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[2012] ZAKZDHC 20
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Panday v Minister of Police and Others (12044/10) [2012] ZAKZDHC 20; 2012 (2) SACR 421 (KZD) (18 April 2012)
1
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO:12044/10
In the matter between
T. PANDAY
….....................................................................................................
Applicant
and
MINISTER OF POLICE AND OTHERS
…......................................................
Respondent
JUDGMENT
Delivered:
18 April 2012
MURUGASEN J
[1] This an application to review and
set aside the issuance of subpoenas in terms of the provisions of
Section 205
(1) of the
Criminal Procedure Act 51 of 1977
on the
grounds that the issuance is inconsistent with the Constitution of
South Africa and invalid, and for an order directing
the return of
the documents and records obtained pursuant to the execution of the
subpoenas.
[2] The applicant, Thoshan Panday,
seeks the following orders:
1 an order reviewing and setting aside
a decision by the Magistrate, Durban Magistrate Court (the Fourth
Respondent) during May
and June 2010 to issue five subpoenas in terms
of the provisions of
Section 205
(1) of the
Criminal Procedure Act 51
of 1977
;
2 an order declaring that the issuance
of the subpoenas is inconsistent with the Constitution and invalid;
3 an order declaring that the issuance
of subpoenas in terms of Section 205 of the Criminal Procedure Act 51
of 1977 (the CPA) by
the Fourth Respondent without keeping proper
records of the application and decisions leading to the issuance of
the subpoenas
is unconstitutional;
4 an order declaring that the
authorisations issued by the Deputy National Director of Public
Prosecutions dated 14 April 2005 are
not the authorisations required
by Section 205 of the CPA;
5 an order that the Minister of
Police, the Minister of Justice and Constitutional Development and
the Director of Public Prosecutions
(the First, Second and Third
Respondents respectively) return all the documents and records of
accounts obtained pursuant to the
execution of the subpoenas be
returned to the applicant’s legal representatives; and
6 an order for costs against the
First, Second and Third respondents jointly and severally.
[3] The relief sought by the applicant
is premised on the following alleged
Procedural irregularities or failure
to follow due process which renders the issue of
the subpoenas inconsistent with the
Constitution and invalid :
The failure of the 4
th
respondent to keep a proper record of the circumstances leading to
the issue of the subpoenas and his decisions, and to retain
copies
of the section 205 applications constitutes a drastic procedural
irregularity, which detracts from the accountability
and obligation
of the issuing officers to premise their decision on a factual
basis.
2 The State did not make out a
sufficient case for the subpoenas to be issued on the terms contained
therein. In particular, given
the paucity of relevant averments in
Colonel Soobramoney’s affidavits, no connection between the
accounts of Goldcoast CC
and the information pertaining to
applicant’s personal bank statements and between the alleged
offences and the documentation
sought, was established.
The applicant was not afforded a
hearing by the magistrates nor did they order that copies of the
subpoena be served on him, nor
did they endorse the subpoenas to the
effect that his bankers’ were permitted to inform the applicant
of the intended examination
or production of the requested
information prior to the examination or production of the documents.
As the handwritten amendments
/additions were not initialled and portions of the supporting
affidavits are nonsensical or the allegations
therein incongruous,
but no query was raised by the magistrate. They did not also query
the authority of the applicants.
The applicant contends that the
aforegoing is indicative that the magistrates could not have applied
their minds properly in deciding
whether or not to authorize the
subpoenas.
3
The
following jurisdictional requirements for the issue of the subpoena
were not satisfied, rendering
the subpoenas
invalid:
3.1 the written
authorizations by virtue of which Advocates Muller and Lucken applied
for the subpoenas are not the necessary authorizations
c
ontemplated
in section 205 of the Act and therefore the provisions of 205 (1)
were not satisfied.
Lucken requires the written authority
of the Director of Public Prosecutions ie the designated official but
the authority was issued
by the Deputy National Director of Public
Prosecutions.
As Muller is not a director under the
National Prosecuting Authority or in terms of S205A, he is not a
designated official who may
apply for a subpoena without a written
authority. The objective behind the specification of the designated
official is that he
would guard against the potentially abusive S205
process.
The failure to obtain the specified or
prescribed authority undermines the legality of Lucken’s and
Muller’s requests.
3.2 Further the authorisations are
invalid as they are dated 14 April 2005, and have no connection with
the current investigation
into the applicant, which had not commenced
at the time.
3.3 Section 205 (1) requires an
authority for the specific application; and blanket authorizations do
not suffice.
4 The applicant submits that if
however the court were to rule that a general
authorization will suffice, then the
requirements of section 20(5) read with
the peremptory requirements of section
20(6) of the National Prosecuting
Authority Act 32 of 1988 were not
satisfied viz the authority does not set out
the area of jurisdiction
the offences; and
the court
in respect of which the powers may be
exercised.
[4] In opposing the relief sought, the
1
st
, 2
nd
and 3
rd
respondents make
the following in response to the applicant’s contentions :
A failure to keep copies of the
application or reasons for the decision does not constitute a
procedural irregularity as there
is no requirement in Section 205
which renders it peremptory for the magistrate to retain a copy of
the record, although such
a practice may be recommended.
The deponent has on behalf of the
respondents, confirmed under oath that the record furnished to the
applicant is correct and complete,
and as there is no genuine dispute
as to its correctness, the applicant has not been prejudiced by the
failure to keep records.
The offences upon which the
information was sought were clearly stated in the subpoenas. Further
or a greater degree of particularity
before a potential witness
attends the enquiry would frustrate the objective and purpose of the
section.
It is not mandatory that the applicant
be given notice of an intended examination. No examination of
witnesses was conducted.
Section 205 does not prescribe that
the Fourth Respondent must afford the applicant a hearing prior to
the issuing of the subpoena.
Such forewarning would have jeopardized
and compromised the very purpose of obtaining the documents via the
subpoenas in respect
of serious offences.
A proper case was made out justifying
the issue of the subpoenas. The supporting affidavits contained the
evidence which gave rise
to reasonable suspicion that there was a
close connection between the applicant and the suspected criminal
conduct under investigation.
The bank statements to be furnished in
terms of the subpoenas were crucial to the investigation as they were
important evidence
of the movement of funds.
Any intrusion into the privacy
interests of the applicant is justified by the need for proper police
investigation to crimes and
the bank statements being evidence of the
movement of funds, may assist in the exposure of serious economic
crimes, such as fraud
and money laundering.
The applicant had consequently failed
to make out a case for his complaint of misdirection on the part of
the magistrates or their
failure to apply their minds properly before
arriving at a decision to grant the applications in terms of Section
205.
In terms of Section 22(1) of the
National Prosecuting Authority Act 32 of 1998 (the NPAA) the
authority conferred on the Director
of Public Prosecutions by any
law may be exercised by the National Director of Public
Prosecutions.
In terms of Section 23 of the NPAA,
the Deputy National Director of Public Prosecutions exercises
authority over the Special Commercial
Crime Unit, and is therefore
duly authorised by the National Director of Public Prosecutions to
authorise public prosecutors in
the Special Commercial Crimes Unit to
bring requests and apply for subpoenas contemplated in Section 205.
Section 23 does not contemplate
that the authorisation of the Deputy
National Director by the National Director must be in writing. The
authorisation of Lucken
in terms of s 205(1) of the CPA read with
Section 20(5) of the NPAA under and by virtue of which she applied
for the subpoenas,
was therefore proper and valid.
Muller in his capacity as Deputy
Director of Public Prosecutions and the Coordinator of the
Specialised Commercial Crimes unit was
in terms of S20(4) of the NPAA
conferred with statutory authority to exercise the powers referred to
in Section 20(1) of the NPAA
which are broad enough to include the
power to deal .
There was therefore no validity or
merit in the applicant’s challenge to the authority under which
the prosecutors applied
for the subpoenas.
4 The provisions of Section 205 do not
prescribe that the authority under which the prosecutor applies for
the subpoena has to be
granted specifically for each individual
application, which would create an administrative burden without
serving a meaningful
purpose. There is also no requirement that there
must be an investigation in place when the authority is granted.
5 The respondents deny that the
authority issued to Lucken does not comply with Section 20(5).
[5] The respondents also contend that
if the applicant was prepared to co-operate, there was no need for
him to complain now about
the police obtaining his bank records. The
applicant’s offer of co-operation is also viewed with
scepticism by the head investigating
officer, Major General Booysen,
as at the meetings held with the police, the applicant did not
indicate how he would co-operate
or disclose any pertinent
information that would have assisted in the investigation According
to Booysen, the concern of the applicant
was to terminate the
investigation rather than to assist in the investigation or provide
information, which would clear his nam
Section
205
of the
Criminal Procedure Act
provides
as follows:
205
Judge,
regional court magistrate or magistrate may take evidence as to the
alleged offence
(1)
A
Judge of a High Court, a regional court magistrate or magistrate may,
subject to the provisions of subsection (4) and
section 15
of
Regulation of Interception of Communications and Provision of
Communication-related Information Act, 2002, upon the request
of a
Director of Public Prosecutions or a public prosecutor authorised
hereto in writing by the Director of Public Prosecutions,
require the
attendance before him or her or any other judge, regional court
magistrate or magistrate, for examination by the Director
of Public
Prosecutions or the public prosecutor authorised hereto in writing by
the Director of Public Prosecutions, of any person
who is likely to
give material or relevant information as to any alleged offence,
whether or not it is known by whom the offence
was committed:
Provided that if such person furnishes that information to the
satisfaction of the Director of Public Prosecutions
or public
prosecutor concerned prior to the date on which he or she is required
to appear before a judge, regional court magistrate
or magistrate, he
or she shall be under no further obligation to appear before a judge,
regional court magistrate or magistrate.
[Sub-s (1) substituted by
s 59 of Act 70 of 2002.]
(2)
The
provisions of sections 162 to 165 inclusive, 179 to 181 inclusive,
187 to 189 inclusive, 191 and 204 shall
mutatis
mutandis
apply
with reference to the proceedings under subsection (1).
(3)
The
examination of any person under subsection (1) may be conducted in
private at any place designated by the judge, regional court
magistrate or magistrate.
(4)
A
person required in terms of subsection (1) to appear before a judge,
a regional court magistrate or magistrate for examination,
and who
refuse or fails to give the information contemplated in subsection
(1), shall not be sentenced to imprisonment as contemplated
in
section 189 unless the judge, regional court magistrate or magistrate
concerned, as the case may be, is also of the opinion
that the
furnishing of such information is necessary for the administration of
justice or the maintenance of law and order.
[S
205 substituted by s 11 of Act 204 of 1993]
The constitutionality of Section
205
[6] It is common cause that Section
205(1) is a valid provision and does not offend against any
constitutional right.
In
Nel v Le Roux N O & Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC) at para 20
the Constitutional Court rejected
the contention that S 205 infringed a number of fundamental
constitutional rights and held that
S 205 was ‘narrowly
tailored as possible to meet the legitimate state interest of
investigating and prosecuting crime’,
and that witnesses have a
duty to testify. This decision was based on the provisions of Section
205 post the 1993 amendment which
introduced the proviso whereby the
hearing and inquiry before a judicial officer falls away when the
documents are produced.
[7] Despite a scrutiny of Section 205,
when the Constitutional Court held that the provisions thereof were
not unconstitutional,
the Court did not find it necessary to
interfere with the procedure envisaged by the section as being
inconsistent with the Constitution
or potentially unconstitutional,
or prescribe any procedural formality to preserve the
constitutionality, although it is apparent
that applications in terms
of Section 205 although demanding ‘the exercise of invasive and
compulsive powers’ are subject
only to the exercise of judicial
discretion by the presiding officers after due consideration of the
facts disclosed in the application.
[8] The impugning of the subpoenas by
the applicant is premised on procedural irregularities which tainted
the application in terms
of which the subpoenas were authorised and
the conduct giving rise to the authorisation.
The failure to keep records
[9] Section 205 does not prescribe the
formality that the 4
th
respondent must retain copies of
the application or record.
[10] The applicant however avers that
the failure of the Fourth Respondent to retain the affidavits and
other relevant information
in the application placed before the
magistrate, is inconsistent with the Constitution as he is consequent
to such failure, deprived
of access to the information.
[11] The applicant avers further that
the respondents seem to acknowledge the validity of his objection and
complaint in this respect,
as the procedure relating to the records
of applications in terms of Section 205 has been revised. He relies
on a Circular 16/2010
issued by the Acting Judicial Head :
Administrative Region 7, the contents of which relate to the keeping
of records and registers
for search warrants and subpoenas in terms
of section 205 ( the circular).
[12] In the circular the acting
Judicial Head, S F van Niekerk, refers to a lack of uniformity of
practice relating to the keeping
of records of search warrants and
subpoenas in terms of Section 205. After pointing out the obligation
on judicial officers to
exercise their discretion judicially in
authorising warrants or subpoenas, Van Niekerk also warns of the
potential for constitutional
challenges which occur after the lapse
of a period of time after the authorisation and will therefore entail
sight of the application
in order for the judicial officer to furnish
reasons and to demonstrate that his discretion was exercised
judicially.
Van Niekerk therefore suggests in the
circular that a register of the details of such applications are
maintained at each office,
and a copy of each application be kept in
a file.
The circular, firstly, confirms that
there is no peremptory requirement relating to the keeping of records
of Section 205 applications
or the recording of reasons therefor.
[13] However, contrary to the
contention of the applicant, the effect of the circular is not an
acknowledgement that the failure
to retain the records constitutes an
infringement of or non compliance with Section 205 or any other
statutory requirement or that
such failure constitutes a drastic
procedural irregularity which vitiates or taints the issuing of the
subpoenas, rendering same
unconstitutional. Nor does the circular
have the effect of a prescriptive directive to ensure compliance with
the requirements
of Section 205.
[14] The circular sets out the
obligations on the magistrate before whom an application in terms of
S205 lies for determination,
and thereafter suggests a formalised
process to be implemented in respect of record keeping, which will
assist the magistrate in
responding to any subsequent query, as ‘it
is not expected of a judicial officer to have a precise recollection
of every
such matter that came before him/her’.
[15] Therefore while it is
acknowledged in the circular that the retention of the record of a
request and the decision by the magistrate
may facilitate the
resolution of any queries raised in connection therewith and
subsequently assist the magistrate to provide reasons
for his
decision, the circular does not impinge on the validity of the
procedure under and in terms of which the subpoenas were
issued nor
does it sustain the applicant’s allegation that the failure to
keep records of the Section 205 applications constitutes
a drastic
procedural irregularity on which this review application is grounded.
The reliance on this circular is, in my view, illconceived.
[16] Although the Fourth Respondent
acknowledges that the maintenance of a register and a file of
applications is good practice,
the mere failure to keep records
cannot detract from the accountability and obligation of the issuing
officers to premise their
decision on a factual basis. Section 205
imposes these obligations on the judicial officers without imposing
the formal requirement
to maintain records. The issuing officers have
confirmed that they applied their minds before authorising the
subpoenas although
they did not retain copies of the applications.
[17] Although the Fourth Respondent
did not keep records of the processes by virtue of which the
subpoenas were issued, the applicant
has been furnished with copies
of the applications and the subpoenas, the correctness and
completeness of which have been confirmed
by the respondents.
[18] The onus lies on the applicant to
show that he is prejudiced in his claim to review the decisions to
issue the subpoenas because
he does not have access to the same and
all the information placed before the magistrates or that the record
furnished to him is
unreliable or susceptible to manipulation by the
respondents. I am unable to find that the applicant has shown such
prejudice because
of the lack of particularity in his objections as
to why the records furnished to him are susceptible to a challenge
based on a
failure to access the correct and complete information
considered by the magistrates.
[19] In the premises the applicant
cannot rely on a dispute of fact, and there is merit in the
submission on behalf of the respondents
that the material averments
of Van Loggerenberg confirming that the record furnished to the
applicant is a true copy, remain unchallenged
and fall to be accepted
as correct in accordance with the legal principle set out in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 635 A-C.
[20] Consequently I do not find any
merit in the contention that the failure by the magistrates to keep
records of Section 205 applications
constitutes an unconstitutional
practice and a fatal procedural irregularity making the issuance of
the subpoenas susceptible to
being reviewed and set aside.
The Failure of the Issuing
Officers to Exercise their Discretion Judicially
[21] The applicant avers that the
information in the applications considered by the magistrates is
inadequate to justify the decision
to authorise the subpoenas.
[22] Section 205 provides that the
subpoenas may only be issued in respect of persons who are ‘likely
to give material or
relevant information as to any alleged offence,
whether or not it is known by whom the offence was committed’.
The provision
clearly envisages that the objective of the subpoenas
is to obtain information in the course of, or to assist in the
investigation
of, the alleged offence and involves the exercise of a
judicial discretion.
[23] The applications for the
subpoenas specify the alleged offences as ‘fraud/corruption’
and the name of the suspect
as ‘Thoshan Panday’. The
supporting affidavits by Soobramoney set out
inter alia
the
circumstances under which the facts and other information pertaining
to the alleged offence have been discovered, nature of
the
investigation being conducted, the relationship between the Goldcoast
Trading CC and the suspect (the applicant), and need
to obtain
further relevant information on monies received, disbursed or
transferred by the applicant in connection with the alleged
offences.
[24] Therefore although the offending
transactions may have been made by the juristic entity, Goldcoast
Trading CC, of which the
applicant is the director, the alleged
involvement of the applicant in related transactions in his personal
capacity, is in my
view, sufficiently established in the affidavit to
justify the authorisation of the subpoenas within the parameters of
Section
205.
[25] In
Nel supra at para [20]
the
court based its finding that the Section 205 proceedings are
‘narrowly tailored as possible’ on,
inter alia
,
the role of the independent judicial officers in the implementation
of the proceedings. The issuing officers have confirmed under
oath
that the applications were properly considered and that they did
apply their minds before authorising the issuance of the
subpoenas
and did not merely ‘rubber stamp’ the applications.
[26] There is no legal basis on which
the court may reject their averments or facts which render such
averments improbable or false,
even though the magistrate Nieuwoudt
could not confirm the presence of manuscript amendments appended to
the affidavit of Soobramoney
and the formalities relating to the
amendments were not complied with. Nieuwoudt nevertheless confirms
that he was satisfied from
the application presented to him that that
the subpoenas lay to be authorised.
[27] The applicant also contends that
the information was obtained from the banks in violation of the
applicant’s rights to
privacy entrenched in terms of section
14(d) of the Constitution, but the magistrates did not take into
account this invasion of
the rights of confidentiality and privacy of
the applicant.
[28] In
R v Parker1966 (2) SA 56
(RA) at 58
although the decision is pre-constitutional, the court
recognised that the interest of an individual to privacy is unequal
when
weighed against the competing interest of justice. It
accordingly held that it would not be a proper exercise of discretion
if
the available facts indicate that the enquiry is to be based on
vague supposition and that the magistrate had a duty ‘to ensure
that the members of the public are not
unduly
harassed by
inquisitions’.(my emphasis). Therefore although key word
‘unduly’ emphasizes the obligation on the
magistrate to
apply his mind to the application and not act as ‘a rubber
stamp’ in authorising an invasive enquiry
into the affairs of
an individual, the court also recognised that such invasion may be
necessary and justified in the interests
of justice, provided that it
is properly grounded.
[29] Even under the current
Constitutional protection of an individual’s rights to privacy
and property, Section 205 remains
an effective means to obtain
disclosure and production of information despite the potential
invasion of the aforesaid rights (see
Nel supra)
as it serves
the ‘legitimate state interest of investigating and prosecuting
crime’.
[30] I am not satisfied that the
applicant’s has furnished compelling or even persuasive grounds
for his allegations that
the application was based on inadequate
facts or ‘vague suppositions’ or that the issuing
magistrates failed to apply
their minds or exercise their discretion
judicially in authorising the subpoenas.
[31] The further allegations that the
Fourth Respondent failed to give the applicant a hearing, or to issue
an order issued that
the applicant be furnished with a copy of the
subpoena, and that the applicant was not given notice of the
application in terms
of Section 205 are not based on any legal
requirements and the applicant has failed to show that the conduct of
the magistrates
complained of, prior to or post the issuance of the
subpoenas, offend against the provisions of the section. Such
procedures, if
implemented, would undermine the very objective of
Section 205: to obtain information in the investigation and
prosecution of serious
crime.
[32] The issue of the legality when
compelling testimony lies to be determined by the presiding officer
at the S 205 examination,
who may also be called upon to balance any
conflict of interest. Although no examination was held in respect of
the impugned subpoenas
as the documents were furnished pursuant to
the execution of the subpoenas, this does not undermine the existence
of an essential
moderating tool to deal with any issue of legality or
conflict of interest on which an examinee may rely as justifying his
refusal
to furnish the information requested. As held in
Nel supra
at paragraph [20] ‘This affords the examinee the widest
possible residual protection’.
Therefore the subpoenas do not lie to
be struck down as unconstitutional because the examination was not
held.
[33] Further the applicant’s
conclusions that the affidavits fell short based on the failure of
the respondents to furnish
him therewith, or that the failure to
afford the applicant any notice of the S205 process is unlawful as it
created the impression
that the applicant is a fraudster do not
sustain the allegations of procedural irregularity or constitute
sound grounds for the
relief sought.
[34] The allegations of the applicant
that he was prepared to co-operate with the police in respect of the
investigation, is denied
by Booysen on the basis that that nothing
constructive or pertinent was offered during meetings with the
applicant and his legal
representatives. The applicant has not
furnished any compelling argument in favour of rejecting Booysen’s
denials. In my
view, his resistance to the documents obtained
pursuant to the execution of the subpoenas remaining with the Third
Respondent undermines
his protestations of cooperation.
The Validity of the
authorisations under and by virtue of which the Section 205
applications were made
[35]
The relevant sections of the
National Prosecuting Authority Act 32 of 1998 (the NPAA) are :
Section 20: Power to institute and
conduct criminal proceedings -
(1)
The power, as contemplated
in section 179(2) and all other relevant
sections of the Constitution, to -
institute and conduct criminal
proceedings on behalf of the State;
carry out necessary functions
incidental to instituting and conducting such criminal proceedings ;
and
discontinue criminal proceedings
vests in the
prosecuting authority
and shall, for all purposes be exercised on behalf the
Republic.
Any
Deputy National Director
shall exercise the powers referred to in subsection (1) subject to
the control and directions to the
National Director
.
………………………
.
Subject to the provisions of this
act, any Deputy Director shall, subject to the control and
directions of the Director concerned,
exercise the powers referred
to in subsection (1) in respect of –
the area of jurisdiction for which
he or she has been appointed; and
such offences and in such courts,
as he or she has been authorised in writing by the National
Director or a person designated
by the by the National Director.
Any
prosecutor
shall be
competent to exercise any of the powers referred to in subsection
(1) to the extent that he or she has been authorised
thereto in
writing by the
National Director,
or by a person designated
by the
National Director.
Section 22 Powers, duties and
functions of National Director -
(1)
The
National Director,
as head of the
prosecuting authority,
shall have authority
over the exercising of all the powers, and the performance of all the
duties and functions conferred or imposed
on or assigned to any
member of the
prosecuting authority
by the
Constitution,
this Act
or any other law.
Section 23 Powers, duties and
functions of Deputy National Director –
Any
Deputy National Director may
exercise
or perform any of the powers, duties and functions of
the
National Director
which he or she has been authorised by
the
National Director
to exercise or perform.
[36] The Deputy National Director may
in terms of Section 20 (2) exercise the power set out in Section 20
(1), which includes the
performing of ‘necessary functions
incidental to instituting and conducting such criminal proceedings’,
subject to
the control and directions of the National Director. There
is no requirement that the directives to the Deputy National Director
have to be in writing. Further there is no limitation in respect of
the jurisdictional area for which the National Director or
Deputy
National Director is appointed, as in the case of a Director under
Section 20 (3).
[37] The issuing of authorities to
prosecutors to bring requests in terms of Section 205, if properly
founded and motivated may
be construed as falling within the ambit of
a necessary function incidental to instituting and conducting
criminal proceedings.
It is apparent from the affidavits of
Soobramoney, that the objective of the Section 205 applications
consequent to which the offending
subpoenas were issued, was to
obtain information pertinent to contemplated criminal proceedings to
be instituted or already being
conducted against the applicant. The
National Deputy Director may therefore, in my view, properly rely on
Section 20 (2) as an
empowering provision.
[38] In consequence of the National
Deputy Director being so empowered, he /she may under Section 20 (5)
empower a prosecutor in
writing to perform such function or exercise
such power as specifically conferred in writing on him/her.
[39] The exercise of this power is
circumscribed in its implementation by the independent judicial
officer who must grant the request
after a due consideration of the
pertinent facts. This prevents arbitrary prosecutorial conduct in
invoking Section 205 within
the hierarchy structured by the NPAA, and
effectively counters the argument that only the designated
prosecuting officials with
‘more than the simple status of
Prosecutor’ may exercise these powers of compulsion via
subpoena because of the drastic
invasive nature of the process.
[40] Further, by virtue of Section 23,
the National Director may authorise the Deputy National Director to
exercise any power or
perform any of the functions of the National
Director. There is no prescriptive requirement that this
authorisation has to be in
writing.
[41] I am therefore satisfied that
Lucken’s authority is not susceptible to attack on its validity
on the grounds that she
was not authorised by a Director but by the
Deputy National Director.
[42] Insofar as Muller’s
authority is concerned, I am satisfied that he was conferred with the
requisite authority to bring
a request under Section 20 (4) (a) from
the date of his appointment on 4 March 2010, on considerations
similar to those set out
supra
in respect of the National
Deputy Director under Section 20 (2). Muller was also authorised by
the Deputy National Director on the
same terms as Lucken on 11
October 2006.
[43] The challenge to Ramaite’s
authority by the applicant that the jurisdictional prerequisite that
the Section 205 powers
can only be invoked by a Director of Public
Prosecutions or a public prosecutor authorised in writing by a
Director of Public Prosecutions
was not met, that there has been a
usurpation of the statutory discretion of the designated official,
and that the Respondents’
reliance on Sections 20(2), 22(1) and
23 is misplaced, cannot in my view be sustained from a reading of the
relevant sections.
I am further satisfied that it is the empowering
legislation and not the appointment (either by the President or the
Minister)
that is relevant in determining whether the Deputy National
Director could validly confer the power to bring applications in
terms
of Section 205.
[44] The applicant has further not
satisfied the onus on him to show that the magistrates who authorised
the issue of the subpoenas
did not consider the legality of the
authority relied upon by the prosecutor bringing the request. He
merely makes the submission
on the basis of his own interpretation of
the relevant legislative provisions but provides no basis why the
court should accept
his contention as probable in the face of the
denial by the magistrates, that they failed to apply their minds to
the request.
[45] The provisions of Section 205 do
not prescribe that the authority under which the prosecutor applies
for the subpoena has to
be granted specifically for each individual
application or that there must be an investigation in place when the
authority is granted.
I am also of the view that there is no merit in
the contention that the authority issued to Lucken does not comply
with Section
20(5), and am in agreement with the submission by the
respondents that the authority issued to her covers applications to
all courts;
that there is no need to prescribe the offences as the
powers in S205 are not circumscribed by particular offences; and that
the
area of Lucken’s jurisdiction is stipulated in her
authority.
[46] Consequently, contrary to the
arguments advanced by the applicant, I am unable to find that the
applicant has furnished cogent
or compelling grounds on which I may
properly find that the process applied in obtaining the approvals
necessary for issue of the
subpoenas and the execution thereof is
inconsistent with the Constitution or that the authorisations relied
on by the respondents
are not the requisite authorisations to invoke
the Section 205 process, and declare the issuance of the subpoenas
invalid. Nor
am I persuaded that the grounds on which the applicant
relies for the relief sought, merits a robust judicial oversight.
Costs:
[47] There is no reason why costs
should not follow the result. I am also satisfied that this is a
matter which warranted the employment
of two counsel, given the
nature of the issues raised by the applicant.
Order
In the premises the following order do
issue : -
The application is dismissed with
costs, such costs to include the costs consequent upon the employment
of two counsel.
________________________
MURUGASEN J
Counsel
for the Applicant: Mr KJ Kemp
Instructed
by: T Giyapersad & Associates
53
Anthony Road
Riverside
DURBAN
NORTH
Counsel
for the Respondent: Mr N Singh
Instructed
by: State Attorney
6
th
Floor
Metropolitan
Life Building
391
Smith Street
DURBAN