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[2018] ZAFSHC 34
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Sithole and Others v Director of Public Prosecutions and Another (6146/2017) [2018] ZAFSHC 34 (29 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 6146/2017
In
the matter between:
EDDIE
SITHOLE
1
st
Applicant
ISAAC
VUYO
MASHAVA
2
nd
Applicant
MWANYISA
ENOCK
SITHOLE
3
rd
Applicant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS
1
st
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
2
nd
Respondent
HEARD
ON:
19 FEBRUARY 2018
JUDGMENT
BY:
RAMPAI, J
REASONS
ON:
29 MARCH 2018
[1]
Acting on the strength of the order by Daffue J the applicants,
launched an urgent interlocutory application to compel the
respondents to deliver the record of certain proceedings. Those
proceedings form the subject-matter of the pending main application.
[2]
On
19 February 2018 we were
supposed to hear the review application filed by the applicants and
opposed by the respondents.
But before we could do so, we first
had to attend to some preliminary business. Such business
concerned the hearing of the
application to compel filed by the
applicants. Having done so for hours, we summarily dismissed
the application to compel
with costs.
[3]
Aggrieved by the order we made, the applicants instantly made a
request for reasons. This judgment is penned down in response
to that request. Before I deal with the reasons for the
interlocutory order we made, I deem it necessary to give some
historical
background to the case at hand.
[4]
The three applicants and others were arrested a few years ago.
They and ten others are facing, among others, charges of
management
of a racketeering criminal enterprise in contravention of section
2(1)(e) of Prevention of Organised Crime Act, Act
No 121/1998,
charges of participation in a racketeering criminal activity in
contravention of section 2(1)(f) of POCA as well as
charges of money
laundering in contravention of section 4(a) of POCA. All in all
the written indictment contains 166 charges.
[5]
The first applicant, Eddie Sithole, the second applicant, Isaac Vuyo
Mashava and the third applicant, Mwanyisa Enock Sithole
– were
indicted as accused number 1, accused number 10 and accused number 12
respectively. All three of them have been
released from custody
on bail. Their co-accused were not before us in these
interlocutory proceedings. However, their
legal representative,
Attorney Steenkamp was in attendance. He informed us in
chambers that he was here to merely keep a
watching brief.
[6]
They made their first appearance in the Welkom Regional Court.
On 9 March 2016 their case was transferred to the Free
State High
Court. Right from the onset, they were opposed to the
prosecutorial decision to prosecute them in the high court.
They demanded to be prosecuted in the regional court. However,
the regional magistrate ruled against them. He dismissed
their
objection to the transfer of the case from the regional to the high
court. In due course the case was enrolled for
trial which was
supposed to commence on Monday 29 January 2017.
[7]
On 24 November 2017 the applicants filed the main application to have
the above prosecutorial decision reviewed and set aside.
The
ancillary relief they seek is to have the prosecutorial decision to
indict them in terms of section 2(1) POCA, Act No 121/1998
reviewed
and set aside. Moreover, they also want to have the evidence
relative to their entrapment also reviewed and set
aside. These
are the three principal features of the notice of motion pertaining
to the review application. The main
application is opposed.
[8]
On 5 December 2017 Daffue J was seized with the review application.
He made the following order:
“
1.
First and second respondent shall file their answering affidavit with
the record of the proceedings sought
to be reviewed, if any on or
before 19 January 2018.
2.
Applicant shall file replying affidavit, if any on or before 5
February 2018.
3.
This matter shall be heard before a full court of this division on or
before 19 February
2018.
4.
The costs of the opposed application on 5 December 2017 and the scale
thereof is reserved.
5.
Leave is granted to applicants to file their heads of argument on 5
February 2018 and to
respondents to file their heads of argument on
12 February 2018.”
[9]
On 19 December 2017 the respondents served and filed their answering
affidavit to the review application. It is a 163
page
document. Of those 139 pages consisted of documentation, in
other words, annexures to the answering affidavit.
The
affidavit itself was composed of 22 pages and the notice of motion 2
pages.
[10]
On 2 February 2018 the applicant served and filed their replying
affidavit to the review application. The affidavit was
described as the “Applicants Provisional Replying Affidavit.”
It was so described because, according to them,
the respondent had
failed to file the record of the internal proceedings pertaining to
the prosecutorial decision sought to be
reviewed. Such record
had to be filed before or on 19 January 2018 according to the said
court order.
[11]
Aggrieved by the perceived omission or neglect of the respondents to
file or lodge the internal record before 19 January 2018
in
accordance with the court order – “anx sek1”, the
applicants once again rushed back to court and launched
an
application to compel the respondents to file the aforesaid internal
record. That is the interlocutory application we
are here
dealing with. It was launched in haste on 5 February 2018.
Like the review application, it was also placed
on the roll for
adjudication on 19 February 2018.
[12]
The relief sought by the applicants was couched in the following
terms according to the interlocutory notice of motion:
(i)
That the
applicants’ non-compliance with the court rules relating form,
time and service be condoned;
(ii)
That the
respondents be directed to lodge the record and the reasons as
contemplated in Rule 53(b)(i) within 5 days after the handing
down of
the order sought;
(iii)
That the
main application, in other words the review application, be postponed
to a later date but still to be heard as an urgent
application having
regard to the dies as laid down in Rule 53(4);
(iv)
That the
respondent be directed to pay the costs of this interlocutory
application on the punitive scale as between attorney and
client –
jointly and severally, the one paying the other to be absolved.
The
respondent signalled their intention to oppose.
[13]
On 08 February 2018 the respondents’ served their answering
affidavit to the compulsion application. They maintained
that
they had substantially complied with the provisions of the rule and
the court order relied upon.
[14]
On 14 February 2018 a certain Mr Yasmin Omar, apparently made a sworn
statement at Springs on behalf of the applicants.
That
statement was described as the “Applicants’ Replying
Affidavit” (Application to compel).
[15]
On 19 February 2018 we were seized with the matter. Before any
argument was presented, I pertinently pointed out to Mr
Omar, counsel
for the applicants, that the bench files were in a pathetic and
chaotic state. The state of disarray made it
extremely
difficulty for us to properly prepare for the hearing. That
notwithstanding, we decided to hear oral submissions.
As a
matter of logic, we decided to entertain the interlocutory
application first.
[16]
The question which we are called upon to determine is whether the
respondents have filed a record of the proceedings sought
to be
reviewed in accordance with the court order by Daffue J.
[17]
On the one hand Mr Omar, counsel for the applicant, submitted that
the answer to that question must be in the negative.
Therefore,
he urged us to grant the application. The contention of the
applicants was that the respondents did not comply
with the court
order by Daffue J.
[18]
On the other hand, Mr Mene, counsel for the respondent, submitted
that the question must be affirmatively answered. The
contention of the respondents was that they duly complied with the
court order by Daffue J. Accordingly counsel urged us
to
dismiss the interlocutory application.
[19]
The legal position concerning the filing of review records is
governed by Rule 53. The rule envisages a procedure with
the
following salient features:
·
that there
be a decision or proceedings by a public functionary;
·
that such
proceedings must have been conducted and such decision must have been
taken during the course of exercising public power;
·
that the
applicant must be aggrieved by the substance of the decision or the
irregularity of the proceedings;
·
that the
aggrieved party may, prior to any litigation, ask the public
decision-maker to furnish him or her with the record of the
proceedings that gave rise to the decision;
·
that the
aggrieved party has the right, in the event of a refusal, to call
upon the antagonistic decision-maker to despatch a record
of the
public proceedings in question to the court registrar;
·
that the
aggrieved party shall at the same time, call upon the public
decision-maker also to give written reasons together with
the record
so required;
·
that the
aggrieved party shall exercise such discovery rights by way of notice
of motion directed and delivered to the public decision-maker
concerned and to all other third parties affected by the decision;
·
that the
decision-maker shall be obliged to despatch to the court registrar
the required record within 15 days after receipt of
the notice of
motion together with the required reasons;
·
that the
decision-maker shall notify the aggrieved party, in other words the
applicant, that he has despatched the required record
together with
the required reasons to the court registrar;
·
that the
public decision or proceedings sought to be reviewed shall be set out
in the notice of motion;
·
that the
facts, the circumstances and the grounds upon which the applicant
relies to have the public decision or the proceedings
reviewed and
set aside or reviewed and corrected must be set out in the founding
affidavit attached to the notice of motion.
[20]
Upon receipt of the record and reasons despatched to him by the
respondent, in other words the decision-maker, the registrar
has to
make same available to the applicant.
·
In the
first place the applicant has to cause copies of such portions of the
record as may be necessary for the purpose of the contemplated
review
to be made.
·
In the
second place, (s)he has to furnish the registrar with two certified
copies of the abridged record.
·
In the
third place, (s)he has to furnish each of the other third parties
with one certified copy.
·
In the
fourth place,(s)he may, amend the terms of the notice of motion.
·
In the
fifth place, (s)he may supplement the averments earlier made in the
founding affidavit.
·
The
applicant is obliged to exercise his or her rights to amend or to
supplement within ten days after the registrar has made the
record
available to him or her.
·
In the
sixth place, (s)he has to call upon the decision-maker and other
interested third parties, in other words the respondents
to show
cause, on a specified date, why such decision or proceedings should
not be reviewed and corrected or reviewed and set aside.
[21]
Those then are the salient features of the review rule of procedure.
The rule underpins an ordinary review procedure
which applies in the
ordinary course of events. Let us suppose that the respondent
decision-maker despatches the record to
the registrar on the last day
of the 15 day period as envisaged in Rule 53(1); that the
registrar transmits such record to
the record-seeker, in other words
the applicant, on day seven after receiving it and that the applicant
supplements his papers
on the last day of the 10 day period as
envisaged in Rule 53(4). In such circumstance a minimum period
of 32 days would have
lapsed before the clock can start ticking
against the respondent decision-maker to file his answering
affidavit.
[22]
In the instant matter, the applicants did not follow the aforesaid
ordinary procedure. They chose to follow an extra-ordinary
procedure. They reckoned that the review of the prosecutorial
decision to prosecute them in the high court was an extremely
urgent
matter. Consequently, they urgently launched their application
on 24 November 2017 to have such decision reviewed
and set aside.
I pause to point out that the decision sought to be reviewed was
communicated to the applicants in Welkom
on 9 March 2016 by the
regional magistrate. Their notice of motion contained 9 prayers
or orders sought. Of those prayers,
the first two are relevant
to the point. They sought an order whereby, among others, their
non-compliance with the rules
relating to strict formalities
pertaining to form, time and service was condoned. Moreover,
they specifically prayed that
the review application be enrolled and
adjudicated as an urgent matter. In short they expressly asked
that the cumbersome
Rule 53 review procedure be relaxed.
[23]
It must, therefore, be readily appreciated that the applicants
themselves specially invoked the provisions of Rule 6(12) in
order to
be exonerated from the formal timeframes which ordinarily apply to
applications, including review applications.
They expressly
sought and made their own private rules. They were entitled to
do so. But once they had chosen to deviate
from the ordinary
and general rules of procedure and once they had formulated their own
private rules they were bound by such rules.
[24]
The following portions of their notice of motion relative to the
review application demonstrate the precise nature of the private
rules of procedure formulated by the applicants in terms of rule
6(12):
[25]
It does not appear precisely when the main application was served on
the respondents. I could not find the sheriff’s
return.
It was apparently filed on 24 November 2017. The respondents
were called upon in terms of Rule 53(1) to despatch,
on the very same
day, the record of the proceedings sought to be reviewed together
with the written reasons for the decision under
attack.
[26]
As if the above private rule of the applicants was not ridiculous
enough, the following additional private rules were formulated
under
the guise of urgency:
“
TAKE
NOTICE FURTHER
THAT should you intend to oppose this Application then you must: -
(a)
On
or before the 27 November 2017, deliver notice to the Applicants that
you intend so to oppose and you shall in such notice appoint
an
address within 15 kilometres of the Office of the Registrar at which
address you will accept service of all process and pleadings
in this
matter and;
(b)
On
or before the 30 November 2017, deliver your Answering Affidavits if
any.”
[27]
Firstly, the respondents were given three days only, after the date
on which they would despatch the record, to serve and file
notice of
their intention to oppose the review application. Secondly, the
respondents were also given three days only, after
serving and filing
the said notice, to serve and file their answering affidavit.
Thirdly,
lest we forget, the review application was enrolled for adjudication
on 5 December 2017, five calendar days after the date
envisaged for
the delivery of the answering affidavits.
It
is significant to note the stringent private rules, which the
respondents were required to comply with, made no deadline provision
for the applicants to amend their notice of motion or to supplement
their supporting affidavit in terms of Rule 53(4) after receiving
the
record.
[28]
I am mindful of the scope of our task. We are currently
concerned with the interlocutory and not the main application
itself. That is a matter for another time and perhaps another
court differently constituted. Although we are not concerned
with the review application, its notice of motion has a bearing on
the interlocutory assignment we adjudicated. It will be
readily
noted that my remarks are limited to the main notice of motion and
not the merits of the main application as such.
[29]
As earlier pointed out Daffue J was initially seized with the
matter. On 5 December 2017 he, by mutual agreement between
the
parties, ordered, among others:
·
that
the answering affidavit be filed before 20 January 2018;
·
that
the record of the proceedings sought to be reviewed be simultaneously
filed together with the answering affidavit;
·
that
the replying affidavit be filed before 6 February 2018;
·
that
the review application be postponed to Monday 19 February 2018 for
adjudication.
·
yet
again there was no express deadline provision made for any amendment
of the initial notice of motion or for the founding affidavit
to be
supplement by the applicants.
[30]
On 19 January 2018 the respondents filed their answering affidavit.
The bulk thereof, 139 pages, consisted of an assortment
of 8
annexures attached to a 22 page affidavit.
·
charge
– sheet, Form J15, was labelled “anx cav 1”;
·
an
extract from memorandum by NPA: Part 12 with the the title:
Matters Justiciable in the High Court, was labelled “anx
cav2”
with the
·
Written
Judicial Ruling by Daffue J was labelled “anx cav3”;
·
Email
from Johannes M. De Nysschum to Zehir Omar was labelled “anx
cav 4”
·
Email
from Allen Simpson to Zehir Omar was labelled “anx cav5”;
·
Prosecution
Authorisation in terms of sec 2(4) of Act No 121/1998 –
Prevention of Organised Crime Act was labelled “anx
cav6”;
·
Email
from Johannes M. De Nysschen to Zehir Omar was labelled “anx
cav7”;
·
Email
from Allen Simpson to Zehir Omar was labelled “anx cav8”;
·
Confirmatory
affidavit by Adv M.S. Mamaite was unmarked. It may be labelled
“anx cav9” for the sake of identification.
[31]
It would appear from the reading of the emails and letters exchanged
between the parties that the applicants’ attorney
was furnished
with a copy of the entire case dossier as well as the written
indictment some time before the review application
was initiated.
[32]
On 5 February 2018 the respondents served and filed notice in terms
of Rule 53(1). Documentation attached to the notice
consisted
of all the documentation described in par 30 above plus the
indictment referred to in par 31 above. The respondents
collectively described those documents as the record of the public
proceedings sought to be reviewed. I have to stress that
apart
from the indictment, the rest of the documentation attached to the
notice in terms of Rule 53(1) was precisely the same documentation
earlier annexed to the answering affidavit. It has to be
mentioned that the respondents’ notice in terms of Rule 53(1)
was served on the applicants’ local attorneys, Maree &
Vennote at 10:04 on 5 February 2018.
[33]
Hardly an hour later, at 11:00 to be precise, on the very same day, 5
February 2018, the current interlocutory application
was served on
the attorneys for the respondents. It was filed on the same
day, by the attorney for the applicants knowing
that the record had
been served. The interlocutory notice of motion was signed at
Springs on 1 February 2018 by Attorney
Yasmin Omar. So was the
founding affidavit. They were then directly emailed to the
respondents, to the registrar and
Messrs Schoeman Maree, the local
correspondents of Messrs Zehir Omar Attorneys but not to “The
State Attorney”, the
respondents’ appointed legal
representatives on record. There was no mutual agreement
between the parties to exchange
pleadings by way of emails. It
was also impermissible and indeed irregular for Mr Yasmin Omar to
sidestep his local correspondent
by directly emailing to the
registrar, Ms Roxanne Naude, pleadings that had not been properly
served on the legal representatives
of the respondents.
[34]
The applicants sought an interlocutory order whereby their
non-compliance with the court rules pertaining to form time and
service was condoned, whereby the respondents were compelled to lodge
the decision record as contemplated in Rule 53(1) within
5 days after
the order together with reasons for the decision, whereby the main
application was postponed having regard to the
formal time limits as
spelt out in Rule 53(4) and whereby the respondents were directed to
pay the costs of the interlocutory application
on the punitive
scale.
[35]
Again the applicants made their own private rules. They gave
the respondent three days to serve and file their notice
of intention
to oppose and thereafter six days to serve and file their answering
affidavit. The actual dates were 8 February
2018 for the notice
and 14 February 2018 for the affidavit. Yet again no provision
was made by way of a private rule for
the deadline on which the
applicants themselves would be obliged to file their interlocutory
replying affidavit. On 8 February
2018 the answering affidavit
was filed.
[36]
On 19 February 2018 the interlocutory application was fully argued
this way and that way. On behalf of the applicants
it was
argued that the respondents were ordered by Daffue J to file the
record before or on 19 January 2018 at the very latest
but that they
failed to do so.
[37]
On behalf of the respondents it was argued that the respondents were
indeed ordered to file the record, if there was still
any record to
be filed, before 20 January 2018; that they were ordered to
file such record together with their main answering
affidavit and
they, in compliance with the court order, served and filed the record
on 19 January 2018.
[38]
The applicants were still not satisfied that the respondents had
supplied the record – vide vii “anx sek2”;
that the respondents emailed the applicants; and that they advised
them that all the documentation they were relying on in the
pending
criminal case against them were attached to the main answering
affidavit – vide 2 “anx sek3”. The
latter
annexure, dated 24 January 2018, was a response to the former
annexure dated 23 January 2018. According to the respondents,
the entire documentation which was annexed to their main answering
affidavit, in other words “anx cav1 – cav9”,
substantially constituted the required record as envisaged in Rule
53(1) and substantially complied with the court order which
required
that such record be simultaneously filed together with the answering
affidavit.
[39]
It was not the case of the applicants that no such documentation was
annexed to the answering affidavit. It was also
undisputed that
long before the review application was motioned or moved the
respondents were furnished with a copy of the entire
police dossier
as well as a copy of the written indictment. All those
important pieces of documentary material, in my view,
collectively
constituted a conspectus of the decision record of the proceedings
sought to be reviewed. It was for the applicants
and not the
respondents to analyze the voluminous documentation already supplied
to them in order to select portions thereof as,
in the opinion of the
applicants, may be relevant and necessary for the purpose of having
the impugned decision reviewed –
Rule 53(3). That the
applicants failed to do. The ultimate review record to be
tabled before the review court, by the
applicants, I have to stress,
is not supposed to be onerously burdened with every single scrap of
paper, however, irrelevant and
unnecessary, as the applicants
seemingly think. They are certainly misguided.
[40]
The question may arise as to whether the respondents were still
obliged to serve or shall I rather say to separately serve
a record
of their domestic proceedings on the applicants? It appears to
me that the answer to the question must be in the
negative.
Doing so would unnecessarily have burdened the record.
Moreover, an integral component of the respondents’
domestic
record includes a police dossier. In there one would find
witness’ statements and criminal records of accused
persons.
All these are not supposed to be in any court file before the
criminal trial has commenced. It is quite obvious,
therefore,
that the attorney for the applicants is best placed to exclude from
the ultimate review record all irrelevant documents
some of which may
be detrimental to the case of his client.
[41]
Ordinarily a decision-maker is not required to serve such record on
the aggrieved party. The rule requires him to despatch
it to
the registrar – vide Rule 53(1)(b). It then becomes
incumbent upon the registrar to forward it as it is to the
aggrieved
party. In turn the latter is bound to prepare the record and to
distribute or to serve certified copies thereof
on all the
parties cited as respondents.
[42]
In this instance, however, the applicants as
dominus
litis
,
changed the ordinary rules of engagement. They caused the court
to abridge the ordinary timelines and to alter the ordinary
course in
which the review procedure operates. For instance, the
respondents were ordered to file the record. It was
not their
responsibility to prepare, serve and file the record for the purpose
of the contemplated review. The applicants
by choice abdicated
their responsibilities.
[43]
Before the domestic record was despatched to the registrar by the
respondents and forwarded to them by the registrar, they
caused the
court, to short-circuit the review procedure. At their request
the respondents were ordered to file their answering
affidavit before
the applicants had actually received the unaudited domestic record
and obviously before the applicants themselves
had prepared,
selectively compiled, served and filed the “abridged”
review record.
[44]
By so doing, the applicants must be deemed to have waived their
procedural rights to amend or to supplement their founding
papers.
If it is accepted, and I think it should, that dictates of procedural
fairness required review applicants to exercise
such procedural
rights before review respondents are called upon to answer, then the
applicants in this instance cannot, at this
juncture be allowed to
arrogate unto themselves the right to amend or to supplement.
[45]
The deponent for the respondents, Adv CA van der Merwe, put it as
follows in the interlocutory answering affidavit:
“
4.1
Secondly, the applicants seem to be creating their own rules.
In their application they rely on the provisions of
Rule 53.
However they do not follow or comply with Rule 53.
4.2
In terms of Rule 53 the applicants are only allowed to file their
supplementary affidavit or a notice to stand
by notice of motion
after the record had been filed. Only then are the respondents
had (sic) to file their answering affidavit.
In this case they
want to file a supplementary founding affidavit after the respondents
have filed their answering affidavit.
This is contrary to Rule
53.”
The
procedure adopted was highly objectionable. It was
characterized by serious abuses of the rule. It could lead to
oppressive orders which could prejudice the respondents in ways
unintended by anyone but the applicants.
[46]
Given all the peculiar circumstances of this particular case, I am
persuaded that the respondents fairly played the game in
accordance
with the rules of review as privately modified and abridged by the
applicants; that they duly supplied the applicants
with all the
documents they have in their possession relative to their domestic
decision to have the criminal case adjudicated
by the high court;
that the applicants and not the respondents failed to prepare,
compile, serve and file the record sought for
the review of the
proceedings which informed the prosecutorial decision sought to be
challenged and that the applicants have implicitly
waived their
rights to amend or to supplement.
[47]
Before these interlocutory proceedings were instituted, Mr Yasmin
Omar wrote:
“
The
time limits were shortened by the aforesaid order …”
vide
viii “anx sek2”. Indeed they were shortened.
However, it has to be constantly borne in mind that the
applicants
themselves and not the respondents were instrumental in having the
rules of procedure, applicable to motion proceedings
in general and
review proceedings in particular, so drastically abridged.
[48]
Mr Yasmin Omar went a step further and complained:
“
The
applicants are impeded from hastily settling their replying affidavit
without the record supplied by the first and second respondents.”
The
respondents have in no way impeded the applicants’ filing of
their replying affidavit. The fact of the matter is
that the
respondents have already filed the answering affidavit. They
did so in accordance with the private rules made by
the applicants
and condoned by the court at their special request.
Consequently the applicants are precluded
from now
calling upon the respondents to augment their domestic record so they
can reply. It is too late now. The horse
has bolted.
At the risk of sounding like a scratched music record, I have to say
it one more time that the ultimate obligation
to file the record for
the actual purpose of review squarely rested on the applicants.
Accordingly, it does not lie in their
mouth to say that they cannot
amplify their founding papers or settle their replying affidavit.
They were the architect of
their own demise.
[49]
I have earlier pointed out that in terms of Rule 53(3) it was
incumbent upon the applicants to serve and file the required
record.
Shortly before this interlocutory application was launched on 5
February 2018, the respondents took it upon themselves
to supply the
applicants yet again with a bundle of documents.
[50]
I pause to remark that they did so
ex
abudandi cautela
seeing that the applicants already had all those documents in their
possession. Instead of perusing such a domestic record,
the
attorney for the applicants simply ignored it, brushed it aside
proceeded to launch this interlocutory application as if the
respondents had done nothing. At par 23 of their founding
affidavit they listed some documents they still required from the
respondents. Among others, they demanded written reasons.
However, the required reasons were given before the interlocutory
application was launched – vide par 15.1 main answering
affidavit. This much Mr Yasmin Omar, the applicants’
deponent, acknowledged – vide par 23(v) of the interlocutory
founding affidavit.
[51]
They even quibled about the copious case docket. Yet
they continued to demand more documents. On this
occasion they
demanded that the respondent should file the criminal records of the
applicants reflecting their previous convictions.
They insisted
that the respondents have to justify their decision for charging them
with an offence of which a pattern of racketeering
activity is an
element. In my view the applicants are not entitled to such
information because it is a matter of evidence.
A whole lot of
the matters raised here can best be considered by the trial judge
after hearing evidence. The review procedure
was not designed
to fish out the entire spectrum of the evidence prior to the actual
trial.
[52]
Mr Mene, implored us, on procedural and substantive grounds, to
dismiss the interlocutory application. Counsel contended
that
the application should be decided on the version of the respondents
seeing that the applicants did not properly file their
replying
affidavit. Counsel then drew our attention to the fact that the
purported replying affidavit was irregular in that
it was never
served on the respondents before it was filed. Because counsel
for the applicants insisted that it had been
duly served, we called
on him to produce proof of the alleged service.
[53]
In an attempt to discharge the onus which rested on them, the
applicants called a young gentlemen by the name of Mr Knoetze
to
testify. He elected to testify on oath. He testified that
he was a candidate attorney; that his principal
was Mr Jan
Maree; that Maree & Partners acted as local correspondents
of Zehir Omar Attorneys; that he on the instructions
of his
principal served the replying affidavit on Adv Simpson at the offices
of the first respondents.
[54]
During his indirect evidence he conceded that “The State
Attorney” was on record as the appointed legal representative
of the respondents in this matter. He could, however, give no
satisfactory answer as to why he did not serve the replying
affidavit
on the respondents’ attorneys of record.
[55]
Questions by the court revealed that he still lacked experience.
He conceded that
ex facie
the filing sheet to which the
replying affidavit was attached, it was supposed to have been served
on “The State Attorneys”;
that there was no
signature by anyone to suggest that it was so served; and that
there appeared no date or time as to when
the alleged improper
service took place. The witness conceded that both bench files
contained copies of the replying affidavit.
He could shed no
light as to what happened to the original thereof. Moreover,
neither he nor counsel for the applicants could
produce any copy
thereof from their file to show that the replying affidavit was
indeed erroneously served on Adv Simpson at the
office of the
Director of Public Prosecutions. The witness’ failure to
do so strongly militated against the veracity
of his version.
[56]
It was then insinuated that the respondents had tampered with the
court files. It was ridiculous for the witness and
counsel to
put any blame on the doorsteps of the respondents. Their own
files were in shambles. Certainly they could
not again point
fingers at the respondents. All the indications were that they
themselves were to blame.
[57]
Given the great variety of the shortcomings of the application to
compel, we, after considering the substantive merits and
demerits of
the matter as well as the procedural irregularities coupled with
their adverse impact on the respondents procedural
rights, came to
the conclusion that the issue had to be determined in favour of the
respondents.
[58]
It was our considered view that, however objectively benevolent one
considered the application, it was not only procedurally
flawed but
that it was also devoid of any substantive merits, which was why we
summarily dismissed it on 19 February 2018.
It was our further
considered view that the respondents had supplied the applicants with
the required decision record; that
they thereby substantially
discharged the obligation imposed on them in terms of Rule 53(1) and
that the pendulum had since swung
to the other extreme. In the
light of those findings, it followed that the ball was in the
applicants’ court to file
the required review record.
That, they failed to do so.
[59]
Since the hour was late, we could not deal with the main review
application on 19 March 2018. The interlocutory application
was
argued at length for hours. At the end of if all the
applicants, by default I venture to say, got the main application
postponed. I have already demonstrated that they did not
deserve a postponement. In our view, postponement appeared
to
us to have been the real motive which underlined the interlocutory
application. Consider this: The decision to transfer
their case was taken sometime ago; they were informed about it
way back on 9 March 2016; their criminal case was postponed
on
20 June 2017 for trial scheduled to commencing on 29 January 2018;
the main application to have the decision reviewed
and nullified was
initiated on 24 November 2017, almost 20 months after the date on
which they were informed about such decision.
There have been a
number of applications launched by the applicants. We gained
the impression that the applicants do not
have a serious intention to
have their day in court. The sole purpose of this application
is to delay the criminal trial.
That strategy is too obvious
for anyone to see.
[60]
In
Savoi
and Others v National Director of Public Prosecutions and Another
2014 (5) BCLR 606
(CC) at [68] the eminent judge, Madlanga J, had
this to say about a strategy such as the one we have here:
“
[68]
The
public
interest
may
also
have
to
come
into
the
equation
when
considering
what
is
fair.
In
King
,
the Supreme
Court of Appeal held:
"There
is no such thing as perfect justice . . . . Fairness is not a one-way
street conferring an unlimited right on an accused
to demand the most
favourable possible treatment but also requires fairness to the
public as represented by the state. This does
not mean that the
accused's right should be subordinated to the public's interest in
the protection and suppression of crime;
however,
the
purpose of the fair trial provision is not to make it impracticable
to conduct a prosecution. The fair trial right does not
mean a
predilection for technical niceties and ingenious legal stratagems,
or to encourage preliminary litigation - a pervasive
feature of white
collar crime cases in this country. To the contrary: courts should
within the confines of fairness actively discourage
preliminary
litigation. Courts should further be aware that persons facing
serious charges - and especially minimum sentences -
have little
inclination
to
co-operate
in
a
process
that
may
lead
to
their
conviction
and
'any
new
procedure
can
offer
opportunities capable of exploitation to obstruct and delay.' One can
add the tendency of such accused, instead of confronting
the charge,
of attacking the prosecution
."
(the
emphasis is mine)
[61]
That is precisely the sort of strategy we are here dealing with.
The applicants are virtually making it impracticable
for the
respondents to conduct a prosecution against them. This endless
preliminary sideshows are prejudicial to the respondents
constitutional imperative to combat and suppress crime in general and
to ten co-accused of the applicants in particular.
These
then are the reasons for the
ex
tempore
order
we made on 19 February 2018.
______________
MH RAMPAI, J
I
concur
_________________
MA MATHEBULA, J
On
behalf of applicants:
Adv
D Omar
Instructed
by:
Zehir Omar Attorneys
Springs
c/o Schoeman Maree
Bloemfontein
On
behalf of respondent:
Adv B.S. Mene
Instructed
by:
The State Attorney
Bloemfontein