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[2015] ZAGPPHC 550
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Van Deventer v National Director of Public Prosecutions NO (64268/2013) [2015] ZAGPPHC 550 (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
64268/2013
DATE:
07 AUGUST 2015
In
the matter between:
STEFAN
WERNER VAN
DEVENTER
..................................................................................
Applicant
versus
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
NO
...........................................................................................................
Respondent
JUDGMENT
MATOJANE J
Introduction
[1]
This is an application to review and set aside the decision of the
Respondent not to refer the Applicant’s criminal case
of
driving under the influence and driving without a valid driver’s
license for diversion on the basis that the decision
of the
respondent did not comply with the constitutional principle of
legality.
[2]
The applicant seek an order:
1.
Reviewing, correcting and/or setting aside the Respondent’s
decision not to refer the Applicant’s criminal case,
Lyttelton
CAS 683/10/2009 for diversion;
2.
Directing the Respondent to forthwith consider the applicant’s
representations for the diversion of the criminal
case Lyttelton CAS
683/10/2009, and to take such steps as necessary to ensure that
application for diversion be reconsidered, and/
or alternatively:-
3.
Directing the Respondent to determine a proper policy and or
guidelines for diversion cases, alternatively specific guidelines
for
diversion of specific crimes.
Background
[3]
At approximately 05:10 on 27 October 2009, the applicant, then aged
20 years old, drove a motor vehicle with passengers but
failed to
stop at a red traffic light. He collided with another vehicle that
was damaged beyond economical repair.
[4]
At the time of the collision, the applicant did not have a driver’s
license and was under the influence of alcohol. The
concentration of
alcohol in applicant’s blood was 0.09g/100ml of blood whereas
the legal limit at the time was 0,05g/ml.
[5]
The applicant was arrested on the scene and appeared in Court. The
applicant’s legal representative made representations
to the
senior public prosecutor on 15 October 2012, three years after the
incident to have the trial diverted. These representations
did not
succeed and reasons were provided to the applicant on 12 April 2013.
[6]
The applicants legal representatives then made further
representations to the Director of Public Prosecutions, North Gauteng
16 March 2013 to have the trial diverted. These representations also
did not succeed.
[7]
The applicant’s legal representatives made further
representations to the National Director of Public Prosecutions on
3
June 2013 to have the trial diverted. These representations also did
not succeed and on 3 July 2013, the acting National Director
of
public Prosecutions informed the applicant that after a perusal of
the available evidence, he has decided to confirm the decision
of the
Director of Public Prosecutions, North Gauteng to continue with the
prosecution of the Applicant. It was further stated
that a Prima
facie case exists against the applicant and the matter could not be
diverted because of its seriousness.
[8]
The applicant thereafter applied for a review of the above decisions
to continue with the prosecution and not divert the trial.
The
applicant also issued a notice in terms of section 16A on the basis
that this application raised constitutional issues.
[9]
The trial of the applicant was postponed to accommodate the
submission of this representations and this review. It is still
currently pending before the Magistrates Court in Pretoria.
[10]
The Applicant contend that the decision of the Respondent to proceed
with the prosecution was arbitrary, irrational,
capricious and in a
manner inconsistent with the provisions of Section 179(2) of the
Constitution
[1]
read with
Section 20(1)(c), 21 (1)(b) and 22(2)(a)-(c) of the NPA Act
[2]
by virtue
inter
alia,
of
the fact that Respondent did not comply with its own policy
directives for the diversion of criminal cases.
[11]
The Applicant further submit that the decision of the Respondent
constitute an administrative action and as such it reviewable
in
terms of the Promotion of Administrative Justice Act (PAJA)
[3]
.
[12]
In
National
Director of Public Prosecutions vs Freedom under Law
[4]
the SCA had to determine
whether the National Director of Public Prosecution’s decision
to withdraw a prosecution should
be reviewed and set aside. The Court
held that it was under a duty to determine
first
whether the decision fell to be reviewed under PAJA or under the more
general principle of legality before considering the merits
of the
review. The Court held that the decision to withdraw the prosecution
could not be reviewed under PAJA, but could be reviewed
under the
principle of legality. The SCA commented:
“
The
legality principle has now become well established in our law as an
alternative pathway to judicial review
where PAJA finds no
application.
” [Emphasis added].
[13]
It follows therefore that the Respondent must exercise the powers
conferred on it by virtue of section 20 to 22 of the
NPA Act
lawfully, rationally and in good faith. Applicant alleges that
Respondent did not, in compliance with section 21(1)(a)
and (b) of
the NPA Act determine the prosecution policy and or issue police
directives pertaining to which guidelines should be
followed when a
request for diversion for a specific offence is considered by the
Prosecuting Authority.
[14]
The Respondent in its reasons for decision, so it was argued, did not
refer to the guidelines/ selection criteria that
serve as a guide to
the prosecutor for consideration, when exercising his or her
discretion as set out in paragraphs 3 and 4 of
part 7 of the policy
directives, which are supposed to serve as a guide to the prosecutor
when considering a diversion case.
[15]
Chapter 3 of the National Prosecuting Authority of South Africa’s
Policy manual defines the role of the Prosecutor
as follows:
“
Prosecutors
must at all times act in the interest of the community and not
necessarily in accordance with the wishes of the community.
The
prosecutor’s primary function is to assist the court in
arriving at a just verdict and, in the event of a conviction,
a fair
sentence based upon the evidence presented. At the same time,
prosecutors represent the community in criminal trials. In
this
capacity, they should ensure that the interests of the victims and
witnesses are promoted, without negating their obligation
to act in a
balanced and honest manner.
The
prosecutor has a discretion to make decisions, which affect the
criminal process. This discretion can be exercised at specific
stages
of the process, for example:
the
decision whether or not to institute criminal proceedings against the
accused;
the
decision whether or not to withdraw charges or stop the prosecution;
the
decision whether or not to oppose an application for bail or release
by an accused who is in custody following arrest;
the
decision about which crimes to charge an accused with and in which
court the trial should proceed;
the
decision whether or not to accept a plea of guilty tendered by the
accused;
the
decision about which evidence to present during trial;
the
decision about which evidence to present during sentence proceedings,
in the event of a conviction; and
the
decision whether or not to appeal to a higher court in connection
with a question of law, an inappropriate sentence or the improper
granting of bail, or to seek review of proceedings.
Members
of the Prosecuting Authority must act impartially and in good faith.
They should not allow their judgement to be influenced
by factors
such as their personal views regarding the nature of the offence or
the race, ethnic or national origin, sex, religious
beliefs, status,
political views or sexual orientation of the victim, witnesses or the
offender.
Prosecutors
must be courteous and professional when dealing with members of the
public or other people working in the criminal justice
system.”
[16]
Chapter 4 of the National Prosecuting Authority of
South Africa’s Policy manual set out the criteria governing the
decision
to prosecute as follows:
“
a)
General
The
process of establishing whether or not to prosecute usually start
when the police present a docket to the prosecutor. This happens
after the suspect has been arrested. The case needs to be studied to
make sure that it is properly investigated.
The
prosecutor should consider whether to-
-
Request the police to investigate the case further;
-
Institute a prosecution;
-
Decline to prosecute and to opt for pre-trial diversion or other
non-criminal resolution; or
-
Decline to prosecute without taking any other action.
The
decision whether or not to prosecute must be taken with care, because
it may have profound consequences for victims, witnesses,
accused and
their families. A wrong decision may also undermine the community’s
confidence in the prosecution system.
Resources
should not be wasted pursuing inappropriate cases, but must be used
to act vigorously in those cases worthy or prosecution.
In
deciding whether or not to institute criminal proceedings against the
accused, prosecutors should assess whether there is sufficient
and
admissible evidence to provide a reasonable prospect of a successful
prosecution. There must indeed be a reasonable prospect
of a
conviction, otherwise the prosecution should not be commenced or
continues.
This
assessment may be difficult, because it is never certain whether or
not a prosecution will succeed. In borderline cases, prosecutors
should probe deeper than the surface of the written statements.
Where
the prospects of success are difficult to assess, prosecutors should
consult with prospective witnesses in order to evaluate
their
reliability. The version or the defence of an accused must also
be considered, before a decision is made.
This
test of a reasonable prospect must be applied objectively after
careful deliberation, to avoid an unjustified prosecution.
However,
prosecutors should not make unfounded assumptions about the potential
credibility of witnesses.
The
review of a case is a continuing process. Prosecutors should take
into account changing circumstances and fresh facts which
may come to
light after an initial decision to prosecute has been made.
This
may occur after having heard and considered the version of the
accused and representations made on his or her behalf. Prosecutors
may therefore withdraw charges before the accused has pleaded in
spite of an initial decision to institute a prosecution.
b)
Factors to be considered when evaluating evidence
When evaluating the
evidence prosecutors should take into account all relevant factors,
including-
How
strong is the case for the State?
-
Is
the
evidence
strong
enough
to prove
all
the
elements
of
an
offence?
-
Is
the
evidential
material
sufficient
to
meet
other
issues
in dispute?
Will
the evidence be admissible?
-
Will the
evidence be excluded
because
of the
way
in
which
it
was
acquired
or
because
it
is
irrelevant
or
because
of
some
other
reason?
Will
the state witnesses be credible?
-
What sort of impression is the
witness likely to make
-
Are there any matters which might properly be put
by the defence to attach the credibility of the witness
-
If there are
contradictions
in the
accounts
of
witnesses,
do they go
beyond
the
ordinary
and
expected
,
thus
materially
weakening
the
prosecution
case?
Will
the
evidence
be
reliable?
-
If,
for
example,
the
identity
of
the
alleged
defender is likely
to
be
an
issue
,
will
the
evidence
of
those
who purport
to
identify
him or
her be
regarded as
honest
and
reliabl
e
?
Is
the
evidence
available?
-
Are the
necessary
witnesses
available
,
competent
,
willing
and
,
if necessary,
compellable
to
testify
,
including
those
who
are
out of the country?
How
strong
is the
case
for
the
defence?
-
Is
the probable
defence
of
the
accused
likely
to
lead
to
his or her
acquittal
in
the light of the
facts
of
the case?
Prosecution
in the public interest
-
Once
a
prosecutor
is
satisfied
that
there
i
s
sufficient
evidence
to
provide a
reasonable
prospect of
a
conviction,
a
prosecution
should
normally
follow, unless
public
interest demands otherwise.
-
There
is
no
rule
in
law
which
states
that
all
the provable
cases
brought to
the
attention of
the
Prosecuting
Authority
must
be
prosecuted
.
On the
contrary,
any
such
rule
would
be
too
harsh
and
impose
an
impossible
burden
on
the
prosecutor
and
on
a
society interested in
the
fair
administration
of
justice
.
-
When considering
whether
or
not
it
will be
in
the
public
interest
to prosecute,
prosecutors
should
consider
all relevant
factors,
including:
The
nature
and
seriousness
of the
offence:
-
The
seriousness of
the
offence
,
taking
into
account
the
effect of the crime
on the victim
,
the manner in
which
it was
committed
,
the motivation
for
the act
and
the
relationship
between
the
accused
and the v
i
ctim
.
-
The
nature
of
the
offence
,
its
prevalence
and
recurrence
,
and
its
effect
on
public
order and
morale.
-
The
economic
impact
of
the
offence
on
the
community
,
its
threat
to people
or
damage
to pu
b
lic
property
,
and
its
effect
on the
peace
of
mind
and sense
of security
of
the public
.
-
The
likely
outcome
in
the event
of
a conviction,
having regard
to sentencing
options
ava
i
lable
to the court.
The
interests
of the
victim and the broader community
:
-
The attitude
of
the
victim
of
the
offence
towards
a prosecution
and
the
potential
effects
of
discontinuing
it. Care
should
be
taken
when
considering
this factor,
since public
interest
may
demand
that certain
crimes
should
be prosecuted
-regardless of
a
complainant's
wish
not
to
proceed.
-
The need for individual and general deterrence, and the necessity of
maintaining public confidence in the criminal justice system.
-
Prosecution priorities as determined from time to time, the likely
length and expense of a trial and whether or not a prosecution
would
be deemed counter-productive.
The
circumstances
of the
offender
:
-
The
previous
convictions of the accused, his or her criminal history
,
background,
culpability
and personal
circumstances
,
as
well
as other
mitigating
or aggravating
factors
.
-
Whether
the
accused
has
admitted
guilt
,
shown
repentance,
made
restitution or
expressed
a
willingness
to
co-operate with
the
authorities
in
the
investigation
or
prosecution
of others
.
(in
this
regard, the
degree
of culpability
of
the
accused and
the extent to which reliable evidence from the said accused is
considered
necessary to
secure
a
conviction
against
others,
will
be
crucial).
-
Whether the objectives
of
criminal
justice
would
be better served by implementing
non-criminal
alternatives
to
prosecution,
particularly
in
the
case
of juvenile
offenders and
less
serious
matters
.
-
Whether there has
been
an
unreasonably
long
delay between
the date when the
crime
was
committed,
the date
on
which the
prosecution
was instituted
and the trial date,
taking
into
account the
complexity
of
the
offence and
the role of the accused in the delay.
-
The relevance
of
these
factors
and
the
weight
to
be
attached to
them
will
depend
upon the
particular
circumstances
of each
case.
-
It is
important that
the
prosecution process
is
seen
to
be
transparent
and that justice is seemed to be done.”
[17]
Part 7 of the Policy Directives of the National Prosecuting Authority
of South Africa deals with the principle of Diversion
as follows:
“
1.
By
'diversion'
is
understood
the
elect
i
on
-
in
suitable
and
deserving
cases
- of a
manner
of d
i
sposal
of
a
criminal
case
other
than
through
normal
court
proceeding
s
.
It
usually
implies
the
provisional
withdrawal
of the charges
against
the
accused,
on
condition
that
the
accused
participates
in
particular
programmes
and
/or
makes
reparation
to
the complainant
.
Diversion
is
preferable
to the
mere
withdrawal of
cases
as the
offender
is
charged
with
taking
responsibility
for his or her
actions.
Although
diversion
is
primarily
employed
in
the
case
of
juvenile
offenders,
there
are
also
other
diversion
programmes
in
operation. These
in
clude
victim-offender
mediation
programmes
and
perf
o
rmance
of
community
service as
an
alternative to
prosecution
.
Diversion
is
inappropriate
where
the
charge
is
one
o
f
murder,
robbery with
aggravating
circumstances
,
rape
or
a
similarly
serious
offence.
Offenders
with
a
criminal
record
and
persons
to
whom
the
opportun
ity
has
been
granted
previously
should
only
be
included
in except
i
onal
circumstances
4.
The following
selection
criteria are
not
hard
and fast
rules
,
and should serve as a
guide to the prosecutor
in
exercising
his or her discretion
to determine
whether
or not an
offender
qualifies
for the
program
.
The
accused should
–
(a)
have a fixed address;
(b)
acknowledge liability for the offence
(c)
be prepared to participate in the diversion programme;
(d)
In the case of juvenile offenders-
(i)
be between the ages of 12-18 years; and
(ii)
have a parent or guardian who is prepared to take responsibility for
his or her attendance and to be present in court
5.
Once the prosecutor
has
identified
a candidate
,
a probation
officer
must
screen
such
a
c
andidate
and
thereafter
advise
the
prosecutor
on the
suitability
of
the candidate
for
the programme
.
6.
The
prosecutor
makes
the
final
decision
and
is
not
bound
by
the
recommendations
of th
e
probation
officer.
7.
The prosecutor
is
satisfied
that
an offender
is suitable
for
a diversion
programme
,
the
offender
(
and,
in
the
case of
juvenile
offenders,
his
or
her
parents
or
guardian)
must
be
made
aware
of
the
possibility
of
diversion
.
They
should
be
advised
that
participation
is voluntary
and
that
,
should
the
offender
not
meet
all
the
requirements the case
will
not
be
withdrawn.
8.
Whilst the
establishment
of diver
s
ion
programmes
i
s
primarily
the
responsibility
of
the
Dep
a
rtment
of
Welfare
,
prosecutors
should
take
some
initiative
in
this regard
.
Non
governmental
organizati
o
ns,
s
uch
as
NICRO (the
National
Institute
for
Crime and
Rehab
ili
tation
of
Offenders)
may
be
of assistanc
e
.
9.
After
the
offender
has
co
mpleted
the
d
iv
ersion
programmes
the
social
worker
submits
a report
to
the
prosecutor. If it is
clear
that
the
offender
has
c
ooperated
and
benefitted
from
the programme,
the
matter is
withdrawn. If not, the
prosecution
is
to
proceed.
10.
If
at
the
sentencing
stage
of
his
or
her
trial,
the
situation
arises
where
an a
c
cused
appears
to be
a
suitable
candidate
for
a
programme,
the
same
procedure
applies
,
with
the
necessary
changes. The
court
can
then consider
imposing
a
suspended
sentence
with
participation
in
the
programme
as
one
of
the
conditions
of
suspension
.
If
the
offender
does
not
successfully
c
o
mplete
the programme,
the
prosecutor must apply
in the
normal manner
for the
suspended sentence
to be put
into
operation
.
11.
A
reg
is
ter
must be kept
regarding
all
offenders
screened
for
the
diversion
programme
.
The reason
for
the
decision
to
divert
or
not
must
be
recorded
,
as
well as
the
way in which
the matter
was eventually
disposed
of.
"
[18]
The Respondent took into account the personal circumstances of the
applicant in refusing to divert the prosecution. The
Respondent
stated that the fact that appellant was 23 years old
likely to have a criminal record was insufficient to
justify a
diversion in this matter. Respondent noted that were no substantive
facts set out in applicant’s representations
and on this
application for that matter, as to why Applicant is entitled to have
his criminal charges diverted. The seriousness
and prevalence of the
offences as well as the circumstances under which they were committed
were taken into account. National Director
of Public Prosecutions
stated that drunken driving, driving without a driver’s licence
and driving recklessly or negligently
through a red traffic light
accounted for deaths of many innocent drivers, passengers and
pedestrians on a far too regular basis.
He concluded that
failure to prosecute Applicant effectively will not be in the public
interest and will sent a wrong message to
the public in general
including but not limited to Appellant and victims of such crimes.
[19]
Section 179 (2) of the Constitution as read with section 20(1) of the
NPA Act governs the Prosecuting Authority’s
power to institute
criminal proceedings on behalf of the State, to carry out any
necessary functions incidental to instituting
criminal proceedings
and to discontinue proceedings.
[20]
In its further reasons for the decision, the Respondent informed
Applicant that after perusal of the available admissible
evidence, it
has decided to confirm the decision of the Director of Prosecutions,
North Gauteng to continue with the prosecution
of the applicant as a
prima facie case exists against applicant and the matter could not be
diverted because of its seriousness.
[21]
It is clear that the Respondent considered the available evidence as
well as the circumstances under which the offence
was committed, the
personal circumstances of the Applicant and the interest of society
and had due regard to the guidelines
and policy directives in
existence in the exercise of its discretion. This exercise of
discretion cannot in my view, be faulted.
[22]
In its replying affidavit, applicant argue that respondent did not
comply with its Policy Directive that requires a register
to be kept
regarding all offenders screened for the diversion programme and that
the reasons for the decision to divert or not
must be recorded.
Applicant argue that Respondent furnished him with reasons for the
decision not the record and so the argument
goes, either the register
does not exist and or if it exists, Respondent did not properly
record the reasons for not granting his
diversion.
[23]
In my view, the insistence on the register is just an afterthought as
it is raised in reply. The register is a formal
document regarding
all offenders screened for the diversion programme containing reasons
for the decision to divert or not. It
contains confidential
information about other offenders who have been screened. By his own
admission, applicant was furnished with
the reasons for the decision
and Respondent has thereby adhered to its policy directive.
[24]
For the reasons given, I consider that the decision not to divert the
prosecution of the applicant was a rational decision
based on the
Policy Manual and Policy Directives of the National Prosecuting
Authority of South Africa. In the result, I find that
Applicant has
not made out a case to support a rule of law or principle of legality
review of the decision to divert his prosecution.
[25]
Order
The
application is dismissed with costs.
K
E MATOJANE
JUDGE
OF THE HIGH COURT
[1]
Section
179(2) reads “The prosecuting authority has the power to
institute criminal proceedings on behalf of the state and
to carry
out necessary functions incidental to instituting criminal
proceedings.”
[2]
Act
32 of 1998
[3]
Act
3 of 2000
[4]
(67/14)[2014]ZASCA
58(17 April 2014