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[2018] ZANCHC 92
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Director of Public Prosecutions: Northern Cape v Brooks and Others (KS 21/2015) [2018] ZANCHC 92 (7 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE HIGH COURT, KIMBERLEY
Reportable:
No
Of Interest to
other Judges: No
Circulate to
Magistrates: No
Case
number: KS 21/2015
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
NORTHERN
CAPE
Applicant
and
ASHLEY
MARK BROOKS
First
Respondent
PATRICK
JOHN MASON
Second
Respondent
MANOJKUMAR
DAYABHAI DETROJA
Third
Respondent
KOMALIN
PACKIRISAMY
Fourth
Respondent
AHMED
ISHABHAI KHORANI
Fifth
Respondent
ANTONELLA
NATASCIA FLORIO-POONE
Sixth
Respondent
KENYADITSWE
MCDONALD VISSER
Seventh
Respondent
WILLAM
JAN WEENINK
Eighth
Respondent
JOSEPH
SAREL VAN GRAAF
Ninth
Respondent
CARL
STEVE VAN GRAAF
Tenth
Respondent
KEVIN
TREVOR URRY
Eleventh
Respondent
TREVOR
PIKWANE
Twelfth
Respondent
FRANK
SAMUEL PERRIDGE
Thirteenth
Respondent
HEARD
ON:
07 DECEMBER 2018
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
07 DECEMBER 2018
I
INTRODUCTION
[1]
This is an application by the Director of Public Prosecutions,
Northern Cape for leave to appeal to the Supreme Court of Appeal,
alternatively the Full Bench of this Division against my judgment and
order of 10 September 2018 in terms whereof a permanent stay
of
prosecution was ordered. If I am inclined to grant leave, it
cannot be to the Full Bench. For reasons unknown to
me the
application for permanent stay was allocated to me, a judge from the
Free State Division, as the matter could not be allocated
to anyone
of my colleagues of this Division.
[2]
The proceedings since my aforesaid order is a comedy of errors.
On 1 October 2018 the applicant filed a notice of application
for
leave to appeal, relying on several questions of law. Notice in
terms of Rule 30 of the Uniform Rules of Court and several
objections
by the respective respondents followed. This caused applicant
to file a notice of application for reservation
of questions of law
and leave to appeal in terms of section 319 of the Criminal Procedure
Act, 51 of 1977 (“the CPA”)
and thereby apparently
abandoning the first application. This document, filed on 19
October 2018, was accompanied by an application
for condonation for
the late filing of the notice of appeal. Again objections by
the respondents followed. As a consequence
of the objections,
applicant filed a notice of withdrawal of its application in terms of
section 319 of the CPA as well as a notice
intending to amend its
initial notice of application for leave to appeal dated 1 October
2018. In essence, this notice of
amendment reads the same as
the first application for leave to appeal although applicant has
refrained from specifically relying
on questions of law. Again, as
could be expected, objections were filed by respondents. The
following is evident: the
first application for leave to appeal
was effectively withdrawn when the second application was filed.
When applicant withdrew
the second application, there was no
application for leave to appeal before the court, and that being the
case, it was not possible
to seek the amendment of a notice which did
not exist.
II
THE
PARTIES
[3]
The parties before me are as in the permanent stay of prosecution,
save insofar as the former applicants/accused are now the
respondents
and the DPP who was cited as respondent is now the applicant.
III
THE
RELIEF SOUGHT
[4]
I have already referred to the relief sought in the introductory
paragraph and do not intend to add thereto, save to mention
the
following. When I pointed out the defectiveness of the
processes followed by the DPP, Mr Roothman informed me that private
counsel was instructed to assist in arguing the matter as the State
advocates were not
au
fait
with civil procedure. He mentioned that he might need to apply
for a postponement as private counsel was not available today.
He was however made aware of the test in Plascon Evans and indicated
that he was prepared to argue the merits of the application.
IV
POINTS
IN
LIMINE
[5]
I mentioned above that a Rule 30 notice was filed and objections were
raised by the various respondents. I directed at
the onset of
the hearing this morning that all aspects pertaining to the
application should be dealt with and argued simultaneously
to enable
me to give one judgment on all aspects. When I ruled that I
would also deal with the merits of the application,
stating that it
would be unfair and/or not practicable to strike the matter from the
roll based on a technicality, Mr Roothman
indicated that he would
then be able to proceed with argument. I may just say that the
respondents’ legal representatives
appeared quite astonished
when they heard that the DPP might ask for a postponement. This
was never raised until this morning
as stated by Mr Ebrahim.
V
THE
STATUTORY PROVISONS PERTAINING TO LEAVE TO APPEAL
[6]This
application could not be brought in terms of any provisions of the
CPA as this Act does not provide for such process. This
does not mean
that the DPP has no right to apply for leave to appeal as Mr MM Hodes
submitted. Some of the other legal representatives
were
initially adamant that the matter falls to be adjudicated in terms of
section 319 of the CPA, although Mr Schreuder correctly
conceded that
this cannot be so. Mr Van Rensburg insisted with reference to
the various judgments of the SCA and the latest
judgment of the
Constitutional Court in
S
v Basson
2007 (1) SACR 566
(CC) at paragraphs 148 – 152 that section 319
applies in deed. I do not agree. That section deals with
questions
of law arising during a criminal trial.
In
casu
no criminal trial is involved. Mr L Hodes tried to show, based on the
Phillips
judgment quoted
infra
that the present proceedings are catered for in the CPA, but he based
his argument on the initial unsuccessful appeal of the DPP
in terms
of section 310 of the CPA in that matter. The SCA held that the now
repealed Supreme Court Act, 59 of 1959 applied to
the proceedings. I
have no doubt that the provisions of sections 16 and 17 of the
Superior Court Act, 10 of 2013, read with the
definition of
“
appeal”
in section 1, are
applicable. In
The
Mont Chevaux Trust v Tina Goosen
(LCC Case Number LCC 14R/2014 dated 3 November 2014), cited with
approval by the Full Court in
The
Acting National Director of Public Prosecutions v Democratic
Alliance, (
GP
Case Number 19577/09 dated 24 June 2016) at paragraph 25 and
Notshokovu
v S
(SCA Case Number 157/15 dated 7 September 2016) it was held that the
wording of subsection 17(1)(a)(i) raised the bar insofar as
an
applicant for leave to appeal faces a higher and more stringent
threshold compared to the provisions of the repealed Supreme
Court
Act, 59 of 1959 insofar as reasonable prospect of success is
concerned.
VI
MATERIAL
BACKGROUND
[7]
This being an application for leave to appeal, I do not intend to
deal in any detail with the submissions made by the parties
and/or
the background leading to the permanent stay of prosecution. I
refer to my judgment of 10 September 2018 and confirm
that I shall
during the course of this judgment merely refer to certain paragraphs
in that judgment when considering the grounds
of appeal.
VII
THE
DPP’S APPLICATION
[8]
The application is totally defective to say the least. In
essence, there is no application before the court as the notice
of
amendment was filed in order to amend an application which was for
all intents and purposes withdrawn and could not revive.
This
being the case, the proper procedure would be to strike the matter
from the roll to enable applicant to start afresh if it
so wishes.
This is what Mr MM Hodes called for. This would mean that I
might be approached sometime in the future with
yet another
application for leave to appeal on dates to be arranged with all the
parties and at unnecessary expense to them.
Such an order
cannot be in the interest of justice. The remainder of the
respondents’ legal representatives agreed
with the practical
approach adopted by me. Therefore I shall deal with the merits
of the application, notwithstanding its
inherent, if not fatal,
deficiencies.
VIII
THE
GROUNDS OF APPEAL
[9]
I shall now briefly deal with the grounds of appeal
seriatim
in
the next paragraphs.
[10]I
reiterate that the State advocates were under an ethical duty to
inform their colleagues representing the former accused immediately
of the alleged threats and attempts to bribe the trial judge and a
crucial State witness. I refer to paragraph 19 of my judgment.
If the State advocates played open cards from the very beginning, the
respondents’ legal representatives could have confronted
their
clients to establish whether they were involved in any alleged
threats and/or bribery. The parties could at that stage
–
in 2016 - already decide how the further proceedings should be
undertaken. Most importantly, the State advocates would
have been
within their rights to apply for the withdrawal of bail if they were
in possession of relevant facts. Whatever the situation,
the case
would have been taken a totally different course. Instead of
disclosing the information in August 2016, the trial was
allowed to
proceed with a number of witnesses testifying over a period of two
years and only then were the respondents’ legal
representatives
informed. It is incomprehensible why the State advocates deemed
it necessary to disclose in 2018 that there
was complaint by the
trial judge, but that a
nolle
prosequi
certificate was issued. Mr Roothman also failed to explain
meaningfully why it was deemed fit to disclose the four statements of
Mr Jephtha in 2018 and not two years earlier. If it was not
relevant in 2016, it could not be relevant in 2018. It
is a
most basic ethical principle that such alleged conduct be brought in
the open by either placing it on record or discussing
it in chambers
in the presence of all the parties. The DPP’s reliance on the
National Prosecuting Authority Act, 32 of 1998
, section 179(2) of the
Constitution and the Prosecution Policy Directives are rejected as
irrelevant
in
casu,
bearing in mind the facts of this matter.
[11]
It is not correct to submit now that none of the respondents denied
the allegations of bribery, but that their alleged unlawful
conduct
led to the recusal of the trial judge. This is precisely the
point. If the issue was dealt with openly by the
DPP and its
State advocates in 2016, matters would have turned out totally
different. If the trial judge recused herself
then, there would
not be a waste of two years’ trial time. The delay of two years
from August 2016 to August 2018 and the
further delay after the
recusal of the trial judge must be attributed to the inaction of the
State advocates and nobody else. They
caused unreasonable delay to
such an extent that the respondents were entitled to the
extraordinary relief of a permanently stay
of prosecution. The 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)), was duly considered when I
considered the delay herein.
[12]
It is submitted that I erred in having regard to the
merits of the State’s case in the criminal trial, that
I made
credibility findings and evaluated the merits and demerits of the
State’s case without having regard to the merits
in its
totality. The respondents (as applicants) brought the
application for permanent stay and specifically dealt with some
aspects appearing from the record which I considered. It needs
to be emphasized that the DPP as respondent in that application
was
obliged to deal with all factual allegations made by the present
respondents, but instead, it refrained from doing so on the
basis of
irrelevance. In my view the failure to properly respond to
allegations directly related to evidence of State witnesses
and even
concessions made by some of them, necessitated a finding that these
allegations were undisputed. I wish to refer
to the following
dictum
by Heher JA in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
,
quoting from para [13]:
“
[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course be instances
where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore
be
expected of him. But even that
may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing party must necessarily possess knowledge
of
them and be able to provide an answer (or countervailing evidence) if
they be not true or accurate but, instead of doing so,
rests his case
on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is satisfied.
I say ‘generally’ because factual averments seldom stand
apart from a broader matrix of circumstances all of which
needs to be
borne in mind when arriving at a decision. A litigant may not
necessarily recognise or understand the nuances of a
bare or general
denial as against a real attempt to grapple with all relevant factual
allegations made by the other party.
But
when he signs the answering affidavit, he commits himself to its
contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a serious
duty imposed upon a legal adviser who settles an answering
affidavit
to ascertain and engage with facts which his client disputes and to
reflect such disputes fully and accurately in the
answering
affidavit.
If that does not happen it should come as no surprise that the court
takes a robust view of the matter.” (emphasis
added.)
I
refer
inter
alia
to my findings pertaining to Mr Jephta, W/O Potgieter, Adv Botha and
Col Botha contained in paragraphs 50 to 55 of my judgment.
The
DPP cannot now argue that delays were caused by the respondents
insofar as they failed to make admissions and/or unnecessary
continued with prolonged and irrelevant cross-examination whilst no
evidence was placed before me in the application.
[13]
It is also submitted that I erred in relying on inadmissible hearsay
regarding the willingness of Mr Jephta to testify.
I again
refer to paragraph 55 of my judgment wherein I clearly indicated that
the newspaper report might be inadmissible hearsay,
but that credence
can be placed on the essence of the report based on the evidence of
Adv Botha and Col Botha together with the
police statements of Mr
Jephta. These statements under oath are devastating for the
State’s case. I refer to
paragraph 52 of the judgment.
[14]
I specifically considered the application for permanent stay of
prosecution by approaching the matter as in opposed motion
proceedings. I again refer to
Wightman
supra
and the well-known
Plascon
Evans
principle. The DPP did not meaningfully respond to crucial
allegations and did not deny any of the allegations in respect
of
hardship suffered and to be suffered by the respondents if a
de
novo
trial would be ordered.
[15]
The submission that I erred in taking into account certain future
scenarios based on speculation and not on fact, is baseless.
The history of this matter has shown the delays that have occurred.
It took the State two years from the arrest of the accused
to get the
trial started and another two years of evidence whilst it refrained
from calling their star witness and agent Mr Jephta.
The
probabilities are overwhelmingly in favour of a long and drawn-out
case if the State is allowed to proceed. All witnesses
will
obviously have to be recalled and cross-examination will even take
longer on what witnesses previously testified. Witnesses
will
be cross-examined on what later witnesses testified about as that
evidence is now on record. Trial-prejudice will be
caused to
respondents as the DPP will obviously try to cover loop-holes in its
case. The DPP relied on
Bothma
v Els
2010 (1) SACR 184
(CC) in submitting that I followed a wrong
approach. The same arguments were put to me during the main
application. That
case dealt with alleged sexual abuse of a child and
the delay in prosecuting the accused was addressed in the context of
the facts
of that matter. The case was distinguished in paragraph 52
of the
Phillips
judgment referred to in the next paragraph.
[16]
It is submitted that I erred in finding that the judgment in
DPP
and another v Phillips
[2012] 4 All SA 513
(SCA), was on all fours with this case. I
specifically stated in paragraph 34 that the
Phillips
-case
was on all fours with the present matter, but recognised that I did
not deal with an appeal as in
Phillips
;
however the consequences would be the same. The dismissal of
the application for permanent stay would have the same result
which
Navsa JA believed should be prevented in
Phillips
,
i.e
.
a
de
novo
trial in circumstances where the first trial already took an
extraordinary amount of time.
[17
It is also submitted that I did not have a balanced approach when
considering the relevant factors. I do not agree. It is unnecessary
to say anything further on this submission, save to refer to my
judgment.
[18]
It is submitted that I erred in the interpretation of section 3 of
The Finance and Financial Adjustments Acts Consolidation
Act, 11 of
1977. The wording of the section is clear and unambiguous. = Mr
Roothman failed to read the proviso contained in
subsection 3(1) when
he addressed the court in the previous application. I quoted the
section in paragraph 39 of my judgment. I
also made the point that
this issue will not be considered in isolation in coming to a
conclusion. The DPP’s reliance on
S
v Dos Santos
2010(2) SACR 382 (SCA) is incorrect. I refer to paragraphs 15 and 16
of the SCA judgment where the court referred to the wording
of a
draft confiscation order. Nowhere the SCA found that the Commissioner
of SAPS was authorised in terms of section 3(1) to pay
a reward of
one third of the value of the diamonds as set out in the draft
confiscation order. The reference to this draft confiscation
order
only became relevant as counsel for the first appellant requested a
special entry to be made in terms of section 317 of the
CPA.
[19]
The tenth ground of appeal is a repetition insofar as it deals with
the prejudice to be suffered by the respondents in respect
of a
de
novo
trial. The respondents will clearly suffer irreparable
prejudice as they will have to fork out hundreds of thousands of
Rands for legal representation whilst they have already been mulcted
with costs, an aspect not denied in the application for permanent
stay. They have been subjected to criminal proceedings over a
number of years and could expect to be so subjected for a further
few
years if the application was dismissed.
[20]
Nothing more needs to be said about the fact that I erred to find
extraordinary circumstances. I refer to what I stated above
and in my
judgment.
[21]
It is also submitted that I erred in finding that there were no other
less drastic measures available than a permanent stay
of
prosecution. Based on my observation that Mr Jephta would be
taken apart in cross-examination, the DPP argued that if
that is so,
the
de
novo
case would be finalised swiftly. Fact of the matter is that the
court cannot prescribe to the DPP, as Mr Roothman reminded
me when he
argued during the main application, the order in which to call
witnesses. It may again hold the testimony of Mr
Jeptha back as
it has done thus far. The submission that the court could have
directed the DPP to start the
de
novo
prosecution within a certain period is neither here nor there.
History has shown that this case has been dragging on for
years
without the trial-within-a-trial not even being finalised yet.
The DPP did not suggest any reasonable alternative other
than
permanent stay in order to ensure that the proceedings get finalised
soon. Today Mr Roothman submitted that the court
could
mero
motu
direct how the State should conduct a
de
novo
trial. His submission is not understood.
[22]
It is also submitted that I ascribed an improper motive to the DPP in
deciding to make use of POCA. Although I made remarks
in this regard
in paragraphs 10 and 51 of my judgment, I clearly did not consider
this issue as of vital importance in the consideration
of the
application.
[23]
I referred to the fact that certain persons had access to
unregistered, unmonitored and unrecorded cell phones during the
entrapment process. I referred to this as a worrisome issue,
but as is the case with my reference to POCA, this did not play
a
deciding role in my conclusion.I refer to paragraph 51 of the
judgment
IX
CONCLUSIONS
[24]
In conclusion I was and still am of the view that the actions of the
DPP and State advocates deserve to be censored. They knew
for two
years that there were attempts to threaten and/or bribe the trial
judge and to bribe their star witness and trap, but kept
that a
secret. Two years later they out of the blue spilled the beans. Mr
Roothman could not explain why this was deemed necessary
to do in
2018 only and not in 2016. It was a feeble and unacceptable excuse to
rely on
“
the
interests of justice and transparency”
at
that stage of the proceedings. I therefor concur in the remarks of
Navsa JA in
Van
Heerden v NDPP
2017 (2) SACR 696
(SCA) referred to in paragraph 35 of my judgment.
[25]
Mr Roothman submitted today for the first time that Mr Jephtha’s
visit to Bloemfontein to meet the person that offered
him money was
indeed by arrangement with the Investigating Officer, W/O Potgieter,
as he wanted to arrange a trap. This is
an incredible
revelation. Not a word was said in this regard in the main
application and as mentioned earlier, the State failed
to respond to
the allegations in the founding affidavits.
[26]
Mr MM Hodes requested punitive costs, but the other legal
representatives refrained from doing the same. They are content with
a normal costs order. As mentioned, there is even confusion amongst
respondents’ legal representatives as to the proper procedure
that should have been followed, if at all possible. Clearly the DPP
had the right to apply for leave to appeal. The application
cannot be
labelled frivolous or vexatious and therefore, a punitive costs order
should not be made.
[27]
The DPP failed to show that the appeal would have a reasonable
prospect of success or that there is some compelling reason
why the
appeal should be heard.
X
ORDER
[28]
The application for leave to appeal is dismissed with costs.
J
P DAFFUE, J
On
behalf of the Applicant: Adv JW Roothman, Adv M Makhaga and Adv T
Barnard
Instructed by:
Director of Public
Prosecutions
KIMBERLEY
On
behalf of respondent 1: Adv E Sithole
Instructed
by: Saleem Ebrahim Attorneys
On
behalf of respondents 4 and 6: Adv LM Hodes SC
Instructed by: Saleem
Ebrahim Attorneys
On
behalf of respondents 2 and 5: Mr S Ebrahim
On
behalf of respondents 3 and 8: Adv MM Hodes SC
Instructed by: Saleem
Ebrahim Attorneys
On
behalf of respondents 7,9,11 and 12: Adv CF van Heerden
Instructed by: Towell &
Groenewald Attorneys
On
behalf of respondents 10 and 13: Adv JJ Schreuder
Instructed by: Legal Aid
SA