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[2018] ZAKZPHC 77
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Savoi and Others v National Prosecuting Authority and Another (5867/2013) [2018] ZAKZPHC 77 (23 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO. 5867/2013
In
the matter between:
GASTON
SAVOI
FIRST APPLICANT
INTAKA
HOLDINGS (PTY) LTD
SECOND
APPLICANT
FERNANDO
PRADERI
THIRD APPLICANT
and
THE
NATIONAL PROSECUTING AUTHORITY
FIRST RESPONDENT
THE
SOUTH AFRICAN POLICE SERVICE
SECOND
RESPONDENT
JUDGMENT
Delivered
on: 23 February 2018
MNGUNI
J
[1]
This application is a sequel to the permanent stay application
launched on 27 May
2013 by the applicants against the State. The
applicants are amongst the accused in two prosecutions currently
pending in KwaZulu-Natal
and the Northern Cape. They are facing
various charges including, corruption, racketeering, money laundering
and fraud. The permanent
stay application relates to these charges
and is predicated on the alleged evidence of systemic and systematic
violations of the
applicants’ fundamental rights by the
respondents. The applicants assert that the abuses of prosecutorial
power by the respondents
are so egregious that it would not be
possible for the applicants to receive a fair trial. They contend
also that any prosecution
against them would bring the administration
of justice into disrepute.
[2]
The applicants have identified the alleged abuses in the permanent
stay application
to include:
(a)
repeated violations of the applicants’ legal professional
privilege which occurred through
the police seizing, keeping and
utilising in their reports documents which are subject to such
privilege and which go to the heart
of the applicants’ defence
in the criminal trial;
(b)
deliberate and concerted infringements of the applicants’
constitutional rights by detaining
the first and third applicants
unlawfully and in circumstances where detention was unnecessary,
seeking to punish the first applicant
by opposing his release on bail
in circumstances where palpably there were no grounds to do so,
restricting the first applicant’s
right to communicate with his
legal representatives, unreasonably seizing the applicants’
property and hampering the applicants’
business, disregarding
the presumption of innocence and ignoring and violating binding court
orders made in favour of the applicants;
(c)
adopting an impermissible “convict-at-all-costs” approach
in the State’s dealings
with the applicants; and
(d)
the unlawful, irrational and inexplicable refusal by Advocate Noko
(Noko), who is the Director
of Public Prosecutions in KwaZulu-Natal,
to withdraw the charges against the applicants, in circumstances
where charges have been
withdrawn against certain of the applicants’
co-accused who are alleged to be politically connected on the ground
that the
evidence against them was unconvincing, unsubstantiated and
insufficient to ground a conviction beyond a reasonable doubt.
[3]
The permanent stay application is opposed by the State and is pending
in this court.
The applicants have now brought this interlocutory
application in terms of Uniform rule 35(11) seeking an order
directing the respondents
to produce certain documents which they
contend go to the heart of what they are alleging in the permanent
stay application and
relate to the conduct of the prosecuting
authority in regard to the decision to withdraw charges against the
alleged politically
connected Nkonyeni and Mabuyakhulu. They contend
that the respondents would be seeking to rely on the same evidence
against the
applicants which the respondents have concluded would be
insufficient to sustain a successful prosecution against Nkonyeni and
Mabuyakhulu, but have refused to withdraw charges against the
applicants. The applicants contend that these documents are relevant
to assess the prosecutorial conduct and motive in conducting the
criminal case against them and that the documents will assist
them in
the exercise of their rights and in placing before the court hearing
the permanent stay application with all the information
relevant to
the determination of whether the alleged abuses justify the permanent
stay of prosecution. The applicants seek to have
the State’s
opposition in the permanent stay application struck out should the
respondents fail to provide the requested
documents and an order
directing the respondents to pay their costs on an attorney and
client scale including the costs of two
counsel. The documents
requested by the applicants are:
[1]
‘
3.1
Documentation leading to the decision to remove advocate Dunywa from
the case (including documents
indicating who took the decision, when
it was taken and what the reasons were for the decision);
3.2
Letters and correspondence (presumably to the accused) referred to by
advocate Noko in her
handwritten notes recording her decision to
withdraw the charges (“
withdrawal decision
”);
3.3
Correspondence exchanged between the prosecution team amongst
themselves or with the Head
Office in Pretoria in respect of each of
the meetings held (including but not limited to the meetings of 20
July 2012, 8 August
2012, 13 August 2012 and 20 August 2012) and
including all emails, agendas for meetings, hand-written notes,
memoranda and/or any
other documentation (electronic or otherwise)
that formed the basis of, or were taken into account in respect of
the withdrawal
decision;
3.4
Minutes of the meeting of 8 March 2012 at VGM disclosed in the
memorandum dated 25 April
2012, including correspondence, notes,
internal memoranda and/or any other documentation (electronic or
otherwise) that formed
the basis of, or were taken into account in
respect of the withdrawal decision; and
3.5
All documents which are obliged to be
disclosed under the order of Vahed J in case number 4962/2013,
namely: “
the record of the decision relating to the decision
to withdraw charges against [Peggy Yoliswa Nkonyeni] and [Michael
Mabuyakhulu]
”.’
[4]
I appreciate that I have been called upon to adjudicate only on the
rule 35(11) application.
This is, however, not a hermetically sealed
inquiry because of the manner in which litigation has been conducted
in the entire
matter so far. Hence, Willem Schalk Burger Van der
Colff (Van der Colff) the applicants attorney of record stated in
para 4 of
the founding affidavit that for the purposes of economy,
the permanent stay application papers will not be annexed to his
affidavits.
He stated that all allegations made in the permanent stay
application are expressly adopted and incorporated. He went further
and
said that this interlocutory application is to be viewed in light
of the permanent stay application in which the applicants allege
that
they have suffered an irreparable violation of their fair trial
rights because of the conduct of the respondents. It follows
therefore that I am obliged to range beyond the rule 35(11)
application to a consideration of some matters upon which this court
is yet to finally pronounce.
[5]
The chronology of the common cause events preceding this application,
as they emerge
from the affidavits, may be summarised as follows. On
15 July 2014 the applicants delivered a notice in terms of Uniform
rule 35(12)
to the respondents requesting the respondents to produce,
make available for inspection and permit copies to be made of the
documents
referred to or referenced in the respondents answering
affidavit in the permanent stay application. The respondents did not
respond
to this notice. On 12 August 2014 the applicants delivered a
notice of irregular step in terms of Uniform rule 30A to the State
(the first rule 30A notice). Despite the elapse of more than ten
days, no response was received to the first rule 30A notice. On
3
September 2014, the applicants launched an application to compel in
terms of rule 30A (the first compelling application).
[6]
The first compelling application was heard on 11 November 2014 before
Henriques J
and was, up to that date, unopposed. On the morning of
the hearing respondents’ counsel appeared at court and sought
an indulgence
to oppose the matter and to file an affidavit setting
out the grounds of their opposition. The learned judge granted the
respondents
indulgence and adjourned the matter to 8 December 2014.
The learned judge ordered the respondents to show cause why a
punitive
costs order ought not to be granted against them and
directed the respondents to file their answering affidavits on or
before 1
December 2014, indicating their grounds for refusing to
produce the documents requested and their explanation for failing to
comply
with the time limits. By 8 December 2014, which was the date
for the next court appearance, the respondents had failed to comply
with the court order. Again, the matter served before Henriques J on
that day. The learned judge, after observing that the respondents
“appear to have adopted a contemptuous attitude” towards
her order of 11 November 2014, made an order in the following
terms:
‘
1.
The failure of first and second respondents to comply with the
provisions of Rule 35
(12) of the Uniform Rules of court are
unlawful.
2.
The respondents, being the first and second respondents, are directed
within ten (10)
days of today’s date to comply with the
provisions of Rule 35 (12) and to produce the documents referred to
in the applicants’
Rule 35 (12) notice of 15 July 2014 that
they have not supplied.
3.
Directing that should the first and second respondents fail to comply
with the
orders issued in paragraph 2 above that the opposition to
the permanent stay application be struck out, and
4.
The first and second respondents are directed to pay the applicants’
costs
occasioned by the hearings on 11 November and today being 8
December 2014 on an attorney/client scale, such costs to
include
the costs of two counsel.’
[7]
Subsequent to the court order of 8 December 2014, the respondents
produced most of
the requested documents in the first compelling
application. According to the applicants, after perusal of the
produced documents
it appeared to them that there were further
documents in the possession of the respondents which they contended
were directly relevant
to the determination of the permanent stay
application and which would enable the applicants to advanced their
case and harm that
of the respondents. In consequent on 28 July 2015
Van der Colff addressed a letter to the Kgosi Gustav Lekabe (Lekabe)
of the respondents’
attorneys based in Johannesburg intimating
that the applicants intended filing a replying affidavit in the
permanent stay application
but might require further documentation
from the respondents. On the same day Lekabe responded and invited
Van der Colff to urgently
advise him of the further documents which
the applicants might require from the respondents.
[8]
By letter dated 6 August 2015 Van der Colff advised Lekabe of the
additional documents
which he alleged were discoverable in terms of
rule 35(11). In the same letter Van der Colff referred to an article
published on
28 July 2015 in the Daily Maverick newspaper in which
Noko had published a response to an earlier article and had referred
to a
memo she reportedly received from the prosecution team which
ostensibly caused her to withdraw the criminal charges against ten
of
the applicants’ erstwhile co-accused including Nkonyeni and
Mabuyakhulu. On 17 August 2015 Lekabe addressed a letter to
Van der
Colff enclosing a copy of the memorandum from the prosecution team
addressed to Noko dealing with withdrawal of the charges
against the
applicants’ erstwhile co-accused.
[9]
On 24 August 2015 Van der Colff addressed a further letter to Lekabe
requesting the
following documents and information which Van der
Colff contended was necessary for a proper understanding of the
memorandum of
the prosecution team:
‘
3.1
Minutes of the meeting which took place during March 2012 (“
the
First Meeting
”)
at the conclusion of which “
a
decision was taken that certain accused must be removed (charges must
be withdrawn)
”.
3.2
Which members of the KZN prosecuting team were present
and took
the decision
at the First Meeting?
3.3
Which senior officers from the National Office were present
and
took the decision
at the First Meeting?
3.4
Transcripts of the First Meeting/notes/memoranda/recordings,
including the written decision
and reasons.
3.5
In respect of which “
certain accused
” was the
decision taken that the charges must be withdrawn and the prosecuting
team tasked with redrafting an indictment?
3.6
Which members of the KZN prosecution team were involved in revisiting
the evidence against
each and every accused, and which members “
came
to a conclusion that there was insufficient evidence for a successful
prosecution
” of the listed accused?
3.7
In respect of the meeting on 13 August 2012 with Advocate Noko (“the
Second Meeting”),
we require transcripts of the minutes of the
Second Meeting and/or any notes/memoranda/recordings, including the
written decisions
and reasons.’
[10]
Lekabe did not respond to this request. This prompted Van der Colff
to address two further letters
to him dated 27 August 2015 and 28
September 2015 requesting a response to the letter of 24 August 2015.
By that time there was
a pending application (the DA application),
launched by the Democratic Alliance (the DA) against the Acting
Director of Public
Prosecutions in KZN (the ADPP-KZN) and three
others in which the DA was seeking an order to review and set aside
the decision of
the ADPP-KZN to refuse to grant the DA request for
access to information under the Promotion of Access to Information
Act
[2]
(PAIA) dated 30 August 2012. Nkonyeni and Mabuyakhulu respectively
were cited as the third and fourth respondents in the DA application.
The PAIA request was mainly directed at accessing the record of the
decision to withdraw the charges against the two. On 25 September
2015 Vahed J handed down judgment in the DA application and made the
following order:
‘
(1)
The First Respondent’s decision
to refuse to grant the Applicant’s request for access
to
information dated 30 August 2012 is set aside.
(2)
The First Respondent is to
furnish to the Applicant, within 15 days of this Order, the
record of
the decision relating to the decision to withdraw charges against the
Third and Fourth Respondents.
(3)
The Respondents, jointly and
severally, the one paying the others to be absolved, are to
pay the
Applicants’ costs such costs to include those consequent upon
the employment by the Applicant of two counsel.’
[11]
Subsequent to the order of Vahed J, Van der Colff dispatched a letter
to Lekabe requesting the
respondents to produce the documents which
the respondents had been ordered to release to the DA pursuant to
that order. By 8 October
2015 the respondents had not given the
applicants the requested documents despite Van der Colff having made
two requests. On 8
October 2015 Van der Colff addressed a further
letter to Lekabe reminding him of the respondents’
constitutional obligations
under sections 195 and 237 of the
Constitution
[3]
and threatened to bring an application to compel the production of
the requested documents if the respondents failed to produce
them by
16 October 2015.
[12]
The threat of bringing an application to compel seemed to have
worked. On 2 November 2015 Lekabe
addressed a letter to Van der Colff
and gave answers and information to the questions contained in Van
der Colff’s letter
dated 24 August 2015 which are enumerated in
para 9 above. With regard to paras 4 and 5 of this letter Lekabe
pertinently responded
as follows:
[4]
‘
The
removal of Advocate Dunywa from the case, just as any other
prosecutor in the employ of the National Prosecuting Authority falls
within the prerogative of the NPA and does not in any way prejudice
the accused in the conduct of their case’.
In
the same letter he enclosed an internal memo from Anthony Mosing
(Mosing) with the concurrence of Lawrence Mrwebi and handwritten
notes purportedly taken by Noko at various meetings with the KZN
prosecution team which led to the withdrawal of the charges against
Nkonyeni and Mabuyakhulu. Mosing is an Advocate in the Office of the
first respondent who is dealing with the permanent stay application
presently pending before this court.
[13]
On 6 November 2015 Van der Colff addressed a letter to Lekabe
advising him that the handwritten
notes provided by him were
generally illegible and that in the notes it appeared that Noko
referred to certain letters written
by her to the applicants’
erstwhile co-accused recording her decision to withdraw charges
against them. Van der Colff requested
copies of those letters as
well. By letter dated 3 December 2015 Lekabe responded to Van der
Colff’s letter of 6 November
2015 and enclosed the typed
version of the handwritten notes. In respect of the letters to the
applicants’ erstwhile co-accused
Lekabe indicated that the
respondents had not been successful in tracing them but undertook to
provide them to Van der Colff as
soon as they were found.
[14]
Fast forward, on 14 April 2016 Van der Colff addressed a letter to
Lekabe reminding him that
the requested documents mentioned in para 3
of this judgment remained outstanding. Van der Colff made it clear
that should the
respondents fail to produce the requested documents,
the applicants would bring a further application to compel discovery
and seek
an appropriate costs order. Lekabe did not respond to this
letter. Nevertheless on 22 April 2016 Van der Colff sent another
letter
to him giving him an ultimatum to deliver the requested
documents by the end of April 2016. Again, no response was received.
[15]
The upshot was the present application launched on 30 May 2016
seeking an order as foreshadowed
in para 3 above. The respondents did
not file a notice of opposition until the applicants set the matter
down on the unopposed
roll on 4 July 2016. On 4 July 2016 the
respondents’ counsel appeared in court. The matter served
before Seegobin J who,
by the consent of the parties, adjourned it
sine die after the respondents had pleaded for time to file their
opposing papers.
Seegobin J ordered the respondents to file their
answering affidavits (if any) on or before 19 July 2016 and directed
that such
affidavits should also deal with the question of
condonation for the late opposition to the application. The
respondents were also
directed to pay the costs occasioned by the
adjournment of the matter on that day on an attorney and client
scale.
[16]
Pursuant to Seegobin J’s order Lekabe and Mosing filed their
answering affidavits. In his
answering affidavit, Lekabe also dealt
with the issue of condonation for the late opposition of the
application as directed by
the court.
[17]
With this background I turn to deal with, first, the issue of whether
the respondents have justified
their previous failure to file any
opposing papers within the time limits before the matter was set down
on the unopposed roll
for 4 July 2016. I hasten to point out that the
application for condonation is opposed by the applicants.
[18]
It is common cause that the rule 35(11) application was properly
served on the respondents’
Pietermaritzburg correspondent
attorneys on 30 May 2016. Lekabe deposed that he was on leave from 23
May 2016 to 3 June 2016. He
only returned to work on 6 June 2016. He
stated that he read Van der Colff’s letter of 27 May 2016 when
he returned from
leave. He only became aware of this application on 1
July 2016. By that time the application had already been set down for
hearing
on the unopposed roll on 4 July 2016. He stated that Patrick
John Kevan (Kevan) who is dealing with the matter at the Office of
the State Attorney in KZN did not forward the application papers to
him when he received them. When he enquired from Kevan about
his
failure to send the application papers, Kevan told him that he was
under the impression that Van der Colff had sent the application
papers to Lekabe via email as a matter of courtesy. He was also not
aware of an email which Kevan sent to him on 31 May 2016.
[19]
Kevan deposed to an explanatory affidavit and confirmed receipt of
the rule 35(11) application
papers on 30 May 2016 via email from Van
der Colff. He noticed that Lekabe was also an addressee in the said
email and assumed
that the application papers would come to his
attention. He therefore did not see the need to resend them to him.
On 3 June 2016
he received a further email from Van der Colff which
was also addressed to Lekabe. Again, he assumed that Lekabe was aware
of this
application. On 31 May 2016 the respondents’
Pietermaritzburg correspondent emailed the application papers to his
office.
Because of the previous emails which Van der Colff had sent
to him and Lekabe he assumed that Lekabe was aware of the matter and
did not forward the application papers to him. He only learnt on 30
June 2016 that Lekabe was not aware of the application and
it was
then that he contacted Lekabe’s office to establish what was
happening in the matter. He accepted that this was an
error on his
part.
[20]
The applicants opposed the condonation application. In his replying
affidavit which incorporated
the grounds of opposition, Van der Colff
asserted that Lekabe received and read his letter of 27 May 2016
because Lekabe referred
to and quoted from that letter in his letter
of 1 July 2016 addressed to him. He asserted that Kevan wrote to him
on 31 May 2016
and indicated that he had forwarded his letter of 27
May 2016 to Lekabe and was awaiting his further directions in the
matter.
He asserted that because of these communications between him
on the one hand and Lekabe and Kevan on the other, both Lekabe and
Kevan knew as far back as 27 May 2016 of the applicants’
intention to bring this application, and were forewarned of its
importance in light of the court’s duty to consider all the
relevant documents in the hands of the State. He also sent a
“WhatsApp” message to Lekabe on 30 May 2016 advising him
that the application “papers will be served and filed
on
today”.
[5]
[21]
He asserted that on the same day he also sent a series of six emails
to Lekabe and Kevan. In
one of the emails he enclosed a copy of the
founding affidavit relating to this application. According to him the
emails sent to
Lekabe elicited “read receipts”. On 3 June
2016 he also had a telephone conversation with Lekabe concerning the
postponement
of the permanent stay application which was set down on
10 June 2016. He thereafter sent an email to Lekabe confirming what
Lekabe
had conveyed to him in respect of this application. According
to him, Lekabe had stated the following:
[6]
‘
You
have not had an opportunity to consider our papers in the most recent
compelling application in terms of Rule 35 (11). You will
consider
these papers in due course. Your initial view is, however, that the
application is requesting documents to which our client
is not
entitled and therefore without merit’.
He
asserted that the email sent to Lekabe received a “read
receipt” indicating that Lekabe had read it on the same day.
According to him Lekabe’s conduct made it plain that, as at 3
June 2016 at least, the respondents were aware that this application
had been launched and had formed a prima facie view on its merits.
During their telephone conversation Lekabe did not assert to
him that
he was not aware that the application papers had been served or that
this application had been brought. He accused Lekabe
of not taking
the court into his confidence and asserted that Lekabe did not make
any reference in his affidavit to the emails
and “WhatsApp”
message sent to him, telephone conversation and letters sent to him
between the period 30 May 2016 and
29 June 2016.
[22]
Riaad Adams (Adams) filed a confirmatory affidavit in which he dealt
with a series of “read
receipts” received by Van der
Colff following the emails he sent to Lekabe. According to him the
“read receipts”
are automatic emails generated by
Microsoft Outlook on the machine on which the email is read and sent
automatically to the person
who sent the original email which has
been read. He confirmed that in each case the read receipt email was
sent from the Department
of Justice system where Lekabe is employed
and was sent in response to emails sent by Van der Colff to Lekabe.
[23]
On 16 November 2016 Lekabe filed what he called a “supplementary
answering affidavit”
in which he dealt with some of the issues
relating to the condonation application raised by Van der Colff in
his replying affidavit.
Lekabe stated that he had no access to his
email and correspondence whilst he was on leave. He maintained his
version that he had
become aware of the letters of 27 and 31 May 2016
on his return from leave on 6 June 2016. He was not aware of any
“WhatsApp”
message sent to him by Van der Colff and was
not able to find it after diligent search. He had not personally read
Annexures “W4”
to “W9” to the replying
affidavit because he was still on leave at that time. He stated that
it was possible that his
secretary Phina Dikgale (Dikgale) who had
access to his emails might have opened his emails and not necessarily
read them. Dikgale
did not advise him of any emails or correspondence
that came in during his leave of absence. Dikgale filed a
confirmatory affidavit
in this regard.
[24]
Subsequent to that Van der Colff filed a conditional supplementary
replying affidavit in which
he contended that Lekabe’s
supplementary answering affidavit was an abuse of court and falls to
be disregarded as pro non
scripto because Lekabe did not seek leave
of this court to file it and it was not accompanied by a condonation
application. He
contended that in the absence of such leave, a
party’s purported filing of a further affidavit beyond the
replying affidavit
is impermissible.
[25]
As I have already pointed out, on 4 July 2016 Seegobin J granted
leave to the respondents to
file their answering affidavits on or
before 19 July 2016 and ordered that such affidavits should also deal
with the question of
condonation for late opposition to the
application. It seems to me that to that extent the respondents were
within their rights
to file further affidavits to deal with the
averments raised in Van der Colff’s replying affidavit relating
to the question
of condonation without seeking leave of this court.
Van der Colff has also criticised Lekabe for his failure to provide
an explanation
for the delay in the filing of this affidavit. I find
this criticism well founded. Having said that, I find that it will be
in
the interests of justice that all the affidavits be taken into
account in order to decide the merits of the dispute between the
parties, unfettered by technicalities.
[26]
Having reached that conclusion, I turn to deal with the question of
condonation. Lekabe does
not deny the emails referred to in para 11
of Van der Colff’s replying affidavit but states that he was
not privy to them
as he was on leave at the time. Lekabe’s
evidence is that he saw and read the rule 35(11) application for the
first time
on 1 July 2016. The parties are in dispute on whether Van
der Colff’s email of 3 June 2016 (Annexure “W16”)
is
the correct recordal of the telephone conversation between Van der
Colff and Lekabe on 3 June 2016. According to Lekabe this telephone
conversation occurred at the time of his leave and when he was on
holiday in Durban. His evidence is that Annexure “W16”
does not represent a completely correct recordal of the discussion
between them. He was not aware at the time of the impending
application. All he knew was that the applicants intended to bring an
application of this nature.
[27]
Not according to Van der Cloff. He asserts that Lekabe has failed to
disclose all the correspondence
between the two of them including the
correspondence wherein Lekabe admits knowledge of the application. He
asserts that Lekabe
did not explain his failure to disclose the
correspondence or to deal with the replying affidavit’s
averments that showed
his evidence to be demonstrably false,
including that he had knowledge of this application at least as early
as 3 June 2016. He
insisted that Annexure “W16” is a
correct recordal of the telephone conversation of 3 June 2016. In the
circumstances,
he contends that Lekabe has failed to provide a full
detail and accurate account of the reasons for the delay for the
entire period
despite being ordered to provide such by the court on 4
July 2016.
[28]
In
Van Wyk v Unitas
Hospital & another (Open Democratic Advice Centre as Amicus
Curiae)
the
Constitutional Court said:
[7]
‘
This
court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is
in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay, the effect of
the delay on the
administration of justice and other litigants, the effect of the
delay on the administration of justice and other
litigants, the
reasonableness of the explanation for the delay, the importance of
the issue to be raised in the intended appeal
and the prospects of
success’. (Footnotes omitted.)
[29]
An applicant for condonation must give a full explanation for the
delay. In addition, the explanation
must cover the entire period of
delay. And, what is more, the explanation given must be reasonable
(
Van Wyk
supra). In terms of the Rules of this court the
respondents were required to file the opposing papers by 21 June
2016. It is common
cause that the respondents filed notice of
opposition and the answering affidavit on 19 July 2016 after being
ordered by Seegobin
J to do so. It has not been argued, correctly in
my view, that the delay is inordinate. The thesis advanced on behalf
of the applicants
is the absence of (a) a reasonable explanation and
(b) his alleged failure to disclose certain correspondence which Van
der Colff
contends that Lekabe was aware of this application at least
as early as 1 June 2016. As stated in
Van Wyk
prospects of
success on the merits is also an important factor to be considered in
the application of this nature. It is clear
from the evidence of Van
der Colff and Lekabe that most of the aspects on the issue of whether
Lekabe was on leave when the letters
and emails were sent to him by
Van der Colff are common cause.
[30]
The point of departure is whether Lekabe became aware of this
application whilst he was on leave
and/or immediately on his return
to the office. On this aspect, the versions of the parties are
mutually destructive. I have been
invited by the applicants’
counsel to infer based on the read receipts received from the emails
sent by Van der Colff to
Lekabe, correspondence and the telephone
conversation of 3 June 2016 that Lekabe must have been aware of this
application. Obviously,
these are motion proceedings. It follows
therefore that on accepted rules of motion proceedings, the
respondents’ version
must stand. I am satisfied that the
consideration of fairness to both parties, the importance of the
matter, the interests of justice
and the prospects of success on the
merits demand that the condonation for the late filing of the
respondents’ answering
affidavit be granted.
[31]
Turning to the question of whether the applicants are entitled to the
documents sought I pause
to record that rule 35(11) gives the court
the power, in any proceedings, to order the production of documents
that are relevant
to any matter in question in such proceedings. It
provides:
‘
(11)
The court may, during the course of any proceeding, order the
production by any party thereto under oath of such documents
or tape
recordings in his power or control relating to any matter in question
in such proceeding as the court may think meet, and
the court may
deal with such documents or tape recordings, when produced, as it
thinks meet’.
[32]
In para 3 above I have captured the five categories of the requested
documents which the applicants
seek to compel the respondents to
produce. This is then the convenient stage to deal with them in
sequence.
[33]
As to the first category: The respondents have refused to provide
this information to the applicants
on the ground that the removal of
Dunywa from the case, just as any other prosecutor in the employ of
the first respondent, falls
within the prerogative of the first
respondent and does not in any way prejudice the applicants in the
conduct of their case.
[34]
The applicants’ counsel accepts that in an ordinary criminal
prosecution, this may be so.
The high water mark of his argument
under this category is that the permanent stay application is
predicated on the grounds of
prosecutorial abuse and the unlawful
exercise of prosecutorial discretion. He submitted that because of
this factor this information
becomes vital to the proper ventilation
of the issues at stake in the permanent stay application. In his
submission the first respondent’s
refusal to provide this
information adds fuel to the applicants’ suspicion that Dunywa
was removed from the prosecution team
for improper motives and those
motives formed part of the prosecutorial abuses which are catalogued
in the permanent stay application.
[35]
As stated in para 4 above, I have been obliged to range beyond this
application and to consider
the grounds on which the permanent stay
application is predicated in the exercise of my discretion whether to
compel the respondents
to provide the documents to the applicants
under this category. I observed that on 2 November 2015 the
respondents advised the
applicants of their stance on this issue. As
can be seen, the applicants did not provide facts from which this
court could draw
‘some’ conclusion that Dunywa might have
been removed from the prosecution team for improper motives. Van der
Colff
refers to the suspicion without telling this court more. I am
unable to find any iota of evidence which enables me to exercise the
discretion in favour of the applicants in relation to this category
of documents. In the circumstances I endorse the stance adopted
by
the respondents in this regard.
[36]
As to the second category. Initially the respondents did not produce
the required documents under
this category until this application was
launched. On 15 July 2016 and subsequent to the launching of this
application the respondents
disclosed five one-page letters dated 16
August 2012 addressed by Noko to the applicants’ erstwhile
co-accused advising them
that the charges against them would be
formally withdrawn when the matter comes before the court. I observed
that on 3 December
2015 Lekabe addressed a letter to Van der Colff
advising him that the respondents had unsuccessfully traced these
letters. He undertook
to continue tracing them and to provide the
letters to the applicants as soon as they became available. The
respondents conceded
that these letters were provided to the
applicants belatedly but they emphasised that the applicants were
advised as far back as
3 December 2015 that the respondents were busy
tracing the letters.
[37]
The applicants’ counsel submitted that the late production of
these letters after this
application was launched justifies the
filing of this application. Notwithstanding the vigour of the
applicants’ counsel
argument on this point, the common cause
facts say otherwise. As already stated, the evidence demonstrates
that the respondents
undertook to provide these letters to the
applicants as soon as they were found. In my view it has not been
satisfactory explained
why it was necessary to include this category
of documents in this application. In any event, I find it
incomprehensible as to
what extent a letter directed to an erstwhile
co-accused informing him of the withdrawal of the charges against him
would assist
to advance the applicants’ case in the permanent
stay application. I must accordingly hold against the applicants on
this
argument.
[38]
As to the third category. The applicants are amongst the accused in
two prosecutions currently
pending in KwaZulu-Natal and the Northern
Cape. The applicants are already in possession of the witnesses’
statements from
the dockets on which the prosecution team would rely
in pursuing these prosecutions. In addition, the applicants have been
provided
with the handwritten and typed notes of the meetings of 20
July 2012 and 8, 13 and 20 August 2012. The respondents have
maintained
their stance that the documents pertaining to the
withdrawal of the charges against the applicants’ erstwhile
co-accused
have been provided to the applicants.
[39]
Applicants’ counsel has sought to argue that the respondents
have given two contradictory
assertions regarding this category of
documents. He submitted that in the first instance the respondents
have stated that these
documents are privileged as they pertain to
the preparation for trial. In the second instance, he submitted that
the respondents
contended that they had already disclosed the
requested documents under this category. Adumbrating this ground he
submitted that
the respondents were invited to indicate whether the
notes of the meetings are the only documents that grounded the
decision to
withdraw charges against the applicants’ erstwhile
co-accused and the respondents had failed to make such indication. He
expressed the view that it is improbable that the decision to
withdraw the charges was based only on these notes. He submitted that
the applicants have a reasonable belief that there are more documents
in possession of the respondents sought under this category.
[40]
From an analysis of the evidence and contemporaneous documents it
seems to me that the respondents
drew a clear distinction between the
two categories of documents under this head. The first category
relates to the preparation
for trial. The respondents have, correctly
in my view, indicated that these documents are privileged. The second
category relates
to the withdrawal of charges and these have been
provided to the applicants. I have not been provided with the
surrounding facts
on which the basis of “a reasonable belief
that there are more documents” is founded. What, in my view,
casts an oblique
but significant shadow across the path of the
applicants on this aspect is what the first applicant says in his
founding affidavit
in the permanent stay application. In para
221 thereof he states:
‘
I
have to stress that no new evidence was made available which could
have explained these extraordinary decisions by the prosecuting
authority. Indeed, I can confidently say that the State case is the
same as it always was. The only change has been personnel at
the
office of the National Prosecuting Authority. Advocates Simelane and
Mlotshwa are out and Advocate Noko is now the acting DPP
in
KwaZulu-Natal. Certainly no new witness statements or documents were
provided to the Defence and no witnesses added to the list.
Indeed,
none of the erstwhile accused feature as section 204 witnesses.’
[41]
As to the fourth category. Under this head the respondents have
stated that the first respondent
has furnished all the documents
pertaining to the withdrawal of the charges. They have also stated
that any further documentation
required is privileged as it pertains
to the first respondent’s preparation for trial. The
applicants’ counsel have
advanced an argument similar to the
one advanced under the third category above. In addition he submitted
that the fact that “further
documentation” is referred to
by Mosing in his answering affidavit makes it clear that all the
documentation has not been
provided to the applicants.
[42]
He submitted that the applicants in the founding affidavit have made
it clear that all of the
documentation which “formed the basis
of or were taken into account in respect of the withdrawal of
charges” is required
for the applicants properly to run their
case in the permanent stay application wherein they allege that the
first respondent improperly
exercised its discretion in withdrawing
charges against the “politically connected accused” but
not doing so against
the applicants. He expressed the view that the
reluctance of the first respondent to provide this information leads
to an inference
that the respondents have something to hide in
respect of this documentation. He submitted that the applicants have
a right to
know on what basis it is alleged that the case against the
politically connected accused was found to have been “insufficient
evidence”.
[43]
I must confess I have strained to find any discernible features in
the requested documents under
this category and those requested under
the third and fifth categories. To my mind what resonates in all
three categories is that
they all relate to the withdrawal of the
charges against the applicants’ erstwhile co-accused. In para
40 of this judgment
I have already indicated why I am unable to
exercise the discretion in favour of the applicants in relation to
the requested documents
under that category. That reasoning commends
itself to me as applying equally to this category. It is common cause
that the applicants
have been provided with the handwritten and typed
notes, minutes of the meetings, and statements of witnesses contained
in the
dockets and memorandum setting out how the decision to
withdraw charges against the applicants’ erstwhile co-accused
including
Nkonyeni and Mabuyakhulu was arrived at.
[44]
With regard to the fifth category the respondents have stated that
they have understood this
request to refer to notes of meetings,
memoranda and correspondence in respect of the decision to withdraw
charges. I have already
touched on the germane aspect of the
requested documents under this category.
[45]
The applicants’ counsel submitted that access to the documents
requested is fundamental
to the proper ventilation of the permanent
stay application which the applicant have brought against the state.
He submitted that
the documents requested go to the very heart of the
permanent stay application and relate directly and materially to the
applicants’
rights to a fair trial, the administration of
justice and the rationality and lawfulness of the first respondent’s
decisions
to withdraw charges against Nkonyeni and Mabuyakhulu.
[46]
He expressed the view that, given that some of the behaviour by the
respondents that has given
rise to the permanent stay application has
taken place behind closed doors, there may well be further grounds to
justify the permanent
stay application which will emerge from the
documents requested but which the applicants are not aware of until
they have had sight
of them. He submitted that the respondents’
failure to produce the requested documents has resulted in the
applicants being
unable to properly plead their case in the permanent
stay application.
[48]
I find the argument raised by the applicants’ counsel under
this case fundamental flawed.
The flaw seems to lie in the fact that
it is predicated on the search for material in the hope of being able
to raise allegations
of fact, as opposed to the elicitation of
evidence to support allegations of fact which have been raised bona
fide with adequate
particularisation. It seeks to obtain information
which may lead to eliciting evidence in general support of the
applicants’
case. It is anchored on an unsound foundation. In
any event, not the slightest basis is placed before this court to
support the
relief that any of these documents (other than those
already produced) exist at all. Further, it has not been
demonstrated, if
they do exist, that they can be of any assistance in
the determination of any relevant issues which might impact on the
relief
sought in the permanent stay application.
[49]
I find s 20(1) of the National Prosecuting Authority Act
[8]
apposite in this regard. It provides:
‘
(1)
The power, as contemplated in s 179 (2) and all other relevant
sections of the
Constitution
,
to-
(a)
institute and conduct criminal proceedings on behalf of the State;
(b)
carry out any necessary functions incidental to instituting and
conducting such criminal
proceedings; and
(c)
discontinue criminal proceedings,
vests
in the
prosecuting authority
and shall, for all purposes, be
exercised on behalf of the
Republic
.’
[50]
I shall make it plain that I have not, quite rightly, been told of
any of the facts underlying
the political situation in the withdrawal
of the charges. This court is in no way concerned with the political
merits, nor is it
concerned with the wisdom, expediency or political
consequences of the first respondents’ conduct. The question is
whether
the applicants have provided facts from which this court can
exercise its discretion in their favour. I have to judge the question
wearing spectacles which exclude all political lines. It is common
cause that the applicants were provided with internal memos
and
handwritten notes which were subsequently typed at their request.
These documents and minutes of the meetings of the prosecution
team
set out the process followed by the respondents which culminated in
the withdrawal of the charges against the applicants’
erstwhile
co-accused including Nkonyeni and Mabuyakhulu.
[51]
On 28 November 2016 I heard argument on the matter and on completion
of argument I reserved judgment.
Surprisingly, on 6 December 2016 the
applicants’ attorneys launched an application to introduce
further evidence in respect
of the documents requested under category
five of the main application.
[47]
In his founding affidavit to this application Brett Michael Nicholson
(Nicholson) deposed that
at the hearing of this application on 28
November 2016, the respondents’ counsel took an entirely
different approach from
that previously deposed to by Mosing.
According to Nicholson, the respondents’ counsel submitted that
the documents in the
Vahed J record consisted only of the handwritten
and typed notes of the meetings and the withdrawal letters to the
applicants’
erstwhile co-accused, all of which had been
provided to the applicants. He asserted that it was during this
submission that I enquired
from the applicants’ counsel whether
the applicants were seeking the “re-production” of the
record, since the
record had apparently already been provided to the
applicants. He asserted that the applicants’ counsel reiterated
that what
the applicants was seeking was the delivery of all the
documents that form part of the Vahed J record so that the applicants
could
perform a comparison exercise to see whether what had already
been provided to them was concomitant with what had been provided
to
the DA following Vahed J’s order. He asserted that until such
time as the Vahed J record was produced, it was impossible
for the
applicants or the court to know whether the documents already
provided to the applicants were coterminous with the documents
constituting the Vahed J record.
[52]
Nicholson asserted that this new argument took the applicants by
surprise and appeared to suggest
that the only documents in the Vahed
J record were the memoranda and letters, which amount to 20 pages.
He asserted that
that was inconsistent with what Lekabe stated
in his answering affidavit, where Lekabe attempted to limit the
documents requested
under the fifth category as encompassing only the
memorandum and letters. He asserted that this stance was also
inconsistent with
the allegations contained in Lekabe’s
supplementary answering affidavit wherein he suggested that he did
not know what the
Vahed J record entailed and disputed its relevance.
According to him he made enquiries after the hearing with Venns
Attorneys and
spoke to Mr Geyser who acted for the DA in the matter
before Vahed J. Mr Geyser informed him that the record produced by
the State
in the DA application, following a compelling application,
was vast and ran into thousands of pages. According to him, Mr Geyser
informed him that the record was so voluminous that the State could
not provide hard copies but instead provided electronic copies
of the
documents on compact disc. He asserted that what Mr Geyser said
demonstrates beyond doubt that the 20-odd pages of memoranda
and
letters which have been provided to the applicants do not constitute
the full extent of the Vahed J record, which runs into
thousands of
pages.
[53]
In his answering affidavit Lekabe denied Nicholson’s assertion
and pointed out that during
argument the respondents’ counsel
referred to Mosing’s answering affidavit in the rule 35(11)
application in which
Mosing stated that the first respondent had
furnished all the documents pertaining to the withdrawal of charges
and that further
documentation required is privileged as it pertains
to the first respondent’s preparation for trial. According to
Lekabe,
the respondents have provided all the documents that they
were obliged to provide to the applicants in this matter. Lekabe
pointed
out that the new argument allegedly advanced by the
respondents’ arose in argument in reply when the court enquired
from
the applicants’ counsel whether the applicants were
seeking “re-production” of the record and the applicants’
counsel then stated for the first time that a rule 53 record was
sought. Lekabe was steadfast in pointing out that this argument
was
advanced in the reply in response to the re-production question from
the court. He asserts that the applicants, in bringing
this
application are actively abusing the court process as the purpose of
seeking Vahed J’s record is to engage in a comparison
exercise
to ascertain whether what had been provided to the applicants was
concomitant with what had been provided to the DA following
the Vahed
J order. Lekabe pointed out that the “thousands of pages”
referred to in this application constitutes to
a large extent
contents of the case docket which were provided to the applicants at
their first appearance in the criminal court.
[54]
On 22 September 2017 the application to introduce further evidence
was heard. During the course
of argument I enquired from the
applicants’ counsel whether the applicants were furnished with
the statements of witnesses
contained in the dockets relating to the
charges the applicants are currently facing. The applicants’
counsel conceded that
the applicants are in possession of the
statements of the witnesses relating to these prosecutions. It also
became common cause
that the DA to which the order of Vahed J relates
is not involved in the criminal prosecution currently pending against
the applicants.
The applicants’ counsel found it difficult to
explain to this court why it was necessary to bring this application
to introduce
further evidence on the issue which was already squarely
before the court for determination. To illustrate this point as early
as 18 July 2016 Mosing deposed in the answering affidavit in the rule
35(11) application as follows:
“
The
first respondent has furnished all the documents pertaining to the
withdrawal of charges. Any further documentation required
is
privileged as it pertains to the first respondent’s preparation
for trial”.
[55]
In
Mkwanazi v Van der
Merwe & another
[9]
Holmes JA identified the degree of materiality of evidence as one of
the considerations which usually falls to be weighed in an
application of this nature. The respondents have maintained their
version that they considered the fifth category under the rule
35(11)
application to comprise no more than letters, memoranda and
deliberations pertaining to the withdrawal of charges against
Nkonyeni and Mabuyakhulu. They maintain that all such documents have
been provided to the applicants.
[56]
Having carefully considered this matter I am not pursued that the
applicants have met the test
as set out in
Mkwanazi
. It
follows therefore that the application to introduce further evidence
falls to be dismissed with costs.
[57]
What remains to be considered is the question of costs. The general
rule is that in the ordinary
course costs follow the result. I am not
satisfied in the manner in which the parties have conducted
themselves in the litigation
of this matter. However, having
carefully considered the grounds upon which the permanent stay
application is founded, I find that
this application was
ill-conceived. Nonetheless, I find it unacceptable that the attorneys
for the respondents would take, as it
can be seen in this judgment,
such a long time to respond to simply queries and letters from the
applicants’ attorneys and
to provide the requested information.
In light of all that I am of the view that an appropriate costs
order in respect of
the condonation and rule 35(11) applications
would be to direct that each party pays its own costs. Insofar as the
application
to introduce further evidence I find that there was no
need to bring such an application. In the circumstances I am of the
view
that the applicants should pay the costs of that application.
[58]
Pausing here for a moment, I am mindful of the fact that it is not
necessary for me to express
any definite view one way or the other in
respect of the permanent stay application. It seems to me, however,
that the proper forum
to decide the issues raised thereon would be
the trial court. In
Zuma
v Democratic Alliance & others
Navsa
ADP said:
[10]
‘
It
is incumbent on prosecutors to disclose to a court any fact which, in
their view, may impact negatively on the prosecution and
in favour of
the accused. This is in line with the constitutional values and the
provisions of the NPA Act. It is in the interests
of the NPA, accused
persons and the public’s confidence in the administration of
justice, that decisions concerning allegations
of abuse of process be
made before a trial court.’
The
trial court will also be better placed to decide on the admissibility
of such evidence should it transpire that the respondents
are about
to introduce such privileged information during the trial.
[59]
In the circumstances the following order shall issue:
(a)
Application for condonation for the late opposition to the
application is granted.
(b)
The application in terms of Uniform rule 35(11) is dismissed.
(c)
Each party is directed to pay its own costs in the condonation and
rule 35(11) applications.
(d)
The application to introduce further evidence in these proceedings is
dismissed with costs.
MNGUNI J
Appearances
Heard:
22 September 2018
Delivered:
23 February 2018
For
the Applicant:
Mr G. MARCUS SC
Assisted
By:
Mr M. Du PLESSIS, Ms S. Pudifin-Jones
INSTRUCTED
BY:
Edward Nathan Sonnenbergs Inc.
c/o Nicholson & Hainsworth
Attorneys.
REF.:
(W Van der Colff/0292511) / (Brett Nicholson/BNL2328)
TEL.:
033-343 22 21
For
the Respondent:
ADV. U.R.D MANSINGH
INSTRUCTED
BY:
STATE ATTORNEY, KZN
c/o CAJEE SETSUBI CHETTY
REF:
(Mr Patrick Kevan/cet/119/0004/2013/S/P13)
TEL:
033-345 67 19
[1]
Notice of Motion dated 30 May 2016.
[2]
2 of 2000.
[3]
The
Constitution of the Republic of South Africa, 1996.
[4]
Paras 4 and 5 of the letter dated 24 August 2015 provide:
‘
4.
Finally, in respect of the newspaper article, a copy of which was
annexed to
our letter of the 6
th
instant, advocate Noko
indicates that a decision was taken to remove advocate Dunywa from
the case.
5.
In this regard, please will you provide us with the following
information:
5.1
Who took that decision?
5.2
When was it taken?
5.3
What were the reasons for the decision?’.
[5]
Annexure “A”.
[6]
Annexure “W16”.
[7]
Van Wyk v Unitas
Hospital & another (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA
472
(CC) para 20.
[8]
32 of 1998.
[9]
Mkwanazi v Van der
Merwe & another
1970 (1) SA 609
(A) at 616.
[10]
Zuma v Democratic
Alliance & others
2018
(1) SACR 123
(SCA) ([2017] ZASCA 146) para 91.