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[2018] ZAFSHC 51
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Boshoff v National Director of Prosecutions and Others (5095/2017) [2018] ZAFSHC 51 (8 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case No.: 5095/2017
In
the matter between:-
JOHANNES
CHRISTIAAN
BOSHOFF
Applicant
and
NATIONAL
DIRECTOR OF PROSECUTIONS
1
st
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
FREE
STATE
PROVINCE
(BLOEMFONTEIN)
2
nd
Respondent
MPAPI
ELIAS MAHLAMBI
3
rd
Respondent
BENEDICTA
PHUZI NKOSI
4
th
Respondent
CORAM:
MOLEMELA,
JP
DELIVERED
ON:
08 MARCH 2018
JUDGMENT
INTRODUCTION
[1]
This is an application for an interdict prohibiting the National
Director of Public Prosecutions (NDPP) and the Director of
Public
Prosecutions, Free State (DPP) from proceeding with criminal
prosecution against the applicant, Mr Boshoff. The facts that
gave
rise to this application are set out below.
BACKGROUND
FACTS
[2]
The applicant was arrested in Harrismith on 1 June 2016 pursuant to a
complaint filed by the third and fourth respondents (the
complainants), the essence of which was that he had referred to them
as baboons. Subsequent to his release on bail, the matter
was
postponed several times pending the decision of the DPP. The DPP, by
virtue of a letter dated 18 August 2016, issued instructions
to the
Senior Prosecutor of Phuthaditjhaba, charting the course that had to
be followed in respect of the matter. In a nutshell,
the DPP
instructed the senior prosecutor to charge the applicant with two
counts of
crimen
iniuria
and
made it clear that no admission of guilt fine was to be fixed. The
DPP further indicated that the matter could be finalised
by way of a
diversion programme if certain conditions were met.
[3]
Given the fact that the interpretation of the DPP’s
instructions is central to this application, it is apposite to quote
the contents thereof verbatim. It states:
“
The Senior Public
Prosecutor
Magistrates Court
Private Bag X801
PHUTHADITHABA
9870
STATE VERSUS JOHANNES
C BOSHOFF
HARRISMITH CAS
132/06/2016
YOUR REF: 10/2/4/1 –
13/2016
1.
Johannes
Christiaan Boshoff must be charged in the Magistrate’s Court on
2 counts of Crimen Injuria
2.
No
admission of guilt fine should be set.
3.
The matter
can be finalized through diversion if Mr Boshoff is prepared to
apologize to the complainants and to attend a diversion
program.
If the Diversion program is successfully completed the charges
against the accused may be withdrawn
4.
Docket is
attached hereto.
5.
Return date
for feedback: 30 December 2016
ADV R MAPHUMULO
ADVOCATE
DIRECTOR OF PUBLIC
PROSECUTIONS
BLOEMFONTEIN
”
For
the sake of clarity, I pause to mention that the diversion programme
alluded to by the DPP is pre-trial diversion of an adult
suspect and
not the one falling within the ambit of the Child Justice Act 38 of
2005.
[4]
It is common cause that on 17 November 2016, the DPP’s
instructions were conveyed to the applicant by the trial prosecutor.
The applicant was amenable to finalisation of the matter by way of a
diversion programme and indicated his willingness to apologise
to the
complainants. It is also undisputed that he apologised to the
complainants and that they thereafter all shook hands.
The
application papers are silent on the discussions that preceded the
handshake, or on whether the complainants were informed
that a
diversion option would be followed if they accepted the applicant’s
apology. The applicant asserts that he understood
the handshake to
signify acceptance of the apology, thus entitling him to participate
in the diversion programme proposed by the
DPP. The matter was
thereafter postponed to 21 November 2016 so that proper arrangements
could be made with the social worker who
would facilitate the
diversion programme. On 21 November 2016 the applicant appeared in
court and was advised that the diversion
programme had been cancelled
on account of the complainants’ subsequent rejection of his
apology, which had been communicated
to the trial prosecutor on 18
November 2016. He was notified that the trial would therefore have to
proceed. On 17 January 2017
the applicant made written
representations for a stay of prosecution. On 24 March 2017 the
DPP apprised the senior public
prosecutor that since the applicant
had not undergone a diversion programme, the trial must proceed.
Various attempts were made
to persuade the DPP to discontinue the
applicant’s prosecution, to no avail. This prompted the
applicant to bring this application.
[5]
It is evident from the background facts the applicant was never
required to plead to the charges and that he was informed about
the
cancellation of the diversion programme before same could be
initiated. At no stage were the charges against him withdrawn.
[6]
The applicant’s case is that the DPP’s instructions
effectively amounted to an offer of a diversion programme, which
he
accepted and sealed by his apology and its acceptance by the
complainant. The applicant asserts that by accepting the DPP’s
offer, a binding agreement came into existence, thus obliging the DPP
to withdraw the charges if he successfully completed the
diversion
programme. The applicant avers that the word “may”, as
used in the letter from the DPP is authoritative,
giving the senior
prosecutor the authority to withdraw the matter in the event of an
apology being made and a diversion programme
being successfully
completed. He argued that the DPP’s cancellation of the
diversion programme amounted to a repudiation
of the agreement.
According to the applicant, the DPP was bound by the agreement in
question, with the result that any trial based
on the same facts
would amount to a violation of his constitutionally entrenched right
to a fair trial. This formed the basis of
his additional prayer for
an order directing the NDPP and DPP “to comply with the terms
of the agreement entered into between
the [DPP] and the applicant on
17 November 2016 under Harrismith Magistrates’s Court case No
711/2016, in terms of which
the charges laid against the applicant
under the above-mentioned case number be withdrawn on condition that
the Applicant successfully
complete a diversion programme.”
[7]
The DPP’S case is that her office’s standard policy is
that all charges pertaining to offences with racial overtones
must be
referred to her office for determination. It was in accordance with
that policy that the matter was referred to her office,
hence the
instructions that were issued. The DPP asserts that the provisions of
the National Prosecuting Authority Act 32 of 1998
(the NPA Act) vests
many powers in her office. She contends therefore that the
instructions she gave to the senior prosecutor regarding
how the
applicant’s matter was to be dealt falls squarely within those
powers and did not take away her power and authority
to litigate
against the applicant should the interest of justice so require.
Furthermore, the usage of the word “may”
in the phrase
“charges may be withdrawn” negates any suggestion that
there was an agreement that the charges would
in fact be withdrawn if
the applicant apologised and successfully completed a diversion
programme.
[8]
It is clear from the DPP’s instructions that a withdrawal of
the matter would be considered if two conditions were met;
firstly,
an apology by the applicant and its acceptance by the complainants,
and secondly, completion of a diversion programme.
The ultimate
question is whether the DPP was justified in reviewing her decision
on account of the complainants’ subsequent
rejection of the
applicant’s apology.
THE
APPLICABLE LAW
[9]
It is trite that where the words used in a document are capable of
more than one meaning, the material known to those responsible
for
the production of that document assists in the interpretation of the
document in question. A sensible meaning must be
preferred to
one that leads to insensible results or undermines the apparent
purpose of the document
[1]
. In a
matter of this nature, the exercise of interpreting the DPP’s
instructions must be undertaken against the backdrop
of the powers
and functions of the NDPP and the DPP, respectively, as set out in
section 179 of the Constitution and in terms of
the NPA Act, as well
as applicable policies. These prescripts constitute the material
known to the DPP which informed her decision
to issue the impugned
instructions.
[10]
Section 179(2) of the Constitution provides that the power to
institute criminal proceedings on behalf of the State and to
carry
out functions incidental thereto vests in the prosecuting authority.
Great importance is placed on the independence of prosecutors
[2]
.
The national legislation giving effect to section 179 of the
Constitution is the NPA Act. Section 20(1) thereof vests the power
to
institute, conduct criminal proceedings, to carry out functions
incidental thereto in the prosecuting authority. Section 22(4)(
f)
of the
NPA Act enjoins the NDPP to promote compliance with the United
Nations Guidelines on the Role of Prosecutors within the framework
of
national legislation. Article 13 of the guidelines adopted by the
United Nations in 1990 urges prosecutors to “protect
the public
interest, act with objectivity, take proper account of the position
of the suspect and the victim and pay attention
to all relevant
circumstances irrespective of whether they are to the advantage or
disadvantage of the suspect.”
[3]
In terms of the NPA Act,
a prosecutor has the power to institute and conduct criminal
proceedings and to discontinue such proceedings
to the extent that he
or she may have been authorised to do so by the NDPP or a person
authorised to do so. It is evident from
the aforesaid provisions that
a prosecutor has a wide discretion regarding the institution,
discontinuance or withdrawal of criminal
proceedings. That discretion
must however be exercised properly and is therefore not beyond
scrutiny of a court. In this matter,
the question is whether the
DPP’s discretion was exercised properly when she cancelled the
diversion programme and took the
decision to prosecute the Applicant.
[11]
Section 22(2)
(b)
of the NPA Act provides the NDPP with the general power to determine
prosecution policy and issue policy directives. The DPP’s
policy on racial overtones must therefore be seen against this light.
The powers exercised by a prosecutor in the lower courts
is
circumscribed, as they may only exercise powers assigned to them by
the DPP in whose area of jurisdiction such court is situated.
[12]
A reading of the published Prosecuting Policy
[4]
reveals that a decision
whether or not to prosecute is preceded by a consideration of a
number of factors. The nature of the offence
and whether its
prosecution will be in the public interest are some of the important
considerations. Equally important are considerations
such as the
attitude of the victim of the offence towards a prosecution, the
potential effects of discontinuing prosecution, as
well as the
necessity of maintaining public confidence in the justice system.
In this regard, the interests of the broader
community are of
relevance. The Prosecution Policy also provides that the review of a
case is a continuing process. The Prosecution
Policy also encourages
prosecutors to take into account the changing circumstances of a
matter and fresh facts which may come to
light after an initial
decision to prosecute or not to prosecute has been made. Having
regard to the Prosecution Policy in question,
one can accept that the
nature of the offence, having racial overtones as it does, the
attitude of the complainants, as well as
public interest would have
occupied the DPP’s mind when she issued the instructions.
Similarly, the DPP would have been entitled
to consider the
complainants’ change of heart, together with all other factors,
when reconsidering the matter.
[13]
Considering the instructions authored by the DPP in the context of
all the prosecutorial powers and functions delineated in
the
aforesaid prescripts and her standard policy regarding cases with
racial overtones, I am left with the impression that the
DPP
considered the ultimate attitude of the complainants to be an
important factor. This view is fortified by the fact that the
DPP
concluded the letter embodying the instructions by requesting that
she be provided with a report on the matter by a certain
date. Both
the senior and trial prosecutors would obviously have been familiar
with the provisions of the Prosecution Policy. The
trial prosecutor
averred that he was not authorised to oversee the whole process. The
fact that the senior prosecutor communicated
the complainants’
change of heart to the DPP before the next court appearance also
suggests that he too, understood the importance
of the complainants’
attitude in a matter of that nature. The Prosecution Policy in any
event stipulates that
rules
of practice require that certain matters be referred to a Director of
Public Prosecutions or the National Director before
a prosecution is
proceeded with
[5]
.
[14]
The applicant correctly stated that a diversion option is based on
the principles of restorative justice.
Where
diversion is not legislated, it remains the prerogative of the
prosecutor, as
dominis
litis
,
to decide after considering all the circumstance (i) whether a
diversion option would be appropriate or not and (ii) the weight
to
be attached to various factors that warrant consideration. The nature
of the offence, the contrition of the offender and the
attitude of
the victim are some of the factors that play a big role in the
consideration of the course which a particular matter
should follow.
At the end of the day, every case should be assessed on its own
merits taking all the factors which must, according
to the
prosecutorial prescripts, be taken into account.
Given
the fact that utterances with racial overtones not only offend the
persons they are directed at, but also have an effect on
those in
whose presence they are uttered, it stands to reason that the broad
interests of the community are also an important factor
that warrants
consideration. A recent Constitutional Court judgment
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[6]
gives a proper
perspective to the nature of the offence similar to that allegedly
committed by the applicant and the impact it has
on its victims.
I can do no better than to quote from that judgment verbatim.
“
[2]
South Africa’s special sect or brand of racism was so
fantastically egregious that it had to be declared a crime against
humanity by no less a body than the United Nations itself. And our
country, inspired by our impressive democratic credentials,
ought to
have recorded remarkable progress towards the realisation of our
shared constitutional vision of entrenching non-racialism.
Revelations of our shameful and atrocious past, made to the Truth and
Reconciliation Commission, were so shocking as to induce
a strong
sense of revulsion against racism in every sensible South African.
But to still have some white South Africans address
their African
compatriots as monkeys, baboons or kaffirs and impugn their
intellectual and leadership capabilities as inherently
inferior by
reason only of skin colour, suggests the opposite. And does in fact
sound a very rude awakening call to all of us.
...
[4]
It follows that the word kaffir was meant to visit the worst kind of
verbal abuse ever, on another person. Although the term
originated in
Asia, in colonial and apartheid South Africa it acquired a
particularly excruciating bite and a deliberately dehumanising
or
delegitimising effect when employed by a white person against his or
her
African compatriot. It has always been calculated to and almost
always achieved its set objective of delivering the harshest
and most
hurtful blow of projecting African people as the lowest beings of
superlatively moronic proportions.
[5] It
could only have been with this disrespect in mind and the need to
make a decisive break from the ills of the past, that non-racialism,
human dignity and freedoms (which include freedom of expression
without any trace of hate speech) are values foundational to our
constitutional democracy. The healing of the divisions of the past,
the national unity and reconciliation that need to be built
and
fostered respectively, are likewise intended to entrench peaceful
co-existence, respect and the right to dignity of all our
people.
…
As
Mathopo AJA said in
Prinsloo
v S
[2014]
ZASCA 96
(SCA) at para 20 in
.
‘In our racist past it was used to hurt, humiliate, denigrate
and dehumanise Africans. This obnoxious word caused untold
sorrow and
pain to the feelings and dignity of the African people of this
country. The appellant cannot claim that he did
not know that
the use of such word is offensive and injurious to the dignity of the
complainants. I agree with the trial court’s
finding that such
conduct seeks to negate the valiant efforts made to break from the
past and has no place in a country like ours
which is founded upon
the democratic values of human dignity, and the advancement of human
rights and freedoms.’
…
The
duty to eradicate racism and its tendencies has become all the more
apparent, essential and urgent now. For this reason, nothing
that
threatens to take us back to our racist past should be glossed over,
accommodated or excused. An outrage to racism should
not be
condescendingly branded as irrational or emotional....This is so not
only because the word kaffir is “an inescapably
racial slur
which is disparaging, derogatory and contemptuous”,but also
because African people have over the years been addressed
as kaffirs.
This seems to suggest that very little attitudinal or mind-set change
has taken place since the dawn of our democracy.
...
...My
observation is that very serious racial incidents hardly ever trigger
a fittingly firm and sustained disapproving response.
Even in those
rare instances where some revulsion is expressed in the public
domain, it is but momentary and soon fizzles out.
Sadly, this
softness characterises the approach adopted by even some of those who
occupy positions that come with the constitutional
responsibility or
legitimate public expectation to decisively help cure our nation of
this malady and its historical allies.”
[15]
I align myself with the sentiments expressed in the aforesaid
judgment and have no hesitation in expressing the view that the
usage
of the word “baboon” with reference to a black person in
this country has the same effect on the victim as the
word “kaffir”.
The sentiments expressed in the afore-mentioned case and the cases
quoted therein therefore have equal
application here.
[16]
Regard being had to the nature of the offence and its well-documented
impact on the victims and the community, it is understandable
that
the complainants’ change of heart just a day after the
acceptance of the apology weighed heavily with the DPP.
Given
the sensitivity of the matter as well as public interest, the DPP
was, in my view, entitled to take into account the complainants’
change of heart as conveyed to him by the senior prosecutor. In view
of these changed circumstances, the DPP would have been remiss
to
ignore the subsequent rejection of the complainants’ apology
and to slavishly endorse the initiation of the diversion
programme.
Doing so would, in my view, amount to undue formalism in the
assessment of a victim’s attitude and overall consideration
of
the suitability of a diversion option.
[17]
I am not persuaded that the whole tenor of the DPP’s
instruction created a legitimate expectation that charges would
be
withdrawn once an apology had been made and the applicant had
subjected himself to diversion. This is especially so because
in the same letter embodying the DPP’s instruction, it is
clearly stated that a report about the matter must be filed by
a
certain date. The consideration of whether the DPP’s
discretion was properly exercise must not follow a mechanical
approach. The following extract of the UK Guidelines for Diversion
[7]
perfectly describes what
the exercise entails:
“
Deciding
on where the public interest lies in a particular case is not simply
a matter of adding up the number of factors on each
side. It is a
matter of judgment. In making that judgment Public Prosecutors must
decide the weight to be attached to each factor
in the circumstances
of each case and go on to make an overall assessment. Assessment of
the public interest will often involve
the consideration of competing
interests. Although there may be some public interest factors against
prosecution and in favour
of diversion in a particular case,
sometimes the overall balance is that prosecution should be directed
and those matters should
be put to the Court by the defence in
mitigation when sentence is being considered.”
[18]
As stated above, there are various factors to be taken into account
when diversion is considered as an option. Similarly, a
reconsideration of the matter due to changed circumstances warrants
the same exercise. The point is that not all factors which
warrant
consideration will carry the same weight. The changed circumstances
may conceivably have a considerable impact on the potential
effects
of discontinuing prosecution, which may in turn have a bearing on the
consideration of whether or not to proceed with a
diversion
programme.
Having
paid due regard to all the afore-mentioned factors, I am unable to
find that the DPP’s decision to proceed with prosecution
is
unfounded
[8]
.
[19]
The requirements for a final interdict are trite. As stated before,
the applicant has failed to prove the existence of the
alleged
agreement between him and the DPP. The authorities relied upon
by the applicant are all distinguishable
[9]
as they relate to cases
where the prosecution sought to reinstate charges that were
previously withdrawn pursuant to a plea agreement
or after completion
of a diversion programme initiated in terms of the Child Justice Act.
In this matter, the charges were never
withdrawn and the diversion
option was cancelled before it had commenced. The DPP’s
decision to continue with the applicant’s
prosecution does not
violate the applicant’s constitutional rights to a fair trial
as it was based on a
proper
exercise of the prosecutorial discretion. The applicant still has an
opportunity of putting his defence forward in a trial
[10]
.
Clearly, the applicant has failed to prove the requirements for the
granting of a final interdict. His application therefore falls
to be
dismissed. There is no reason to depart from the general rule
pertaining to cost orders.
ORDER
[20]
The application to prohibit the applicant’s prosecution under
Harrismith Magistrates’ Court Case No 711/2016 is
dismissed
with costs.
__________________
M.B. MOLEMELA, JP
On
behalf of Applicants:
Adv J.J. Buys
Instructed by:
L & V Attorneys
BLOEMFONTEIN
On
behalf of the
1
st
and 2
nd
Respondents:
Adv O.L.R Mudau
Instructed by:
State Attorney
BLOEMFONTEIN
[1]
Natal Joint Municipal Pension Fund v Endumeni Municipality
(920/2010)
[2012] ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA
593
(SCA) (16 March 2012).
[2]
See s179(4) of the Constitution of the Republic of South Africa Act
108 of 1996. Also see Hiemstra’s Criminal Procedure,
service
issue 10, p1-4. Also see
Van Heerden v The Regional Court
Magistrate, Paarl
Unreported SCA case No 883/2015).
[3]
See
Article 13(b) and 13(d) of the Guidelines on
the Role of Prosecutors Adopted by the Eighth United Nations
Congress in 1990.
[4]
Final as Revised in June 2013, 27 November 2014.
[5]
This is in accordance with clause 4C of the
National Policy.
[6]
[2016] ZACC 38
;
[2017] 1 BLLR 8
(CC); (2017) 38 ILJ 97 (CC);
2017
(1) SA 549
(CC);
2017 (2) BCLR 241
(CC) (8 November
2016) 2017 (2)
BCLR 241
(CC) par para 2, 4, 5 and 9.
[7]
Published in November 2008.
[8]
Hiemstra’s Criminal Procedure, service issue
Issue
8 p1-6(1).
[9]
Van Eeden v Director of Public Prosecutions,
Cape of Good Hope
2005(2) SACR 22 (C);
MP Steyl v National Director of Public Prosecutions and Another
(27397/2013) [2015] ZAPGPPC 407 (9 June 2015).
[10]
Allen v Attorney-General
1936 CPD 302.