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[2016] ZANCHC 30
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Madiba v Director: Public Prosecutions Northern Cape (CA&R155/2015) [2016] ZANCHC 30 (3 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
CA&R
155/2015
DATE
HEARD:
16
MAY 2016
DATE
DELIVERED:
27
MAY 2016
In
the matter between:
NANDIPHA
DAPHNE
MADIBA
Appellant
and
DIRECTOR:
PUBLIC PROSECUTIONS
NORTHERN
CAPE
Respondent
Coram:
Olivier
J et Phatshoane J et Mamosebo J
JUDGMENT
Olivier
J:
1.
The
appellant, Mrs N D Madiba, along with five co-accused, are facing
several charges of,
inter
alia
,
fraud and corruption. She first appeared in the Magistrate’s
Court on 17 November 2011, when the matter was transferred
to this
court for trial. Several further postponements then followed.
2.
On
30 January 2015, when the criminal matter was postponed to 12
February 2016, it appeared that the appellant intended to apply
for
the stay of the prosecution against her. A date for the hearing of
that application was determined in the presence of all the
other
accused
[1]
and the appellant
agreed to make copies of her founding affidavit available to all of
them. The appellant cited only the Director
of Public Prosecutions,
Northern Cape, as a respondent, and not any of her co-accused.
3.
At
the hearing of the application, on 13 May 2015, counsel for the
appellant at that stage, Mr Mnyatheli, argued that, in the event
of a
permanent stay of the proceedings not being ordered, the court should
strike the criminal case against the appellant from
the roll.
Counsel for the respondent, Mr J J Cloete of the Office of the
Director of Public Prosecutions, Northern Cape,
adopted the attitude
that the court hearing the application would be entitled “
to
refuse a further postponement against the Applicant until the 16th of
February next year
”,
which was the date to which the criminal matter had been postponed.
He argued that the prosecution was not to blame
for the delays and
that the court should, in the event of a finding that the delays were
nevertheless unreasonable, not order a
permanent stay of the
prosecution against the appellant, but rather refuse a further
postponement of the criminal proceedings against
the appellant
[2]
,
as a less drastic remedy which would then leave the prosecution with
the option of withdrawing the charges against the appellant
temporarily.
4.
In
a judgment delivered on 21 August 2015, and therefore still well
before the date to which the criminal trial had been postponed,
L
Lever AJ found that a permanent stay of the prosecution would not be
appropriate under the circumstances. The application
was
dismissed and no costs order was made.
5.
No
finding was made as regards the possibility of refusing a further
postponement of the criminal proceedings or of striking the
criminal
proceedings off the roll as far as the appellant (as an accused) was
concerned. One of the grounds on which leave
to appeal was
subsequently sought by the appellant was that the court
a
quo
had failed to consider so-called less drastic remedies like
these.
6.
Lever
A J granted leave to appeal only ”
on
the issue of whether or not
(he)
could
have refused a further postponement or whether or not
(he)
should
have struck the matter from the roll insofar as it concerns the
Applicant in the relevant criminal trial
”.
He stated that he had not decided these issues as he had been of the
view that the criminal trial was not before
him.
7.
Before
us Mr Mpofu SC , counsel for the appellant, abandoned the submission
in his heads of argument that this court was not bound
by the limited
basis upon which leave to appeal was granted and that the refusal to
order a stay of prosecution should also be
considered on appeal. The
appeal should therefore be considered on the limited basis that leave
was granted on.
8.
I
cannot agree with the submissions in Mr Mpofu’s heads of
argument that the order granting leave to appeal should be seen
as a
tacit admission by Lever A J that this court would have to consider
whether a further postponement should be refused or whether
the
criminal proceedings should be struck off the roll, and as a
concession by Lever A J that he had erred in not considering whether
any one of those remedies
should
[3]
be granted. Lever A J explained that he had not considered making
orders like those as he had been of the view that the criminal
proceedings were not before him
[4]
.
His reference to Mr Cloete’s concession that the criminal
proceedings had in fact been before the court
a
quo
can in no way be seen to have been a tacit admission or concession by
Lever A J that his own view had been wrong, or even that
he agreed
with Mr Cloete’s concession. In my view there can be no doubt
that the effect of the order granting leave to appeal
is that this
court would have to consider, as a starting point, whether Lever A J
could legally have considered making such orders.
Only in the event
of this question then being answered in the affirmative, and even
then only if this court should decide not to
remit the matter to the
court a quo for such purposes, would this court go on to consider
whether, on the evidence, the criminal
proceedings should have been
struck off the roll
[5]
.
9.
At
the hearing of the application counsel for the appellant relied upon
the provisions of section 342A of the Criminal Procedure
Act
[6]
(“
the
Act
”)
and those of section 35(3) of the Constitution.
10.
In
terms of section 342A(1) of the Act a court “
before
which criminal proceedings are pending
”
would indeed be competent to make an order:
“
(a)
refusing further postponements of the proceedings:
(b)
...
(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
(Director
of Public Prosecutions)”
[7]
.
11.
The
first question is therefore whether the court
a
quo
in this instance was a court before which the criminal proceedings
were pending, as envisaged in sub-section (1) of section 342A
of the
Act.
12.
The
criminal proceedings could obviously not have been pending before the
court
a
quo
for the purposes of pleading and trial. The indictment was not
even initially made available to Lever A J. The co-accused
of
the appellant were not present
[8]
.
The trial of the appellant had not been separated from that of her
co-accused
[9]
and it was in any
event clearly never contemplated that, in the event that the
prosecution not be ordered stayed, she could be
asked to plead to the
charges in the absence of her co-accused. Could it be said that
the criminal proceedings were pending
before Lever AJ for any other
purpose
[10]
, and once again
specifically as envisaged in section 342A?
13.
At
the hearing of the application Mr Cloete, counsel for the respondent,
argued that “
this
matter
”
(presumably referring to the criminal proceedings) was in effect
before the court
a
quo
“
because
of this application
”
(presumably referring to the motion proceedings). In my view this
would be putting the cart before the horse.
14.
The
plain grammatical meaning of the wording of sub-section (1) of
section 342A of the Act is that only a court before which criminal
proceedings are indeed already pending would in terms of section
342A(1) of the Act be enjoined to investigate a delay in
the
completion of those proceedings and that would therefore be competent
to consider sanctions or remedies like refusing a further
postponement or striking the case off the roll. An accused can
therefore not, it seems to me, in a court before which the
particular
criminal proceedings against him or her are not in any way pending,
apply for relief on the basis of the provisions
of section 342A of
the Act, and such an application would not then magically transform
such a court into one before which the criminal
proceedings are
pending. In my view it is clear that the criminal proceedings
should be pending before the court at the stage
when the application
is made to that particular court.
15.
Put
another way, the presence of the particular pending criminal
proceedings before a court is a jurisdictional requirement for
the
exercise by that court of the powers provided for in terms of
sub-section (3) of section 342A of the Act
[11]
.
16.
Could
the application for a permanent stay of the prosecution have resulted
in the criminal proceedings in some way being drawn
into what was
before the court
a
quo
,
or in the conversion of the proceedings before the court
a
quo
into the criminal proceedings concerned here, namely a case in which
the appellant and five other persons or entities have been
joined as
co-accused to face various charges?
17.
The
appellant’s co-accused were, as already mentioned, not before
the court
a
quo
,
as mentioned before. It is difficult to conceive that the criminal
proceedings could have been pending before the court
a
quo
,
as envisaged in section 342A(1) of the Act, in respect of only one of
several accused if there had not been a separation of the
trial of
that accused from the trial of the others
[12]
in terms of section 157 of the Act.
18.
It
is equally difficult to conceive that there could, as a result of the
application and at the time of its hearing, in effect have
been two
parallel sets of criminal proceedings in a single criminal matter
with a single indictment, the one set in which only
one of the
accused in the indictment featured and the other in which the other
five accused featured and which stood postponed
to February 2016.
19.
Section
342A(2), in listing the factors to be considered by a court in
deciding whether a delay has been unreasonable, makes no
specific
mention of the position where criminal proceedings involve multiple
accused and of what role this should play where it
is being
investigated whether the delay had been unreasonable in respect of
only one of them, and more particularly when an appropriate
remedy is
considered. The same applies to the provisions of sub-section
(3), in setting out some of the relief that a court
may grant when
concluding that there had been an unreasonable delay.
20.
It
must, however, be presumed that the legislature had, in enacting and
inserting section 342A into the Act
[13]
,
been aware of the reality that multiple accused could be involved in
the criminal proceedings in a single case
[14]
and of the fact that a separation of their trials could only be
effected through an order in terms of section 157(2) of the Act
[15]
.
21.
The
question is therefore whether it could, in circumstances where the
appellant’s co-accused were not parties to the proceedings
before the court
a
quo
,
be said that the criminal proceedings, as a whole and against all of
the accused in the criminal proceedings concerned here, were
pending
before court
a
quo.
The
criminal proceedings concerned here, being proceedings in which six
accused had been joined, were in fact pending in a different
court;
one which was to reconvene in February 2016.
22.
Mr
Mpofu argued that the “
court
”
referred to in section 342A(1) of the Act should be interpreted
generously, and in the spirit of leaning towards the protection
of
the fundamental rights of an accused person, to mean any judge of the
particular division of the high court
[16]
,
and therefore not necessarily the court before which the trial is to
take place. The problem would however remain that, because
of the
failure to join the appellant’s co-accused, the proceedings
before Lever A J did not involve all of the accused. What
served
before Lever AJ were motion proceedings, albeit possibly with a
criminal flavour
[17]
, in which
only one of those accused was involved.
23.
The
further complication is that the criminal proceedings as a whole had
already previously been ordered postponed to a date well
beyond the
date of the hearing and the judgment in the application concerned
here. The criminal proceedings against all the
accused were
therefore set to resume on that date. Even if it could possibly
be argued that the section 342A application
had, as far as the
appellant had been concerned, in a way anticipated the February 2016
date, the same could certainly not be said
as far as her co-accused
were concerned.
24.
The
question whether the criminal proceedings were pending before the
court
a
quo
was,
however, not addressed in either counsel’s heads of argument,
and Mr Mpofu’s submission regarding the interpretation
of
section 342A(1) was only made when the requirement of pending
criminal proceedings was taken up with him. The submissions
in
the heads of argument of both counsel were in fact premised on the
assumption that the court
a
quo
would
have been entitled and competent to act in terms of section 342A.
The question has therefore not been properly ventilated
and in view
of this, and also insofar as the application may in any event have
been made in terms of the provisions of the Constitution,
I will
refrain from deciding the question and instead proceed to consider
the appeal on the basis that the court
a
quo
would have been competent to strike the criminal proceedings as far
as the appellant was concerned.
25.
The
other five accused were aware of the application and of the date of
hearing. None of them attempted to become involved
in the
application. They were legally represented at the time and against
this background I will therefore proceed to consider
the question
whether, insofar as an order striking the criminal proceedings
against the appellant off the roll would have been
competent in the
circumstances, the court
a
quo
should
have granted such an order. Counsel were in agreement that
remitting the matter to the court
a
quo
for this purpose would result in further unnecessary delay.
26.
It
is common cause that the appellant has suffered non-trial related
prejudice as a result of what has really been an extraordinary
long
delay in the criminal proceedings. She has been unable to obtain
gainful employment because of the case hanging over her head
and, as
one can imagine, it has caused her and her family considerable
stress, and this will probably continue to be the case until
finality
is reached.
27.
The
matter in which she is involved will in all probability not proceed
until several other related matters in which her co-accused
are
involved, have been finalised. The same sets of legal teams that are
representing her co-accused in this matter are involved
in those
other cases. The finalisation of the other cases
[18]
have been delayed because of constitutional challenges to the
indictments and applications for the stay of those prosecutions.
At
this stage the Kwazulu-Natal case is set to be heard from
................
,
and
the present criminal proceedings have in the meantime yet again been
postponed (to
.....................)
,
on a provisional basis. There is therefore at this stage no end in
sight as far as the appellant is concerned.
28.
On
the other hand it is also common cause that the prosecution is not to
blame for any part of the delay. The delays have been the
result of
the exercise of their constitutional rights by other accused, and
because of logistical realities concerning legal representation.
Also
the appellant has not alleged any trial related prejudice on her
part. The postponements have been for long periods, which
at least
limited the frequency of trips by the appellant to Kimberley to
attend court, and on occasion the prosecution has even
cooperated in
having the case postponed in the absence of the appellant.
29.
It
is unnecessary to decide whether, in circumstances where none of the
parties are to blame for a delay, that delay could be seen
as
“
unreasonable
”
for the purposes of section 342A(1) of the Act. I am satisfied that
it would in any event on the facts of this matter not
be appropriate
to strike the criminal proceedings in respect of the appellant off
the roll at this stage. Such an order may prejudice
the prosecution,
at the very least in the sense that the reinstitution of the
proceedings will require a written instruction
[19]
,
the issue of which might conceivably in itself then be challenged.
At the same time I sincerely doubt whether the striking
off of the
case against the appellant would really alleviate the emotional
anguish that she is suffering. It is abundantly
clear that the
prosecution intends reinstituting the proceedings against her in such
an event, and because the prosecution would
not have been responsible
for the delay, such a written instruction by the Director of Public
Prosecutions could then be very difficult
to challenge.
30.
Counsel
was in agreement that, in the event of the appeal not succeeding, the
parties should bear their own costs. In my view this
would indeed be
appropriate and therefore no costs order will be made.
The
following order is therefore made:
THE
APPEAL IS DISMISSED.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
______________________
V
M PHATSHOANE
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
______________________
M
MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Adv. Mpofu S.C.
Instructed
by:
Mzuzu Attorneys, Kimberley
For the Respondent:
Adv J J Cloete
Office
of the Director of Public Prosecutions, Northern Cape
[1]
All of whom had, unlike the appellant, been legally represented at
those proceedings.
[2]
In other words to the date in February 2016 to
which the case had in any event already been postponed.
[3]
As opposed to
could
legally be granted by him.
[4]
In other words
for him to consider its
postponement or striking off.
[5]
In the course of his argument Mr Mpofu conceded that, in view of the
existing order postponing the criminal proceedings to February
2016,
and in view of the fact that the appellant’s co-accused were
not present or represented when the application was
heard, the
refusal of a postponement would in fact not have been an appropriate
order.
[6]
51 of 1977
[7]
Section 342A (3) of the Act
[8]
Compare section 158 of the Act.
[9]
Compare section 157(2) of the Act.
[10]
Compare
S v Khalema
and Five
Similar
Cases
2008 (1) SACR 165
(C) paras [26]
to [30]
[11]
Compare
Roberts v
Chairman Local Road Transportation Board, and Another (1)
1980 (2) SA 472
(C) at 476G-H
[12]
In other words, even if it could be argued that
the criminal proceedings were in some way indeed before the Court
a
quo.
[13]
By section 13 of Act number 86 of 1996
[14]
Sections 155 and 156 of the Act
[15]
Compare
Monamodi v
Sentraboer Co-operative
1984 (4) SA
845
(W) at 851 D;
Stellenbosch Wine
Trust Ltd and Others v Oude Meester Group Ltd and Others
1977 (2) SA 221
(C) at 240D
[16]
In the case where the trial is to take place in a high court of that
division.
[17]
……………………………………………………………………………………….
[18]
Some of which are pending in courts in Kwazulu-Natal.
[19]
Section 342A(3)(c) of the Act.