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[2018] ZALMPPHC 69
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Snyman v National Director of Public Prosecutions NO and Others (5980/2018) [2018] ZALMPPHC 69 (13 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 5980/2018
In
the matter between:
JOHANNA
CATHARINA
SNYMAN APPLICANT
And
THE
NATIONAL DIRECTOR OF
PUBLIC FIRST
RESPONDENT
PROSECUTIONS
N.O
THE
DIRECTOR OF PUBLIC PROSECUTIONS SECOND
RESPONDENT
LIMPOPO
PROVINCE N.O
THE
CONTROL PROSECUTOR, MOREBENG THIRD
RESPONDENT
MAGISTRATES’
COURT N.O
JUDGMENT
MAKGOBA
JP
[1]
In this application the Applicant seeks an order for a permanent stay
of prosecution against her as a result of an alleged incident
that
occurred on 2 March 2012. The Applicant contends that her right to
fair trial as provided for in terms of section 35(3)(d)
of the
Constitution has been disregarded from the outset.
[2]
The Applicant is facing a charge, in the Magistrate Court, of
contravention of section 63(1) of the Road Traffic Act 93 of 1996
–
Reckless and / or Negligent Driving, alternatively contravention of
section 64 of Act 93 of 1996 – Inconsiderate
Driving. The
Respondents, as per answering affidavit of the Second Respondent,
allege that the Applicant whilst driving a motor
vehicle she overtook
another motor vehicle driving in front of her at the time when it was
unsafe to do so in that there was oncoming
traffic already too close.
As a result of the Applicant’s ill-timed overtaking, a
collision occurred between other vehicles,
resulting in one of the
motorists sustaining serious injuries. The Respondents contend that
the Applicant’s conduct is a
serious transgression of the
traffic laws. Therefore, the State has a
prima
facie
case against the Applicant and as such, has a legal duty to prosecute
her.
[3]
This matter was argued before me on 13 December 2018 and on the same
date I granted the following order:
1.
The prosecution of the Applicant by the Respondents or any person(s)
acting as their duly authorized delegate(s) in Morebeng
Magistrate’s
Court Criminal Case number MG 49/2018, MOGWADI POLICE DOCKET CAS
60/03/12 be and is hereby permanently stayed.
2.
The Applicant is absolved from attending Court at the next hearing in
the Magistrate Court in respect of this case.
3.
The Respondents are ordered to pay the costs of this application on a
party and party scale.
[4]
I indicated that my full reasons of judgment would follow in due
course. What follows are my reasons for judgment and order
granted on
the 13 December 2018.
[5]
The Applicant’s case is premised on section 35(3)(d) of the
Constitution which provides:
“
Every
accused person has a right to a fair trial, which includes the right
–
.........
(d)
to have the trial begin and conclude without unreasonable delay”
The
Applicant contends that this right, entrenched in the Constitution,
has been disregarded and that she is justified in seeking
the relief
sought in the notice of motion. The application is opposed by the
Respondents.
Factual
Background
[6]
The factual matrix of this case are mainly common cause. The alleged
incident of reckless and / or negligent driving took place
on the 2
March 2012. The Applicant received the summons dated 6 May 2012,
calling upon her to appear in Mogwadi Periodical Court
on 6 July
2012. After the hearing on 6 July 2012 the matter was postponed to 5
September 2012 for plea and trial. It is common
cause that between 6
July 2012 and 5 September 2012 the Applicant’s attorney
addressed three unanswered requests for further
particulars.
[7]
By 5 September 2012, the Applicant’s attorney did not receive a
reply to the request for further particulars and consequently
the
matter was postponed to 12 November 2012 for plea and trial. By 12
November 2012, the state had failed to present the Applicant
with a
police plan and the key thereto in respect of the scene of the
alleged accident. The matter was also pushed out due to a
congested
roll. The matter was then postponed to 24 January 2013. On 24 January
2013, the matter was again pushed out due to a
congested roll. The
matter was postponed to 11 March 2013.
[8]
On 11 March 2013, the Applicant failed to attend the criminal
proceedings. A warrant for the Applicant’s arrest was issued
but was held over until the next appearance, which appearance was due
to be held on 5 April 2013. On 5 April 2013, the matter was
again
pushed out due to a congested roll. The matter was then postponed to
27 May 2013. On 27 May 2013, the prosecution indicated
that it
intended to request a postponement of the matter due to
non-availability of an interpreter. The Applicant’s attorney
of
record objected to the proposed postponement and consequently the
matter was struck from the roll in terms of
section 342
of the
Criminal Procedure Act 51 of 1977
.
[9]
Approximately 2
1/2
years later, the Applicant was again charged for the same offences.
The Applicant was required to appear in Court on 19 February
2016.
The second summon contained a comedy of errors. The matter was not on
the roll and the Applicant and her attorney of record
was excused
from the proceedings. Nothing came of the second summons. Five months
later the Applicant first attended the Polokwane
Court. The matter
was not on the roll and thereafter attended to the Mogwadi Periodical
Court. The matter was eventually traced
to the Mogwadi Court. Again
the matter was struck from the roll.
[10]
During March 2017 the Applicant received a fourth summons to appear
in Court on 27 April 2017. The Applicant was not able to
attend the
proceedings on this day and consequently the matter was postponed to
12 July 2017. The Applicant’s attorney of
record indicated that
he indented to direct representations to the DPP for the permanent
stay of the prosecution. The Applicant’s
representations for
the permanent stay of the prosecution was declined by the DPP.
[11]
On 12 July 2017 the prosecutor of the day informed the Applicant’s
attorney that he intended applying for the matter
to be postponed and
to be transferred to another Court due to the fact that the recording
equipment in the Mogwadi Court had been
defective for the previous
three to four months. The matter was then postponed to 19 September
2017. At this time the matter was
transferred to the Morebeng
Magistrate Court. At the hearing of 19 September 2017, the
Applicant’s attorney of record argued
that the Morebeng
Magistrate Court did not have the requisite jurisdiction to
adjudicate the matter. This argument was upheld and
the matter was
again struck from the roll.
[12]
The Applicant was again called upon to appear in Court on 8 June
2018. Curiously enough, the fifth summons received by the
Applicant
allowed for an admission of guilt fine in the amount of R 2000.00.
This was the first time in approximately six years
that such a
concession was made.
The
Impact upon the Applicant
[13]
The Applicant in her founding affidavit (para 42-46) has demonstrated
to the Court the impact the pending criminal proceedings
have had on
her. She demonstrated that these proceedings have affected her
psychologically and financially in that:
13.1.
She has been prosecuted for an offence that she has not committed.
13.2.
After 6
1/2
years the trial proceedings are yet to commence.
13.2.
Had the proceedings proceeded within a reasonable time, and worst
case scenario the Applicant had been found guilty, the Applicant
would have received a fine or prison sentence which sentence would
have already been served.
13.4.
The proceedings have affected her working environment.
13.5.
The Applicant has spent a substantial amount of money attending the
proceedings over a period of six years and continues
to spend
significant amounts of money on legal fees and travelling costs.
[14]
The Respondents admit the impact the proceedings have had upon the
Applicant but fail to demonstrate how the interests of justice
require these proceedings to continue to its finality. The following
concessions emanate from the Respondents answering affidavit:
14.1.
AD
PARAGRAPH 32
“
I
accept that this case has possibly cost her substantial amount of
money. I also accept that the State used substantial public
purse to
persue the matter. But that cannot be the reason for the State to
abandon the matter when it is trial ready.”
14.2.
AD
PARAGRAPH 35
“
Applicant’s
averments concerning psychological trauma, emotional distress and
fiscal loss cannot be disputed. However, one
would have expected the
Applicant to utilize every opportunity available to her, to get the
trial going. Instead, the Applicant
defaulted without advancing any
excuse at some point in time”
14.3.
AD
PARAGRAPH 39
“
This
Honourable Court only has to answer the question whether the State
caused inordinate delay in commencing with the trial or
not. If so,
whether it is in the best interests of justice to order permanent
stay of prosecution or not”
14.4.
AD
PARAGRAPH 59
“
Even
if the Applicant successfully demonstrates to the Honourable Court
that the State caused inordinate delay, it is submitted
that the
relief sought is still inappropriate in that the prejudice she might
have suffered is not “trial-related”
and most
importantly, not irreparable. The prejudice is reparable in that the
Applicant may institute civil proceedings for damages
arising out of
the anticipated trial.”
[15]
The Respondents contend that the stay of the proceedings will
adversely affect the DPP’s primary mandate of prosecuting
anyone without fear, favour and prejudice. In the light of the
Respondents’ shortcomings demonstrated in this case, it can
hardly be permitted to argue that this Court must strike a balance
between the impact of the proceedings upon the Applicant and
the
interest of justice. The Respondents’ submission that the
Applicant has an alternative remedy in resorting to a civil
action
against the State is in my view far-fetched and is accordingly
rejected.
[16]
It is noted that the Applicant did absent herself from Court on two
occasions. It is not clear from the evidence on papers
that on those
two occasions the State was ready to proceed with the trial. It is
wrong for the Respondents to apportion blame on
the Applicant merely
by her failure to attend Court on those two occasions, as there is no
indication that she was in willful default
of attending Court,
otherwise she would have being found guilty of contempt of Court.
[17]
Section 38 of the Constitution states that anyone, especially those
acting in their own interest, is entitled to “approach
a
competent Court, alleging that a right in the Bill of Rights has been
infringed or threatened, and the Court may grant appropriate
relief,
including a declaration of rights.”
The
right relied upon in
casu
is the Applicant’s right to a fair trial entrenched in section
35(3) of the Constitution and in particular the right to have
his
trial begin and concluded without unreasonable delay (section
35(3)(d)). It is clear that the relief embodied in section 38
is not
restricted to constitutional rights being infringed during a criminal
trial but it is also applicable in a pending or upcoming
criminal
trial.
[18]
The Constitutional Court held in
Wild
and Another v Hoffert NO and Others
1998 (2) SACR 1
(CC) at paragraph
[11]
that an application for a permanent stay of prosecution is an
extraordinary remedy. It prevents the State from proceeding with
a
worthy cause, i.e the prosecution of an accused in the public
interest, especially where the alleged crimes are serious and
comprehensive. I may mention that in
casu
the
Applicant is faced with a charge of contravening road traffic
statutory provisions where there has not been any loss of life
or
property.
[19]
In
Wild
v Hoffert NO
supra, the Constitutional Court was not prepared to grant a permanent
stay of prosecution after having found that the Appellants
themselves
were responsible for a considerable period of delay. In
casu
there
is no evidence that the Applicant is to blame for the delay in
prosecution. The present case is therefore distinguishable
from the
Wild
v Hoffert NO
case.
[20]
In
Zanner
v DPP, Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA)
the Court accepted that compelling reasons for granting permanent
stay of prosecution would normally relate to trial-related prejudice
such as the unavailability of witnesses or fading memory in
consequences whereof the accused may be prejudiced in the conduct of
his or her trial. In
Zanner
there
was a delay of ten years between the first and second decision to
indict the Appellant. It is so that the SCA found that the
accused
had to show definitive and not speculative prejudice; it is not good
enough to rely on vague allegations of prejudice resulting
from the
passage of time and the absence of witnesses.
[21]
In
DPP
and Another v Phillips
[2012] 4 All SA 513
(SCA)
the DPP’s appeal to the High Court was struck from the roll due
to an inordinate delay in prosecuting it. Mr Phillips brought
an
application in the High Court in terms whereof the appeal should be
permanently struck from the roll, but later added relief
to the
effect that a permanent stay of prosecution of the appeal be ordered.
The High Court ordered a permanent stay of prosecution
and this order
was confirmed by the SCA.
Navsa
JA, writing for a uninamous Court, stated the following at paragraphs
[54] and [55]:
“
[54]
...... One would have expected the DPP, allegedly concerned with the
issues thrown up by the evidence already adduced, would
act with
greater purpose and commitment. Should a Court, without an end in
sight in respect of the proposed appeal and therefore
no indication
of when the trial might resume, in the event of a successful outcome
for the DPP, expect an accused to continue to
be in limbo? In the
totality of the circumstances of this case, I think not.
[55]......
She (Satchwell J) was correct in laying the fault for the delay at
the door of the DPP. She was correct to conclude that
the inordinate
delay was inexcusable.”
[22]
The most recent authority on this topic is
Van
Heerden v NDPP
2017 (2) SACR 696
(SCA)
.
In this case Navsa JA, writing for a unanimous Court was extremely
critical of the prosecution’s approach to litigation.
The
learned Judge remarked that “
whether
a breach of right to an expeditious trial has occurred and relief is
justified, are to be determined by a Court after having
been apprised
of all the facts on a case-by-case basis.”
[23]
Kriegler J’s judgment in
Sanderson v Attorney General,
Eastern Cape
[1997] ZACC 18
;
1998 (1) SACR 227
(CC)
– a unanimous judgment
of the Constitutional Court was referred to extensively in
Van
Heerden
supra.
It
is apparent from the
Sanderson
judgment that a balancing act must be performed by a Court
considering an extraordinary remedy such as a permanent stay of
prosecution.
Kriegler J mentioned three factors to be considered, to
wit
(1)
the
right to a trial within a reasonable time is fundamental to the
fairness of the trial and the consequent prejudice suffered
by an
accused if this does not materialise – see section 35(3)(d) of
the Constitution;
(2)
the
nature of the case; and
(3)
so-called
systematic delay such as effectiveness of police investigation or
prosecution of the case and delays caused by congested
Court rolls.
[24]
The following remarks by Kriegler J in paragraph [30] of the judgment
are apposite:
“
I
do not believe it would be helpful for our Courts to impose such
semi-formal time constraints on the prosecuting authority. That
would
be a law-making function which it would be inappropriate for a Court
to exercise. The Courts will apply their experience
of how the lapse
of time generally affect the liberty, security and trial-related
interests that concern us. Of the three forms
of prejudice, the
trial-related variety is possibly hardest to establish, and here as
in the case of other forms of prejudice,
trial Courts will have to
draw sensible inferences from the evidence.”
[25]
The judgment in
Sanderson
points
out that in determining reasonableness, it is not only the interest
of the accused that must be borne in mind. In making
a value
judgment, Courts must be consistently mindful of the profound social
interest in bringing a person charged with a criminal
offence to
trial and resolving the liability of the accused. When a permanent
stay of prosecution is sought this societal interest
will loom very
large.
[26]
In
Bothma v Els
2010 (1) SACR 184
(CC)
an application for the
permanent stay of prosecution was dismissed by the Constitutional
Court. It was decided that all the relevant
factors would have to be
weighed on a case-by-case basis. Of central significance would always
be the nature of the offence. The
less grave the breach of the law,
the less fair would it be to require the accused to hear the
consequences of the delay. The more
serious the offence, the greater
the need for fairness to the public and the complainant by ensuring
that the matter went to trial.
Section
342A
of the
Criminal Procedure Act, 51 of 1977
[27]
In the present case the provisions of
section 342A
of the
Criminal
Procedure Act, 1977
were invoked on two occasions when the State had
failed to proceed with the trial. Despite these, the Director of
Public Prosecutions
decided to reinstitute the criminal proceedings
against the Applicant. In my view the decision of the DPP in this
regard was not
fair and in the public interest especially where the
Applicant had to endure the effects of a pending trial for such a
long period.
An analogy can be drawn between applications in terms of
section 342A
and those for permanently stay of prosecution.
[28]
Section 342A
of the
Criminal Procedure Act must
be considered. The
relevant portion reads as follows:
“
342A
Unreasonable delays in trials
(1)
A court before which criminal proceedings are pending shall
investigate any delay in the completion of proceedings which appears
to the court to be unreasonable and which could cause substantial
prejudice to the prosecution, the accused or his or her legal
adviser, the State or a witness.
(2)
In considering the question whether any delay is unreasonable, the
court shall consider the following factors:
(a)
The duration of the delay;
(b)
the reasons advanced for the delay;
(c)
whether any person can be blamed for the delay;
(d)
the effect of the delay on the personal circumstances of the accused
and
witnesses;
(e)
the seriousness, extent or complexity of the charge or charges;
(f)
actual or potential prejudice caused to the State or the defence by
the delay, including a weakening of the quality of evidence,
the
possible death or disappearance or non-availability of witnesses, the
loss of evidence, problems regarding the gathering of
evidence and
considerations of cost;
(g)
the effect of the delay on the administration of justice;
(h)
the adverse effect on the interests of the public or the victims in
the event of the prosecution being stopped or discontinued;
(i)
any other factor which in the opinion of the court ought to be taken
into account.
(3)
If the court finds that the completion of the proceedings is being
delayed unreasonably, the court may issue any such order
as it deems
fit in order to eliminate the delay and any prejudice arising from it
or to prevent further delay or prejudice, including
an order-
(a)
refusing further postponement of the proceedings;
(b)
granting a postponement subject to any such conditions as the court
may determine;
(c)
where the accused has not yet pleaded to the charge, that the case be
struck off the roll and the prosecution not be resumed
or instituted
de novo without the written instruction of the attorney-general;
(d)
where the accused has pleaded to the charge and the State or the
defence, as the case may be, is unable to proceed with the
case or
refuses to do so,that the proceedings be continued and disposed of as
if the case for the prosecution or the defence, as
the case may be,
has been closed;
(e)
......
(f)
.......
(4)
(a) An order contemplated in subsection (3) (a), where the accused
has pleaded to the charge, and an order contemplated in subsection
(3) (d), shall not be issued unless exceptional circumstances exist
and all other attempts to speed up the process have failed
and the
defence or the State, as the case may be, has given notice beforehand
that it intends to apply for such an order.
(b)
......
[29]
The public interest must be considered in concluding as to what is
fair. I refer to National Director of Public Prosecutions
v King
2010
(7) BCLR 656
(SCA) at paragraph [5] which was quoted with approval in
Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others
[2014] ZACC 3
paragraph [71]. According to the SCA in King,
“
(f)airness
is not a one-way street conferring an unlimited right on an accused
to demand the most favourable possible treatment
but also requires
fairness to the public as represented by the State….the
purpose of the fair trial provision is not to
make it impracticable
to conduct a prosecution. The fair trial right does not mean a
predilection for technical niceties
and ingenious legal stratagems,
or to encourage preliminary litigation – a pervasive feature of
white collar crime cases
in this country…. Courts should
further be aware that persons facing serious charges – and
especially minimum
sentences – have little inclination to
co-operate in a process that may lead to their conviction and ‘any
new procedure
can offer opportunities capable of exploitation to
obstruct and delay’. One can add the tendency of such
accused, instead
of confronting the charge, of attacking the
prosecution.”
Similar
comments were made in
S v Shaik
[2007] ZACC 19
;
2008 (1) SACR 1
(CC)
at
paragraph
[43]
where the court reiterated that
“
(i)t
(a fair trial) has to instill confidence in the criminal justice
system with the public, including those close to the
accused as well
as those distressed by the audacity and horror of crime.”
Conclusion
[30]
The Applicant has demonstrated that an inordinate delay has occurred
in the prosecution of the matter against her. The delay
is to be
placed squarely at the door of the DPP and not the Applicant as
submitted by the Respondents. The proceedings have had
a tremendous
impact upon the Applicant both psychologically and financially.
[31]
The Respondents have shown a total disregard for the Applicant’s
rights guaranteed in section 35 of the Constitution.
Furthermore the
Respondents have failed to show how the interest of justice should
prevail over the Applicant’s rights entrenched
in section 35 of
the Constitution.
[32]
In the premises the order for permanent stay of prosecution is
granted with costs as sought in the Notice of Motion.
_________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on: 13 December 2018
Order
Pronounced on: 13 December 2018
For
the Applicant: Adv DH Hinrichsen
Instructed
by: Van Onselen & Partners
c/o
Steytler Nel & Partners
For
the Respondents: Adv M Sebelebele
Instructed
by: Director of Public Prosecutions
Limpopo
Division, Polokwane