About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 65
|
|
Brooks and Others v S (KS21/2015) [2018] ZANCHC 65; 2019 (1) SACR 103 (NCK) (10 September 2018)
IN
THE HIGaH COURT OF SOUTH AFRICA,
NORTHERN
CAPE HIGH COURT,KIMBERLEY
Case
number: KS 21/2015
In
the matter between:
ASHLEY
MARK BROOKS First
Applicant/Accused
PATRICK
JOHN MASON Second
Applicant/Accused
MANOJKUMAR
DAYABHAI DETROJA Third
Applicant/Accused
KOMALIN
PACKIRISAMY
Fourth
Applicant/Accused
AHMED
ISHABHAI KHORANI Fifth
Applicant/accused
ANTONELLA
NATASCIA FLORIO-POONE Sixth
Applicant/accused
KENYADITSWE
MCDONALD VISSER Seventh
Applicant/Accused
WILLAM
JAN WEENINK
Eighth
Applicant/Accused
JOSEPH
SAREL VAN GRAAF
Ninth
Applicant/Accused
CARL
STEVE VAN GRAAF Tenth
Applicant/Accused
KEVIN
TREVOR URRY
Eleventh
Applicant/Accused
TREVOR
PIKWANE
Twelfth
Applicant/Accused
FRANK
SAMUEL PERRIDGE Thirteenth
Applicant/Accused
and
THE
STATE
Respondent
HEARD
ON:
28
- 29 AUGUST 2018
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
10
SEPTEMBER 2018
I
INTRODUCTION
[1]
This is an application by thirteen applicants for permanent stay of
their prosecution by the State which application was triggered
by the
recusal of the trial judge on 13 August 2018. Several serious,
emotional allegations have been made by the parties
and some of those
will be dealt with.
[2] Whatever my final
decision, it will have far-reaching consequences. If the
application is granted persons that might have
been convicted of
serious crimes will get off scot-free. If the application is
dismissed, the State will start the trial
de novo
in its
search for the accused persons’ convictions. Such a
criminal trial may last another two or three years
which will have
further detrimental effects on the estates and lives of the accused
persons and their families.
II
THE
PARTIES
[3]
The thirteen applicants are cited in the order as cited in the
criminal trial. They are Messrs Brooks, Mason, Detroja,
Packirisamy, Khorani, Me Florio-Poone, Messrs Visser, Weenink, JS van
Graaf, CS van Graaf, Urry, Pikwane and Perridge. Adv
E Sithole
represents 1
st
applicant, Mr S Ebrahim the 2
nd
and 5
th
applicants, Adv MM Hodes SC the 3
rd
and 8
th
applicants, Adv LM Hodes the 4
th
and 6
th
applicants, Adv CF van Heerden the 7
th
,
9
th
,
11
th
and 12
th
applicants and Adv JJ Schreuder the 10
th
and 13
th
applicants.
[4] The State is
represented by Advv JW Roothman, M Makhaga and T Barnard.
III
THE
RELIEF SOUGHT
[5]
In three separate applications all applicants seek an order in terms
whereof an order of permanent stay of their prosecution
under case KS
21/15 is sought. It is not my intention to deal with all the
allegations contained in the different affidavits
of the applicants
and the State’s response thereto in any detail. I shall
endeavour to summarise the important and
most relevant issues and
evaluate those to come to a conclusion.
[6] I may just mention
that applicants 1 to 6 and 8 brought one application, although I
allowed all their respective legal representatives
to address me
fully. Mr Van Heerden’s clients brought one application
and the same applies to Mr Schreuder’s
clients. The
individual applicants deposed to affidavits wherein they set out all
facts specifically pertaining to them.
Mr Barnard of the DPP’s
office responded to all applicants’ affidavits in one answering
affidavit. The parties
presented what they regarded as the
timeline of the trial and although there are some differences of
opinion, I was provided with
a reasonable background of the matter.
IV
POINTS
IN LIMINE
[7]
Mr Roothman raised two questions to be considered
in
limine
.
These are the following: (1) Can the defence apply for a permanent
stay of prosecution after the trial has indeed commenced
and only a
de
novo
trial ordered? (2) If the answer is yes and taking into account
that the trial must now again start
de
novo,
can the court take into consideration the merits in the “previous”
trial before the recusal of the presiding judge
to decide whether or
not there is an unreasonable delay or not?
[8] I ruled that the
points
in limine
should not be considered on their own, but be
dealt with by all the parties as part of the submissions on the
merits of the application.
Therefore I intend to deal with these two
questions when the submissions of the parties are evaluated i
nfra
.
V
MATERIAL
BACKGROUND
[9]
In order to get a clear picture of the events leading to the present
application it is necessary to provide a concise background.
During March 2013 to February 2014 an operation was embarked upon in
terms whereof a State agent acted as a trap in order to secure
transactions with various individuals pertaining to illicit dealing
in diamonds. Several transactions were allegedly concluded
with
inter
alia
the
present applicants. The entrapment process was apparently
authorised in terms of s 252A of the Criminal Procedure Act,
51 of
1977 (“the CPA”) by Adv Botha, the Acting DPP for the
Northern Cape. It will be shown
infra
that the admissibility of evidence obtained during the entrapment was
a bone of contention, resulting in a trial within a trial
being
ordered.
[10]
The trap, a certain Mr Jeptha, was introduced to some of the
applicants by one Mr Erasmus, a relative and/or close friend
of one
or more of the applicants. Mr Jephta’s handler was W/O
Potgieter, who was known as the “Boss” and
he was also
the initial investigating officer (“IO”) in the case.
The State attempted to show that the alleged
illicit dealing in
diamonds and further action by the applicants resorted within the
ambit of the Prevention of Organised Crime
Act, 121 of 1998 (“POCA”)
as is apparent from the indictment. In order to do so, it came
up with a novel, outrageous
argument – bordering on fiction –
that an enterprise has been established by the agent, the Boss and
Erasmus (the s
204 witness), as the members of the criminal
association so formed. This was alleged in an attempt to bring
the alleged illicit
dealing in diamonds by the individual applicants
within the purview of POCA. Although I raised my eyebrows in
disbelief when
I read this in the summary of substantial facts, I was
not addressed on the issue and will not say much more, save for some
final
remarks
infra
.
[11]
Several persons, including the thirteen applicants, were arrested,
mostly between 22 and 25 August 2014. The high-handed
and
robust approach of the SAPS during arrest and thereafter as explained
by all applicants in their affidavits, which have not
been contested,
is sickening. Exorbitantly high amounts of bail were set at the
request of the State and some of the applicants
were compelled to
bring formal bail applications. Bail was reduced significantly
over time to R50 000.00.
[12]
Bearing in mind the planned operation, one would have expected the
State to have had its ducks in a row and ready to
proceed with the
trial without delay, but alas, the record shows that the first
witness in the criminal trial testified only two
years later,
i.e
.
on 10 August 2016. I do not intend to put all the blame on the
State for the delay as it is clear that some delay can be
ascribed to
systemic delay and even caused by legal representatives of the
accused not ready to proceed. Further trial particulars
were
also requested during the course of 2016 whilst there was an
agreement pertaining to time frames for such requests and replies
to
be exchanged during 2015. There was also a delay caused by some
of the original accused persons who indicated that they
wanted to
enter into plea and sentence agreements, some against whom the State
did not proceed eventually. The indictment
had to be amended
accordingly.
[13]
The trial within a trial started in the beginning of 2017 and several
witnesses testified. Some of them have not finished
their
testimony as they allegedly fell sick during cross-examination.
The main State witness, Mr Jephta, did not testify.
It is not
for the accused or a court to prescribe to the State the order in
which it should call its witnesses, but
in
casu
and
with the knowledge that we have, it is clear as daylight that Mr
Jephta is an unwilling witness. The State was supposed
to
continue with the leading of evidence in the trial within a trial on
31 July 2018 – eighteen months since the start of
the trial
within a trial - when Mr Jephta would have testified. This did
not materialise due to the disclosure of vital information
to the
defence by the State at a late stage and the consequent application
for recusal to which I shall return soon.
[14] Although the
matter dragged on for two years during pre-trial procedure and
another two years on trial in the High Court,
and notwithstanding
postponements caused by various factors, there is no indication or
suggestion that applicants intended to bring
an application for
permanent stay of prosecution or rely on the provisions of s 342A of
the CPA prior to 31 July 2018. There
was an application in
terms of s 342A(3)(c), brought earlier in the Magistrate’s
Court before the start of the trial, which
was dismissed. As
mentioned, the parties provided me with separate timelines.
Although there are differences of opinion
as to the reasons for
postponements and delays, it is not necessary to scrutinise these
differences and I do not wish to make credibility
findings against
any of the legal representatives. As stated, there was no
application in terms of s 342A for the closure
of the State’s
case or permanent stay of prosecution prior to the recusal of the
presiding judge. This does not mean
that I can close my eyes
for the time that has lapsed and I shall consider it in order to
arrive at a decision.
VI
ALLEGED
THREATS AND ATTEMPT TO BRIBE
[15]
On 16 August 2016, whilst the second State witness was still on the
witness stand, the presiding judge wrote an email to the
Assistant
Director: Security in the Office of the Chief Justice. I regard it as
apposite to quote the whole email:
“
On Sunday,
14 August 2016 I was at home around 20h00 to 21h00 when Mr Phumelele
Gugu, my home boy, arrived. He is a captain in the
South African
Police Services and is stationed in Kimberley. He told me that he was
phoned by one Khaya (surname unknown), a diamond
dealer, in
Kimberley. Khaya informed him that he knows that he (Capt Gugu) is
close to me. They also know that I drive a black
Jeep with a GP
registration number. He said that I give the accused hard time in the
diamond case that I am handling. Therefore
he should talk to me and
find out what I would want him to do for me so that I do away with
it. He told me further that he told
this Khaya that he was not in
Kimberley and could not discuss such matters over the phone. The said
Khaya wanted to know from him
when he would return. He indicated that
he would return on Tuesday, which is today. Capt Gugu then told me
that he is concerned
of what would happen to me after he tells the
said Khaya that I want nothing from them. He suggested that I stop
using my car for
a while, if I can, for my and my children’s
safety. I felt scared that my life and my children’s lives are
at risk.
I think Capt Gugu is unsafe too.”
[16]
The presiding judge did not disclose the contents of the conversation
with Capt Gugu and her email to the Office of the Chief
Justice to
the legal representatives of the parties appearing before her in the
trial. The Office of the Chief Justice instructed
the Director of
Public Prosecutions in Kimberley to ensure that a docket be opened
and an investigation undertaken. Affidavits
were obtained from Capt
Gugu as early as 15 and 23 August 2016 and from Khaya on 23 August
2016. However it took the SAPS and the
DPP’s office nearly two
years to finalise the matter and for the DPP to conclude that no
prosecution was warranted. Consequently
a
nolle
prosequi
certificate was issued in May 2018.
[17]
The office of the DPP in Kimberley was also fully aware of the fact
that the star witness and trap in the case, Mr Jephta,
made four
statements, three of them between June and August 2016, wherein he
indicated that there were attempts from third parties
to bribe him as
well and thereby ensuring that he does not testify on behalf of the
State. Mr Jephta’s last statement was
made on 6 March 2018 and
around the same time when the last statement in the docket pertaining
to the trial judge’s complaint
was obtained.
[18]
I do not wish to criticise my colleague for not informing the legal
representatives of the conversation with Captain Gugu and
her fears
in that regard. However, I believe that I would probably have acted
differently, accepting though that hindsight is perfect
sight. Mr
Roothman relied on the Code of Judicial Conduct published in the
Government Gazette of 18 October 2012 which provides
as follows in
note 13(iv) to article 13 dealing with recusal:
“
If a judge
is of the view that there are no grounds for refusal but believes
that there are such facts which, if known to a party,
might result in
an application for recusal, such facts must be made known timeously
to the parties, either by informing counsel
in chambers or in open
court, and the parties are to be given adequate time to consider the
matter.”
This
does not support the State
in
casu.
The
DPP in Kimberley was well aware of the situation and even instituted
investigations. I personally believe that the trial
judge
should have informed the parties immediately in order to obtain
assurances that none of the applicants were responsible for
the
alleged threat and/or attempt to bribe.
[19]
In my view the prosecution team was under an ethical duty to take
their colleagues for the defence in their confidence and
inform them
of the alleged threats and attempts to bribe the trial judge and a
crucial State witness. If the matter was openly
discussed there
and then, that is in August 2016, the trial would in all
probabilities not have become a nullity in August 2018,
two years
down the line and after numerous witnesses have testified. Mr
Roothman conceded that the so-called
“
homeboy”
incident
“
could
never have been an irrelevant fact.”
Yet,
the State did not disclose it to the defence in August 2016, but
waited two years. The argument why the alleged bribery
of Mr
Jephta was not disclosed in 2016 is also without substance.
VII
THE
ORDER OF RECUSAL
[20]
I summarised the relevant background
supra,
but
in order to indicate what in my view triggered the present
application, I shall briefly deal with the recusal application and
the order of recusal.
[21] On 31 July
2018 an application for recusal of the trial judge was moved for on
behalf of accused 1 - 6 and 8. Mr
LM Hodes SC brought it to the
trial court’s attention that they received a letter from the
DPP’s office dated 12 June
2018 which was read into the record.
I quote partially from the letter:
“
1. This
office received information from the Assistant Director, Security,
attached to the Office of the Chief Justice, that there
was an
attempt to unduly influence or bribe the Honourable Judge Pakati in
relation to the Brooks matter and that her safety might
have been
endangered.
2. An enquiry
docket …. was opened and investigated by the Serious
Corruption Investigations Unit, South African Police Service……
4. After a
protracted investigation, the Enquiry docket was finally submitted to
this office for a decision. This office declined
to prosecute on 21
May 2018 based on the available evidence.
5. In the interest
of justice and transparency you are accordingly informed.”
[22] The docket was
requested by the defence which was forwarded on 23 July 2018. It
appears from the docket that the State had
in its possession the two
aforesaid statements of Captain Gugu. The docket also contained a
statement of one Tubane @ Khaya dated
23 August 2016 and a statement
by W/O Mogalie, the IO in that docket, who stated on 27 September
2016 as follows and I quote
verbatim
:
“
The
cellphone records was studied and according to Captain Gugu records
it shows that he was in the Eastern Cape and Khaya was in
De Beers
Kimberley. According to Gugu statement he said that Khaya
told him that he was with the suspects in Kirstenhof
and they discuss
the case. Captain Gugu is not a truthful witness and did not
want to tell the whole truth. During investigation
it was found that
he is also friends with some of the accused in the diamond case.
There are also no other witness in the case
to confirm that they
spoke about the diamond case.”
[23]
The fact of the matter is that the DPP issued a
nolle
prosequi
certificate in May 2018. Mr LM Hodes then informed the presiding
judge that the accused were given four statements by Mr Jephta,
the
State’s prime witness who acted as the trap in the illicit
diamond dealing case. Two statements are dated 27 June and
26 August
2016 respectively, one is undated and the final statement is dated 6
March 2018. These statements were handed to the
accused persons’
legal representatives the morning of the recusal application.
It is clear from the contents of the
first statement that Mr Jephta
was offered money to make a statement that he
“
was
forced by the handler to make false statements”
and
that this statement would be provided to a journalist of the DFA. He
also said:
“
I did these
discussions with these people as I could not stand it that they are
still busy with illegal activities. I did
not in any
circumstances provoke any of these people to attempt to bribe me to
not testify.”
[24]
The IO in the illicit diamond dealing case, W/O Potgieter, is also
the commissioner of oaths in respect of the June and August
2016
statements by Mr Jephta. Clearly the prosecution team should
have been fully aware of the allegations pertaining to
bribery as
long ago as June 2016, but kept this information for themselves.
Mr Roothman on behalf of the State submitted
that he was not bringing
the application for recusal and that he was not ready to argue the
application which was brought in an
informal manner. Mr MM Hodes also
argued in favour of the application for recusal as did Mr Sithole and
Mr Ebrahim. Accused
7, 9, 10, 11, 12 and 13 did not support the
application for recusal, but made it clear that they would argue at
the end of the
State’s case, or at the end of the trial that
the accused did not receive a fair hearing for the reasons advanced,
but that
this did not have any bearing on the presiding judge at
all. Once the legal representatives of the accused had argued,
Mr
Roothman requested an adjournment to the next day in order to
consider the State’s position and prepare argument. The
next day he extensively referred to and quoted several authorities.
However, the State did not oppose the application for
recusal, but
merely tried to shift any blame put on the State by the accused’s
legal representatives during argument.
[25] In her ruling the
presiding judge stated that she was not aware that the email was
forwarded to the office of the DPP for decision
and/or investigation
by the SAPS. She was also not informed of the decision not to
prosecute. In paragraph 21 of her ruling the
presiding judge said the
following:
“
I am of the
view that a reasonable person in the position of the accused would in
the circumstances reasonably think that I would
be biased, taking
into account the affidavits by Jafhta (sic) which were only given to
them in the morning of the 31 July 2018
just before he testified.”
I
do not agree with the reason for her decision to recuse herself, but
that is beside the point. I am not sitting as a review or
appeal
court. The State is in the invidious position that it could not
take the decision on appeal as it did not oppose the
application for
recusal, but actually provided ammunition to the accused to launch
their application.
[26] The authorities are
clear. Once a presiding officer has recused him- or herself,
the trial becomes a nullity, opening
the way for a fresh trial.
This applies to civil and criminal trials. I refer to
Erasmus,
Superior Court Practice
, 2
nd
ed at A2-26 and further
and
S v Suliman
1969 (2) SA 385
(AD) at 390 and further.
In
Suliman
it was held that the
de novo
trial, a
consequence of the recusal of the first trial judge, although causing
hardship and financial prejudice to the accused,
could not be
regarded as irregular or a failure of justice.
VIII
SECTION
342A
OF THE
CRIMINAL PROCEDURE ACT,
51/1977
[27
]
Section 342A
of the CPA must be considered. The relevant
portion reads as follows:
“
342A
Unreasonable delays in trials
(1) A court
before which criminal proceedings are pending shall investigate any
delay in the completion of proceedings which appears
to the court to
be unreasonable and which could cause substantial prejudice to the
prosecution, the accused or his or her legal
adviser, the State or a
witness.
(2) In
considering the question whether any delay is unreasonable, the court
shall consider the following factors:
(a)
The
duration of the delay;
(b)
the
reasons advanced for the delay;
(c)
whether
any person can be blamed for the delay;
(d)
the
effect of the delay on the personal circumstances of the accused and
witnesses;
(e)
the
seriousness, extent or complexity of the charge or charges;
(f)
actual
or potential prejudice caused to the State or the defence by the
delay, including a weakening of the quality of evidence,
the possible
death or disappearance or non-availability of witnesses, the loss of
evidence, problems regarding the gathering of
evidence and
considerations of cost;
(g)
the
effect of the delay on the administration of justice;
(h)
the
adverse effect on the interests of the public or the victims in the
event of the prosecution being stopped or discontinued;
(i)
any
other factor which in the opinion of the court ought to be taken into
account.
(3) If the court
finds that the completion of the proceedings is being delayed
unreasonably, the court may issue any such order
as it deems fit in
order to eliminate the delay and any prejudice arising from it or to
prevent further delay or prejudice, including
an order-
(a)
refusing
further postponement of the proceedings;
(b)
granting
a postponement subject to any such conditions as the court may
determine;
(c)
where
the accused has not yet pleaded to the charge, that the case be
struck off the roll and the prosecution not be resumed or
instituted
de
novo
without
the written instruction of the attorney-general;
(d)
where
the accused has pleaded to the charge and the State or the defence,
as the case may be, is unable to proceed with the case
or refuses to
do so, that the proceedings be continued and disposed of as if the
case for the prosecution or the defence, as the
case may be, has been
closed;
(e)
…
..
(f)
…
.
(4)
(a)
An
order contemplated in subsection (3)
(a)
, where the
accused has pleaded to the charge, and an order contemplated in
subsection (3)
(d)
, shall not be issued unless
exceptional circumstances exist
and all other attempts to
speed up the process have failed and the defence or the State, as the
case may be, has given notice beforehand
that it intends to apply for
such an order.
(b)
…
..
(emphasis
added)
[28]
The public interest must
also be considered in concluding as to what is fair. I refer to
National
Director of Public Prosecutions v King
2010
(7) BCLR 656
(SCA) at paragraph [5] which was quoted with approval in
Estate
Agency Affairs Board v Auction Alliance (Pty) Ltd and Others
[2014] ZACC 3
at paragraph
[71]
. According to the SCA in
King,
“
(f)airness 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
….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
….
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.
”
(emphasis added)
Similar comments were
made in
S v Shaik
[2007] ZACC 19
;
2008 (1) SACR 1
(CC) at paragraph
[43]
where
the court reiterated that
“
(i)t
(
a
fair trial)
has
to instill confidence in the criminal justice system with the public,
including those close to the accused as well as those
distressed by
the audacity and horror of crime.”
[29] Du Toit
et al,
Commentary on the
Criminal Procedure Act,
service
59 at 33-29 and
further deal with relevant authorities and also rely on the case law
mentioned
infra.
I do not intend to repeat any of the comments
made by the authors, save to state that the principles laid down in
Sanderson infra
are accepted also to apply in considering
relief in respect of
s 342A(3).
Although an analogy can be
drawn between applications in terms of
s 342A(3)
and those for
permanent stay of prosecution, it is apparent from the wording of the
section that in the first instance the applications
are sought during
pending proceedings. There is no such requirement in respect of
applications for permanent stay of prosecution,
although Mr Roothman
argued that the present application is premature as there is no
pending action.
IX
THE
CONSTITUTION
[30]
Section 38 of the Constitution states that anyone, especially those
acting in their own interest, is entitled to
“
approach
a competent court, alleging that a right in the Bill of Rights has
been infringed or threatened, and the court may grant
appropriate
relief, including a declaration of rights.”
[31] The right
relied upon
in casu
is the applicants’ right to a fair
trial entrenched in s 35(3) of the Constitution and in particular the
right to have their
trial begin and conclude without unreasonable
delay (s 35(3)(d)). It is clear that the relief embodied in s
38 is not restricted
to constitutional rights being infringed during
a criminal trial. This aspect will be dealt with
infra
when
the
Phillips
judgment is discussed.
X
AUTHORITIES
ON PERMANENT STAY OF PROSECUTION
[32]
The Constitutional Court held in
Wild
and another v Hoffert NO and others
1998
(2) SACR 1
(CC) at paragraph [11] that an application for a permanent
stay of prosecution is an extraordinary remedy. It prevents the State
from proceeding with a worthy cause,
i.e.
the prosecution of an accused in the public interest, especially
where the alleged crimes are serious and comprehensive.
In
casu
the
total value of the illicit diamond transactions alone is alleged to
be in the vicinity of R28m.
[33]
In
Zanner
v DPP, Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) the court accepted that compelling reasons for
granting permanent stay of prosecution would normally relate to
trial-related
prejudice such as the unavailability of witnesses or
fading memory in consequence whereof the accused may be prejudiced in
the
conduct of his or her trial. See paragraph [12].
In
Zanner
there was a delay of ten years between the first and second decision
to indict the appellant. It is so that the SCA found
that the
accused had to show definitive and not speculative prejudice; it is
not good enough to rely on vague allegations of prejudice
resulting
from the passage of time and the absence of witnesses. See paragraph
[16].
[34] In
DPP and
another v Phillips
[2012] 4 All SA 513
(SCA) the SCA dismissed an
appeal by the State against an order of permanent stay of prosecution
of an appeal following upon an
acquittal of the accused in the
Regional Court and the DPP’s unsuccessful appeal to the High
Court. The DPP’s
appeal to the High Court was struck from
the roll due to an inordinate delay in prosecuting it. Mr
Phillips brought an application
in the High Court in terms whereof
the appeal should be permanently struck from the roll, but later
added relief to the effect
that a permanent stay of prosecution of
the appeal be ordered. The High Court ordered a permanent stay
of prosecution and
this order was confirmed by the SCA. Navsa
JA, writing for a unanimous court, stated the following at paragraphs
[54] and
[55]:
“
[54] …….
One would have expected the DPP, allegedly concerned with the issues
thrown up by the evidence already adduced,
would act with greater
purpose and commitment. Should a court, without an end in sight
in respect of the proposed appeal
and therefore no indication of when
the trial might resume, in the event of a successful outcome for the
DPP, expect an accused
to continue to be in limbo? In the
totality of the circumstances of this case, I think not. [55]
…..She
(Satchwell
J)
was
correct in laying the fault for the delay at the door of the
DPP. She was correct to conclude that the inordinate
delay was
inexcusable.”
In
my view this case is on all fours with the present matter.
Although I do not deal with an appeal, the dismissal of the
application will have the same result which Navsa JA believed should
be prevented if the appeal eventually succeeds,
i.e.
another
trial to be conducted in the Regional Court on the merits of the
case, the initial prosecution having failed on a technicality.
In this case another High Court judge will be confronted with a
hearing that may last two or three years. Also, in
Phillips
as here, there was no pending case before the High Court when the
application for permanent stay was granted.
[35]
The most recent authority on the topic is
Van
Heerden v NDPP
2017 (2) SACR 696
(SCA). Navsa JA, writing for a unanimous
court, did not mince his words. He was extremely critical of
the prosecution’s
approach to the litigation. It would
serve no purpose to repeat what was said in this regard, but I shall
bear in mind the
logical remark by the learned judge that
“
(w)hether
a breach of a right to an expeditious trial has occurred and relief
is justified, are to be determined by a court after
having been
apprised of all of the facts on a case-by case-basis.”
[36]
Kriegler J’s judgment in
Sanderson
v Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998 (1) SACR 227
(CC) – a unanimous judgment of the
Constitutional Court - was referred to extensively in
Van
Heerden supra
.
I deem it apposite to do the same. It is apparent from the
Constitutional Court judgment that a balancing act must be performed
by a court considering an extraordinary remedy such as a permanent
stay of prosecution. Kriegler J mentioned three factors
to be
considered, to wit (1) the right to a trial within a reasonable time
is fundamental to the fairness of the trial and the
consequent
prejudice suffered by an accused if this does not materialise - see
now s 35(3)(d) of the Constitution; (2) the nature
of the case and
(3) so-called systemic delay such as effectiveness of police
investigation or prosecution of the case and delays
caused by
congested court rolls.
[37]
Kriegler J said at paragraph [38] the following about the remedy
sought by the appellant:
“
Barring the
prosecution before the trial begins – and consequently without
any opportunity to ascertain the real effect of
the delay on the
outcome of the case – is far-reaching. Indeed it prevents
the prosecution from presenting society’s
complaint against an
alleged transgressor of society’s rules of conduct. That
will seldom be warranted in the absence
of significant prejudice to
the accused.”
The
learned judge then continued at paragraph [39] and mentioned the less
drastic measures available to an accused in the event
of a delay.
[38]
Mr Roothman relied particularly on
Bothma
v Els
2010 (1) SACR 184
(CC) and the passages in respect of trial prejudice
by Sachs J in paragraphs 67 to 87 which he quoted in full. The
CC specifically
found that Mr Els, the accused in a private
prosecution case pertaining to alleged rape that was committed many
years earlier,
was presumed innocent and that the trial court would
be
“
obliged
to give due weight to the evidential deficit facing Mr Els.”
The
trial court should therefore ensure that the accused has a fair
trial. It could not be said that the trial prejudice to
which
the accused would be subjected would be insurmountable, although it
would be a significant factor to be taken into consideration
when
considering the guilt or innocence of the accused. He also
relied on other judgments such as
McCarthy
v Additional Magistrate, Johannesburg
2000 (2) SACR 542
(SCA) at paragraphs [41], [45] and [46],
Porritt
and another v The State
,
case number SS 40/2006 delivered by Spilg J in the Gauteng Local
Division on 22 April 2016. In both these matters
the
delaying tactics of Messrs McCarthy and Porritt were recognised.
They held the State at bay for a considerable time and
then claimed
prejudice as a result of delays.
XI
MONETARY
REWARD PAYABLE TO WITNESSES
[39]
Mr Roothman relies on s 3 of the Finance and Financial
Adjustmentments Acts Consolidation Act, 11 of 1977 for the submission
that the State was fully entitled to agree to pay the agent/trap
millions of Rands. Based on the value of the diamonds of
approximately R28m, an amount of R5m is not an excessive reward, so
he argued, if one considers the amounts already paid
by
applicants to their legal representatives.
Section
3 reads as follows:
“
3
Rewards to informers in respect of precious metals and precious
stones
(1)
Notwithstanding anything in any other law contained, any person,
other than a person in the service of the State, upon whose
information any precious stone or precious metal or any money paid in
respect of the illicit purchase of any precious stone or
precious
metal is seized under any law, may, at the discretion and under the
written authority of the Commissioner of the South
African Police, be
paid out of the revenues accruing to the State from the sale of such
precious stone or metal or from the seizure
of such money a monetary
reward not exceeding one-third of the amount realized by such sale or
of such money seized, as the case
may be, and, where the said
Commissioner is of the opinion that such a reward is inadequate, may
in the discretion of the said
Commissioner be paid out of moneys
appropriated by Parliament for the purpose,
such additional amount
as
together
with the said reward
does
not exceed the sum of one hundred rand
.
(2) Every
payment under subsection (1) shall to the extent to which it does not
exceed one-third of the amount so realized or of
the money so seized
be made by the Secretary for Inland Revenue by way of refund from the
revenue in question, and any refund so
made by him shall be deemed to
be a drawback for the purposes of section 3 (2)
(a)
of
the Exchequer and Audit Act, 1975 (
Act
66 of 1975
).
(Emphasis
added)
[40]
An informer is
inter
alia
defined in the Shorter Oxford English Dictionary as a person who
gives information or intelligence; an informant; and also a person
who informs against another for reward.
[41]
The monetary reward and the additional amount referred to in s 3(1)
shall not exceed R100.00. The wording of the section
is clear
and unambiguous. Mr Roothman failed to appreciate this when he
quoted the section to me. Furthermore, every
payment under s
3(1) shall be made by the Secretary for Inland Revenue, (now known as
SARS (the South African Revenue Service),
by way of a refund from the
revenue in question. It did not happen
in
casu.
It
is significant to state that the Exchequer and Audit Act, 66 of 1975,
mentioned in s 3(2), save for ss 28 to 30 thereof, has
been repealed
in 1999. Unlike as Mr Roothman wanted this court to believe, s
3 so heavily relied upon, is really a red herring
and could never
have been intended to allow the South African Police Service (“SAPS”)
to pay millions of Rands to traps.
How much should a witness be paid
to come to court and tell the truth? How will justice be served
if an unsavoury and avaricious
character is allowed to be paid vast
amounts of money to testify for one party and later accepts huge sums
of money from the opposition
not to testify? The concept of
“
buying”
witnesses
is reprehensible, although it is apparently an accepted practice in
the SAPS and police forces of other jurisdictions.
I deal with
this again
infra
.
The trial court would in normal circumstances be best suited to
consider this when evaluating the evidence in its totality
after a
full trial. Therefore, I do not intend to come to any
conclusion in the present application based on this aspect
in
isolation.
[42]
Stegmann J dealt with s 3 of Act 11 of 1977 in
S
v Ohlenschlager
1992 (1) SACR 695
(T) at 720 and 721, referring to some old
authorities and also to Hiemstra,
Suid-Afrikaanse
Strafproses
,
4
th
ed at 446. The authorities relied upon is indicative of
relatively small amounts paid out to police-traps. An eminent
judge like Innes CJ, to whom Stegmann J referred, made it clear that
entrapment has some
“
distasteful
features.”
Stegmann
J went on to deal in great detail with entrapment and his comments on
the trapping system probably assisted the legislature
in drafting s
252A of the CPA. See also Kruger A,
Hiemstra’s
Criminal Procedure
,
issue 10, at 24-120. The author refers to an unreported
judgment of 1968 wherein criticism was levelled at the payment of
a
trap only in the event of a conviction. Kruger holds the view
that the basis for payment of the trap
“
is
merit of the evidence, irrespective of the outcome of the case.”
Clearly,
payment, if it is to be made at all, should be effected at the end of
the trial. Kruger continues to say that the
“
trap
should be kept in sight as much as possible in order to prevent the
fabrication of evidence.”
He
also deals with ethical aspects and states with reference to the
Katz
judgment of 1959 that although trap evidence is admissible in certain
circumstances,
“
it
must be viewed with caution and that every case should be decided
according to its own circumstances”.
[43]
I
accept, as Mr Roothman submitted, that the credibility of the trap
and other aspects pertaining to compliance with the DPP’s
authorisation should normally be left for the trial court to decide.
Contrary to his submission that I shall not consider
this issue at
all, I believe that it is of cardinal importance to take it into
consideration together with the other aspects to
be dealt with.
XII
CONSIDERATION
OF THE APPLICATION FOR PERMANENT STAY OF PROSECUTION: A BALANCING ACT
[44]
The prejudice of applicants which is not trial-related plays a
relatively insignificant part in evaluating an application of
this
nature. No doubt, the public is obsessed with sensation and the
media thrive on that. Therefore much publicity
is afforded to
the prosecution of prominent members of society while crimes
committed by unknown persons hardly reach the newspapers,
unless
their crimes were directed at prominent citizens. Having said
this, I deem it apposite to briefly indicate the uncontested
prejudice relied upon by the applicants in the next paragraph.
[45] 1
st
Applicant – He is a registered diamond dealer. His house was
declared forfeited on application of the Asset Forfeiture Unit
(“AFU”) and he had to appeal to the Supreme Court of
Appeal which court upheld his appeal. Business associates
do
not want to do business with him anymore and this had a crippling
effect on his business. His legal costs are in excess
of R1.5m.
2
nd
Applicant
– He is a licenced diamond miner. Several of his deals
have been put on hold, including those with key players
such as De
Beers. He spent more than R2m on legal fees.
3
rd
Applicant
– He is a foreigner who has built a career in South Africa, but
has lost his clients as a result of negative publicity.
His
legal costs are in excess of R1.5m.
4
th
Applicant
– He had to pay R346 400.00 as security for the release of
his 20% interest in a family home. According to
him, he is a
respected businessman whose reputation has been tarnished to the
extent that Absa Bank closed all his accounts without
providing
reasons.
5
th
Applicant
– To date no witness has been able to attribute any suspicious
conduct to him. Adv Botha was unaware of any
allegations that
had been levelled against him.
6
th
Applicant
– She had to pay R500 000.00 to the AFU to release her
motor vehicle. She paid R700 000.00 in legal
fees.
Her husband was also charged, but all counts were withdrawn against
him. Her diamond businesses have been hampered
due to negative
publicity.
7
th
Applicant
– He could not renew his diamond dealer’s licence as a
consequence of the prosecution. His business
came to a
stand-still. He was earmarked to serve on the board of the
Department of Economic Development, but he withdrew
due to the case
against him.
8
th
Applicant
– He is also a licensed diamond dealer. His father-in-law
was a former Chief Magistrate and the negative
publicity had an
adverse effect on the whole family. He spent R1.25m on legal
fees.
9
th
Applicant
– He is also a registered diamond dealer. Cash and
diamonds in the amount of R3 240 000.00 unrelated
to the
prosecution were attached and to this day the uncut diamonds valued
at R505 920.32 have not been handed back to him.
He had to
sell a building to sustain his business and to pay legal fees. He
could not carry on with his export business due to
the pending
matter.
10
th
Applicant
– He got divorced as a result of the prosecution. He is a
registered diamond dealer and also a mechanic on
the mines. As
a result of the case, he does not get any work as mechanic on the
mines. He is receiving Legal Aid.
11
th
Applicant
– Diamonds valued at R3m were seized as well as cash.
Cash in the amount of R97 000.00 was paid back
at the end of
July 2018 only. Adv Botha conceded that there was no authorisation
granted for his entrapment.
12
th
Applicant
– He was requested to step down as member of Umnotho Wesiswe, a
mining company, due to negative publicity.
His bank issued
summons against him and brought a liquidation application against the
close corporation of which he is a member
due to the prolonged
criminal proceedings. More than a thousand carats of diamonds
confiscated, are still in police custody.
He is 68 years old.
13
th
Applicant – He is also receiving Legal Aid. He is 67
years old and a registered diamond dealer. He sold his diamonds
to purchasers in Belgium, but since the prosecution that business has
dried up.
[46]
I wish to make it clear that although I got the impression that the
applicants to an extent caused delays insofar as the pre-trial
procedures were not finalised as soon as should be the case, no
submissions were made by the State, supported by evidence, that
applicants are solely responsible for pre-trial or trial delays.
This case is most definitely not on all fours with the facts
in
S
v Dalindyebo
2016
(1) SACR 329
(SCA) or those in
McCarthy
and
Porritt
supra
.
In
Dalindyebo
the appellant tried his level best to delay the trial which he
succeeded in achieving. He even intimidated witnesses.
Eventually he argued that he did not get a fair trial, but the SCA
found at paragraph [15] that he attempted to
“
turn
his vice into a virtue.”
[47]
The recusal of a judge or other presiding officer is not a free pass
for a successful application for stay of prosecution,
even in the
event of a long criminal trial that needs to start
de
novo.
The
same applies to the situation where the presiding officer passes away
or becomes incapable during a long hearing. Recently
one of my
colleagues on the Free State bench passed away whilst another was
medically boarded midstream of long criminal trials.
The
parties started proceedings
de
novo
as
these occurrences do happen from time to time. The delays in
such instances could surely not be relied upon for successful
applications for permanent stay of prosecution, notwithstanding the
fact that the accused suffered prejudice as a consequence.
I
refer to
S
v Suliman supra
.
I mentioned that the applications before me have no doubt been
triggered by the presiding judge’s recusal as
inter
alia
Mr
Sithole has conceded and the further delay that recusal will cause,
but this application cannot be adjudicated on that basis
only.
I am mindful of the fact that accused persons may, especially during
long and difficult trials deliberately orchestrate
a ploy, leaving
the presiding officer no option than to recuse and thereafter to
apply for permanent stay of prosecution on the
basis of inordinate
delay and prejudice. Courts should be wary of this. There
is no basis for such a finding against
the applicants
in
casu.
[48]
I referred to s 342A of the CPA
supra.
Clearly
exceptional circumstances are required before a court may invoke s
342A(3)(a) – the refusal of further postponements
or 342A(3)(d)
- the closing of the State’s case which is unable to proceed
once the accused has pleaded. In such case
the presiding
officer makes the call and he/she is best suited to do so.
In
casu
I
did not preside over the trial and, contrary to the invitations of
counsel for the applicants, I decided not to read the record
which,
together with exhibits, must be in excess of 8 000 pages.
Three boxes containing 18 lever arch files were delivered
to me.
This does not include the voluminous application with which I was
confronted of which over 200 pages were irrelevant
and/or illegible.
Having said this, the authorities referred to by Du Toit
et
al
pertaining to s 342A(3) were considered as there is an analogy
between the relief sought in that section and permanent stay of
prosecution. I accept that if I grant permanent stay now, it
will be the end of the matter. On the contrary, in the
case of
orders granted in terms of either of the above subsections of s
342A(3), the State may still be able to prove its case
beyond
reasonable doubt.
[49]
I perused the authorities quoted
supra
and
do not intend to deal with all of them. I restrict myself to the
following. In
Wild
v Hoffert NO supra
the Constitutional Court was not prepared to grant a permanent stay
of prosecution after having found that the appellants themselves
were
responsible for a considerable period of delay. In that case no
trial prejudice was alleged and none was found.
Also, no
extraordinary circumstances existed to assist the appellants in their
quest for a permanent stay of prosecution. See paragraphs
[26] and
[27].
[50]
It is apparent from the Constitutional Court judgment in
Sanderson
v Attorney-General, Eastern Cape
that a balancing act must be performed by a court considering an
extraordinary remedy such as a permanent stay of prosecution.
I
am mindful of the clear
dicta
expressed
by Kriegler J, but immediately need to point out that the facts in
this case differ from
Sanderson.
Insofar
as Mr Roothman heavily relied upon
Bothma
v Els supra,
it should also be pointed out that that matter is totally
distinguishable from the present matter.
In
casu
we
already know that two years flew by before the trial commenced in the
High Court and that after a further two years the end was
still not
nigh. Further, unlike in
Sanderson,
the first IO and also the so-called handler of the agent (the trap),
W/O Potgieter, did not turn up on several occasions to testify
due to
alleged illness which was never confirmed by medical evidence, that
Potgieter is still under cross-examination, that he
retired from
SAPS, that the new IO allegedly found further crucial real evidence
on Potgieter’s computer which was provided
to the applicants
rather belatedly in the form of CD’s, as was the case with so
many other documents and witness statements,
and that Potgieter
inexplicably received payments relating to the case in his personal
bank account.
[51]
Further worrisome issues, brushed aside by the State in its answering
affidavit, are the following. The State included a charge
of
racketeering on the basis of a criminal enterprise and as indicated
supra
,
the members thereof as alleged by the State is its star witness, Mr
Jephta, former IO, W/O Potgieter and Mr Erasmus, the s 204
witness.
Clearly, the State tried to blow up the case to something more
serious than illicit diamond dealing. Col Serfontein
conceded
in his testimony that a forensic analysis of the cellphone records
does not substantiate these allegations. Furthermore,
two of
the three persons forming the criminal association (enterprise), as
the State wants everybody to believe, had access to
eleven
unregistered, unmonitored and unrecorded cellphones during the
entrapment process. This is incomprehensible and it
would be an
exercise in futility to remedy such a flaw.
[52]
The most damning aspect in respect of the State’s case is the
character and attitude of the State’s star witness,
Mr Jephta,
who has yet to testify. On his own version he personally
contacted at least one of the accused and allowed people
to negotiate
with him not to testify for the State and even to splash his “story”
of being forced by his handler to
make false statements in a local
newspaper. An amount of R500 000.00 was mentioned. A
State witness with integrity
would not even agree to meet with
accused persons or people having connections with the accused,
allowing them to make offers to
him; yet he even came to Bloemfontein
to consider offers made to him in this regard. His credibility
is in tatters –
even junior counsel will be able tear him to
pieces within a few minutes. It would be the end of the State’s
case.
The question to be asked is simply this: why must the
applicants go through another trial to see whether Mr Jephta turns up
eventually
whilst the State elected to call all formal and other not
so important witnesses at the previous trial, keeping the trap away
from
the witness stand.
[53]
The person who authorised the whole entrapment, Adv Botha, will
surely not be prepared to open his flanks to yet another round
of
cross-examination. He already made telling concessions.
[54]
1
st
applicant stated the following which is not denied by respondent:
“
(t)he
payments of significant amounts to witnesses must taint their
testimony and renders the trial unfair. Linton Jephta
is in
effect blackmailing the State and there is no guarantee that he will
ever come to Court or tell the truth. Both Col
and Adv Botha
have conceded that Linton Jephta was not an appropriate candidate to
have been used as the agent because of his previous
criminal conduct
and bad character.”
The
State responded merely:
“
that this is
irrelevant for this application as it deals with the merits of the
case that will be decided upon by the Presiding
Judge.”
I
do not agree with the State’s response, not only in this
regard, but also in several other instances.
The
versions of the applicants were left unchallenged on several crucial
issues.
[55]
Not only did Mr Jephta receive R1m for his involvement in entrapment,
but he demanded a further R4m to testify. This
might have been
inadmissible hearsay, based on a possibly incorrect version of him to
a newspaper reporter in the DFA newspaper
as early as 7 April 2016
(before the start of the trial), but credence can be placed on the
essence of the report,
i.e.
that Mr Jephta wants more money to testify. Adv Botha testified
that Mr Jephta approached him for more money, but that he
referred
him to SAPS. He and Col Botha confirmed under oath that an
amount of R1m had already been paid to the agent, it
being an
exception in that the claim was submitted before the conclusion of
the case. These allegations by the 1
st
applicant in his affidavit was met by the State by firstly submitting
that they relate to the merits of the case to be considered
by the
presiding judge, and secondly, in stating that the agent was entitled
to compensation based on the provisions of s 3 of
the Finance and
Financial Adjustments Acts Consolidation Act, 11 of 1977. The
State did not file an affidavit by Mr Jephta
to refute the
allegations made to the DFA journalist and to confirm his willingness
to testify. I have been informed from
the bar my Mr LM Hodes,
with reference to a particular passage in the record, that Col Botha
conceded in his testimony that Mr
Jephta demanded further payment in
the amount of R4.2m. Mr Roothman did not object to this
information and it must be accepted
to be a true reflection of the
evidence.
[56]
Entrapment is acknowledged word-wide as a means of tracing the
commission of various crimes and perpetrators of crime, especially
organised syndicates involved in drug offences or the illegal trading
in uncut diamonds and unwrought gold to name a few examples.
See: Snyman CR,
Criminal
Law
5
th
ed at 146. That does not mean that a court may close its eyes
to irregularities that may cause unfairness to the extent that
an
accused person’s right to a fair trial is violated. The
Constitutional Court has to the best of my knowledge not
yet
considered the use of traps, but I have little doubt that that court
will not sanction the payment of traps to the extent as
has taken
place here, especially prior to the testimony of the trap or
finalisation of the trial. I exclude here the payment
of
reasonable amounts for accommodation, travelling and the like.
Where will we end up if
“
hire
a witness”
is
resorted to by parties and especially the State? The argument
of Mr Roothman that the amount of R5m is still much less
than the
fees paid by the applicants for their legal fees is irrelevant and
does not hold any water. Having said all of the
above, I need
to mention that I am not so naïve to believe that police-traps
are not paid certain fees depending on the nature
of the case,
although they will more often than not deny having been paid or that
they expect payment.
In
casu
the
trap in actual fact bragged about the R1m payment received and openly
declared that he would not testify if his demand for a
further R4m
payment is not met.
[57]
In the
Sanderson
case the court did not focus on the general disadvantages suffered by
the appellant in consequence of the serious charges preferred
and the
prejudice flowing from them, but rather on the delay and the
prejudice caused by the delay. It did not find any trial
prejudice. I have shown herein that applicants should not be
subjected to a further trial. Not only may the State try
to
rectify mistakes made, but as indicated during argument, the
applicants will have even more ammunition to further cross-examine
witnesses who have already testified, bearing in mind what others
have testified about later. There can be no fairness in
allowing the State a second proverbial bite at the cherry. Mr
MM Hodes submitted that the State’s case
”
is
rotten”
and
although I am not prepared to accept that without reservation as I
did not read the transcripts of the evidence and/or considered
any
evidential material, save those forming part of the application
before me, I am satisfied that the camel’s back has been
broken.
[58]
There are no suitable less drastic measures available to the
applicants and those mentioned by Kriegler J in
Sanderson
are unrealistic
in
casu
with
the greatest respect. The applicants have suffered tremendous
hardship. Some of them had to sell their properties
to
survive. Others have lost business deals and/or partners.
Many of them are in a serious financial predicament and
they may not
be able to afford their lawyers anymore.
[59]
Ponnan
JA said the following in
Legal
Aid Board v S and Others
2010 (12) BCLR 1295
(SCA) at 1295C pertaining to the right to legal
representation:
“
There are two component parts
to that basic right: First, the right to choose counsel and to be
represented by that person; and,
second, the right to have a legal
representative assigned by the State and at State expense if
substantial injustice would otherwise
result.”
Ponnan
JA relied on a quotation of Harms JA in
S
v Halgreen
to the effect that the right to choose a legal representative is a
fundamental one, but it is not an absolute right and it is subject
to
reasonable limitations. This view of Harms JA was endorsed by
the Constitutional Court in
Fraser
v Absa Bank
[2006] ZACC 24
;
2007 (3) SA 484
(CC) at paragraph
[68]
where the court found that the
right embodied in section 35(3)(f) of the Constitution does not mean
that an accused is entitled
to the legal services of any counsel he
or she chooses regardless of his or her financial situation.
Financial constraints
necessarily play a role and competing needs and
demands have to be balanced.
[60]
The applicants elected to make use of the services of senior
counsel and senior junior counsel thus far. Some
say they will
not be able to finance another hearing. There is a good
possibility that
they
will not qualify for legal aid, but even should they obtain such aid,
the State will have to pay for legal costs to fight an
unnecessary
and losing battle.
[61]
It is unfair, as argued by the State, to expect the accused, after
having been acquitted, to eventually institute civil
action based on
malicious prosecution or any other ground in order to claim damages.
The State surely denies any maliciousness
and will vigorously oppose
any action to be instituted and will probably take any adverse order
on appeal, even to the Constitutional
Court. Another five years
would have lapsed by then. Some of the applicants are almost
seventy years old. They
might have been completely mulcted with
legal costs in order to defend themselves in the criminal case in the
High Court over a
period that could be as prolonged as four to six
years, whilst the matter should have been finalised within a year or
two.
It is extremely difficult for any successful accused to
prove maliciousness as Mr Fred van der Vyver, who was unsuccessfully
prosecuted
for killing his girlfriend, found out when he instituted
civil action after being acquitted once the SAPS’ shenanigans
were
pointed out by the criminal court. See: Die Minister van
Polisie (861/2011)
[2013] ZASCA 39
(28 March 2013).
[62] I am of the
view that it is sometimes necessary for a court to protect the
integrity of its own processes and to take
the required steps to
avoid injustices such as unjustified delays caused by systemic
failures and conduct of legal representatives
and even presiding
officers. The failure of a judge to consider an application for
leave to appeal and the SCA’s response
thereto comes to mind.
I refer to
Pharmaceutical Society of South Africa and others v
Tshabalala-Msimang and another NNO; New Clicks South Africa (Pty) Ltd
v Minister
of Health and another
2005 (3) SA 238
(SCA) at
paragraph [31].
XIII
CONCLUSION
[63]
Although the application papers bear the case number KS 21/2015, some
of the earlier records refer to case number KS 21/2014.
Hopefully the order makes it clear what relief is granted.
[64]
I indicated herein that a balance must be struck in considering the
three factors set out in
Sanderson
.
I considered the societal demand that an accused should stand his
trial, particularly in the event of serious crimes such
as
in
casu,
but
I weighed that with the prejudice already suffered and to be
suffered, both trial-related and not trial-related, if a
de
novo
trial is allowed to proceed, together with the apparent serious flaws
in the State’s case. I also considered the State’s
in
limine
submission that the application is premature in that there is no
pending case as the
de
novo
trial
has not started yet. This is a red herring. The
indictment still stands and the State has made it clear that it
wants
to start
de
novo.
All
applicants are still on bail and no charges have been withdrawn.
There was no reason for the applicants to wait any longer.
The
second point raised
in
limine
has been dealt with. I did not consider the merits of the
“previous” trial, save insofar as the parties expressly
dealt with particular aspects thereof in this application.
[65] Consequently, I have
come to the conclusion, may I say with some reluctance, that the
applicants should not be subjected to
further prosecution.
XIV
ORDER
[66] The prosecution
against all thirteen applicants instituted by the Director of Public
Prosecutions, Northern Cape under case
number KS 21/2015 as set out
in the latest indictment dated 5 August 2016 containing 139 counts,
encompassing all relevant dockets
pertaining to the case, is
permanently stayed.
____________
J
P DAFFUE, J
On
behalf of applicant 1: Adv E Sithole
Instructed
by: Saleem Ebrahim Attorneys
On
behalf of applicants 4 and 6: Adv LM Hodes SC
Instructed
by: Saleem Ebrahim Attorneys
On
behalf of applicants 2 and 5: Mr S Ebrahim
On
behalf of applicants 3 and 8: Adv MM Hodes SC
Instructed
by: Saleem Ebrahim Attorneys
On
behalf of applicants 7,9,11 and 12: Adv CF van Heerden
Instructed
by: Towell & Groenewald Attorneys
On
behalf of applicants 10 and 13: Adv JJ Schreuder
Instructed
by: Legal Aid SA
On
behalf of the respondent: Adv JW Roothman, Adv M Makhaga and Adv T
Barnard
Instructed
by:
Director
of Public Prosecutions
KIMBERLEY