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[2009] ZAGPJHC 44
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Rudolph and Another v National Director of Public Prosecutions and Another (35697/08) [2009] ZAGPJHC 44 (18 August 2009)
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IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
: 35697/08
DATE
:
18/08/2009
In the matter between
ROOSHDEEN RUDOLPH FIRST APPLICANT
SHAHEED RUDOLPH SECOND APPLICANT
And
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS FIRST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS SECOND RESPONDENT
_________________________________________________________
J U D G M E N T
_________________________________________________________
VAN OOSTEN J
:
[1] This is an application in which the applicants seek the review
and setting aside of two decisions taken by the
Director of
Public Prosecutions (the second respondent in this application) to
institute criminal proceedings against the applicants.
[2] The application is premised in the main on the provisions of s
179(5)(d) of the Constitution and secondary on a lack of compliance
by the DPP of certain of the directions contained in the Policy
Manual of The National Prosecuting Authority of South Africa. A
further challenge to the decisions of the DPP premised on alleged
unfair administrative action pursuant to s 33 of the Constitution,
although raised in the papers, was abandoned at the commencement of
the hearing before me.
[3] The background facts to this matter insofar as they are relevant
for purposes of this judgment, are briefly stated these. The
arrests
and prosecution of the applicants stemmed from a criminal
investigation into what has become known as the Johannesburg
International Airport robbery, which occurred in March 2006.
Altogether 20 suspects were arrested. Two of the suspects were the
applicants who were joined as accused 11 and 12 respectively in the
criminal trial. The first applicant was arrested after handing
himself over at the South African Police Services in Bellville, on 29
April 2006. The second applicant was arrested on 26 April
2006 at
Club Mykonos, in the
Western Cape Province. Subsequent to their
arrest both applicants appeared in the Kempton Park Magistrate’s
Court where they
were granted bail after having spent 90 days in
prison. On 27 July 2006 the DPP withdrew the charges (one of robbery
with aggravating
circumstances and two charges in contravention of
Section 60 of Act 60 of 2000) against the applicants and decided
to proceed against 15 remaining accused in this court on the said
charges.
[4] The reason for the withdrawal of the charges against the
applicants was stated as the only evidence incriminating them
available
was contained in confessions of their co-accused which
would have been inadmissible in evidence against them. During August
2008
the applicants were re-arrested and incarcerated for 21 days
before they were released on bail. Altogether 16 “provisional
charges” were proffered against them of which five relate to
the Johannesburg International Airport robbery.
[5] Against this background the applicants seek the following relief:
That it is declared that the
decisions taken by the Director of Public Prosecutions during or
about
April 2006 to prosecute the applicants were invalid and
set aside.
That it is declared that the
decisions taken by the Director of Public Prosecutions during or
about 2008 to prosecute the applicants
afresh on apparently similar
charges which were implemented by their re-arrest, re-incarceration
and prosecution on the charges
as set out in the annexure to the
charge sheet, a copy whereof is annexed to the first applicant’s
founding affidavit as
annexure “A” is invalid and set
aside.
That the charge sheet is
invalid and is set aside.
That the respondents are
ordered to pay the cost of this application on an attorney and
client scale.
[6] A full set of affidavits has been filed in this application. The
respondents have annexed to the answering affidavit all the
available
affidavits of potential witnesses in the prosecution against the
applicants. This prompted the applicants to apply for
the striking
out of the evidence concerning the merits of the criminal proceedings
against them. The application for striking out
was heard separately
at the commencement of the hearing before me. Counsel for the second
applicant however did not persist with
the application. Having heard
argument on behalf of the first applicant and the respondent I
dismissed the application for striking
out and ordered the first
applicant to pay the costs of that application (for the sake of
clarity the orders are repeated below).
These are my reasons:
[7] The application for striking out was premised on the contention
that the evidence on the merits of the criminal matter was
irrelevant
to the disputes raised by the applicants in this application. Counsel
for the first applicant submitted that the applicants
had restricted
the issues in the founding papers and that the respondents therefore
were not entitled to venture beyond those issues.
The argument is
simply untenable. The merits of the criminal matter in the face of a
constitutional challenge, for obvious reasons,
are not only relevant
to the issues in this matter, but also useful in understanding the
background facts to this matter. I am
in any event not persuaded that
the applicants suffered any prejudice whatsoever resulting from the
evidence forming part of the
papers before me, nor has anything been
put before me to justify any inference of prejudice (see
Beinach v
Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) 732-734).
[8] I turn now to the constitutional challenge premised on
Section
179(5)(d) of the Constitution. The section in summary provides that
the NDPP may “review” a decision to prosecute
or not to
prosecute after consulting the relevant DPP and after taking
representations from the accused, the complainant and any
other
relevant person. The applicants’ complaint is that they were
not afforded the opportunity to make representations prior
to the
second decision was taken in August 2008 to re-prosecute them. This
application was launched in October 2008 and therefore
before the
Supreme Court of Appeal pronounced on a similar constitutional
challenge in
National Director v Public Prosecution v Zuma
2009
(1) SACR 361
(SCA). In the light of this judgment the applicants’
constitutional challenge is short-lived. It is common cause that the
National Director of Public Prosecutions was not involved at all in
either of the decisions to prosecute the applicants. It therefore
was not the NDPP “reviewing a decision to prosecute or not to
prosecute” as contemplated in Section 179 (5) (d) of
the
Constitution. In
Zuma
Harms DP touched on this aspect and held
as follows:
[64]
…Section
179(2) is the empowering provision. It empowers the NPA to institute
criminal proceedings, and to carry out ‘any
necessary functions
incidental to instituting criminal proceedings’. The power to
make prosecutorial decisions and to review
them flows from.
59
If it were necessary specially to empower any member of the NPA to
make such decisions and to revisit them, one would have expected
the
Constitution to have said so. It would be incongruous to require a
special provision to empower the head of the NPA to review
matters
but to assume that other members of the NPA of a lower rank have the
power of review by implication. One would have expected
that at the
lower level there is greater need for these requirements but,
significantly, the drafters of the Constitution, conscious
of the
existing practice, and for good reason, did not think it necessary to
include such safeguards.
Footnote 59 reads as follows:
59
It
will be recalled that prosecutorial decisions and their internal
reconsideration were, except in the limited sense set out earlier,
not subject to procedural limitations or judicial overview. Mr Kemp
accepts that the review of prosecutorial decisions by prosecutors
and
DPPs is not subject to any consultation or representation
requirement.
[9] Assuming at best for the applicants that the first decision was
re-considered, such reconsideration was clearly not subject
to the
provisions of s 179(5)(d) of the Constitution, and the applicants
therefore were not entitled to be afforded an opportunity
to make
representations. The constitutional challenge therefore must fail.
[10] Next, the applicants’ secondary challenge premised on an
alleged “flagrant” disregard by the DPP of its
Policy
Manual. The allegations in support of this challenge are terse, vague
and lack any substance. All that the applicants have
stated in their
founding papers, is the following:
We contend that the decision
taken during August 2008 was deliberate as it occurred in defiance
of the NDPP and DPP’s own
Policy Manual in regard to decisions
to reinstitute prosecutions afresh on substantially similar charges.
We contend that the NDPP and
DPP’s Policy Manual makes ample provision for the careful or
circumspect decision to arraign
accused persons afresh before a
court either by means of a summons or notice to appear in court.
We contend that our re-arrest
and re-incarceration occurred in flagrant disregard of the
respondents’ own policy.
It is significantly only in the heads of argument filed by counsel
for the first applicant that particulars of the alleged “flagrant
disregard” are furnished. As correctly submitted by counsel for
the respondents the applicants have failed to make out any
case on
this challenge in their founding papers.
[11] Counsel for the first applicant sought to seek some redress in
the fact that the applicants were not in possession of the
policy
document at the time the application was launched. There is no merit
in the argument. The document is in the public domain
and it was for
the applicants, had they wished to do so, to make out a case on this
challenge which they have clearly failed to
do.
[12] But it does not end there. Having considered the arguments
raised by counsel for the first applicant I am not persuaded that
there is any merit in the challenge. The Policy Manual, it must be
remembered, albeit binding, contains
directives
to the
prosecutorial staff. A mere non-compliance by the DPP with any of its
directives or provisions will not result in an irregularity
of such a
nature as would justify a review of the subsequent prosecution. The
applicants must go further and
inter alia
show that their
rights were infringed by the non-compliance and more importantly that
they suffered prejudice as a result. Nothing
of this nature has
either been alleged or proved in the papers before me. Counsel for
the first applicant readily and in my view
correctly conceded that no
prejudice of any kind has been shown to exist. It follows that this
challenge must suffer the same fate
than the main constitutional
challenge.
[13] Counsel for the second applicant, somewhat surprisingly
disavowed any reliance on the two challenges. He sought to direct
the
second applicants’ objection to his re-arrest which counsel
submitted was unlawful. The re-arrest counsel argued was
unlawful as
there were other softer non-custodial options, such as a summons to
appear in court or a warning of that nature, available
to bring the
applicants before court. The objection is ill-conceived and much of
an afterthought. The application is certainly
not premised on an
unlawful arrest, but even if it had been, no case for unlawful arrest
has been made out.
[14] Finally, something needs to be said concerning the evidence on
the merits that has been disclosed by the respondents. Counsel
for
the first applicant submitted that the affidavits lack
prima facie
evidence to justify the re-institution of criminal proceedings
against the applicants. The argument is flawed in its premise. This
is neither the opportune moment nor the appropriate forum to raise
this aspect and this moreover in any event is not the basis
upon
which this application was launched.
[15] In my view the application was misconceived right from the
outset. The basis for seeking an invalidation of the first decision
to prosecute the applicants (prayer 1 of the Notice of Motion) has
neither been alleged, nor been touched upon in argument before
me.
The first decision in any event in view of the withdrawal I have
referred to, if anything, is nothing more but of academic
interest.
Prayers 2 and 3 for another reason to which I have not yet referred
to cannot succeed as all the charges in the charge
sheet do not
relate to the Johannesburg International robbery incident - charges 6
to 16 relate to a different incident and the
prosecution on those
charges has not been challenged and will no doubt proceed.
[16] In the result I make the following order:
The application for striking out is dismissed.
The first applicant is ordered to pay the cost of the application
for striking out.
The main application is dismissed.
The first and second applicants jointly and severally, the one
paying the other to be absolved, are ordered to pay the cost of
this
application.
------------00O00---------------------
COUNSEL FOR FIRST APPLICANT ADV J BAUER
COUNSEL FOR SECOND RESPONDENT ADV AB BURGER
COUNSEL FOR RESPONDENTS ADV (MS) K PILLAY