Broome v Director of Public Prosecutions, Western Cape and Others, Wiggins v W/NMDE Streeklanddros, Cape Town and Others (9413/05, 9963/05) [2007] ZAWCHC 61; 2008 (1) SACR 178 (C) (31 October 2007)

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[2007] ZAWCHC 61
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Broome v Director of Public Prosecutions, Western Cape and Others, Wiggins v W/NMDE Streeklanddros, Cape Town and Others (9413/05, 9963/05) [2007] ZAWCHC 61; 2008 (1) SACR 178 (C) (31 October 2007)

CASE
NO’s:-
9413/05
And
9963/05
In
the matter between
Coram:
Traverso DJP et Le Grange J
RICHARD ERNEST
BROOME
Applicant/Appellant
And
THE DIRECTOR OF PUBLIC
PROSECUTIONS,
WESTERN CAPE
First
Respondent
THE ACTING REGIONAL MAGISTRATE,
CAPE TOWN
Second
Respondent
HENRY OWEN WIGGINS (SENIOR)
Third
Respondent
ANDRIES LUTHERUS MACLACHLAN
Fourth
Respondent
HENRY
OWEN WIGGINS (JUNIOR)
Fifth
Respondent
AND
In
the matter between:
HENRY OWEN
WIGGINS (Senior)
First
Applicant/Appellant
HENRY
OWEN WIGGINS (Junior)
Second
Applicant/Appellant
And
W/NMDE
STREEKLANDDROS, CAPE TOWN
First
Respondent
DIRECTOR OF PUBLIC PROSECUTIONS,
CAPE
TOWN
Second
Respondent
ANDRIES
LUTHERUS MACLACHLAN
Third
Respondent
RICHARD
ERNEST BROOME
Fourth
Respondent
JUDGMENT
DELIVERED: 31 OCTOBER 2007
Le Grange J
:
Introduction:
[1] This case has a long and
convoluted history. I have prepared one judgement covering both
matters as the jurisdictional facts are
the same, namely the refusal
of the Court
a quo
to grant a stay of prosecution. The genesis of the case, in the Court
a quo,
is the
alleged
actions or omissions by the Applicant/Appellant (Broom), in the first
matter, as auditor of the Owen
Wiggins Trust
Group of Companies (“OWT Group”), and the alleged offences which
Wiggins senior and junior Applicants/Appellants
in the second matter
with (Maclachlan), a Respondent in both matters committed as
directors of the OWT Group. The OWT Group consisted
of some 25 legal
entities.
[2] Broome, Wiggins senior and junior
and Maclachlan, (hereinafter referred to as (“The Accused”)
,
were summonsed to appear
before the Regional Court at Cape Town on 23 September 2004. The
charge sheet alleges that the accused during
the period 1986 to 1994
committed the following offences: fraud, contraventions of the
Companies Act 61 of 1973, the Financial Institutions
(Investment of
Funds) Act 39 of 1984, the Participation Bonds Act 55 of 1981 and the
Banks Act 94 of 1990.
The
relevant audits from 1987 to 1994 were carried out by employees of
Valentine Sergeant, the appointed firm of auditors for the
OWT Group.
Broome initially became involved in the audit of the OWT Group as an
audit clerk. In later years he became the partner
in charge of the
Group audit. It is undisputed that the audit was a time consuming and
involved process and that the OWT Group consisted
of numerous legal
entities.
[3] In April 2005,
an application was brought by all the accused for a permanent stay of
the prosecution in the Regional Court before
acting regional
magistrate P.F. Nel. This application was premised on their right to
a fair trial in terms of Section 35(3)(d) of
the Constitution. It
was argued that the unacceptable long delay, in bringing the
prosecution and the loss of audit records originally
seized by the
State from the possession of Valentine Sergeant, impaired the
accuseds’ ability to prepare and mount a proper defence,
to the
charges preferred against them, to such an extent that their
fundamental rights to a fair trial had been infringed, that the
only
remedy was a permanent stay of the prosecution.
[4] In June 2005,
the acting regional magistrate refused the application for a
permanent stay of the prosecution. Pursuant to this
finding, the
acting regional magistrate also refused an application for leave to
appeal against his finding.
[5] That
gave rise to the present applications. These include the review of
the acting regional magistrate’s decision, the petition
for leave
to appeal and the appeal, in the event the petition for leave to
appeal was granted, against the said decision. Broome
abandoned his
review application and only relied on his petition for leave to
appeal and appeal against the finding of the magistrate.
For reasons
of efficacy, it was decided that the review application, the petition
for leave to appeal and appeal be heard simultaneously.
[6] The relief sought by the accused
is the
setting
aside of the order of the magistrate, and an order of permanent stay
of the prosecution against them.
The matter is
opposed by the DPP only. The acting regional magistrate and
Maclachlan, are abiding the decision of this Court.
The Background:
[7] The papers consisting of
affidavits and annexures are voluminous and no good purpose would be
served by an exhaustive analysis
thereof. The factual background of
these matters, which in essence is not in dispute between the
parties, can be summarised as follows:
[8] The OWT Group
consisted of numerous legal entities. On 15 August 1994 the OWT Group
was provisionally placed under curatorship.
Messrs Osburn and
Hickling were appointed curators. On 27 September 1994 the
provisional order was made final.
[9] In August
1994, Major R D Melnick, a member of the SA Police Service and an
appointed official of the Nel Commission of Enquiry,
was authorised
by the chairman of the enquiry to seize all documents and records
pertaining to the terms of reference of the commission
of enquiry
into the affairs of the Masterbond Group; including correspondence
files, records, documents and audit working papers
pertaining to the
OWT Group and associate legal entities as of 1 January 1990.
[10] Major
Melnick, acting in terms of this authority, attended the premises of
Valentine Sergeant in Cape Town and seized all files
relating to the
OWT Group, which included a complete set of all the audit working
papers for the years 1990 to 1994 (
the
audit documents)
.
Prior to the removal of the audit documents from the premises of
Valentine Sergeant, Broome made a request to photocopy it, but
was
not given the opportunity to do so. The audit documents were then
made available to the Nel Commission, which included documents
pertaining to the curators of certain companies in the OWT Group, the
then Office for Serious Economic Offences (“OSEO”), Webber
Wentzel Attorneys and KPMG. The latter parties as well as First
Respondent were then called upon by the State to produce forensic
reports. Since the seizure of these audit documents it has, at all
times, been under the control of the State.
[11] In 1994, OSEO
commenced an investigation into the affairs of the OWT Group. At that
stage the audit documents were in possession
of the curators and the
Nel Commission.
[12] As stated
previously, Broome initially became involved in the audit of the OWT
Group as an audit clerk with Valentine Sergeant
and later acted as
the partner in charge of the group audit. His association with the
OWT Group in an auditing capacity extends
over a period of more than
20 years.
[13] During
December 1995 and March 1996, Broome again requested that he be
placed in possession of copies of the relevant audit documents
seized. Despite these requests the files were not returned to him.
[14] In April
1996, Broome was summonsed to appear at an enquiry in terms of
Section 5 of the Investigation of Serious Economic Offences
Act 117
of 1991, (which has subsequently been repealed) into the affairs of
the OWT
Group. He appeared
in April 1996 at the enquiry and provided co-operation in the
investigation.
[15] It is not in
dispute that during the course of this investigation, OSEO
interviewed and recorded statements from more than 120
witnesses. The
first of these interviews was conducted during February 1995 and the
last during November 1996.
[16] In October
1997 a detailed report, in excess of 100 pages, was finalised by
OSEO. The report disclosed alleged offences and identified
persons,
including the accused to be charged in respect thereof.
[17] In November
1997 the curator, Osburn, indicated the urgency of the matter to the
DPP and requested that a decision be made regarding
a prosecution.
The DPP then mooted the possibility of appointing counsel from the
Bar to conduct the prosecution. Nothing came of
this.
[18] In October
1998, the DPP decided not to prosecute the matter.
[19] In June 1999,
the DPP approached the Director of the Investigating Directorate:
Serious Economic Offences (IDSEO) (which directorate
had replaced
OSEO) to ask for assistance by making one of their staff members
available to conduct the prosecution.
[20] The director
of IDSEO indicated in a written response dated 30 July
1999, that he was unable to assist in this regard
and suggested that
the National Director of Prosecutions be approached to appoint a
member of the Bar to conduct the prosecution.
[21] The DPP in
his report to Parliament for the year 1999, stated that a senior
Advocate on his staff had been assigned to work exclusively
on the
OWT Group investigation and that good progress had been made.
[22] In July 2000,
the DPP reported to the Commercial Crime Unit of the SAPS that a
senior Advocate of his staff had been appointed
to draft the
indictment and prosecute the matter. The DPP also confirmed the
necessity to appoint the firm of auditors Steve Osche
and Partners,
to do the necessary preparation for trial and to give evidence as
they were responsible for the initial forensic audit.
[23] In the DPP’s
report to Parliament for the year 2000, it was reported that the
Wiggins case had enjoyed the exclusive attention
of a deputy-director
of his office, had reached an advanced stage of preparation and that
he expected positive developments in the
coming year.
[24] In the DPP’s
report to Parliament for the year 2001, it was reported that a
decision had been taken to prosecute certain individuals
involved in
the affairs of the Owen Wiggins Group and that a draft indictment had
been drawn up. In 2002 the same report is made
to Parliament.
[25] In March
2004, counsel in private practise, was appointed to conduct the
prosecution.
[26] In September
2004, the accused appeared for the first time after having been
summonsed to appear in Court. The matter was then
postponed by
agreement between the parties and on 15 May 2005, a substantive
application for the permanent stay of prosecution was
launched by the
accused.
The Application
in the Court
a
quo
:
[27] The
substratum of the accused application in the Court a
quo
can be summarised as follows: In October 1997, when the OSEO report
was completed, the investigation in this matter had been finalised.
The completed OSEO report of October 1997 was made available to the
DPP in November 1997. The DPP indicated that its office became
involved in the investigation of the affairs of the OWT Group when
the commercial branch of the South African Police Services (SAPS),
had despatched a docket in November 1994 to his office for a decision
in regard to an alleged contravention of the Banks Act, 94
of 1990.
No further investigation was undertaken between the finalisation of
the OSEO report in October 1997, and the accused being
brought to
Court during September 2004. The matrix of the evidential material
which now forms the basis of the prosecution is substantially,
if not
exactly the same evidential material which was at hand in October
1997.
[28] In November
1997, the DPP was in possession of all the information which was
required in order to make an informed decision regarding
a
prosecution in the matter. The matter was not brought to Court until
September 2004 when the accused were summonsed to appear before
the
Regional Court for the first time. The allegations in the charge
sheet relate to events during 1986 to 1994, a period of almost
9
years. At the time of being summonsed to Court, a period of almost 18
years had elapsed from 1986 to 2004 and since October 1997
to
September 2004, a period of approximately 7 years, no further
investigations had taken place in the matter.
[29] In June 2003
it was necessary for Broome to gain access to the audit files which
had been seized from his firm in August 1994,
and upon which the
other accused substantially relied to prepare a proper defence.
Broome was guided to and inspected documents at
the premises of
Webber Wentzel Attorneys as well as documents in the possession of
the DPP. He inspected the documents and found
that a significant
portion of the audit working papers originally seized from his firm,
had gone missing whilst under control of
the State. Broome then
prepared a detailed schedule for the years 1989 through to 1993 and
itemised the relevant audit records.
When the State had taken
possession of the audit files in August 1994, a full set of audit
papers had been available and all the
listed items had been on file
in respect of each year. It now appears that in respect of the year
1994, which the accused avers
is important to mount a proper defence,
no audit files can be found. In respect of the other years under
consideration, more than
half of the documents in each instance can
no longer be found.
[30] Counsel for
the accused argued that the facts of the matter are such that it is
one of the most exceptional cases where the accused
have suffered
irreparable trial prejudice as a result of the delay in the
prosecution, and the loss of the audit working papers seized
by the
State, warrants a permanent stay of the prosecution.
[31] Counsel for the State opposed
the application and their main submission is that the trial Court
will be the proper forum to ascertain
and determine whether the
accused had a fair trial.
The finding of
the Court
a
quo
:
[32] The
magistrate, in his reasons for refusing the application for a stay of
prosecution stated,
inter
alia,
the following:
“
The
first relevant factor to consider is the reasons given for the delay.
The Respondent
(the
DPP)
has advanced detailed reasons, which are contained in Adv. De Kock’s
affidavit. From the background supplied by Mr De Kock, there
appears
to be no doubt that the delay in bringing the matter to Court from
October 1997 to September 2004, was to a large extent
caused by staff
shortages and other systematic factors. These circumstances
mitigate the duration of the delay to some extent,
but this Court is
nevertheless left in no doubt that the prosecuting authority has been
responsible for an undue and excessive delay.
This is especially so
in
view of the DPP’s decision not to prosecute on 30 October 1998. It
is the duty of the state to make such means and resources
available
as to ensure that a prosecution is commenced in Court within a
reasonable time, and this was not done in the instant matter.
The
discrepancy between the Annual Reports of the DPP and the affidavit
of Mr De Kock (as dealt with quite fully in Mr Broome’s
replying
affidavit) indicates that the delay is not adequately explained.
Seven years is indeed an undue delay.
It
would appear, then, that the constitutional right of the Applicants
to a fair and speedy trial has been infringed. But this does
not end
the matter. The other relevant factors must still be considered.
Despite
the unsatisfactory nature of the Respondent’s reasons for the long
delay, the systemic factors cited are of considerable
importance. The
nature of the case is obviously one involving great demands on the
investigative and prosecutorial resources of the
state. Although it
has been argued that the charges are not especially complex,
complexity arises not only from the nature of the
charges, but also
from the sheer scale of the matter. The scope of the prosecution
(tentatively ’
pencilled
in’
for 100 days in the Regional Court, according to Mr De Kock’s
affidavit) is another factor with renders the delay on the part
of
the state somewhat less dilatory.
Thirdly,
the extent to which the Applicants are actually prejudiced by the
delay on the part of the state, rather than by the mere
fact of being
prosecuted, with the unavoidable consequences flowing from this fact,
has not been established with sufficient clarity.
It is accepted
that the Applicants have suffered a certain degree of stress and
social stigma (the ‘
security’
factors), but their own arguments do not emphasise these aspects very
strongly. The prejudice arising specifically from the delay
is to a
substantial extent argumentative (a term used by Kriegler J in
Sanderson
v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC)
).
Fourthly,
there is a substantial degree of public interest in allowing the
prosecution to run its natural course. A great many complainants
and
aggrieved parties have an interest in seeing their complaints
properly ventilated by a Trial Court. According to Mr De Kock’s
affidavit, many of the investors in the Group were elderly or retired
persons who lost their life savings (par. 21; also par. 5 and
6 of Mr
Osburn’s affidavit).
Fifthly,
a permanent stay of prosecution is not the only remedy available to
the Applicants. Besides the measures mentioned in
Sanderson
at 245 g – h, section 342A has also specifically been inserted into
the Criminal Procedure Act (51 of 1977) to ensure that criminal
trials are expedited. This provision may well play a role at a later
stage of the proceedings. There is also the possibility of
a renewed
application for a permanent stay of the prosecution at a later stage,
should further developments involve still further
delay.”
[33] The Court
a
quo
in conclusion, stated
that although there has been an undue delay occasioned by the failure
of the State to bring the matter to trial
expeditiously, the
prejudice suffered by the accused that can specifically be related to
this delay, is not of such severity that
the interests of justice
require that the State be barred from proceedings with the
prosecution.
[34] In the Application for leave to
appeal the magistrate dismissed the application on essentially two
grounds. Firstly, that only
an order of a Court flowing from a
conviction and sentence is appealable and secondly, that the order he
made is not one of the exceptional
instances in which leave to appeal
may be granted.
In
Casu
:
[35] The Applicants/Appellants in
both matters petitioned the Judge-President for leave to appeal. It
was then directed that the application
for leave to appeal and the
appeal be argued before two judges. See also
Singa
v The State; S v O’Connell
2007 SACR (2) 28 (CC). The Wiggins’
duo,
also relied on Rule 53 of the Uniforms Rules of this Court to review
the decision of the magistrate.
[36] Mr Smith SC, who appeared on
behalf of the Messrs Wiggins and Van Zyl, SC assisted by Mr C
Webster, who appeared on behalf of
Broome, addressed the Court
extensively on the merits of the respective matters. On behalf of the
Applicants it was argued that the
decision by the magistrate is
appealable and that this case is one of the exceptional instances in
which an appeal may lie against
a Court’s interlocutory order. Mr
Smith also argued that the said decision is reviewable.
[37] Mr Slabbert, SC assisted by Mr
Vogel, who appeared for the DPP, contended that the decision of the
magistrate is not appealable
as his order did not follow from a
conviction or sentence and the order is not one of the exceptional
circumstances in which an appeal
may lie against an interlocutory
order of a Court. Furthermore, that his decision should not be set
aside on review as the magistrate
did not commit a gross irregularity
or an error in law in making his order.
Is the order by the Court
a
quo
Appealable?
[38] One of the primary questions in
the present instance is whether the order of the Court
a
quo,
which was made before
conviction, is appealable.
[39] As a general rule, criminal
trials should be continuous with no appeals or interlocutory
approaches to a Court of Appeal before
conviction. History and
experience has taught that in general it is in the interest of
justice that an appeal awaits the completion
of a case as the resort
to a Higher Court during proceedings can result in delay,
fragmentation
of
the process, determination of issues based on an inadequate record
and the expenditure of time and effort on issues which may not
have
arisen, had the process been left to run its ordinary course. In this
regard see
S v Friedman (2)
1996 (1) SACR 196
(W) at 202
e-f
.
[40] I am in agreement with the
dictum
of Marais J, in
S v Rosslee
1994 (2) SACR 441
(C) at 445 f, that an alleged wrong decision made
in the course of a criminal trial and which is capable of correction
by way of
an appeal or review, should be permitted to be challenged
only after the trial has run its course, unless there are compelling
reasons
to allow an Appellant or Applicant
to
do otherwise.
[41] But more importantly section
39(2) of the Constitution which provides,
inter
alia,
that when
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights. In
S
v Western Areas Ltd and Others
2005 (5) SA 214
SCA at 226 i –and 227
a-b,
Howie P held that
,
“...it would accord with the obligation imposed by s 39(2) of the
Constitution to construe the word ‘
decision’
in s 21(1) of the Supreme Court Act to include a judicial
pronouncement in criminal proceedings that is not appealable…but
one
which the interest of justice require should nevertheless be
subject to an appeal before termination of such proceedings.”
Section 39(2) of the Constitution therefore enjoins this Court and
impose an obligation to construe that a judicial pronouncement
in any
criminal proceedings may be subject to an appeal, even before plea,
where the interest of justice so requires. This approach
in my view
is also applicable to criminal appeals from the Magistrate’s Courts
as contemplated in Rule 51 of the Uniform Rules
of this Court.
[42] I consider, for the reasons that
appear from the body of this judgment, that this Court should
entertain the challenge of the
acting regional magistrate’s
decision now, rather than at the end of the criminal trial. I,
however, do not suggest that challenges
to a
‘stay
of prosecution’
should
always be regarded as deserving of this special consideration, but
this particular challenge does seem to fall within the
rare category
of cases which merits such consideration as it will be in the
interest of justice that the order of the Court
a
quo
, should be subject to
an appeal despite the proceedings not being finalised.
[43] It follows that the petition for
leave to appeal in both matters should be granted and I will consider
both matters as an appeal.
The law:
[44] In terms of
the provision of
Section
35(3)(d) of the Constitution of the Republic of South Africa
(“the Constitution”), every accused person has a right to a fair
trial, which includes the right to have their trial begin and
conclude without unreasonable delay.
[45] There can be
no dispute that in South Africa’s criminal justice system, a
recognised norm and a touchstone for a fair trial
of an accused
person is the efficient and speedy conclusion of criminal
proceedings. See
Sanderson
v Attorney General, Eastern Cape
1998(2) SA 38 (CC).
[46] The critical
question as in this instance, is how our Courts determine whether a
particular lapse of time is reasonable or unreasonable
and what the
appropriate remedy is in the particular circumstances. In determining
this question, our Courts have adopted the
‘balancing
test’
’,
as decided in
Barker
v Wingo, Warden
[1972] USSC 144
;
407 US 514
(1972) and followed in
Moeketsi
v Attorney-General, Bophuthatswana, and Another
1996 (1) SACR 675
(B);
Coetzee
and Others v Attorney-General, Kwazulu-Natal, and Others
1997 (1) SACR 546
(D);
Du
Preez v Attorney-General of the Eastern Cape
1997 (2) SACR 357
(E), in which the conduct of both the prosecution
and the accused are weighed and the following considerations
examined: the length
of the delay; the reasons the government assigns
to justify the delay; the accused’s assertion of his right to a
speedy trial;
and the prejudice to the accused.
[47] In
Sanderson
supra,
the provisions of section 25(3)(a) of the interim Constitution, which
is similar to section 35(3)(d) of the final Constitution, were
considered by the Constitutional Court. Kriegler, J at
54
E
-55
B held that:-
“
The
test for establishing whether the time allowed to lapse was
reasonable should not be unduly stratified or preordained. In some
jurisdictions prejudice is presumed – sometimes irrebuttably –
after the lapse of loosely specified time periods. I do not believe
it would be helpful for our courts to impose such semi-formal time
constraints on the prosecuting authority. That would be a law-making
function which it would be inappropriate for a court to exercise.
The courts will apply their experience of how the lapse of time
generally affects the liberty, security and trial-related interests
that concern us. Of the three forms of prejudice, the trial-related
variety is possibly hardest to establish, and here as in the case of
other forms of prejudice, trial courts will have to draw sensible
inferences from the evidence. By and large, it seems a fair although
tentative generalisation that the lapse of time heightens the
various
kinds of prejudice that section 25(3)(a) seeks to diminish.”
[48] The task of
deciding whether a right to a fair trial has been limited by
unreasonable delay, rests with the Court. The Appellants
or the
accused must satisfy the court of the facts upon which they rely for
their contention that their right to a fair trial has
been infringed.
The merits:
[49] The nub of
the accuseds’ case is the ‘unreasonable and inexcusable’ long
delay in the prosecution of this matter and the
irreparable
trial-related prejudice it will suffer as a result of the loss of a
substantial part of the audit working papers seized
by the State from
the audit firm of Broome.
[50] The appeal of
Broome is based upon trial prejudice underpinned by the substantial
loss of the audit working papers by the State.
The appeal by Wiggins
senior and junior is also based upon trial prejudice underpinned by
the loss of the audit documents, which
forms an integral part of
their defence. They also rely on the loss of potential witnesses for
their defence, the diminishing state
of their memories due to the
unusually long delay caused by the State as the charges relating to
the OWT business affairs preferred
against the accused span over a
period of almost 18 years. Reliance have also been placed on their
individual personal circumstances
in particular, Wiggins senior who
had reached the age of 76 during 2004 and this coupled with his
diminished memory, would severely
prejudice his trial preparation.
[51] Mr Slabbert
on behalf of the DPP argued that the Court
a
quo
in
its judgment clearly shows that he applied his mind to the relevant
issues; that merely because the accused consider the decision
to be
wrong, is no reason to set it aside; that it is trite law that the
State
(and
thus the victims)
are also entitled to a fair trial and it would be premature to rule,
at this stage and on these papers, that the accused would not
have a
fair trial and that the relief sought, being a permanent stay of
prosecution, should be dismissed and the matter should go
to trial.
[52] It is perhaps appropriate at
this point to make some brief remarks about the remedy sought by the
accused. The relief sought
by them is both
philosophically
and socio-politically, radical. To bar the prosecution before the
trial begins is far-reaching. It indeed prevents
the prosecution from
presenting society’s complaints against an alleged transgressor of
society’s rules of conduct. That will
seldom be warranted in the
absence of significant prejudice to the accused.
[53] Ordinarily, and particularly
where the prejudice alleged is not trial-related, there is a range of
‘appropriate’ remedies
less radical than barring the prosecution.
These may include a mandamus requiring the prosecution to commence
the case, refusal
to grant the prosecution a remand, or damages after
an acquittal arising out of the prejudice suffered by the accused. A
bar is
likely to be available only in a narrow range of
circumstances, for example, where it is established that the accused
has probably
suffered irreparable trial prejudice as a result of the
delay. See also
Sanderson v
Attorney-General,
supra
at 58
g-h
and
Wild and Another v
Hoffert NO and Others
[1998] ZACC 5
;
1998
(3) SA 695(CC)
at 708 F - G.
[54] I now
consider whether, the proven facts which are largely common cause
between the parties, show that the delay in the pre-conviction
stage
of the trial has in fact caused the accused to suffer irreparable
trial prejudice that warrants an order of stay of prosecution.
[55] I
consider the following factors relevant in determining whether the
delay in this matter amounts to an unreasonable delay:
the amount of
time which has elapsed; the nature of the prejudice suffered by the
accused; whether the accused has been the primary
agent of the delay;
the complexity of the case; the question of systemic delays caused by
a limitation of prosecution resources and
Court congestion. See also
S
v Dzukuda
(supra),
at 1106 H.
[56] The time
lapse between the commencement of the investigation during 1994 and
the filing of the OSEO report after completion of
the investigation
in 20 October 1997 is approximately 3 years. Given the relative
complexity of the investigation, and the numerous
legal entities
involved in the structure of the OWT Group, it has been conceded by
the accused that, although lengthy, a period of
approximately 3 years
for the investigation of a matter of this nature is not entirely
unreasonable.
[57] The time
lapse between completion of the investigation and referral of the
matter to the office of the DPP in November 1997,
and the accused
first appearing in Court in September 2004, is a period of
approximately 7 years. This delay remains by and large
unexplained.
The so-called systemic delays are also negated by the DPP’s various
reports to parliament.
[58] The time
lapse between the OSEO investigation commencing during 1994 and the
accused first appearing in Court in September 2004,
is a period of
approximately 10 years.
[59] It was
submitted by counsel for the respective accused that the period of
approximately 7 years between completion of the investigation
and
referral of the matter to the DDP in November 1997, and the bringing
of the prosecution in 23 September 2004, is inordinately
long.
[60] The DPP
relies on systemic factors to explain or justify the delay in
bringing the matter to Court. These include alleged staff
shortages
and an alleged unmanageable workload within the office of the DPP at
the time.
[61] A closer
scrutiny of the annual reports submitted by the DPP to Parliament
reflects however a different picture. It is evident
that, despite the
alleged continued systemic factors and staff shortages since 1998, by
1999 a Deputy-DPP had been assigned to work
exclusively on the matter
in question and according to the annual report of 1999, good progress
had been made during that year. By
2000 the matter continued to enjoy
the exclusive attention of a Deputy-DPP and had reached an advanced
stage of preparation. The
failure to appoint a member from the Bar
to continue with the prosecution remains also unanswered.
[62] In the DPP’s
report to Parliament for 2001, it was stated that a draft indictment
had been drawn up and that a decision had
been taken to prosecute
certain persons.
[63] Despite the
undivided attention of a Deputy-DPP to the case for a period of at
least 3 years, the matter was still not brought
to Court until
23 September 2004.
[64] The Court
a
quo
referred to the annual reports of the DPP to Parliament and the
affidavit filed by the DPP in this matter, and found that the
discrepancies
between the two indicates that the delay in this case,
is not adequately explained.
[65] I am in
agreement with the finding of the magistrate in this regard.
Moreover, I am in agreement with the contention of counsel
for the
respective accused that this delay is both inexplicable and
inexcusable. The Court
a
quo,
according to me, was
correct in making the finding that the prosecuting authority had been
responsible for an undue and excessive
delay and that the fundamental
rights of the accused to a speedy trial had been infringed. The
Court
a quo
however, in my view, misdirected itself in coming to the conclusion
that the delay in bringing the matter to Court from October 1997
to
September 2004, was to a large extent caused by staff shortages and
other systemic factors in the office of the DPP and that these
factors to some extent, mitigate the duration of the delay. The
discrepancies in the two reports of the DPP, clearly demonstrates
that the delay cannot reasonably and adequately be explained by them.
There are little, if any, reasonable or substantial factors
that
mitigate the undue delay from October 1997 to September 2004 in
bringing this matter to Court.
[66] The accused
also relies on the irreparable trial-related prejudice they will
suffer as a result of the loss of a substantial
part of the audit
working papers seized by the State from the audit firm of Broome.
Broome in particular avers that as a result
of the loss of a
substantial part of the audit working papers seized from his firm by
the State, his ability to prepare a defence
to the charges brought
against him is impaired to such an extent that his chances of a fair
trial no longer exist. The charges against
Broome and the other
accused are mainly based upon the manner in which the annual audits
of the OWT Group were done and the information
contained in the
financial statements which resulted from those audits.
[67] According to
Broome, the audit working papers became most significant in assessing
what had been detected by the audit clerk
and the steps taken in
regard thereto. In addition, the audit working papers were reviewed
by an audit manager who was in a position
to express an opinion
thereon and when an auditor’s conduct is under scrutiny, it is
essential to have regard to the audit working
papers in order to
understand whether or not the auditor has carried out his work
proficiently and correctly.
[68] Osburn, who
also filed an affidavit in opposing the relief sought by the accused,
states that the charges are founded upon records
of the OWT Group
which are in his possession and under his control as curator. He
records in his statement that these records will
consist of the usual
internal records relating
to the running of a company and will
include items such as ledgers for each company, debenture lists,
participation bond lists, files
for each debtor, files for each
participation bond holder, files for each participant in the
debenture scheme, chequebooks, deposit
books, cashbooks and personnel
files.
[69] Mr van Zyl,
argued that the internal records might well, as Osburn suggests,
constitute the basis upon which allegations have
been formulated in
the charge sheet. However, the internal records contain no record of
what took place during the audit process,
and do not record how the
audit team performed its functions as auditors to the OWT Group.
Hence, it is the audit files which are
the memorial to the
performance of the audit team and are the documents which reflect the
manner in which the audit process was carried
out.
[70] Mr Slabbert
contended that the prejudice that the accused may suffer as a result
of the loss of the audit documents can only
be properly assessed by
the trial Court, and that it will be in the interest of justice that
the matter be referred to the trial
Court.
[71] I cannot
agree with the proposition of Mr Slabbert. It is common cause that
the audit working papers have passed between various
entities and the
majority of the audit working papers have been lost or dissipated as
a result of the passage of time. It is further
common cause that
these documents were under the control of the State and State
authorised entities when it got lost. Moreover, in
respect of the
year 1994, the audit working papers in their entirety have been lost.
Having regard to the formulation of the charges
against the accused,
it is clear that these documents are fundamental to the case the
accused have to answer.
[72] Broome
in his statement, records
inter
alia
that
he and other witnesses who might be called in his defence, are unable
to refresh their memories from a set of working papers
that does not
present a full and coherent picture of the audit process; the actual
audit work was in most instances also not carried
out by himself but
by an audit team; it thus becomes necessary to reconstruct what took
place during the audit process to explain
what was found; what was
reported and what steps were taken pursuant to such finding or
report; over the relevant years the audit
team would have consisted
of almost 15 individuals and in many instances these persons have
either left the country or can no longer
be traced.
[73] The
importance of the audit documents for the accused to mount a proper
defence cannot be ignored. It is clear from a defence
point of view
that it is necessary to have regard to what was found and what took
place during the audit process in order to justify
the conduct of the
auditors. It seems that it will also be necessary to investigate the
audit working papers and examine the record
of what was found when
the audit was conducted and on which the annual financial statements
would have been based. In the absence
of the audit working papers,
or a full record of audit working papers, this cannot be done.
[74] Broome has
also furnished the DPP with a detailed exposition of what material
was at hand and what was missing. He had also
provided a full
explanation of the significance of the audit working papers from his
perspective, in answering to the allegations
in the charge sheet.
Moreover, he wanted to make photo-copies of these documents when it
was initially seized by the State, but
was denied the opportunity to
do so.
[75] The loss of a
significant portion of these documents, in particular the loss of the
entire audit files for the year of 1994,
in my view, will have a
critical prejudicial effect on the accused to mount a proper defence.
It is glaringly obvious that the audit
documents seized by the State,
from Broome’s audit firm, is important for all the accused to mount
a proper defence and prepare
for trial. If, on the facts, it is shown
that an accused has been deprived of his right to prepare his defence
to criminal charges,
the interest of justice can never require such a
person to stand trial – more particularly if the prosecution is
solely to blame
for this state of affairs.
[76] The Court
a
quo,
in my view, erred in finding that the loss of witnesses, fading
memories, and the loss of physical evidence are factors which affect
the prosecution more adversely than they affect the defence. This, in
my view, is an irrelevant consideration. The accused has a
right to
a fair trial, which includes the right to have their trial begin and
concluded without unreasonable delay and to adduce
and challenge
evidence. See section 35(3)(d) and 35(3)(i) of the Constitution.
[77] The
finding that if documents have been lost, such loss can only accrue
to the advantage of the defence and not the State, is
without merit.
In reaching such a conclusion, the Court
a
quo
materially misdirected itself in considering the role of working
papers in the audit process and their significance in mounting a
proper defence.
[78] It is
evident, from the facts that it is only with access to the audit
working papers that the accused would be able to discern
what in fact
was found during the audit process and what steps were taken in
regard thereto. The accused cannot reasonably be expected
to rely on
memory after all this time, particularly given the complexity of the
audit over a number of years and the number of different
persons
involved in the process as part of the various audit teams. The
audit working papers can only constitute the essential material
for
the accused to use in rebuttal of the allegations against them. I
must agree with the submission of Mr Van Zyl, that had the
working
audit papers been preserved in the form in which Broome had made them
available to the State, the accused would have been
in a more
favourable position, notwithstanding faded memories, to respond
sensibly and perhaps adequately to the allegations in
the
charge-sheet.
[79] The undue
delay of almost 7 years, since 1997 to 2004 in bringing this case to
Court and the consequential loss of the audit
documents by the State,
is in my view sufficient to find that the accused will suffer
irreparable trial prejudice in preparing a
proper defence in this
case.
[80] The relief sought by the accused
is however exceptional, drastic and radical. Our Courts have
consistently and constantly sought
not to bar the prosecution before
the trial begins. It indeed prevents the prosecution from presenting
society’s complaint against
an alleged transgressor of society’s
rules of conduct. Orders of this nature may also undermine public
confidence in the criminal
justice system and may adversely impact on
the functions of democratic institutions in this Country.
[81] I am acutely aware of the
serious nature of the charges against the accused in this case and
the alleged impact it had on the
ordinary citizen in civil society. A
permanent stay of prosecution will result in alleged perpetrators
that allegedly amassed their
wealth in defrauding ordinary citizens
of millions of rand, to walk free.
[82] The Prosecuting Authority in
dealing with this matter, must have realized the complexity and the
impact of this case on civil
society. The infringements of the
accused fundamental rights, as in this instance, were flagrant and
the delay inexcusable. For approximately
7 years, this case idled in
the office of the DPP with no further investigation taking place. The
loss of the audit documents is
also inexplicable. The charges relate
to periods of up to 18 years ago.
[83] In this instance the prejudice
is real, significant and trial related. The question thus remains if
a permanent stay of prosecution,
in this case, is the only
appropriate remedy. I am convinced on a conspectus of all the facts
and in considering the nature and cause
of the prejudice that the
accused suffered, the circumstances render this case so extraordinary
that a stay of prosecution does present
itself as an obvious and only
remedy.
[84] In the result I will make the
following order.
The appeal succeeds. The order of
the acting regional magistrate dated 25 June 2005, refusing a
permanent stay of prosecution,
of all the accused, is set aside and
substituted with the following:
A permanent stay of prosecution is
granted.
The Director of Public Prosecutions,
Western Cape, cited as First and Second Respondent in the respective
matters to pay the costs
of the Applicants.
______________
Le
Grange, J
I agree. It is so ordered.
_____________
Traverso, DJP