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[2019] ZAGPPHC 177
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Oguegbu v National Director of Public Prosecutions and Another (86184/2017) [2019] ZAGPPHC 177 (28 May 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case Number: 86184/2017
28/5/2019
In
the matter between:
ONYEKA
GUY OGUEGBU
Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC
First Respondent
PROSECUTIONS
THE
DIRECTOR OF PUBLIC PROSECUTIONS GAUTENG
Second Respondent
DIVISION,
PRETORIA
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
INTRODUCTION
[1]
This
is an application for the permanent stay of the prosecution of the
applicant in the Regional Court, Pretoria North.
[2]
The
application is based on the applicant's constitutional right to a
fair trial as enshrined in section 35 of the Constitution
of the
Republic of South Africa, 1996.
BACKGROUND
[3]
The
applicant, who is accused 2 in the Regional Court, was arrested
together with accused 1 and 3, on 13 June 2014 on a charge of
the
contravention of certain provisions of the Drug and Drug Trafficking
Act,140 of 1992 in that he dealt in
alternatively
was
in possession of 11 kilograms of
heroin.
[4]
The
arrest was effected during an operation by the police in which an
agent, a certain "Moosa" was utilised to buy heroin
from
the applicant. Accused 1 ("Ali") was instrumental in
introducing the buyer, Moosa to the seller, the applicant.
[5]
The meeting between accused 1, Moosa and the applicant was recorded
and transcribed.
The applicant does not dispute the contents of the
transcription. Bearing in mind the applicant's defense, dealt with
infra,
it
is apposite at this stage to mention that Moosa had the money to pay
for the heroin. The money for the payment of the heroin
was kept by
Moosa at a Lodge and the conversation between accused 1 and Moosa in
this respect reads as follows:
"MOOSA
:
Ali, do not make, do not talk
.. . [inaudible] I cannot bring the money up first time there then
take the stuff now. I am going
with the stuff now because now this
thing here I must be sure where I am packaging and packaging. I am
not sleeping there that
is what you must know
because
I have to be safe. I have to
be safe.
ALI
:
No the money is not here, the
money is sit somewhere.
MOOSA:
In the lodge.
ALI:
In the lodge.
MOOSA:
It
is in the lodge.
ALI
:
.... [inaudible] you know
doing this business is ... [inaudible]
MOOSA:
Now that is why I said now you come,
I say we check, check the stuff is right, you can load it, they can
follow me, we park, you
can come
...
[intervenes]
ALI:
Here is the car. I will drive with
you.
MOOSA:
Ja,
you can come with me, count the money, when we are finished I can
come down, we can load it in my car, you can move, when you
move me I
am going to another place because I cannot sleep."
[6]
The
applicant's first bail application brought on 24 June 2014 was
unsuccessful. A subsequent bail application was also unsuccessful,
but succeeded on appeal on 20 March 2015. The matter was set down for
trial on 7 November 2016.
[7]
The
applicant states that it came to his attention during October 2016
that accused 1 had laid a charge of theft against the Investigating
Officer, warrant officer, van Schalkwyk ("van Schalkwyk").
His legal representative requested disclosure of the case
docket in
the theft matter and received a document marked "A1" on 3
November 2016.
[8]
Upon
perusal of the document, it became apparent to the applicant that the
State was in possession of voice recordings of conversations
between
accused 1 and van Schalkwyk as well as counterfeit dollars. I pause
to mention that the State's case against the applicant
is not based
on counterfeit money.
[9]
As
stated
supra
the
charge against the applicant is the dealing in or possession of
heroin. In the result, the substance seized during the arrest
forms
the basis of the charge against the applicant. In the applicant's
bail application, he refers to an affidavit in terms of
section 212
of the
Criminal Procedure Act, 51 of 1977
, in which it is stated that
the substance confiscated during the applicant's arrest weighs 10 750
grams and that it contains heroin.
[10] There is no
evidence on record that Moosa ever handed the money for the payment
of the heroin to either
accused 1 or the applicant.
[11] The cell phone
recordings and counterfeit money on which the applicant's application
is based, does
not relate to the charge preferred against the
applicant. Van Schalkwyk stated under oath that after accused 1's
arrest, he was
taken to the police station. At the police station van
Schalkwyk searched accused 1's vehicle and found the “
counterfeit'"
money in the boot of the vehicle.
[12] It appears that
van Schalkwyk contemplated preferring a charge in respect of the
“
counterfeit” money
against accused 1. Be that as it
may, accused 1 denies that the money found in his vehicle is
counterfeit and alleges that van Schalkwyk
stole the money that was
found in the boot of his motor vehicle.
[13] According to van
Schalkwyk the alleged theft of accused 1's money formed the subject
matter of the
conversations between them during or about August 2015,
almost a year after the arrest of the accused. Accused 1, who was at
the
time in prison, apparently recorded the conversations on his cell
phone.
[14] Due to the fact
that the possession of cell phones by inmates are forbidden, two cell
phones were confiscated
from accused 1 on 24 August 2015 and handed
to a police official, Elphus Mushwane ("Mushwane"), in
order to download
the data on the cell phones.
[15] Mushwane was
initially not successful and handed the cell phones back to van
Schalkwyk. On 7 November
2016, van Schalkwyk returned with the cell
phones and on this occasion Mushwane took the cell phones to the
Digital Forensic Laboratory
for analyses. Mushwane,
inter
alia,
found 43 audio clips and six
deleted audio flies.
[16] On 17 August 2017,
Mushwane was requested to determine whether there were voice
recordings in the downloaded
audio clips. Mushwane stated that only
two of the remaining 43 audio clips were voice recordings.
[17] Mushwane stated
that one voice recording was audible enough to figure out that the
person speaking
was speaking in Sesotho. The second voice recording
was not audible. A CD with the voice recordings were provided to the
applicant's
legal representative. The CD was thereafter taken by the
legal representative to a court transcriber, Yolanda Malan ("Malan"),
who was unable to access the recordings.
[18]
Mushwane endeavoured to assist Malan,
once telephonically and once by meeting in person, without avail.
[19]
In
respect of the money confiscated in accused 1's motor vehicle, an
affidavit by Bradley Kagiso Sedumedi, an accounting clerk at
Bookkeeping and Cash Flow Management within the Directorate:
Financial Accounting at the South African Police's head office in
Pretoria, reveals the following:
“
(2)
On Tuesday 2014/06/24 Lt. Colonel Kriel hand
over to me foreign currencies and watches in Sinoville GAS
307/06/2014 as per Annexure.
I signed for it and immediately after he
left I recorded the currencies.
(3)
On 2014/11/19 my Commander: Bookkeeping and
Cash Flow Management Lt. Colonel Kriel gave instructions that the
forfeited property
has to be exchanged at the bank. I went to the
bank and they informed him that the USO are fake, the Chinese yuan
currency is too
small, UED currency too small and Naira they do not
change this currency (as per Annexure).
(4)
On my return I reported the outcome to Lt.
Colonel Kriel and he instructed me that these currencies must
immediately be destroyed,
this is common practice to prevent that
these currencies put into the network again."
GROUNDS
FOR RELIEF
[20] In order to
appreciate the grounds on which the applicant relies for the relief
claimed herein, it
is apposite to have regard to the applicant's
defence as disclosed in his application for bail:
"64. It is
pertinent at this Juncture to state that I deny I was knowingly
involved in a drug deal
as alleged by the State.
65.
I
had been in touch with a person whom I believe knows Applicant 1
("Ali").
I
was pressurized to assist them in dealing with a man whom I was led
to believe was doing a dollar deal on behalf of these people
and
about whom they expressed certain misgivings. I was informed that
they had already attended to the mixing, cutting and packaging
of
their product
66.
The
parties came to see me in SA shortly before this incident and stayed
at 8 Theresa Gables, Akasia where a friend of Applicant
3
(third
accused),
Wendy was renting. I had
met them at the premises and they had conveyed to me in no uncertain
terms that I should assist them in
their deal as I owed them a
substantial amount of money based on a money swap that had gone wrong
failing which there would be
serious repercussions. I also received
threatening telephone calls. They were renting the premises for a
short period of time and
undertook to do a set off regarding monies
owed I was not destined to make a cent and was acting under duress.
They also utilized
a friend's vehicle, a Chevrolet Spark which they
travelled around in during their stay at the aforementioned premises
and in which
Applicant 3 was arrested at the time of our arrest they
were still in the Pretoria area.
67.
As
regards the allegation that I was being "pressurized" into
assisting in what I was under the impression was a transaction
about
dollars and/or the substances used to colour the dollars commonly
known as ''black dollars" ... ..
68.
The
substance is usually mixed with a liquid and then utilized to change
the appearance of dollars. One usually mixes the dollars
with the
rest of the paper and cuts the packets so that they are mixed up
which is very confusing to the purchaser.
A sample is normally given to the purchaser
for testing purposes.
"
[21] The crux of the
allegation that the voice recordings and money found in Accused 1's
motor vehicle will
assist the applicant in his defence, is set out in
the applicant's founding affidavit as follows:
''59. I am advised
that during the various cellular conversations between Accused 1 and
the investigating
officer, DWO Andre van Schalkwyk, Accused 1
exonerated me and specifically alluded to the dollars, that I was led
to believe were
being utilized in the transaction with the agent.
60.
The
relevance and importance hereof are self-explanatory.
61.
The
resulting prejudice that I would suffer without access to the
recording content is evident as Accused 1 now denies that the
dollars
were fake.
62.
This
coupled with the fact that the dollars confiscated from Accused 1 by
the SAPS have in all probability been destroyed by the
SAPS and are
not available to either the State or defense, renders further
irreparable trial prejudice given the conflicting versions
between
Accused 1 and the SAPS. The State via the investigating officer is as
at 13 December 2017, unable to confirm or deny that
the dollars have
been destroyed as they are unable to determine this from Mr Sedumedi,
the SAPS Accounting Clerk who alleges that
he received instructions
from his superior to destroy the dollars, whose whereabouts are
currently unknown to the State.
63.
The
lack of real evidence that was in possession, and in all probability
destroyed by the State is extremely prejudicial to my case,
as this
evidence is fundamental to my trial preparation and the conducting of
my defense.
"
LEGAL
POSITION
[22] An
application for the permanent stay of prosecution is premised on an
accused's rights
in terms of section 35 of the Constitution.
In
casu
section 35(3)(i) provides that
an accused has the right to adduce and challenge evidence. This right
underpins the right to a fair
trial and entails that all available
evidence, including evidence that will assist an accused in her/his
defence, should be made
available. Once evidence that could have
assisted an accused in her/his defence has been lost or destroyed,
the question arises
whether the accused has been prejudiced thereby
to such an extent that a fair trial is no longer possible.
[23] In
Bothma v Els
2010
(2) SA 622
CC at paragraph [68], Sachs J described the inquiry to be
conducted in such instances, as follows:
"[68] These findings
call for interrogation of what is meant by irreparable or
insurmountable trial prejudice.
Irreparable prejudice must refer to
something more than the disadvantage caused by the loss of evidence
that can happen in any
trial. Thus, irretrievable loss of some
evidence, even if associated with delay, is not determinative of
irreparable trial prejudice.
Irreparability should not be equated
with irretrievability Clearly, potential witnesses who have died
cannot be revived Documents
that have gone permanently astray may not
be capable of recreation. lrreparability in this context must
therefore relate to insurmountable
damage caused not to sources of
testimony as such, but to the fairness and integrity of a possible
trial. Put another way, to say
that the trial has been irreparably
prejudiced is to accept that there is no way in which the fairness of
the trial could be sustained"
[24] An example of
such prejudice is to be found in
Broome
v Director of Public Prosecutions, Weslem Cape and Others,·
Wiggings and Another v Acting Regional Magistrate, Cape
Town and
Others
2008 (1) SACR 178
CPD. Broome
was accused of committing fraud in his capacity as auditor of the
Owen Wiggings Trust Group of Companies, whilst Wiggings
senior and
junior faced fraud charges in their capacities as directors of the
group of Companies.
[25] The fraud
charges related to audits carried out from 1987 to 1994. The
applicants alleged that
their audit working papers which were lost by
the Sate formed an integral part of their defense. Le Grange J agreed
and stated
the following at 193 c -e:
"...
It is common cause that the audit
working papers have passed between various entities and the majority
of the audit working papers
have been lost or dissipated as a result
of the passage of time. It is further common cause that these
documents were under the
control of the State and State-authorised
entities when they got lost. Moreover, in respect of the year 1994,
the audit working
papers in their entirety have been lost. Having
regard to the formulation of the charges against the accused, it is
clear that
these documents are fundamental to the case the accused
have to answer."
[26] Although the
applicants were successful, Le Grange J in
Broome
supra
at paragraph [80], referred to
the caution a court should apply in considering a permanent stay of
prosecution, to wit:
"The relief sought by the accused is,
however, exceptional, drastic and radical. Our courts have
consistently and constantly
sought not to bar the prosecution before
the trial begins. It indeed prevents the prosecution from presenting
society's rules of
conduct. Orders of this nature may also undermine
public confidence in the criminal justice system and may adversely
impact on
the functions of democratic institutions in this country.
"
[27] Lastly
Sachs J in
Bothma supra,
emphasised
that the nature of the crime should be given sufficient weight in
evaluating the merits of the matter. [pars [62] - [66]]
EVALUATION
[28] The voice
recordings that is in possession of the State had been made available
to the defense.
The applicant, however, alleges that on all
probabilities van Schalkwyk and/or other unidentified police
officials have deliberately
deleted the conversations between van
Schalkwyk and accused 1, in order to prejudice him in preparing for
his defense.
[29] The
allegations are speculative and without any factual foundation. I am,
in any event of
the view that the content of the conversations
between van Schalkwyk and accused 1 does not constitute evidence that
is crucial
to the defense of the applicant.
[30] The
money, whether fake or real, was found in accused 1's vehicle after
the arrest. As set
out
supra,
Moosa,
as purchaser of the heroin, had to pay the purchase amount. Accused 1
was a mere conduit between Moosa and the applicant.
I am at a loss as
to the importance of counterfeit money in a drug related charge.
[31] Mr van
der Merwe, appearing for the applicant, insisted that the money would
assist the
applicant in proving his defense that he was providing a
substance to produce
"black
dollars':
Having regard to the
available evidence, I am the view that the absence of the money found
in accused 1's vehicle will not cause
''insurmountable
damage " to
the defense of the
applicant.
[32] The
fear harboured by the applicant that the absence of the money would
irreparably deprive
him of a fair trial, is without substance.
[33] The
nature of the offence, to wit the dealing in
alternatively
being in possession of 11 kilograms
of heroin also weighs against the granting of the relief. The harm
that drugs cause to society,
both emotionally and financially, is
well recorded. Drugs in general have the potential of wreaking havoc
in the lives of not only
users but also in the lives of their loved
ones. Families are torn apart and users that could contribute
positively to society
are rendered incapable of functioning properly.
[34] In the
result, the applicant has failed to make out a case for the permanent
stay of his
prosecution and the application falls to be dismissed.
ORDER
[35] In the
premises, I grant the following order:
The
application is dismissed with costs.
N.
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD
21 May 2019
JUDGMENT
DELIVERED
28 May 2019
APPEARANCES
Counsel
for the Applicant:
Mr S.W. van der Merwe
(with right of appearance)
Instructed
by:
Alexander Montano Attorneys
(011 447 4954)
Ref: Oguegbu (CA)
Counsel
Respondents:
Advocate
A.M. Mphaga
Instructed
by:
The State Attorney Pretoria
(012 362 3856/084 874 2607)
Ref: Adv. Andrew Mphaga