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[2008] ZASCA 137
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National Director of Public Prosecutions v Moodley and Others (263/08) [2008] ZASCA 137; 2009 (2) SA 588 (SCA) ; 2009 (1) SACR 461 (SCA) ; [2009] 1 All SA 561 (SCA) (26 November 2008)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 263/08
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS Appellant
and
SAROJINI
MOODLEY First Respondent
SHUNMUGAM
JAMES MOODLEY Second Respondent
SHAWN
BEHARIE Third Respondent
Neutral
citation:
National Director of Public
Prosecutions v Moodley
(263/08)
[2008]
ZASCA 137
(26 November 2008)
______________________________________________________________
Coram : SCOTT, MAYA, COMBRINCK,
CACHALIA JJA
et
MHLANTLA AJA
Date
of hearing : 10 NOVEMBER 2008
Date
of delivery : 26 NOVEMBER 2008
Summary: Written authorisation of NDP in terms of s
2(4) of POCA given prior to accused pleading to charge of
racketeering –
whatever meaning given to 'charged' in s 2(4),
prosecution lawful at least from date of authorisation.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
the High
Court, Pietermaritzburg (NICHOLSON J and NTSHANGASE J concurring,
sitting in review of a decision of the Regional Court:
The following order is made:
(1) The appeal is upheld with costs, including the costs
of two counsel.
(2) The order of the court a quo is set aside and the
following substituted in its place.
'The application is dismissed with costs.'
JUDGMENT
SCOTT JA
(MAYA, COMBRINCK,
CACHALIA JJA and MHLANTLA AJA
concurring):
[1] This is an appeal from the judgment of Nicholson J,
with whom Ntshangase J concurred, sitting in the High Court,
Pietermaritzburg.
It concerns the interpretation and application of s
2(4) of the Prevention of Organised Crime Act 121 of 1998 ('POCA').
Before
considering the contentions advanced by counsel in this court
it is necessary to set out as briefly as the circumstances permit
the
events which culminated in the appeal.
[2] The three respondents are respectively accused
numbers one, two and four in a pending criminal trial in the
Pietermaritzburg
Regional Court. On 8 July 2003 the second and third
respondents were arrested together with two others (accused number
three and
five) on drug related charges, ie dealing in and the
possession of mandrax (methaqualone) tablets. On 10 September 2003
the matter
was postponed to 2 December 2003 at the request of the
prosecutor to enable the State to investigate the possibility of
preferring
racketeering charges against the accused. On the latter
date the matter was postponed for trial in the regional court
commencing
on 31 May 2004.
[3] On 10 December 2003 the respondents' attorney, Mr
Kogulan Chetty, was handed a charge sheet containing 14 counts of
which three
related to racketeering. According to the prosecutor, Mr
Hansraj Cheetanlal, the charge sheet was given to Chetty in an
envelope
marked 'Draft Charge Sheet' and was not lodged with the
clerk of the court. This allegation was not denied by Chetty in his
replying
affidavit and must be accepted. The first respondent was
cited as accused number one although she was in fact arrested only
subsequently
on 15 December 2003.
[4] The charge sheet runs to 21 pages. It sets out in
detail the State's case against the accused. In short, it alleges
that the
first and second respondents, who are married to each other,
have for many years engaged in a drug dealing business on a large
scale involving the purchase in bulk, storage and selling of drugs,
mainly mandrax tablets. It is alleged further that as the enterprise
increased in size, the other accused (including the third respondent)
were employed to assist in the sale and distribution of drugs.
Count
one is the contravention of s 2(1)(e) of POCA and relates to all
three respondents and one other. The offence, in short,
is the
conducting of, or participation in, the affairs of [a drug dealing]
enterprise through a 'pattern of racketeering activity'.
1
Count 2 is the contravention of s 2(1)(f) of POCA, namely
the management of a [drug dealing] enterprise through a 'pattern
of
racketeering'. This count relates only to the first and second
respondents. Count three is the contravention of s 2(1)(g). It
relates only to accused number five who is not a party to these
proceedings. The remaining counts relate to one or more of the
accused. They include counts of possession and dealing in
methaqualone in contravention of various provisions of the
Drugs and
Drug Trafficking Act 140 of 1992
, assault with intent to do grievous
bodily harm, theft and intimidation in contravention of the
Intimidation Act 72 of 1982
.
[5] On 11 May 2004 the respondents' attorney wrote to
the prosecutor requesting a copy of the appellant's written
authorisation
in terms of
s 2(4)
of appellant's POCA. The subsection
reads:
'A person shall only be charged with committing an
offence contemplated in subsection (1) if a prosecution is authorised
in writing
by the National Director.'
(The first three counts all relate to offences
contemplated in subsection 1.) On 17 May 2004, the prosecutor
replied, enclosing
the appellant's authorisation which is dated 24
March 2004. This document is headed 'Authorisation in terms of
section 2(4)
of the Prevention of Organised Crime Act, no 121 of
1998'. Beneath the heading appear the words: 'The State versus'
followed by
the names of the five accused. Thereafter, the document
proceeds:
'I, BULELANI THANDABANTU NGCUKA, the National Director
of Public Prosecutions of South Africa, do hereby, in terms of
section 2(4),
read with
section 1
and
2
of the
Prevention of
Organised Crime Act, No 121 of 1998
, authorize the institution of
prosecution in respect of a contravention of
section 2(1)(e)
,
2
(1)(f)
and
2
(g) of the
Prevention of Organised Crime Act, No 121 of 1998
,
against the above accused.'
The signature of Mr Ngcuka appears at the foot of the
page under the words 'Given under my hand at Pretoria this 24
th
day of March 2004'. The signature is followed by Ngcuka's full names
and title, 'National Director of Public Prosecutions'. On
28 March
2004, ie after the written authorisation had been given, a second
charge sheet (albeit identical to the first) was handed
to the
respondents' attorney.
[6] The trial did not commence on 31 May 2004, although
the prosecutor was ready to proceed. Instead, the regional magistrate
heard
and rejected an application brought by the accused for an
inquiry to be held into an alleged unreasonable delay in the
proceedings
in terms of
s 342A
of the
Criminal Procedure Act 51 of
1977
. On 1 June 2004 the accused applied for the 'recusal' of the
prosecutor. This application dragged on for a total of 27 court days.
Ultimately on 1 December 2006 the application was 'suspended' when
another prosecutor was assigned to the case so as to avoid further
delay.
[7] In the meantime on 19 August 2005, and while the
'recusal' application was still pending, the respondents launched an
application
in the High Court, Pietermaritzburg, in which they sought
an order (a) declaring counts 1, 2 and 3 to be unlawful and (b),
setting
those counts aside. The relief sought was founded on the
contention that the respondents had been 'charged' with racketeering
on
10 December 2003, ie prior to the written authorisation by the
appellant which was signed on 24 March 2004. The matter was enrolled
for hearing on 3 November 2005 and again on 25 November 2005. On the
latter occasion the application was postponed sine die, apparently
because the judge had indicated in chambers that the relief sought
should be pursued in the regional court.
[8] On 28 November 2005 the respondents launched an
application in the regional court in which the same relief was
sought, founded
on the same grounds. In its judgment, delivered on 3
April 2006, the regional court declined to consider the merits of the
application
but dismissed it on the grounds of lack of jurisdiction
and that it amounted to an abuse of the process of the court. By this
time
the application in the High Court had been withdrawn.
[9] The next step was the application by the respondents
in the High Court for an order reviewing and setting aside the
regional
magistrate's decision and the substitution of an order
declaring unlawful, and setting aside, counts 1, 2 and 3 of the
charge sheet.
This application was launched on 21 September 2006.
Various grounds of review were advanced but the central issue raised
and the
one that was argued in the court a quo was that the three
counts were unlawful because the respondents had been 'charged'
before
the appellant had given his written authority as required by
s
2(4)
of POCA. The matter came before the High Court which upheld the
application and set aside the three racketeering counts. It did
so,
however, not on the grounds relied upon by the respondents but on a
ground raised
mero motu
and in respect of which, we were told in this court, no argument was
presented. The ground relied upon was that the authorisation
by the
appellant was inadequate because it 'was too broad and lacked the
necessary specificity required'. In support of this conclusion,
Nicholson J, who delivered the judgment of the court, observed that
there 'was a total failure to mention any dates, or places
at which
the offences were committed' and that 'it would lead to abuse for
such an authorisation to be permissible'. In the result
the court a
quo made the following order with regard to the merits of the
application:
'(a) The authorization issued by the National Director
of Public Prosecutions dated 24 March 2004, purporting to authorize
charges
against the three applicants [now the respondents] in terms
of
section 2(4)
of the
Prevention of Organised Crime Act 121 of 1998
is declared to be invalid and of no force and effect.
(b) Counts 1, 2 and 3 of the charges brought against the
two applicants [now the respondents] before the Regional Court,
Pietermaritzburg
under Case No 430/04 are declared to have been
invalidly instituted and are set aside.'
When the appellant applied for leave to appeal the
respondents abandoned the judgment in so far as paragraph (a) of the
order was
concerned. Although para (b) of the order flowed directly
from the order in para (a), the respondents nonetheless sought to
uphold
the order granted in terms of para (b) but on the basis that
they had been 'charged' on the counts of racketeering prior to the
written authorisation required in terms of
s 2(4)
of POCA.
2
This issue was not dealt with by the court a quo in its judgment.
[10] In view of the abandonment, it is unnecessary to
say anything more about the validity of the authorisation save to
comment
that in my view the respondents were correct in the
circumstances to abandon para (a) of the order, which is clearly not
to be
regarded as a precedent.
[11] As pointed out by Kriegler J in
Sanderson
v Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998 (1)
SACR 227
(CC) para 16 at 236e-g, 'the word "charge" is
ordinarily used in South African criminal procedure as a generic noun
to
signify the formulated allegation against an accused' but that
'used as a verb it bears no defined or precise meaning in the
[Criminal
Procedure Act] nor in criminal law procedure.' The learned
judge observed 'that "charged" can be interpreted very
narrowly,
so as to refer to formal arraignment or something
tantamount thereto, or broadly and imprecisely to signify no more
than some or
other intimation to the accused of the crime(s) alleged
to have been committed.' He cautioned that 'it is not useful to
attempt
a universally valid interpretation of a word so vague and
which therefore derives much of its content and meaning from the
particular
context in which it may be used'. In this court counsel
for the appellant contended for a narrow interpretation of 'charged'
in
s 2(4) of POCA to mean 'charged' in the sense of a charge or
indictment being put to an accused who is asked to plead. In the
alternative,
it was contended that 'charged' had to be construed as a
reference to the stage when the charge sheet is lodged with the clerk
of the court. The basis for this contention was
s 76(1)
of the
Criminal Procedure Act which
provides that the proceedings at a
summary trial in a lower court (unless the accused has been summoned
to appear) 'shall be commenced
by the lodging of the charge sheet
with the clerk of the court'. I should add that there is no evidence
that a charge sheet has
been lodged with the clerk of the court. It
is, however, common cause that the respondents have not yet been
asked to plead. The
respondents, on the other hand, contended for a
broad interpretation. They argue that for the purposes of
s 2(4)
a
person is 'charged' when advised by a competent authority that it has
been decided that he or she is to be prosecuted. In the
present case,
they say, this occurred on 10 December 2003 when the charge sheet was
handed to the respondents' attorney. In support
of this submission
reliance was placed on the meaning attributed to 'charged' in
Du
Preez v Attorney-General, Eastern Cape
1997
(2) SACR 375
(E) at 384e. But in that case, as in
Sanderson,
supra, the court was concerned with 'charged' in the context of s
25(3)(a) of the Interim Constitution (Act 200 of 1993) which
afforded every accused person the right 'to a public trial before an
ordinary court of law within a reasonable time after having
been
charged.' Quite clearly the considerations relevant to the meaning to
be attributed to 'charged' in the context of s 25(3)(a)
of the
Interim Constitution are very different from those relevant to
'charged' in s 2(4) of POCA and the meaning attributed to
'charged'
in the former context provides no assistance.
[12] Counsel on both sides sought to rely on various
indicators which they submitted supported the interpretation for
which they
contended. None, in my view, can be regarded as decisive.
It was argued on behalf of the respondents, for example, that a
charge
of racketeering would affect an accused's prospects of being
granted bail and that accordingly the legislature would have intended
the written authorisation contemplated in s 2(4) to be given before
an accused person could be prejudiced in this way. But, as
pointed
out by counsel for the appellant, the fact that racketeering charges
were being investigated and could be added to the
charge sheet would
similarly weigh with a court when deciding whether to grant bail or
not. It seems to me, however, unnecessary
for the purposes of the
present case to decide precisely where the word 'charged' in s 2(4),
to borrow from the language of Kriegler
J in
Sanderson
,
'falls along the continuum of possible meanings of the word'. In my
view, counsel for the appellant correctly submitted that once
the
prosecution is authorised in writing by the National Director there
can be no reason, provided the accused has not pleaded,
why the
further prosecution of the accused on racketeering charges would not
be lawful, even if the earlier proceedings were to
be regarded as
invalid for want of written authorisation. The respondents contended,
however, that in the latter event the further
prosecution would be
'tainted' and would remain invalid. But they were unable to advance
any proper basis to support this contention.
Indeed, until an accused
has pleaded the state would be at liberty to withdraw the charge and
recharge the accused once the authorisation
had been granted.
3
But such an exercise would serve no purpose and I can see no reason
why it should be necessary.
[13] It follows that whatever the position may have been
prior to 24 March 2004 – and it is unnecessary to express a
view
in this regard – once the written authorisation to
prosecute was granted, the prosecution, in my view, was lawful in
terms
of s 2(4) of POCA.
[14] The following order is made:
(1) The appeal is upheld with costs, including the costs
of two counsel.
(2) The order of the court a quo is set aside and the
following substituted in its place.
'The application is dismissed with costs.'
__________
D G SCOTT
JUDGE OF APPEAL
APPEARANCES :
FOR APPELLANT : M WALLIS SC
R KEIGHTLEY (MS)
D A DAMERELL
Instructed by : State Attorney, DURBAN
Correspondents : State Attorney, BLOEMFONTEIN
FOR RESPONDENT: C J HARTZENBERG SC
G P SCHELTEMA SC
Instructed by : Chetty, Asmall &Maharaj
PIETERMARITZBURG
Correspondents : Webbers BLOEMFONTEIN
1
'Pattern of racketeering activity' is defined in
s 1 of POCA to mean:
"the
planned, ongoing, continuous or repeated participation or
involvement in any offence referred to in Schedule 1 and includes
at
least two offences referred to in Schedule 1, of which one of the
offences occurred after the commencement of this Act and
the last
offence occurred within 10 years (excluding any period of
imprisonment) after the commission of such prior offence referred
to
in Schedule 1."
The
offences listed in Schedule 1 include
"any
offence referred to in
section 13
of the
Drugs and Drug Trafficking
Act 140 of 1992
." '
2
The
subsection is quoted in para 5 above.
3
See
s 6(a)
of the
Criminal Procedure Act.