S v DeVries and Others (67/2005) [2008] ZAWCHC 8; 2008 (4) SA 441 (C); 2008 (1) SACR 580 (C) (18 February 2008)

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[2008] ZAWCHC 8
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S v DeVries and Others (67/2005) [2008] ZAWCHC 8; 2008 (4) SA 441 (C); 2008 (1) SACR 580 (C) (18 February 2008)

REPORTABLE
Republic
of South Africa
IN THE HIGH
COURT OF SOUTH AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
CASE NO: 67 /
2005
In
the matter between:
THE STATE
versus
SELWYN WINSTON DE VRIES
Accused
number 1
VIRGIL LENNITH DE
VRIES
Accused number 2
JULIAN MICHAEL VAN
HEERDEN
Accused
number 3
VERNON NOEL VICTOR
Accused
number 4
ALEX
ANNA
Accused
number 5
GARY
WILLIAMS
Accused
number 6
LLEWELLYN
SMITH
Accused
number 7
FRANCIS JAMES
NGARINOMA
Accused
number 8
EDWARD
MOAGI
Accused
number 9
DARRYL
PITT
Accused
number 10
ACHMAT
MATHER
Accused
number 11
RULING DELIVERED ON 18 FEBRUARY 2008
BOZALEK, J:
[1] The eleven accused in this matter
are standing trial before this court on 25 charges. These include
contraventions of the Prevention
of Organised Crime Act, 21 of 1998
(“POCA”), various common law offences as well as contraventions
of the
Firearms Control Act, 60 of 2000
. The trial commenced on 15
August 2005 and has run for approximately 137 court days. Shortly
before the trial was ready to re-commence
on 15 October 2007, after a
term’s adjournment, accused eleven gave notice of an application to
declare invalid and of no force
and effect the authorisation issued
by the National Director of Public Prosecutions (the “NDPP”)
dated 10 August 2005 purporting
to authorise charges against him in
terms of
s 2(4)
of POCA. Accused eleven sought, furthermore, an order
declaring the charges brought against him to have been invalidly
instituted
and set aside. Similar applications were then brought on
behalf of the remaining accused.
[2] By this stage of the trial the
State had long completed its case and all of the accused had closed
their case save for accused
eleven. He had earlier closed his case
but had a further opportunity to lead evidence following the State’s
successful application
to re-open its case against him and pursuant
to which it led certain evidence regarding aerial photography of the
accused’s business
premises.
[3] Given the wide scope of accused
eleven’s application and the short notice to the State, together
with intimations from all of
the other accused that they intended to
bring similar applications, all the accused were afforded an
opportunity to file papers setting
out the nature of the applications
and the relief which they sought. To the extent that they might wish
to rely on facts which were
outside of the record they were also
afforded an opportunity to file affidavits in support of the
applications. Similarly the State
was afforded an opportunity to file
opposing affidavits. After an adjournment the applications were
argued over a period of three
days. Mr. Uijs, SC, together with Mr.
Spannenberg, appeared for accused eleven whilst Mr. Webster and Ms.
Booysen appeared on behalf
of the State. The balance of the accused
retained their existing legal counsel.
[4] By the time the
matter was argued accused eleven had widened his challenge to include
the directive issued in terms of s 111 of
the Criminal Procedure Act,
51 of 1977 (“the Code”) in terms of which the prosecution against
the accused had been centralized
in this court. Accused eleven sought
an order setting aside that directive as being
ultra
vires
and invalid. Accused one to ten filed similar applications seeking
the same declarations as accused eleven in respect of the POCA
authorization and the centralization directive and orders that, in
effect, all the counts brought against them “be declared to
have
been invalidly instituted and be set aside”.
[5] During the course of argument
counsel for the accused did not touch on the implications of the
relief sought but, presumably,
if granted this trial would to all
intents and purposes be at an end.
[6] All of the accused filed
affidavits. In the cases of accused one to ten no facts were
contained in such affidavits, merely legal
argument and submissions.
In accused eleven’s case a few factual averments were made, none of
which were relevant to the issues.
[7] The opposing affidavits filed by
the State were, potentially at least, of more assistance in the
determination of the questions
facing the Court. The main opposing
affidavit was furnished by Ms. Booysen, counsel for the State
throughout this trial. She described
the process involved in
obtaining the s 2(4) POCA authorization and the centralization
directive (hereinafter referred to respectively
as “the
authorization” and “the directive”) in which process she played
a central role. Confirmatory affidavits were filed
by other persons
involved in the process of issuing the documents namely the NDPP, Mr.
Vusumzi Pikoli, and a Deputy NDPP, Mr. Jan
Henning SC. Attached as an
annexure to the affidavit was a portion of the transcript of these
proceedings dealing with the handing
up to Court of the two documents
on 15 August 2005.
[8] That transcript revealed that the
matter first came before Court on 1 August 2005 when the State
requested a postponement of two
weeks because it did not yet have
permission from the NDPP to institute a prosecution in terms of POCA
and nor did it have a s 111
centralization directive. On resumption
on 15 August 2005 the prosecutor handed up both the authorization and
the directive. The
transcript records that all of the accused had
enjoyed an opportunity to make submissions to the office of the NDPP
regarding the
proposed centralization of the charges and prosecution
in the Cape Town High Court. The DNDPP apparently refused to
prosecute the
then accused 11, a Mr. Denzil Boyles, with the result
that the State withdrew charges against him. The then accused twelve,
Mr. A
Mather, became accused eleven following the withdrawal of
charges against Mr. Denzil Boyles. No objections were made by counsel
on
behalf of any accused upon these two documents being handed up and
made exhibits of court. This followed an enquiry specifically
directed to them by the Court in this regard.
[9] The POCA authorization reads as
follows:
“
I,
VUSUMZI PATRICK PIKOLI, National Director of Public Prosecutions of
South Africa, do hereby, in terms of section 2(4), read with
sections
1
and
2
of the
Prevention of Organised Crime Act, No 121 of 1998
,
authorize the institution of prosecution in respect of contraventions
of
sections 2(1)(e)
of the
Prevention of Organised Crime Act, No 121
of 1998
, against the above named accused. I also authorize the
institution of prosecution in respect of contraventions of
sections
2(1)(f)
of the
Prevention of Organised Crime Act, No 121 of 1998
,
against accused numbers 1, 2 and 11 as mentioned above.”
[10] The introduction to the
s 111
directive reads as follows:
“
Whereas
I, JAN SAREL MARTINUS HENNING SC, Deputy National Director of Public
Prosecutions, deem it in the interests of the administration
of
justice that the offences of…”
Thereafter follows a listing of the
25 charges preferred against some or all of the accused. The factual
details of the charges are
not given, only a short description and in
each case details of which accused was charged, as for example:
“
Robbery
with aggravating circumstances as intended in
s 1
of the
Criminal
Procedure Act, Act
51 of 1977 (Accused numbers 1, 2, 3, 4, 5, 8, 9
and 11)”.
[11] After the listing of the charges
the certificate continues:
“
allegedly
committed by
1.
Selwyn
Winston de Vries
2.
Virgil
Lennith de Vries
3.
Julian
Michael van Heerden
4.
Vernon
Noel Victor
5.
Alex
Anna
6.
Gary
Williams
7.
Llewellyn
Smith
8.
Francis
James Ngarinoma
9.
Edward
Moagi
10.
Darryl
Pitt, and
11.
Achmat
Mather
at or near
KINKELBOS in the district of PORT ELIZABETH within the area of
jurisdiction of the Director of Public Prosecutions of the
Eastern
Cape Provincial Division of the High Court, and
at or near
ENNERDALE in the district of VEREENIGING within the area of
jurisdiction of the Director of Public Prosecutions of the
Transvaal
Provincial Division of the High Court, and
at or near
LENASIA in the district of SOWETO within the area of jurisdiction of
the Director of Public Prosecutions of the Witwatersrand
Provincial
Division of the High Court,
be tried
within the area of jurisdiction of the Director of Public
Prosecutions of the Cape Provincial Division of the High Court,
I HEREBY
DIRECT that the criminal proceedings against said persons in respect
of the said offences, be commenced in the area of jurisdiction
of the
Director of Public Prosecutions of the Cape Provincial Division of
the High Court of South Africa.”
[12] The full
charge sheet and evidence led at the trial revealed that two of the
counts of robbery (counts 15 and 18) and two counts
of kidnapping
(counts 16 and 17) were alleged to have taken place at Kinkelbos in
the district of Port Elizabeth. A further kidnapping,
count 19, is
alleged to have commenced near Kinkelbos and continued into Gauteng.
Furthermore, the attempted murder charge, count
20, as well as
related contraventions of the
Firearms Control Act (counts
21 and 22)
are alleged to have taken place
inter
alia
in the district of Vereeniging. Counts 23 to 25, being contraventions
of
s 4
of POCA, and referred to as “the money laundering counts”,
were alleged to have taken place at or near Lenasia in the district
of Soweto.
[13] The POCA charges comprised counts
1, 2 and 23 to 25. Counts 1 and 2 were respectively contraventions of
ss 2(1)(f)
and
2
(1)(e) of POCA, namely, managing an enterprise
conducted through a pattern of racketeering activities and conducting
an enterprise
through a pattern of racketeering activities.
[14] All of the
accused were charged with conducting such an enterprise whilst
accused one, two and eleven were charged with managing
the
enterprise. Counts 1 and 2 alleged
inter
alia
that the “pattern of racketeering activity” relied on by the
State was as set out in annexure “A”. Annexure “A” sets
out
the criminal acts alleged in counts 3 to 25 i.e. all the counts save
the two main POCA charges of managing or conducting an enterprise
through a pattern of racketeering activities. The money laundering
charges, counts 23 to 25, were raised against only accused numbers
one, two and eleven.
[15] Counsel for
the accused were far from clear as to the nature of the application
they were making and pursuant to which they sought
the relief
referred to above. Their approaches varied and were inconsistent. At
one stage it was contended that the court was dealing
with the
determination of a special plea raised in terms of
s 106(1)(f)
of the
Code to the effect that the court had no jurisdiction to try the
offences. Mr. Banderker, on behalf of accused number two,
argued the
matter as if this Court was engaged in a civil review of
administrative acts performed by the NDPP and the DNDPP in issuing
the authorization and directive. Reliance was also placed on the
provisions of s 173 of the Constitution as empowering the court,
through its inherent power to protect and regulate its own process,
to deal with the application on a
sui
generis
basis. Finally, it was also contended that the court was, as far as
accused eleven was concerned, seized with an application for
discharge at the end of the State’s case in terms of
s 174
of the
Criminal Procedure Act notwithstanding that
this stage of the
proceedings had long passed.
[16] In effect all of the applicants
are asking this Court to consider not the merits of the evidence
adduced by the State and the
accused, but to rule on technical
points. Should the challenges prove successful the Court is being
asked to disregard all of the
evidence that has been led since the
inception of the trial on those counts in respect of which the relief
is sought. In this sense
the court is being asked to review the
regularity of its own proceedings. This is a power which this court
does not have and cannot
arrogate to itself. Under the common law the
High Courts have inherent power to review the decisions or
proceedings of quasi-judicial
bodies and it also has review powers in
respect of lower courts, regulated by statute. In addition there is a
general power of review
by the High Court which may be involved where
none of the other procedures are appropriate. None of these powers
are exercised by
the High Court in or through original criminal
proceedings such as the present matter and these review powers do not
extend to any
power to review its own proceedings.
[17] Section 35(3)(o) of the
Constitution, Act 108 of 1996, gives every accused person the right
of appeal to, or review by, a higher
court. The latter right is
embodied, principally, in s 317 of the Code which makes provision for
a special entry of irregularity
or illegality as the basis for an
appeal. It is therefore a form of review although not so called. To
found a special entry the irregularity
must have been of such a
nature as to have breached the accused’s right to a fair trial.
[18] In my view the
only possible remedy available to the accused seeking at this late
stage to challenge the validity of the authorization
and directive
which were handed up, without objection on the first day of trial, is
to seek a special entry of irregularity or illegality
in terms of s
317 of the Code. Such an application, if successful, would then be
determined by a court of appeal which alone has
the power to
determine whether any such alleged irregularity or illegality in the
proceedings is of such a nature that it resulted
in a failure of
justice. See
S
v Alexander and Others
(1)
1965 (2) SA 796
(A) 809 C – D and
S
v Mushimba en Andere
1977 (2) SA 829
(A) 844 H.
[19] Had there been an immediate
challenge to either of the authorization or the directive the State
would then have enjoyed an opportunity
to reconsider them and, in the
event it saw fit, to either tender fresh, amended or expanded
certificates or to tender evidence or
argument relating to their
validity. This court would then have been in a position to have ruled
on the validity of the certificates
before any evidence was heard.
Given, however, the eleventh hour at which the challenges were made,
any ruling on the certificates
would in my view amount to this court
impermissibly reviewing its own proceedings.
[20] It is
significant moreover that the challenges to the certificates appear
to have arisen in the following manner. Some time in
October 2007
Nicholson J and Ntshangase J gave judgment in certain review
proceedings in the Natal Provincial Division in the case
of
Moodley
and Others v The National Director of Public Prosecutions and Others
(Case
number AR 189 / 2007). The matter involved a review brought by the
applicants against the decision of a regional magistrate
refusing an
application by the applicants, accused in a regional court trial, to
declare certain charges brought against them unlawful
and setting
them aside. That application was in turn founded upon an attack on
the authorization of the NDPP in terms of s 2(4) of
POCA sanctioning
certain charges under that Act. It appears that the basis of the
challenge raised by the applicants in that matter
was the fact that
when the charge sheet was first handed to them authorization for the
charges had not been given by the NDPP in
terms of s 2(4). The other
main point raised in the review was that the authorization had not
been granted before the applicants
first appeared in court in
December 2003. In other words the challenge to the certificate
centred around the timing and obtaining
of the authorization. During
argument, however, the court
mero
motu
raised the question of the form and adequacy of the authorization the
terms of which were very similar to those
in
casu
.
It found, ultimately, that the authorization terms were too broad and
lacked the necessary specificity required. The Court ruled,
therefore
that the authorization was invalid and of no force and effect.
Certain of the charges brought against the applicants were
declared
to have been invalidly instituted and set aside. I should add that on
9 November 2007 Nicholson J granted the State leave
to appeal to the
SCA against the whole judgment and the whole order notwithstanding
that the applicants abandoned that part of the
order made by the
court declaring the NDPP’s authorization in terms of s 2(4) of POCA
to be invalid and of no force and effect.
[21] Quite apart from the statement in
accused eleven’s founding affidavit as to how he came to hear of
the decision in Moodley’s
case, the timing of the challenge to the
POCA authorization in the present matter, indicates clearly that it
was a response to discovering
that judgment. It did not arise out of
any longstanding concern that the
s 2(4) authorization may not have been
valid. As far as the attack on the s 111 centralization directive is
concerned, no explanation
is furnished by accused eleven or any other
accused for that matter as to why the challenge was not made when the
certificate was
handed into Court. It would appear that, once a
decision was taken to challenge the POCA authorization, the directive
was also scrutinised
and found wanting.
[22] Assuming the Moodley judgment to
be correct, I consider that it cannot be directly applied to the
present matter for a number
of reasons. In the first place the
challenge to the validity of the authorization in Moodley took place
prior to the commencement
of the trial. It appears that the accused
had not pleaded and no evidence had been led. The judgment in Moodley
was, moreover, given
in review proceedings instituted following the
refusal of a regional court magistrate to declare the decision of the
NDPP invalid.
These distinctions reinforce the conclusion, outlined
above, that, assuming there to be some merit in the attack on the s
2(4) authorization,
that challenge can, at this late stage of the
proceedings, be made only by way of an application for a special
entry to a higher
court and cannot be determined by this court. For
these reasons alone the various applications brought by the accused
must, in my
view, fail.
[23] It may be, however, that I am
incorrect in this conclusion and there may also be other reasons why
this Court should express
its views on the validity of a challenge to
the s 2(4) authorization and the directive. In these circumstances I
propose to do so
although I should not be understood as prejudging
any application in terms of s 317 for a special entry. No application
for any such
entry has yet been made.
[24] The underlying rationale for the
order made in Moodley’s case appears to be that the wideness of the
authorization, given its
failure to specify in the body thereof the
particulars of the charges being authorized under s 2(4) of POCA,
could lead to abuse.
In this regard the court noted that the
authorization could be read as covering any act or omission of the
applicants prior to the
date of the notice and did not even expressly
exclude offences committed after the date of issue. It appears to me,
however, with
respect, that the Court in Moodley placed insufficient
reliance on the role of the charge sheet, that being the document
with which
the authorization must be read. The sequence of events in
the present case, and no doubt in the Moodley case, is that the
handing
up of the authorization precedes the putting of the
indictment to the accused. That indictment would be received by the
accused earlier
and would reflect the particulars of the charges.
Should the charges be incongruent with the terms of the authorisation
either may
be challenged.
[25] Furthermore, at least in the
present case, the terms of the authorisation by no means amount, in
my view, to a “blank cheque”.
Firstly, the authorization
specifies the particular case or prosecution by setting out the names
of the eleven accused in the present
matter and the sequence in which
they are charged. The NDPP then specifies that he is authorizing the
institution of a prosecution
in terms of s 2(1)(e) against all of the
accused. He adds that he authorizes a prosecution in respect of s
2(1)(f) of POCA against
three of the accused and names them by
reference to their number as accused. It will be noted, furthermore,
that the citation and
numbering of the accused in the authorization
coincides exactly with the particulars and numbering of the accused
as they are cited
in the indictment. The indictment reflects that,
just as the authorisation reads, accused numbers one, two and eleven
are charged
with contravening s 2(1)(f) of POCA and accused numbers
one to eleven are charged with contravening s 2(1)(e) thereof. The
inescapable
conclusion is that the NDPP, in deciding whether to grant
the authorization under s 2(4) of POCA, considered the matter in
relation,
at the least, to the indictment or a draft indictment
prepared by the State and the authorization is constrained thereby.
This procedure
and conclusion renders the authorization’s analogy
to a “blank cheque” somewhat exaggerated.
[26] If there were any doubt regarding
this procedure, the State’s opposing affidavits not only confirms
its outlines but makes
it clear that the request for authorization
for a POCA prosecution was an even more rigorous process. The request
was forwarded to
the NDPP under cover of a letter summarising the
form and content of the charge sheet, setting out a detailed
background to the charges
and summarising the evidence.
[27] The NDPP
himself confirms by way of his confirmatory affidavit that it was
this information to which he applied his mind prior
to granting the
authorization in terms of s 2(4) of POCA. Because they have no direct
knowledge of the process and because they did
not challenge the issue
of the authority timeously, the accused in this matter are unable to
gainsay that this was the procedure
followed by the State and the
NDPP. Counsel for some of the accused then argued that if the NDPP
had, by his own account, not read
the entire docket he could not have
taken a valid or informed decision on whether to authorise changes
under POCA. In my view to
require the NDPP to read the contents of an
entire docket before making a decision whether to authorize charges
under POCA is both
unnecessary and impractical. In the present case
and no doubt, in many other similar cases, reading the entire docket
would have
been a hugely time-consuming exercise. It has been held,
albeit in a different context, that in considering the adequacy of
the material
available to an executive decision-maker in arriving at
his/her decision, the Court has to adopt a realistic and pragmatic
approach.
In
Robinson
v Minister of Justice and Constitutional Development
2006 (6) SA 214
Davis J, Moosa J concurring, after reviewing the
authorities at some length, stated as follows at p 225 [H] – [J]:
“
A
balance needs to be struck between the interests of the affected
party and the operational requirements of the State which is obliged,
in terms of the Constitution, to play an active role in the
development of the country. The demand that decision-makers act in
the
same fashion as an appellate tribunal would be to place an
excessive burden on the Executive arm of the State. It could
overwhelm
the capacity of the Executive to perform its mandated
functions. In short, a measure of proportionality must be adopted in
the evaluation
of the interests of the affected party and the burdens
placed on the decision-maker to arrive at a reasonable decision.”
[28] In my view these remarks apply
equally to the situation in which the NDPP finds himself in
considering requests for POCA authorizations.
In reading a letter
summarizing the form and content of the charge sheet, setting out a
detailed background to the charges and summarising
the evidence, the
NDPP followed reasonable procedures and methods in arriving at his
decision.
[29] It is with some hesitation that I
rely on the affidavits filed by the State and I only do so on two
assumptions. The first is
that I am incorrect in holding that the
challenge to the authorization cannot, at this stage, be determined
by this court and must,
at best for the applicants, be the subject of
a special entry. The second assumption is that it is not already
clear that the authorization
must be read with the full indictment in
which event there are clear and definite limits to the reach of the
authorization. Be that
as it may, had the challenge been brought
timeously, it appears to me that one of the avenues open to the State
may well have been
to place an affidavit before the court in which
the NDPP described the process whereby he came to issue the
authorization.
[30] In the recent
matter of
NDPP
and Others v Zuma and Others
[2007] SCA 137 (RSA), the SCA was called upon to deal with the
validity of warrants relating to search and seizure. In the majority
judgment, at page 73, Nugent JA stated as follows:
“We
are concerned with warrants that are issued under statutory powers.
It is the statute that must dictate what is required for
a warrant to
be valid and not the warrant that must dictate to the statute.
Whether or not a warrant is defective depends upon whether
or not it
meets the requirements of the statute and that is in turn a matter
for construction of the statute. It would be quite wrong
for the
courts to devise what they consider to be a satisfactory form of
warrant and then to test the validity of a particular warrant
against
that self-devised template.”
[31] In the court
a
quo
it
had been found that the failure to set out the offences under
investigation in the warrant in question meant that the scope of
authority and terms of the warrant were vague. At paragraph 94 Nugent
JA stated:
“
The
learned judge said that the failure to specify what was under
investigation meant that the terms of the warrant were vague. I
do
not think that is correct. Merely because one needs to look outside a
written instrument to establish what it relates to in concrete
terms
does not mean that instrument is vague. As pointed out by Watermeyer
CJ in Rottcher’s Sawmills
1948 (1) SA 983
(A) 990 – 991 (in
relation to a written contract but it applies as much to the warrant)
it is always necessary, in one way or another,
to look outside a
written instrument to translate the “abstraction” that it
expresses to the “concrete thing in a material
world. If the
outside source that must be looked to for its interpretation
establishes with certainty what the instrument means then
the
instrument is not vague at all.”.
[32] In my opinion
the views of the court as expressed above are equally applicable to
the question of the validity of the authorization
in the present
matter. In fact those views apply with even greater force to the
present situation. In the
Zuma
matter
the court was concerned with the validity of a search warrant, the
first intimation of which for the recipient thereof would
be when it
was presented to him/her as authority for an imminent search. The
recipient would therefore not be able, in the ordinary
course of
events, to test the scope of warrant against any other document
available to him/her. Not so in the case of the accused.
Upon being
presented with the NDPP’s authorization they could immediately
compare it to the indictment served upon them or, at
the very least,
could do so prior to pleading to the charges contained in the
indictment. Any such comparison would immediately alert
them to any
possible over-straying of the boundaries of the authorization by the
NDPP or, for that matter, to any vagueness in its
terms.
[33] This brings me to the provisions
of s 2(4) of POCA. That section simply requires that racketeering
charges in terms of s 2(1)
of POCA be authorised in writing by the
NDPP. It does not describe the form which such authorisation should
take. In my view the
authorisation issued by the NDPP in the present
matter complies with s 2(4). It identifies the persons who are to be
charged and
further specifically identifies with which offences in
terms of s 2(1) they are to be charged. It is not the purpose of the
authorisation,
in my view, to detail the nature and extent of the
prosecution; the charge sheet or indictment serves that purpose.
[34] For these reasons I consider
that, irrespective of the timing of the challenge to the
authorization of the NDPP in terms of s
2(4), it has no merit. In my
view this conclusion can be reached without any regard to the
evidentiary material placed before the
court on behalf of the State
relating to the process which the NDPP followed in issuing the
authorization. If regard is had to that
material, however, the matter
is placed beyond any doubt.
[35] Various other criticisms were
raised by the accuseds’ counsel which reflect on the validity of
the POCA authorization but they
concern its timing in relation to the
centralization directive. I propose to deal with those aspects when I
consider the challenge
to the centralization directive.
[36] The terms of
the directive have been set out above. The main complaints against
the directive are set out in paras 39 – 43
of accused eleven’s
founding affidavit. These are that the directive is
ultra
vires
and invalid in that it precedes the POCA authorization by two days.
It is further alleged that the DNDPP failed to apply his mind
when
issuing the directive in that it did not state where the offences
which were to be centralised were committed; further, that
an accused
twelve was to be prosecuted on three counts of contravening s 4 of
POCA whilst only eleven accused were listed in the
directive. In
addition, it was contended, the directive stipulated that accused
number eleven was to be prosecuted on certain charges
whereas a
proper reading of the docket would have shown that no evidence
existed against him on most of these charges and on which,
ultimately, he was not indicted. Accused eleven also complained that
he was indicted for contraventions of s 5 and 6 of POCA, this
being a
reference to the alternative charges on counts 23 to 25, whereas the
centralisation directive did not authorize any such
prosecution.
[37] As far as the
other accused are concerned their main complaint is similarly that
the directive is
ultra
vires
in that it was issued prior to the POCA authorization. A further
point raised in argument by the accused’s counsel, although not
anticipated in their affidavits, is that the DNDPP did not have the
authority to issue the centralisation directive. It was contended
that, on a proper interpretation of the relevant statutory
provisions, namely s 111 of the Code, s 179(1)(a) of the Constitution
and
s 22(3)
of the
National Prosecuting Authority Act, 32 of 1998
,
only the NDPP could have issued the directive or, at best for the
State, the DNDPP but subject to proof that he was authorised in
writing to exercise such power. The argument continues to the effect
that the State, despite an opportunity to do so, had failed
to prove
any such authority with the result that it had failed to prove the
directive’s validity.
[38] Before dealing with these
arguments it is necessary to set out the relevant statutory
prescriptions.
S 111
of the Code, insofar as it is relevant, reads as
follows:
“
Minister
may remove trial to jurisdiction of another attorney-general:
1 (a) The
direction of the National Director of Public Prosecutions,
contemplated in s 179(1)(a) of the Constitution of the Republic
of
South Africa, 1996 shall state the name of the accused, the relevant
offence, the place at which (if known) in the Director in
whose area
of jurisdiction the relevant investigation and criminal proceedings
shall be conducted and commence.
(b) A
copy of the direction shall be served on the accused and the original
shall, save as provided in subsection 3 be handed in at
the court in
which the proceedings are to commence.
(2) The
court in which the proceedings commence shall have jurisdiction to
act with regard to the offence in question as if the offence
had been
committed within the area of jurisdiction of such court.
(3) ….”
It will be noted, firstly, that the
heading of the section is incongruent with its content. Secondly, the
apparent purpose of the
section, is not clearly spelt out namely, to
furnish a court with jurisdiction over offences where, in the
ordinary course, it does
not enjoy such jurisdiction by reason that
they were allegedly committed within the jurisdiction of another
court.
[39]
The
reasons for these anomalies appears to lie in the history of the
section which was amended by s 60 of Act 26 of 1987 and by Act
32 of
1998. In its original form the section provided that only the
Minister could, in appropriate circumstances, order in writing
that
an offence
committed
within the jurisdiction of one attorney-general be tried within the
jurisdiction of another attorney-general. Section 6
of the Criminal
Procedure Amendment Act, 26 of 1987, amended s 111 of the Code whilst
the
National Prosecuting Authority Act, 32 of 19
98, by means of
s 44
,
further amended
s 111
by deleting subsection 1 and substituting
subsections 2, 3 and 4. In the process, it would appear, the drafters
neglected to change
the heading and to retain the equivalent of the
old subsection 1 which made the purpose of the overall section quite
clear.
S 111(1)
formerly read:
“
Waar
die Minister dit in belang van die regspleging ag dat ‘n misdryf
wat in die regsgebied van een prokureur-generaal gepleeg is,
binne
die regsgebied van ‘n ander prokureur-generaal bereg word, kan hy
skriftelik gelas dat strafregtelike verrigtinge ten opsigte
van so ‘n
misdryf in ‘n hof op ‘n plek binne die regsgebied van bedoelde
ander prokureur-generaal ‘n aanvang neem.”
Notwithstanding the poor draftmanship,
using a purposive approach to the interpretation, I consider that the
purpose and intent of
s 111
, as it stands on the statute book today,
is reasonably clear.
[40] S 179 of the Constitution deals
with the prosecuting authority and, insofar as it is relevant, reads
as follows:
“
(1) There
is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament and consisting of
–
a.
a
National Director of Public Prosecutions, who is the head of the
prosecuting authority and is appointed by the President, as head
of
the national executive; and
b.
Directors
of Public Prosecutions and prosecutors as determined by an Act of
Parliament.
(2)
The
prosecuting authority has the power to institute criminal proceedings
on behalf of the state, and to carry out any necessary
functions
incidental to instituting criminal proceedings.”
[41] Subsection 7 provides that “all
other matters concerning the prosecuting authority must be determined
by national legislation”.
That national legislation is the
National
Prosecuting Authority Act, 32 of 1998
, which deals, in
s 22
, with the
powers duties and functions of the National Director. Insofar as it
is relevant, the section reads:
(1) The
National Director, as the 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. …
(3) Where
the National Director or a Deputy National Director authorised
thereto in writing by the National Director deems it in the
interests
of the administration of justice that an offence committed as a whole
or partially within the area of jurisdiction of one
director be
investigated and tried within the area of jurisdiction of another
Director, he or she may, subject to the provisions
of s 111 of the
Criminal Procedure Act, 1977 (Act 51 of 1977), in writing direct that
the investigation and criminal proceedings
in respect of such offence
be conducted and commenced within the area of jurisdiction of such
other Director.”
[42] It is therefore clear that the
power to transfer an investigation and prosecution of offences
committed within the jurisdiction
of one director to that of another
may be authorised by a deputy national director. For the lawful
exercise of such a power he or
she must be authorised in writing by
the NDPP to issue such a directive and furthermore such directive
must comply with the provisions
of ss 111(1)(a) and (b) of Act 51 of
1977.
[43] The directive itself does not
state that the Deputy National Director of Public Prosecutions, Mr.
JSN Henning, SC, was so authorised
in writing. It does not follow,
however, that this authority was lacking. In this regard it must be
noted, furthermore, that the
challenge on this basis was only made in
the heads of argument filed on behalf of the eleventh accused on or
about 23 November, three
days before the commencement of argument in
this application. The point was not raised in the eleventh accused’s
founding affidavit
in which event one would have expected the matter
to have been addressed by the State in their opposing affidavits.
[44] Besides making these points, Mr.
Webster, on behalf of the State, argued that from a procedural point
of view it was not open
to the accused to challenge the validity of
the directive on this basis at this late stage. He contended that the
point had in effect
been lost. I shall revert to this argument after
discussing further criticisms of the directive made on behalf of the
accused.
[45] Notwithstanding various
criticisms, it would appear that, apart from the question of the
DNDPP being authorized in writing, there
was compliance with the
provisions of s 111(1)(a) and (b) of the Code. The directive sets out
the names of the accused, all of the
charges and the areas of
jurisdiction of the various Directors of Public Prosecutions where
the offences were wholly or partially
committed other than that of
the Director in whose jurisdiction the DNDPP directs the criminal
proceedings to be commenced i.e. the
Director of Public Prosecutions
in the Cape Provincial Division of the High Court of South Africa.
Where the directive can be criticized
is that the DNDPP sets out all
of the charges rather than simply specifying those which are alleged
to have been committed outside
the jurisdiction of the local DPP.
Nonetheless, such charges were by definition included in the full
list of charges and no challenge
was made to the directive on this
ground at the time that it was handed in to court. Furthermore, on
the same reasoning which I have
set out in relation to the POCA
authorization, the certificate should not be looked at in isolation
but must be read with the indictment
which the accused were required
to plead to shortly after the directive was handed in to court. That
indictment would moreover have
been handed to the accused sometime
prior to the directive being handed up in order for them to prepare
to plead thereto. The indictment
sets out in greater detail the
substance of each charge and details where each offence is alleged to
have been committed. Accordingly,
by having regard to the indictment
(as well as the summary of substantial facts) the accused would be
apprised of which offences
were allegedly committed outside of this
court’s jurisdiction.
[46] A major complaint by accused
eleven was that the discrepancies between the charges against him as
stipulated in the directive,
contrasted with those actually preferred
against him in the indictment indicated that the DNDPP had failed to
apply his mind to the
subject matter of the directive as it applied
to accused eleven.
[47] There is a
simple explanation for these discrepancies. When the matter was first
called before court on 1 August 2005, to be
adjourned for a period of
two weeks, there were twelve accused before court. The eleventh
accused was a Mr. Denzil Boyles and the
present accused number eleven
was then accused number twelve. On the resumed date, 15 August 2005,
the State withdrew charges against
Mr. Denzil Boyles pursuant to the
DNDPP having declined to prosecute him in relation to the centralized
charges in this Court. In
order to “avoid confusion” the
prosecutor re-numbered the accused with accused number twelve (Mr.
Mather) becoming accused number
eleven. As the prosecutor put it at
the time: “
Any
reference to accused number twelve previously is now referred to as
accused number eleven
”.
[48] On reading the
directive, however, although eleven accused are named in the
directive, twelve are referred to by number when
the charges are
listed together with an indication of against whom such charges are
to be brought. The accused number twelve is not
identified by name
but may be an erroneous reference to accused eleven (Mather), at the
time when he was accused twelve. Ultimately
Mather, as accused
eleven, was charged with and pleaded to counts 1, 2, 4, 10, 15, 18,
23, 24 and 25. Of these counts numbers 1,
2, 15, 18, 23, 24 and 25
were wholly or partially extraterritorial to this court’s
jurisdiction but the latter three counts, charges
of money
laundering, are not listed in the directive as charges to be
centralised
vis
a vis
accused eleven (Mather). Accused eleven now seeks to rely on the
confusion caused by the careless drafting of the s 111 directive
in
contending that only certain of the extraterritorial charges he faced
were properly centralised in this court by the directive.
I shall
deal with this argument when I discuss the provisions of s 110(1)(b)
of the Code but must record the court’s displeasure
that this
important document was handed up apparently without even being
checked by the State’s legal representatives.
[49] Accused
eleven also contends that the failure of the State to lead any
evidence against him on certain of these charges leads
to the
conclusion that the DNDPP could not have read the docket and applied
his mind. I do not consider that this inference follows
inescapably
nor, in my view, for the reasons set out earlier in relation to the
process followed by the NDPP before making his authorization
decision, do I consider it necessary that the DNDPP read the entire
docket
[50]
In
my view, the challenge to the directive on the grounds that the DNDPP
did not have or failed to prove that he had the necessary
authority
in writing to issue the directive may, if timeously raised, have had
some merit. However, given the lateness of the challenge,
it appears
to me that the point has lost whatever weight it once might have had
by virtue of the provisions of s 110(1)(b) of the
Code. It reads as
follows:
“
Accused
brought before court which has no jurisdiction –
(1) Where an
accused does not plead that the court has no jurisdiction and it at
any stage -
(a) after
the accused has pleaded a plea of guilty or of not guilty; or
(b) where
the accused has pleaded any other plea and the court has determined
such plea against the accused,
appears that
the court in question does not have jurisdiction, the court shall for
the purposes of this Act be deemed to have jurisdiction
in respect of
the offence in question.”
In the present
matter all of the accused, could have entered a plea under s
110(1)(b) to the effect that this Court lacked jurisdiction
inter
alia
because of deficiencies in the directive. However, they did not do so
but instead pleaded not guilty. It now appears, some two-and-a-half
years later, that as a result of apparent defects in the directive,
this court might, in the ordinary course not have had jurisdiction
to
deal with certain of the offences in question. This does not assist
the accused since, to the extent that this Court might have
lacked
jurisdiction, they must be deemed, following their plea in terms of s
110(1)(a) to in effect having consented to the jurisdiction
of this
Court. In terms of subsection (1)(b) this Court is deemed to have
jurisdiction over the accused and the relevant offences.
[51] Mr. Uijs’s only answer to this
point, on behalf of accused eleven, was to contend for an obtuse
meaning of the relevant section
and to argue that the accused were in
effect now raising a plea under s 110(1)(b). Neither argument has any
merit.
[52] Inasmuch as there may have been
confusion regarding whether accused eleven was properly described or
referred to in the directive,
the provisions of s 110(1)(b) likewise
provide the answer. Similarly, to the extent that the State may once
have borne a duty to
prove that the DNDPP was authorised in writing
by the NDPP to issue a directive in terms of s 111, but failed to do
so, any such
failure is rendered moot by the provisions of s
110(1)(b) of the Code and the passing of time.
[53] A further objection raised by the
accused generally was that the directive is invalid, at least in
respect of counts 1 and 2
referred to therein, namely, contraventions
of ss 2(1)(f) and 2(1)(e) of POCA, because such charges were only
approved or authorised
by the NDPP in terms of s 2(4) of POCA on 10
August 2005 whilst the directive was issued on 8 August 2005. Since
the aforementioned
charges did not exist in law on 8 August the
centralisation directive could not purport to cover them.
[54] In its opposing affidavits the
State points out the practical reasons why there was an elapse of two
days between the issuance
of the directive and the POCA
authorisation:
“
It
is once the charges have been centralised that the documentation,
including an indictment listing all accused and all charges can
be
considered by the NDPP for purposes of the POCA authorisation. It is
that package of documentation, presenting a centralised picture,
which is considered by the NDPP for purposes of authorising a
prosecution in terms of s 2 of POCA. In this instance both requests
were sent together to the NDPP’s office.
”
In argument Mr. Webster pointed out
that, short of arranging a ceremony when the DNDPP and the NDPP
signed the directive and the
POCA authorisation simultaneously, a
notional problem had to arise. Had the NDPP signed first, it could
well have been argued that
the POCA authorisation was invalid for
want of the directive permitting the prosecution of those charges in
this court when other
courts had territorial jurisdiction over them.
[55] In any event, in my view, the
time at which the validity of the directive must be tested is when it
is handed up to court in
order to validate the proceedings that
follow and similarly with the POCA authorisation. That took place
simultaneously on 15 August
2005. The charges in terms of s 2(1)(e)
and 2(1)(f) of POCA were then shown to be authorised by the NDPP and
thus the assumptions
upon which the DNDPP had in effect based his
directive, had been realised.
[56] For these reasons the
applications by all the accused for the declarations of invalidity
and the setting aside of charges are
refused.
_________________
LJ BOZALEK, J