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[2022] ZAECBHC 12
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Ncitha and Others v S In re: S v Mkolo and Others (CC 40/21) [2022] ZAECBHC 12 (10 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
(SITTING
AT BHISHO)
Case
no. CC 40/21
In
the application
between:
ZUKISWA
NCITHA
First
applicant/Accused No. 2
THEMBA
TINTA
Second
applicant/Accused No. 3
LULEKA
SIMON-NDZELE
Third
applicant/Accused No. 4
SINDISWA
GOMBA
Fourth applicant
/
Accused No. 5
TEMBELANI
SALI
Fifth applicant
/
Accused No. 6
ONDELA
MAHLANGU
Sixth applicant/Accused No. 7
VIWE
VAZI
Seventh
applicant
/
Accused No. 8
FORTY
WINGS LOGDE CC
Eighth
applicant
/
Accused No. 9
NOSIPHIWO
MATI
Ninth applicant
/
Accused No.12
MPIDOS
EMERGENCE TRADING CC
Tenth applicant
/
Accused No.13
NQABA
LUDIDI
Eleventh applicant
/
Accused No.14
and
THE
STATE
Respondent
In
re:
THE
STATE
versus
PUMLANI
MKOLO
Accused No. 1
ZUKISWA
NCITHA
Accused
No. 2
THEMBA
TINTA
Accused No. 3
LULEKA
SIMON-NDZELE
Accused
No. 4
SINDISWA
GOMBA
Accused
No. 5
TEMBELANI
SALI
Accused
No. 6
ONDELA
MAHLANGU
Accused
No. 7
VIWE
VAZI
Accused
No. 8
FORTY
WINGS LOGDE
CC
Accused
No. 9
NOSIPHIWO
MATI
Accused
No.12
MPIDOS
EMERGENCE TRADING CC
Accused No.13
NQABA
LUDIDI
Accused
No.14
SECOND
JUDGMENT ON APPLICATION
FOR
A SEPARATION OF TRIALS
STRETCH
J.:
[1]
Originally there were 14 accused in this matter. Their trial was due
to
commence on 11 April 2022 and to run until finalisation. It was
envisaged during pre-trial procedures that this would be at least
until 17 June 2022 and the accused and legal practitioners were
repeatedly reminded of this. When the final roster for the second
term was published, it transpired that I had been allocated appeals
for the last week of this term, and the parties involved were
informed to keep themselves available until at least 10 June 2022.
[2]
All of the accused pleaded to the charges on 19 January 2022.
Thereafter
Mr Maseti, who had been instructed only to record pleas,
withdrew for accused nos 1, 4, 5, 6, 12 and 13. All the accused were
reminded,
as had been done since pre-trial management of this case
commenced on 22 September 2021, that if they had not privately
instructed
practitioners to represent them, or if they had not
applied for and obtained legal aid, no further postponements would be
granted
for these purposes on 11 April, when the leading of evidence
was due to commence.
[3]
On the following day accused numbers 10 and 11 brought a substantive
application
for a separation of trials in terms of s 157 of the
Criminal Procedure Act 51 of 1977 (the CPA). The State opposed the
application.
Lengthy founding, answering and replying affidavits were
filed, as well as practice notes, bundles of case law and detailed
heads
of argument on both sides. The application papers alone filled
an entire lever arch file. The application was adjourned to 28
February
2022, the purpose of which was to keep the period from 11
April onwards free for the leading of evidence as had been envisaged
and conveyed to all of the accused all along. Indeed the order made
that day specifically once again records that the period 11
April to
17 June had been set aside for the continuation of the main trial and
that the accused had to ensure that they were in
positions to
proceed.
[4]
On 28 February 2022 I delivered a 27 page judgment, allowing the
separation,
and granted Mr Fredericks, who had up until then been
representing accused no 2, leave to withdraw. Accused nos 2, 4, 5 and
6 were
again warned by way of a court order to engage legal
representation to proceed with their trial on 11 April, failing which
they
would be required to conduct their defences in person. Since 28
February the numbering of the accused persons has remained the same,
although there are now 12 accused before me, two of whom are close
corporations.
[5]
On 11 April the trial did not proceed due to a power outage lasting
for
the entire day. I digress to mention that this court’s
express and repeated concerns over the past nine years about the lack
of a functional generator at the Bhisho high court have at last been
noticed and I am informed that sufficient power will be generated
in
future to meet the requirements of the court recording equipment.
[6]
On 12 April the matter was transferred during the day from Bhisho to
East
London due to a further power outage. Accused numbers 1, 12 and
13 brought an application for an adjournment pending the finalisation
of representations which had been placed before the Director of
Public Prosecutions (the DPP) at the 11
th
hour and on the
Sunday before the trial was due to commence. It was contended that
the representations were late because they were
being made in
response to answers to requests for further particulars and further
and better particulars for trial, which had been
given on 1 April.
Despite having expressed its misgivings, this court, for various
reasons, which included an undertaking from
the State that the DPP
would respond to the representations by 20 April 2022, adjourned the
trial to that day, resulting in the
commencement of the leading of
evidence having been delayed for five days. All of the accused were
once again warned to be ready
to proceed on 20 April.
[7]
On 20 April proceedings could only commence at 12h20 due to load
shedding.
I was informed that the DPP had declined the
representations of accused number 1, who indicated that he then
wished to make further
representations to the National Director of
Public Prosecutions (NDPP). Accused number 2 also now wished to make
representations
to the DPP, allegedly based on information which she
had recently found in preparation for trial. For this purpose she
too, requested
an adjournment.
[8]
It is relevant for purposes of this judgment, to reflect what the
status
of the accused were on that day in respect of their trial
readiness:
Accused no 1 was
represented by counsel Matotie and Skoti who were appearing for him
for the first time to apply for proceedings
to be suspended pending
further representations to the NDPP. Accused no 2 was represented by
Mr Schoombee who had only been instructed
to bring an application for
the proceedings to be suspended pending representations to the DPP.
Accused no 3 was represented by
one Ms Magadlela who indicated that
she was standing in for Mr Mpahlwa who was “unavailable today”,
and that she had
been instructed by Malusi Attorneys to seek an
application for a postponement. Accused nos 4 and 6 indicated that
they had now
approached the legal aid board and thought that someone
from that office would be present. Accused no 5, who had approached
the
board with accused nos 4 and 6, indicated that she was
unrepresented as she did not qualify for legal aid. Accused no 7 was
represented
by Mr Mvinjelwa. Mr Pakade was present for accused nos 8
and 9. Counsel was not. It was recorded that accused nos 12 and 13
had
dismissed Mr Diniso as their attorney and that one Mr Van
Breda would be their new attorney. Mr Korkie was appearing for
accused no 14. In a nutshell, only two of the remaining ten
accused were in a position to proceed with the trial on 20 April.
[9]
It was indicated on behalf of accused no 2 that she would file her
representations
on Friday 22 April (two days later) and it was
requested that the trial be suspended for a further four days. The
State opposed
the application and indicated that it held no
instructions as to when the DPP would be in a position to consider
these representations.
The prosecutor also placed on record the
obvious prejudice to witnesses, including certain politicians, caused
by these delays.
Mr Mvinjelwa, for accused no 7, likewise opposed the
applications, placing on record that his client wished to exercise
her right
to a speedy trial, and that she was suffering clear and
personal prejudice.
[10]
The trial was adjourned to 22 April in order for accused no 1 to
deliver an application
for my recusal which had occurred to him on 20
April, and for accused nos 1 and 2 to file their representations with
the NDPP and
DPP. On 22 April it transpired that accused nos 4 and 6
had approached the legal aid board three days before their trial was
due
to commence. Although they qualified for legal aid the board
requested a week to prepare for trial, which meant that that they
would only be ready to proceed on 3 May. It also transpired that Mr
Mpahlwa would not be representing accused no 3, who nevertheless
gave
this court the undertaking that he would conduct his own defence if
needs be and that he had no inclination to delay the proceedings.
Accused no 1 indicated that he was persisting with his application
for my recusal which thereafter proceeded, opposed by the State
only.
The matter was adjourned to 28 April for judgment on the recusal
application. The effect of this was that the other parties
who were
seeking adjournments (being accused nos 2, 4 and 6) and those who
were still not prepared to continue, could take advantage
of the
time. At the end of the day, the positions were as follows:
Mr Matotie indicated that
he and Mr Skoti were available for trial from 3 May until the end of
the term. Accused no 2 indicated
that she would be representing
herself. Accused no 3 indicated that he was ready to proceed. Ms
Dyantyi from the legal aid board
would record the positions of
accused nos 4 and 6 on 28 April only. Accused no 5 indicated that she
would be representing herself.
Mr Mvinjelwa was ready to proceed on
behalf of accused no 7. Mr Jikwana (for accused nos 8 and 9) had
sporadically committed himself
to other matters during the period set
aside for trial, but could make alternative arrangement if needs be.
Mr Schoombee (who was
standing in for Mr van Breda for accused nos 12
and 13) indicated that Mr van Breda had consulted with his clients
and that he
was “taking the matter on”, but would only be
in a position to proceed on 3 May. Accused no 12 undertook to settle
any financial impasses with her legal practitioners by the following
week in order to avoid any further delays. Mr Korkie indicated
that
he was ready to proceed on behalf of accused no 14. At the end of the
day, the position as recorded, was that at least accused
nos 1, 4, 6,
12 and 13 were not in a position to proceed on 28 April.
[11]
On 28 April I dismissed the application for my recusal. The trial
could not however proceed
on the merits forthwith as the legal aid
board had already requested time to prepare. Ms Dyantyi from the
board indicated that
she had been burning the candle at both ends,
that she was half way through her preparation and trusted that she
would be ready
to proceed on 3 May. By then the status of accused nos
12 and 13 had taken on yet another dimension. Mr van Breda recorded
that
his clients had not honoured an undertaking to place him in
funds two days previously and that his position was “not 100
per cent certain” as he could not proceed without funds. On a
happier note for the time being, Mr Moodley had been instructed
by
accused no 5 and said that he was ready to proceed. To summarise
then, by close of business on 28 April, accused nos 4, 6, 12
and 13
were still not ready to proceed, due to various self-imposed delays.
[12]
As it transpired, on 3 May the State recorded that the DPP and the
NDPP had accorded urgency
to these matters, and that both the
representation by accused no 2 to the DPP and accused no 1’s
application for review to
the NDPP had been unsuccessful. At that
stage accused no 1 was represented by Mr Skoti only. Accused nos 2
and 3 were appearing
in person. Accused nos 4 and 6 were represented
by Ms Dyantyi. Accused no 5 was represented by Mr Moodley. Accused no
7 was represented
by Mr Mvinjelwa, accused nos 8 and 9 by Mr Jikwana
and accused no 14 by Mr Korkie. Mr van Breda, for accused nos 12 and
13 recorded
that his mandate had been terminated. Accused no 12
informed me that Mr Jikwana was now representing her. Mr Jikwana
recorded that
accused no 12’s attorney had been in contact with
him the day before.
[13]
It also transpired that accused no 1 had filed an application for
leave to appeal my dismissal
of his recusal application shortly
before court commenced and that Mr Skoti wished to prepare heads of
argument, a request which
I waived in order to expedite the matter.
The application was, once again, opposed by the State only, and ran
over several hours.
Later that afternoon I delivered an
ex tempore
ruling with reasons, dismissing the application. The matter was
postponed to 4 May for the trial, which had now been delayed by 16
days, to proceed.
[14]
On 4 May I was informed by Mr Skoti that accused no 1 was petitioning
the SCA for leave
to appeal. Ms de Klerk for the State expressed her
concerns about yet another delay and advised that she was
contemplating bringing
an application in terms of s 18 of the Supreme
Court Act 10 of 2013, for the trial to continue before me despite the
fact that
I was the subject matter of the petition. It was at this
point that I directed the remaining accused to record their
respective
positions with regard to any prejudice which they thought
they might suffer should they be ready to proceed, but the trial did
not go on due to proceedings being suspended whilst waiting for the
outcome of accused no 1’s applications. It then transpired
that
most of the accused were complaining of inconvenience, financial
prejudice and interference with their career prospects and
career
environments. The matter stood down for the parties to consider the
way forwards. On resumption I was advised that accused
nos 5 and 7
were considering bringing an application for separation. Mr Jikwana,
on behalf of accused nos 8, 9, 12 and 13 submitted
that the
application hinged on whether the State intended on agreeing to a
further adjournment pending the outcome of the petition,
or whether
it intended pursuing a s 18 application. I instructed all the parties
to consider their respective positions and to
address me fully on
these aspects the following morning.
[15]
On the morning of 5 May Ms de Klerk recorded the State’s
decision not to pursue a
s 18 application. All the remaining accused
indicated that they did not wish to bring a s 18 application either.
Mr Jikwana (speaking
on behalf of all the accused) indicated that in
the light of the State’s election, not to pursue the s 18
application, all
the remaining accused would likewise, not pursue a
separation application. The matter then stood down for the parties to
arrange
an adjournment date. It transpired that some headway had been
made during the long adjournment, the upshot of which was that the
parties involved in the petition had agreed to truncated time frames
for the exchanging of affidavits and so on, and that the erstwhile
registrar of the SCA had indicated that matters of this nature are
invariably expedited and that a response from that court should
be
available by 31 May 2022. I was advised that Mr Moodley’s
office had been mandated to draft a joint minute to this effect.
[16]
At this point Mr Schoombee recorded that the remaining accused had
changed their collective
minds and now wanted to pursue an
application to be separated from accused no 1. Apparently (according
to Mr Schoombee) this was
because the remaining accused were of the
view that a decision from the SCA would be available on Monday, 16
May. I was not addressed
on the underlying basis for selecting this
somewhat arbitrary date.
[17]
I must concede that whilst a degree of deviation from consistent and
cooperative conduct
is nothing new to this court in matters of this
nature, particularly when dealing with multiple accused, I was taken
by surprise
at what the State aptly described as this sudden “flip
flop” approach. For one, it was accused no 2 who had persisted
in an application for suspension of the trial while she was making
representations to the DPP. Having also taken the response to
these
representations on review to the NDPP, her apparent concern about
what could be said at the trial, seemed to have vanished
overnight.
[18]
A joint application by all the remaining accused was in any event,
brought from the bar
despite my invitation to the legal practitioners
to bring a substantive application on affidavit, as was done by the
erstwhile
accused nos 10 and 11. The State opposed the application.
Not much was said on behalf of the applicants. The application
purports
to be based on the oft-repeated grounds for claiming
prejudice, such as the fair trial rights of accused persons to have
their
trials begin and conclude without
unreasonable
delay as
enshrined in section 35(3)(d) of the Constitution. It goes without
saying that failure to observe these rights may have
far reaching
financial and personal implications, which may range from being
particularly serious to being simple matters of inconvenience
and
irritation (see
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC)).
[19]
The application is in terms of s 157 of the Criminal Procedure Act 51
of 1977 (the CPA).
As I have said, this court has already, in a 27
page judgment, dealt with the applicable law when a similar
application was brought
during this trial. I do not intend repeating
it. There are however fundamental differences between that
application (“the
Fanoe application”) and the one before
me. Firstly, Mr Fanoe attempted to bring that application even before
this trial commenced,
basing his anxiousness to do so on the fact
that he would have to sit through a trial set down for a whole term,
when evidence
pertaining to his role could probably be disposed of
within a day or so. From a reading of the indictment and the summary
of substantial
facts, and in the light of the respondent’s
address, that is not the case in the matter before me. This brings me
to the
second point, which involves the doctrine of common purpose.
In
Fanoe
it was the finding of this court that the indictment
did not allege common purpose between Fanoe and the accused before
me, which
would in different circumstances have been a good reason
why the State should keep him in the loop of one trial against all
his
co-accused. This is not so however, with the applicants before
me, in respect of whom common purpose has been alleged. It has in
any
event not been contended from the bar that one or more of the
applicants should be separated from accused no 1 because he or
she
falls within the same category as Mr Fanoe and his close corporation.
[20]
It is trite
that where common purpose is alleged, and particularly where
racketeering charges and the like are preferred under the
Prevention
of Organised Crime Act 121 of 1998 (POCA) the default position is
that all the accused should be charged together.
[1]
The decision as to whether to grant a separation of trials is a
discretionary one. This is particularly so in that when I was
addressed on the merits of the application it was submitted by Mr
Jikwana that the application did not fall within the auspices
of
section 342A of the CPA dealing with unreasonable delays in trials
causing substantial prejudice. I am inclined to agree. The
question
thus raised is whether the applicants (from the bar and in the
absence of any evidence on oath) have sufficiently illustrated
at
this stage, that their rights to have their trial begin and conclude
without
unreasonable
delay
have been infringed causing substantial prejudice to them. In
considering this case on its own merits and the point at which
this
application is being pursued, including the grounds therefor, the
answer is no.
[21]
In this matter the likelihood of prejudice to the 11 remaining
accused must be weighed
against the likelihood of prejudice to the
prosecution if trials were to be separated. This requires the
interests of the applicants
to be weighed against the wider interests
of society. It is trite that society requires that joint offenders be
tried together,
as separate trials invariably lead to a waste of
State resources. Multiple trials (and a separation has already been
granted once
in respect of the persons accused in the indictment,
albeit on different considerations altogether) ought to be avoided
where possible.
As stated in
Fanoe
[par 25] a further
consideration in applications of this nature is that the prosecution
is entitled as
dominus litis
to draft its indictment as it
sees fit, and that it should not be thwarted or obstructed in the
presentation of its case. Anyone
applying for separation must bear
these principles in mind. At the end of the day, the question to be
answered is whether separation
will be in the interests of justice.
On the one hand, the applicants (to various degrees) are charged with
being involved in an
illegal enterprise where the ultimate purpose of
the individual accused’s offences are to benefit a criminal
enterprise formed
by the applicants and accused no 1. As stated by
the respondent, it is the prosecution’s case that accused no 1
is the corruptor
and his co-accused the corruptees in one and the
same chain of events.
[22]
So then in
S v
Imador
[2]
for example (which is one of the cases on which the respondent relies
and where a separation was refused) where the appellant was
charged
with money laundering, the State alleged in the preamble to the
charge sheet that the accused acted in the furtherance
of a common
purpose in that he was actively involved in the conspiracy to obtain
money from the complainant. The respondent has
made the same
averments with respect to accused no 1 and the applicants before me.
In my view, taking into account all the aforesaid
considerations both
in favour of and against a separation of trials, the granting of a
separation in the nature of, and to the
extent to that sought by the
applicants would be prejudicial and unjust.
[23]
All the applicants and the State are facing the same dilemma to a
greater or lesser extent.
I say this because the applicants have also
applied for and have had the benefit of lengthy delays. On the other
hand, neither
the applicants nor the State are responsible for the
delay caused by awaiting the decision of the SCA in respect of
accused no
1’s petition. When the State sought to address
me on the history of the matter and the parties who were either
responsible
for delays or who had sought delays and were benefitting
from piggy-backing on adjournments granted because of accused no 1’s
position, my knee-jerk response was that this is water under the
bridge. Whilst it may be water under the bridge in that the delays
are a
fait accompli,
the fact that they were sought and/or
repeatedly orchestrated is relevant when considering whether the
remaining accused should
be separated from accused no 1 on the very
first occasion this demand is made, when the applicants themselves
have not been squeaky
clean in respect of delays in the past. Indeed,
the timeline which I have referred to, and which I painstakingly
outlined in my
judgment in respect of accused no 1’s
application for my recusal, is that there has not been one occasion
on which all the
accused (with the exception of accused nos 7 and 14)
have been ready to proceed with this trial. Differently put, if
accused no
1 had been removed from this scenario from the outset, the
remaining accused would still have delayed this trial for a period in
the region of 16 court days. The State, who has not caused any
delays, is requesting a similar indulgence, not because it is not
ready to proceed, but because it is of the view that the trial should
not proceed in the absence of accused no 1, and that the
repetition
of evidence is time-consuming and expensive, and finally that these
considerations outweigh any prejudice complained
of by and on behalf
of the applicants from the bar. I agree.
Order:
1.
The application for the trial of the applicants to be separated
from
that of accused number one is refused.
2.
The trial is adjourned to 09h30 on 31 May 2022 and the accused
are
warned to report to this court before 09h30 on that date.
3.
The official recording company is directed to make a running
transcript of these trial proceedings available to this court, the
State, the Legal Aid Board and to unrepresented accused persons
who
apply in person for such a transcript.
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Date
of application: 5 May 2022
Date
of judgment: 10 May 2022
For
the first applicant:
Mr A. Schoombee
Andre
Schoombee Attorney, East London
For
the second applicant: Mr T. Tinta (in person)
For
the third & fifth applicants: Ms N. Dyantyi
Instructed
by Legal Aid Board, King William’s Town
For
the fourth applicant: Mr M. Moodley
Instructed
by Moodley Attorneys, East London
For
the sixth applicant: Mr B. Mvinjelwa
Instructed
by Van Heerdem Attorneys, Gqeberha
For
the seventh, eighth, ninth & tenth applicants: Mr Jikwana
Instructed
by Pakade Attorneys, East London
For
the eleventh applicant: Mr J. Korkie
Instructed
by: Makhanya Attorneys, East London
For
the respondent: Ms U. De Klerk with Mr F Mati
Instructed
by the National Prosecuting Authority, East London
[1]
In this regard the principles set forth at page 9 onwards of this
court’s judgment in this trial in
Fanoe
and another v the State
delivered
on 28 February 2022 should be read in conjunction with this
judgment.
[2]
2014 (2) SACR 411(WCC)