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[2020] ZAGPPHC 16
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Lumka v National Director of Public Prosecutions. Gauteng Division Pretoria (8510/2020) [2020] ZAGPPHC 16 (21 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/
NO
(3)
REVISED NO
Case No. 8510/2020
21/2/2020
In
the matter between:
STEWART
LUMKA
APPLICANT
And
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS,
GAUTENG DIVISION PRETORIA
RESPONDENT
JUDGMENT
MILLAR,
A J
1.
On
31 March 2008 an incident occurred at the premises where the
applicant's estranged wife Ms Elsie Lumka was residing. During
the course of the incident she was shot and seriously injured and a
security guard who was also there at the time, Mr. Phillip
Lima was
shot and killed.
2.
On
1 August 2018, more than 10 years after the incident, the applicant
was indicted on 5 counts
[1]
,
2 of which relate specifically to the incident in question –
murder and attempted murder.
3.
On
1 April 2008, after the incident had occurred, the applicant learnt
of it through the media. He immediately appointed an
attorney
and made arrangements to meet with the investigating officer. This
was done and at the meeting which took place
on 14 April 2008, he
offered his full cooperation and indicated a willingness to answer
any questions put to him. I will deal with
the significance of this
meeting later in this judgment.
4.
For
more than 10 years the applicant heard nothing further until on 15
June 2018 when he was summoned and thereafter indicted. It
is
pursuant to that indictment that the present application has now been
brought.
5.
The
applicant was to go on trial on 3 December 2018 but for various
reasons set out in some detail in his application, the matter
was not
ripe for hearing then and it was postponed on more than one occasion.
The prosecution was eventually enrolled for trial
on 27 January 2020
and at the commencement thereof the applicant applied for a
postponement. It was after the refusal of the postponement
that the
present application was brought thereby effectively forcing the
postponement of the matter until the determination of
this
application.
6.
The
applicant advanced two main grounds for the granting of the stay of
prosecution. The first was that his right to a fair and
speedy trial
had been infringed and secondly that he was prejudiced as a result of
the delay in indicting him
7.
In
Zanner v DPP, Gauteng
[2]
the Supreme Court of Appeal held that the granting of a stay of
prosecution is “
a
drastic remedy which is granted sparingly and only for very
compelling reasons”
and
the Constitutional Court in Sanderson v Attorney General, Eastern
Cape
[3]
that :”
[T]he
relief . . . is radical, both philosophically and socio politically.
Barring the prosecution before the trial begins and consequently
without any opportunity to ascertain the real effect of the delay on
the outcome of the case is far reaching. Indeed, it prevents
the
prosecution from presenting society’s complaint against an
alleged transgressor of society’s rules of conduct.
That will
seldom be warranted in the absence of significant prejudice to the
accused.
8.
In
Rodrigues v NDPP and Others
[4]
the test to be applied in applications such as the present was set
out as follows:
[37]
In Bothma v Els
the
Constitutional Court referred with approval to the approach taken
in Sanderson,
that
in determining relief for a permanent stay of prosecution, the Court
was required to engage in a balancing exercise in which
the conduct
of both the prosecution and the accused were weighed and the
following considerations examined:
a. The
length of the delay;
b. The
reasons the government assigns to justify the delay;
c. The
accused’s assertion of a right to a speedy trial; and
d. Prejudice
to the accused.
[38]
The Court, however, went on to caution that the above
factors did not
constitute a definitive check list and added a fifth factor - the
nature of the offence and the public policy considerations
that may
be attached to it. This, in my view, also has relevance in these
proceedings as the offence in question is the crime of
murder
allegedly committed during the apartheid era and, in respect of
which, there has been considerable legal and policy considerations
that sought to guide the new democratic society in its approach to
such crimes.
[39]
A sixth factor may also become important. This relates
to the
interests of the family and/or the victims of the crime. The role and
participation of victims has been a central feature
in the approach
to dealing with crimes committed in the past. A victim’s
interests and voice, whilst not dispositive, is
an important part of
the balancing exercise that Sanderson contemplates.”
(references
omitted)
9.
I
propose dealing with each of the 6 considerations set out in
Rodrigues in turn and then dealing with the weight to be attached
to
each in the circumstances of the present application.
10.
Firstly
,
as to the length of the delay, there is no doubt that a period of
over 10 years is a long delay. This however cannot on its own
and
without reference to the other considerations be dispositive of
consideration of the application. It has been held that: “
The
courts will apply their experience of how the lapse of time generally
affects the liberty, security and trial related interests
that
concern us”
[5]
and so necessarily this factor must be weighed against the
others.
11.
Secondly,
the
investigation was conducted to a point where the docket was submitted
to the respondent 3 years after the incident in 2011.
Thereafter the
delays were occasioned by the loss of the docket, the need to
reconstruct it, the holding of an inquest and finally
further
investigation before the applicant was summonsed. The reasons for the
delay in the prosecution of the applicant while indicative
of a
general delay, can by no means be said to have been prejudicial to
the applicant, at least during that specific period. I
am mindful
that “
regard
should be had to the imperfections in the administration of criminal
justice in our country, including those of law enforcement
and
correctional agencies. It is acknowledged that they [are] all under
severe stress.
[6]
”
12.
Thirdly
,
the applicant was indicted during June 2018. The trial was supposed
to proceed on 3 December 2018. The reason for the trial not
proceeding was because the applicant on 28 November 2018 disclosed to
the investigating officer that he had an
alibi
.
It was this that resulted in a postponement of the trial. A
pre-trial conference was subsequently held on 8 July 2019
and the
trial subsequently postponed by agreement to 27 January 2020. The
trial was not delayed through the fault of any of the
parties and the
delay occasioned by this was ostensibly for the benefit of the
applicant so that his
alibi
could
be investigated.
13.
Fourthly,
the applicant
asserts that he has been irreparably prejudiced by the delay in
prosecuting him. He claims this on the basis
that he was
prepared to co-operate from the beginning. Despite his consulting
with the investigating officer on 14 April 2008,
he did not disclose
his
alibi
then despite his having instructed an attorney and furnished her with
evidence relating to the
alibi
before
the meeting on 14 April 2008. The
alibi
and
the evidence were only disclosed to the investigating officer on 28
November 2018, more than 10 years after he first consulted
with the
police.
14.
The
evidence that was available then is still available. The claim of
prejudice is that the police did not investigate the
alibi
and obtain further evidence to corroborate it. It is common
cause that once the
alibi
evidence
was furnished, the police did investigate but that due to the
effluxion of time the alleged corroborating evidence no longer
existed. This is as a direct result of the applicant's decision
to withhold this from the police on 14 April 2008 and it
is
unbefitting of him to claim any prejudice as a result of this.
15.
Fifthly,
murder and
attempted murder are serious crimes. The taking of a life is conduct
which is inimical to civilized society. There can
be no doubt that
public policy requires that murders and attempted murders be
investigated and prosecuted, whatever the time period.
It is no
coincidence that
section 18(a)
of the
Criminal Procedure Act 51 of
1977
does not provide for any time limit for the institution of
prosecutions for such crimes.
16.
Sixthly,
the applicant
criticized the family of Elsie Lumka for attempting to assist the
police with their investigation and for remaining
dogged in their
pursuit for justice. Justice is a right of society, but that right is
all the more personal to those who have been
victims of crime and in
particular violent crime. To my mind the family were well
within their right to pursue the matter
in the manner that they did.
Their right to justice stands separate and distinct to that of the
applicant and is subject only to
the rights of the applicant not
being infringed by the exercise of their right.
17.
Consideration
of all of the six elements “
must
be conditioned by the recognition that we are not atomized
individuals whose interests are divorced from those of society.
We
all benefit by our belonging to a society with a structured legal
system; a system which requires the prosecution to prove its
case in
a public forum. We also have to be prepared to pay a price for our
membership of such a society and accept that a criminal
justice
system such as ours inevitably imposes burdens on the accused.
[7]
”
18.
During
the ten-year period between the incident and the indictment the
applicant was at no stage charged or otherwise informed that
he was a
suspect. He was able to go about his business during that period.
While the period is indeed a long one, the fact that
the applicant
did not suffer any limitation of any of his rights in consequence of
the incident during that period is significant.
It is not uncommon
for criminal investigation to take time and although undesirable that
it take such a long time, the explanation
furnished while not wholly
satisfactory is at least indicative of the fact that the delay in the
institution of the prosecution,
was not actuated by any desire to
prejudice the applicant. The applicant was indicted as soon as the
state was in a position to
proceed.
19.
There
has certainly been no delay with the prosecution of the matter once
the applicant was indicted. The fact that the trial did
not commence
on 3 December 2018 was in direct consequence of the disclosure of the
alibi to the respondent. It is not explained
by the applicant, why ,
when on his own version he had been branded a “fugitive”
in the media immediately after the
incident, prompting him to
instruct an attorney and meet the investigating officer on 14 April
2008, he did not disclose the alibi
then or for that matter when he
was indicted. He chose to wait until 5 days before the trial date and
then only made the disclosure.
20.
The
applicant argued that he had suffered irreparable prejudice as a
result of the passage of time in that evidence to corroborate
his
alibi was no longer available. This is a prejudice of his own making
and it does not lie in the mouth of the applicant to claim
this when
he made the advertant decision to withhold the disclosure of the
alibi from 14 April 2008 to 28 November 2018. In any
event, it is the
respondent which bears the onus of proving its case beyond a
reasonable doubt and the trial court will consider
this in light of
the totality of the evidence presented by the respondent.
[8]
21.
The
seriousness of the crimes and the right of the both the family of the
deceased as well as Elsie Lumka and her family to have
these crimes
prosecuted and brought to a conclusion.
22.
On
consideration of the matter as a whole I am not satisfied that the
applicant has made out a case for the stay of proceedings
against
him.
23.
Counsel
for the applicant invited me to consider the evidence set out in the
application in some detail. I find it unnecessary to
do so and it
suffices to state that I am satisfied that the evidence for the
respondent meets “a basic threshold
[9]
”
24.
In
the circumstances I make the following order:
24.1
The
application is dismissed.
24.2
There
is no order as to costs.
A
MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
17 FEBRUARY 2020
JUDGMENT
DELIVERED ON:
21 FEBRUARY 2020
COUNSEL
FOR THE APPLICANT:
ADV. DJ COMBRINK
ADV.
M DU TOIT
ADV.
E TSHOLE
INSTRUCTED
BY:
MARIUS DU TOIT ATTORNEYS
REFERENCE:
MR DU
TOIT
COUNSEL
FOR THE RESPONDENT:
ADV. AJ FOURIE
INSTRUCTED
BY:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG, PRETORIA
REFERENCE:
10/2/11/1-D62018 A ROOS
[1]
These
were for contravention of the
Intimidation Act 72 of 1982
,
contravention of the Riotous Assemblies Act 17 of 1956 as well as
murder, attempted murder and assault.
[2]
[2006]
JOL 17089
(SCA) at paragraph 10;
[3]
1998
(2) SA 38
(CC) at 58D-E
[4]
2019
(2) SACR 251
(GJ) at paragraph 37-38; Bothma v Els
2010 (2) SA 622
(CC) at paragraph 36
[5]
Sanderson
supra at 55A-B
[6]
Van
Heerden v DPP
2017 (2) SACR 696
(SCA) at 712d-e
[7]
Sanderson
supra at 57D-E
[8]
The
South African Law of Evidence, Zeffert & Paizes, Second
Edition,2009, Lexis Nexis at 163-164
[9]
Rodrigues
supra at paragraph 103 - “
One
has to guard against the temptation to utilise this hearing to
determine the strength of the case the Applicant is to meet
in the
criminal proceedings the State has initiated. This is not the forum
for the ventilation of such issues …….We
are satisfied
that the evidence intended to be presented at trial, meets a basic
threshold and that the applicant has sufficient
remedies available
to him to deal with the nature and quality of the evidence intended
to be presented against him.”