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[2017] ZAFSHC 58
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Botha and Another v National Director of Public Prosecutions and Others (1417/2016) [2017] ZAFSHC 58 (23 March 2017)
I
N
THE
H
I
GH
COURT
OF SOUTH AFRICA,
FREE
STATE D
I
VISION, BLOEMFONTEIN
Case
number: 1417/2016
In
the matter between:
JOHAN
HEROLD BOTHA
1
st
Plai
n
tiff
FREDERIKA
JOHANNA
BOTHA
2
nd
Plaintiff
and
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
1
st
Respondent
THE
DIRECTOR OF PUBL
I
C PROSECUTIONS, FREE
STATE
2
nd
Respondent
THE
REG
I
ONAL MAG
I
STRATE,
KROONSTAD
3
rd
Respondent
HEARD
ON:
09 MARCH 2017
JUDGMENT
BY:
MHLAMBI, J
DEL
I
VERED
ON:
23 MARCH 2017
[1]
The applicants approached the court for an order on the following
terms:
1.That
the respondents be prohibited from:
1.1
Prosecuting
the
applicants
on
the pre
sent
charges; and/or
1.2
Leading and/or hearing evidence of whatsoever nature and
not to proceed with the trial;
2.
Costs of the application
3.
Further and/or alternative relief.
[2]
The application is opposed on the grounds that, firstly, the court
lacked jurisdiction to entertain the application. Secondly,
neither
trial-related prejudice nor extra-ordinary circumstances existed that
warranted the court to grant relief that was as drastic
as a
permanent stay of prosecution.
[3]
Both applicants were members of the Parys Hoeveld Motors CC, a closed
corporation duly incorporated and registered in accordance
with the
Close Corporations Act, Act 69 of 1984 and conducted the business of
a car dealership at 75 Dolf Street, Parys. Having
experienced hard
times, the closed corporation filed for liquidation and was placed
under a final winding up order on 23 October
2008.
[4]
Both applicants stood arraigned on various charges of theft, money
laundering and fraud under case number 102/1112008 in the
Regional
Court held at Parys, arising out of transactions and events that took
place during 2007 and 2008. Mr J.A Van Aswegen of
the firm Theron,
Jordaan and Smith Incorporated, Kerksdorp, acted on behalf of the
applicants in the liquidation application; the
representations made
to the prosecution for the reconsideration of the decision to
prosecute the applicants and the appearances
in the regional court
now being held at Kroonstad.
[5]
The grounds upon which the applicants' application is based are the
following:
5.1
The criminal investigation dragged its feet for approximately seven
(7) years since the transactions took place. This constituted
an
abuse of process and is a trial-related prejudice due to the
unavailability of documentary evidence. The
above are against the presumption of innocence. In this
regard the deponent stated in para 10 of the founding
affidavit:
"10.
Derhalwe is dit duidelik dat ek en die 2de Applikant as volg benadeel
sal word, sou die vervolging voortgaan:
10.1
Dit is bykans 8 (AGT) jaar na die likwidasie van Parys Hoeveld Motors
BK en klagtes gele is;
10.2
Dit is dan ook bykans 5(VYF) jaar na Kaptein Goosen my in kennis
gestelhet van die beweerde klagtes;
10.3
Alle brondokumente wat my verweer en antwoorde teen die beweringe en
mede beskuldigde kan weerle, is verlore en/of vernietieg,
deur die
skuldeisers en/of hul gevolgmatigdes (wat die likwidateur insuit). Ek
en die mede Applikant het geensins bygedra tot die
vertraging en/of
verlies van dokumente nie.
10.4
Derhalwe is dit uiters onbilik en inteendeel druis
dit teen my Fondamentele en Konstituele regte in
om te verwag dat ek
nou in 'n verhoor, my en die mede Applikant moet verweer sander dat
my bewyse en dokumente aan my beskikbaar
gestelword, en sal ons
geensins ons reg op kruisverhoor volledig kan uitvoer nie.
10.5
My moeder het eiendomme verhandel vir 'n bedrag van ongeveer R 1.8
milijoen ten einde die kompromis aanbod te befonds, en sou
derhalwe
nie voorgemelde godoen het, indien sy geweet het dat ek en die mede
beskuldigde strafregtelik aangekla sou word nie."
[6]
The respondents contend that this application should be entertained
by the Regional Court at Kroonstad:
Wild and
another
vs
Heffert
NO. and
others
1
998
(3)
SA
695
(CC)
paragraphs 32-35. That Court, they argued,
would have the authority to consider any matter of a trial-related
prejudice when evaluating
the evidence and ameliorating it with the
appropriate order which could include ruling evidence
inadmissible or
an acquittal.
E
l
eveld
and
Another
vs
Mabile
and
Another
2013 ZAGPHC
83
at
paragraph
70;
S vs
Naidoo
2012 (2)
SACR
1
26
paras
32
33;
Bothma
vs
E
l
s
and
others 2010 (2) SA
CCC)
at paras
81
,
82
and
84.
To bar the prosecution before the trial
begins, is far-reaching. It indeed prevents the prosecution from
presenting society's complaint
against an alleged transgressor of the
society's rules of conduct. That will seldom be warranted in the
absence of a significant
prejudice to the accused;
Sau
n
derson
vs.
Attorney-General,
Eastern Cape
1
998 (2)
SA
38
(CC);
Naidoo,
supra at
para
46
and
Bot
h
ma,
at
para 68.
I
agree with this exposition.
(7)
Section 342 A of the Criminal Procedure Act, No
51
of
1
9
77
provides as follows:
"(1)
A court before which criminal proceedings are
pending shall investigate any delay in
the
comp
l
etion of
proceedings which appear 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
witnes
s
.
(2)
I
n
considering the question whether any delay
i
s
u
nreasonable, 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 de
l
ay
,
including
a
weakening
of
the
qual
i
ty
of
evidence,
the
possible
death
or disappearance or
non-availability
of
witnesses,
the
l
oss
of
evidence
and considerations of
costs;
(g)
The effect of the delay on the admi
n
i
stration
of justice;
(h)
The
adverse
effect
on
the
i
nterests
of the
public or the victims
in the event
of the
prosecution
being stopped or
discontinued;
(i)
Any other factor which in the opi
n
i
on
of the court ought to be taken i
n
to
account.
(3)
I
f the
court
finds
that
the
com
p
l
etion
of
the
p
roceedings
i
s
being
delayed unreasonably,
the court may issue any
such order
as it deems
fit
i
n
order to eliminate the delay and
any
prejudice arising
from
i
t
or
to prevent
further
delay
or prejudice,
i
ncluding
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 no 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-genera
l
;
(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
proceedi
n
gs
be continued and disposed of as if the case for the prosecution or
the defence
,
as
the case may
be,
h
as
been closed
;
(e)
That-
(i)
The
State
shall
pay
the accused
concerned the
wasted
costs
incurred
by
the
accused
as
a
result
of
an
unreasonable
delay
caused
by
an
officer
employed
by the state;
(ii)
The accused or his or her
l
egal
adviser, as the case may be, shall pay the State
the
wasted
costs
incurred
by
the
State
as
a
result
of
an
unreasonable delay caused by the accused
or
his or her legal adviser, as the case may be; or
(f)
That the matter be referred to the appropriate
authority for an admi
n
istrative
investigation
and possi
b
le
discipli
n
ary
action
against
any person
responsi
b
le
for the delay.
[8]
If regard is had to the provisions of section 342 A (2) and applying
them to the matter at hand, the delay appears to be unnecessarily
over-emphasised and exaggerated. The applicants were aware as early
as 06 July 2011 of the possible charges that were investigated
against them. They appeared in the Regional court on 3 September
2014. The First and Final liquidation and Distribution Account
was
filed of record on 20 February 2013 and the matter was considered
closed as per the Certificate of Discharge from the Master
of the
Free State High Court dated 20 February 2013. Permission was granted
for the destruction of all books and documents in the
Liquidator's
possession on 02 April 2013 by the Master. Paragraph 3 of the letter
from the Master dated 2 ApriI 2013 is to the
effect that:
"it
i
s suggested
that
the
document which the Liquidator may require
for the execution of future duties be retained
e.g.
to
assist
the authorities
in
the case
of
a
prosecution,
etc."
[9]
The offences being investigated against the applicants as at July
2011 were fraud, forgery and uttering at Hoeveld Motors, Parys.
The
applicants gave the impression to the clients that the motor vehicles
for the period 1 January 2007 to 1 December 2008 were
fully paid for
whilst in truth they were not. The applicants had the same legal
representative throughout. Approximately two years
before the
Liquidator destroyed his file, the applicant knew the nature of the
charges that they could possibly face.
[10]
In support of their submission of the existence of irreparable
trial-related prejudice, the applicants rely on
Broome vs
Director of Public Prosecution, Western
Cape
2008
(
1
)
SACR
1
78 at para 66-68
and 77-78.
In my view this matter
is distinguishable from the matter at hand as
the State, in the
Broome case, had seized a
substantial part of the audit working papers from the
accused's
audit firm. Similarly, a reference to
Bothma,
supra
at para 75 ,suffers the same fate. In the latter
case, the State was responsible for the loss of
documents
instrumental to the applicants'
defence. The applicants had provided a detailed exposition of the
material that
was missing and a full explanation of the significance
of the working papers; which the applicants in the present
case
failed to do. Having regard to all of these
factors, I am of the view that the lapse of time and the
unavailability
of the documents as alleged by the applicants, will
not lead to the applicants suffering irreparable trial-related
prejudice.
[11]
In argument, the applicants did not pursue the compromise relied on
in their papers as a ground for the stay of execution.
I shall
therefore not deal with this aspect thoroughly save to state that,
even if they did, it would not have justified or served
as a basis
for the launching of this application.
[12]
I therefore come to the conclusion that the circumstances of this
application do not warrant the court to grant a permanent
stay of
prosecution. It was argued on behalf of the respondents that this
matter was postponed on 17 November 2016 to enable the
applicants to
supplement their papers, and consequently they should be held liable
for the costs. On a question from
the
bench,
i
t
appeared
that
the
appl
i
cants
n
ever
at
any
stage
made
use
of
or
employed
some of the steps as set out in section 342 A 3(a) - (c) of Act
51/1977
i
n
the
regional court before
filing
th
i
s
application
to
th
i
s
court. Even
though
the
Superior
Courts
are
at
times reluctant
to
make
an
adverse
costs
order
against
applicants
who
seek
to
assert
their
constitutional rig
h
ts,
I
h
old
the
view
that
in
the
given
set
of
circumstances,
an
appropriate
costs
order
is
warranted.
Consequently I make
the
following
order:
The
application is dismissed with costs.
_________________________
J.J.
MHLAMBI, J
On
behalf of the Applicant:
Adv. Knoetze
I
nstructed
by:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of
1st
Respondents:
Adv.
BS
Mene
I
nstr
u
cted
by:
State Attorney
BLOEMFO
N
TEIN