant is
orchestrating full scale stock theft and committing other criminal
activities from prison.
Whilst being in prison the applicant has been
charged with 8 cases of stock theft and one case of fraud in
different magisterial
jurisdictions in the Free State. 7 cases of
fraud, 1 case of theft and 3 cases of stock theft are currently being
investigated
against the applicant in different magisterial
jurisdictions in the Free State.
11.14
The third respondent also appended an
affidavit of the Deputy Director at the Department of Correctional
Service, National Head
Office, Mr Sarel Strydom, who amongst other
states that whilst the applicant was incarcerated at the Kroonstad
correctional centre,
the authorities received information that the
applicant was in possession of ‘contraband’. The
applicant is not entitled
to have any cellular phone or sim cards in
his possession. The authorities found the applicant in possession of
numerous cellular
phones and sim cards on different occasions. To
this end the applicant had 3 cellular phones and 14 sim cards on his
person and
in his cell when searched on 21 August 2018. On 24 April
2019, 2 cellular phones and 2 sim cards were confiscated from the
applicant.
The applicant appears to have laid complaints against the
persons who were involved in the search and seizure of the cellular
phones
and sim cards.
11.15
The third respondent also appended an
affidavit of PJ du Plessis, an investigator who investigates crimes
committed from prison,
who confirms:
11.15.1
Calls were made from cellular phones
found in the applicant’s possession to farmers who were
informed that in turn for payment
of a small amount, their stolen
stock will be returned to them.
11.15.2
The applicant conducted scams to defraud
farmers whilst in prison.
11.15.3
The applicant is linked to other
suspects in cases by virtue of the cellular phones that were
confiscated and cell phone records.
11.15.4
The applicant contacted witnesses from
prison.
11.15.5
Whilst busy with the investigation he
became aware that he and other persons involved in cases against the
applicant including the
third respondent, were in one or other way
linked by the applicant to a murder scene.
11.16
The applicant made 37 000 calls between
1 November 2015 and 15 September 2016.
11.17
The third respondent’s evidence
contained in his affidavits can be succinctly summarised as follows:
11.17.1
The third respondent is the nodal point
for stock theft matters in the Free State, meaning that he is the
designated prosecutor
responsible for management of stock theft
prosecutions in the Free State. Attorneys acting for accused persons
in stock theft matters
addresses queries and make arrangements for
cases with the third respondent.
11.17.2
The third respondent denies the
allegations levelled against him by the applicant.
11.17.3
The police officers seconded to stock
theft units referred to by the applicant have all investigated the
applicant for stock theft.
11.17.4
The third respondent has never seen the
applicant outside his prosecutorial duties. He never had a birthday
party on date and at
the venue alleged by the third respondent.
11.17.5
Harrington Snr practiced as attorney for
30 years and specialised in criminal cases. It is possible that he
would have represented
the applicant at some point, but Harrington
Snr never represented the applicant in any case that the third
respondent has prosecuted.
11.17.6
Mr Tshangana testified in the Welkom
case that whilst he was appointed by the applicant to administer his
estate and sell his farms,
he (the attorney) would call the applicant
regularly. He was always able to reach the applicant on a cellular
phone notwithstanding
his imprisonment. The relevant pages of the
transcription are appended to the third respondent’s affidavit.
11.17.7
The Welkom case consists of various
charges originating from various police dockets registered on the
police cas system in which
numerous individuals laid charges of theft
and fraud against the applicant.
11.17.8
Various persons were arrested as
co-accused of the applicant in different police investigations. Most
of them were used as state
witnesses to testify against the applicant
in the Welkom case.
11.17.9
The third respondent denies being party
to the plea- bargaining agreement that the applicant relies on.
11.17.10
No warning statement has ever been taken
from him in relation to the charges in CAS 185/10/2019 and he has no
knowledge of the charges.
The allegations against him are spurious.
More than 2 years have passed, and the investigation should have been
completed by now.
The matter has also never been brought to the NPA
to make a decision to prosecute.
11.17.11
As far as the applicant’s replying
affidavit is concerned, annexure RA2 thereto is a warning statement
which is a confidential
document kept in the police docket. It is not
furnished to the complainant. It is concerning that the applicant is
in possession
of this statement.
11.17.12
The allegations of the conspiracy
(murder) have been investigated. None of the allegations could be
verified or confirmed.
DISCUSSION
[12]
The
more serious the allegation or its consequences, the stronger must be
the evidence before a court will find the allegation established.
[5]
[13]
Motion
proceedings, except where the proceedings relate to interim relief,
are designed to resolve legal issues based on common
cause facts.
Save in special circumstances, motion proceedings cannot be used to
resolve factual disputes because they are not
designed to determine
probabilities. The famous Plascon-Evans rule
[6]
establishes that where in motion proceedings disputes of fact arise
on the affidavits, a final order can be granted only if the
facts
averred in the applicant's affidavits, which have been admitted by
the respondent, together with the facts alleged by the
respondent,
justify such order. The exception is of course where the respondent's
version consists of ‘bald or uncreditworthy
denials, raises
fictitious disputes of fact, is palpably implausible, far-fetched or
so clearly untenable that the court is justified
in rejecting them
merely on the papers’
[7]
.
[14]
The
question of onus does not arise in motion proceedings, nor the rule
of evidence, i,e. if the facts are peculiarly within the
knowledge of
a defendant the plaintiff needs less evidence to establish a prima
facie case, since thus rule applies only to trials.
The approach to
motions referred to above, applies regardless of where the onus may
lie.
[8]
The respondent does not
have to prove a negative.
[15]
The
test in respect of the apprehension of bias of a prosecutor is not
similar to the test which applies to a judicial officer.
The
tests are fundamentally different. It is not axiomatic that a
perception of bias held against a prosecutor will lead to an
accused
not having a fair trial.
[9]
In
addition-
“
In
adversarial criminal proceedings, such as ours, it is inevitable that
prosecutors will be partisan. Their role in criminal prosecutions
makes it inevitable that they will be perceived to be biased. In S v
Van der Westhuizen
2011 (2) SACR 26
(SCA) ([2011] ZASCA 36) it
was said that:
'In
our practice it is not the function of a prosecutor disinterestedly
to place a hotchpotch of contradictory evidence before a
court, and
then leave the court to make of it what it wills. On the contrary, it
is the obligation of a prosecutor firmly, but
fairly and
dispassionately, to construct and present a case from what appears to
be credible evidence, and to challenge the evidence
of the accused
and other defence witnesses, with a view to discrediting such
evidence for the very purpose of obtaining a conviction.
That is the
essence of a prosecutor's function in an adversarial system and it is
not peculiar to South Africa.' [Footnotes omitted.]”
[10]
(Footnotes
omitted.)
THE
CORRECT FORUM
As
stated above, the respondents submit that the application for the
third respondent’s recusal must be made in the trial
court as
that court must ultimately decide whether the accused receives a fair
trial.
[16]
The applicant contends that the fact
that he could have made the applications for recusal in the trial
court, does not divest the
High Court of jurisdiction to entertain
this application and grant the relief sought.
[17]
The respondent’s objection to the
application for the third respondent’s recusal in this forum,
is well founded. The
application should have been made in the trial
court(s).
[18]
The two cases commenced years ago and
have reached the point where the applicant as accused must now either
close his case or present
evidence. It is significant that the
applicant failed to deal with the status of the two cases. This
application only saw the light
after his application for discharge in
one of the matters was dismissed.
[19]
It is also significant that whilst the
applicant complains of a perceived bias should the third respondent
be allowed to prosecute
the cases where he is the accused, the state
has closed its case in both matters. The applicant did not disclose
that the cases
have in fact reached an advanced stage where all that
remains is that he, as accused, presents his case.
[20]
None of the allegations now made in
these proceedings in affidavits have been put to any of the state
witnesses. The applicant had
the opportunity to have the allegations
tested in the trial court. He has elected not to do so.
[21]
In
S v Zuma and Another [
Zuma
]
[11]
,
Koen J referred to the passage in
Porritt
another v National Director of Public Prosecutions and others
[Porritt] where the Court, referring to the Constitutional Court
judgment in
S
v Shaik
,
concluded that:
[12]
‘
The
protection of an accused person, therefore, lies not in a general
standard of independence and impartiality required of all
prosecutors, but in the right to a fair trial entrenched in s 35(3)
of the Constitution. That right was described in S v Shaik
in these
terms:
“
The
right to a fair trial requires a substantive, rather than a formal or
textual approach. It is clear also that fairness is not
a one - way
street conferring an unlimited right on an accused to demand the most
favourable possible treatment. A fair trial also
requires ‘fairness
to the public as represented by the State. It has to instil
confidence in the criminal justice system
with the public, including
those close to the accused, as well as those distressed by the
audacity and horror of crime.”’
[13]
The
central objective is to bring about substantial fairness in the
‘ensuing criminal trial (which) will be a matter to be
decided
by the trial court.’
[14]
[22]
In Zuma, Koen said the following at
paras 108 and 111:
‘
Whether
an accused will ultimately receive a fair trial, is a question to be
answered on all the evidence. It is probably most appropriately
decided, although this is solely in the discretion of the trial
court, at the end of the trial.
[15]
If the alleged lack of objectivity or independence, whether due to
alleged political interference, or influence by outside intelligence
agencies, or any other cause, is such that an accused will not
receive a constitutionally fair trial, then a variety of remedies
might be available, in the discretion of the court, in terms of s
172(1)(b) of the Constitution, as the circumstances may demand.
But
the remedy does not lie in s 106(1)(h). It has nothing to do with the
prosecutor’s ‘title to prosecute.’
And if the fair
trial rights of the accused are unaffected, then there is no need to
remove the prosecutor.’
and,
‘
[111]
The SCA held in Porritt that the protection of an accused person lies
not in a general standard of independence and impartiality
required
of all prosecutors, but in the right to a fair trial entrenched in s
35(3) of the Constitution.
[16]
As was also remarked in Delport,
[17]
the question in regard to irregularities is always whether they have
resulted in a failure of justice, as irregularities do not
in and of
themselves lead to a failure of justice.
[18]
In Delport, the fact that the appellants had not claimed that they
suffered any trial related prejudice was held to be fatal, albeit
that their appeal was struck from the roll for other reasons. In
Moussa,
[19]
referring to the
above principle in Porritt, the court held that whether a trial is
fair usually falls to be determined on a case-by-case
basis, and
stressed that courts will be astute to ensure that the constitutional
guarantees of prosecutions without fear, favour
or prejudice, and
fair-trial rights, are met.
[20]
The SCA in Porritt concluded, quoting with approval from its decision
in Director of Public Prosecutions, Western Cape v Killian
[21]
that:
‘
The
question remains whether the prosecutor’s . . . role in this
case created a substantive unfairness per se . . . Whether
fulfilment
of that . . . role does involve or bring about substantive unfairness
in an ensuing criminal trial will be a matter
to be decided on the
facts of each case by the trial court.’
[23]
Koen
J concluded as follows at para 112
[22]
:
‘
Thus,
following Porritt,
[23]
if an
accused believes the prosecutor assigned to their case will not
exercise, carry out or perform their powers, duties and functions
in
good faith, impartially and without fear, favour or prejudice, or
that the prosecutor is an essential witness in the case, then
the
accused may bring a substantive application to the court for an order
that the prosecutor be removed and replaced.’
[24]
In
Director of Public Prosecutions, Western Cape v Killian
[24]
the Court said the following:
'The
question remains whether the prosecutor's dual role in this case
created a substantive unfairness per se. Neither precedent
nor
principle persuades me that it did. Whether fulfilment of that dual
role does involve or bring about substantive unfairness
in an ensuing
criminal trial will be a matter to be decided on the facts of each
case by the trial court. Unfairness does not flow
axiomatically from
a prosecutor's having had that dual role.'
[25]
The application should have been made in
the Court hearing the trial, not to this Court. The trial court is
best placed to decide
pertinent issues in the case.
THE
MERITS
[26]
Besides for my conclusion that the
application had to be brought in the trial court, the application is
in any event foredoomed
to failure.
[27]
I
take the liberty to borrow from Davis J in Bester NO and Others v CTS
Trailers (Pty) Ltd and Another
[25]
,
the injunction by Harms DP in National Director of Public
Prosecutions v Zuma
[26]
that
motion proceedings are designed for the resolution of legal disputes
based on common-cause facts looms large.
[28]
The respondents’ version does not
‘consist of bald or uncreditworthy denials, raises fictitious
disputes of fact, is
palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting them merely on the
papers’.
[29]
The evidence establishes a modus
operandi by the applicant to lay complaints and charges against
prosecutors and investigating officers
who are involved in cases
where he is charged and prosecuted.
[30]
According to the applicant other
prosecutors, before the third respondent became involved in the
prosecution of cases where he is
accused, as well as legal
representatives have conspired against him or partook in corrupt
activities. Legal representatives refused
to follow his instructions
to cross-examine witnesses regarding his version as dealt with in
these proceedings or to put the version
to state witnesses.
[31]
The applicant has not lodged a single a
complaint with the Law Society or its successor, the Legal Practice
Council. The applicant,
on his own version, is not shy to lay
complaints if he opines that he has been wronged. The applicant would
surely have lodged
a complaint if his legal representatives did not
follow his instructions.
[32]
On his own version the applicant is not
shy to deceive others and to lie on oath. In a word, on the
applicant’s own version
he is anything but trustworthy. How the
applicant came to be in possession of the warning statement which the
third respondent
made, and which is not supposed to be in the
applicant’s possession at this stage, has not been explained.
[33]
The applicant’s case is founded,
to a large extent, on the fact that he was incarcerated when the
alleged offences for which
he is standing trial was committed and
that the third respondent knows that he is innocent. It will be
recalled that the applicant
alleges that the third respondent would
have said that he knows that the applicant is innocent and was a
party to the alleged plea-bargaining
agreement, in terms whereof the
applicant would plead guilty although being innocent. Not only are
these allegations denied by
the third respondent, but the
respondents’ version clearly shows that the applicant’s
incarceration has not prevented
him from pursuing criminal activities
with assistance of other people. That much is clear from the number
of cases where the applicant
is charged with stock theft, fraud and
theft committed whilst he was incarcerated, and the number of cases
currently being investigated
against the applicant.
[34]
A perusal of the applicant’s
version also reveals that during presentation of the state cases in
the two matters, not a single
incident is recorded during the trials
itself where the third respondent would have made himself guilty of
prosecutorial misconduct.
The allegations all relate to incidents
that allegedly occurred years ago, preceding the trials, involving
mostly the third respondent’s
father and other people.
[35]
The
delay in making an application for recusal implicates the interests
of justice.
[27]
The
applicant has not dealt with the effect of the order. The applicant
argues that if the third respondent
continues
to act as prosecutor, his right to a fair trial will be violated and
that another prosecutor can merely step in and continue with
the
trials. That must then mean that the applicant’s fair trial
rights, on his version, has not been violated thus far? This
submission would, in and of itself, be dispositive of the
application. If the application succeeds, what would be the effect on
the cases? If the cases need to start de novo, the applicant surely
had to address the impact on the interests of justice. More
so in
light of the fact that both cases commenced years ago.
[36]
As stated above, the more serious the
allegation and the consequences, the stronger must be the evidence
before a court will find
the allegation established. The applicant
has not adduced a single shred of admissible evidence in
substantiation of the allegations.
The applicant had to establish his
case. He had failed to do so.
[37]
Counsel for the respondents correctly
pointed out during argument that, regarding the criminal charges of
bribery and defeating
the ends of justice, it is not the applicant’s
case that the third respondent ever bribed him. The allegations
relating to
bribery relate to other persons. This submission is well
founded.
[38]
The respondents’ affidavits in
fact show that the applicant has failed to take the Court fully into
his confidence.
[39]
The request for removal of the third
respondent does not appear to be made genuinely.
[40]
On the common cause facts and the facts
alleged by the respondents, the applicant is not entitled to the
relief sought. The non-disclosure
of material facts pertinent to the
relief, to name but one, the fact that both cases have reached the
stage where the state has
closed its case, justifies labelling this
application an abuse of process.
[41]
The application stands to be dismissed
with costs.
COSTS
[42]
The respondents contend that a punitive
cost order is justified considering the spurious attacks on the third
respondent and other
officials. I am inclined to agree.
[43]
The applicant was warned by the first
respondent to make the application in the trial court. He did not
heed the advice. The applicant
elected not make a frank disclosure of
all relevant and pertinent facts. In addition, the applicant, made
unsubstantiated and very
serious accusations which called into
question the third respondent’s professional integrity. The
same goes for the police
officers and legal representatives.
[44]
By reason of special considerations
arising from the conduct of the applicant, I consider it just to
award costs against the applicant
on the scale as between attorney
and client.
ORDER
[45]
In the premises:
1.
The application is dismissed.
2.
The applicant must pay the first to
third respondents’ costs on the scale as between attorney and
client, such costs to include
the costs of 2 counsel where so
employed.
N
SNELLENBURG AJ
Appearances:
On
behalf of the applicant:
Adv
M.S. Mazibuko
Instructed
by:
NP
Mazibuko,
Mazibuko
& West Attorneys,
Bloemfontein
On
behalf of the 1, 2
nd
and 3
rd
respondents:
Advv T Lupuwana assisted by K Matai
Instructed
by:
TJ
Moleko
State
Attorney
Bloemfontein
[1]
Case No.:
SHBF11/2015
.
[2]
Case No.:
STRV91/2016
.
[3]
Fn
1 and 2 above.
[4]
Prayers
1 and 2 of the notice of motion.
[5]
National
Director of Public Prosecutions v Zuma
2009
(2) SA 277
(SCA)
(2009 (1) SACR 361
;
2009 (4) BCLR 393
;
[2009] 2 All
SA 243
;
[2009] ZASCA 1)
para 26;
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 55;
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma v National Director of Public Prosecutions and Others
2009
(1) SA 1
(CC)
(2008 (2) SACR 421
;
[2008] ZACC 13)
paras 8 - 10.
Gates
v Gates
1939 AD 150
at 155;
R(N)
v Mental Health Review Tribunal (Northern Region)
[2006] QB 468
([2006]
4 All ER 194)
para 62.
[6]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) 634 - 635
[7]
National Director of Public Prosecutions v Zuma, supra.
[8]
Ngqumba
en 'n Ander v Staatspresident en Andere; Damons NO en Andere v
Staatspresident en Andere; Jooste v Staatspresident en
Andere
1988
(4) SA 224
(A);
National
Director of Public Prosecutions v Zuma
supra at para 27.
[9]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 14 and S v Zuma and Another 2022 (1) SACR 575 (KZP).
[10]
S v
Zuma and Another
2022
(1) SACR 575
(KZP) para 104.
[11]
S v
Zuma and Another
2022
(1) SACR 575
(KZP) para 106.
[12]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 14;
S
v Shaik
[2007]
ZACC 19
,
2008 (2) SA 208
(CC) para 43; and S v Zuma and Another
2022
(1) SACR 575
(KZP) para 106.
[13]
S v
Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC) para 43.
[14]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 18 quoting with approval from
Director
of Public Prosecutions, Western Cape v Killian
2008 (1) SACR 247
(SCA) para 28; R v Sole
2001 (12) BCLR 1305
at
13332F-H.
[15]
S v
Zuma and another, Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and others
[2019] ZAKZDHC 19,
2020 (2) BCLR 153
(KZD).
[16]
Porritt
and another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
para 14.
[17]
Delport
and others v S
[2014] ZASCA 197
,
2015 (1) SACR 620
(SCA),
[2015] 1 All SA 286
(SCA)
para 35.
[18]
Cf
Williams and another v Janse van Rensburg and others (2)
1989 (4) SA 680
(C) at 683D-684B.
[19]
Moussa
v The State and another
2015 (2) SACR 537 (SCA), [2015] 2 All SA 565 (SCA).
[20]
Moussa
v The State and another
supra at para 29.
[21]
Director
of Public Prosecutions, Western Cape v Killian
2008 (1) SACR 247
(SCA) para 28.
[22]
S v
Zuma and Another
supra.
[23]
Porritt
above at paras 7 – 8.
[24]
2008 (1) SACR 247 (SCA).
[25]
2021 (4) SA 167
(WCC) para 44.
[26]
Fn 5 above,
National
Director of Public Prosecutions v Zuma
.
[27]
Bennett
and Another v The State
2021
(2) SA 439
(GJ) para 63.