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[2016] ZAGPPHC 356
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Moti v National Director of Public Prosecutions and Another (65493/15) [2016] ZAGPPHC 356 (24 May 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA}
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
24/5/2016
CASE
NO: 65493/15
In
the matter between:
ZUNAlD
ABBAS
MOTI Applicant
and
THE NATIONAL DIRECTORS OF
PUBLIC
PROSECUTIONS First
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG
DIVISION Second
Respondent
JUDGMENT
MOSEAMO
AJ
INTRODUCTION
[1] This is an
application where applicant seeks an order:
‘
1. Declaring that
the decision of the first respondent not to institute a prosecution
against the applicant flowing from the incident
in respect of which
the applicant had made representations to it on 6 November
2011, and communicated by way of the letter,
dated 22 August 2013,
...stands;
2. declaring that the
decision cannot be revisited by the first respondent, the first
respondent being functus officio;
3. interdicting both
respondents from reconsidering the decision referred to;
4. alternatively to
paragraph 1, 2 and 3 above, an order that the first respondent must
produce to the applicant, within 7 (seven)
days of this order:
4.1.
a charge sheet, setting out detailed,
circumscribed and understandable offence(s), alternatively, a summary
of substantial facts,
in respect of the events in respect of which
the first respondent is considering to reinstitute a prosecution
against the applicant;
and
4.2.
a copy of the Police Docket under Brits CAS
219/04/2011;
5. cumulative to
paragraph 4 above, an order granting the applicant 14 (fourteen) days
from the date of production of the documents
referred to in paragraph
4 above within which to make representations to the consideration of
criminal proceedings against the
applicant;
6. costs of the
application as against the respondent who may oppose; and
7. further and or
alternative relief.'
[2]
At the hearing of this application applicant's counsel indicated that
the applicant is abandoning the alternative prayer contained
in
paragraph 4 and 5 of the notice of motion.
[3]
First respondent did not oppose the application while the second
respondent indicated that they will abide by the decision of
the
court. I therefore do not have the benefit of the respondents' heads
of argument.
The
power of the court to hear this application
[4]
It is correctly submitted on behalf of the applicant that the
prosecutorial decisions are not reviewable under PAJA further
that
where the decision to prosecute or not to prosecute is in breach of
principle of legality, the court has the power to review
such a
decision. In my view the court has jurisdiction to hear this
application.
BACKGROUND
[5]
The applicant and 18 others were charged in the Britz Regional Court
on a number of counts linked to two separate incidents
during April
and November 2011. The matter was struck from the roll on the 1st
November 2012 in terms of S342A(3)(c) of the Criminal
Procedure Act
51 of 1977 (CPA).
[6]
On the 5th November 2011 the applicant's attorneys made
representations to the first respondent. The letter containing
representations
was also copied to the DPP's office. Andrea Johnson
(Johnson) from the office of the second respondent was tasked to deal
with
the matter. The applicant's attorneys made further
representations to Johnson on the 13th December 2012. Johnson
notified the applicant's
attorneys of her decision not to prosecute
the applicant on the 22 August 2013.
[7]
On the 14th November 2014 the applicant's attorneys received a letter
from the second respondent's office dated 10 September
2014
indicating that they have decided to prosecute the applicant. I will
refer to this decision as Baloyi's decision. The applicant
brought a
review application under case number 83142/2014 against that
decision. The Baloyi's decision was successfully reviewed
and set
aside by the court on the 4th February 2015.
[8]
On the 17th June 2015 the applicant's attorneys received a letter
from the Deputy National Director of the Public Prosecutions
(Deputy
NDPP) inviting the applicant to make representations in respect of
CAS 219/04/2011 to enable acting NDPP to consider them
before making
a final decision in the matter. I will refer to this decision to
revisit Johnson's decision by the first respondent's
office as
Ramaite's decision.
THE
ISSUE
[9]
The main issue before me is whether the first respondent can
reconsider the decision taken by Johnson.
WHETHER
THE FIRST RESPONDENT HAS THE POWER TO REVISIT JOHNSON'S DECISION.
[10]
It is submitted on behalf of the applicant that the decision made by
Johnson is the decision of the first respondent and that
the attempt
by the first respondent to revisit that decision is ultra vires and
in breach of the principle of legality and thus
reviewable.
[11]
The reason for this application is the letter written by the Deputy
NDPP which states as follows:
'RIGHT TO MAKE
REPRESENTATIONS TO THE NDPP IN RESPECT OF STATE versus
HOOSEIN MOHAMMED AND 18 OTHERS
Brits Cas 272/04/2011 and
Others
This Office previous
communication in the above regard refers.
Kindly be advised that
the Director of Public Prosecution, North Gauteng has since advised
this office that he has decided not to
institute prosecutions in
respect of all matters that formed part of your initial
representations, with the exception of Brits
CAS219/04/2011. You are
therefore in terms of section 179(5)(d) of the Constitution, Act 108
of 1996 invited to submit representations
to the acting NDPP in
relation to the said matter, i.e Brits CAS 219/04/2011, to enable him
to consider same before making a final
decision in the matter.
Yours faithfully
_____________________________
M SILAS RAMAITE, SC
DEPUTY NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS HEAD: NPS . .. '
[12]
In this letter the Deputy NDPP called upon the applicant to make
representations before the acting NDPP can make a final decision
regarding whether to prosecute or not to prosecute the applicant. The
structure and powers of the prosecuting authority are set
out in
section 179 of the Constitution.
[13]
Section 179 of the Constitution in the relevant parts provides as
follows:
'(1) There is a single
national prosecuting authority in the Republic, structured in terms
of an Act of Parliament, and consists
of -
(a)
a
National Director of Public Prosecutions who is the head of the
prosecuting authority, and is appointed by the President, as the
head
of the national executive; and
(b)
Director of Public Prosecutions and Prosecutors
as determined by an Act of Parliament.
(2) The prosecuting
authority has the power to institute criminal proceedings on behalf
of the state, and to carry out any necessary
functions incidental to
instituting criminal proceedings.
(3) ...
(4) ...
(5) The National Director
of Public Prosecutions -
(a)
...
(b)
...
(c)
...
(d) may review a decision
to prosecute or not to prosecute, after consulting the relevant
Director of Public Prosecutions and after
taking representations
within a period specified by the National Director of Public
Prosecutions, from the following:
(i) the accused person
(ii) the complainant
(iii) any other person or
party whom the National Director considers to be relevant.
(6) ...
(7) All other matters
concerning the prosecuting authority must be determined by national
legislation.'
[14]
The national legislation referred to in section 179 was enacted in
the form of National Prosecuting Authority Act 32 of 1998
(NPA Act).
Section 20 of the NPA Act deals with the power to institute and
conduct criminal proceedings. It provides as follows
in the relevant
parts:
'(1) The power, as
contemplated in section 179(2) and all other relevant sections of the
Constitution, to -
a)
institute and conduct criminal proceedings on
behalf of the State;
b)
carry out any necessary functions incidental to
instituting and conducting such criminal proceedings; and
c)
discontinue criminal proceedings vests in the
prosecuting authority and shall, for all purposes, be exercised on
behalf of the Republic.
(2) ...
(3) Subject to the
provisions of the Constitution and this Act, any Director shall,
subject to the control and directions of National
Director, exercise
the powers referred to in subsection (1) in respect of -
a)
the area of jurisdiction for which he or she has
been appointed; and
b)
any offences which have not been expressely
excluded from his or her jurisdiction, either generally or in a
specific case, by the
National Director.
(4) Subject to the
provisions of the Constitution and this Act, any Deputy Director
shall, subject to the control and directions
of National Director,
exercise the powers referred to in subsection (1) in respect of -
a)
the area of jurisdiction for which he or she has
been appointed; and
b)
any offences which have not been expressely
excluded from his or her jurisdiction, either generally or in a
specific case, by the
National Director.
(5) Any prosecutor shall
be competent to exercise any of the powers referred to in subsection
(1) to the extend that he or she has
been authorised thereto in
writing by the National Director, or by a person designated by the
National Director.
(6) A written
authorization referred to in subsection (5) shall set out -
a)
the area of jurisdiction;
b)
the offences; and
c)
the court or courts,
in respect of which such
powers may be exercised.
(7) ...'
[15]
Section 179(5)(d) of the Constitution empowers the NDPP to review
decisions to prosecute or not to prosecute, and further provides
the
procedure to be followed. The applicant does not dispute the fact
that the first respondent has the power to review a decision
not to
prosecute. The applicant however contends that the decision by
Johnson is the decision by the first respondent and therefore
the
first respondent is
functus officio.
[16]
The applicant's attorneys made representations on behalf of the
applicant to the NDPP and copied the DPP and others in their
letter
dated 6 November 2011. Johnson was tasked to deal with the matter.
The applicant's attorneys confirmed the above position
in an email
dated 16 November 2012. The email states as follows:
'Dear all
Pursuant to the letters
that we have sent to the NDPP, the OPP and others, I had a telephone
conversation with Adv. Andrea Johnson
from the DPP this morning.
She advised that a
decision has been taken that she would be in charge of the matter and
that the decision to prosecute or not will,
ultimately, be hers to
make.
She further advised that
she will meet the IO on Monday, next in order for her to ascertain
what investigation, if any still needs
to be done in the matter.
She has asked that we, in
the mean time, provide her with detailed written representations.
I secured a meeting with
her at 11:00 on the 101
of December 2012 to make
additional oral written representations.
She has assured me that
no decision will be made before she considered both our oral written
representations.
Kemp and Laurence
Can you please advice
whether you re available on the 101
December 2012?
Regards ...'
[17]
It is clear from the above email that the matter was dealt with by
Johnson from the second respondent's office and further
that she
undertook to consider all the applicant's oral and written
representations before making her decision. The applicant's
attorneys
made further representations on behalf of the applicant to Johnson at
the meeting of the 13th December 2012. Numerous
correspondences were
exchanged between Johnson and applicant's attorneys.
[18]
The letter of the 22 August 2013 contains the decision taken by
Johnson not to prosecute the applicant. It is this decision
that the
applicant refers to as the decision of the first respondent. The
relevant parts of the letter state as follows:
'RE: S V MOTi AND
OTHERS
1.
The representations made by your office refer.
These include the written and verbal representations made with
regards the matter
that was previously on the Brits court roll.
2.
After having considered all the evidence together
with the representations this office has decided as follows:
2.1.
Mr Moti will NOT be prosecuted on any of the
matters on which you directed your representations
2.2.
2.3.
2.4.
The matter has been referred to the office of the
DPP for the institution of the Prosecution.
2.5.
The other matters have also been sent to the
office of the OPP for an allocation to an advocate who must decide
how to prosecute
the other cases.
2.6.
I have recommended that the prosecution of the
November matter be dealt with as matter on its own and not together
with the rest
3.
This office thus closes its file.
Yours faithfully
A JOHNSON
SNR DEPUTY DIRECTOR OF
PUBLIC PROSECUTIONS
DPP NORTH GAUTENG'
[19]
It is apparent from this letter that the decision not to prosecute
was taken by Johnson. Johnson's designation is Senior Deputy
Director
of Public Prosecutions as it appears at the end of the letter. The
letter communicating Johnson's decision is on the letterhead
of
Director of Public Prosecutions North Gauteng, Pretoria. The oral
representations were made to Johnson. The correspondences
exchanged
was between the applicant's attorneys and Johnson.
[20]
It is submitted on behalf of the applicant that the decision by
Johnson is the decision of the first respondent. It is contended
that
the NDPP cannot revisit its own decision. It is not clear to me on
what basis is it contended that Johnson's decision is the
decision of
the NDPP. Although the representations were made to the NDPP's
office, the decision was made by the DPP's office. There
is no
indication that the power to make that decision was delegated to
Johnson to make it the NDPP's decision.
[21]
Section 20(1) of the NPA Act provides that the power to (a) institute
and conduct criminal proceedings on behalf of the State;
(b) carry
out any necessary functions incidental to instituting and conducting
such criminal proceeding ; and (c) discontinue criminal
proceedings
vests in the prosecuting authority and shall, for all purposes, be
exercised on behalf of the Republic.
[22]
Johnson who is a Senior Deputy OPP in the office of the DPP North
Gauteng, Pretoria obtained written and verbal representations
from
the applicant's attorneys and considered the representations before
making the decision not to prosecute the applicant. Section
20(4) of
the NPA Act provides that the deputy director shall exercise the
powers to discontinue criminal proceedings subjected
to the control
and directions of the director concerned.
[23]
In the case of National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at paragraph 64 it is stated:
"... Section 179(2)
is the empowering provision. It empowers the NPA to institute
criminal proceedings, and to carry out 'any
necessary functions
incidental to instituting criminal proceedings'. The power to make
prosecutorial decisions and to review them
flows from this."
[24]
It was further submitted that Ramaite's decision is the same as
Baloyi's decision and should thus suffer the same fate. In
my view
the two decisions are not the same. Baloyi's decision is the decision
of the OPP while the decision by Ramaite is the decision
of the
Deputy NDPP.
[25]
Section 179(5) empowers the NDPP to review the decision to prosecute
or not to prosecute after consultation with the DPP and
after taking
representations from the accused, the complainant or any other person
or party whom the National Director considers
to be relevant.
Baloyi's decision was correctly reviewed as section 179(5) does not
empower the OPP to review its own decision.
[26]
In the NDPP v Zuma case it was stated that 'In the context of sub-sec
(5), the power to review can only be an 'apex' function,
in other
words, a function of the head of the NPA
qua
head. Paragraph
(d) accordingly deals only with the re 1iew of a decision by the
'relevant' DPP ...'
[27]
Johnson as a Deputy DPP had the power to discontinue criminal
proceedings against the applicant. The power to review is in
terms of
the Constitution and the NPA Act the function of the NDPP. The letter
written by Ramaite invited the applicant to make
representations to
enable the acting NDPP to consider them as provided for in section
179(5). I find that the first respondent
is empowered by section
179(5) of the Constitution to revisit Johnson's decision and
therefore the Deputy NDPP acted within the
scope of the empowering
statute.
In
the result I make the following order:
1. Application is
dismissed.
__________________
P
D MOSEAMO
ACTING
JUDGE OF THE HIGH COURT