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[2012] ZAKZPHC 20
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McGregor v Asmal NO and Another (11224/11) [2012] ZAKZPHC 20 (3 April 2012)
11
IN THE KWAZULU-NATAL
HIGH COURT OF SOUTH AFRICA PIETERMARITZBURG
CASE NO. 11224/11
In the matter between:
STEVEN McGREGOR
….......................................................
APPLICANT
and
THE REGIONAL
MAGISTRATE
Ms B. ASMAL N.O.
…...........................................
FIRST
RESPONDENT
THE DIRECTOR OF PUBLIC
PROSECUTIONS KZN
….................................
SECOND
RESPONDENT
_______________________________________________________
JUDGMENT
Delivered
on 03 April 2012
_______________________________________________________
SWAIN J
[1] Before me is an
application to review the decision of the first respondent, refusing
an application by the applicant, for a
permanent stay of the
prosecution, in which the applicant is charged with the crime of rape
and in the alternative, with the crime
of contravening Section 18 of
the Sexual Offences Act No. 23 of 1957, it being alleged that the
applicant unlawfully administered
a drug to the complainant, with
intent to stupefy or overpower her, so as to enable him to have
unlawful carnal intercourse with
her.
[2] The present
application finds its origin in the alternative count faced by the
applicant, who claims a failure by the second
respondent, to supply
the applicant with specified information, relevant to the second
respondent’s
onus
to prove the chain of evidence,
pertaining to the handling and custody of a blood sample taken from
the complainant. Such evidence
is of course vital, if the second
respondent is to prove the presence of the specified drug, in the
blood stream of the complainant,
at the relevant time.
[3] The applicant
complains that in the absence of this information, he is compelled to
proceed to trial under circumstances where
he could never be fully
prepared, nor in a proper position to challenge and adduce evidence
therein.
[4] The applicant alleges
that the first respondent in reaching the conclusion that she did,
misdirected herself in a number of
respects, and that the proceedings
were
“tainted by gross irregularities”.
[5] Before dealing with
these allegations it is apposite to remind oneself that these are
review proceedings, where the applicant
bears the
onus
of showing that the first respondent
“did
not properly apply his (her) mind to the question before him (her) or
that he (she) acted irregularly in coming to the
conclusion which he
(she) reached”.
Naidoo v National
Director of Public Prosecutions
[2003] 54 All SA
380
(c) at 389 a
[6] The applicant would
have to show that the first respondent’s decision was so
unreasonable, as to indicate that she did
not properly apply her mind
to the matter. I find it unnecessary to deal with each of the
respects in which it is alleged, that
the first respondent
misdirected herself, because I am satisfied that considered
individually, or cumulatively, they do not justify
any such finding.
This is more particularly so, in the light of the view I take on the
merits of the application, which I will
deal with below.
[7] As regards the issue
that the proceedings were tainted by gross irregularities, the
applicant’s complaint is that the
first respondent allowed
Advocate Zulu, to argue the matter on the strength of two affidavits
deposed to by himself and filed in
the matter. The fact that Advocate
Zulu deposed to two affidavits on behalf of the second respondent, in
opposing the application
and then proceeded to argue the matter on
behalf of the second respondent, although clearly undesirable and
inappropriate, does
not in my view, constitute an irregularity in the
proceedings of sufficient magnitude, to set aside the decision of the
first respondent.
Nowhere does the applicant allege what prejudice he
has suffered as a result of this complaint.
[8] Turning to the merits
of the application. It is of course clear that this Court will not
interfere in incomplete criminal proceedings
in a court below, unless
the case is a
“rare”
one
“where
grave injustice might otherwise result or where justice might not by
other means be attained ……”
Wahlhaus &
others v Additional Magistrate Johannesburg
& another
1959 (3) SA 113
(A)
at 120 a - b
[9] In the context of an
application for a permanent stay of a prosecution, the injustice to
be established is that of
“irreparable or insurmountable
trial prejudice”
Bothma v Els
2010 (1) SACR 184
CC at 211 para 68
Sanderson v The
Attorney General Eastern Cape
1998 (2) SA 38
CC
at para 39
[10] Irreparability in
this context relates to
“insurmountable damage”
caused
“to the fairness and integrity of a
possible trial”.
Bothma at para 68
“
Put another
way, to say that the trial has been irreparably prejudiced is to
accept that there is no way in which the fairness of
the trial could
be sustained”
Bothma at para 68
[11] A permanent stay of
prosecution
“
is
far-reaching and will seldom be warranted in the absence of
significant prejudice to the accused”.
McCarthy v
Additional Magistrate Johannnesburg
2000 (2) SACR 542
SCA at 556 para 44
[12] The accused must
show
“definite and not speculative prejudice”.
Zannar v Director
of Public Prosecutions Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) at pg 52 para 16
Everything will depend
upon the circumstances and all the relevant factors have to be
weighed on a case-by-case basis.
Bothma para 77
It would be
“ill-advised”
for a Court hearing an application such as the present
“to rehearse scenarios”
of possible
trial-related prejudice, the applicant might suffer.
Bothma para 82
[13] In the absence of
evidence to show that the applicant will suffer grave, definite,
trial-related prejudice, it will be up to
the trial court to ensure
that the applicant will receive a fair trial.
Bothma para 82
and to decide whether the
applicant suffers from
“any actual trial-related
prejudice”.
Naidoo at page 389 c
in the light of
“the
full evidential and factual context”
within which
such prejudice is alleged to arise.
Naidoo at page 389 c
[14] Having outlined what
I conceive to be the correct approach to applications of the present
kind, I turn to consider the grievances
of the applicant.
[15] The applicant
complains that with regard to three reports compiled by Drs. Bower
and Partners, a private firm of consulting
pathologists, setting out
their findings with regard to blood apparently emanating from the
complainant, the reports do not clarify
the following issues:
[15.1] Which person(s)
received the blood sample.
[15.2] Which person(s)
broke the seal of the blood sample.
[15.3] The
qualification(s) of the person(s) performing such analysis of the
blood sample.
[15.4] The scientific
process or methodology used in the analysis of the blood sample.
[15.5] Whether or not and
how such sample may have been re-sealed.
[15.6] The steps taken
with respect to the proper preservation of such sample.
[16] A further complaint
was that the information supplied by the second respondent to deal
with these issues,
“serve only to cloud the matter
further”.
[17] What is immediately
apparent is that the applicant has a recognised alternative remedy to
a stay of the present prosecution,
namely a
mandamus
directed to the first respondent, that she order the
second respondent to furnish the information to the applicant.
Naidoo at page 392 i –
j
If the second respondent
does not supply the information to the applicant, it would have to
justify any refusal, or failure to do
so. It is not for the second
respondent to decide what is relevant and what is not, as far as the
applicant’s case goes.
S v Rowand
2009 (2) SACR 450
(W) at 455 g
[18] In any event, I am
not persuaded that a lack of the evidence requested shows that the
applicant will suffer grave, definite,
trial-related prejudice. Mr.
Scheltema S C, who appeared for the applicant, submitted in his heads
of argument, that because of
the inadequacy in the chain of custody
evidence, the applicant is not in a position to properly and
timeously prepare his defence
and the prosecution is unfairly
favoured by the fact that it has the resources, to readily access the
relevant information. In
my view, the answer to this is the
following:
[18.1] As pointed out
above, the applicant has the alternative remedy of a
mandamus
.
[18.2] If such an
application does not achieve the desired result for whatever reason,
the second respondent will bear the
onus
of proving the chain of custody with regard to any blood
sample. If the second respondent fails to achieve this, it may have
the
consequence that it is unable to prove that the blood upon which
the relevant analysis was carried out, was the blood of the
complainant,
and that the results of the analysis are accurate and
reliable. Such a result can only enure to the benefit of the
applicant, save
that the applicant would be deprived of positively
showing the absence of the specified drug in the blood stream of the
complainant,
which may be of relevance to the credibility of the
complainant. Due weight may have to be given by the trial court to
such an
eventuality and any difficulty it may have caused the
applicant in presenting his evidence.
Bothma para 82
[18.3] I do not regard
the lack of the evidence requested as a serious impediment to the
applicant’s preparations for trial.
The applicant would be
able, even in the absence of the evidence, to obtain expert advice on
the scientific process, or methodology
necessary to analyse a blood
sample to detect the drug in question in a reliable manner, as well
as the necessary qualifications
of the individual carrying out such a
test. In addition, expert evidence could be obtained as to the proper
steps to be taken to
preserve the blood sample, as well as the
correct manner in which to seal the sample. Again, any prejudice
experienced by the applicant
in this regard during the course of the
trial, would have to be assessed by the trial court, as and when it
may arise within the
context of the evidence led at the time.
[18.4] A further
complaint of Mr. Scheltema S C, was that the applicant would not be
in a position to properly plead to the charges,
in the absence of the
requested evidence. I disagree. From the statements of the applicant
and the complainant, made to the Police
it is apparent that the
defence of the applicant is that the complainant consented to having
sex with the applicant and initiated
sexual intimacy. The sexual
intercourse according to the applicant was
“most
definitely with the consent and active participation of the
complainant”
. The version of the complainant
however, is that after the applicant had given her coffee, she felt
instantly tired and thereafter
described disparate images of having
sex with the applicant and then waking up in the applicant’s
bed the following morning.
The complainant stated that she did not
give permission to the applicant to sexually abuse her. On these
disparate versions of
events the plea of the applicant to both counts
must be that of not guilty. In respect of Count 1, any plea
explanation would be
one of consensual sexual intercourse and in
respect of Count 2, a denial of the administration of any drug to the
complainant.
Any further prejudice complained of by the applicant,
would have to be dealt with by the trial court.
[19] Mr. Scheltema S C
also submitted that the applicant has been subjected to an abuse of
process, over a period of several years
by the second respondent. The
inability of the second respondent over several years, to properly
and adequately respond to the
applicant’s request for
information, is deplorable. If the second respondent is unable to
provide the requested evidence
and prove that the tests were done
upon a blood sample of the complainant and that the results are
accurate and reliable, it seems
on the evidence before me,
incomprehensible why the second respondent persists in advancing the
alternative charge to Count 1,
with the result that the trial has
been delayed for several years. There may of course be additional
evidence, to which I am not
privy, which explains the attitude of the
second respondent.
[20] Due weight being
given to the applicant’s complaint that he has been subjected
to several years of an abuse of process,
of central significance in a
case such as the present, is the nature of the alleged offence, being
that of rape.
“
The less
grave the breach of the law, the less fair it will be to require the
accused to bear the consequences of the delay. The
more serious the
offence, the greater the need for fairness to the public and the
complainant by ensuring that the matter goes
to trial”.
Bothma para 77
The order I make is the
following:
The application is
refused.
____________
K. SWAIN J
Appearances
/
Appearances:
For the Applicant :
Mr. G. P. Scheltema S C
Instructed by
:
Jacques Botha & Associates
Durban
C/o Chetty, Asmall &
Maharaj
Pietermaritzburg
For the 2
nd
Respondent:
Mr. I. Cooke
Instructed by
:
Director of Public Prosecutions
Date of hearing :
16
March 2012
Date of Judgment
:
03 April 2012