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[2017] ZAFSHC 160
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Sithole and Others v S (25/2016) [2017] ZAFSHC 160 (12 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Case
number: 25/2016
In
the matter between:
EDDIE
SITHOLE
Applicant
AND
OTHER APPLICANTS
and
THE
STATE
Respondent
DATE
OF DELIVERY:
12
SEPTEMBER 2017
JUDGMENT:
[1]
I have to adjudicate an application for my recusal as well as two
applications for leave to appeal. Mr Omar appears for
three of
the applicants to whom I shall refer as accused 1, 10 and 12.
Mr Steenkamp appears for accused 2, 3, 4, 5, 6, 7
and 11. The
other accused did not file similar applications and there is no
appearance on behalf of them. The orders
that I made during a
pre-trial procedure are the subjects of dissatisfaction.
[2]
I heard the applications this morning and as the third term
terminates tomorrow, I undertook to deliver judgment tomorrow, to
wit
Friday 22 September 2017. I made use of excessive quotations,
unlike the norm and my usual practice, but I did so as
I had to
personally type this judgment during the night due to time
constraints and unavailability of typists. In order to
put the
reader in the picture I refer to my ruling delivered on 9 June 2017
which is set out fully in the next paragraph.
In the following
paragraph the additional orders given on the same day are set out.
I shall explain those
infra.
[3]
The following is my ruling of 9 June 2017, having considered two
applications to compel the State to file further particulars:
“
[1]
A detailed indictment was served on all thirteen accused in terms
whereof they
are charged with various offences. Accused 1 to 5
are charged with contravention of s 2(1)(f) read with various other
sections
of the Prevention of Organised Crime Act, 121 of 1998
(“POCA”) insofar as it is alleged that they have managed
an enterprise
conducted through a pattern of racketeering
activities.
[2]
All thirteen accused are also charged with contravention of s 2(1)(e)
read with several other sections of POCA insofar as it is alleged
that they conducted or participated in an enterprise through a
pattern of racketeering activities.
[3]
All thirteen accused are also charged with theft
in respect of counts 3 to 43, the
precise details which have been set
out in the indictment read with annexure A thereto and the total
value of the unwrought gold
or gold bearing material involved is
R544 904.92. In terms of counts 44 to 84 all
thirteen accused are charged
with contravention of s (4)(1) of the
Precious Metals Act, 37 of 2005
, insofar as they allegedly acquired,
possessed or disposed of the unwrought gold or gold bearing material
mentioned in counts 3
to 43 and detailed in annexure A to the
indictment. In terms of counts 85 to 125 all thirteen accused
are charged with contravention
of
s 13
of the
Precious Metals Act, 37
of 2005
in that they unlawfully transported the unwrought gold or
gold bearing material mentioned above. In terms of counts 126
to
166 all thirteen accused are charged with contravening
s 4(a)
and/or 4(b) read with
ss 1
and
8
of POCA, to wit money laundering.
[4]
I wish to make it clear from the onset that a reading of the
indictment
and summary of substantial facts will enable any
reasonable lawyer specialising in the field of criminal law to
understand the
magnitude and gist of the charges to enable him or her
to fully explain the various statutory provisions and common law
principles
to his or her clients. It is very seldom that one
finds such detail in indictments and summaries of substantial facts.
[5]
The matter was transferred from the Regional Court to the High Court
and
the Judge President of this division decided that pre-trial
proceedings be instituted in accordance with the criminal trials
practice
directive. The Honourable Judge President Molemela
presided over the first pre-trial proceedings on 3 May 2016 and
inter
alia
stated
ex facie
the
transcript of the proceedings that “it is in the interest of
everybody for the trial to be finalised as soon as possible”.
At that stage a Mr Mokhele appeared for accused 1, 10 and 12, Mr
Steenkamp for accused 2 and 5, Mr Coetzee for accused 3, 4, 6,
7 and
11 and Mr Nel for accused 13. Mr De Nysschen appeared on behalf
of the Director of Public Prosecutions and still represents
the
State. The Honourable Judge President already at that stage
indicated that the pre-trial was postponed to 29 June 2016,
that it
would hopefully be the last pre-trial on which date a trial date
would probably be given.
[6]
On 29 June 2016 Mbhele J acted as presiding officer in the pre-trial
proceedings.
A voluminous request for further particulars was
filed at the DPP’s office two days earlier, i.e. on 27 June
2016.
It comprised of 68 pages. Apparently there was also
a problem insofar as Mr Steenkamp who asked for further particulars
on
behalf of accused 2, 3, 4, 5, 6, 7 and 11 at that stage, could not
open and read the CD sent to him. The matter was adjourned
to
13 September 2016.
[7]
I do not have a transcript of the proceedings of 13 September 2016,
but
it is apparent that during August 2016 the DPP responded to Mr
Steenkamp’s request and filed further particulars in terms
of s
87(1) of the Criminal Procedure Act. The State did not answer
each and every question put in the 68 page document.
Mr De
Nysschen directly responded to some questions, but in essence
referred the accused to six annexures prepared on behalf of
the DPP,
to wit (i) an Information Summary as annexure A, (ii) a Link Analysis
Report as annexure B, (iii) a Docket Number with
corresponding Count
Number Summary as annexure C, (iv) an Involvement Indicator as
annexure D, (v) a Link Analysis Chart as annexure
E and (vi) Call
Records as annexure F. This information was sent
electronically, but also provided in hard copy. The
court was
also provided with a CD as well as files containing hard copies of
the further particulars with annexures.
[8]
The response by the State triggered an application to compel further
particulars
and disclosure by Mr Steenkamp on behalf of the aforesaid
accused which is dated 5 September 2016.
[9]
The matter was to the best of my knowledge not argued but postponed
to
1 February 2017 for argument. On that day my colleague,
Mhlambi J could not entertain the application as one of the accused
was known to him. Consequently the matter was postponed to 24
May 2017 and allocated to me. I wish to reiterate that
this
remains pre-trial proceedings, but I’m well aware of the fact
that I have to make a ruling in respect of the application
by Messrs
Steenkamp and Omar on behalf of their clients.
[10]
When I prepared for argument I was not aware of any request for
further particulars
on behalf of any of the other accused and/or an
application by them to compel the State. To my surprise Mr Omar
joined the
group of legal representatives who visited my chambers
prior to going into court. At that time I was not in possession
of
any documents drafted by him and was quite perplexed as to his
presence. It became clear soon after I have entered the court
that Mr Omar had in fact served a request for further particulars on
the State and also prepared and served a notice to compel.
These documents were to the best of my knowledge never filed with the
court and none could be found in the court file. Mr
Omar blamed
the State for not ensuring that the court file was properly indexed
and paginated, but it must be borne in mind that
the accused as the
applicants in the application should have seen to it that the court
file was in order. Mr Steenkamp did
the necessary in regard to
his application.
[11]
During argument I received the particular documents from Mr Omar.
It appeared
that he on behalf of accused 1, 10 and 12 requested
further particulars as long ago as 3 October 2016 and that a notice
in terms
of s 87 to compel the State was served on the DPP on 3
February 2017. I was also handed a letter from Mr Omar dated 3
February
2017 to Mr De Nysschen wherein he
inter
alia
commented as follows:
“
Please
find attached hereto notice in terms of section 87 of Act 51 of 1977.
We
acknowledge receipt of a bundle of documents from yourself.
According to your email dated 11 October 2016 these documents
are
further particulars in accordance with our request for further
privileged dated 3 October 2016.
After
a lengthy study, it is apparent that these documents were simply put
together on the eleventh hour to satisfy the accused
and the court
that your offices have complied with its obligation to supply further
particulars in terms of Act 51 of 1977.
Further,
we note that after a lengthy study of the huge bundle of documents,
it is apparent that none of these documents relate
to our client.”
[12]
It must be regarded as a fact that the State did not specifically
respond to Mr Omar’s
request for further particulars, but
merely referred him to the further particulars with annexed documents
provided to Mr Steenkamp.
However, as will be pointed out
infra
the
annexures relied upon by the State clearly set out the involvement of
all the accused and not only Mr Steenkamp’s clients.
I
shall deal with this issue in further detail
infra
.
[13]
Mr Omar submitted that the pre-trial procedure was premature. I
also understood
him to say that pre-trial procedures in criminal
cases are not statutory authorised like pre-trial procedures in civil
matters.
He actually questioned the validity of the procedure
embarked upon. A criminal trial practice directive has been
issued which
shall apply to all criminal trials to be heard in the
High Court. In terms hereof criminal trials shall be preceded
by a
pre-trial conference conducted in terms of the practice
directive, the purpose being to limit and/or minimise delays in the
prosecution
of criminal matters.
[14]
The whole idea with pre-trial conferences is to ensure that all
preliminary issues
are being dealt with so that when the matter is
allocated for trial, it shall start and be finalised without the
necessity to sort
out
in
limine
or preliminary issues. This matter should have been allocated a
trial date long ago, but I have a distinct impression that
there is
no common intention to get on with the trial.
[15]
Section 87 of the Criminal Procedure Act provides that an accused may
at any stage
before any evidence in respect of any particular charge
has been led in writing request the prosecution to furnish further
particulars
of any matter alleged in the charge, and the court before
which a charge is pending may at any time before any evidence in
respect
of the charge has been led, direct that particulars or
further particulars be delivered to the accused of any matter alleged
in
the charge and may, if necessary, adjourn the proceedings in order
that such particulars be delivered. In determining whether
a
particular is required or whether a defect in the indictment before a
superior court is material to the substantial justice of
the case,
the court may have regard to the summary of the substantial facts.
In
casu
a trial date has not even agreed upon and the parties are still at
loggerheads as to whether further particulars or better further
particulars should be provided. Mr De Nysschen has indicated
that if no admissions are made, which on all probabilities appears
to
be the case if I consider the present stance of the defence parties,
a year would be required to finalise the trial.
[16]
As mentioned I read the indictment and summary of substantial facts
and I also perused
the further particulars with annexures contained
in the CD as well as the files with hard copies of the documents
relied upon by
the State as its further particulars.
[17]
I have also been advised that all witness statements and other
documentation, including
video footage, have been presented to Messrs
Steenkamp and Nel at their request, but that Mr Omar has not to date
hereof requested
copies of the dockets and video material to be
relied upon by the State. Obviously he is entitled thereto and
this does not
form part of further particulars in terms of s 87.
[18]
During argument it transpired that Mr Omar was in possession of two
files with sub
files marked with different colours. These
appeared to be exactly the same as the files presented to the court
earlier which
I kept in my chambers. When I enquired from Mr
Omar whether he received the further particulars of the State
presented to
Mr Steenkamp with the 6 annexures referred to
supra
,
he denied it. When Mr De Nysschen wanted to have access to the
two files in possession of Mr Omar in order to show that
these files
indeed contained the documents sent to Mr Steenkamp as part of the
further particulars and provided to Mr Omar’s
correspondent in
February, Mr Omar became highly upset.
[19]
I have now been provided with an affidavit by Mr De Nysschen and
confirmatory affidavits
by attorneys HS Badenhorst and B Janse Van
Rensburg of Roma Badenhorst Attorneys in Virginia. These
documents confirm that
Mr Badenhorst appeared on behalf of accused 1
as Mr Omar’s correspondent on 13 September 2016. He was
handed two files
and a CD containing further particulars drafted at
the request of Mr Steenkamp. The CD contained the same
information as
the hard copies in the files and I confirm that upon
perusal this is my recollection as well. Mr Badenhorst
neglected to
take the two files that day. However, the CD was
sent by him via courier to Mr Omar’s offices immediately.
When
the matter was postponed on 1 February 2017 Ms Janse Van
Rensburg attended court on behalf of Mr Omar and took possession of
the
two mentioned files containing hard copies of the further
particulars. These files were handed to the first accused, Mr
Sithole
who signed for the documents on 1 February 2017. I
therefore accept for purposes hereof that Mr Omar did in fact receive
the CD and hard copies which reflect the State’s further
particulars and annexures thereto and which were provided in response
to Mr Steenkamp’s request. No doubt, Mr Omar’s case
is that there was no response whatsoever to his request for
further
particulars and he submitted that it was unacceptable that Mr De
Nysschen could merely respond by email as he did.
[20]
I do not agree with Mr Omar’s submission that upon perusal of
the documents
provided to him he could find no relevance pertaining
to his clients. The information set out in annexures A –
F gives
a clear picture of the alleged involvement of all the accused
pertaining to the specific docket numbers and how they are linked
together as alleged members of the enterprise or syndicate.
Much more information has been provided as could have been expected.
Having said this, I am of the view, bearing in mind the authorities
mentioned
infra,
that
the accused should have been satisfied with the information provided
in the indictment, read with the summary of substantial
facts.
[21]
Each and every accused person has a right to a fair trial as set out
in s 35(3) of
the Constitution which right
inter
alia
includes
the right to be informed of the charge with sufficient detail to
answer it, to have adequate time and facilities to prepare
a defence,
to have the trial begin and complete without unreasonable delay, to
be presumed innocent, to remain silent and not to
testify during the
proceedings and to adduce and challenge evidence.
[22]
Mr Steenkamp submitted that he will have difficulty to prepare for
trial and his
clients will have difficulty to plead in the
circumstances, causing a negative effect on their right to a fair
trial. He
submitted that it would not be possible to test
evidence in cross examination as the charges are complicated and the
State should
not be allowed to shower accused with dockets and
numerous documents instead of answering a request for further
particulars directly.
He also wanted to know how he should be
expected to explain to his clients their alleged involvement in a
technical aspect such
as racketeering. According to him simple
questions were asked, inviting simple answers, which he did not
receive. An
accused person may certainly not understand the
provisions of Poca and aspects such as an “enterprise”
and “racketeering.”
That is the reason why they
obtain legal advice and are being represented in a court of law by
legal representatives, instead of
trying to manage their own criminal
cases. Poca has been part of our law for many years and every
lawyer specialising in
criminal law should by now have taken
cognisance of this Act, and if not, should not take instructions to
defend accused persons
confronted with Poca.
[23]
I have referred to the comprehensive indictment and summary of
substantial facts
and confirm that I am of the view that the two
essentials that must be set forth, to wit the offence and particulars
as to time,
place, person and property have been set out reasonably
sufficient to inform the accused of the nature of the charges.
S
ee
In re R
v Masow
1940 AD 75
at 91
and
Hiemstra’s
Criminal Procedure,
2016
ed, p 14-9. As said in
S
v Hugo
1976
(4) SA 536
(A), the heart and soul of a charge is that it has to
inform the accused of the case the State wants to advance against
him.
That is what fairness requires and what is now expressly
required in s 35(3)(a) of the Constitution.
[24]
In my view the State’s case has been fully explained in the
indictment and
a comprehensive summary of substantial facts.
All relevant and material facts have been canvassed in detail.
It must
also be remembered that the accused have received copies of
the relevant witness statements and other documents (at least the
clients
of Messrs Steenkamp and Nel) and that Mr Omar can obtain
these on request. The rights of the accused are not absolute as
there are boundaries and limitations. See:
Hiemstra
supra,
p 21-3 with reference to
Shabalala
and Others v Attorney General of Transvaal and Another
[1995] ZACC 12
;
1996
(1) SA 725
(CC). The purpose of further particulars is to
inform accused persons of the case which is to be brought against
them so
that they can prepare their defence. In order to
establish whether further particulars as requested should be
provided, the
indictment must be considered to establish whether
sufficient information has been given to the accused. I quote
the following
from
Hiemstra,
supra
,
p 14-21:
“
Several
tests have been designed, such as whether
1.
a refusal
will prejudice the accused;
2.
the giving
of the particulars is in the interest of justice; and
3.
it is
pertinent to the points in issue.
Ultimately
the question is whether the accused reasonably needed the
information. On appeal the court will only investigate
whether
a refusal of particulars prejudice the accused.”
[25]
In my view it was unnecessary for the State to supply further
information pertaining
to the indictment and summary of substantial
facts. However the State provided further particulars at the
request of Mr Steenkamp
and alerted Mr Omar thereto as well. I
reiterate that my perusal thereof indicates the following: The
Information Summary
(annexure A) is a breakdown of each of the 46
dockets and the involvement of each accused and their associates.
The Link
Analysis Report (annexure B) is a breakdown of each
accused’s involvement with each other as well as other
individuals.
The different dockets are numbered from 1 to 46
and the corresponding numbers are indicated in annexure C. The
Link Analysis
Report summarises the contact between the role players,
whether by cell phone, or through vehicles or property. This
information
presents the State’s whole case and the accused
cannot be better informed of the case against them as set out herein.
Mr
Omar’s submission that he could find nothing of relevance
pertaining to his clients is untenable. Annexure C is a summary
of docket numbers and corresponding charge numbers. Annexure D
is an Involvement Indicator. Again, it identifies the
syndicate
members and their involvement with each other. Annexure E is a
Link Analysis Chart and annexure F is a summary
of all cellular
contact between the accused and the associates and other individuals
on relevant dates and time.
[26]
I am satisfied that the information requested by Mr Steenkamp as well
as Mr Omar
with reference to the particular questions might be
ignored as the requests fall squarely within the ambit of a gunshot
approach
as set out in
R
v Moilwanyana(3)
1957
(4) SA 608
(T) at 617D-H
.
As mentioned in
Hiemstra,
p
14-24: “These days it may also be sensible for the court in
assessing the need for the requested particulars to take into
account
witness statements which have been given to the defence. The
court can refuse a request if the record discloses the
state’s
case sufficiently”.
[27]
As stated in
S
v Chao and Others
2009
(1) SACR 479
(C) par 31, courts must guard against the abuse of s 87
where the accused’s aim is not to advance the proper
administration
of justice, but rather to obfuscate the issues.
The court should assess whether adequate information has been given
to the
defence with regard to the following questions:
a.
Does the
accused need the information to answer to the charge?
b.
Would a
refusal to give the particulars prejudice the accused? and
c.
…
.
d.
What does
the interest of justice dictate?
See
Hiemstra,
p
14-24.
[28]
The purpose of a request for further particulars is not to allow the
accused to search
for possible loopholes or defences apart from the
true facts and/or instructions given to legal representatives by the
accused.
As mentioned in
National Director of Public
Prosecutions v King
2010 (2) SACR 146
(SCA) at par [5]: “There
is no such thing as perfect justice - a system where an accused
person should be shown every scintilla
of information that might be
useful to his defence” and “Fairness is not a one-way
street conferring an unlimited right
on an accused to demand the most
favourable possible treatment.” Harms DP emphasised in
the same paragraph that 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. To the contrary:
courts should within
the confines of fairness actively discourage
preliminary litigation.” It is unnecessary for the State
in casu
to answer the countless questions which are either
wholly irrelevant or the answers of which appear from the indictment
and/or
the further particulars already supplied.
[29]
I am satisfied that the information provided by the State as its
further particulars
is such that the accused cannot complain that
they will not have a fair trial. It is not correct to argue
that the accused
have to peruse thousands of pages in order to
establish what is the State’s case. Also, the accused
were not merely
referred to the witness statements, but they received
detailed summaries and explanations of the allegations pertaining to
all
charges.
[30]
Although the State did not pertinently respond to the request for
further particulars
of Mr Omar, I’m satisfied that, over and
above the detailed indictment and summary of substantial facts, the
further particulars
presented to him is sufficient to properly
prepare for the trial.
[32]
Therefore the following orders are made:
1.
The
application by Mr Steenkamp on behalf of accused 2, 3, 4, 5, 6, 7 and
11 to compel the State to supply further particulars and
disclosure
is dismissed.
2.
The
application by Mr Omar on behalf of accused 1, 10 and 12 to compel
the State to supply further particulars is dismissed.
3.
The
pre-trial conference is adjourned for 15 minutes and the parties are
directed to agree on trial dates, failing which the DPP
as
dominus
litis
shall
provide me with trial dates during the fourth term 2017 or the first
term 2018 for the matter to be postponed accordingly
for trial.”
[4]
The following additional orders were made on 9 June 2017:
“
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
At
Bloemfontein on the 09 June 2017
Before
the Honourable Judge
DAFFUE
In
the matter between:
THE
STATE
VS
EDDIE
SITHOLE AND 12 OTHERS
ACCUSED
Having
considered the sentence and other documents which were handed in and
after having heard the Advocate for the State and the
Advocate for
the accused.
IT
IS ORDERED THAT:
By
agreement the matter is set down for hearing from 29 January 2018 to
30 March 2018.
Mr
Omar and Mr Steenkamp, the legal representatives acting on private
instructions, from their clients, shall inform the office
of the DPP
and the registrar of the High Court, not later than 25 November
2017, in writing, whether or not they have been fully
covered in
respect of their fees for the above period, failing which it will be
deemed that they will appear at the trial during
the first term of
2018.
In
the event of Mr Omar and/or Mr Steenkamp not being placed in funds
by the aforesaid date, that is 25 November 2017, the particular
accused shall immediately apply for legal aid and provide the DPP
and the registrar of the High Court with proof of their
applications,
failing which they are called upon to advance reasons,
not later than 10 December 2017, why their bail shall not be
withdrawn.
This
order shall be faxed and/or emailed to Messr Omar and Steenkamp
forthwith.
BY
ORDER OF THIS COURT.”
It
should be mentioned that two mistakes appear from the order signed by
the registrar. Firstly, the matter was heard in Virginia
and
not Bloemfontein. Secondly, the preamble to the order is
wrong. Mr Steenkamp conceded today after listening to
the
recording (neither he, nor Mr Omar was present on 9 June 2017
although the accused were there and Adv Pieter Nel stood in for
Mr
Steenkamp), that I never mentioned a word about “sentence”.
In fact I considered the two applications to compel
the State to file
further particulars and the arguments on behalf of all three
representatives, Adv De Nysschen on behalf of the
State and Messrs
Omar and Steenkamp on behalf of the accused whereafter I reserved
judgment and eventually delivered it on 9 June
2017, the date to
which I postponed the matter for judgment. Adv Nel on behalf of
accused 13 was present during argument
and on 9 June 2017, but his
client did not launch a similar application.
[5]
The whole idea with pre-trial conferences is to ensure that all
preliminary issues are being dealt with so that when the matter
is
allocated for trial, it shall start and be finalised without the
necessity to sort out
in
limine
or preliminary issues.
[6]
Norms and Standards issued by the Chief Justice of South Africa apply
to the judiciary. Paragraphs 5.2.4 (relating to
case flow
management) and 5.2.5 (dealing with finalisation of matters before
judicial officers) are relevant. The speedy
finalisation
of all matters is an objective and judicial officers must “
take
active and primary responsibility for the progress of cases from
initiation to conclusion to ensure that cases are concluded
without
unnecessary delay
.”
Pre-trial conferences must be held
“
as
early and as regularly as required to achieve the expeditious
finalisation of cases”
.
Judicial officers must ensure that there is “
compliance
with all applicable time limits.”
Another
objective is that judicial officers shall strive to ensure that every
accused person pleads to the charge within 3 months
of first
appearance in the Magistrates’ court and to finalise criminal
matters within 6 months after the accused has pleaded
to the charge.
[7]
When I received the application for my recusal prepared by Mr Omar I
requested my secretary to inform all the parties that although
trial
dates have been allocated, there was no indication that the trial
would be allocated to me by the Judge President.
It is her
prerogative and the allocation of judges for the next term is usually
made by the end of the previous term only.
I therefor indicated
that the application was premature.
[8]
Mr Omar insisted that the application for recusal be argued and I
allowed him accordingly. He submitted that if I recuse
myself
or if another court later find that I should have recused myself, all
orders made by me would become a nullity. I
wish to emphasise
that neither Mr Omar, nor Mr Steenkamp at any stage attacked my
ruling of 9 June 2017 pertaining to the application
to compel further
particulars or my reasoning. Their attack is solely based on
the additional orders which I made pertaining
to time frames
and in particular paragraphs two and three thereof.
[9]
Mr Omar relied on the perception of bias created by me in making the
directives set out in paragraphs two and three of the additional
orders. It is true that neither he, nor Mr Steenkamp attended
the proceedings although they knew, when I reserved my judgment,
that
it would be delivered on 9 June 2017. All the accused attended
the proceedings. Adv Pieter Nel for accused 13
was present and
stood in for Mr Steenkamp as agreed. After I have made my
ruling pertaining to the application to compel
I adjourned for a
while for trial dates to be arranged. Adv Nel confirmed later
that he had telephonic contact with Mr Steenkamp
as well as the
office of Mr Omar and that the dates suggested by the State suited
all parties. My first order was therefor
by agreement.
The further orders were made in an attempt to comply with the Norms
and Standards and to ensure that the legal
representatives would be
placed in funds to enable them to proceed with the trial. I
refer to my ruling quoted above in full,
indicating the fact that
various legal representatives appeared for the accused at different
stages and that a lot of time-wasting
has occurred. Molemela JP
did the first pre-trial in 2016, postponing the matter to June 2016
in the hope that a trial date
will be arranged by then. This
did not happen. The history of the matter is self-explanatory.
Both Messrs Omar
and Steenkamp conceded that it is also their
experience that too many legal practitioners withdraw from a criminal
trial at the
eleventh hour causing the matter to be postponed.
However, they complained that I made orders in their absence and
without
giving them the opportunity to address me on the issues.
Nothing prevents them to approach me before the deadlines in order
to
request extra time if required. The argument of both attorneys
that I want to “force” the accused to apply
for legal aid
in the event of their attorneys withdrawing due to lack of funds must
be seen in perspective. They suggested
that the accused are
prevented from applying for
in forma pauperis
representation
in terms of Rule 40 of the Uniform Rules of Court or to appear
personally. In my view no legal practitioner
will appear for
free in a criminal trial that may last up to one year, the time the
parties are in agreement the case will last.
The magnitude of
the case is such that it would be highly unfair to expect the accused
to appear personally. The issue of
the amendment or
supplementing of bail conditions can be disposed of quickly.
Nowhere in my orders have I supplemented or
amended bail conditions.
[10]
Notwithstanding the hope expressed by the Judge President of this
Division, this matter is still being marred by preliminary
issues.
I quote the following from paragraph 5 of my ruling of 9 June 2017:
“
The
matter was transferred from the Regional Court to the High Court and
the Judge President of this division decided that pre-trial
proceedings be instituted in accordance with the criminal trials
practice directive. The Honourable Judge President Molemela
presided over the first pre-trial proceedings on 3 May 2016 and
inter
alia
stated
ex facie
the
transcript of the proceedings that “it is in the interest of
everybody for the trial to be finalised as soon as possible”.
At that stage a Mr Mokhele appeared for accused 1, 10 and 12, Mr
Steenkamp for accused 2 and 5, Mr Coetzee for accused 3, 4, 6,
7 and
11 and Mr Nel for accused 13. Mr De Nysschen appeared on behalf
of the Director of Public Prosecutions and still represents
the
State. The Honourable Judge President already at that stage
indicated that the pre-trial was postponed to 29 June 2016,
that it
would hopefully be the last pre-trial on which date a trial date
would probably be given.”
[11]
More than 18 months have lapsed since the matter was transferred to
the High Court and still preliminary issues are being dealt
with.
Clearly this is not what was intended by the Norms and Standards and
by the Judge President as indicated
supra.
[12]
Kruger A,
Hiemstra’s
Criminal Procedure
,
May 2017 deals with the issue of recusal of presiding officers as
follows at 21-6:
Recusal
—
The
Appellate Division in
S
v Malindi and Others
1990 (1) SA 962
(A) had to deal with the discharge of an assessor in terms of section
147 and had
inter
alia
to
investigate thecommon law regarding recusal (at 969G–970I).
Corbett CJ, who delivered the unanimous judgment of the court,
stated
the principles as follows:
“
The
common law basis of the duty of a judicial officer in certain
circumstances to recuse himself was fully examined in the cases
of
S
v Radebe
1973 (1) SA 796
(A) and
South
African Motor Acceptance Corporation (Edms) Bpk v Oberholzer
1974 (4) SA 808
(T). Broadly speaking, the duty of recusal arises where it appears
that the judicial officer has
an interest in the case or where there
is some other reasonable ground for believing that there is a
likelihood of bias on the
part of the judicial officer: that is, that
he will not adjudicate impartially. The matter must be regarded from
the point of view
of the reasonable litigant and the test is an
objective one. The fact that in reality the judicial officer was
impartial or is
likely to be impartial is not the test. It is the
reasonable perception of the parties as to his impartiality that is
important.
Normally
recusal would follow upon an application (
exceptio recusationis
)
therefor by either or both of the parties, but on occasion a judicial
officer may recuse himself
mero motu
, ie without any such
prior application [. . .].
As
to the recusal of judicial officers there was a considerable debate
over the last decade or so in our highest courts and in England:
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers’ Union and Another
1992 (3) SA 673
(A);
R v Bow Street Metropolitan Stipendiary Magistrate and
Others
,
ex parte Pinochet Ugarte (No 2)
[1999] UKHL 1
;
[1999] 1 All ER
577
(HL);
President of the Republic of South Africa and Others v
South African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (7) BCLR 725
(CC);
South African Commercial Catering and Allied Workers’
Union and Another v Irvin & Johnson Ltd Seafoods Processing
Division
[2000] ZACC 10
;
2000 (8) BCLR 886
(CC).
In
the
SARFU
case
[1999] ZACC 9
;
(1999 (7) BCLR 725
(CC) par [48]) the court
said: “The question is whether a reasonable, objective and
informed person would on the correct
facts reasonably apprehend that
the Judge has not or will not bring an impartial mind to bear on the
adjudication of the case,
that is a mind open to persuasion by the
evidence and the submissions of counsel”. The test is an
objective one of “double
reasonableness”: the person
apprehending the bias must be a reasonable person in the position of
the applicant, and the apprehension
must also be reasonable.
Apprehension that the judge
may
be biased is not enough. What
is required is an apprehension on reasonable grounds that the judge
will not be impartial. Further,
there is a built-in presumption that,
particularly since judges are bound by a solemn oath of office to
administer justice without
fear or favour, they will be impartial in
adjudicating disputes. What is required of a judge is judicial
impartiality, not complete
neutrality (
S v Shackell
[2001] 4
All SA 279
(SCA); 2001 (4) SA 1 (SCA) pars [20]–[22]).
R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex
parte Pinochet Ugarte (No 2)
[1999] UKHL 1
;
[1999] 1 All ER 577
(HL) dealt with
the recusal of Lord Hoffmann because of his links to Amnesty
International. Lord Nolan held that in any case in
which the
impartiality of a judge is in question appearance is as important as
reality (at 592g–h).”
[13]
In S v
Roberts
1999 (2) SACR 243
(SCA) the following
dicta
appear:
“
[23]
That justice publicly be seen to be done necessitates, as an
elementary requirement to avoid the appearance that justice is
being
administered in secret, that the presiding judicial officer
should have no communication whatever with either party
except
in the presence of the other:
R
v Maharaj
1960 (4) SA 256
(N) at 258B - C. That is so fundamentally important
that the discussion between the magistrate and the prosecutor in the
instant
case warranted on its own, without anything more, the
setting aside of the sentence. Had such a discussion occurred before
conviction in this matter there can be no question but that the
conviction would have been fatally irregular:
S
v Seedat
1971 (1) SA 789
(N) at 792F. In
Seedat's
case, it may be noted, the vitiating irregularities occurred after
conviction but only the sentence was set aside. However, guilt
was
never in issue because the appellant there pleaded guilty at the
start of the trial. There was therefore no basis on which
it could
have been said that the irregularities tainted the conviction. The
case is therefore of no assistance now.
[24]
Here, of course, the irregular discussion does not
stand alone. It prompted an immediate recusal application
and that
application brought to the fore the question whether the
magistrate's conduct bore the appearance of bias. The Court
a
quo
found affirmatively but, as already remarked, it understood the
disqualifying effect of such bias to attach only to the sentence.
[25]
Bias in the sense of judicial bias has been said
to mean
'a
departure from the standard of even-handed justice which the law
requires from those who occupy judicial office'.
See
Franklin and Others v Minister of Town and Country Planning
[1948] AC 87
(HL) at 103 ([1947]
2 All ER 289).
What the law requires
is not only that a judicial officer must conduct the trial
H
open-mindedly, impartially and fairly but that such
conduct must be 'manifest to all those who are concerned in the trial
and its
outcome, especially the accused'. See
S v Rall
1982
(1) SA 828
(A).
[26]
It is settled law that not only actual bias but
also the appearance of bias disqualifies a judicial officer
from
presiding (or continuing to preside) over judicial proceedings. The
disqualification is so complete that continuing to preside
after
recusal should have occurred renders the further 'proceedings' a
nullity:
Council
of Review, South African Defence Force, and Others v Mönnig and
Others
1992 (3) SA 482
(A);
Moch
v
Nedtravel
(Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at 9G.
[27]
For too long, however, the legal test for the
appearance of judicial bias was uncertain. This was because
it was
variously and, with respect, at times confusingly stated both here
and in England. The way in which the test has now come
to be
formulated in South Africa can be traced in the following recent
pronouncements of this Court.
[28]
In
S v Malindi and Others
1990 (1) SA 962
(A) at 969G - I it was said:
'The
common law basis of the duty of a judicial officer in certain
circumstances to recuse himself was fully examined in the
cases
of
S v Radebe
1973 (1) SA 796
(A) and
South African Motor
Acceptance Corporation (Edms) Bpk v Oberholzer
1974 (4) SA 808
(T). Broadly speaking, the duty of recusal arises where it appears
that the judicial officer has an interest in the case or where
there
is some other reasonable ground for believing that there is a
likelihood of bias on the part of the judicial officer: that
is, that
he will not adjudicate impartially. The matter must be regarded from
the point of view of the reasonable litigant and
the test is an
objective one. The fact that in reality the judicial officer was
impartial or is likely to be impartial is
not the test. It is the
reasonable perception of the parties as to his impartiality that is
important.'
[29]
Then,
Mönnig's
case foreshadowed a switch from 'likelihood' to 'reasonable
suspicion' but left the choice of formulation open. At 490C -
G
it was said:
'It
may be that this formulation [likelihood of bias] requires some
elucidation, particularly in regard to the meaning of the word
"likelihood": whether it postulates a probability or a mere
possibility. Conceivably it is more accurate to speak of
"a
reasonable suspicion of bias". Suspicion, in this context,
includes the idea of the mere possibility of the existence,
present or future, of some state of affairs. (
The Oxford English
Dictionary sv
"suspicion" and "suspect"); but
before the suspicion can constitute a ground for recusal it must be
founded
on reasonable grounds.
It
is not necessary, however, to finally decide these matters for,
whatever the correct formulation may be, I am satisfied that
the
Court
a quo
was correct in holding that the court martial did
not pose the correct test when deciding the recusal issue (see
reported
judgment at 875J-876B); and that the circumstances were such
that a reasonable person in the position of second respondent could
have thought that
".
. . the risk of an unfair determination on an issue such as this was
unacceptably high".(See reported judgment
at 881H - I.)'
(The
reported judgment mentioned at the end of that extract is the
judgment in
Mönnig'
s case of the Full Court of the Cape
Provincial Division reported in
Mönnig and Others v Council
of Review and Others
1989 (4) SA 866
(C).)
[30]
Later, in
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers' Union and Another
[1992] ZASCA 85
;
1992 (3) SA 673
(A) it was finally laid down (at 693I - J):
'(T)hat
in our law the existence of a reasonable suspicion of bias satisfies
the test; and that an apprehension of a real likelihood
that the
decisionmaker will be biased is not a prerequisite for disqualifying
bias.'
The
Court went on (at 694A) to approve the statement by the Court
a
quo
in
Mönnig's
case that
'provided
the suspicion is one which might reasonably be entertained, the
possibility of bias where none is to be expected
serves to disqualify
the decision maker'
and
at 694J referred to the required suspicion as one which 'might
reasonably be entertained by a lay litigant'.
[31]
Adoption of the reasonable suspicion test in
preference to the real likelihood test was confirmed in
Moch's
case at 8H - I.
[32]
Thus far, therefore, the requirements of the test
thus finalised are as follows as applied to judicial proceedings:
(1) There
must be a suspicion that the judicial officer might, not would, be
biased.
(2) The
suspicion must be that of a reasonable person in the position of the
accused or litigant.
(3) The
suspicion must be based on reasonable grounds.
[14]
In R v Maharaj
1960 (4) SA 256
(NPD), a case totally distinguishable
on the facts, the court stated the following at 258:
“
At
a later stage the doctor called on the magistrate in his chambers and
there was a discussion of the points raised, and a general
discussion
of the evidence in the case. This was done entirely without the
knowledge of the defence. Without taking the matter
further, it is
manifest that a conviction resulting from a trial conducted in
this way cannot stand. It is quite irrelevant
that the evidence in
the case as a whole might be strong enough to establish the guilt of
the accused beyond reasonable doubt.
I give no opinion on that
question for, even if that is the position, the irregularity itself
is in no way cured. It is a principle
of justice as administered in
this country that trials must take place in open court and that
judicial officers must decide
them solely upon evidence heard in open
court in the presence of the accused. If that principle is violated,
then, quite apart
from the question as to whether the accused is
manifestly guilty, the proceedings are bad because it might be
supposed that justice
was being administered in a secret manner
instead of in open court. It is elementary that a judicial officer
should have no
communication whatever with either party in a case
before him except in the presence of the other, and no communication
with any
witness except in the presence of both parties. For that
reason the conviction must be set aside.”
[15]
I am of the view that the application for my recusal is either moot
or academic in that I have already made orders herein,
which orders
are even subject to reconsideration if required as mentioned
,
or
premature in that there is no indication that the criminal trial will
eventually be allocated by the Judge President to me.
In any
event, my intention to ensure a speedy trial, especially where a lot
of time-wasting has already occurred, is in line with
what is
expected of me if the Norms and Standards are considered and cannot
be criticised. Therefore the application shall
be dismissed.
[16]
In
Mngomezulu
v NDPP
[2007] (SCA) 129 (RSA) the court dealt with the issue as follows
:
“
[9]
Counsel placed much stress in argument on that portion of para 26.6
of the founding affidavit
which I have italicized in para [7] above.
The submission was that reconsideration of the direction given by the
judge in chambers
in terms of the Act might assist the first
appellant in the pending criminal trial if the direction were to be
set aside, and that
the setting aside of the direction would be a
necessary precursor to a civil claim for damages for unlawful
invasion of privacy
─ but that the first appellant was,
irrespective of these considerations, entitled as of right to have
the order reconsidered.
I cannot agree with this latter submission.
[10]
It does not follow from the fact that a person’s rights have
been invaded in consequence of an
order granted
ex
parte
,
that such person is without more entitled to have the order
reconsidered. Reconsideration of the order is not an end in itself.
Nor is it to be had simply for the asking. A court will not be
detained by an academic exercise. Such reconsideration must be for
a
legitimate purpose, namely, to enforce a right by, for example, a
claim for damages, return of documents seized or some other
relief
which would or might flow from the reconsideration. And if the relief
is not competent, reconsideration of the order would
serve no
purpose.
[11]
I am unable to identify in the founding affidavit any purpose for the
reconsideration of the order
save to protect the first appellant’s
right to a fair trial. The passage italicized was made in the context
of the protection
of that right. The relief sought cannot be granted
on the basis that the first appellant might perhaps wish to bring
(unspecified)
civil proceedings to vindicate his rights to privacy or
some other (unspecified) right should a reconsideration of the
direction
result in a finding that his rights were invaded
unlawfully: the first appellant himself has not said that he is
contemplating
civil proceedings. The argument advanced on his behalf
that he might bring such proceedings is accordingly without factual
foundation.
[12]
It is clear from the notice of motion that the first appellant seeks
the information that has been
withheld with a view to obtaining an
order setting the direction aside; and it is equally clear from the
founding affidavit that
his purpose in doing so is to protect his
fair trial rights in the pending criminal trial. There are several
decisions of this
court which hold that, save in an exceptional case,
a court will not issue a declaratory order affecting criminal
proceedings:
see eg
Attorney-General,
Natal v Johnstone & Co Ltd
;
Wahlhaus
v Additional Magistrate, Johannesburg
;
Ismail v
Additional Magistrate, Wynberg
and cf
S
v Mhlungu
,
S v
Western Areas Ltd
and
S v
Friedman (2)
.
The decision of the majority of the Constitutional Court in
Ferreira
v Levin NO
;
Vryenhoek
v Powell NO
is distinguishable. In that matter the appellant faced a choice
between answering self-incriminating questions at an insolvency
enquiry, with the risk that his answers could be used against him
were he subsequently to be prosecuted, or refusing to answer
the
questions and risk being prosecuted for his refusal. Unlike the
present case, the appellants’ rights were under real
and
immediate threat. The position which applies in a case such as
the present appears from the following quotation from
Wahlhaus
:
‘
The
present case has no special features and cannot rightly be brought
within the ambit of the
Johnstone
& Co
decision
supra
.
Apart from the fact that the petition neither referred to, nor sought
any relief by way of, a declaration of rights, it is clear
that the
present would not be a suitable case for the granting of the very
special relief entailed in the Court’s exercising
its
discretion under s 102 of Act 46 of 1935 to make a declaratory order
in relation to a criminal case. The appellants are alleged
to have
committed a crime. The normal method of determining the correctness,
or otherwise, of that allegation is by way of the
full investigation
of a criminal trial. There is a total absence of any of the types of
consideration which induced this Court
to make a declaratory order in
the
Johnstone
case
supra
.
Nor, indeed, does the case even contain any law point which, if
resolved in appellants’ favour, would dispose of the criminal
charge, or a substantial portion of it.’
[13]
The present is not an exceptional case. There is no reason to believe
that an order declaring that
any evidence obtained pursuant to the
direction was unlawfully obtained, would curtail the trial ─
the first appellant has
not even alleged that there is a likelihood
that such evidence will be tendered. If it is, then that will be the
time for its admissibility
to be attacked. It will be for the
magistrate to decide whether the evidence was unconstitutionally
obtained. If he does come to
that conclusion, that will also not
necessarily be an end of the matter for it will then be for him to
decide whether the evidence
should be excluded in terms of s 35(5) of
the Constitution:
Ferreira v Levin NO
;
Vryenhoek v Powell
NO
;
Key v Attorney-General, Cape Provincial Division
;
S
v Dlamini
;
S v Dladla
;
S v Joubert
;
S v
Schietekat
.”
[17]
In
S
v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC) Kentridge AJ remarked as follows:
“
[59]
It is convenient at this point to say something about the practice of
referrals to this Court under s 102(1) of the Constitution.
The fact
that an issue within the exclusive jurisdiction of this Court arises
in a Provincial or Local Division does not necessitate
an immediate
referral to this Court. Even if the issue appears to be a substantial
one, the Court hearing the case is required
to refer it only (i) if
the issue is one which may be decisive for the case; and
(ii)
if it considers it to be in the interest of justice to do so.
In
s 103(4) of the Constitution, which deals with the referral to this
Court of matters originating in inferior courts, the referring
Provincial or Local Division must in addition be of the opinion 'that
there is a reasonable prospect that the relevant law or provision
will be held to be invalid'. In
S
v Williams and Five Similar Cases (supra
at 139F (SA), 515
g
(SACR) and at 147G (BCLR)), Farlam J said that although that was not
an express requirement of s 102(1) it was implicit therein.
I
respectfully agree. See also
Matiso
and Others v Commanding Officer, Port Elizabeth Prison, and
Another
1994
(4) SA 592
(SE)
at
599G-600E
(1994 (3) BCLR 80
(SE) at 89G-90D). The reasonable prospect
of success is, of course, to be understood as a
sine
qua non
of a referral, not as in itself a sufficient ground. It is not always
in the interest of justice to make a reference as soon as
the
relevant issue has been raised. Where the case is not likely to be of
long duration it may be in the interests of justice to
hear all the
evidence or as much of it as possible before considering a referral.
Interrupting and delaying a trial, and above
all a criminal
trial, is in itself undesirable, especially if it means that
witnesses have to be brought back after a break
of several months.
Moreover, once the evidence in the case is heard it may turn out that
the constitutional issue is not after
all decisive. I would lay it
down as a general principle that where it is possible to decide any
case, civil or criminal, without
reaching a constitutional issue,
that is the course which should be followed. One may conceive
of cases where an immediate
reference under s 102(1) would be in the
interests of justice - for example, a criminal trial likely to last
many months, where
a declaration by this Court of the invalidity of a
statute would put an end to the whole prosecution. But those cases
would be
exceptional. One may compare the practice of the
Supreme Court with regard to reviews of criminal trials. It is only
in very
special circumstances that it would entertain a review before
verdict. See Hiemstra
Suid-Afrikaanse
Strafproses
5th ed at 764. In any event, the convenience of a rapid resort to
this Court would not relieve the trial Judge from making his
own
decision on a constitutional issue within his jurisdiction.”
[18] I quote
from
S v
Western Areas Ltd and others
2005 (5) SA 214
(SCA):
“
[26]
It is clear, however, that the general rule against piecemeal appeals
in criminal proceedings could conflict with the interests
of justice
in a particular case. The possibility of such a conflict was
recognised in
Wahlhaus.
As an instance when such conflict might arise, this Court
referred in that matter to the position where a law point is involved
which, if decided in the accused's favour, would dispose of the
criminal charge against him or a substantial portion of it. By
that example I understand it to be implied that there would be no
trial or a substantially shortened trial.
[27]
Reverting to the provisions of s 39(2) of the Constitution and its
influence on the construction of s 21(1) of the Supreme
Court Act, it
is, as I have said, an inevitable consequence of a criminal trial
that an accused's exercise of the right to liberty
and freedom of
movement is restricted. But those are not the only rights to be
considered. It is in the public interest that alleged
criminals
be subjected to the criminal justice process and that the
prosecution and defence cases be fully ventilated. In
the tension
between these competing interests the restrictions on the accused
which I have mentioned remain in place, ameliorated
where appropriate
by release on bail. Those considerations by themselves do not warrant
giving 'decision' a more extended
meaning than before. What does
do so, however, is the possibility of conflict between the general
rule against piecemeal appeals
and the interests of justice in a
particular case, even if the
Zweni
requirements are not met.
It is surely not in the interests of justice to submit an accused
person to the strain, expense and restrictions
of a lengthy criminal
trial if that can be avoided, in appropriate circumstances, by
allowing an appeal to be pursued out
of the ordinary sequence
and so obviating the trial or substantially shortening it.
[28]
I am accordingly of the view that it would accord with the obligation
imposed by s 39(2) of the Constitution to construe the
word
'decision' in s 21(1) of the Supreme Court Act to include a
judicial pronouncement in criminal proceedings that is not
appealable on the
Zweni
test but one which the interests of
justice require should nevertheless be subject to an appeal before
termination of such proceedings.
The scope which this extended
meaning could have in civil proceedings is unnecessary to decide. It
need hardly be said that what
the interests of justice require
depends on the facts of each particular case.
[29]
In the present matter the only information relevant to that enquiry
is provided in an affidavit deposed to by Mr G L Roberts
SC, a Deputy
Director of Public Prosecutions and one of the prosecution's counsel
in the Court below. The affidavit was filed in
support of the
respondent's opposition to an application in that Court by three of
the appellants for leave to appeal.
[30]
What Mr Roberts says is that
'most
if not all of the evidence that will be led to prove the counts
against which the accused object, will have to be led in any event
in respect of the remaining counts against which the (appellants)
have no objection. I refer particularly to count 9, but also
the
other counts.'
[31]
The offence involved in count 9 is a contravention of s 424 of the
Companies Act 61 of 1973 by the individual appellants in
having
allegedly carried on the first appellant's business recklessly.
Apart from the fact that the dates covered by this
count include the
dates stated in the other counts, the transactions which form the
subject-matter of this count include the transactions
which form the
subject-matter of counts 1, 2, 3, 4 and 6. As far as count 12 is
concerned it involves four transactions. Two of
them form part the
subject-matter of count 1. A third forms part of the subject-matter
of count 9.
[32]
The prosecution of count 9 will alone involve canvassing the facts
relevant to all the counts objected to save for count 7.
As against
that, argument at the end of the trial will obviously be longer if
the submissions presented to us on the merits of
the objection have
to be repeated before the trial Judge.
[33]
The appellants did not seek to contradict or qualify the deposition
by Mr Roberts to which I have referred and analysis of
the dates and
transactions referred to in the indictment supports what he says.
[34]
It is the view on all sides that the trial on the counts to which
there was no objection will be a lengthy one. In the circumstances
outlined above it will not be extended by a material degree if the
prosecution case includes the counts objected to. Consequently
it
cannot be said, on the record before us, that the interests of
justice require that appellants' right of appeal against the
findings
of the Court below on their objection, be exercised now rather than
at the close of the trial.
[35]
In concluding, it must be pointed out that if facts are present which
point to the conclusion that the interests of justice
require that an
appeal against dismissal of an objection to an indictment or charge
be heard out of the ordinary sequence, the
accused has a choice. The
relevant facts can be canvassed before the Court hearing an
application for leave to appeal against
such dismissal.
Alternatively, a
declarator
that a charge discloses no offence can be sought in terms of s
19(1)
(a)
(iii)
of the Supreme Court Act as was done in the case of
Attorney-General,
Natal v Johnstone & Co Ltd
.
[36]
For the reasons given above the decision dismissing the appellants'
objection is not appealable at this stage. The case on
the merits of
the objection is consequently not duly before us.
[37]
The matter is struck from the roll.”
[19] In
S
v Sulliman
1968
(1) SA 560
(T) the issue was dealt with as follows:
“
To
return to sec. 364 (1). The accused has put all his difficulties to
BOSHOFF, J., who nevertheless ordered that the trial should
proceed.
The accused is again at liberty to raise the matter with
BOSHOFF, J., at the end of the trial, that is, should it
become
necessary to do so. He can then ask for a special entry in terms of
the section. It is significant that this section provides
that the
special entry should be made unless the presiding Judge feels that it
is frivolous or absurd or that the granting of the
application would
be an abuse of the process of the Court. The value of the
retention of this procedure appears from the discussion
of the
section by SCHREINER, A.C.J., in
R
v Nzimande
,
1957
(3) SA 772
(AD)
at
p. 774.
I
do not propose to attempt to define the words 'in connection with' in
sec. 364 (1). Having regard to what the above-quoted cases
have
stated in regard to the section and having regard to the fact that
the accused has put all his difficulties to BOSHOFF, J.,
I am of the
view that the matters complained of can be said to be 'in connection
with' the proceedings before BOSHOFF, J. If such
an application is
made the learned Judge will then decide whether it is
bona fide
,
or frivolous or absurd or whether the grant thereof will be an abuse
of the process of the Court. If in addition to the above
one
remembers the powers of the Appellate Division it becomes clear that
the accused is not remediless as suggested by counsel.
It is
worthy of mention that
Wahlhaus'
case and other cases indicate
that the prejudice inherent in an accused being obliged to proceed to
trial and possible conviction
in a magistrate's court before he is
accorded an opportunity of testing in the Supreme Court the
correctness of the magistrate's
decision, overruling a preliminary
and perhaps fundamental contention raised by the accused, does
not
per se
necessarily justify the Supreme Court in granting
relief before conviction. That being so, it seems to me that it
cannot be claimed
on behalf of the accused that the fact that he will
have to stand trial fully before BOSHOFF, J., is a matter of such
prejudice
as would justify any Court intervening at this stage.
It
follows from what has been said above that there is no merit in this
application and it is accordingly dismissed with costs.”
[20]
In
S v Van Staden
2014 (2) SACR 533
(WCC) the full bench came
to the following conclusions pertaining to orders and rulings made
during pre-trial conferences in criminal
matters:
“
[11]
It seems to me that the decisions made by Hlophe JP at the pre-trial
conferences that the appellants are not to be provided
with an
English version of the indictment, cannot be regarded as final
judgments or orders which are appealable. It should be borne
in mind
that Hlophe JP is not seized with the trial of this matter. He was
merely presiding at a pre-trial conference held
to facilitate
the smooth running of the criminal trial which would take place some
time in the future. What the learned Judge President
did was to give
a direction or ruling that the appellants would not be provided with
an English version of the indictment. In my
view this ruling is
capable of reconsideration by a judge presiding at any subsequent
pre-trial conference, as well as the judge
who would be presiding
at the trial. In that sense the court a quo's authority over this
issue has not ceased and the decisions
of Hlophe JP are therefore
not final in law. Nor do the rulings dispose of any part of the
issues to be decided at the trial.
I therefore conclude that the
decisions merely embodied directions or rulings against which no
appeal lies.
[12]
I should also mention that, in my view, the decision in
S v
Western
Areas Ltd
supra does not detract from the
conclusion that I have reached in this matter. In that case the
Supreme Court of Appeal held that,
by virtue of the provisions of s
39(2) of the Constitution, a judicial pronouncement in criminal
proceedings may be appealable
prior to conviction, if the interests
of justice so demand. However, it is clear from the judgment
that it was common cause
that the finding of the court a quo in that
instance (rejecting an objection to the charge-sheet) was appealable
and the only question
was when to appeal.
[13]
In
Broome v Director of Public Prosecutions, Western Cape and
Others; Wiggins and Another v Acting Regional Magistrate, Cape Town
and
Others
2008 (1) SACR 178
(C)
,
the court held, on the strength of
S v Western Areas Ltd and
Others
supra, as follows in para 41:
'Section
39(2) of the Constitution therefore enjoins this court and imposes an
obligation to construe that a judicial pronouncement
in any criminal
proceedings may be subject to an appeal, even before plea, where the
interests of justice so requires.'
[14]
It is clear from the latter judgment that, as in the
Western Areas
Ltd
case, the issue was not whether the ruling appealed against
was appealable, but when such an appeal should be brought. This is
clear from para 42 of the judgment where the court put it as follows:
'I
consider, for the reasons that appear from the body of this judgment,
that this court should entertain the challenge to the acting
regional
magistrate's decision now, rather than at the end of the criminal
trial.'
[15]
In the instant matter the question is not when an appeal against
the decisions of Hlophe JP would lie, but whether the
decisions
are appealable. The decisions of Hlophe JP were, for the reasons
already furnished, mere interlocutory rulings and therefore
not
subject to an appeal. I should add that, in the
Western Areas Ltd
case, it was stressed that there are no constitutional imperatives
for declaring orders of this nature appealable. It was put as
follows
in para 12 —
'no
reason suggests itself why the framers of the Constitution would have
wanted to render decisions such as rulings on evidence
or
interlocutory procedure appealable'.”
[21]
An issue to be considered is whether the orders granted are
appealable at all. The
Criminal Procedure Act, 51 of 1977
, is
clear in that applications for leave to appeal in criminal matters
can only be directed at a conviction or against a sentence
or order
resulting from such conviction.
Section 316
reads as follows
pertaining to High Court convictions and sentences:
“
316. Applications
for condonation, leave to appeal and further
evidence.
—
(1) (
a
) Subject
to
section 84
of the
Child Justice Act, 2008
, any accused convicted
of any offence by a High Court may apply to that court for leave to
appeal
against
such conviction or against any resultant sentence or order
.”
(emphasis
added)
[22]
When I requested both attorneys during argument to read
s 316(1)(a)
of the
Criminal Procedure Act, they
had to concede that the section
does not provide for leave to appeal prior to conviction.
Therefore both of them tried to
rely on the provisions of
s 65
of the
Criminal Procedure Act, submitting
that the accused are entitled to
an appeal insofar as this court has supplemented and/or amended their
bail conditions. They
rely on the contents of paragraph 3 of
the additional orders
supra
for their submissions. I
have no doubt they are wrong as it is evident that no bail condition
has been supplemented or amended.
[23]
Much of the case law referred to in the judgments quoted herein deal
with appeals or reviews in pending criminal matters in
the
Magistrates’ Courts. Even in such cases the courts have
warned against piece-meal finalisation of matters and stressed
that
it should only be allowed in exceptional cases. Kruger
loc
cit,
with
reliance on
Sulliman
supra
is
of the view that it is not possible to object to the exercise of a
judge’s discretion during a criminal trial in the High
Court.
The accused can only afterwards seek assistance from the Supreme
Court of Appeal by means of a special entry in terms
of
s 318
of the
Criminal Procedure Act.
[24
]
I am of the view that the orders I have made herein are not
appealable, either because no conviction and sentence have taken
place or because bail conditions have not been amended.
Furthermore the orders are not final in nature and is subject to
reconsideration at the request of the parties. I want to emphasise
that there is no application for leave to appeal against my orders
dismissing the applications to compel further particulars and no
arguments in this regard were addressed to me.
[25]
Consequently the following orders are made:
1.
The
application for recusal is dismissed.
2.
The
two applications for leave to appeal are dismissed.
____________
JP DAFFUE, J