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[2017] ZAFSHC 135
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Botha and Another v National Director: Public Prosecution NO. and Others (1417/2016) [2017] ZAFSHC 135 (25 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1417/2016
In
the matter between:
JAN
HEROLD BOTHA
1
ST
Applicant
FREDERIKA
JOHANNA BOTHA
2
ND
Applicant
and
THE NATIONAL
DIRECTOR: PUBLIC
1
ST
Respondent
PROSECUTION NO.
THE DIRECTOR:
PUBLIC PROSECUTION
2
ND
Respondent
FREE STATE NO.
THE REGIONAL
MAGISTRATE KROONSTAD NO.
3
RD
Respondent
HEARD
ON:
18 August 2017
DELIVERED
ON:
25 August 2017
MHLAMBI,
J
[1]
This is an application for have to appeal to the Supreme Court of
Appeal alternatively the full bench of the Free State Division,
Bloemfontein against my judgment on the following grounds:
1. That I erred in fact
and in law:
1.1
In not find that due to the criminal investigation
dragging its feet for approximately 7 (seven) years when
the
transactions took place, constituted an abuse of process and was
pre-trial related and also due to the present unavailability
of
documentary evidence;
1.2
In finding that the above said delays were
unnecessary/over-emphasised and exaggerated; and/or
1.3
In not finding that the Applicants suffered
the
same
fate and irreparable trial related prejudice as was referred to in
Broome
v Director of Public Prosecution, Western Cape
2008 (1) SACR 178
at
par 66 to 68 and 77 to 78; and/or
1.4
In not finding that the compromise relied on
in the Applicants’ papers was not dealt with, which
justified
and served as a basis for launching the present application and/or
1.5
In finding that Applicants can properly make use
of 342A of Act 51 of 1977 in the Regional Court whilst
that section
did not relate to pre-trial related prejudice; and/ or
1.6
With reference to Naidoo v Director of Public
Prosecutions
(2003) 4 ALL SA 380
(C).
[2]
The first four grounds were traversed in my judgment and I find it
unnecessary to deal with them in this judgment. The wording
of the
fourth ground of appeal is confusing and attempts to criticise my
rejection of the compromise as a ground for the stay of
the
prosecution in paragraph 11 of my judgment. I repeat the contents of
the said paragraph for the sake of clarity:
“
In
argument, the applicants did not pursue the compromise relied on in
their papers as a ground for the stay of execution (sic).
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 basis for
the launching of this application.”
The
fifth and sixth grounds seem intertwined especially in view of the
contentions made on behalf of the applicants which I shall
deal with
hereunder.
[3]
Mr Van Wyk, on behalf of the applicants, requested that the appeal to
the Supreme Court of Appeal be granted to enable
that court to
decide and bring about uniformity to the conflicting decisions
delivered in Kwazulu-Natal, the Western Cape
and now the
Free State in respect of whether the magistrate’s court is
vested with jurisdictional authority to entertain
and determine an
application for a permanent stay of prosecution on the basis of a
delay in the institution of criminal proceedings.
He submitted that
there were two conflicting decisions viz,
Director
of Public Persecutions Kwazulu Natal v Regional Magistrate, Durban
and Another
2001 (2) SACR 463
(N)
in which it was held that the regional magistrates’ court did
have jurisdiction and
Naidoo
v National Director of Public Prosecutions
2003 4 ALL SA 380
(C)
in which the opposite view was expressed. He opined that the Free
State Division, through my judgment, had followed the Kwazulu-
Natal decision in that the applicant had not made use of the
provisions of section 342 A of the Criminal Procedure Act in
the
regional courts. He correctly pointed out that the authors, Du Toit
et Alii were in favour of the decision in Naidoo in their
book:
Commentary on the Criminal Procedure Act Volume… on page...I
agree with the submissions made that this judgment is
well reasoned
and especially the interpretation of section 170 of the Constitution
and its application to the given facts. However,
it does not assist
or take the the applicants’ case any further as shown below.
[4]
In paragraph 12 of my judgment, I remarked that the applicants never
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 of 1977 in the regional court before
filing this application to this court. The
criminal case served
before the lower courts since September 2014 until the filing of the
application for the permanent stay of
prosecution in the High Court
on 9 March 2017. The thrust of the remark was an indication that,
during the various appearances
in the lower courts, at no stage did
the appellants bring it to the court’s attention that the
completion of the proceedings
were being delayed unreasonably so that
the court could eliminate the delay and any prejudice arising
therefrom within the context
of section 342 A (3)(a)-(c). The
question whether the magistrate had the jurisdiction to deal with the
application for the permanent
stay of the prosecution at first
instance was not considered.
[5]
Paragraph 37 of the applicants’ replying affidavit to the
application to stay the prosecution reads as follows:
“
The
basis for my application is set out in my founding affidavit and is
to (sic) fold, not only the compromise accepted but also
the
prejudice me and the other accused would suffer being compelled to
defend ourselves eight years after the alleged offences
without any
sought documents to prepare and to hand in as exhibits to proof (sic)
our innocence. Therefore the paragraph is denied.”
Paragraph
10.5 of the founding affidavit, as reflected in my judgment on page 3
stated the following:
“
My
moeder het eiendomme verhandel vir ‘n bedrag van ongeveer R 1.8
milijoen (sic) ten einde die kompromis aanbod te befonds,
en sou
derhalwe nie voorgemelde godoen het, indien sy geweet het dat ek en
die mede beskildigde strafregtelik aangekla sou word
nie.’
[6]
During the period 19 March 2015 and 26 October 2015 (as indicated by
the correspondence addressed to the State prosecutor and
State
Advocate by the applicants’ attorney of record and attached to
the founding affidavit as annexures “H”
and “I”)
representations and express requests were made that “
a
party that had reached a compromise should not be allowed to invoke
and abuse the criminal system and consequently become an extension
of
the creditor/complainant. The prosecutor should adhere to the terms
of the compromise and the agreement reached by all the parties
and
wherewith all the parties were unconditionally satisfied.”
(translation). It was therefore clear in my mind that the applicants’
stance was not that their prosecution was unnecessarily
delayed nor
their constitutional rights unnecessarily and unfairly prejudiced,
but that they did not want to be prosecuted at all.
[7]
Despite the grounds contained in the notice of application for leave
to appeal, the main thrust of Mr Van Wyk’s argument
was focused
on the matter of jurisdiction and the different approaches of the
Divisions in this regard; hence his argument
that the matter be
referred to the Supreme Court of Appeal. In my mind this argument is
misplaced as the ruling and the
ratio
of my decision was not based on jurisdiction but on the merits as
more fully set out in paragraphs 8-12 of the judgment.
[8]
I am therefore not persuaded by Mr Van Wyk’s argument that this
matter deserves either the attention of the Supreme Court
of Appeal
as suggested or the full bench of the Division as I am of the opinion
that the appeal would not have a reasonable prospect
of success. I
therefore make the following order.
ORDER:
The
application for leave to appeal is dismissed
_____________
JJ
MHLAMBI, J
Counsel
for Applicant: Adv.
Van Wyk SC
Instructed
by:
Symington and De Kok Attorneys
BLOEMFONTEIN
Counsel
for Respondents: Adv BS Mene
Instructed
by:
State Attorneys
BLOEMFONTIEN