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[2019] ZAGPPHC 236
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Rodrigues v National Director of Public Prosecutions of South Africa and Others (76755/2018) [2019] ZAGPPHC 236 (3 June 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
CASE
NUMBER: 76755/2018
3/6/2019
In
the matter between:
In
the matter between
JOAO
RODRIGUES
Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
OF SOUTH AFRICA
First Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Second Respondent
MINISTER
OF
POLICE
Third Respondent
IMTIAZ
AHMED
CAJEE
Fourth Respondent
YASMIN
SOOKA
First Amicus Curiae
DUMISA
BUHLE NTSEBEZA
Second Amicus Curiae
MARY
BURTON
Third Amicus Curiae
WENDY
ORR
Fourth Amicus Curiae
GLENDA
WILDSCHUT
Fifth
Amicus Curiae
FAZEL
RANDERA
Sixth Amicus Curiae
SOUTHERN
AFRICA LITIGATION CENTRE
Seventh Amicus Curiae
PAN
AFRICAN BAR OF SOUTH AFRICA
Eighth Amicus Curiae
LAW
SOCIETY OF SOUTH AFRICA
Ninth Amicus Curiae
JUDGMENT
Flynote
Criminal Procedure –
Permanent stay of prosecution – Delay in prosecution –
section 35 (3) of the Constitution,
1996 in relation to the delay in
prosecution – Factors to consider include the length of the
delay, reasons the government
relies on to justify the delay, the
accused’s assertion of a right to a speedy trial, prejudice to
the accused, nature of
the offence and public consideration –
new factor to add in is the interests of family and/or the victims of
the crime –
length of delay was unreasonable especially in
light of political interference – age and infirmity are to be
considered at
sentencing - however, no trial prejudice and no
exceptional circumstances present to justify radical and far reaching
relief of
a stay of prosecution – application for stay of
prosecution dismissed.
Headnote
The Applicant seeks a
permanent stay of prosecution with respect to a charge of murder and
another charge. The Applicant alleges
that he has suffered a delay in
respect of the prosecution which results in an infringement of his
right to fair trial in terms
of section 35(3) of the Constitution,
1996. The charge of murder relates to the death of Mr Ahmed Timol, an
anti-apartheid activist
who died on or about 27 October 1971. This
case comes before the courts after the reopening of an inquest in
2017 (2017 Inquest)
conducted in 1972 following Mr Timol’s
death (First Inquest) which found that Mr Timol had committed suicide
and no one alive
was responsible for Mr Timol’s death. The
2017 Inquest however found that Mr Timol was murdered.
The court discussed the
factors to consider for a permanent stay of prosecution namely the
length of the delay, the reasons the
government relies on to justify
the delay, the accused’s assertion of a right to a speedy
trial, prejudice to the accused,
nature of the offence and public
consideration. The court also added a new factor, namely, the
interest of the family or victims
of the crime.
The applicant alleged
that he suffers memory loss as a result of his age and therefore will
be prejudiced. The court provided that
age and infirmity are
considered at sentencing or prior to the trial. The court held that
there is no prejudice to the accused
as there is no evidence to prove
that poor memory will taint the fairness of the trial as the State
carries the burden of proving
guilt beyond reasonable doubt.
The court was faced with
the issue of political interference in the National Prosecuting
Authority in finalising the prosecution
of the applicant. The period
in question was considered to be the period between 2003 and 2017.
The court provided that the conduct
of the relevant officials at the
time need to be brought to the attention of the National Director of
Public Prosecutions for her
consideration so that she may take any
necessary action. The court provided that although the political
interference is before
the court, investigating it in this court
would not take the application any further.
The court held that while
the delay in prosecution has caused some measure of prejudice, it
cannot be said to taint the fairness
of the proposed trial which the
Applicant is entitled to. The court held the interests of justice and
the societal need to ensure
accountability for the commission of
serious offences and the nature of the crime located in its
historical context all militate
against the granting of a permanent
stay of prosecution. The court dismissed the application grounded in
section 35(3) of the Constitution.
KOLLAPEN
J (MOSHIDI J and OPPERMAN J concurring)
Introduction
[1]
In
this application, the Applicant seeks a permanent stay of prosecution
in respect of a charge of murder and one other charge.
The
application relates to events that span some 47 years and covers
large periods of South Africa’s painful and turbulent
past as
well as the steps taken to deal with and come to terms with that past
in the building of a new future and society. In broad
terms, it
involves the death of the late Mr Ahmed Timol, attempts to uncover
the truth of what happened to him, the State’s
decision to
prosecute the Applicant for the death of Mr Timol and the Applicant’s
assertion that he is entitled to a permanent
stay of prosecution.
The
relief sought
[2]
The
relief the Applicant seeks is set out fully in the Notice of Motion
and is described as follows:
1.
“
A
declaratory [sic] order that the criminal proceedings instituted
against the Applicant constitutes an unfair trial against the
Applicant as is envisaged in section 35(5) of the Constitution of the
Republic of South Africa, Act 108 of 1996.
2.
A
declaratory [sic] order that the criminal proceedings instituted
against the Applicant constitute an infringement of his fundamental
rights to a fair trial as is provided for in section 35(5) of the
Constitution read with section 342A of the Criminal Procedure
Act,
Act 51 of 1977.
3.
That
the Applicant is granted a permanent stay on the charge of murder in
the criminal proceedings against the Applicant relating
to the death
of the late Ahmed Essop Timol on or about the 27
th
of October 1971.
4.
That
the First and/or Second Respondents are prohibited from proceeding
with the criminal prosecution against the Applicant on a
charge of
murder relating to the death of Ahmed Essop Timol.
5.
That
the First and/or Second Respondents are ordered to withdraw the
criminal proceedings against the Applicant relating to the
death of
Ahmed Essop Timol.
6.
That
the Respondent(s) is/are ordered to pay the costs of this application
only in the event of them and/or anyone of them opposing
[sic] this
application and in such instance only against the Respondent(s) who
oppose /opposes this application.
7.
Further
and/or alternative relief.”
[3]
In
Sanderson
v Attorney-General, Eastern Cape
[1]
the
Constitutional Court described the relief of a permanent stay of
prosecution as being “radical, both philosophically and
socio-politically”
[2]
and
went on to observe that “[i]ndeed 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.”
[3]
The
Respondents
[4]
The
First to Third Respondents are State parties who all oppose the
relief sought. The Fourth Respondent is the nephew of the late
Mr
Timol and was given leave by this Court to be joined as a party.
Whilst he is a party in his personal capacity, he also speaks
for the
extended Timol family.
The
Amici
[5]
The
applications by the
amici
were not opposed by any of the parties. An order was made at the
hearing of the matter admitting them as
amici.
The Court was satisfied that it was in the interests of justice to do
so and that they would advance submissions that would be
of
assistance to the Court in adjudicating the matter.
[6]
The
first to sixth
amicus
curiae
are
former TRC commissioners who sought to offer their expertise and
unique experience in matters related to reconciliation, amnesty,
and
the appropriate treatment of crimes committed under apartheid.
[7]
The
seventh
amicus
curiae
,
the Southern African Litigation Centre (SALC), has developed
expertise in the area of human rights and international law and
sought to offer its expertise in the area of the best international
law practice in dealing with crimes against humanity.
[8]
The
eighth
amicus
curiae
,
the Pan African Bar Association of South Africa (PABASA) is a
voluntary organisation of advocates committed to the values of the
Constitution such as equality, freedom and dignity.
[9]
The
ninth
amicus
curiae
,
the Law Society of South Africa, is an association of attorneys who
are committed to the rule of law and accountability for criminal
conduct and was admitted on the basis of its experience in that area.
Background
facts
The late Ahmed Timol:
the man and the political activist
[10]
The
late Mr Ahmed Timol (Timol), a teacher by profession, was a
passionate and courageous advocate for freedom and justice who became
actively involved in the political struggles in South Africa as a
member of the South African Communist Party (SACP).
[11]
On
the night of 22 October 1971, at around 23h00, Timol and his
colleague Salim Essop (Essop) were arrested at a roadblock when
documents and pamphlets of the banned SACP were found in the boot of
the vehicle they were travelling in. Both Essop and Timol
were
arrested and initially taken to Newlands Police Station from where
they were transferred to John Vorster Square
by members of
the Security Branch.
[12]
Essop
testified during the Inquest opened in 1972 (1972 inquest) that the
last glimpse he had of Timol was when he saw Timol with
a black hood
placed over his head, being dragged along by two Security Branch
officers. Timol, according to Essop, seemed unable
to walk normally
and the two Security Branch officers were holding him up. Essop
testified about the torture he suffered at the
hands of the Security
Branch officers, such as electrocution, and thought that Timol
suffered the same fate, if not worse.
[13]
On
27 October 1971 Timol died and the police, in whose custody he was at
the time, said he had committed suicide by jumping from
Room 1026 on
the 10
th
floor of John Vorster Square. An inquest held in Johannesburg in 1972
came to the same conclusion and found that no person was
responsible
for his death. It also found that the Applicant was the only other
person with Timol when the latter was said to have
moved towards the
window in Room 1026, opened it, and jumped out despite unsuccessful
efforts by the Applicant to reach Timol before
he jumped.
[14]
The
Timol family were not satisfied with the finding of the 1972 Inquest
Court and, determined to uncover the truth and seek justice,
began a
long process in which they undertook further investigations; obtained
new evidence that was not placed before the 1972
Inquest Court; and
prevailed upon the authorities and others to seek the reopening of
the inquest into Timol’s death. Those
efforts spanned a long
period of time and ultimately resulted in a decision by the Second
Respondent to reopen the inquest.
[15]
The
second inquest was held in the Gauteng Division of the High Court of
South Africa in 2017 (the 2017 inquest) before Mothle J.
The Court
heard evidence from a number of witnesses who knew Timol and who were
in detention at the time he was. These witnesses
were able to testify
with regard to the methods of interrogation and torture that many
detainees experienced at the hands of the
Security Branch. The
Applicant also testified in this inquest, as did members of the Timol
family. The court also heard expert
evidence from pathologists who
concluded that the injuries suffered by Timol prior to the fall were
so serious that Timol would
not have been able to walk, eat, or drink
unaided. The 2017 Inquest Court found that Timol’s death was
brought about by him
having been pushed from the 10
th
floor or the roof of John Vorster Square with the necessary
intent to kill in the form of
dolus
eventualis
.
The Court also found that the Applicant, on his own version,
participated in the cover up to conceal the crime of murder and that
he be investigated with a view to being prosecuted for being an
accessory after the fact in respect of the crime of Timol’s
murder.
[16]
The
findings of the 2017 inquest were in stark contrast to those of the
1972 inquest with the conclusion being that Timol had been
murdered
and that the Applicant had participated in the cover up to conceal
the murder of Timol and committed perjury.
[17]
Of
relevance in this application are the events that led to the first
democratic elections in 1994 and the agreements reached between
the
National Party and the liberation movements in dealing with the past
which ultimately resulted in the promulgation of the Promotion
of
National Unity and Reconciliation Act (the “TRC Act”).
[4]
The Truth and Reconciliation Commission
(TRC), which was established in terms of the TRC Act was tasked with
establishing “as complete a picture as possible of the nature,
causes and extent of the gross violations of human rights”
[5]
.
It was also required to facilitate the granting of amnesty for those
who had committed crimes with a political objective and who
had made
full disclosure of all relevant facts.
[18]
The
mother of Timol participated in the TRC process at a victims hearing
seeking to know who killed her son and the circumstances
under which
he died. The Applicant did not participate in that hearing and in its
final report, the Truth and Reconciliation Commission
concluded that:
“
[T]the
commission finds that the SAP and in particular Colonol Greyling,
Captain Bean, Sergeant Rodrigues, Warrant Officer Cloete,
Sergeants
FJ Ferreira, MC Pelser and DL Carter were directly responsible for
the death of Mr Ahmed Timol. The commission finds
further that the
inquest magistrate’s failure to hold the police
responsible
for Ahmed Timol’s death contributed to a culture of
impunity that led to further gross human rights violations”.
[6]
[19]
The
Applicant did not apply for amnesty in terms of the TRC process and
it was not disputed in these proceedings that the State
retained the
right to prosecute those who had committed crimes in the past if
either they did not apply for amnesty or were unsuccessful
in their
application for amnesty.
[20]
The
finalisation of the work of the TRC as well as the amnesty process
was concluded in approximately March 2002 when the TRC was
dissolved
by Presidential Proclamation. What should have followed, according to
the submissions of the first to sixth
amici
,
was what they describe as a ‘bold prosecutions policy’
which would require the State to prosecute those who had not
applied
for amnesty in order to avoid any suggestion of impunity or of South
Africa contravening its obligations in terms of international
law.
There was however no bold prosecutions policy rather what can only be
described as a timid retreat.
[21]
What
occurred in the period from about 2003 until 2017 was that all
investigations into TRC cases and other crimes of the past were
stopped as a result of an executive decision taken at a high level
that purported to interfere with the National Prosecuting Authority’s
prosecutorial decision making.
[22]
The
First Respondent describes this interference as follows:
“
The
only conclusion to arrive at is that the delay in prosecuting the
Applicant was not as a result of the First Respondent’s
own
doing or its malice- it was as a result of the political interference
and the ‘severe political constraints’ to
which the First
Respondent was subjected”.
[7]
[23]
There
was thus what can only be described as high level executive
interference on investigating and prosecuting TRC crimes and other
crimes of the past in the period from 2003 until about 2017. In an
affidavit filed in other proceedings before this Court (
Thembisile
Phumelele Nkadimeng v National Director of Public Prosecutions and 8
others
[8]
)
the former National Director of Public Prosecutions, Advocate Vusi
Pikoli describes what he regarded as an assumption on the part
of the
then Minister of Justice that TRC matters will not be prosecuted. He
says that he -
“
found
this to be a disturbing development as it appeared that at a
political level there was an expectation that I would not prosecute
TRC cases. I regarded such an expectation as unwarranted interference
in my constitutional duty to prosecute without fear favour
or
prejudice”.
[9]
[24]
In
the same affidavit he then deals with a Memorandum he prepared
arising out of this improper interference and concluded:
I
complained that such interference impinged upon my conscience and
oath of office. I indicated that I was unable to deal with these
cases in terms of the normal legal process and sought guidance on the
way forward.”
[10]
This Memorandum is dated
15 February 2007 and in September that year, Advocate Pikoli was
suspended from office.
[25]
The
Applicant was arrested and charged with murder on 30 July 2018. He
was brought to Court and released on bail. His case has been
transferred to this Court where it is currently pending - awaiting
the outcome of this application.
The legal basis upon
which the relief is founded
[26]
The
application is advanced on the basis that the Applicant’s
rights in terms of Section 35(3) of the Constitution - to have
his
trial begin and conclude without delay - has been violated by the
delay of some 47 years. This delay, he contends, has redounded
to his
prejudice and has undermined his right to a fair trial. He
accordingly seeks relief on that basis.
[27]
In
addition, he argues that his prosecution is premised upon an improper
motive as the 2017 Inquest Court did not recommend that
he be
investigated for murder, but rather as an accessory after the fact to
murder and that the charge sheet which charges him
with premeditated
murder is accordingly advanced for an improper motive given the 2017
Inquest Court’s findings.
Preliminary issues for
determination
[28]
Whilst
the Applicant has sought to argue that he has advanced a proper case
for the main relief he seeks, he has also raised a point
in
limine
which may be conveniently dealt with at this stage.
In Limine
[29]
It
is argued by the Applicant that in the face of the undisputed
political interference that was brought to bear on the prosecutorial
machinery - and which I have described above - there is insufficient
information before this Court that explains in detail how
and why
such political interference occurred. The Applicant contends that it
is unclear whether the nature of the political decisions
arrived at
constituted an amnesty and/or a pardon and that this Court is
accordingly hamstrung by the lack of such information
in determining
the relief.
[30]
The
Applicant therefore takes the position that the Court should not
finalise the application before it but rather use its powers
to make
an order directing that all relevant information relating to the
genesis and the detail of the political interference be
placed before
it before deciding the application.
[31]
While
the issue of the political interference is a matter of great
seriousness, and is one I will deal with in greater detail, including
the manner in which the evidence about the interference was revealed,
I do not agree that the matter cannot be finalised in the
absence of
the details the Applicant contends for.
[32]
While
these details will no doubt be relevant in the writing of the history
of this episode in our democracy - and no doubt more
will emerge
around it - the absence of such detail would not stand as an obstacle
to this Court determining the issues before it.
In particular, all of
the parties are in agreement that there was political interference
and that such interference may well have
delayed the investigation
and prosecution of the Applicant. It does not take the matter any
further to seek the finer detail of
how the political interference
materialised.
[33]
In
so far as there was a possible amnesty or pardon, I am of the view,
for the reasons that will emerge, that whilst it is extremely
unlikely that there was an amnesty or pardon, even if there was, its
legal basis and legal validity would be highly questionable.
I
deal fully with those issues later in this judgment but for now, I am
not persuaded that there is any merit in acceding
to the
request by the Applicant in respect of the point
in
limine
.
[34]
For
these reasons the point
in
limine
is not sustainable and is dismissed.
The merits
[35]
A
few preliminary observations may be necessary in locating the relief
sought within its proper legal and factual context.
Pre-trial delay versus
prosecution delay
[36]
The
legal basis for this application is founded upon the right contained
in Section 35 (3)(d) of the Constitution which provides
that:
“
Every
accused person has a right to a fair trial, which includes the right
–
…
(d)
to have their trial begin and conclude without unreasonable delay”.
It is
not the case for the Applicant that there has been an unreasonable
delay following the commencement of the prosecution in
July 2018 and
accordingly, this is not an application that activates the provisions
of Section 342A of the Criminal Procedure
Act which deals with
what was termed as “intra-curial delay” by the High Court
in
State
v Naidoo
[11]
.
This application relates to the alleged delay in the investigation of
the matter and the commencement of the prosecution.
The
factors necessary to consider when determining relief for a permanent
stay of execution
[37]
In
Bothma
v Els
[12]
the
Constitutional Court referred with approval to the approach taken in
Sanderson
,
[13]
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.
[14]
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.
[15]
Main issues for
determination
[40]
The
following issues accordingly arise for determination and are not to
be dealt with in an insulated fashion, but rather as part
of a
weighted balancing exercise.
The
length of the delay
[41]
While
it remains the assertion of the Applicant that there was a delay of
some 47 years from 1971 - when the crime was allegedly
committed - to
2018 - when he was charged - the timeline of 47 years is more nuanced
and complex than that and may be broadly divided
into 3 periods.
I.
The
period from 1971 to 1994
[42]
The
relevance of this period and the 1994 cut-off date is that the
approximately 23 years it spanned, covered the pre-democratic
era. It
was a time when a minority government was in power and one that was,
in law, responsible for a system of arrest and detention
without
trial and under whose watch some of the most serious and systemic
violations of human rights took place. The Applicant
was in the
employ of that government and in particular, in its security
machinery. It hardly could have been expected from that
government
that the will to investigate such crimes as the murder of Mr Timol
would have emerged and persisted, resulting
in a proper investigation
and charges being proffered.
[43]
On
the contrary, the 2017 Inquest found a cover up that was engineered,
and of which, the Applicant was a part of and in respect
of which he
committed perjury. The conclusion of the TRC in this regard - that
the First Inquest failed to properly hold the
police
accountable, thereby contributing to a culture of impunity - is also
relevant in this context.
[44]
It
can therefore hardly be open to the Applicant to suggest that the 23
years from 1971 to 1994 could be characterised as constituting
a
delay when, objectively speaking, all of the legal and factual
considerations to which I have referred, would have militated
against
any action on the part of the authorities by way of an investigation
or a prosecution. The Applicant had elected to make
himself a part of
that system, had participated in its oppressive machinery, and
allegedly sought to cover up his wrong-doing.
Surely he cannot now be
seen to reap a benefit from such a state of affairs and locating part
of the culpability in the delay over
those 23 years to that system.
To allow him to do so would seriously offend notions of fair play and
the interests of victims that
have become a central feature of our
criminal justice system.
[45]
Accordingly,
whilst this period does chronologically fall into the timeline of
47 years, it should not, for the reasons given,
be reckoned as
constituting part of the delay.
II.
The
period from 1994 to 2002
[46]
This
period was characterised by the formation of a newly elected and
democratic government. It included policy and legal initiatives
to
deal with the crimes of the past. An important aspect of these
initiatives was the establishment of the TRC which created a
process
that allowed for victims to be heard as well as for perpetrators of
crimes that were politically motivated to apply for
and receive
amnesty.
[47]
During
this time it would have been open to all who had committed crimes in
the past with a political motive to come forward and
apply for
amnesty. Provided that full disclosure was made and the crime was
committed with a political motive, a perpetrator would
have been
entitled to obtain amnesty.
[16]
[48]
The
amnesty provisions in the TRC Act were not universally accepted,
particularly by families of loved ones who were murdered during
the
pre apartheid period. This difficulty was eloquently captured by
the Constitutional Court in
Azanian
Peoples Organization (AZAPO) v President of the Republic of South
Africa
:
“
Every
decent human being must feel grave discomfort in living with a
consequence which might allow the perpetrators of evil acts
to walk
the streets of this land with impunity, protected in their freedom by
an amnesty immune from constitutional attack, but
the circumstances
in support of this course require carefully to be appreciated.
Most of the acts of brutality and torture
which have taken place have
occurred during an era in which neither the laws which permitted the
incarceration of persons or the
investigation of crimes, nor the
methods and the culture which informed such investigations, were
easily open to public investigation,
verification and correction.
Much of what transpired in this shameful period is shrouded in
secrecy and not easily capable
of objective demonstration and proof.
Loved ones have disappeared, sometimes mysteriously and most of them
no longer survive
to tell their tales. Others have had their
freedom invaded, their dignity assaulted or their reputations
tarnished by grossly
unfair imputations hurled in the fire and the
cross-fire of a deep and wounding conflict. The wicked and the
innocent have
often both been victims. Secrecy and
authoritarianism have concealed the truth in little crevices of
obscurity in our history.
Records are not easily accessible,
witnesses are often unknown, dead, unavailable or unwilling.
All that often effectively
remains is the truth of wounded memories
of loved ones sharing instinctive suspicions, deep and traumatising
to the survivors but
otherwise incapable of translating themselves
into objective and corroborative evidence which could survive the
rigours of the
law. The Act seeks to address this massive
problem by encouraging these survivors and the dependants of the
tortured and
the wounded, the maimed and the dead to unburden their
grief publicly, to receive the collective recognition of a new nation
that
they were wronged, and crucially, to help them to discover what
did in truth happen to their loved ones, where and under what
circumstances
it did happen, and who was responsible. That
truth, which the victims of repression seek so desperately to know
is, in the
circumstances, much more likely to be forthcoming if those
responsible for such monstrous misdeeds are encouraged to disclose
the
whole truth with the incentive that they will not receive the
punishment which they undoubtedly deserve if they do. Without
that incentive there is nothing to encourage such persons to make the
disclosures and to reveal the truth which persons in the
positions of
the applicants so desperately desire. With that incentive, what
might unfold are objectives fundamental to the
ethos of a new
constitutional order. The families of those unlawfully
tortured, maimed or traumatised become more empowered
to discover the
truth, the perpetrators become exposed to opportunities to obtain
relief from the burden of a guilt or an anxiety
they might be living
with for many long years, the country begins the long and necessary
process of healing the wounds of the past,
transforming anger and
grief into a mature understanding and creating the emotional and
structural climate essential for the “reconciliation
and
reconstruction” which informs the very difficult and sometimes
painful objectives of the amnesty articulated in the epilogue.”
[17]
[49]
The
cut-off date for amnesty applications was initially 14 December 1996
but was extended to 10 May 1997. The TRC was dissolved
on 31 March
2002. On 15 April 2003, the President placed the final TRC Report
before Parliament and directed that the National
Director of Public
Prosecutions institute prosecutions where appropriate.
[18]
[50]
This
period in the 47 year timeline largely encompassed dealing with the
past. During this time the process of victims and perpetrators
coming
forward was encouraged and it was certainly the view of the former
TRC Commissioners that upon the conclusion of the Commission
there
would be a bold prosecutions policy to deal with perpetrators of
crimes who never came forward to seek amnesty.
[51]
The
TRC report captures this desire in the following terms:
“…
the
need for an accountable amnesty provision which did not encourage
impunity, while at the same time taking account of the rights
of
victims. Furthermore, it has always been understood that, where
amnesty has not been applied for, it is incumbent on the present
state to have a bold prosecution policy in order to avoid any
suggestion of impunity or of contravening its obligations in terms
of
international law.”
[19]
[52]
Accordingly,
this part of the timeline, to the extent that it constituted a delay,
was a delay of the kind that was regarded as
necessary and important
to allow a new society to come to terms with its past, to allow
victims and perpetrators to take advantage
of the opportunities
created by the TRC Act, and to provide a mechanism – flawed,
but the product of a historical compromise
- to seek and find
closure.
[53]
It
could not, in my view, be said to be a part of the delay when, by
operation of the law, it was a period of hiatus that was contemplated
by the TRC Act. Even if it could be regarded as a period of delay,
then there are meritorious reasons why it was the kind of delay
that
could hardly be regarded as culpable. It was a historic and unique
time in the history of South Africa. A difficult political
compromise
was being given effect to. The nation was collectively prevailed upon
to give the process an opportunity to succeed
in the hope that it
would advance the twin objectives of reconciliation and
reconstruction. It was imperative that South Africa
embrace this
process if it were to have any chance of growing as a new nation and
overcoming the deep distrust and suspicion that
characterised the
relationship between its people for so long.
[54]
That
being the case, one then moves to deal with the third period. It is
the delay during this period in which the Applicant locates
his case.
III.
The
period from 2003 to 2017
[55]
This
is the period characterised by the political interference to which
reference has already been made. There can be little argument
that
the political interference resulted in TRC cases (and one must assume
the Timol case) not receiving the necessary attention
by virtue of
investigation that could have led to a decision to prosecute.
[56]
There
are, however, a number of issues that span this period – this
includes the issues deemed necessary to consider by
Bothma
i.e. the reasons the government assigns to justify the delay; the
accused’s assertion of a right to a speedy trial; and the
prejudice to the accused – which require special attention.
i.
The
nature of the interference and its impact on the Prosecuting
Authority
[57]
Whilst
it is manifestly clear that the political interference materially
affected the ability of the NPA to properly deal with the
TRC cases
in that the resources that were necessary to conduct proper
investigations were not forthcoming, the NPA cannot, as it
seeks to
do, portray itself purely as a victim of the political machinations
of the time. Whatever form the political interference
took, the NPA
was enjoined in terms of both its constitutional and legal
responsibilities to act on behalf of society and protect
the public
interest.
[20]
[58]
Section
179(2) of the Constitution vests exclusive power in the NPA to
institute criminal proceedings on behalf of the State,
[21]
whilst
Section 179(4) requires the NPA to exercise its functions without
fear, favour or prejudice and requires the enactment of
legislation
to give effect to this requirement.
[22]
[59]
That
legislation is the National Prosecuting Authority Act
[23]
and
provides as follows:
“
32
Impartiality of, and oath or affirmation by members of prosecuting
authority
(a)
A
member of the
prosecuting
authority
shall
serve impartially and exercise, carry out or perform his or her
powers, duties and functions in good faith and without fear,
favour
or prejudice and subject only to the
Constitution
and
the law.
(b)
Subject to the
Constitution
and
this
Act
,
no organ of state and no member or employee of an organ of state nor
any other person shall improperly interfere with, hinder
or obstruct
the
prosecuting
authority
or
any member thereof in the exercise, carrying out or performance of
its, his or her powers, duties and functions.
…
41
Offences and penalties
(1)
Any person who contravenes the provisions of section 32 (1)
(b)
shall
be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding 10 years or to both
such fine
and such imprisonment.”
[60]
In
these circumstances it must follow that the NPA had a duty to assert
its authority and independence and resist the political
interference.
It cannot be acceptable for it to simply have allowed, as it did, the
manipulation of the criminal justice system
in the serious manner in
which it occurred.
[61]
The
constitutional design that is evidenced in South Africa’s
Constitution can only be advanced if the institutions of State
accept
and discharge their responsibilities in the manner contemplated.
Unwavering fidelity to the Constitution and the law must,
at all
times, be displayed. It is therefore not open to the NPA to seek to
absolve itself of its constitutional duty in failing
to pursue the
TRC cases.
[62]
In
S
v Basson
[24]
the
Constitutional Court described the importance of this duty in the
following terms:
“…
In
our constitutional state the criminal law plays an important role in
protecting constitutional rights and values. So, for example,
the
prosecution of murder is an essential means of protecting the right
to life, and the prosecution of assault and rape a means
of
protecting the right to bodily integrity. The state must protect
these rights through, amongst other things, the policing and
prosecution of crime.
…
…
By
providing for an independent prosecuting authority with the power to
institute criminal proceedings, the Constitution makes it
plain that
the effective prosecution of crime is an important constitutional
objective. Where, therefore, a court quashes charges
on the ground
that they do not disclose an offence with the result that the state
cannot prosecute that accused for that offence,
the constitutional
obligation of the prosecuting authority and the state, in turn, is
obstructed. The constitutional import of
such a consequence is
particularly severe where the state is in effect prevented from
prosecuting an offence aimed at protecting
the right to life and
security of the person. In these circumstances the quashing of a
charge in an indictment will raise a constitutional
matter.”
[25]
[63]
The
necessity of an independent prosecuting authority was highlighted by
the Constitutional Court in
Corruption
Watch NPC and Others v President of the Republic of South Africa and
Others; Nxasana v Corruption Watch NPC and Others
:
“
At
the centre of any functioning constitutional democracy is a
well-functioning criminal justice system. In
Democratic
Alliance
Yacoob
ADCJ observed that the office of the NDPP “is located at the
core of delivering criminal justice”. If you subvert
the
criminal justice system, you subvert the rule of law and
constitutional democracy itself. Unsurprisingly, the NPA Act
proscribes
improper interference with the performance of
prosecutorial duties.
…
Improper
interference may take any number of forms. Without purporting to be
exhaustive, it may come as downright intimidation.
It may consist in
improper promises or inducements. It may take the form of corruptly
influencing the decision-making or functioning
of the NPA. All these
forms and others are proscribed by an Act that gets its authority to
guarantee prosecutorial independence
directly from the
Constitution.”
[26]
[64]
Of
course it may well be asked, what was the NPA required to do in the
face of high level political interference? Rather than simply
succumb
to it, it was open and incumbent upon the NPA to have brought this
interference into the open. Victims of those crimes
where
investigation and prosecution was being suppressed certainly had the
right to know what was happening and why such cases
were not being
prosecuted. Society as a whole had an ongoing interest in the work of
the TRC and the follow up that the government
had committed itself
to. Parliament, which ultimately represents the legislative authority
of the State, had a right to know when
the letter and spirit of
legislation that it had passed was being deliberately undermined.
None of this occurred and the NPA must
accordingly accept the moral
and legal consequences of this most serious omission and dereliction
of duty on its part.
[65]
It
is also for these reasons that the conduct of the relevant officials
and others outside of the NPA at the time should be brought
to the
attention of the National Director of Public Prosecutions for her
consideration and in particular, to consider whether any
action in
terms of Section 41(1) of the NPA Act is warranted.
Finally, there must be a
public assurance from both the Executive and the NPA that the kind of
political interference that occurred
in the TRC cases will never
occur again. In this regard they should indicate the measures,
including checks and balances, which
will be put in place to prevent
a recurrence of these unacceptable breaches of the Constitution.
ii.
The
manner in which the Respondents have introduced the issue of
political interference into evidence
[66]
Very
much related to the above, is the manner in which the NPA dealt with
the disclosure of the acts of political interference in
these
proceedings. The main answering affidavit of the NPA was signed on 3
December 2018 and filed shortly thereafter. There was
no mention made
of the political interference that was brought to bear on the NPA.
The Fourth Respondent then filed an answering
affidavit in January
2018 wherein he set out, in considerable detail, the political
interference. This included the affidavit deposed
to by Adv Pikoli in
the
Nkadimeng
matter as well as the Memorandum prepared by him in February 2007
expressing his grave misgivings about such interference and his
reluctance to go along with it.
[67]
It
was only after this affidavit was filed that the NPA then revealed
the existence of the political interference and then also
filed the
affidavit of Adv Macadam which further detailed the extent of
the political interference the NPA was subjected to.
MacAdam’s
affidavit was signed on 1 November 2018, well before the NPA’s
answering affidavit was signed and filed.
It begs the question as to
why such an important affidavit was not filed as part of the
answering affidavit when it was ready and
presumably available to
being filed.
[68]
The
suggestion that it was deliberately withheld from this Court is
difficult to refute especially given its seriousness and the
detailed
allegations contained therein of political interference.
[69]
This
is not how an organ of State, that is meant to act without fear,
favour or prejudice and in the public interest, should conduct
litigation.
[70]
In
Grootboom
v NPA
[27]
the
Constititonal Court, in dealing with the manner in which state organs
are expected to litigate and be of assistance to Courts,
remarked as
follows:
“
There
is another important dimension to be considered. The
respondents are not ordinary litigants. They constitute an
essential part of government. In fact, together with the office
of the State Attorney, the respondents sit at the heart of
the
administration of justice. As organs of state, the Constitution
obliges them to “assist and protect the courts
to ensure the
independence, impartiality, dignity, accessibility and effectiveness
of the courts.”
[28]
iii.
The
question of whether an amnesty or pardon may have been granted and if
so, the consequences thereof
[71]
The
Applicant, in dealing with what may have prompted the political
interference, suggested that an amnesty or a pardon may have
been
given by the President in respect of TRC cases - including his. He
contends that he may well have been the beneficiary of
such an
amnesty or pardon. At best, this assertion amounts to nothing more
than speculation on the part of the Applicant as there
is nothing on
the papers to suggest that either an amnesty or a pardon was granted
to the Applicant.
[72]
While
there were political attempts made to consider pardons and amnesties
post the TRC process, none of them materialised. The
Courts took the
firm view, particularly in matters relating to pardons, that when
such power was exercised, it triggered the duty
to hear persons
affected and that the exclusion of victims from such a process was
irrational.
[29]
[73]
Therefore,
on this aspect there is simply no evidence of an amnesty or pardon
being granted to the Applicant. Even if one was granted,
it would, at
best, have been a private process to the exclusion of victims and
would not survive legal or constitutional scrutiny
in the light of
the observations of the Constitutional Court in
Albutt
.
[30]
iv.
The
effects of the delay and the Applicant’s assertion to a speedy
trial.
[74]
Reverting
then to the timeline of 47 years that the Applicant advances as being
the period of the delay. It must follow that certainly
the period
from 1971 until 2003 must be excluded for the reasons already given.
What remains, and what the Applicant has focussed
on in a substantial
manner, is the delay from 2003 until 2017. There can be little doubt
that this constitutes a substantial period
of time and the reasons
advanced by the State - namely that of political interference -
cannot serve to justify the delay. It is
arguable that, excluding the
process of the Second Inquest, had the necessary resources been made
available to investigate the
case and the evidence been placed before
the NPA without any political interference, it may have been possible
for a decision to
prosecute to have been taken somewhere earlier
within that 14 year period. That it did not happen, must be
largely attributable
to the political interference and the
willingness of the NPA to yield to such interference.
[75]
Whilst
it must therefore follow that there was a delay of a lengthy period
in bringing the Applicant to trial, this cannot be the
end of the
enquiry. In
Bothma
the Court, in dealing with a lengthy pre-trial delay which it
described as “the extreme belatedness of the prosecution”,
located the enquiry in the following terms:
“
In
this context, then, the delay in the present matter must be evaluated
not as the foundation of a right to be tried without unreasonable
delay, but as an element in determining whether, in all the
circumstances, the delay would inevitably and irremediably taint the
overall substantive fairness of the trial if it were to
commence.”
[31]
[76]
Further,
in
Sanderson
the Court, in dealing with time, observed that:
The
amount of elapsed time is obviously central to the enquiry. The
right, after all, is to a public trial “within a reasonable
time after having been charged”. Understanding how this factor
should be incorporated into the enquiry is not straightforward.
In
the United States and Canada, time is considered to be a “triggering
mechanism”
which initiates the enquiry and it also
functions subsequently as an independent factor in the enquiry. In my
respectful view, time
has a pervasive significance that bears on all
the factors and should not be considered at the threshold or,
subsequently, in isolation.
Time
does not only condition the relevant considerations, such as
prejudice, it is also conditioned by them. The factors generally
relied upon by the state - waiver of time periods, the time
requirements inherent in the case, and systemic reasons for delay -
all seek to diminish the impact of elapsed time.”
[32]
[77]
Even
though the delay would have resulted in some prejudice to the
Applicant - the trial he is now required to face could have occurred
much earlier - the question this Court is required to consider in the
balancing exercise is not prejudice in isolation, but rather,
as
posited in
Bothma,
whether the delay would “inevitably and irremediably taint the
overall substantive fairness of the trial if it were to
commence”.
[33]
v.
Prejudice
to the Accused
[78]
The
Applicant argues that the lengthy delay will materially prejudice his
right to a fair trial. In support thereof he states, “[a]s
mentioned at this stage basically all the material witnesses passed
away and/or disappeared and the memory of available witnesses,
including my own memory, faded significantly because of the passage
of time”.
[34]
[79]
In
Bothma
,
the Court in dealing with what would constitute irreparable trial
prejudice said the following:
“
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. Irreparability 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.”
[35]
[80]
Also
in
Wild
and Another v Hoffert NO and Others
the Constitutional Court, having found that there was an unreasonable
delay, nevertheless concluded that there was no trial related
prejudice or exceptional circumstances to justify a permanent stay of
prosecution.
“
Those
interests, so it was held, had to be taken into consideration in
assessing the fundamental question whether there had been
an
infringement of the protection afforded by the constitutional
imperative of a speedy trial. Although the starting point
is to
establish whether the time lapse between charge and trial is
reasonable, time is not merely a trigger to an enquiry as to
prejudice. It remains the most important consideration throughout the
enquiry, bearing on the other considerations and, in turn,
being
coloured by them. Furthermore, other than is the case in some
comparable jurisdictions, no formal line is drawn in our
law between
particular time spans regarded as acceptable and those that do
not pass muster. Our approach, rather, is
to make a
flexible evaluation of the time elapsed in the context of and in
conjunction with all other relevant features of the
case, starting
with the nature, gravity and extent of the prejudice suffered, or
likely to be suffered, by the accused. The most
invasive prejudice
suffered by a person pending trial is obviously pre-trial
incarceration, which entails not only loss of
personal liberty but
often loss of livelihood and the ability to maintain dependents.
Ordinarily, therefore, this form of prejudice
will weigh heavily in
deciding how long a wait is reasonable.”
[36]
[81]
In
examining the trial prejudice that the Applicant contends he will
face, it is not in dispute that the Applicant has access to
the full
docket in the criminal trial the State seeks to pursue. The Applicant
is at liberty to engage experts, if he regards that
as necessary, in
supporting his defence and importantly, the trial Court, in such
proceedings, is constitutionally bound to ensure
that the trial is
conducted in a fair manner.
[82]
The
Applicant is currently on bail and his legal fees are being paid for
by the State – these exclude the risk of pre-trial
incarceration and the financial burden of funding his defence.
[83]
The
applicant alleges he suffers from memory loss due to old age.
Notably, age and infirmity are generally considered at the stage
of
sentencing. In the case of
S
v Hewitt
,
[37]
a 75 year old man
convicted of the rape of two girls during the 1980’s and the
indecent assault of another girl in 1994 appealed
his sentence of
eight years imprisonment. The court expressed the view that
“[r]egarding his age, whilst courts have considered
oldness as
a mitigating factor, it is certainly not a bar to a sentence of
imprisonment’’.
[38]
Our courts have, prior to
this case, also taken the position that old age is not a bar to
imprisonment.
[39]
[84]
More so, it
is accepted that old age is not a bar to prosecution and imprisonment
internationally. In
Papon
v France
[40]
the European Court of
Human Rights dealt with the case of Maurice Papon who had been
convicted of aiding and abetting crimes against
humanity during World
War II. He appealed his sentence on the basis of his age and
ill-health. The court concluded that although
Papon was 90 years of
age and was ill, he would be under constant medical supervision and
therefore there was no bar to his imprisonment.
[85]
Similarly
in the United States, the case of
Killen
v State of Mississippi
[41]
which concerned the
deaths of 3 persons by members of the Ku Klux Klan on 21 June
1964 is illustrative. In January 2005,
Edgar Ray Killen, at the
age of 80, was indicted for the deaths. He was found guilty of three
counts of murder and was sentenced
to serve 20 years for each count.
[86]
Furthermore,
there is also no evidence that the alleged poor memory of the
Applicant and other witnesses is likely to taint the
fairness of the
trial. If anything, that remains a neutral factor as it applies
equally to the State and ultimately, it is the
State that carries the
burden of proving guilt beyond reasonable doubt.
[87]
Indeed
in
Wild
the Court made reference to the continuing remedy that an accused
person enjoys during a trial to obviate any possible infringement
of
rights during trial in the following remarks:
“
The
conclusion that a permanent stay of prosecution is not appropriate
relief to be granted to the appellants here, by no means
puts paid to
their rights under s 25(3)
(a)
.
Those rights and the duty to devise appropriate remedial relief for
their infringement will continue throughout the trial. For
example,
it is trite that a judicial officer, when structuring sentence, is
obliged to have regard to pre-trial detention and any
other
significant prejudice suffered as a result of the case hanging over
the accused's head for a protracted period. Similarly,
should it
transpire that there had indeed been trial-related prejudice, this
judgment would constitute no impediment to appropriate
relief then
being granted.”
[42]
[88]
Hence age
and infirmity are not grounds upon which the applicant can singularly
rely as a form of prejudice. These are grounds which,
generally, a
trial court must consider at sentencing.
[89]
In
conclusion, while the delay has caused some measure of prejudice, it
cannot be said that it will taint the fairness of the proposed
trial
or that such a trial, if it proceeds, will not of necessity
incorporate the safeguards of fairness that the Applicant is
entitled
to. In any event, the right to a fair trial is subject to the
limitations envisaged in section 36(1) of the Constitution.
Nature of the Crime
[90]
The
charge the Applicant faces is one of murder and in
Zanner
v Director of Public Prosecutions, Johannesburg
,
the Supreme Court of Appeal observed that:
“
The
nature of the crime involved is another relevant factor in the
enquiry. This is particularly so in the present case, considering
its
seriousness. The sanctity of life is guaranteed under the
Constitution as the most fundamental right. The right of an accused
to a fair trial requires fairness not only to him, but fairness to
the public as represented by the State as well. It must also
instil
public confidence in the criminal justice system, including those
close to the accused, as well as those distressed by the
horror of
the crime. It is also not an insignificant fact that the right to
institute prosecution in respect of murder does not
prescribe.
Clearly, in a case involving a serious offence such as the present
one, the societal demand to bring the accused to
trial is that much
greater and the Court should be that much slower to grant a permanent
stay.”
[43]
[91]
Similar
sentiments were expressed in
Bothma
where the Court alluded to, what it termed, the “profound
societal interest in bringing a person charged with a criminal
offence to trial.”
“
The
judgment in
Sanderson
points
out that in determining reasonableness it is not only the interests
of the accused that must be borne in mind. In making
a value
judgment, courts must be constantly mindful of the profound social
interest in bringing a person charged with a criminal
offence to
trial, and resolving the liability of the accused. When a permanent
stay of prosecution is sought this societal interest
will loom very
large. “The entire enquiry must be conditioned by the
recognition that we are not atomised individuals whose
interests are
divorced from those of society. We all benefit by our belonging to a
society with a structural legal system;
a system which requires
the prosecution to prove its case in a public forum.” The
judgment notes that “[w]e 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.
…
The
more serious the offence, the greater the need for fairness to the
public and the complainant by ensuring that the matter goes
to trial.
As the popular saying tells us, 'Molato ga o bole' (Setswana) or
'ical'aliboli' (isiZulu) there are some crimes that
do not go
away.”
[44]
[92]
The seventh
a
micus
curiae
also urged the Court to seriously consider the nature of the crime in
determining the relief sought. They contended that the facts
advanced
in support of the crime of murder, which is reflected in the
indictment, would also sustain a conclusion that the alleged
crime in
question would constitute a crime against humanity of apartheid.
Alternatively, it would constitute a crime against humanity
of
persecution on racial or political grounds; further alternatively, a
crime against humanity of murder. They, together with the
eighth
amicus
curiae
,
argued that each of these offences triggers an obligation in terms of
customary international law on the part of the South African
government to investigate and prosecute such offences.
On
that basis, the seventh
amicus
curiae
contend that the application for a stay of prosecution should be
refused as to grant it would undermine South Africa’s ability
to discharge its obligations in terms of international law.
In
addition it has urged the Court to construe the charge sheet as
constituting the elements necessary to found a crime against
humanity, alternatively to use its inherent power to correct the
charge sheet to reflect the legal characterisation of the offence
as
a crime against humanity, further alternatively, to refer the charge
sheet back to the First Respondent for reconsideration.
[93]
The charge
sheet read with the summary of substantial facts locate the alleged
crime within the apartheid system which is described
in the summary
of substantial facts as “a system of institutionalised racial
segregation and discrimination that was in existence
from 1948”.
The State, however, has not elected to charge the Applicant with
committing a crime against humanity. I have
doubts whether under such
circumstances it is open to the Court to amend the charge sheet or to
direct that the State reconsiders
the charge sheet.
Section 86 of the
Criminal Procedure Act, upon which the
amicus
relies on for this submission, provides for the amendment of the
charge sheet in very limited circumstances and in the main deals
with
charge sheets that are defective for want of any essential averments
therein and instances where there is a variance between
an averment
in the charge sheet and the evidence led in Court.
[45]
Clearly section 86 is not of application here.
In addition, and given
the principle of the separation of powers, the independence of the
prosecutorial authority, and its role
as set out in Section 179 of
the Constitution, it may be inappropriate and outside the boundaries
of judicial authority for a Court
to direct that the charge sheet be
amended as the amicus suggests. This especially in a matter where the
State has already decided
to prosecute. It may well be different if
one was dealing with a refusal to prosecute which is not the case
here.
[94]
In
argument, counsel for the seventh
amicus
,
in response to a question from the Court, accepted that if the
prosecution of the Applicant were to continue, that would be a
proper
discharge of the international obligations South Africa has in terms
of international customary law. Under such circumstances
it becomes
unnecessary to make a determination on whether this Court is dealing
with conduct which goes beyond laying the basis
for a murder charge
but also constitutes a crime against humanity. That argument may well
be possible and indeed a compelling one,
but given the relief I
intend proposing, there would be no need to deal with it and make a
determination thereon. Of course it
would be open to the State, if
they so desire, to reconsider the charge sheet, alternatively, to
leave it as it is but upon conviction
(if that was to follow) to
argue in mitigation that the conduct of the Applicant would also have
constituted a crime against humanity.
Those are matters for the
future and for the Trial Court.
The
interest of the victims and the family
[95]
While
the interests of the victims and family can never be dispositive in
an application of this nature, in the context of this
application,
those interests warrant mention. The Timol family have, for many
years, simply sought to establish what had happened
to the late Ahmed
Timol and the circumstances that led to his death. They persisted in
seeking the truth and finding a measure
of justice and, for a long
time, their efforts seemed to come to nothing. They were not in
search of revenge, but rather the truth
and participated in the
victims hearing of the TRC. They also implored the Applicant to come
forward and reveal all. They accepted
that the prospect of amnesty
being granted to those responsible for the murder of Timol, was one
that was real and a prospect that
was contemplated by the TRC Act.
[96]
It
was largely through their efforts that a decision was taken to reopen
the Inquest and the Second Inquest was ultimately held.
Now that a
decision to prosecute has been taken, and someone is at least
indicted for the death of Timol, they too are entitled
to the justice
that has eluded them for so long. Whatever the outcome of the
criminal trial may be, they have an interest in ensuring
that there
is a proper process to ventilate the truth of what occurred and for
the Applicant’s guilt or innocence to be determined
in a court
of law. It will no doubt bring a measure of closure after almost 50
years.
Conclusion
on the unreasonable delay challenge
[97]
In
conclusion, whilst it is accepted that there was a delay that would
correctly be characterised as unreasonable in its duration
and in
respect of the justification advanced for it, there is no evidence
that the delay will result in trial prejudice nor are
there any
exceptional circumstances present that would justify granting the
radical and far reaching relief the Applicant seeks.
[98]
If
anything, the interests of justice; the societal need to ensure
accountability for the commission of serious crimes; and the
nature
of the crime located in its historical context all militate against
the grant of the relief sought.
[99]
The
application grounded in section 35(3) of the Constitution accordingly
falls to be dismissed.
Improper
Motive
[100]
The
second thrust of the Applicant’s challenge is that the
prosecution has been advanced for an improper motive. In this regard,
he contends that the Inquest Court concluded that he be investigated
for his role as an accessory after the fact to murder and
not in
respect of the crime of murder.
[101]
He
therefore concludes that the State, in charging him with the offence
of murder, acted on an improper motive as it was a decision
not
supported by the findings of the Inquest Court.
[102]
The
Respondents’ stance is that the Inquest Court never excluded
the possibility that the Applicant be charged with murder
and that
its conclusions are, nevertheless, not definitive of the charge the
State may elect to bring. In addition, they point
out that the
evidence led at the Inquest Court may well sustain a charge of murder
on the basis of
dolus
eventualis
.
[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 and, as the ninth
amicus
curiae
has pointed out, the Applicant has remedies to deal with those
issues, including the utilisation of section 22(c) of the NPA Act
and
Section 174 of the Criminal Procedure Act. Motive and, reasonable and
probable cause, should not be conflated. 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.
[104]
In
any event, the First Respondent, without admitting in any manner that
the prosecution was brought with an improper motive, argues
that the
motive will, in any event, be irrelevant. It relies on the dicta in
NDPP
v Zuma
to the following effect:
“
The
court dealt at length with the non-contentious principle that the NPA
must not be led by political considerations and that ministerial
responsibility over the NPA does not imply a right to interfere with
a decision to prosecute. This, however, does need some
contextualisation.
A prosecution is not wrongful merely because it is
brought for an improper purpose. It will only be wrongful if, in
addition, reasonable
and probable grounds for prosecuting are absent,
something not alleged by Mr. Zuma and which in any event can only be
determined
once criminal proceedings have been concluded. The motive
behind the prosecution is irrelevant because, as Schreiner JA said in
connection with arrests, the best motive does not cure an otherwise
illegal arrest and the worst motive does not render an otherwise
legal arrest illegal. The same applies to prosecutions.
This
does not, however, mean that the prosecution may use its powers for
‘ulterior purposes’. To do so would breach
the principle
of legality. The facts in
Highstead
Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law
and Order
illustrate and explain the point. The police had confiscated
machines belonging to Highstead for the purpose of charging
it with
gambling offences. They were intent on confiscating further machines.
The object was not to use them as exhibits –
they had enough
exhibits already – but to put Highstead out of business. In
other words, the confiscation had nothing to
do with the intended
prosecution and the power to confiscate was accordingly used for a
purpose not authorised by the statute.
This is what ‘ulterior
purpose’ in this context means. That is not the case before us.
In the
absence
of evidence that the prosecution of Mr Zuma was not intended to
obtain a conviction the reliance on this line of authority
is
misplaced as was the focus on motive.”
[46]
[105]
There
is, in my view, nothing to suggest that the prosecution was advanced
for an improper motive.
Costs
[106]
None
of the parties seek an order as to costs and have cited the
Biowatch
principle in support thereof.
[47]
Concluding remarks
[107]
This,
in many respects, is a difficult case. Not necessarily on account of
the legal issues it raises, but rather to the extent
that it compels
us to revisit our troubled past; examine what occurred there;
recognise the need for reconciliation; and the consequences
that
invariably went with it. Importantly, this case reaffirms that
justice and the truth were never meant to be compromised during
all
that our young society sought to do in dealing with its troubled,
turbulent and shameful past.
[108]
The
refusal of a permanent stay of prosecution is not a signalling that
we are required to be vengeful to those who are alleged
to have
committed serious crimes in the past but rather, an affirmation that
the principles of accountability and responsibility
for breaching the
rules of society stand at the doorway of our new constitutional
order.
Order
[1]
The
application is dismissed
[2]
No
order is made as to costs
NJ
Kollapen
Judge
of the High Court of South Africa
Gauteng
Division, Pretoria
I
concur
DSS
Moshidi
Judge
of the high court of South Africa
Gauteng,
Local Division, Johannesburg
I
concur
I
Opperman
Judge
of the High Court of South Africa
Gauteng,
Local Division, Johannesburg
Counsel
for the Applicant:
Adv JG Cilliers SC
Adv
SJ Coetzee
Instructed
by:
Ben
Minnaar Attorneys
Counsel
for the First Respondent:
Adv
K Tsatsawane SC
Adv
T Seboko
Instructed
by:
The Director of Public Prosecutions
Counsel
for the Second Respondent:
Adv PD Hemraj SC
Adv
RJ Mbuli
Instructed
by:
State
Attorney
Counsel
for the Third Respondent:
Adv K Tsatsawane
SC
Adv
T Seboko
Instructed
by:
State Attorney
Counsel
for the Fourth Respondent:
Adv H Varney
Adv
T Scott
Instructed
by:
Legal Resources Centre and Webber Wentzel
Counsel
for the First to Sixth
Amici Curiae
: Adv A Dodson
SC
Adv
M Mbikiwa
Instructed
by:
Haffegee Roskam and Savage Attorneys
Counsel
for the Seventh
Amicus Curiae
:
Adv SA Nakhjavani
Adv
B Meyersfeld
Instructed
by:
Lawyers for Human Rights
Counsel
for the Eighth
Amicus Curiae
:
Adv Ngcukaitobi
Adv
S Kazee
Adv
J Grant
Instructed
by:
Mchunu Attorneys
Counsel
for the Ninth
Amicus Curiae
:
Adv G Breytenbach SC
Adv
B Tshabalala
Instructed
by:
Mkhonto Ngwenya Incorporated Attorneys
Date
of hearing: 28
th
and 29
th
March 2019
Date
of Judgment: 3 June 2019
[1]
1998 (2) SA 38
(CC).
Sanderson
deals with the delay after a person has become an accused but the
four factors distilled were accepted, with qualification, and
applied in respect of a pre-trial delay. See
Bothma
v Els and Ohers
2010 (2)
SA 622
(CC) at para [37].
[2]
Id at para 38.
[3]
Id.
[4]
34 of 1995.
[5]
The preamble of the TRC Act.
[6]
TRC Final Report, Volume 3, Chapter
6, page 542 at para 61.
[7]
See First Respondent’s
Supplementary Affidavit at para 2.12.
[8]
Gauteng Division,
case no 35554/2015.
[9]
See Fourth Respondent’s
Answering Affidavit, Annexure IC6 at para 49.
[10]
Id at para 52.
[11]
2012(2) SACR 126
(WCC).
[12]
2010 (2) SA 622
(CC) at para 36.
[13]
Sanderson v Attorney-General,
Eastern Cape
1998 (2) SA
38
(CC).
[14]
Bothma
a
bove n 9 at para 37.
[15]
Sanderson
above
n 10 at para 36.
[16]
Above n 4 at section 20(1) (a)-(c).
[17]
1996 (4) SA 672
at
para 17.
[18]
Government Gazette (Notice 1539 of
2008) (12 December 2008), 31723. See also the Fourth Respondent’s
answering affidavit,
annexure IC7, the affidavit of
Adv Anton Ackermann at para 13.
[19]
TRC Final Report
above n 6, Volume 6,
Section 5, Chapter 1, page 595 at para 24.
[20]
See First Respondent’s
Supplementary Affidavit, page 766 at para 2.30.
[21]
Section 179(2) of
the Constitution provides:
“
The prosecuting authority has
the power to institute criminal proceedings on behalf of the
state,
and to carry out any necessary functions incidental to instituting
criminal proceedings”.
[22]
Section 179(4) of the Constitution
provides:
“
National legislation must
ensure that the prosecuting authority exercises its functions
without
fear, favour or prejudice”.
[23]
32 of
1998.
[24]
2005 (1) SA 171 (CC).
[25]
Id at paras 31 and 33.
[26]
2018 (2) SACR 442
(CC) at paras
20-21.
[27]
2014 (2) SA 68
(CC).
[28]
Id at para 30.
[29]
See
Albutt
v CSVR
2010 (3) SA 293
(CC) at para 69 where the Constitutional Court held:
“
In my view, the address of
former President Mbeki to Parliament itself evidenced and indeed
recognised
that, given our history,
victim participation in accordance with the principles and
the values of the TRC was the only
rational means to contribute
towards national reconciliation and
national unity. It follows therefore
that the subsequent
disregard of these
principles and values without any explanation
was irrational.
On this basis alone, the decision
to
exclude the victims from participating in the special
dispensation process was irrational.”
[30]
Id at para 74.
[31]
Bothma
a
bove n 9 at para 35.
[32]
Sanderson
a
bove n 10 at paras
28-29.
[33]
Above n 26.
[34]
See
Applicant’s
Founding Affidavit at para 63.
[35]
Bothma
above
n 9 at para 68.
[36]
1998 (2) SACR 1
(CC) at para 6.
[37]
2017 (1) SACR 309
(SCA).
[38]
Hewitt
para 15.
[39]
S v Zinn
1969 (2) SA 537
(A) at 542B-C.
[40]
(No.
1) Application 64666/01.
[41]
958 So. 2d 172
(2007) Mississippi Supreme Court.
[42]
Wild
above
n 30 at para 36.
[43]
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) at para 21.
[44]
Bothma
above
n 9 at paras 41 and 77.
[45]
Section 86 (1)
provides:
(1) Where a
charge is defective for the want of any essential averment therein,
or where there appears
to be any variance
between any averment in a charge and the evidence adduced in
proof of such averment,
or where it appears that words or
particulars that ought to have been
inserted in the charge have been omitted therefrom, or where any
words or particulars that
ought
to have been omitted from the charge have been inserted therein, or
where there is any other
error in the
charge, the court may, at any time before judgment, if it considers
that the
making of the relevant amendment will not prejudice the accused in
his defence, order that
the charge, whether it discloses an offence or not, be amended, so
far as it is and in any other
part thereof which it may become necessary to amend.
[46]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at paras 37-38.
[47]
Biowatch
Trust
v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC) at para 21.