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[2015] ZAKZPHC 24
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Masinga v National Director of Public Prosecutions and Another (AR 517/2013) [2015] ZAKZPHC 24 (7 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Review
case no: AR 517/2013
DATE:
07 MAY 2015
In
the matter between:
THEMBA
MICHAEL
MASINGA
....................................................................................
APPLICANT
And
THE
NATIONAL DIRECTOR
OF
...................................................................
FIRST
RESPONDENT
PUBLIC
PROSECUTIONS
THE
REGIONAL MAGISTRATE
DURBAN
...........................................
SECOND
RESPONDENT
JUDGMENT
PLOOS
VAN AMSTEL J
[1]
This is an application for the review of criminal proceedings
in the Durban Regional Court which resulted in the applicant being
found guilty of attempted murder and sentenced to ten years’
imprisonment. The first respondent is the National Director
of Public
Prosecutions (NDPP) and the second respondent the magistrate who
presided over the trial. The applicant appeared before
us in person
and the first respondent was represented by counsel from the office
of the Director of Public Prosecutions (DPP).
[2]
It is not alleged that the magistrate misconducted himself in any way
or that he was a party to any irregularity, and he took
no part in
the proceedings before us. The applicant’s complaint is that
the prosecution was irregular in that it was instituted
and proceeded
with without the written authorisation or instruction of the DPP. He
says such authorisation was required in terms
of the prosecution
policy issued in terms of section 21(1) (b) of the National
Prosecuting Authority Act 32 of 1998 (the NPA Act),
as he was a
magistrate at the time. Section 21(1) (b) refers to policy directives
issued by the NDPP, while section 21(1) (a) refers
to prosecution
policy determined by the NDPP. It seems clear that the applicant
meant to rely on the policy directives. The deponent
to the first
respondent’s answering affidavit confirms that the requirement
referred to by the applicant is contained in
the policy directives
and not in the prosecution policy.
[3]
The policy directive relied upon by the applicant reads as
follows:
[1]
‘
In
addition to instances where statutory provisions require prior
authorisation from the National Director or DPP for the institution
of a prosecution, there are certain categories of persons in respect
of whom prosecutors may not institute and proceed with prosecutions
without the written authorisation or instruction of the DPP or a
person authorised thereto in writing by the National Director
or DPP
(either in general terms or in any particular case or category of
cases). This general rule is subject to the exceptions
set out in
paragraph 3 below.’
[4]
The categories of persons in respect of whom written authorisation or
instruction is required include magistrates.
[2]
None of the exceptions referred to are relevant for present purposes.
[5]
The statutory context of the policy directives are as follows.
Section 179(5) of the Constitution
[3]
provides that the NDPP must determine prosecution policy and issue
policy directives, all of which must be observed in the prosecution
process. Sub-section (5) (c) provides that the NDPP may intervene in
the prosecution process when policy directives are not complied
with.
These provisions are echoed in sections 21 and 22 of the NPA Act.
[6]
It is not disputed that the written authorisation of the DPP was not
obtained. The prosecutor who handled the prosecution, Ms
LN Dlamini,
however says in her affidavit that she obtained oral authorisation
from the then acting DPP, Mr CS Mlotshwa, to proceed
with the
prosecution. He also instructed her to be the prosecutor in the
matter. She says this happened before the applicant’s
second
appearance in the district court on 14 April 2009. She was at the
time a senior public prosecutor at the Durban Magistrates’
Court. Her duties included the supervision and management of the
Family Section, which included the Domestic Violence, Maintenance,
Child Justice and Sexual Offences Sections. It was also part of her
duties to screen dockets and to bring high-profile matters
to the
attention of the Chief Prosecutor and the DPP. It should be noted
that in terms of the policy directives
[4]
the written authorisation of the DPP is not required for the arrest
and first appearance in court of persons mentioned in the categories
which include magistrates.
[7]
Ms Dlamini says it was her decision to charge the appellant with
attempted murder. The statements in the docket indicated that
the
applicant had repeatedly struck his wife on the head with an axe,
shouting ‘Are you not dead yet, dog’. She sustained
deep
wounds on her head, which had to be sutured, injuries on her face
which were consistent with the use of the blunt side of
an axe, and
multiple lacerations and bruises. Ms Dlamini discussed the case with
the acting DPP and informed him of the evidence
in the docket. He
agreed with her that the appropriate charge would be attempted murder
and authorised her to proceed with the
prosecution.
[8]
Ms Dlamini knew that she required authorisation by the DPP and says
she did not ignore the policy directive. She apparently
overlooked
the requirement that the authorisation had to be in writing. It is
somewhat surprising that the acting DPP also overlooked
that
requirement.
[9]
Counsel for the first respondent conceded that the absence of written
authorisation constituted an irregularity. He submitted
however that
the irregularity was not so fundamental that it per se amounted to a
failure of justice, that the applicant was not
prejudiced by the
irregularity and that accordingly there was no failure of justice.
[10]
I agree that the failure to obtain written authorisation from the DPP
constituted an irregularity. Written authorisation was
required by
the policy directives, and both section 179(5) of the Constitution
and section 21(1) of the NPA Act provide that the
policy directives
must be observed in the prosecution process.
[11]
In
Toubie
v S
[5]
Heher JA said an irregularity in proceedings does not automatically
result in a failure of justice or an unfair trial. Section
322(1) of
the Criminal Procedure Act provides that no conviction or sentence
shall be set aside or altered by reason of any irregularity
or defect
in the record or proceedings, unless it appears to the court of
appeal that a failure of justice has in fact resulted
from such
irregularity or defect.
[12]
Some irregularities are so fundamental that they per se amount to a
failure of justice. In
S
v Mkhise; S v Mosia; S v Jones; S v Le Roux
[6]
Kumleben JA said at 871F that it is a well-established principle that
an irregularity in the conduct of a criminal trial may be
of such an
order as to amount
per
se
to a failure of justice, which vitiates the trial. On the other hand,
less serious and less fundamental irregularities do not necessarily
have that effect. At 872F he said the enquiry in each case is whether
the irregularity is of so fundamental and serious a nature
that the
proper administration of justice and the dictates of public policy
require it to be regarded as fatal to the proceedings
in which it
occurred. In such a case one does not even consider whether the
accused had been prejudiced by the irregularity. Also
see the
discussion in this regard by Holmes JA in
The
State v Moodie.
[7]
The position is not altered by the fact that compliance with the
policy directives is required by the Constitution. In
S
v Shikunga and another
[8]
Mahomed CJ said that the test proposed by our common law is adequate
in relation to both constitutional and non-constitutional
errors.
This statement was approved by the Supreme Court of Appeal in
S
v Smile and another
.
[9]
[13]
The applicant submitted that we should not accept Ms Dlamini’s
evidence that she had obtained oral authorisation from
the DPP. He
pointed out that Mr Mlotshwa was not able to confirm the discussion
with Ms Dlamini, and said he could not remember
it. This is hardly
surprising as he deposed to his affidavit some four years later.
There is no reason not to accept Ms Dlamini’s
uncontradicted
evidence as to her discussion with the acting DPP.
[14]
I do not consider that the irregularity in this case was of such a
nature that it per se amounted to a failure of justice.
There was
oral authorisation by the acting DPP, who was informed of the
evidence against the applicant and agreed that he should
be charged
with the attempted murder of his wife. The applicant did not protest
before or during the trial that the prosecution
had not been
authorised in writing. He raised the point for the first time on
appeal. To hold that the absence of written authorisation
in those
circumstances per se amounted to a failure of justice, irrespective
of whether the applicant was prejudiced thereby, would
be contrary to
the public interest and will bring the administration of justice in
disrepute. The position may be different where
a prosecution against
a magistrate was instituted and proceeded with without the knowledge
or consent of the DPP, or contrary to
his instructions.
[15]
I proceed therefore to consider whether in all the circumstances of
the case the irregularity in any event resulted in a failure
of
justice. This involves an enquiry as to whether the applicant was
prejudiced by the irregularity.
[16]
In
Toubie
Heher JA referred to a statement by Cameron JA in
S
v Legoa
,
[10]
who said:
‘
Whether
the accused’s substantive fair trial right, including his
ability to answer the charge, has been impaired, will therefore
depend on a vigilant examination of the relevant circumstances.’
Heher
JA said this approach enables a balance to be struck between
prejudice to the accused and the interest of the public in knowing
that justice has been served.
[17]
In
Hlantlalala
and Others v Dyanti NO and Another
[11]
Mpati AJA said no failure of justice will result if there is no
prejudice to an accused and, by the same token, there will be no
prejudice if the accused would in any event have been convicted,
irrespective of the irregularity.
[18]
The applicant’s complaint is that if the DPP’s written
authorisation had been sought he may well have decided to
charge him
with assault with intent to do grievous bodily harm, instead of
attempted murder. There is no merit in this complaint.
In the first
place, the evidence in the docket clearly supported a charge of
attempted murder, in that the applicant was alleged
to have struck
his wife several times on the head with an axe while he exclaimed
that she was not dead yet. Secondly, the acting
DPP, in discussion
with the senior prosecutor, agreed with her that the appropriate
charge was attempted murder and authorised
her to proceed with the
prosecution. Thirdly, the regional magistrate agreed that the
applicant was guilty of attempted murder
and convicted him on that
charge. This was not a case where a disgruntled litigant had laid a
frivolous charge against a magistrate
and the DPP had not authorised
the prosecution. It was a case where a husband had viciously attacked
his wife with an axe, inflicted
serious injuries to her head and
uttered words which indicated that he wanted to kill her. I think it
can safely be accepted that
the DPP who authorised the prosecution
orally would also have done so in writing. In those circumstances it
cannot be said that
the applicant was prejudiced by the irregularity,
and it did not result in a failure of justice.
[19]
The application can therefore not succeed. There is no need for a
costs order as the respondents were represented by the DPP.
The
application is dismissed.
PLOOS
VAN AMSTEL J
I
agree.
NKOSI
J
Appearances:
For
the Applicant
: In Person
Instructed
by
:
For
the 1
st
& 2
nd
Respondents
: Adv. J Du Toit
Instructed
by
: The National Director of Public
Prosecutions
Pietermaritzburg
Date
of Hearing
: 28 April 2015
Date
of Judgment
:07 May 2015
[1]
Paragraph
1 of Part 8.
[2]
Paragraph
2 (f) of Part 8.
[3]
Constitution
of the Republic of South Africa, 1996.
[4]
Paragraph
5 of Part 8.
[5]
[2012]
4 All SA 290
(SCA) para 40.
[6]
1988 (2) SA 868 (A).
[7]
1961
(4) SA 752
(A) at 756E and further.
[8]
1997
(2) SACR 470
(NmS) at 484c
[9]
1998
(1) SACR 688
(SCA) at 691F-J.
[10]
2003
(1) SACR 13
(SCA) para 21.
[11]
1999
(2) SACR 541
(SCA) para 9.