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[2015] ZAGPPHC 407
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Steyl v National Director of Public Prosecutions and Another (27307/2013) [2015] ZAGPPHC 407 (9 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case
number: 27307/2013
Date:
09/06/2015
In
the matter between:
MARTHINUS
PHILLIPUS
STEYL APPLICANT
And
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS 1
ST
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
SOUTH
GAUTENG 2
ND
RESPONDENT
JUDGMENT
PRETORIUS
J,
[1]
This
is an application in terms of which the applicant seeks a final
order:
“
That the respondents are directed to
comply with the terms of the plea agreement entered into between them
and the applicant on
5 November 2012 under Kempton Park Regional
Court Case No: RC143/11 and are, in the premises interdicted
from proceedings
with the prosecution against the applicant on
charges upon which he stood arraigned in the said case number, as
well as from proceeding
with any other prosecution on any other
charges which might arise out of the same facts”
And the relevant costs order.
[2]
The
application relates to the applicant’s prosecution in the
Regional Court, Kempton Park. The applicant with six other
individuals were arraigned on 78 charges, which included charges of
contravening the Customs and Excise Act, 91 of 1964; the National
Environmental Management: Bio-diversity Act, 10 of 2004 (“NEMBA”)
and contravening section 4 of the Prevention of Organised
Crime Act,
121 of 1998 (“POCA”). The charges originated from
Mr Lemthongthai hunting rhinoceros on the applicant’s
farm.
The proceedings commenced as an opposed motion but due to the
numerous factual disputes it was referred to trial.
[3]
The
crisp question to be determined, according to the respondent is
whether a plea bargain agreement was concluded between the applicant
and the respondents and whether the applicant had established a clear
right for the purpose of granting a final interdict.
[4]
The
court, if it finds that such a plea bargain exists, should determine
whether such an agreement would be enforceable against
the
respondents. The question would be whether Adv Simpson had the
authority to enter into such a plea agreement on behalf
of the State.
[5]
The
applicant was represented in the court
a
quo
by Mr A Griebenow, who also represented accused 6 and 7. Mr
Chumlong Lemthongthai was represented by Adv TN Price SC, who
had
been instructed by Mr JKK Dempsey, who represented accused 4.
Mr D Mostert, an attorney represented Mr Punpitak Chunchom.
The
State was represented by Adv Simpson.
[6]
The
case was set down for hearing for two weeks, commencing on 5 November
2012 in the Kempton Park Regional Court. All the
parties were
ready to proceed at the time. On 5 November 2012 Adv Simpson
arrived at court and after an initial discussion
with Mr Dempsey and
Adv Price SC, Adv Simpson arranged for an empty room in the court
building to have further discussions.
These discussions were
attended by Advocates Simpson, Price and Messrs Griebenow, Dempsey
and Mostert, as well as Mr Mudally, representing
the Receiver of
Revenue.
[7]
Adv
Simpson had indicated in his initial conversation with Adv Price and
Mr Dempsey that he would accept a plea of guilty from Mr
Lemthongthai
and withdraw the charges against all the other accused.
[8]
It
is common cause that Mr Griebenow and Adv Simpson had approached the
Regional Court Magistrate in chambers, informing him that
the matter
would stand down and that the proceedings might be curtailed.
[9]
Adv
Price SC informed Adv Simpson that Mr Lemthongthai would plead guilty
to the first 52 charges. Adv Simpson indicated that
he would
accept the plea of guilty on those charges. He further
indicated that he would withdraw the further charges against
Mr
Lemthongthai and withdraw all charges against the remaining accused.
[10]
Adv
Simpson contacted his superior, Adv Mona Naidoo, on 5 November 2012
after the discussions between all the legal representatives.
Adv Mona Naidoo was a Senior Deputy Director of Public Prosecutions
at the time.
[11]
All
the parties then proceeded to court where Adv Simpson advised the
court he was withdrawing the remainder of the charges against
Mr
Lemthongthai as he had agreed to plead guilty to 52 counts. Adv
Price SC then presented the plea he had prepared in terms
of
section
112(2)
of the
Criminal Procedure Act, 51 of 1977
. It was set
out in the plea explanation, as read into the record by Adv Price,
that Mr Lemthongthai confirmed that the applicant
did not know that
the hunters were merely a front for Mr Lemthongthai to export rhino
horn for trade and not for trophy.
[12]
This
plea by Mr Lemthongthai was accepted by Adv Simpson on behalf of the
State.
[13]
Thereafter
the Regional Court Magistrate convicted Mr Lemthongthai of the 52
charges. This resulted in Adv Simpson withdrawing
all the
charges against the other six accused, as well as the remainder of
the charges against Mr Lemthongthai.
[14]
Mr
Mudally, from SARS, had attended the meeting in the office when the
process was discussed and had concurred with the plea agreement
and
subsequent withdrawal of charges against the other accused. It
was recorded at the hearing in the Regional Court that
Adv Simpson
had informed the court on 5 November 2012 as follows:
“
The State is going to withdraw the rest
of the charges against accused 1 as well as the charges against the
rest of the accused
on the premise of the guilty conviction of
accused 1 on those counts.”
[15]
The
applicant understood, at that time, that he would never again be
prosecuted on the charges that had been withdrawn against him.
[16]
On
5 December 2012 the applicant was arraigned in the court in Vryburg
and was represented by Mr Griebenow. He was released
on bail.
The prosecutor informed the court that the applicant would be facing
charges, which according to the transcribed
record would
“
verskil…redelik
drasties van die wat hom in Kempton Park hom ten laste gelê
was
”.
It was clear that the first 29 charges of fraud, as well as counts 30
and 31 were predicated on the exact same matrix
as that upon which
the charges in Kempton Park Regional Court were based. The
first 29 charges correspond with the alternative
counts to counts 27
to 52 in the Regional Court, Kempton Park. Counts 30 and 31
were based on a contravention of
section 57(1)
of NEMBA. Those
are the same charges as the main counts 27 to 52 in the Regional
Court, Kempton Park.
[17]
Both
the applicant and Mr Griebenow confirmed that the understanding on 5
November 2012 at Kempton Park was that the applicant would
not be
prosecuted on charges that emanated from the same facts. They
understood that the withdrawal of the charges was final
and
permanent.
[18]
Mr
Griebenow set out that Adv Price SC and Adv Simpson’s
negotiations were initially to conclude an agreement in terms of
section 105A
of the
Criminal Procedure Act. The
parties could
not reach an agreement as to which sentence would be appropriate in
the circumstances. Mr Griebenow set out
in his affidavit at
paragraph 15:
“
Mr Simpson thereupon said that he will
be comfortable if Accused 1 tenders a plea of guilty on the main
charges on counts 1 to 26
as well as on the main charges on counts 27
to 52, that evidence be led and arguments be made on what sentence
should be imposed
on Accused No. 1 and that if Accused 1 would tender
such plea and be convicted, he will withdraw the charges finally
against the
other accused including the Applicant.”
[19]
He
confirmed this evidence under oath in this court and Mr Dempsey
confirmed that it was the position at the time.
[20]
Mr
Griebenow’s evidence was that he had enquired from Adv Simpson
whether he had the authority to conclude such an agreement.
Adv
Simpson advised the legal representatives that he would inform his
supervisor, Adv Naidoo, which he did. He reverted
to the legal
representatives and informed them that Adv Naidoo confirmed that he
may accept the plea bargain as discussed.
Neither Adv Simpson
nor Adv Naidoo explained why the procedure as set out in
section
157(2)
of the
Criminal Procedure Act was
not followed, requesting a
separation of trials if the intention was not to withdraw the charges
permanently. Adv Simpson
did concede, under cross-examination,
that he did not intend to prosecute the other six accused again.
The withdrawal of
the charges against the one foreigner, Mr Punpitak
Chunchom, lead to him leaving the country and thus not being able to
be charged
once more.
[21]
Adv
Simpson’s evidence in respect of the call he had made to Adv
Naidoo confirms Mr Griebenow’s evidence that he, Mr
Griebenow,
had asked Adv Simpson whether he had the authority to conclude the
agreement. It is common cause that Adv Naidoo
is Adv Simpson’s
supervisor.
Section 20
of the
National
Prosecuting Authority Act, 32 of 1998
deals with the power to institute and conduct criminal proceedings.
Section 20(1)
provides:
“
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.”
Section
20(4) provides:
“
Subject to the provisions of this Act,
any Deputy Director shall, subject to the control and directions of
the Director concerned,
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)
such offences and in such courts, as he or she has been authorised in
writing by the National Director or a person
designated by the
National Director.
”
[22]
Mr
Griebenow, as an attorney with vast experience in criminal matters
realised that Adv Simpson on his own, without the authority
of the
Deputy National Director could not enter into such an agreement.
[23]
Adv
Price SC’s evidence was that Mr Lemthongthai had pleaded guilty
prior to 5 November 2012 when appearing in court, but
had changed his
plea in terms of section 113 after Adv Price SC started representing
him. He confirmed that Mr Griebenow
questioned Adv Simpson’s
authority to accept the plea, which resulted in the phone call to Adv
Naidoo. His evidence
was that Mr Mudally was present during the
negotiations in the office and Mr Mudally had confirmed that he was
satisfied with the
plea. Adv Price furthermore testified that
during sentencing procedures the transcript of the record is correct
where the
following is set out at page 49 whilst Adv Price SC was
cross-examining Ms S Jordan, who testified in aggravation of
sentence:
“
The charges have been withdrawn madam.
The prosecutor (intervenes). --- The charges have been withdrawn
because the deal was
made behind closed doors that we certainly did
not agree with and would not agree with and as activists will look
at, which we
are entitled to, reinstating these charges with the DPP.
Madam certainly (inaudible) very well. Let me tell you this.
PROSECUTOR:
Your
Worship I have to object. Certainly Adv Price understands the
process. Obviously if a charge is withdrawn it does
not mean it
is an acquittal or it disappears. It is part of the process and
the witness is perfectly correct. There
is a higher authority
that may make a different decision.
ADV PRICE:
Your
Worship if that is going to be the position then we must stop this
case right now because the agreement with Mr Simpson was
that we
would plead guilty for accused 1 the charges against accused number,
the other accused would be withdrawn and they would
not be proceeded
with otherwise we would not have pleaded. It is part and parcel
of the deal your Worship. If he is
coming up with something
else now then this matter must go on review right now. That was
the agreement. I can put five
witnesses here for your Worship
that will confirm that.”
[24]
Adv
Price SC’s evidence was that as Adv Simpson did not make any
further statements regarding the withdrawal of the charges
against
the other six accused, he accepted that the withdrawal was
permanent. His evidence is that if that had not been the
case,
he would have changed Mr Lemthongthai’s plea to one of not
guilty and proceeded with the trial.
[25]
Mr
Dempsey, who had originally appeared in the court representing the
fourth accused, confirmed Adv Price SC’s evidence regarding
the
plea agreement in all respects. The importance of his evidence
is that he confirmed that Adv Simpson conveyed to all
the legal
representatives that his superior, Adv Naidoo, had acquiesced to the
plea agreement. He was never under the impression
that the
other six accused would be prosecuted at a later stage. He was
in court when Adv Price informed the court that if
it was not an
agreement that the other accused would not be prosecuted then Mr
Lemthongthai would change his plea and the trial
can proceed.
His impression was not that the agreement would be questioned as Adv
Simpson did not respond to the statement
by Adv Price in court and he
accepted, as did the other legal representatives, that the matter was
permanently disposed of.
[26]
Mr
Griebenow represented accused 2, 6 and 7 at the trial. He was
also instructed by Mr Dempsey as Mr Griebenow does only criminal
work
as an attorney. He confirmed that all parties were prepared to
start a two week trial. His evidence was that Adv
Simpson
informed him that he would not be available for the second week, as
he had to have an operation. Mr Griebenow expressed
his
displeasure as all the parties had cleared their diaries for two
weeks. This evidence was never denied by Adv Simpson.
This information lead to Mr Griebenow asking whether there was a
possibility of talking about a plea and Adv Simpson agreed thereto.
[27]
He
confirms that although there had not been a plea agreement in terms
of section 105A, there was an agreement between the parties
that Mr
Lemthongthai would plead guilty and all charges against the other six
accused would be permanently withdrawn. Adv
Simpson insisted
that he would not withdraw the charges against the six accused,
before Mr Lemthongthai was convicted. His
evidence confirms the
evidence as to how the plea agreement was reached, as well as the
evidence that Adv Simpson informed them
that Adv Naidoo had agreed
and said he could continue with the process as agreed.
[28]
On
1 December 2005 the investigating officer called Mr Griebenow,
informing him that his client, Mr Steyl, the second accused was
going
to be charged once more on instruction of Adv Spies. According
to Mr Griebenow, Adv Simpson had indicated that if Mr
Lemthonghai
pleads guilty and the charges were withdrawn against the other
accused, justice would have been served. Mr Griebenow
reiterated that there would only have been a guilty plea by Mr
Lemthongthai if the other accused got what they wanted, which was
that all charges against the six accused would be permanently
withdrawn, According to Mr Griebenow there was no room for
any
misunderstanding.
[29]
Mr
Lemthongthai, who is a Thai citizen, did not testify, due to the fact
that no Thai interpreter, who spoke his dialect, could
be found.
His affidavit was submitted to the court and admitted provisionally
by agreement between the parties. That
concluded the
plaintiff’s case.
[30]
Adv
Simpson gave evidence that he was a senior state advocate at the
time, deployed to the tax division of the Department of Public
Prosecutions. He was the prosecutor when Mr Lemthongthai had
been charged on his own and where Mr Roets represented Mr
Lemthongthai.
At that stage Mr Lemthongthai pleaded guilty, but
subsequently changed his plea to not guilty in terms of
section 113
of the
Criminal Procedure Act. This
took place during August
2011.
[31]
On
5 November 2012 he was the prosecutor in the case against Mr
Lemthongthai and the other six accused. He confirmed that
there
was a meeting with all the legal representatives, which was also
attended by Mr Mudally. Mr Mudally represented the
South
African Revenue Services who was the actual complainant in the case.
[32]
Adv
Simpson admitted that a plea agreement had been reached, but that a
plea in terms of secion 105A could not be presented, as
he and Adv
Price SC could not agree on a suitable sentence in the
circumstances. Adv Simpson conceded that the plea agreement
was
that Mr Lemthongthai would plead guilty to certain charges and only
after his conviction would the balance of the charges against
him and
all the charges against the other six accused be withdrawn.
[33]
Adv
Simpson’s evidence was that there was a lot of pressure from
the media and interest from the public at large in this case
where
dealing in rhino horn was and is a burning issue. He admitted
that public interest played a huge roll at the time.
[34]
His
evidence was that he had informed Adv Naidoo of his decision to
accept the plea and to withdraw the charges against the six
other
accused. He denied that he could have withdrawn the charges
permanently as he did not have the authority to do so.
Ms
Jordan, who testified in aggravation of sentence, was at all times
present in the Regional court. She was unhappy that
the case
against the six accused had been withdrawn. At the time Adv
Simpson thought it was the correct decision to accept
the plea in the
circumstances as the risk of a trial was, according to him, not worth
his while. He had obtained the conviction
of accused 1.
[35]
He
confirmed his statement as recorded in his affidavit:
“
I decided in terms of the provisions of
Section 6(a)
of the
Criminal Procedure Act to
withdraw the aforesaid
charges and I was of the view that the charges upon which
Lemthongthai was convicted by the Regional Court
were serious enough
to justify not pursuing the charges against the other remaining
accused. In other words, when considering
the offences that
have been committed against the interests of the public, I was of the
view that public interest would be adequately
served by the
conviction of Lemthongthai on the charges that he had pleaded guilty
on.”
[36]
It
is clear from this statement that he had no interest to prosecute the
other accused again. He admitted to a question by
the court
that he had no intention of instituting the same charges against the
accused.
[37]
Adv
Spies discussed the matter with Adv Simpson and he wrote a memo to
her. Although he had known that charges 53 to 78 were
serious
as it related to crimes under POCA, his evidence was that he only
phoned Adv Naidoo to use her as a sound board.
According to Adv
Simpson it was the best decision under the circumstances.
[38]
Adv
Simpson’s evidence in regards to Adv Price’s objection in
court, when it was indicated that the accused may be prosecuted
again, cannot be accepted. He is an experienced prosecutor and
cannot hide behind the fact that he had thought the magistrate
had
ruled.
[39]
Adv
Spies is a senior state advocate who is in control of matters
concerning rhinoceros nationally. She was aware of the matter
in Kempton Park on 5 November 2012. She submitted a memo to the
Acting National Director of Public Prosecutions on 30 May
2013.
The purpose of this memorandum was to inform the Acting National
Director of Public Prosecutions about the matter and
how the
withdrawal of the charges had come about.
[40]
Her
evidence was that had it not been for queries from parliament and the
media she would not have instituted prosecution again.
Adv
Spies conceded that the current charges were based on the same
factual matrix on which the charges in Kempton Park were based.
[41]
Adv
Spies confirmed her conclusion in her report to the National Director
of Public Prosecutions where she stated in paragraph 19.5.1:
“
The re-institution of the charges was
proceeded with on the basis and with the knowledge that Advocate A
Simpson and Advocate M
Naidoo insisted that there was no agreement
with the defence counsel. However, it now appears, as mentioned
above, that an
agreement was indeed concluded between Advocate A
Simpson and the legal representatives.”
And at paragraph 19.5.5:
“
It can therefore not be denied that the
current charges are based on the same factual matrix on which the
charges in Kempton Park
were based, as contended in the Application.”
[42]
Adv
Naidoo, the Deputy Director of Public Prosecutions and Adv Simpson’s
superior, confirmed Adv Simpson’s evidence
that he had called
her on 5 November 2012. He indicated to her that he had decided
to accept the plea and withdraw the charges
against the other
accused. She had enquired from him whether he had informed all
the other parties and he confirmed that
he had. She told Adv
Simpson that she supported his decision. Her evidence was that
she was satisfied if Mr Lemthongthai
was convicted and the charges
withdrawn against the other accused, although she had, at the time,
no knowledge of the contents
of the charge sheet. She had
exercised her powers as his superior by supporting him, as she had
the authority to do so in
terms of
section 20
of the
National
Prosecuting Authority Act. She
further confirmed that the media
outcry contributed to the decision to prosecute the applicant once
more.
[43]
Mr
Mudally’s evidence representing SARS, did not take the matter
any further.
The Legal Principles:
[44]
In
North
Western Dense Concrete CC and Another v Director of Public
Prosecutions, Western Cape 2000(2) SA 78 (C)
the facts were similar to the present facts. In that matter an
order was asked similar to the present order in the present
matter
that the Director of Public Prosecutions is to be kept to the plea
agreement reached and an order interdicting the Director
of Public
Prosecutions from proceeding with prosecution.
[45]
Uijs
AJ gave a detailed explanation of the history of plea bargaining
before the present constitutional dispensation. He found
at
p85:
“
To acknowledge that plea bargaining is
an integral part of the process of criminal justice in South Africa
is to face the truth.
Too many articles in legal journals
spelling out this fact have been written to ignore the findings of
the learned authors thereof.
See the articles referred to
hereinabove. See also Waney ‘Pleitonderhandeling:
Oorspong en ‘n Toekomsblik’
(1996) 9 SACJ 310.
”
And at page 86:
“
Not
only, as I have pointed out, is the prosecutor dominus litis; not
only does the court enjoy no power to prevent a prosecutor
form
accepting a plea:
the
fact is that, once a plea has been accepted on a certain factual
basis, the prosecutor is bound by the facts upon which agreement
has
been reached
.”
(Court’s
emphasis)
[46]
In
the Full Bench decision of
Van
Eeden v Director of Public Prosecutions, Cape of Good Hope 2005(2)
SACR 22 (C)
,
which was decided before
section 105A
of the
Criminal Procedure Act
51 of 1977
had come into effect, the facts were similar to the
present case. The court referred to Christie, The Law of
Contract 4
th
ed at page 93 where a quasi-mutual assent is described as:
“
In
the quasi-mutual assent situation it is accepted that there is no
true consensus ad idem. The one party says “But
I never
agreed”, to which the court replies “
Quite
so, but your conduct led to other party reasonably to believe you
agreed, so you will be treated as if you agreed
””.
(Court’s
emphasis)
[47]
Section
35(3) of the Constitution provides that every accused person has a
right to a fair trial.
[48]
In
S
v Zuma and Others 1995(1) SACR 568 CC
Kentridge AJ found at para 16:
“
That
caveat is of particular importance in interpreting section 25(3) of
the Constitution.
The
right to a fair trial conferred by that provision is broader than the
list of specific rights set out in paras (a) to (j) of
the
subsection. It embraces a concept of substantive fairness which
is not to be equated with what might have passed muster
in our
criminal courts before the Constitution came into force
.”
(Court’s
emphasis)
[49]
In
the
Van
Eeden
case (
supra
)
it was held at para 23:
“
One
of the elements of those ‘notions of basic fairness and
justice’ is that the State is to be held to a plea bargain
which it has made or is deemed to have made. This is an element
of substantive fairness as Uijs AJ held in North Western
Dense
Concrete,
it
would be ‘palpably unfair’ to allow the prosecution to
enjoy the benefits of a plea agreement, but to be able to
avoid doing
what was clearly contemplated when that agreement was reached
”.
(Court’s
emphasis)
And at para 24:
“
Where
there are multiple accused, one, of course, cannot automatically
infer from a guilty plea by one accused, and a withdrawal
of charges
against another accused, that there has been a plea bargain which
binds the State not to re-institute charges.
Whether
there was an agreement is a question of fact
.”
(Court’s
emphasis)
[50]
The
National Director of Public Prosecutions issued directives on 14
March 2002 pursuant to the provisions of
section 105A(11)
of the
Criminal Procedure Act. Directive
1 provides:
“
1.
The procedure enacted in
s 105A
does not supplant the standard
procedure for pleas of guilty in terms of s 112 of the Act.
The
established practice of accepting initial pleas of guilty on the
basis of bona fide consensus reached, remains applicable
.
Section 105A is a complementary disposal mechanism.”
(Court’s
emphasis)
[51]
I
find that the Director of Public Prosecutions has acknowledged that
other forms of plea agreements exist and that
section 105A
of the
Criminal Procedure Act is
merely an extra means where a plea of
guilty and an agreed sentence is to be dealt with in terms of
section
105A.
It does not exclude a
section 112
plea or other
agreements on pleas reached between the State and the defence.
[52]
In
the
Van
Eeden
case
(
supra
)
Budlender AJ held at para 19:
“
It
is not necessary to debate whether the agreement is better described
as a contract or as an undertaking to which the State is
bound under
public-law principles.
Whatever
the correct jurisprudential niche may be, the State is bound by a
plea bargain, as was held in North Western Dense Concrete
(supra).
This is an aspect of the constitutional right to a fair trial
.”
(Court’s
emphasis)
[53]
In
the recent case of
S
v EA 2014(1) SACR 183 (NCK)
before the Full Bench it was once again reiterated that the court
does not have an unlimited discretion to intervene as the National
Prosecuting Authority decides whether to prosecute or not.
Courts will only interfere in exceptional cases.
[54]
In
S
v EA
the court found at para 19:
“
It was, in the circumstances of this
case, unfair and not in accordance with the notions of basic fairness
to prosecute the accused
again. We are therefore entitled to
interfere in this matter, a decision we have not taken lightly.
The NPA should
be kept to the expectation that the prosecutor
created.”
[55]
The
present matter can be distinguished as here I have found that there
was an express agreement, as testified to by the legal
representatives of the accused and conceded by Adv Simpson under
cross-examination, where counsel put it to Adv Simpson:
“
Dit is presies wat hier gebeur het.
‘n Ooreenkoms aangegaan is, beskuldigde een pleit skuldig op
voorwaarde dat hy skuldig
bevind word en dan word teruggetrek teen
die ander.”
Adv Simpson’s reply was:
“
Dis wat gebeur het.”
[56]
In
these circumstances the interest of justice was not served when it
was decided to prosecute the applicant once more on basically
the
same charges based on the same factual matrix. I find that it
was not fair to prosecute the applicant in these circumstances.
[57]
I
find it improbable that all the legal representatives were present at
the discussion between Adv Price, Mr Dempsey and Adv Simpson
if the
discussion did not impact on their clients’ position. It
is further clear from Adv Simpson’s words in
court that he was
going to withdraw the charges “
against
the rest of the accused
on
the premise
of the guilty conviction of accused 1 on those counts
”
(Court’s emphasis). He was thus linking the guilty plea
of accused 1 to the withdrawal of all charges against
the other
accused.
[58]
The
reason why accused 1 was prepared to plead guilty was as set out in
his
section 112
plea. He stated,
inter
alia
:
“
21. None of the
coutfitters/landowners (including accused 3) were aware of the
abovementioned facts, in
short they did not know that the (hunters)
were a front for our decision to export rhino horn for trade and not
for trophies.
”
[59]
It
is also evident that the agreement between the parties was that they
would not be prosecuted again. All the legal representatives
were ready to proceed with the trial for two weeks and I find it
highly improbable that they would all stand by and have charges
against their clients withdrawn only to be charged again at a later
stage. If that was the intention a separation of trials
would
have been a much better option under these circumstances and they
would have suggested it.
[60]
Adv
Simpson wrote two memoranda setting out why he had withdrawn the
charges. In these memoranda he set out 20 reasons for
the
withdrawal of the charges. His evidence was that, according to
him, the interest of justice was served and sufficient
redress for
the public at large was obtained. In his memoranda he set out
that he did not have sufficient evidence for a
conviction against the
other accused.
[61]
Adv
Spies had noted in her diary that on 7 November 2012 Adv Simpson had
called her and she had noted, inter alia, “…
ander
is arresteer om druk op Chumlong te sit. T/t want geen getuienis
”.
This phone call was made two days after the charges against the other
accused, including the applicant, had been
withdrawn. The
concession Adv Simpson made under cross-examination was that the
withdrawal of the charges against the other
accused was conditional
upon the guilty plea and conviction of Mr Lemthongthai on the first
52 charges.
[62]
I
have considered all the evidence and probabilities and can come to no
other conclusion but that there was an agreement that the
applicant
would not be prosecuted again. This is a decision that has not
been taken lightly as it pertains to the heinous
crime of poaching of
rhinoceros, where our wildlife heritage is being decimated on a daily
basis. However, the court cannot
make decisions in an emotional
manner and has to consider the facts of the case. The
concession made by Adv Simpson supports
the applicant’s case
that the withdrawal was final.
[63]
All
the evidence, when properly considered, leads to the court to believe
that, when probabilities are considered and taken into
account, the
applicant was informed, through his legal representative, that the
withdrawal of all the charges was final.
It was thus unfair in
these circumstances, due to pressure by the public, to institute the
same charges against the applicant.
The respondent is bound by
the agreement which it had entered into. The Constitution
guarantees the right to a fair trial.
In these circumstances I
find that there was a valid agreement and that the applicant’s
right to a fair trial would be compromised,
should he be prosecuted
again on the same charges. The interest of justice would not be
served if the applicant is tried
on the same charges that had been
withdrawn as there would be no substantive fairness.
[64]
I
have considered all the evidence and the arguments carefully, as well
as the authorities. If I apply the
dictum
as set out in the
North
Western Dense
case (
supra)
and the
Van
Eeden
case as well as the
S
v EA
case, then there is no other conclusion than that it would not be
fair to prosecute the applicant once more. I agree with
the
principles enunciated in these cases. The National Prosecuting
Authority cannot enter into agreements and then, due to
public
outcry, renege on the agreements.
[65]
I
find that it was justified for the applicant to make use of a senior
and junior counsel and that the applicant is entitled to
his costs.
[66]
Therefor
I make the following order:
1.
The
respondents are directed to comply with the terms of the plea
agreement entered into between them and the applicant on 5 November
2012 under Kempton Park Regional Court Case No.: RC143/11.
2.
The
respondents are interdicted from proceeding with the prosecution
against the applicant on the charges upon which he stood arraigned
in
the said case under the said case number, as well as from proceeding
with any other prosecution on any other charges which might
arise out
of the same facts.
3.
The
respondents are ordered to pay the costs of the application,
inclusive of the costs of two counsel.
_____________________
Judge
C Pretorius
Case number
: 27307/2013
Appeal heard on
: 4 to 7 May 2015
For the Applicant
: Adv. Ferreira SC/Adv. Pretorius
Instructed by
: Jaco Dempsey Attorneys
For the Respondent
: Adv. Ramawele
Instructed
by
: STATE ATTORNEY
Date of Judgment
: 9 June 2015