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[2021] ZAGPPHC 432
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Swanepoel and Another v S (23004/2021) [2021] ZAGPPHC 432; 2021 (2) SACR 374 (GP) (19 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 23004/2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
MARCO SWANEPOEL
1
st
APPLICANT
STEPHEN
MYLIE
2
nd
APPLICANT
And
THE
STATE
Respondent
JUDGMENT
NYATHI
AJ
INTRODUCT ION
[1]
The two applicants were charged with a co-accused, one Mr Piet van
Zyl (now deceased, and erstwhile accused 1). 1st applicant
was
accused 2 and 2nd applicant was accused 3. They all were charged with
the offence of performing restricted activities (dealing
in rhino
horn) without permits in contravention of the National Environmental
Management Biodiversity Act, 10 of 2004 (NEMBA)
alternatively
,
being in illegal possession of the said horns in contravention of
regulation 41A (1) of The Gauteng Nature Conservation Ordinance
12 Of
1983.
[2]
As part of the preparations for trial the National Director of
Prosecutions through its State Advocate Mr Mphaga, had made overtures
to the applicants with the view to using them as State witnesses
against van Zyl in terms of section 204 of the Criminal Procedure
Act
("CPA"). The applicants had only provided witness
statements implicating Van Zyl and had not been consulted by a
prosecutor in preparation for a trial.
[3]
It is common cause that Van Zyl faced the bulk of the charges. The
applicants had been arrested in a police trap that
was
authorised by the Directorate of Prosecutions. The undertaking
by the state was not to prosecute the applicants for the
illegal
dealing in 8 Rhino horns in exchange for their evidence for the
illegal dealing in 113 Rhino horns by the Van Zyl.
[4]
The trial was due to commence in the Regional Court in Pretoria on
the 22 August 2017. However, a few days before that, Mr van
Zyl ("van
Zyl") was killed in what appears to be a robbery at his farm.
[5]
Van Zyl had been charged with about 108 counts whilst the applicants
were charged only with the first two counts and the alternative
counts thereto.
[6]
With the demise of Van Zyl, the National Prosecution Authority
decided to proceed with the charges as laid out above against
the two
applicants. The matter has gone quite a long way in that as at the
hearing of this application, the State and the Defence
had already
closed their respective cases.
[7]
The two applicants now approach this court seeking a permanent stay
of the prosecution, alternatively an order setting aside
the Director
of Prosecutions ' decision to proceed with the case against the
applicants as being unconstitutional and invalid.
The applicants have
previously made representations through their legal representatives
without success.
[8]
The applicants made contentions that they had a contract with the
State and a legitimate expectation not to be prosecuted as
a result.
They also felt aggrieved and suggested that their Constitutional
rights and expectation for just administrative action
by the State
were infringed.
LEGAL PRINCIPLES
APPLICABLE
[9]
Section 204 reads as follows:
"(1)
Whenever the prosecutor at criminal proceedings informs the court
that any person called as a witness on behalf of the
prosecution will
be required by the prosecution to answer questions which may
incriminate such witness with regard to an offence
specified by the
prosecutor -
(a)
the court, if satisfied that such witness is otherwise a competent
witness for the prosecution, shall inform such witness -
(i)
that he is obliged to give evidence at the proceedings in question;
(ii)
that questions may be put to him which may incriminate him with
regard to the offence specified by the prosecutor;
(iii)
that he will be obliged to answer any question put to him, whether by
the prosecution, the accused or the court notwithstanding
that the
answer may incriminate him with regard to the offence so specified or
with regard to any offence in respect of which a
verdict of guilty
would be competent upon a charge relating to the offence so
specified;
(iv)
that if he answers frankly and honestly all questions put to him, he
shall be discharged from prosecution with regard to the
offence so
specified and with regard to any offence in respect of which a
verdict of guilty would be competent upon a charge relating
to the
offence so specified; and
(b)
such witness shall thereupon give evidence and answer any question
put to him, whether by the prosecution, the accused or the
court,
notwithstanding that the reply thereto may incriminate him with
regard to the offence so specified by the prosecutor or
with regard
to any offence in respect of which a verdict of guilty would be
competent upon a charge relating to the offence so
specified.
(2)
If a witness referred to in subsection (1), in the opinion of the
court, answers frank ly and honestly all questions put to
him-
(a)
such witness shall, subject to the provisions of subsection (3), be
discharged from prosecution for the offence so specified
by the
prosecutor and for any offence in respect of which a verdict of
guilty would be competent upon a charge relating to the
offence so
specified; and (b) the court shall cause such discharge to be entered
on the record of the proceedings in question.
[10]
An analysis of section 204 reveals the following points:
10.1
An accused person may be converted into a state witness [204 witness]
and may testify against his fellow former co-accused.
10.2
Such a 204 witness will be required to testify frankly and honestly
even if it means incriminating himself to the commission
of the
offence in question.
10.3
Such a 204 witness can be indemnified or discharged from prosecution
for the same or similar offence once he / she has testified
frankly
and honestly.
10.4
A withdrawal of the case against an accused person for the purpose of
testifying as a state witness is not final but conditional
i.e., on
condition they testify, do so honestly and frankly; to the
satisfaction of the court and the court discharges him or her
from
prosecution.
10.5
A person who has not been discharged from prosecution may be
prosecuted again for his or her role in the commission of the
offence
even when he /she was regarded as a 204 witness or testified as a 204
witness in court.
10.6
The self-incriminating evidence
I
statement obtained
from a 204 witness can never be used against such a witness in the
subsequent trial again him or her.
[11]
Section 33(1) of the Constitution provides that "everyone has
the right to administrative Action that is lawful, reasonable
and
procedurally fair" and (2) "Everyone whose rights have been
adversely affected by administrative action has the right
to be given
written reasons".
CONCLUSION
[12]
The essence of the complaint by the applicants is that:
12.1
They would not have a fair trial as they were initially promised to
be used as 204 witnesses.
12.2
As a result, they forfeited their constitutional right to remain
silent and not incriminate themselves, inter alia] as accused
and
12.3
They disclose evidence which might be used against them in the trial
against them.
12.4
Such evidence would not have been available to the state had they not
been promised to be used as 204 witness.
[13]
In
S v
Kuyler
2016
(2) SACR 563
(FB) Opperman AJ considered the nature
and
type of
indemnity
envisaged
in section
204 to
be a
"hybrid
phenomenon
of contract
and
statute"
flowing
from an informal pre-trial
contract
between
the
State
and
the
perpetrator for indemnity which rests on the
power of
the
prosecuting
authority conferred
by the
National
Prosecuting Authority Act 32 of 1998
.
This is the
power to institute criminal proceedings on
behalf
of
the
State
and
to
carry out
necessary
functions
incidental
to
instituting
crimin
a
l
proceedings. This in terms
of statute,
section 204
(2), if the court is of the opinion that the
witness
answered all questions frankly and honestly.
[1]
[
1
4]
The procedure that is
adopted
when the prosecutor calls a
section 204
witness is
that he or
she informs the court before the witness starts to testify. "The
prosecutor must clea
r
ly
indicate
the
offence
in respect
of which
the witness
will
incriminate
him- or
herself"
[2]
.
The
court
should
then
explain
to
the
witness
that
he
is
obliged
to
answer
all
questions
put,
notwithstanding that the answer may be self-incriminating and
that if he
answers frankly and
honestly,
he may be
indemnified and discharged
from
prosecution
regarding
the offence in question.
[15]
In the case of the applicants, they were not called to testify
against their former co- accused due to his passing on before
his
trial could commence. Clearly the conditions enshrined in
section 204
have not been met. The State being
dominus
litis
exercised its powers to prosecute the applicants. The State may
even decide to prosecute where a witness is refused indemnity after
testifying but failing to satisfy the threshold of frankness, honesty
and self-incrimination discussed above.
[16]
Since the applicants never gave evidence, their application is
irrelevant, has no foundation in law and cannot succeed.
[17]
The application is dismissed with costs.
J.S.
NYATHI
Acting
Judge of the High Court
Gauteng
Division, Pretoria
Heard:
02 March 2021
Judgment
delivered: 19
th
April 2021
For
Appellant: Mr A.W.H.L Steenkamp
Instructed
by Andre Steenkamp Attorneys
34
Thatchaven, Melody
Hartbeespoort
Fax:
0866 848 114,
email:
v
uurklip@mweb.co.za
Cell:
082491 2307
email:
admin2@tbqxok.co.za
For
Respondent: Adv Andrew Mphaga
Email:
ammphaga@npa. gov .za
[1]
Commentary
on
the
Criminal
Procedure
Act
-
Du
To1t
et
al.23-50G
[service
60,
2018]
[2]
Hiemstra's
Criminal
Procedure
[issue
1
]
p23-50