Zanner v Director of Public Prosecutions, Johannesburg (107/05) [2006] ZASCA 56; 2006 (2) SACR 45 (SCA); [2006] 2 All SA 588 (SCA); 2006 (11) BCLR 1327 (SCA) (3 April 2006)

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[2006] ZASCA 56
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Zanner v Director of Public Prosecutions, Johannesburg (107/05) [2006] ZASCA 56; 2006 (2) SACR 45 (SCA); [2006] 2 All SA 588 (SCA); 2006 (11) BCLR 1327 (SCA) (3 April 2006)

Links to summary

IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE
NO: 107/05
Reportable
In the
matter between
FRANK
PETER ZANNER
Appellant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
JOHANNESBURG

Respondent
CORAM:
SCOTT, NUGENT, VAN HEERDEN JJA, MAYA et
CACHALIA
AJJA
HEARD:
16 FEBRUARY 2006
DELIVERED:
3 APRIL 2006
Summary:
Right to a fair trial - s 35(3)(d) of the Constitution -
whether a lengthy delay in commencing criminal prosecution of a
murder charge caused the accused trial-related prejudice warranting
a
permanent stay of the prosecution.
Neutral citation: This judgment may be referred to as
Zanner v Director of Public Prosecutions
[2006] SCA 56 (RSA)
JUDGMENT
MAYA
AJA:
MAYA AJA:
[1] This is an appeal against a judgment of the
Johannesburg High Court (Van der Byl AJ) dismissing the appellant’s
application
for a permanent stay of prosecution of a charge of murder
against him. The appeal comes before us with the leave of the court
a
quo
.
[2] The facts giving rise to the appeal are these. On 12
March 1992 the appellant inflicted a fatal head wound on Mr Samuel
Tumisang
Segaetso (‘the deceased’) with a measuring instrument
known as a vernier. The incident occurred in a workshop at SA
Linishers,
a factory owned by the appellant’s father in
Krugersdorp. Both the appellant and the deceased, a fellow employee,
were on duty
at the time. The events leading up to the infliction of
the deceased’s injury and whether or not it was accidental are in
dispute.
It appears, however, that the incident followed a verbal
exchange between the appellant and another fellow employee, Mr
Anthony Picota.
[3] According to one of the factory workers present at
the material time, Ms Martha Tshigalo, from whom the police
subsequently took
statements, the appellant had taken the vernier
from a tool cupboard and had thrown it in Picota’s direction as the
latter walked
away from him. In his statement to the police, the
appellant alleged that the vernier slipped from his oily hand when he
flung both
hands, which were at shoulder level, down to his sides ‘in
a gesture of irritation’ because Picota walked away from him before
he had finished talking to him. Whatever the case may be, the vernier
travelled a distance of approximately seven metres, struck
the
deceased on the left temple and lodged itself deep in his skull. The
appellant caught him as he fell. According to witnesses,
the
appellant removed the vernier from the deceased’s head and hosed
him down with water. The deceased was then taken to hospital
where he
subsequently died.
[4] The police duly investigated the matter and took
statements from the appellant and witnesses, including Tshigalo and
Picota. Photographs
of the scene were taken and the appellant pointed
out to the police his, the deceased’s and Tshigalo’s positions at
the time
of the incident, which were then recorded. At the conclusion
of the police investigations, the case docket was submitted to the
Attorney-General
for his decision.
[5] An inquest in terms of the Inquests Act 58 of 1959
was scheduled for 23 November 1992. The proceedings were, however,
not conducted
as the witnesses failed to attend. On 4 February 1993
the Attorney-General was notified that it had been established that
Tshigalo,
the key witness, could not be traced. An ‘informal’
inquest was consequently held on 8 March 1993, at which oral evidence
was
not led and the presiding magistrate considered only the
statements contained in the docket. The magistrate recorded that the
cause
of death was ‘a penetrating brain injury sustained when a
sharp object was thrown at the deceased’, but stated that he was
‘unable
to make a finding’ as to ‘whether death was brought
about by any act or omission
involving or amounting to an
offence on the part of any person’ as is required by s 16(2) of the
Inquests Act.
[6] The Attorney-General instructed the police to trace
Tshigalo and when she was found, in April 1993, ordered that the
appellant
be prosecuted on a charge of culpable homicide. On 1 July
1993, the Attorney-General was notified that the appellant had been
summoned
to appear in the relevant magistrate’s court on 5 August
1994. The case was subsequently postponed to 26 January 1994 for
trial.
However, on that date, the trial did not commence as the
charge against the appellant was withdrawn pursuant to
representations made
on his behalf to the Attorney-General. The
nature of those representations is not known as there is no record
thereof.
[7] In April 2004, more than ten years after the charge
was withdrawn, the appellant was indicted in the Johannesburg High
Court on
two counts of murder. One charge related to the alleged
murder of his wife, Mrs Sibille Zanner, with a crossbow arrow on 25
September
2002. The other charge is the subject matter of this appeal
and relates to the death of the deceased. It would appear that in the
course of police investigations into the death of the appellant’s
wife, the investigating officer learned of the earlier incident
involving the death of the deceased and re-opened the case. The case
was re-investigated and further statements were taken from the
original investigating officer, Inspector Booysen, Tshigalo and other
witnesses who had not previously been interviewed by the police.
According to Booysen, he had made an investigating officer’s
affidavit at the time of the incident in 1992 and had referred it,
together with the case docket, to the senior public prosecutor. It
would seem that this affidavit by Booysen was thereafter lost.
A
docket containing the later statements and the record of the inquest
proceedings, comprising all the original witness statements,
was
submitted to the respondent who then decided to prosecute the
appellant on a charge of murder of the deceased.
[8] Relying
on s 35(3)(d) of the Constitution, the appellant challenged the
validity of the latter charge and applied for a permanent
stay of the
criminal prosecution. It was contended on his behalf that he would
suffer trial-related prejudice if the prosecution
were allowed after
about ten years had elapsed from the date the appellant was first
charged with the offence as: (i) the original
case docket and the
investigation diary had disappeared; (ii) statements had been
obtained from a minority of witnesses whose version
suited the state
case and other possible eyewitnesses could no longer be traced, and
(iii) the quality of the available evidence
would be materially
flawed as a result of the effect of the lapse of time on the memories
of the witnesses and the appellant. The
court
a quo
found
these grounds to be speculative and dismissed the application on the
basis that the appellant had failed to establish prejudice.
These
remain the issues on appeal. In addition, it was contended before
this court that the combination of factors in this case constituted
extraordinary circumstances justifying a permanent stay of
prosecution.
[9] Section 38 of the Constitution grants a relevant
party a right to approach a competent court on the ground that a
right in the
Bill of Rights has been infringed or threatened and,
depending on the circumstances of each particular case, the court may
grant
appropriate relief, including a declaration of rights. (See
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)
paras 18-19.) One of the broad range of remedies which the court may
grant where the right to a fair trial is under threat is
a permanent
stay of the criminal prosecution.
[10] This is, however, a drastic remedy which is granted
sparingly and only for very compelling reasons. Describing the remedy
in
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC) para 38, where the court was dealing with an accused’s right
to a speedy trial under s 25(3)(a) of the interim Constitution,
the
precursor to s 35(3)(d) of the Constitution (which, although worded
differently, has the same object), Kriegler J said:
‘[T]he relief…is
radical, both philosophically and socio-politically. Barring the
prosecution before the trial begins – and
consequently without any
opportunity to ascertain the real effect of the delay on the outcome
of the case – is far-reaching. Indeed
it prevents the prosecution
from presenting society’s complaint against an alleged transgressor
of society’s rules of conduct.
That will seldom be warranted in the
absence of significant prejudice to the accused. An accused’s
entitlement to relief such as
this is determined by s 7(4)(a) of the
interim Constitution [the similarly worded precursor to
s 38 of the
Constitution]’.
The learned judge continued at para 39:
‘A bar is likely to be available only in a narrow range of
circumstances, for example, where it is established that the accused
has probably suffered irreparable trial prejudice as a result of the
delay.’
The remedy
may be granted in the absence of trial-related prejudice, where
‘there are circumstances rendering the case so extraordinary
as to
make the otherwise inappropriate remedy of a stay nevertheless
appropriate’. (See
Wild and another v Hoffert NO and others
[1998] ZACC 5
;
1998
(3) SA 695
(CC) para 27; see also
McCarthy v Additional
Magistrate, Johannesburg
2000 (2) SACR 542
(SCA).)
[11] Section 35(3)(d) entrenches an accused’s right to
a speedy trial and provides:
‘Every accused person
has a right to a fair trial, which includes the right to have their
trial begin and conclude without unreasonable
delay’.
The object
of this provision is to protect an accused’s liberty, personal
security and trial-related interests (see
Sanderson
para 20;
Wild
para 5).
[12] The protection of these three rights is described
in a judgment of the Supreme Court of Canada,
R v
Morin
(1992) 8 CRR (2d) 193 at 202, quoted with approval in
Sanderson
para 20,
as follows:
‘The right to
security of the person is protected …by seeking to minimize the
anxiety, concern and stigma of exposure to criminal
proceedings. The
right to liberty is protected by seeking to minimize exposure to the
restrictions on liberty which result from pre-trial
incarceration and
restrictive bail conditions. The right to a fair trial is protected
by attempting to ensure that proceedings take
place while evidence is
available and fresh.’
(See also
Barker v Wingo, Warden
[1972] USSC 144
;
407 US 514
(1972) at 532.)
Trial-related
prejudice refers to prejudice suffered by an accused mainly because
of witnesses becoming unavailable and memories fading
as a result of
the delay, in consequence whereof such accused may be prejudiced in
the conduct of his or her trial. (See
S v
Dzukuda and
others; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) para 51.)
[13] Counsel were agreed that the delay in the
prosecution of the case had to be calculated as from August 1993,
when the appellant
was first charged (ie served with an indictment or
summons) with the offence. This may well not be correct and it could
be argued
that it would be inappropriate to set a time-bar in
circumstances where, for example, the prosecuting authority decides
not to prosecute
because it is unable or does not believe, for any
number of valid reasons, that a case can be prosecuted successfully
against an
accused, as may have been the case in the present matter.
As the court pointed out in
Sanderson
para 30,
‘the
test for establishing whether the time allowed to lapse was
reasonable should not be unduly stratified or preordained...[t]he
court will apply their experience of how the lapse of time generally
affects the liberty, security and trial-related interests that
concern us’. Be that as it may, the issue was not debated before us
and it is not necessary in my view to consider it in the light
of
counsel’s agreement. I shall, therefore, assume in favour of the
appellant, but without deciding, that for the purpose of evaluating
the lapse of time in conjunction with other relevant factors, the
delay in question commenced on the date accepted by counsel.
[14] That there was a lengthy lapse of time between
August 1993 (when the first decision to indict the appellant was
given effect
to) and April 2004 (when he was indicted for the second
time) is beyond doubt. The time period is, of course, central to the
enquiry
whether there has been an unreasonable delay. Nevertheless,
the fact of a long delay cannot
per se
be regarded as an
infringement of the right to a fair trial. Whether there was
‘unreasonable delay’ must be determined in the
context of the
particular circumstances of each case, taking into account factors
such as the length of the delay, the reason for
the delay, whether
the accused has suffered or is likely to suffer prejudice by reason
thereof and the accused’s assertion of his
right to a speedy trial.
The last-mentioned right is not restricted to those who seek to
enforce it (see
Sanderson
paras 25-26, 32).
[15] The question of prejudice is, in my view, decisive
on the facts of this case. Before I deal with it, however, it is
necessary
to highlight that, but for the representations made on
behalf of the appellant to the Attorney-General, which are peculiarly
within
the appellant’s knowledge and details of which he chose not
to disclose, the trial would have commenced on 26 January 1994. It
is
clear that the appellant had no interest at all in having a trial and
it hardly lies in his mouth in the circumstances to blame
the police
for ‘failing to properly investigate the matter in the first
instance’ and to argue, as his counsel sought to do,
that the
respondent is ‘hiding behind a wrong and/or ill-considered [or
negligent] decision to withdraw the charge’ - a decision
which, on
his own version, was based solely on his entreaties. This court is,
in any event, not entitled to interfere with the exercise
of the
respondent’s discretion by enquiring into the correctness of his or
her decision not to prosecute. Furthermore, as the appellant’s
counsel was constrained to concede, the withdrawal of the charge did
not carry with it a guarantee that, on reconsideration at some
later
date, the appellant would not be recharged. That was a risk the
appellant was apparently willing to take in preference to the
trial
proceeding on the set date. In evaluating the delay this is, in my
view, a relevant consideration.
[16] I turn now to consider the question whether the
delay has caused the appellant prejudice. It should be borne in mind
that the
enquiry does not concern the appellant’s liberty or
personal security. After the charge was withdrawn against him in
January 1994
nothing happened in connection with the case until April
2004. Issues of restricted freedom, stress, anxiety or social
ostracism
do not therefore arise. The focus is solely on whether he
has suffered significant trial-related prejudice. In establishing
facts
substantiating his claim, ‘vague and conclusory allegations
of prejudice resulting from the passage of time and the absence of
witnesses are insufficient to constitute a showing of actual
prejudice. [The accused] must show definite and not speculative
prejudice,
and in what specific manner missing witnesses would have
aided the defense’ (see
US v Trammell
133 F 3d 1343
at 1351,
quoted with approval in the
McCarthy
case supra, para 47).
[17] It must be considered first that on the facts, the
appellant had almost six months, between August 1993 and 26 January
1994,
to prepare his defence and decide which witnesses, if any, he
would call. After all, he had no guarantee that his representations
would succeed and, as his counsel conceded, it was very shortly
before the trial that he was informed of the Attorney-General’s
decision not to proceed with the prosecution. Save for a vague
allegation that SA Linishers ex-employees who were present during
the
incident (and whom he did not identify) can no longer be traced, the
appellant has not contended that there are witnesses whom
he intended
calling in his defence who, by reason of the passage of time, are no
longer available. It is common cause that Picota,
whose police
statement seemed to favour his case and who probably would have
testified on his behalf, is still available.
[18] Second, the appellant did not gainsay the
allegation made by Mr Thipe, one of the ‘new’ witnesses, that
whilst two of the
eyewitnesses have since died, he knows the
whereabouts of the remaining three and is willing to assist in
locating them.
[19] Third, the factual matrix of the case is relatively
simple and straightforward, the factual issues being in the main
whether
there was a preceding argument between the appellant and
Picota; whether the appellant was angry and whether the vernier
slipped
or was thrown. If the recent statements obtained from
witnesses are anything to go by, indications are that that those
witnesses
still have a fair recall of the relevant events. Should it
turn out that their memories have dimmed materially, as we were urged
by the appellant’s counsel to accept ‘as a general proposition’,
that should work to the appellant’s advantage as the prosecution’s
burden to prove its case beyond reasonable doubt will be all the more
difficult to discharge. These facts, in my view, fall far short
of
establishing the requisite prejudice.
[20] Similarly, the other difficulties raised by the
appellant’s counsel, significantly only as possibilities, such as
witnesses’
confabulation, inability to properly cross-examine state
witnesses by reason of the appellant’s own dimmed memory which may
lead
to adverse credibility findings against him and so on, appear to
me to be no more than speculative. Those issues obviously are some
of
the aspects that the trial court would have to consider, together
with the fact of the missing documents – Booysen’s initial
statement and the investigation diary - in assessing the evidence and
drawing the necessary inferences. In
McCarthy
, where the time
lapse was as lengthy and the grounds relied on for the alleged
trial-related prejudice similar to those advanced
in the instant
matter, Farlam JA held:
‘[45] The trial
prejudice relied on is summarized by Heher J in the passage quoted
above where he said that the lapse of 13 years
(now 15) since the
alleged conspiracy “suggest very strongly that the fairness of the
trial will be materially adversely affected,
in at least the
following respects: the applicant’s recollection of events, the
tracking down of such witnesses for the defence
as may survive, the
willingness of witnesses to testify, the recollection of those
witnesses and the procurement of real evidence.”
[46] I do not think the
grounds of prejudice listed …are sufficient to justify the
far-reaching remedy of an indefinite stay. At
least some of the
handicaps from which the appellant will suffer may well also render
the prosecution’s task more difficult, in
particular those relating
to the availability 15 years on, of witnesses and their recollection
of events. Furthermore these points
which will all have a bearing on
the question of proof beyond reasonable doubt will be able to be
brought to the attention of the
jury with all the emphasis at the
command of her legal representatives’.
[21] The
nature of the crime involved is another relevant factor in the
enquiry. This is particularly so in the present case considering
its
seriousness. The sanctity of life is guaranteed under the
Constitution as the most fundamental right. The right of an accused
to a fair trial requires fairness not only to him, but fairness to
the public as represented by the State as well. It must also instill
public confidence in the criminal justice system, including those
close to the accused, as well as those distressed by the horror
of
the crime. (See
S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC) para 29.) It
is also not an insignificant fact that the right to institute
prosecution in respect of murder does not prescribe.
(See
s 18
of the
Criminal Procedure Act 51 of 1977
). Clearly, in a case involving a
serious offence such as the present one, the societal demand to bring
the accused to trial is that
much greater and the court should be
that much slower to grant a permanent stay.
[22] In my
view, the appellant has failed to establish that he has or will
probably suffer trial-related prejudice if he is not granted
a
permanent stay. Neither has he shown extraordinary circumstances that
would justify such an order. The appeal must accordingly
fail. There,
however, remains the question of costs. The court
a quo
did
not make an order of costs having regard to the nature of the
proceedings. That approach was correct. This is a criminal proceeding
in which the claimant seeks to enforce a constitutional right. Even
though the appellant has failed in his claim it was ‘a genuine
point on a point of substance’. (See
Sanderson
paras 43-44;
McCarthy
para 51 and
Motsepe v Commissioner for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA 898
(CC) at 911E-F.)
[23]
The appeal is dismissed with no order as to costs.
__________________________
MML MAYA
ACTING
JUDGE OF APPEAL
CONCUR:
SCOTT
JA
VAN
HEERDEN JA
NUGENT JA
[24] I agree with the order that is proposed by my
colleague but regret that I cannot agree with the approach that has
led to her
conclusion. This being a minority judgment I will express
my view only briefly.
[25] Whether there has been unreasonable delay in
bringing an accused person to trial, and if so, how that should be
remedied, calls
for a balanced decision that brings to account the
length of the delay, the reason the state assigns to justify the
delay, the assertion
by the accused of his or her right to a speedy
trial, and prejudice to the accused from the delay. That was decided
in
Sanderson v Attorney-General, Eastern Cape
.
1
[26] I do not think the balanced decision that is called
for by
Sanderson
is capable of being made unless all those
factors have been brought to account. For there is no empirical
measure against which
to weigh any of them in isolation. Each is
capable of being accorded its due weight only relative to the others.
[27] If the Director of Public Prosecutions (DPP) has
indeed denied to the appellant his right to be brought to trial
without unreasonable
delay since he was first charged in April 1993 –
my colleague has assumed, but not decided, that he has – then in my
view the
fault of the DPP in doing so cannot simply be overlooked in
making the balanced decision that
Sanderson
requires. For if
the DPP was at fault, without justification, the balance may shift
decisively against him. I am unable to accept
that even if the DPP
has culpably denied to the appellant for more than ten years his
right to be brought to trial promptly, which
my colleague assumes to
be the case, the appellant is nevertheless not entitled to an order
staying any further prosecution in the
absence of specific prejudice
above the prejudice that can generally be expected to result from the
passage of that period of time.
For that reason I have found it
unavoidable to decide whether the appellant was indeed denied that
right, notwithstanding the concession
by the DPP’s counsel that he
was (a concession of law that seems to me to have been
ill-considered) because it might be material
to the outcome of the
enquiry as to whether the appellant should be granted the remedy he
has sought. But the answer to that question
has an incidental –
yet decisive – effect on my approach to the matter. For the
conclusion to which I have come on that question
is that the
concession was not correct. In my view the appellant had no right to
be brought to trial during the period that is now
in issue, and thus
the DPP cannot be faulted for not having done so. And because the
appellant was not denied that right the enquiry
that my colleague has
embarked upon is not called for at all.
[28] There
was no delay in bringing the appellant to trial once he was first
charged in April 1993 and the appellant’s counsel did
not suggest
that there was. The submission was that the DPP remained bound to
bring the appellant to trial promptly even after the
first charge was
withdrawn in January 1994 and that he denied the appellant that right
from that time until April 2004 when he was
charged again.
[29] I do not think the DPP can be faulted for not
having brought the appellant to trial during that period, simply
because throughout
that period the appellant did not stand accused of
having committed an offence, and there was thus no accusation upon
which to try
him. For the right to be brought to trial without
unreasonable delay is a right that protects the integrity of the
prosecution process:
it accrues to an accused person and endures for
only so long as he or she stands accused.
[30] It is not necessary to decide in this case
precisely when a person can be said to be an ‘accused person’ for
purposes of
s 35(3)(d)
and I do not suggest that that requires that
he must have been formally charged. But on even the widest
construction of that term,
2
I do not think the appellant was an ‘accused person’ at any time
throughout the period that is now in issue. The formal accusation
that had been made against him had been withdrawn without any
intimation to him that it might be renewed nor any intention that it
would be. There is also no suggestion that the withdrawal of the
charge was in some way improper or merely a device. On the contrary,
the matter remained altogether forgotten in the office of the DPP
until the case came to be re-investigated ten years later. Far
from
accusing the appellant of having committed an offence the DPP did not
even suspect the appellant of having done so. Indeed,
even the
appellant did not consider himself to be standing accused of the
commission of an offence. I do not think that the appellant
can be
said to have been an ‘accused person’, even on the widest
construction of the term, if nobody, including the appellant
himself,
considered that he was standing accused of the commission of an
offence.
[29] But it was submitted on behalf of the appellant
that because the material facts were known to the DPP he was in a
position to
accuse him of having committed an offence and ought to
have done so and then brought him to trial promptly.
Section
35(3)(d)
does not confer a right upon a person to be accused of an
offence. (That would amount to the introduction of a radically new
ground
of prescription.
3
)
Nor does it confer a right upon a person who has once been accused
of an offence not to be accused of it again, which was also
counsel’s
submission. (That would be to make material inroads upon the
limitations on the right against double jeopardy.) In its
terms the
right that is encompassed in
s 35(3)(d)
is a right to be tried
reasonably promptly while a person stands accused of an offence.
[30] I do not think the appellant was in that position
from the time the charge was first withdrawn in January 1994 until it
was
renewed in April 2004. In the result he had no right to be
brought to trial (whether promptly or otherwise) during that period
and
the DPP had no corresponding duty to do so and it follows that
the DPP was not at fault for not having done so. Indeed, as I
pointed
out earlier, it also follows that the appellant was never
denied a right at all and the enquiry that is contemplated by
Sanderson
is simply not called for. It is for that reason
that I would dismiss the appeal.
____________________
R.W.
NUGENT
JUDGE
OF APPEAL
CONCUR:
CACHALIA
AJA
1
1998
(2) SA 38
(CC) esp. para 25.
2
Cf
Sanderson
, paras 17 and 18, in which Kriegler J discussed the
meaning of ‘charged’ in the context of
s 35(3)(a)
of the interim
Constitution, and also pointed out that the present section, though
differently worded, is ‘substantially the
same’.
3
In
terms of
s 18
of the
Criminal Procedure Act 51 of 1977
the right to
institute a prosecution for any offence other than the offences of
murder, treason committed when the Republic is
in a state of war,
aggravated robbery, kidnapping, child-stealing, and rape, lapses 20
years from the time when the offence was
committed.