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[2014] ZAFSHC 212
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Seoe and Another v Deputy Director of Public Prosecutions of the Free State (2648/2013) [2014] ZAFSHC 212 (27 November 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION:
BLOEMFONTEIN
Appeal Number: 2648/2013
DATE: 27 NOVEMBER 2014
In the matter between:
MOHLOUA ISAAC
SEOE
...............................................................
1st
Applicant
VIRGINIA
MOSEIA
......................................................................
2nd
Applicant
And
THE DEPUTY DIRECTOR OF PUBLIC
PROSECUTIONS OF THE FREE
STATE
..........................................
Respondent
JUDGMENT: JAJI, AJ
HEARD ON:
DELIVERED ON: 27 NOVEMBER 2014
[1] The applicants seek a permanent
stay of prosecution on the charges contained in the indictment
annexed as “A” to
the founding affidavit of first
Applicant.
[2] The applicant relies on the so
called statutory matrix being:
a. Provisions of section 35(3)(d), (h)
and (i) of the Constitution of the Republic of South Africa, Act no
108 of 1996 (“the
Constitution”).
b. Section 342 A of the Criminal
Procedure Act no 52 of 1977 (“the
Criminal Procedure Act&rdquo
;)
especially on factors to be considered by a court before which
criminal proceedings are proceeding in investigating inter alia
any
delay in the completion of proceedings which may be unreasonable in
given circumstances; (paragraph 4 of the applicant’s
heads of
argument).
c. The submission that the factors
spelled out in
Section 342A
of the
Criminal Procedure Act are
also to
be considered in an application in terms of Section 35(3) of the
Constitution (paragraph 5 of the heads of argument).
[3] Further, it relies on the legal
principles involved as laid down in the following cases:
a. Sanderson v Attorney General Eastern
Cape
1998 (2) SA 38
CC;
b. Director of Public Prosecutions and
Another v Phillips
(2012) 4 All SA 513
(SCA);
c. Unreported judgment of John Robbs
and others v the Deputy Director of Public Prosecutions for the
Province of KwaZulu Natal,
Case no 13510/2011.
[4] The applicant finally relies
further to undisputed facts regarding allegations and circumstances
giving rise to the charges
against the applicants occurred a decade
ago from periods varying 2001 – 2013.
[5] It relies on compliance with legal
principles especially the inordinate delay, effect of delay, trial
prejudice and consequences
resulting from the effects of the above
principles.
[6] The respondent is opposing the
application. The issue as crystallised amongst the parties, is
whether the court should grant
a permanent stay of prosecution on the
basis as set out in the applicant’s affidavit and whether the
applicants would suffer
irreparable trial related prejudice if the
matter proceeds to trial.
[7] The applicant contends that the
critical issue is the determination of reasonableness of time taken
to prosecute. The conduct
of the prosecution and accused has to be
weighed as a balancing act. It contends that a permanent stay of
prosecution is appropriate
when there is prejudice. Applicants were
charged prematurely as it took five years to obtain forensic report.
[8] It took further two years to arrest
the applicant and the alleged offence took place in 2001 to 2003.
The respondent alleged
that the forensic report was the source of
delay. According to the applicant, the earlier trigger of
prosecution was the letter
dated 03 December 2003, which was written
instructions to charge the applicant. Applicant contends that this
date is important
to calculate time frames in this matter. In the
case at hand, applicant alleges that there was no explanation for
delay to obtain
the forensic report. There was no forensic report
before charging the applicants. An inordinate delay ensued and
according to
the applicant there was no explanation.
[9] Applicant claims that the report
was in limbo until 2005 when funding was secured for the purposes of
obtaining the forensic
report. The case was withdrawn against
applicant on 09 May 2005. It is contended that the prosecution did
not act with required
measure as expected. There was no expedition
to proceed with this matter. Applicant alleged that there was lack
of appreciation
to bring the matter to finality. Clearly there was a
total disregard of applicants’ rights to a fair trial.
[10] Applicant contends that
Section
342A
(1) and (2) of the
Criminal Procedure Act considers
certain
factors as to whether the delay is unreasonable or not. These are the
following:
a. Duration of time delay (applicant
claims is seven years herein);
b. Reasons for the delay (applicant
claims that there are no reasons advanced or they are inadequate
herein);
c. Person to be blamed for delay
(applicant claims that the state through its organs was responsible
herein);
d. Effect of delay (effect on applicant
and his family).
e. Seriousness and complexity of the
charges;
f. The actual or potential prejudice
caused, for instance possible death, disappearance or
non-availability of witnesses, loss of
evidence and problems
regarding gathering of evidence.
[11] Applicant complains of trial
prejudice suffered as a result of the inordinate delay. It referred
the court to the case of
Sanderson (above) where it was held that a
stay of prosecution is appropriate relief where there was trial
prejudice. If contended
that a stay of prosecution was granted in
Robb’s case (above) after seven and a half years’ delay.
It referred to
the case of Phillips (above) where a stay of
prosecution was granted after two years and five months’ delay
to prosecute
an appeal. The offence in the case at hand emanated from
2001 and applicant contended that the delay herein was inexcusable
and
inexplicable as was held in the case of Broome v Director of
Public Prosecutions, Western Cape and Others.
[12] Applicant insists that one of the
witnesses who died, a certain Puleng Komareng could have exonerated
him as she was the one
who completed the bid tender. The witness
would have also testified that the payment referred to in count four
(4) was due to
Liona. Puleng Komareng had information about business
affairs as she was a business manager. Clearly she was a decisive
witness
for the applicant. Another witness who died was a certain
Rodney Manawa. It was alleged that he would have exonerated the
applicant
against the allegations that he bought suits for and as
gifts. The whereabouts of Manawa’s family is unknown. The
said
Manawa passed away and his family had moved. It is claimed that
they would have exonerated the applicant as well. The witness
would
have confirmed that the names of the members of the tender committee
were not published. He would have conceded that there
was nothing
untoward with Mabolela Distributors. Applicant alleged that five (5)
of the witnesses were not available. It claimed
that in the
instances, trial prejudice was considerable and irreparable. It was
impossible to trace evidence. Memory has faded
and people had died.
It therefore contended that prejudice was clear and irrefutable. As
a result, applicant averred that the
prosecution had an unfair
advantage. In any event, applicant contended that he was only
charged for receiving R219 000.00 of the
30 million claim, which was
the value of the tender.
[13] Applicant asked for costs of the
application. It argued that in the event the court finds against
applicant, no adverse costs
order should be ordered against it. It
submitted that where parties are seeking to assert their
constitutional rights, they should
not be chilled by adverse costs
order. It referred to the case of Affordable Medicare Trust v
Minister of Health 2005 (6) BCCR
529 (CC) and Bio Watch Trust 2009
(10) BCCR 1014 (CC). It submitted that there was no justification to
proceed with the criminal
trial and consequently prayed for the order
as per the notice of motion.
[14] The respondent submitted that all
the arguments made by the applicant be made in trial court which
would listen to the arguments
and was best suited to deal with the
application of this nature. The respondent does not contest that
applicants were charged,
that they were brought to High Court and
does not contest the date when these applications were brought. It,
however contends
that the date of trial was already agreed being
November 2013. It confirmed that before Haneke J, applicant advised
that it had
instructions to bring an application for permanent stay.
All this time, applicant knew that date of November 2013, was
arranged
as trial date.
[15] Five other applicants, brought
similar applications on the same circumstances, called for respondent
to answer separately on
the same issues. These were brought fully
aware of the trial date which was already available. The indictment
was there so was
the trial date. The application naturally made a
further delay. Applicant argued that the court must make a finding
on value
judgment as was pronounced by the Constitutional Court in
the matter of Sanderson (above). The delay applicant averred that it
cannot be extra-curial punishment. The barring of prosecution before
trial commenced was far reaching.
[16] Respondent contends that there was
no basis for the prejudice as alleged by the applicant. There must
be more than what has
been argued to justify that the remedy asked
for the applicants is the one given. Respondent argued that there
are less radical
and appropriate remedies available to the applicant
i.e. mandamus, a refusal to grant prosecution remand or a bar on
various range
of circumstances. These would be applicable where the
applicant has proved or showed a daring prejudice. It averred that
motion
is not the place to deal with these kinds of matters. The
object of the current exercise is not the general concern suffered by
the accused as a result of charges but aggravation of prejudice
ascribed to a delay.
[17] Respondent contends that a stay of
prosecution is relevant when there is trial prejudice. The applicant
was not in custody,
he continued working, he never stopped from
travelling overseas, the dates of postponements suited him and there
was no frequent
attendance to court needed. One of the postponements
was done at the instance of the applicant who was legally
represented. In
February 2013, the matter was ready to proceed and
applicant had intimated that it will proceed with the application for
stay of
prosecution even though it never proceeded until recently.
The application for stay will not clear his name and as such
respondent
submitted that this was not an appropriate case for stay
of prosecution.
[18] The respondent in explaining the
delay was frank and open with the court, the applicant gave account
taken out of the sworn
statement by respondent witness. There was no
attempt to gloss over the challenges in the statement. The witness
even explained
his removal from the case without an explanation. The
deponent explained virtually each factor. There is a frank
explanation
for the delay suffered. There was no likelihood that the
delay would result in trial prejudice. The court was referred to the
matter of S v Naidoo
2012 (2) SACR 126
(WCC). The court herein
sought to examine exceptional circumstances that must be determined
to come to the conclusion that the
delay prejudiced the accused’s
person. The respondent argued that the case of Broome v Director of
Public Prosecutions,
Western Cape
2008 (1) SACR 178
(C) was
distinguishable from the facts in the present case. The factual
basis in Broome was quite exceptional in that the state
confiscated
documents which was lost or destroyed by its agents. The result was
that significant evidence was lost. The factors
such as loss of
memory and disappearance of witnesses might not be sufficient in the
matter at hand to justify a stay of prosecution.
Respondent argued
that the passage of time in the abstract does not necessary justify
the stay of the prosecution. It submitted
that the effect must be
demonstrated and clearly established. In advance of trial, it
contended that it would be difficult to
deal with such alleged
prejudice. It claimed that in the facts of the current case, the
trial could not begin in February 2013.
Applicant advised that it
would bring the application for stay of prosecution which was never
brought. This is covered by the
affidavit of the respondent witness,
Johan Brosman Knegler Swanepoel in opposition to this application. .
[19] The respondent insists that all
arguments rose relating to the alleged delay and its consequences
must be made at the trial
court to consider such trial evidence. If
the court is persuaded that the alleged delay is a violation of
rights to the fair trial
as alleged by applicants, the court must
conclude a number of things if the relief is granted.
a. It must weigh the alleged violation
against the permanent stay would do by way of violation to Section 34
of the Constitution
which deals with access to courts. Section 34
makes it clear that everyone has a right to have any dispute resolved
by the courts.
If there is order for permanent stay of prosecution,
respondent argued that it was not only an interference on the
prosecution
to prosecute but also violation of Section 34. It was
submitted that the court had to enquire whether the violation is not
saved
by provisions of Section 36 of the Constitution, the so called
limitation clause that was stipulated in the case of Sanderson
(above);
The present case is unique in the sense
that it was trial ready and has been as such on February 2013. The
applicants are charged
with serious crimes which needed to be tried
in a court of law. The effect of delay as far as it was relevant to
the disappearance
and death of witnesses as averred by the applicant,
brings serious dispute of facts for the respondents.
The allegations made in support of the
submission that her death (Puleng Komareng) would have caused
prejudice. It was alleged
that she completed the bid application
tender 67/2001/2002, that she would have confirmed the tender
documents were not fraudulent.
Payment was legally done and would
have refuted all allegations that the applicant was involved in fraud
and corruption.
[20] The respondent has submitted that
in an earlier application, the applicant advised that his chauffeur
(Lefa Molefe) was not
the business partner (page 290, annexure B).
There is an inherent contradiction in what has been alleged in page
292, paragraph
6.3 and 6.4 where the respondent (applicant in the
application) alleged that the first respondent (Lefa Molefe)
submitted a tender
on his behalf, upon his instructions and described
himself as a managing director which was not true because the first
respondent
was only an employee. The respondent has issues with the
fact that applicant does not say it was Puleng Komoreng. He raises
the
issue that Lefa Molefe describes himself as a managing director.
This for, the respondent (State) raises serious issues, it was
alleged. In the tender document, annexure “C”, there’s
no reference to Puleng Komareng. The only person in
the tender
document who purported to sign is Lefa Molefe. Puleng Komareng does
not even sign the tender. The declarant, sole
managing director and
declarant is one Lefa Molefe. In page 305 of the documents (Annexure
“C”) Lefa Molefe is a taxpayer
and tenderer and had in
his posession tax income reference no. In page 314, Lefa Molefe,
signed on 5 july 2001 as a managing director
of Mabolela
Distributors, the same business that the applicant alleged in his
papers to be the owner as per page 290 (annexure
B and page 16 ,
paragraph 26 of the papers). There is no mention of Puleng Komareng
neither as managing director, nor contact
person. Instead Lefa
Molefe is a 100% shareholder. The applicant does not appear in the
documents in spite of the allegations
that Lefa Molefe was doing
business “on my behalf and on my instructions”.
Respondent submitted that on the face of
it, this supposed to be the
tender of Lefa Molefe. There is no mention of applicant, his wife
and Puleng. This contradiction,
maintains the respondent, is raised
by respondent in its papers (page 222, paragraph 22.1 and paragraph
22.2).
[21] In page 335, the responses from
the applicant in relation to the contradictions and truthfulness of
the statements under oath.
There is no response to the submission
that a contradiction exists from the applicants papers. This, the
respondent argued constituted
perjury. It questioned if the motion
court was the appropriate forum where one could explain his own
contradictions. Respondent
asked what assistance would Puleng
Komareng bring? The tender is riddled with issues calling for
witnesses to answer. Respondent
asked if the tender (had any
relevance to applicant and his wife), why it belonged to Lefa Molefe.
The respondent claims that the
trial court is the one to deal with
all these issues raised here above. Modern jurisprudence points to
trial court as better place
to deal with these issues. Now that
Puleng Komareng is dead, it is alleged that she is the one who signed
the tender documents.
The respondent asks for the production of that
tender. It questioned if this was the court to find out where the
truth lied.
The contradiction, respondent claims, cannot be resolved
in papers. It raised an issue with an applicant who says something
else
in another day and something else another day about the same
incident. There is no explanation in any event for the
contradiction.
The respondent only says legal arguments would be
provided to specific contradictions. The court in this instance was
referred
to the case of Knox D’Arcy AG v Land and Agricultural
Development Bank of SA (654/2012
[2013] ZASCA 93
delivered on 5 June
2013). In paragraph 35, the court held
“It is trite that litigants must
plead material facts relied upon as a basis for the relief sought and
define the issues in
their pleadings to enable the parties to the
action to know what the case they have to meet. And a party may not
plead one issue
and then at the trial, and in this case on appeal,
attempt to canvass another which was not put in issue and fully
investigated.”
The respondent submitted that it was
impermissible, therefore, to advance any argument that seeks to
explain away the contradictions.
Legal argument has not been raised
even on heads of argument for the respondent to answer. Cross
examination would be necessary
in the circumstances under the
watchful eye of the judicial officer who could see the demeanour of
witnesses. The respondent was
ready for trial and has not removed
the case from the roll but only postponed it. It submitted that the
court should be slow to
grant a permanent stay if granting would have
adverse effect on the public interest.
[22] There has been a delay but the
respondent has explained it. In pages 231 – 234, paragraph (C
– R) Swanepoel explains
all the challenges ranging from six
applicants in five different applications seeking same relief, the
time consuming nature of
these unconsolidated applications, the
cumbersome nature of dealing with these applications was brought to
the attention of applicants’
attorney of record and in the
letter respondent points, the nearly impossible task of having to
file six different answering affidavits
on a date contemplated by the
rules. The respondent raised with the attorneys of record that the
best forum to deal with issues
raised was trial court. It was put to
the applicants that these applications had a potential to compromise
the trial date and
thereby exacerbating delay. It would take time to
deal with each fact raised as some of the investigating officers had
retired.
The above explanation seems not to have bothered the
applicant until they face the reality that the case was proceedings.
Respondent
submitted that in the present case, there is no waiving of
enthusiasm as pointed out by Satchwell J, in the case of Phillips v
Director of Public Prosecutions. The State was ready as far as 2013.
All the authorities contend that the delay though a factor
but not
an issue. The issue is the effect the delay had on the applicant.
It has not been stated in what way the delay had an
effect on the
accused’s person, it has only been alleged that the delay is
inexcusable. In the end, the respondent prayed
for applicants’
application to be dismissed with costs. Regarding costs, it accepted
that in a constitutional democracy,
jurisprudence was developing. The
respondent argued that the cases where courts have agreed that
awarding costs against those entrenching
their rights against the
state would have chilling effect are not absolute. It argued that it
can’t be that all cases against
the state, parties losing
should not be faced with costs. In any event the applicant had been
warned from the beginning especially
under cover of a letter dated 30
July 2013, marked annexure JBKS 1, at pages 253 – 255 (in last
paragraph at pages 255).
The respondent submitted that this case
calls for a departure.
[23] The applicant in reply insisted
that there was no explanation for the delay. It submitted that it
was irrelevant that the
case was trial ready. It argued that reasons
for delay were not reasonable. It insisted that it was perfect to
bring the application
in this court. It referred to Sanderson’s
case and submitted that there might be circumstances where a stay is
possible
without even a delay. It claimed that applicant showed
prejudice and that the facts in the present case are not similar to
Sanderson’s
case. Applicant insisted that Puleng Komareng
completed tender documents and alleged that it had offered a reply
which was denial
of the issues raised in pages 244 – 245.
[24] The explanation of the delay by
the respondent appears from the papers. It explained the challenges
caused as a result of
applications by six applicants seeking same
relief of permanent stay of prosecution. In page 231 – 234
(paragraph C –
R) the respondent’s witness explained the
time consuming nature of the process of having to deal with each
application on
a voluminous nature of papers. In page 269 (paragraph
7 and 8) he explained that they were expected and requested to
analyse transactions
reflected on 63 (sixty three) bank accounts for
periods 01 March 2001 to 30 April 2004 (three years) in respect of
numerous individuals
and entities, report on the flow of funds and
review and evaluate 364 (three hundred and sixty four) tender
applications.
It submitted as per the affidavit of
Swanepoel that these bank accounts were held at various banks and
different branches. It alluded
that it was time consuming process to
obtain transaction statements and documentation in respect of
transactions reflected on bank
statements from the banks. The delay
is explained further in detail from page 269 to 273.
It should be borne in mind that it took
time to compile and complete a forensic report. It is not something
untoward in these kinds
of matters to do so. The nature of the
offence where a group of companies, individuals and entities are
involved normally takes
long to investigate and prosecute. Some of
the reasons are explained by the witness. It is normal that before
investigations
are complete, reports being available that some of the
investigators involved in these matters are not available as a result
of
a different reasons i.e. retirements etc. This has a bearing on
the tempo of the investigation. It is exacerbated by the removal
of
some of the investigators presently dealing with the matter before
completion without explanation. It is not a duty of court
to venture
into those administrative matters.
[25] The submission by the applicant
regarding trial prejudice where it relates to the witnesses in favour
of defence raises its
own challenges. It alleges that some of the
dead witnesses would have given positive evidence and would have
disputed some of
the allegations. The fact that they were now dead
prejudiced the applicant. The respondent raised serious
contradictions regarding
the alleged evidence that was supposed to
have been led by these witnesses. Correctly so, the respondent
submitted that those
contradictions could not be resolved in papers.
In any event, the applicant did not deal with these contradictions
save to only
respond that legal arguments would be put forward,
assumingly to deal with these contradictions. The so called evidence
supposedly
to have been led cannot be tested and it is only the
submission of the applicant. Most of the issues rose regarding the
trial
prejudice, only the trial court could resolve. It would have
to listen to evidence and make a determination after listening to
evidence of both prosecution and defence as to whether anybody could
be held responsible for the prejudice allegedly suffered.
Clearly on papers before court, the
contradictions relating to the tender documents and application by
the applicant in trying to
disprove ownership of one of his company
involved herein, by his chauffer, is material. The non-appearance
and non-existence of
the name of the applicants’ alleged star
witness, Puleng Komareng from all tender documents raised serious
issues for the
applicant.
The respondent further submitted that
one of the postponements was due to the applicant. The matter was
ready for trial in February
2013 when the applicant advised that it
would proceed with the stay of prosecution. It took applicant a
further year to bring
the application. The respondent advised
applicant of the delay to be caused by the application which had a
potential to compromise
the ready trial date to no avail. The
applicant argued in court that it was irrelevant that case was trial
ready. The question
was whether the delay was reasonable, it argued.
In spite of all the challenges pointed to the applicant regarding
the manner
it dealt with this matter and the correct advise that the
issues it raised could only be dealt by a trial court, applicant
insisted
that the motion court where parties stand and fall by their
papers, was a perfect court to deal with the application.
[27] The respondent submitted that the
delay in this matter was not due to waiving enthusiasm, clearly when
the applications were
brought, matter was trial ready and the date
was ready. All the issues raised, could have been raised in the
trial. If substantial
prejudice would result it’s
pre-eminently a matter for the trial court to adjudicate upon. This
would involve having regard
to the alleged infringement of rights and
the resultant prejudice (if any). In the case of Sanderson the court
stated that the
“courts will apply their
experience of how the lapse of time generally affects the liberty,
security and trial related interests
that concern us. Of the three
forms of prejudice, the trial related variety is possibly hardest to
establish, and here as in the
case of other forms of prejudice, trial
courts will have to deal with sensible reference from the evidence by
and large, it seems
a fair although tentative generalization that the
lapse of time heightens the various kinds of prejudice that Section
35(3)(a)
seeks to diminish”.
The court dealt with the most important
factors i.e. nature of the prejudice, nature of the case and a
systematic delay. The nature
of the case is important. In this
regard, the court said that judges must bring their own experience to
bear in determining whether
a delay is over lengthy. The court
stated that “systematic delay should be considered. The
systematic delays are more excusable
than cases of individual
dereliction of delay”. The court importantly noted that
barring a prosecution before the trial
began was far reaching. The
trial had not begun; there was no real opportunity to ascertain the
real effect of the delay on the
outcome. Kreigler J, observed that
such an order prevents the prosecution from presenting society’s
complaint against an
alleged transgressor of society’s rules of
conduct and that in the absence of significant prejudice to an
accused, it would
seldom be warranted. After weighing all necessary
factors, the constitutional court held that it was not an appropriate
case to
order a stay of prosecution.
[27] The applicants are indicted for
serious offences i.e. corruption (giving benefit), racketeering,
fraud alternatively failing
to establish, ensure and maintain an
appropriate procurement and provisioning system which had to be,
fair, equitable, transparent,
competitive and cost effective. These
are corruption related charges. Corruption is a cancer to the body
of South Africa from
time immemorial. The country has been facing
the challenge of corruption which is unfortunately not subsiding.
Different legal
instruments, enforcements units/agencies, laws and
regulations have been introduced to fight this scourge, seemingly to
no avail.
The Scorpions, Hawks and organized crime units have not
managed to deal properly with these types of offences to such an
extent
that we can safely believe that they are becoming few and far
between. The public, taxpayers, are directly affected by the
offences
as they inadvertently further burden the public with tax
and high cost of living which is a direct consequence of these. On
daily
basis, the state from different departments, provinces and
municipalities is strenuously faced to contend with these types of
matters.
These involve officials and other closely connected
individuals. Whistle-blowers and upright officials have not escaped
the wrath
of those involved in these activities. Clearly, the public
interest is that those involved should be prosecuted and these
matters
be disposed of in open courts.
[28] The applicants, in this kind of
matter clearly deserve an opportunity to have their day in an open
court. If a permanent stay
is ordered, applicants would forever be
tainted as not have been cleared by court. The charges against
applicants are widespread
and unbaiting.
{29] In the case of Bothma v Els
2010
(2) SA 622
, the constitutional court considered that in the balancing
of various factors relating to prejudice to the accused, the nature
of the offence was a necessary counter weight to be taken into
account. The court quoted the case of Zanner v Director of Public
Prosecution,
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA).
“It was considered important to
have regard to those distressed by the horrors of the alleged
offence. The court thought
that against the accused’s interest
should be juxtaposed the societal demand in serious offences that an
accused should stand
trial”.
[30] It can therefore not escape the
court’s that investigating these kind of offences, by their
nature, is not a simple and
straight forward matter. The state deals
with syndicates assisted by some officials and as such would need
experts like forensic
auditors to properly investigate. The
investigation, following of a paper trail and collating evidence
clearly needs time. The
nature of evidence, number of accused and
their occupation as against the state cannot be overlooked. The
court in Sanderson case
clearly stated that even where severe
prejudice may flow from charging the accused, the remedy of a
permanent stay of prosecution
should only be considered as a last
resort. Such a remedy, the constitutional court said
“… is radical, both
philosophical and socio-political. Barring the prosecution …
That will be seldom warranted
in the absence of significant prejudice
to the accused.”
“We all benefit by our belonging
to a society with a structured legal system, a system which requires
the prosecution to prove
its case in a public forum. We also have to
be prepared to pay the price for our membership of such society, and
accept that a
criminal justice system such as ours inevitably imposes
burdens on the accused. But we have to acknowledge that these
burdens
are profoundly troubling and incidental.”
[31] In the present application, it
would not be sufficient for the applicant to show that he has
suffered emotionally or that the
case has been dragging for ten (10)
years. He would have to show that it would be impossible to have a
fair hearing because the
case has dragged for so long and that
witnesses would be unable to remember what had happened. The
permanent stay of prosecution
will not remedy the main prejudice of
which an accused complains of because it will not clear his name.
[32] The concept of “unreasonableness”
when dealing with delay is not defined, the question is left to
interpretation.
A deliberate delay in bringing an accused before
court will not be tolerated. It has been held that the test of
establishing
whether the time lapse was reasonable should not be
unduly stratified or pre-ordained, as it was not helpful for the
court to impose
semi-formal time constraints on the prosecuting
authority.
[33] In the case of Zanner above, the
applicant argued the following:
a. His right to a fair hearing was
violated because of the lapse of twelve (12) years;
b. Possible witness (eye) could no
longer be traced;
c. The quality of the available
evidence would be materially flawed as a result of the effect of the
time lapse on the memories
of the witness and the appellant.
[34] The SCA found that the grounds
relied upon by the appellant were speculative and that concerns
raised would be considered by
the trial court when assessing
evidence. The court held owing to the serious nature of the offence
involved, the appellant had
failed to establish trial related
prejudice or extraordinary circumstance which would justify drastic
remedy of a permanent stay
of criminal prosecution.
[35] The trend is similar to foreign
jurisdictions. In the Supreme Court of Namibia, S v Mybrugh (SA
21/01, NASC 16, 14 October
2012) the appellant’s appeal against
the finding and the court rejected his application for a stay of
prosecution.
[36] The court is in this present
application is of the view that the applicant has not shown the trial
prejudice complained of.
The reasons as stated by the SCA are
speculative and the respondent is indeed correct to argue that they
would have to be ventilated
in trial court.
[37] Consequently, therefore the
application for a permanent stay of prosecution is dismissed with
costs. The conduct of the applicants
in bringing these applications
piece-meal created challenges for the respondent. The applicants
were warned by the respondent
in a letter dealing specifically with
these challenges and the impact of same on arranged trial date.
Applicants were warned of
an adverse costs order but seemingly it
never faced them.
[39] I therefore make the following
order:
1. Application is dismissed,
2. Applicants are ordered to pay costs
of the application on a normal court scale.
N. P. JAJI, AJ
On behalf of the applicants: Adv. C.
Ploos van Amstel SC
with Adv. G. Langenhoven
Instructed by: Bezuidenhout Inc
BLOEMFONTEIN
On behalf of the respondent: Adv. D.
Ntsebeza SC with Adv. R. Rathidili
Instructed by: State Attorney
BLOEMFONTEIN