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[2013] ZANCHC 19
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S v April (CA & R 22/2013) [2013] ZANCHC 19; 2014 (1) SACR 183 (NCK) (28 June 2013)
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT KIMBERLEY
)
Case number:
CA
& R 22 / 2013
Date heard:
03
/ 06 / 2013
Date delivered:
28
/ 06 / 2013
In the review of:
THE STATE
and
ELROY RALPH APRIL
...................................................
Accused
Coram:
Kgomo JP
et
Erasmus, AJ
JUDGMENT
ERASMUS, AJ
[1]
The
accused
was
convicted
on
three
counts
of
assault
with
intent to
do
grievous
bodily
harm
in
the
Magistrate's
Court, Kimberley, on
31
May 2012. After
conviction
and
before
the
imposition of sentence, it was discovered that,
in
respect
of
charges
1
and 3, the accused had been diverted from the criminal justice
system. He completed a diversion programme
for
juvenile
offenders successfully and the charges against him were
withdrawn.
He
was
later prosecuted on the
same
charges. The presiding officer sent
the
case on special
review
in
terms
of
section
304
(4)
of
the
Criminal
Procedure
Act,
No.
51
of
1977.
[2]
The
reviewing judge requested the
office
of
the
Director
of
Public
Prosecutions
to
provide
a
legal
opinion. After
receipt
thereof,
the
reviewing
judge
ordered
that
oral
argument
be
heard
as
to whether
there
can
and
should
be
interfered
with the prosecution
of
the accused
on
the charges that had previously been withdrawn,
after
successful completion of the diversion programme.
[3]
The
following
facts
are
common
cause
between
the
State
and
the
accused:
[3.1]
The
offences
that
are
subject
to
review
were
allegedly
committed
on
07
February 2009. The
accused
was
17
years
old
at
the
time
of
the
commission of
these
offenses.
He turned 18 years on 20 December 2009.
[3.2]
The
accused initially
appeared
in
court
on
12
February
2009.
The
case
was
postponed
and
the
accused
attended
the
prescribed
diversion
programme. On 26 May 2009 the
prosecutor
withdrew
the charges and informed the court that the accused had successfully
completed the diversion programme. This is reflected
in the record of
the proceedings.
[3.3]
The
complainant
in
respect of charge 1 was
dissatisfied
with
the
prosecutor's
decision
to
withdraw
the
case.
She
approached
the senior
prosecutor
to
convey
her
dissatisfaction
with the outcome of the proceedings.
From
a report of the senior
prosecutor
it appears that she (the senior prosecutor) was in doubt
as
to whether the
accused
could be
charged
again.
She sought guidance
from
her superiors
whether
the
accused could be prosecuted,
given
the fact
that
the charges
had
been withdrawn after
the
accused successfully
completed
the diversion programme.
[3.4]
The senior prosecutor decided to summons the accused. He
appeared
in
court
again
on
14
August 2009.
The
case was
referred
to
the
Director
of Public
Prosecutions
for
a
decision.
The case was
removed
from the roll
on
27
January 2010
because
the
Director
of Public
Prosecutions'
decision
was
still
outstanding.
It does not appear from the record why the accused was summonsed to
appear in court before the decision of the Director
of Public
Prosecutions was obtained.
[3.5]
The
prosecution
against
the accused was once again reinstated
on
written instructions of the Director of Public
Prosecutions,
dated
22
February 2010.
According
to
a
letter
of another senior
prosecutor
in
Kimberley
dated 13
September
2012,
addressed
to
the
Chief
Magistrate
,
Kimberley,
this decision of the
Director
of
Public
Prosecutions
was
based
on
a
recommendation
from
the
senior
prosecutor
who
initially
referred
the
matter to the
Director
of
Public
Prosecutions.
In the letter to the Senior Magistrate, the senior prosecutor is
of
the
opinion
that
the
accused
should
not have been
prosecuted
again.
[3.6]
The
factual background and recommendations of
the
senior
prosecutor
who initially referred the matter to the Director of Public
Prosecutions,
are
contained
in
a
report
dated
30
November
2009.
She
was
of
the
opinion
that
the
case
was
not
suitable
for
diversion
from
the
outset.
The
decision
of
the
prosecutor
that
diverted the accused had not been taken in
consultation
and
with the permission of
any
of
the senior
prosecutors.
The complainant
in
the
case
was
also not consulted when the initial decision to divert was taken. The
social worker who had initially assessed the accused and
recommended
also did not consult the victim, as it was not their policy and
practice to do so.
[3.7]
The
accused
appeared
in court
in
April
2010
and
was
eventually
convicted
on
31
May 2012.
[4]
The
diversion
of
juvenile
offenders
is
currently
regulated
by
the
Child
Justice
Act,
No. 75
of
2008
.
In terms of
section
59(1)(a)
, which specifically
deals
with
the
legal consequences of
a
decision to
divert
an accused, a prosecution
based
on the same
facts
may
not be instituted against
an
accused
that
has
completed a diversion
programme
successfully.
However, the
Child
Justice Act
first
came
into
operation
on 1 April 2010. In
terms
of
section
98(1)
thereof, all
criminal
proceedings
instituted
against
children
and
which
had
not
been
completed
before
the commencement of
the
Act,
must be continued
and
completed
as
if
the
act
had
not
been
passed.
The
Act
has
no retrospective operation.
[5]
Although
juvenile offenders
have
been diverted on a regular
basis
prior
to
the
commencement
of
the
Child
Justice Act, there
was
no
legislation
that
regulated
the
process.
There
was
no
statutory
prohibition
on
the
reinstatement
of
a
prosecution
where
the
accused
had
successfully
completed
a diversion programme and the
case
against
him
was
withdrawn.
[6]
The
discretion
whether
or not to institute or continue a
prosecution
rests
with the
National
Prosecuting
Authority.
The
exercise
of
the
discretion
whether
to institute or continue a prosecution is
not
an
administrative
act
and
not
reviewable
in
terms
of
the
Promotion
of
Administrative
Justice
Act, No.
3
of
2000
.
1
[7]
However,
this
discretion
is
not
unlimited
and
a
decision
to prosecute
is
subject
to
interference
by the
courts
2
and
therefore
reviewable
.
3
The
courts will
however
only interfere with the
exercise
of
the
discretion of the
National
Prosecuting
Authority
in
exceptional
cases
.
4
[8]
The
right to a
fair
trial
was
recognized
before
the
Constitution of the
Republic
of
South
Africa
5
came
into operation and operated as the foundation
of
our
legal
system. In
appeal
or
review
proceedings
though,
the
question was simply
whether
there
was
an
irregularity
which
resulted in
a
failure of justice.
6
The
investigation
is
now
wider
and
it
must
also
be
determined
whether
the
prosecution,
including the
decision
to prosecute, was in
accordance
with
the
basic
principles
of
equity
and
justice,
as per Kentridge AJ:
7
“
It
embraces a concept of substantive fairness which is not to be equated
with what might have passed muster in our criminal courts
before the
Constitution came into force. In S v Rudman and Another; S
v Mthwana
1992 (1) SA 343
(A), the Appellate Division, while not
decrying the importance of fairness in criminal proceedings, held
that the function of a
Court of criminal appeal in South Africa was
to enquire 'whether there has been an irregularity or
illegality, that is a departure
from the formalities, rules and
principles of procedure according to which our law requires a
criminal trial to be initiated or
conducted'.
A Court of appeal, it was said
(at 377)'does not enquire whether the trial was fair in accordance
with "notions of basic
fairness and justice", or with
the "ideas underlying the concept of justice which are the basis
of all civilised systems
of criminal administration".'
That was an authoritative
statement of the law before 27 April 1994.
H
Since that date s 25(3) has required criminal trials to be
conducted in accordance with just those 'notions of basic fairness
and
justice'. It is now for all courts hearing criminal trials
or criminal appeals to give content to those notions.”
[9]
It should always be kept in mind that a prosecutor stands in a
special relationship to the court and this required and still
requires that an accused be treated fairly.
8
T
he
National
Prosecuting Authority,
when
deciding
whether
to institute or continue a
prosecution,
must
consider and give effect to the
provisions
of the Constitution
and
the principles
enshrined
therein
and
any other applicable legal principles
and
legislation.
Failure
to
comply with
these
principles will result in the decision being
subject
to
review
and
intervention
by the courts.
In
Democratic
Alliance v Acting National Director of Public Prosecutions and
Others
9
Navsa
JA
remarked
as follows:
“
...As
recently as 1 December 2011, in Democratic Alliance v President of
the Republic of South Africa and Others 2012(1) SA 417
(SCA) this
court noted that the office of the NDPP was integral to the rule of
law and to our success as a democracy. In that case
this court stated
emphatically that the exercise of public power, even if it does not
constitute administrative action, must comply
with the Constitution.
The Constitutional Court has repeatedly emphasised this point.”
[10]
The
Criminal
Procedure
Act,
No. 51
of
1977
,
provides no guidance in
casu.
It
does not prohibit
the
reinstatement of the
prosecution,
as the case
against
the
accused
was
previously
withdrawn and the prosecution was not stopped in terms of
section
6(b)
thereof. The
Child
Justice
Act
does
not
apply.
Before
its
commencement, there
was
no
other
legislation
in
place
that
regulated
the
diversion
of
juvenile
offenders
.
[11]
At the time when the accused was diverted, February 2009 there
appears to have been no guidelines or policy directives that
provided
guidance or directions to prosecutors. It was not required of
prosecutors to consult the victim before an accused was
diverted. Mr
Barnard, in his heads of argument, referred to policy directives of
the National Prosecuting Authority, issued in
April 2012, that now
require prosecutors to consult the victims before a criminal matter
is dealt with by means of the diversion
process. Prosecutors are
required to adhere to these directives. The diversion process is also
now regulated in the
Child Justice Act.
[12]
There
was
legally
no
prohibition
against
the
reinstatement
of the prosecution against the accused. In
the
present
case
there
are no irregularities that constitute grounds for
interference.
There was no
mala
fides
on
the
part
of
the
prosecutors
and
/
or
the
National
Prosecuting
Authority
that
influenced
or motivated the
decision
to
prosecute
the accused again. We deem it necessary to mention though that we
find it disturbing that the accused was summonsed and
brought before
court in August 2009, before the decision of the Director of Public
Prosecutions became known. The case was removed
from the roll again
in January 2010 because the instructions were not forthcoming. The
instructions to prosecute the accused were
only issued in February
2010, after which the accused was once again summonsed and brought
before court.
[13]
This brings me to the final question as to whether the decision to
prosecute the accused again was in
accordance
with
the
basic
principles
of
equity
and
justice
and whether the accused was treated fairly.
[13.1]
In
Van
Eeden v Director of Public Prosecutions, Cape of Good Hope
10
,
the
Full Bench of the
Western
Cape
High
Court,
held:
11
“
One of
the elements of those 'notions of basic fairness and justice' is
that the State is to be held to a plea bargain which
it has made or
is deemed to have made. This is an element of substantive fairness.
As Uijs AJ held in North Western Dense Concrete,
it would be
'palpably unfair' to allow the prosecution to enjoy the benefits of a
plea agreement, but to be able to avoid doing
what was clearly
contemplated when that agreement was reached. (At 682j - 683a)”
[13.2]
In
National
Director of Public Prosecutions v Zuma
12
it
was stated as follows:
“
Courts
have also interfered with decisions to prosecute in circumstances
where the prosecuting authorities had given an undertaking
not
prosecute or had made a representation to that effect in exchange for
a plea or for co-operation. The prosecuting authority
has been kept
to its bargain.”
[14]
Here
is, in
the
present
case,
no
evidence
of
an
express agreement
between
the
State
and
the
accused
to
the effect that
the
accused
would
not
be
prosecuted
if
he
completed
the diversion programme
successfully.
Here
appears to be a tacit or implied agreement which might have created
an expectation with the accused that he would not be prosecuted.
In
National
Director of Public Prosecutions v Zuma
13
it
was stated as follows:
“
An
expectation can be legitimate only if it is based on a practice of or
a clear and unambiguous representation by the administrator…”
[15]
The
issue that remains to be decided is whether
the
National Prosecuting Authority or
the
prosecutor
created
the
expectation that the
accused
would
not be
prosecuted
if he completed the diversion programme successfully, and
if
so,
[15.1]
if this expectation was unqualified and reasonable,
14
and
[15.2]
whether the National Prosecuting Authority or the prosecutor was
authorized to create such an expectation.
15
[16]
It is common cause
that
the accused was diverted and the case withdrawn after he completed
the programme successfully. This was recorded by the magistrate
when
the case was with withdrawn. It can be safely assumed that the
prosecutor informed the court accordingly when he withdrew
the case.
These
facts
suggest
that
an
expectation
was
created that
the
accused
will
not
be
prosecuted
again on the same facts. This must be accepted in his favour. There
is
no
evidence that the
representation
by
the
prosecutor
was
not
unqualified
or
that
it
was
unreasonable.
Had
the prosecutor not informed the court of the reasons of the
withdrawal in this matter, the accused could have been prejudiced
in
that there would not have been any record of the reason for the
withdrawal of the case against the accused. It emphasizes the
importance of a prosecutor to furnish reasons for withdrawal of cases
and the proper recording of such reasons.
[17]
There
is
no
evidence
before
us
that
the
prosecutor
who
took
the decision to divert the accused had
acted
beyond
his powers and/or scope of authority. Diversion
was
and
is
a
recognized
practice
that
is
often
applied
in
respect
of
juvenile
offenders.
[18]
The
accused
was
17
at
the
time
of
the
commission of the
time
of the commission of the offense. He
completed
the diversion programme
successfully
before
he
turned
18.
The prosecution
was
instituted and
reinstated
when
he
was
still
a
minor.
The
case
was
removed
from
the
role,
and
he
was
later
in
2010,
when
he
had
reached the age of majority, continued. The delay in the finalization
of the case was
more
than
three
years.
[19]
It was, in the
circumstances
of
this
case,
unfair and not in accordance with the
notions
of basic fairness and
to
prosecute
the
accused
again.
We
are
therefore
entitled
to
interfere in this matter. The National Prosecuting Authority should
be kept to the expectation that the prosecutor created. Mr
Barnard,
on behalf of the State, rightly conceded that the convictions on
count 1 and 3 should be set aside. This is
also
in
accordance
with
the
submissions
by
Mr Olivier,
amicus
curiae,
on
behalf
of
the
accused.
I make the following
order:
The
conviction
on
counts
1
and
3
is
set aside;
The
case is referred
back
to
the
Magistrate,
Kimberley
for the imposition of sentence
on
count
4.
_________________
SL ERASMUS
ACTING JUDGE
NORTHERN CAPE
DIVISION
I agree.
_________________
FD KGOMO
JUDGE PRESIDENT
NORTHERN CAPE
DIVISION
On
behalf of the State:
Adv. TE Barnard
On
behalf of the Accused:
Adv. AD Olivier (amicus curiae)
1
Section
1(i)(ff)
; See Kaunda and Others V President of South Africa and
Others 2005(4) SA 235 (CC) at 263 par [84]
2
Du
Toit
et al:
Commentary
on the
Criminal Procedure Act p
1-4N-1; National Director of Public
Prosecutions v Zuma 2009(2) SA 277 (SCA)
at
294 par [36]-[39]
3
Democratic
Alliance v The Acting National Director of Public Prosecutions
2012 (3) SA 486
(SCA) at par [27] tot [31]; North Western Dense
Concrete CC and Another v Director of Public Prosecutions, Western
Cape
2000 (2) SA 78
(C) at 90E-F
4
S
v August and Others
[2005] 2 All SA 605
(NK) at 611h
5
Act
108 of 1996
6
S
v Rudman and Another; S v Mthwana
1992 (1) SA 343
(A) at 377
7
S
v Zuma and Others
[1995] ZACC 1
;
1995
(1) SACR 568
(CC)
par
[16]
8
R
v Steyn
1954(1) SA 324 (A) at 337;
North
Western Dense Concrete CC
supra
op 91B; Democratic Alliance v
President of the Republic of South Africa and Others 2012(1) SA 417
(SCA)
9
2012
(3) SA 486
(SCA) at 495 par [27]
10
2005(2)
SASV 22 (C) par [18] – [26]
11
Par
[23]
12
Supra
par [39]
13
Supra
p 307 par [80]
14
National
Director of Public Prosecutions v Zuma
supra
par [80]
15
South
African Veterinary Council and Another v Szymanski 2003(4) SA 42
(SCA) par 19