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2021
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[2021] ZAMPMBHC 41
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Sibiya v National Director of Public Prosecutions and Others (2292/2020) [2021] ZAMPMBHC 41 (8 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION (MAIN SEAT)
CASE
NUMBER 2292/2020
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
08/09/2021
JACOB
MAWEWE
SIBIYA
APPLICANT
And
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
1
ST
RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS,
MPUMALANGA
2
ND
RESPONDENT
NATIONAL
PROSECUTING AUTHORITY
3
RD
RESPONDENT
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVICES
4
TH
RESPONDENT
JACOB
MAUNYE
MOLESELA
5
TH
RESPONDENT
JUDGMENT
LEGODI
JP
[1]
When a lower court has in criminal proceedings given a decision in
favour of the accused
on any question of law, including an order
under section 85(2), the Attorney-General or, if a body or a person
other than the Attorney-General
or his representative, was the
prosecutor in the proceedings, then such other person may require the
judicial officer concerned
to state a case for the consideration of
the
provincial
or local division having jurisdiction, setting forth the question of
law and his decision thereon and, if evidence has
been heard, his
findings of fact, insofar as they are material to the question
of law
[1]
.
[2]
If, at the close of the case for the prosecution at any trial, the
court is of the
opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may
be convicted on the charge, it may return a verdict of
not guilty
[2]
. An assault
and killing of a human being is an action which is
prima
facie
unlawful.
Once it becomes common cause that the accused has assaulted or killed
the deceased or the victim in self-defence,
an evidential burden is
placed on the accused to rebut the
prima
facie
presumption of unlawfulness. In such cases a discharge under
section 174 of the Criminal Procedure Act cannot be granted
[3]
.
[3]
This case is about the discharge of an accused person in terms of
section 174 of the
Criminal Procedure Act who in an informal way
somewhat admitted for having killed the deceased in self-defence.
The application
herein is about Mpumalanga Deputy Director of Public
Prosecutions’ refusal to launch an appeal in terms of section
310 of
the Criminal Procedure Act against such a discharge after the
family of the deceased had made representations to the Deputy
Director
of Public Prosecutions for such an appeal to be noted as
envisaged on section 310. In the present proceedings, any
determination
on the main cause of the application has to be preceded
by determination on whether or not the applicant exhausted internal
remedies
available to him. Put differently, whether such refusal is
final and if not whether the applicant is obliged to exhaust internal
remedies.
[4]
The main relief sought is couched as follows: That is, why,
“
1.1
the decision of the second respondent taken on or about 11 March 2020
pursuant to the representations
made to him by the applicant, in
terms of which the second respondent exercised his powers and refused
to refer the matter on review
or appeal in terms of section 310 of
Act 51 of 1977, should not be reviewed and set aside.
1.2
the first and/or second respondents be directed to refer the matter
on review or appeal
in terms of section 310 of Act 51 of 1977 to the
relevant High Court.”
[5]
The application has been launched by Mr Jacob Mawewe Sibiya in his
capacity as an
appointed executor of the estate of the late Saun Loth
Sibiya (the deceased) who was killed by Mr Jacob Maunye (the fifth
respondent).
The deceased was killed on 1 December 2017 at
Dwarsloop Mall, Bushbuckridge in Mpumalanga. Subsequent thereto the
fifth respondent
was charged with the murder of the deceased.
[6]
On 16 May 2019 the fifth respondent was discharged at the end of the
state case in
terms of section 174 of the Criminal Procedure Act.
On 4 June 2019 the applicant aggrieved by the discharge of the fifth
respondent made representations to the Senior Prosecutor asking the
prosecutor to invoke the provisions of section 310 of the Criminal
Procedure Act referred to in paragraph [1] of this judgment. On
29 August 2019 the senior prosecutor without taking a decision
referred the representations to the Deputy Director of Public
Prosecutions Mpumalanga Division who on 13 September 2019 conveyed
to
Senior Prosecutor that after having ‘carefully perused the
public docket, trial transcripts as well as the representations
made
by DMS Attorneys concluded that there will be no prospects of success
on appeal of the case in terms of section 310A of Act
51 of 1977’
.
[7]
DMS Attorneys on 12 December 2019 wrote to both the prosecutor in the
case and the
senior prosecutor at Magistrate Mhala wherein the
transcribed record of proceedings was enclosed. On 3 February
2020 DMS
Attorneys having been notified of the 13 September 2019
decision, made further representations, this time, to the Deputy
Director
of Public Prosecutions and to the Senior Prosecutor at
Mhala. At the end of the letter it was stated by DMS Attorneys
that
their instructions were to approach the high court to compel the
Deputy Director of Public Prosecutions and the Senior Prosecutor
to
proceed in terms of section 310 of the Criminal Procedure Act.
[8]
On 11 March 2020 the Deputy Director of Prosecutions revoked her
decision dated 13
September 2019 and then substituted reference to
section 310A as per her letter of 13 September 2019 with section 310
and then
repeated the fact that there were no prospects of success on
appeal in terms of section 310.
[9]
Aggrieved by the decision of 11 March 2020, the applicant on 29 July
2020 launched
the current application citing the National Director of
Public Prosecutions, District-Director of Public Prosecutions,
Mpumalanga
Division, National Prosecuting Authority, Minister of
Justice and Correctional Services and Mr Jacob Maunye as the first,
second,
third, fourth and fifth respondents respectively. The
notice of motion is framed in terms of Rule 53 of the Uniform Rules
of Court.
[10]
The National Prosecuting Authority through its National Director of
Public Prosecutions has introduced
and adopted its internal remedies
referred to as “
Procedure to follow for the review of a
decision in a criminal matter
”. In the first bulletin
thereof it is stated as follows:
“
Where
a decision of a lower court prosecutor to prosecute or not to
prosecute is the subject matter of the representation, the request
for the review
must
be directed to the
Senior Public Prosecutor
.
When there is dissatisfaction with the decision of the Senior Public
Prosecutor the representations should be escalated
to the Chief
Prosecutor or the Director of Public Prosecutions”
.
[11]
Then under the heading: “
The final appeal to the office of
the National Director should only be made once a Director of Public
Prosecutions had reviewed
the decision of the Chief or Senior Public
Prosecutions
”, is stated as follows:
“
Representations
should be in writing and should include all relevant information
pertaining to the case such as the police CAS Number,
name of the
accused or suspect and the name of the court as well as a copy of the
correspondence from the Director of Public Prosecutions
regarding his
or her decision in the matter”
.
[12]
The above being the third respondent’s (NPA’s) internal
remedies on representations,
section 7 of PAJA is brought into play.
Subject to paragraph (c), no court or tribunal shall review an
administrative action
in terms of this Act unless any internal remedy
provided for in any other law has first been exhausted
[4]
.
Subject to paragraph (c), a court or tribunal
must
,
if it is not satisfied that any internal remedy referred to in
paragraph (a) has been exhausted, direct that the person concerned
must first exhaust such remedy before instituting proceedings in a
court or tribunal for judicial review in terms of this Act
[5]
.
A court or tribunal may, in exceptional circumstances
and
on application
by the person concerned, exempt such person from the obligation to
exhaust any internal remedy if the court or tribunal deems it
in the
interest of justice
[6]
.
[13]
On behalf of the Deputy Director of Public Prosecutions, as the
decision maker, it was initially
contended that ‘guided by the
provisions of section 7(2)(a) of Promotion of Justice Administrations
Act 3 of 2000 (PAJA),
a relief sought against first and second
respondents can be heard by this Honourable Court after the internal
steps are exhausted
by the Applicant’. In the light of
the inconsiderate and premature prosecution of this application by
the applicant,
the court cannot proceed to entertain the application,
so was the contention by the the first and second respondents on
behalf
of the Prosecuting Authority.
[14]
I tend to agree. First, whilst the senior prosecutor was
approached he or she did not take
a decision on the representations
as required by the internal remedies set and adopted by the National
Prosecuting Authority.
Referral by the senior prosecutor of the
representations to the Deputy Director of Public Prosecutions can of
course be construed
as failure by the senior prosecutor to take a
decision on the representations seen in the context of section
6(2)(g) which provides
that a court or tribunal has the power to
judicially review an administrative action if the action concerned
consists of failure
to take a decision.
[15]
The next question is, what was the applicant supposed to do upon such
a failure by the senior
prosecutor as per the internal remedies
available to the applicant before the application for review was
instituted in this court?
‘When there is dissatisfaction
with the decision of the Senior Public Prosecutor, the
representations should be escalated
to the Chief Prosecutor or the
Director of Public Prosecutor’. In the instant case, the
Deputy Director of Public Prosecutions
took the decision on 13
September 2019 followed by correction thereof on 11 March 2020.
[16]
Whilst internal remedies have not been followed to its full extent,
for example, allowing the
Chief Prosecutor to reconsider the decision
of the senior prosecutor instead of the Deputy Director of Public
Prosecutions, I imagine
this is not material seen in the light of the
wording of the internal remedies as indicated in paragraph [10] of
this judgment
which allows the decision of the senior prosecutor on
representations to be escalated to the Chief Prosecutor or the
Director of
Public Prosecutions as indicated.
[17]
However, the Deputy-Director of Public Prosecutions having taken the
decision on 13 September
2019 and slightly altered the decision on 11
March 2020, the applicant was obliged as quoted in paragraph [11] of
this judgment
to petition as a final appeal to the office of the
National Director
in writing
providing the required
information as per the internal remedy requirement and same was
supposed to have been sent or forwarded
to: Repsadmin@npa.gov.za.
[18]
The pre-mature issuing of the present application was drawn to the
attention of the applicant’s
attorney who in the replying
affidavit trivialised the point
in limine
as follows:
“
8.1
The applicant has since referred the decision of the second
respondent to the first respondent.
In this regard, I annex
hereto marked “RA1” being cover letter of the referral of
the representations and the decision
of the second respondent to the
first respondent.
8.2
The applicant concedes that to the extent that the first respondent
overturns the decision
of the second respondent and refers the matter
to this court in terms of
section 310
of the
Criminal Procedure Act
51 of 1977
, he would withdraw the application and tender the
respondent’s wasted costs.
8.3
The applicant and its legal representatives were of the view that the
second respondent
has consulted with the first respondent in arriving
at the decision that the second respondent issued which is the
subject of this
application”
[19]
Having made the statements with some concession as indicated in the
quotation above, the applicant
then comes to the conclusion that
‘there was sufficient compliance with PAJA’ and that ‘in
any event, the first
respondent has enclosed the decision of the
second respondent. Any referral of the complaint to the first
respondent for
the decision will be academic at this stage. In
fact, the argument made was that, ‘the point taken is lightly
technical
and academic…’, so the argument was made.
[20]
I cannot agree with the submission. The legislative peremptory
imperative in
section 7(2)
(a) of PAJA is that no court or tribunal
shall review an administrative action in terms of this Act unless any
internal remedy
provided for in any other law has first been
exhausted. ‘In any other law’, for the present case is
with reference
to section 22 (2) (c) of the National Prosecuting
Authority Act. In the present case, it was only on 26 August 2020
that the applicant
sought to comply with the internal remedy to wit,
the final appeal to the office of the National Director of Public
Prosecutions
taken on 13 September 2019 and corrected on 11 March
2020.
[21]
As on 26 August 2020 the horse had already bolted. That is, the
present application was already
issued on 24 June 2020. Notice of
motion and founding papers were served, notice to oppose having been
filed on 21 July 2020 and
the answering affidavit having been deposed
to and served before the letter of 26 August 2020 to the National
Director of Public
Prosecutions. In the circumstances, this
court cannot validly proceed to consider the application and make a
final determination.
The suggestion that the court if it ‘overturns
the decision of the second respondent and refers the matter to this
court’,
can also not be done and there is no basis to do so.
The concession in paragraph 8.2 of the replying affidavit cannot be
cured by withdrawal of the application and tendering of wasted
costs. That is not how litigation is run in order to side-step
the peremptory imperative in terms of section 7(2)(a) of PAJA.
[22]
It boggles one’s mind to proceed on the basis that ‘the
applicant and its legal representatives
were of the view that the
second respondent has consulted with the first respondent in arriving
at the decision the second respondent
issued which is the subject of
this application’. How could the second respondent have
taken the decision in consultation
with the appeal authority that has
to consider the second respondent’s decision on appeal as per
the internal remedy process
so designed by the PAJA, except for
asking for more information.
[23]
This case does not concern the decision of the National Director of
Public Prosecutions on the
representations made by the applicant, but
the decision of the Deputy Director of Public Prosecutions which
decision should be
the subject of a final appeal to the National
Director of Public Prosecutions before this court can be approached
on review.
[24]
The applicant attempts to throw into play paragraph (c) of section
7(2) of PAJA. The provision
thereof has been cited on paragraph
[12] of this judgment. In seeking to rely on paragraph (c), the
applicant in paragraph
8.6 of his replying affidavit takes the view
that ‘in the light of all the detailed facts appearing in the
papers filed in
this application… is in the interest of
justice that (he) be exempted from the obligation to exhaust any
remaining internal
remedy’. This contention in my view, must
fall on its dead weight.
[25]
Look at it this way: For one to get an exemption as envisaged
in paragraph (c), not only
exceptional circumstances must be shown,
such exceptional circumstances must be shown “on application by
the person concerned”.
No formal application had been
filed for this court to invoke the provisions of paragraph (c) of
section 7(2).
[26]
Granting an exemption from the obligation to exhaust any internal
remedy in the interest of justice
will also be guided by the merits
of the main review application. In this case, the state’s
key witness in the court
a quo
was the girlfriend to the
deceased. They stopped and parked at Dwarsloop Mall from
Mbombela. It was in the evening
at about 21h00. The fifth
respondent was the accused in the court
a quo
. Two
security officials (the fifth respondent being one of them),
approached the deceased’s vehicle and knocked at
the window.
[27]
The deceased was requested to leave the area as time to stay or to
remain at the mall had lapsed
or expired. The deceased did not
understand or agree to leave. The deceased and the firth
respondent started to argue
with each other. The deceased got
angered by the fact that he was told to leave the area. The
deceased then alighted
from the vehicle in a rush and it was the
first time for the witness (girlfriend to the deceased) to have seen
the deceased being
so angry. On previous occasions when he was
angry, the witness was able to cool him down. As he alighted
from the vehicle,
the witness reprimanded him, but the deceased did
not listen and as a result she was not able to cool him down.
The deceased
was uncontrollable, so the witness testified.
[28]
The deceased then followed the fifth respondent who had a fire-arm on
his waist. The deceased
then grabbed the fifth respondent on
his waist. The two then started to struggle with each other.
As they were struggling
with each other, the witness heard a sound of
a gunshot. At that time, she could not observe who was shot and
who was the
shooter. She then saw the deceased falling down.
The witness further testified that:
“
He
grabbed him your worship and the fight was about to ensue,
if
you grab a person on the waist harshly or by force it means that you
are in the fight”.
[29]
These are the material facts which were placed before the court
a
quo
. In addition to the evidence of the deceased’s
girlfriend, in cross-examination of the other security officer who
was
answering a phone when everything happened and did not see how
the incident unfolded, it was put to him that when the deceased
followed or approached the fifth respondent, the deceased indicated
that he was going to smash the fifth respondent’s head.
This could not be denied.
[30]
I have deliberately set out the facts of the case presented in the
court
a quo
. Initially and relying on the argument that was
presented during hearing as alluded to in preceding paragraphs, I
thought it was
not necessary to pronounce oneself on the merits and
other issues that are dealt with hereunder because the matter was
argued on
the basis that PAJA was applicable to the proceedings. At
the time, the issue was whether the applicant had exhausted the
internal
remedies and if not whether a case has been made to exempt
the applicant from exhausting internal remedies in terms of PAJA.
[31]
However, on 18 August 2021 that is, eight days after the judgment was
reserved, the applicant’s
attorneys drew the court’s
attention and that of the opposing parties to the case of
National
Director of Public Prosecutions v Freedom Under the Law
2014 (4) SA
298
(SCA) at paras 27 and [28],
wherein
Brand JA
found
that although decisions not to prosecute are in the same way as
decisions to prosecute subject to judicial review, it does
not extend
to a review of administrative action on the wider basis of PAJA, but
is limited to the judicial review on the basis
of legality and
rationality and that the legality principle has by now become a
well-established in our law as an alternative pathway
to judicial
review where PAJA finds no application.
[32]
On Monday 23 August 2021 and on the direction of this court, certain
questions were posed to
the parties and the parties were directed as
follows
:
“
1.
The prosecution having charged the fifth respondent on a charge
of murder, having
caused him to plead to the charge, having led
evidence against the fifth respondent in the court a quo and the
fifth respondent
having been discharged at the end of the state case
in terms of
section 174
of the
Criminal Procedure Act, the
parties
are hereby directed to file supplementary written heads of argument
to deal with the following questions:
1.1
Does a refusal to appeal as contemplated in
section 310
of the
Criminal Procedure Act tantamount
to refusal to institute and
conduct criminal proceedings on behalf of the state, carry out any
necessary functions incidental to
instituting and conducting such
criminal proceedings and or discontinue criminal proceedings as
contemplated in
section 20
(a), (b) and (c) of National Prosecuting
Authority Act read with section 179 (2) of the Constitution the
latter of which provides
that the prosecuting authority has the power
to institute criminal proceedings on behalf the state and to carry
out any necessary
functions incidental to instituting criminal
proceedings?
1.2
If the answer in paragraph 1.1 is “yes”, the parties are
hereby directed to
motivate in the form of further written heads of
argument the legal basis and or case law to come to the “yes”
answer
regard been had also to the definition of “criminal
proceeding” in terms of
section 1
of the
Criminal Procedure
Act.
1.3
If
the answer in paragraph 1.1 above is “no”, what
would then be the basis to confine the present application to
legality
and rationality principle in particular to come to the
conclusion that PAJA is not applicable?
2.
Should it be found that PAJA is not applicable, the parties are
hereby directed to
deal with the following questions:
2.1
Does the non-applicability of PAJA make the internal remedies
adopted by the National
Director of Public Prosecutions for
representations in terms of
section 22
(2) (c), obsolete?
2.1.1
If the answer in paragraph 2.1 above is “yes”, what
is the legal basis or principle to come
to the “yes”
answer?
2.1.2
If the answer in paragraph 2.1 above is “no”, the
parties are hereby directed to deal with the
question whether the
present application is not premature in that the applicant did not
formally make representations to the National
Director of Public
Prosecutions before instituting the present application?
2.1.3
Put it differently to the question in paragraph 2.1.2 above
this way: Is the decision of the Deputy Director
of Public
Prosecutions not to proceed in terms of
section 310
of the
Criminal
Procedure Act a
final decision not subject to review by the National
Director of Public Prosecutions in accordance with the NPA internal
remedies?
2.1.4
If the answer in 2.1.3 above is that the decision of the Deputy
Director of Public Prosecutions is not final,
is the present
application then not pre-mature?
2.1.5
If it is suggested that the decision of the Deputy Director of
the Public Prosecutions referred to in paragraph
2.1.3 above is
final, what is the legal basis to come to such a conclusion?
3.
The parties are hereby directed to file the further
supplementary written
heads of argument on the questions raised
above
by not later than 12h00 on Tuesday 31 August 2021”.
Is
refusal to appeal as contemplated in
section 310
of the
Criminal
Procedure Act tantamount
to refusal to prosecute in criminal
proceedings?
[32]
The constitutional authority by the prosecuting authority to
institute criminal proceedings on
behalf of the state and to carry
out any necessary functions incidental to instituting criminal
proceedings is founded in section
179 (2) of the Constitution. In
terms of subsection (4) of section 179 of the Constitution, a
national legislation must ensure
that the prosecuting authority
exercises its functions without fear, favour or prejudice.
[33]
The national legislation referred to in subsection (4) of section 179
of the Constitution, is
the
National Prosecuting Authority Act No. 32
of 1998
.
Section 20
thereof provides as follows:
“
(1
)
The power as contemplated in
section 179
(2) and all other relevant
sections of the Constitution to-
(a)
institute and conduct criminal
proceedings
on behalf of the
State;
(b)
carry out any necessary functions
incidental to instituting and
conducting such criminal proceedings;
(c)
discontinue criminal proceedings
”
;
vests in the
prosecuting authority and shall, for all purposes, be exercised on
behalf of the Republic”.
[34]
I find it necessary to start with some “
definitions
”
in other legislation insofar as it might be relevant. In terms of
section 1
of the
Criminal Procedure Act, ‘
Criminal
proceedings’
includes preparatory examinations under
Chapter 20”
.
Section 310
of the
Criminal Procedure
Act does
not form part of the sections under Chapter 20. In my view,
understandably so. I say so because once criminal proceedings are
instituted
by charging an accused person and trial has taken place in
a court of law where the prosecution tendered the evidence of all its
material witnesses and an accused person is discharged by the court
in terms of
section 174
at the end of the state case like it has been
in the present case, the criminal proceedings are terminated or
concluded by the
due process of the law.
[35]
Therefore, it cannot legitimately be contended that rejection by the
Deputy Director of Public
Prosecutions of representations to invoke
the provisions appeal of
section 310
of the
Criminal Procedure Act
offended
against legality and rationality principle in section 179 of
the Constitution read with section 20 of the NPA Act because a
decision
not to appeal in terms of section 310 is not the same as
instituting and conducting or discontinuing criminal proceedings as
contemplated
in section 179 of the Constitution read with section 20
of the NPA Act.
[36]
Take it a step further: According Merrriam-Webster, “prosecute”
means “to institute
legal proceedings with the intention to
prosecute a claim”. “Prosecute” also means “to
bring action against
a person for redress or punishment of a crime or
for violation of law”. “Prosecution in criminal justice
system”
means also “the process of instituting and
undertaking criminal proceedings against any person in a court of
law”,
something which the prosecuting authority did in the
present case. To charge the accused (fifth respondent) with murder,
put the
charge to him in a competent court and then tendered evidence
on behalf of the State and the trial court having considered an
application
for the discharge at the end of the state case and the
trial court having so discharged the accused in terms of
section 174
of the
Criminal Procedure Act, brought
to an end or concluded the
criminal proceedings as defined.
[37]
The definition of criminal proceedings seen in the context of
paragraphs [34] to [36] above,
could not have included an appeal
process in terms of
section 310
after the criminal proceedings were
concluded through the due process of the law and the accused having
been discharged in terms
of
section 174
by a competent court. Simply
put, section 179 of the Constitution and section 20 of the NPA Act do
not find application to appeal
in terms of
section 310
of the
Criminal Procedure Act.
[38
]
Even if the applicant might have wanted to rely on “
and to
carry out necessary functions incidental to instituting criminal
proceedings”
in section 179 (2) of the Constitution and
section 20 (1) (b) of the NPA Act, these functions, in my view, must
be seen to be limited
to “the necessary functions”
preceding the actual institution and conducting of criminal
proceedings. This is clear
from the wording “
necessary
functions
incidental to instituting
criminal
proceedings
”. The definition of “criminal
proceedings” in
section 1
of the
Criminal Procedure Act, speaks
to this as well. That is, an appeal in terms of
section 310
is not
part of preparatory examinations under Chapter 20 of the
Criminal
Procedure Act. Chapter
20 deals with preparatory examination. Meaning
criminal proceedings before the actual institution of criminal
proceedings. If it
was the intention of the legislature to include
appeal process in
section 310
as criminal proceedings, the inclusion
of Chapter 30 in the definition of “criminal proceedings”
could have been a
simple thing to do.
[39]
Section 310
falls under Chapter 30 which has nothing to do with
criminal proceedings preceding the ultimate institution and
conducting of criminal
proceedings.
Section 310
like the rest of the
sections under Chapter 30, deals with events after institution,
conducting and conclusion of the criminal
proceedings in the lower
courts. I therefore find that the present application is not excluded
from the application of PAJA. Therefore,
there is nothing to
depart from as the matter was previously argued. In other words, what
was said by Brand JA as alluded to in
paragraph [31] of this judgment
does not find application under
section 310
of the
Criminal Procedure
Act.
[40
]
Take it a step further: Rejection of representations by the applicant
to appeal in terms of
section 310
remains to be an “administrative
action” taken by Deputy Director of Public Prosecutions and is
a “decision”
which is not covered under exclusion in
section (1) (ff) of PAJA because it has nothing to do with “
a
decision to institute or continue a prosecution” or to
discontinue in criminal proceedings as defined or as such criminal
proceedings were concluded by following due process of the law until
the fifth respondent was discharged at the end of the state
case.
In other words, the decision to reject the representations by the
applicant remains to be a “decision” of an administrative
nature made, as defined in
section 1
of PAJA. However, should
one be wrong in this regard, there is still another problem the
applicant is faced with. (My emphasis).
Is
the application premature? Put differently, is the decision by the
Deputy Director of Public Prosecutions final?
[41]
In paragraphs [10] and [11] of this judgment, I referred to the
internal remedies the national
prosecuting authority set for itself.
These internal remedies have not been set aside by any competent
court or revoked by the
national prosecuting authority and therefore
they remain to be in force and of effect. It does not matter whether
one is dealing
with judicial review based on legality or rationality
principle or based on administrative review governed by PAJA.
[42]
In fact, the making of such internal remedies should be seen in the
context of the legislative
imperative in section 179(5)(b) of the
Constitution which of relevance provides that the National Director
of Public Prosecutions
must
issue policy directives which
must
be observed in the prosecution process read with section 21(1) (b) of
the NPA Act which provides that the National Director shall
in
accordance with section 179(5)(a) and (b) and other relevant sections
of the Constitution determine prosecution policy and issue
policy
directives which
must
be observed in prosecution processes.
(My emphasis).
[43]
Furthermore, in terms of section 179(5)(d) of the Constitution the
National Director of Public
Prosecutions may review a decision to
prosecute or not to prosecute after consulting the relevant Public
Prosecutions and after
taking representations within a period
specified by the National Director of Public Prosecutions from the
accused person, the complainant
or any other person or a party whom
the National Director considers to be relevant. This must be read
together with section 22
(2) (c) of the NPA Act insofar as it might
be of relevance. It provides:
“
(2)
In accordance with section 179 of the Constitution, the National
Director
(a)
…
(b)
…
(c)
may review a decision to prosecute
or not to prosecute, after consulting the relevant Director and after
taking representations,
within the period specified by the National
Director, of the accused person, the complainant and any other person
or party whom
the National Director considers to be relevant”.
[44]
Even if section 22 (2) (c) may not be relevant seen in the context of
my findings regarding section
310, the point I am making is that the
applicant was obliged to comply with the policy document referred to
in paragraphs [10]
and [11] of this judgment seen in the context of
section 179 (5) (b) of the Constitution. Therefore, any failure to
finally appeal
to the National Director before the institution of the
present proceedings, is fatal to the applicant. The application must
be
found to have been instituted prematurely. There is constitutional
and legislative obligation to comply with such internal process
by
lodging of final internal appeal to the National Director of Public
Prosecutions. The applicant has failed to comply therewith.
On this
alone, the application ought to be dismissed. Again, in the event I
was also to be wrong on the heading under discussion,
there is still
another problem for the applicant.
Has
the state established a prima facie case against the fifth
respondent?
[45]
From the onset, I must indicate that whatever I say hereunder in
particular regarding the merits
or otherwise of the application is
not a final determination as the applicant may still want to refer
his representations to the
National Director of Public Prosecutions
in terms of the final appeal process referred to in paragraph [11] of
this judgment. However,
I find it necessary to deal with the merits
of the application in case I was to be found to be wrong regarding my
findings in the
preceding paragraphs.
[46]
Starting with the applicant’s critic of the ruling by the trial
court to discharge the
fifth respondent at the end of the state case,
a contention is made as follows in the applicant’s founding
affidavit:
“
31.
3
The factual and legal question is whether the fifth respondent acted
within the bounds of self-defence at the time
when he shot the
deceased in the head and killed him.
31.4
The fifth respondent’s evidence is that he was walking away
from the deceased and that when he turned
to look back he saw the
deceased attempting to reach for the respondent’s firearm on
the fifth respondent’s waist and
the fifth respondent ‘pulled
out a fire arm, shot and killed the deceased.
31.5
The long and short of the fifth respondent’s version of defence
starts and ends with following statements
put to the state witness,
Sibuyi by the fifth respondent’s legal representative during
the trial:
“
And
when the accused looked back the deceased took his right hand towards
his waist. When the accused looked back as the deceased
was following
him and uttering the words (mother tongue) he reached out to his
waist. … Okay. Fearing for his life the accused
then shot at
the deceased”
.
31.6
There is nothing in the abovementioned self-defence version of the
fifth respondent to justify the shooting and killing of the fifth
respondent to justify the shooting and killing of the deceased who
was unarmed at the time. This version of the
fifth respondent
demonstrates that the fifth respondent had an ample opportunity to
pull out his firearm. Take full control of it
and fired the fatal
shot to the deceased’s head.
31.7
Assuming there was such imminent harm on the fifth respondent’s
life posed by the deceased, it is submitted
that the fifth respondent
exceeded the bounds of self-defence.”
[47]
What is quoted in paragraph 31.4 of the applicant’s founding
affidavit is actually paraphrased
and is somewhat selective as it
leaves out one aspect of what was put to the first state witness, Mr
Mdluli. In cross-examination,
it was put to Mr Mdluli that as the
deceased was following the fifth respondent, he uttered the words to
the effect that he (the
deceased) will or was going to smash the
fifth respondent’s head. Mr Mdluli responded to the question by
saying that he did
not hear that and he could not deny that the
deceased could have uttered those words. This is a very important
aspect to consider
taking into account also the angry mood of the
deceased as described hereunder.
[48]
Furthermore, with regard to paragraph 31.4 of the applicant’s
founding affidavit, it is
wrong to characterise the version put to Mr
Mdluli (first state witness) during cross-examination as “evidence”
by
the fifth respondent. It will only become evidence if so confirmed
by the witness under cross-examination or if the evidence of
a
witness is not denied or challenged under cross-examination. In
other words, what is said in chief especially on a material
aspect of
a case, if not challenged under-cross-examination, such evidence
becomes common cause. In the present case the bulk of
the evidence of
the deceased’s girlfriend was not denied or challenged under
cross-examination and perhaps correctly so because
it favoured the
fifth respondent’s self-defence. The quotation in paragraph
31.5 of the applicant’s founding affidavit
referred to in
paragraph [45] above, must therefore be seen in the context of the
evidence the deceased’s girlfriend as it
would appear later
hereunder.
[49]
The suggestion in paragraph 31.6 of the applicant’s founding
affidavit that ‘there
is nothing in the aforesaid self-defence
version of the fifth respondent to justify the shooting and killing
of the deceased who
was unarmed at the time’, seems to
blatantly ignore the evidence tendered by the state through the
deceased’s girlfriend
(Ms Sibuyi). Her evidence has been
summarised in paragraphs [26] to [28] of this judgment. I
hereby revisit her evidence
at the risk of repetition and
unnecessarily prolonging this judgment but without making a final
determination for reasons already
mentioned in this judgment.
[50]
When the deceased was told by the fifth respondent to leave the area
at the mall, the deceased
became angry and described by the
deceased’s girlfriend in chief as follows: “
Deceased
alighted from the motor vehicle in a very quick speed your worship
and it was for the first time for me to see him being
angry as such
your worship”.
[51]
Then the questioning in chief unfolded further as follows:
“
What
is it that he was doing madam that cause you to say the way he was
angry it was for the first time for you to observe?
--- Because
previously at some stage your worship when he was angry he could
listen to me when I reprimand him.
On
the day in question after the utterances that were conveyed to him by
these two gentlemen you said he was angry, did you try
to calm him
down? --- Your worship when he started to alight from the motor
vehicle I reprimanded him but the way he was
your worship he could
not listen to me or I could not be able to calm him down and if I
have alighted from the motor vehicle maybe
I should have also been
injured.
Why
do you say so? --- He was uncontrollable
”
.
[52]
That was the mood in which the deceased was and in which he alighted
from the vehicle. His actions
and what he did after he had alighted
from the vehicle in that mood was told in chief by the girlfriend as
follows:
“
Now,
he is out of the vehicle madam, take me through, what happened? ---
He grabbed the accused your worship on his waist.
Ja?
--- They started to struggle there your worship.
How
were they struggling, I was not there? You can step out and
demonstrate to me, is it not that you say the accused was grabbed
on
his waist, they started to
,
demonstrate
that to me, the grabbing the wrestling? --- Grabbed and they
struggled going to the ground your worship and up, going
up and down.
Ja,
you can go back. There was a wrestling as you have demonstrated then
what happened? --- After that I heard the sound of a gunshot.
How
many? --- Once.
Then?
--- Your worship I could not observe who was shot and who was the
shooter
”
.
[53]
Fast forward, the witness was further asked what happened after she
had heard a gunshot and she
indicated that she saw the deceased
falling down. Then the answer as quoted in paragraph [28] of this
judgment was elicited when
a question in chief was put as follows
after having made reference to “grabbing”:
“
I
do not understand. So, not forget madam I was not there, what did you
mean when you said he grabbed the accused on his waist
?
[54]
Clearly the prosecutor was getting frustrated by hearing his own key
witness turning into a key
witness for the defence and the applicant
is unfortunately not referring to the evidence of the deceased’s
girlfriend in
his founding papers. Instead, the applicant seeks to
suggest that the trial court got it all wrong when it discharged the
fifth
respondent at the end of the state case and by so doing
ignoring the imperative in
section 174
of the
Criminal Procedure Act.
That
being said, it would be difficult to find any misdirection on
the part of the court a quo to invoke the provisions of
section 174
in favour of the fifth respondent.
[55]
Look at it this way: A finding by the court a quo that there was no
enough evidence that calls
for a rebuttal from the fifth respondent
and that the evidence cannot become conclusive evidence on which the
court may convict,
cannot be faulted on the available evidence. In
fact, the evidence on self-defence raised by the fifth respondent
seems to have
sufficiently been covered by the evidence of the second
state witness and thus making it unnecessary to hear the fifth
respondent
in person or to invoke the authority referred to in
paragraph [2] of this judgment. In other words, the presumption of
unlawfulness
has been averted by the evidence of the second state
witness. But again, I am not making a final determination in this
regard.
[56]
Consequently, an order is hereby made as follows:
56.1
The application is hereby dismissed with costs.
56.2
The applicant if he so chooses, is hereby directed to resort to
making representations in accordance with
the policy directive
adopted by the National Director of Public Prosecutions as per
Annexure “MP” referred to in paragraph
18 of the
answering affidavit and quoted in paragraph [11] of this judgment.
LEGODI
JP
DATE
OF HEARING: :
10 AUGUST 2021
DATE
OF JUDGMENT : 08
SEPTEMBER 2021
FOR
THE APPLICANTS : ADV SIBUYI SC
INSTRUCTED
BY
: DMS ATTORNEYS
C/O
CHRISTO SMITH ATTORNEYS
GROUND
FLOOR, THE OUTPOST
CNR
FERREIRA & VAN DER MERWE STREET
MBOMBELA
TEL:
013 753 3187 / 060 497 2512
REF:
Mr Smith/ ys/
Email:
land@csprok.co.za
d.sibuyi@dmsattorneys.co.za
adv.sibuyi@me.com
FOR
THE
1
ST
, 2
ND
& 3
RD
RESPONDENTS:
ADV M R MOLATUDI
INSTRUCTED
BY
: DEPUTY DIRECTOR OF PUBLIC
PROSECUTIONS
MPUMALANGA
HIGH COURT BUILDING
MBOMBELA
TEL:
031 045 0648 /41/44 / 078 371 1241
REF:
MOTION 3/2020
Email.
mmolatudi@npa.gov.za
FOR
THE 5
TH
RESPONDENT: MAGDA
INCORPORATED ATTORNEYS
C/O
MCULU INCORPORATED
MBOMBELA
TEL:
015 307 2882
Email.
admin@mculuinc.co.za
[1]
Section
310
(1) of the
Criminal Procedure Act No 51 of 1977
[2]
Section
174
of the
Criminal Procedure Act
[3]
S
v Manona
2001 (1) SACR 426
(TE). See also State v Johanna Changisa
(W/S 15/2011)
[2011] ZANCHC 16
(11 September 2011) SAFLI
[4]
Section
7(2)(a)
of PAJA
[5]
Section
7(2)(b)
of PAJA
[6]
Section
7(2)(c)
of PAJA