Brief Summary

Criminal Procedure — Prosecutorial appointment — Constitutionality of private prosecution agreement — Accused charged with multiple serious offences, including robbery and assault, challenged the constitutionality of the prosecutor's appointment, arguing it compromised their right to a fair trial — Court held that the agreement between the prosecutor and the National Prosecuting Authority, which involved remuneration by a private entity, raised concerns of potential bias and prejudice, thereby violating the constitutional requirement for impartiality in prosecutions.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings were a review in the High Court arising from an order made by a regional court magistrate during the course of an ongoing criminal trial. The magistrate referred the matter to the High Court for consideration of “further steps to be taken”, including whether the proceedings should be stopped, whether the trial should start afresh without the prosecutor concerned, or whether the magistrate’s finding should be reversed.

The parties were the State (described in the report as the appellant) and Amos Tshotshoza and others (the accused, described as the respondents). The dispute concerned an application by the accused for the removal of the prosecutor, Advocate G F Krause, on the basis that his appointment and/or conduct allegedly violated the accused’s constitutional right to a fair trial.

The procedural history reflected that the criminal trial began on 26 July 2007 and, by 10 December 2008, the matter had been in court on 18 days with a sizeable record. On 8 December 2008, the accused gave notice of an intended application challenging the constitutionality of the prosecutor’s appointment and alleging unfair trial consequences. After the magistrate’s referral, the matter initially came before Botha J on review, during the December recess. Following input sought from the Director of Public Prosecutions (DPP) and with the Judge President’s approval, it was arranged that the matter be argued before a full bench (Hartzenberg J, Khampepe J, and Jordaan J).

The general subject-matter of the underlying criminal case included charges of robbery with aggravating circumstances and related offences arising from an alleged incident at First National Bank Pretoria on 13 February 2005, but the High Court’s focus on review was the legality and fairness implications of the prosecution being conducted by an externally funded prosecutor engaged under an agreement associated with Business Against Crime (BAC) and SABRIC.

2. Material Facts

The High Court proceeded on the basis of agreed facts placed before the magistrate, together with a short affidavit from Adv Krause. The essential undisputed factual foundation was that Adv Krause was a retired regional magistrate and prosecuted in the matter in terms of a written agreement concluded with the National Prosecuting Authority (NPA) in October 2004, pursuant to an initiative associated with Business Against Crime (BAC). It was further common cause that Krause’s remuneration was paid by BAC, and that SABRIC made funds available to BAC for that remuneration.

The agreement recorded that the project aimed to coordinate an investigative and prosecutorial approach to bank and cash-in-transit robberies, identified as related criminally across multiple jurisdictions, and to centralise prosecutions where possible. It authorised Krause, in terms of section 38(1) and (3) read with section 38(4) of the National Prosecuting Authority Act 32 of 1998, to exercise powers under section 20(1) in respect of the crimes described in the preamble and other matters assigned, to give guidance to investigators, to liaise with various role players (including the police, BAC, SABRIC, and prosecutorial leadership), and to report to the DPP’s office. The agreement stated expressly that the service would be rendered at no cost to the State, subject to the authority of the relevant DPP and subject to control and direction by senior NPA officials.

Additional agreed facts raised by the defence related to Krause’s involvement in other proceedings connected to certain accused, including that accused 2 and accused 3 appeared in other bank-related matters where Krause also prosecuted under the same agreement, and that in relation to accused 3’s arrest in June 2006 and related bail proceedings in Kroonstad, concerns were raised about Krause’s appointment, after which he withdrew from the bail proceedings because he did not have the appointment document with him. It was also agreed that Krause attended court during subsequent proceedings in Villiers and Pretoria North involving accused 3, and that his assistance there did not accord with the agreement.

Further agreed facts relied upon by the defence included that, in the present trial, a section 204 witness (Henry Waldeck) admitted in cross-examination that one of his affidavits was settled by Krause, and that discovery supporting the State’s case against accused 6 occurred late, including a Telkom statement obtained in August 2007 but discovered only in December 2008, as well as other statements obtained in late November 2008 and then discovered. It was also common cause that SABRIC represented the complainant in the matter, that Krause was not assisted in the prosecution by any member of the NPA/DPP/Chief Prosecutor Pretoria, and that he had not been briefed by an attorney.

Krause’s affidavit further asserted facts relied upon by the High Court, including that he did not receive remuneration from the NPA or an organ of state; that he had not received remuneration from a specific banking institution; that he did not liaise with or take instructions from any bank regarding how to conduct prosecutions; that he followed NPA prosecutorial guidelines; that decisions to prosecute were made by senior state prosecutors delegated by the DPP; that he consulted on serious decisions with senior state prosecutors and if necessary with the DPP; and that he compiled monthly reports on his prosecuting activities for distribution to DPPs and police heads and submitted them to SABRIC for administrative handling.

3. Legal Issues

The central legal questions concerned the lawfulness and constitutional compatibility of the engagement of an externally funded prosecutor and the consequences for the accused’s fair trial rights. The dispute required determination of whether the arrangement for Krause’s appointment and remuneration gave rise to a reasonable objective perception that he could not act “without fear, favour or prejudice” as required by section 179(4) of the Constitution, and whether any such perception undermined the accused’s right to a fair trial under section 35 of the Constitution.

The matter also raised a statutory question regarding whether the written agreement with Krause complied with the requirements and scope of section 38 of the National Prosecuting Authority Act 32 of 1998, read with the prosecuting authority’s powers under section 20 and the requirement of written authorisation specifying jurisdiction/offences/courts under section 20(6). In argument before the High Court, the attack expanded to include a contention that the agreement was too wide and not in accordance with what section 38 permits.

A further legal issue, dealt with as a preliminary matter, was whether the regional court magistrate had jurisdiction or competence to entertain the accused’s fair trial complaint within the criminal proceedings, or whether the accused should have been required to bring a separate High Court application (as had occurred in an earlier matter relied upon by the defence). This issue involved the application of section 38 of the Constitution (standing to approach a competent court for relief when rights are infringed) in the context of criminal proceedings.

In addition to the legal evaluation of the funding arrangement, the court had to consider issues that were primarily application of law to fact and evaluative judgment, namely whether Krause’s conduct (settling a section 204 witness affidavit, involvement in other proceedings, and late discovery) supported the claim of bias or impropriety sufficient to justify his removal.

4. Court’s Reasoning

The High Court first addressed the procedural objections. On the State’s contention that the magistrate should not have dealt with the fair trial complaint and should have postponed for a High Court review application (with notice to the NPA and BAC), the court treated this as effectively suggesting the magistrate lacked jurisdiction to consider the accused’s constitutional fair trial complaint. Relying on the approach in Van Rooyen en Andere v Departement van Korrektiewe Dienste en ’n Ander: In re S v Du Toit en Andere, 2005 (1) SACR 77 (T), the court held that it would be impractical to require that every alleged infringement of constitutional rights in criminal proceedings be pursued only through separate motion proceedings in the High Court. It reasoned that many such complaints arise in criminal trials and can and should often be dealt with by the presiding officer. Given the prolonged duration of the trial and the accused’s detention, the magistrate was justified in addressing the issue expeditiously and referring it for review to obtain certainty.

On the question of additional evidence, the court considered the State’s submission of a supplementary affidavit by Krause (not before the magistrate) and the accused’s request that it be disregarded or that they be allowed to respond. While the court accepted in principle that further evidence might be admissible in constitutional-rights disputes, it concluded that it was unnecessary to admit the supplementary affidavit for purposes of deciding the case. The matter, in the court’s view, could be determined on the facts already before the magistrate. The supplementary affidavit was therefore not admitted, and the court did not deal with a later affidavit filed by an accused.

Turning to the merits, the court placed the dispute within the constitutional and statutory framework governing prosecutions. It emphasised that section 179 of the Constitution establishes a single national prosecuting authority and requires national legislation to ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. The National Prosecuting Authority Act 32 of 1998 was identified as the legislation giving effect to this constitutional scheme, including the vesting of prosecutorial powers in section 20 and the mechanism in section 38 for engaging persons with suitable qualifications to perform services in specific cases, including the conducting of prosecutions under NPA control and direction.

The court noted that the constitutionality of section 38 itself was not attacked and saw no basis in the case for treating section 38 as problematic. It further reasoned that, in principle, the engagement of outside prosecutors is not objectionable and may be necessary for reasons such as capacity and expertise. The court also accepted in principle that outside funding for public prosecutions can be legitimate, but it drew a distinction—illustrated by the unreported Bonugli decision—between acceptable contributions supporting the NPA’s constitutional obligation (without control over specific prosecutions) and unacceptable arrangements amounting to a private prosecution disguised as a public prosecution (where a complainant effectively procures a prosecution the NPA would not pursue and retains control).

Applying these principles, the court framed the main inquiry as whether the financing arrangement in this case could lead a reasonable, right-minded person to perceive a reasonable potential for prejudice by the prosecutor. It held that the present matter differed materially from the arrangement described in Bonugli, where the complainant insisted on reinstituting a prosecution on condition that it would be conducted by outside prosecutors paid by the complainant, creating the effect of a private prosecution in public form. In contrast, the court accepted that the BAC/SABRIC initiative originated from a broader public-facing crime-combatting project, that the prosecutor had no direct relationship with any particular bank, and that there was no direct link between any one bank’s contribution and the prosecution of that bank’s matters. The court further evaluated the nature of the crimes (bank and cash-in-transit robberies and burglaries) as having broader societal impacts beyond a specific bank’s loss, including violence and public confidence implications, and treated the contributions as more akin to voluntary public funding than private control of litigation.

On the statutory compliance question, the court held that the agreement complied with section 38 because it was concluded with appropriate NPA authority and because ministerial approval was not required where the engagement did not result in state financial implications. It found that the agreement properly authorised Krause to exercise section 20(1) powers for specified categories of crime and required reporting and accountability to the DPP. The court rejected the contention that the agreement was impermissibly wide or not in accordance with section 38.

The court then addressed the remaining conduct-based complaints. It held that it was not improper for a prosecutor to consult with witnesses and even to settle an affidavit for a section 204 witness, treating this as part of ordinary prosecutorial and trial preparation practice. Regarding Krause’s involvement in matters in Villiers and Kroonstad, the court emphasised that his commission included coordinating prosecutions of related robberies and burglaries and that the agreement’s preamble contemplated interrelatedness across jurisdictions. Even if, in retrospect, certain involvement did not fall squarely within the commission, the court considered it inappropriate to characterise this as improper or as demonstrating a prejudicial desire to convict beyond what is expected of a prosecutor acting diligently but fairly.

On the delayed discovery complaint, the court noted that the accused had not explained how the late disclosure adversely affected the defence. It also considered that failures in discovery occur frequently in practice and, in the absence of an allegation of intentional concealment aimed at unfair surprise, did not justify an inference that Krause was acting improperly in order to secure a conviction.

Finally, the court identified a material misdirection by the magistrate. The magistrate had found that Krause did not work under the supervision of the DPP and that there was no liaison between them. The High Court held that this finding was contradicted by the agreement’s terms and by Krause’s affidavit describing consultation and reporting lines. In the absence of a basis for an objective finding that the contract was improper or that Krause’s conduct showed prejudice, the magistrate’s finding could not stand.

5. Outcome and Relief

The High Court set aside the magistrate’s finding that the appointment of Adv G F Krause was unlawful and, to the extent that the magistrate had found Krause’s conduct improper, it set that aside as well. The accused’s application to have Krause removed as prosecutor was refused.

The matter was remitted to the magistrate for the finalisation of the trial. The judgment, as reported, did not record any separate costs order in relation to the review.

Cases Cited

Beitlah Evelyn Bonugli and Another v Deputy National Director of Public Prosecutions and Four Others, Case No. 17709/2006 (Transvaal Provincial Division, 1 February 2008) (unreported).

Van Rooyen en Andere v Departement van Korrektiewe Dienste en ’n Ander: In re S v Du Toit en Andere, 2005 (1) SACR 77 (T).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 35, 38, and 179).

Criminal Procedure Act 51 of 1977 (sections 9 and 16).

Electronic Communications and Transactions Act 25 of 2002 (sections 87 and 88).

National Prosecuting Authority Act 32 of 1998 (sections 20 and 38).

Rules of Court Cited

No rules of court were cited in the judgment as reported.

Held

The court held that the regional magistrate was not precluded from dealing with the accused’s fair trial complaint within the criminal proceedings and from referring the matter for High Court review, given the practical realities of criminal litigation and the constitutional framework permitting access to a competent court for rights-based relief.

On the merits, the court held that the agreement engaging Adv Krause as an external prosecutor complied with section 38 of the National Prosecuting Authority Act 32 of 1998, and that the funding arrangement through BAC/SABRIC did not, on the facts, give rise to a reasonable objective perception that Krause could not act without fear, favour or prejudice as required by section 179(4) of the Constitution.

The court further held that the conduct relied upon by the accused—settling a section 204 witness affidavit, involvement in related proceedings, and late discovery—did not demonstrate improper conduct or bias warranting Krause’s removal, and that the magistrate materially misdirected himself in finding that Krause was not subject to supervision and liaison with the DPP.

LEGAL PRINCIPLES

The judgment applied the principle that the constitutional requirement that the prosecuting authority act without fear, favour or prejudice entails that prosecutorial arrangements must not create a reasonable objective perception of a reasonable potential for prejudice, because such a perception may undermine the fairness of a criminal trial.

It affirmed that section 38 of the National Prosecuting Authority Act 32 of 1998 permits the engagement of suitably qualified persons to perform services in specific cases, including conducting prosecutions under the control and direction of the NPA, and that engagements not resulting in state financial implications may be concluded without ministerial consultation as provided by the statute.

It further applied a contextual distinction between acceptable external funding that supports the NPA’s public prosecutorial mandate without conferring control over specific prosecutions, and unacceptable funding arrangements that effectively enable a complainant to pursue a private prosecution in the guise of a public prosecution, thereby creating an unacceptable risk of perceived prosecutorial partiality.

The court also applied the practical principle that alleged infringements of fair trial rights arising during criminal proceedings can, depending on circumstances, be addressed by the trial court and need not invariably be pursued only through separate High Court motion proceedings, particularly where doing so would be impractical and would unduly disrupt ongoing trials.

S v Tshotshoza and Others (18/2009) [2009] ZAGPPHC 172; 2010 (2) SACR 274 (GNP) (17 April 2009)