Naidoo and Others v National Director of Public Prosecutions and Others (2377/02) [2003] ZAWCHC 47; [2003] 4 All SA 380 (C) (17 September 2003)

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[2003] ZAWCHC 47
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Naidoo and Others v National Director of Public Prosecutions and Others (2377/02) [2003] ZAWCHC 47; [2003] 4 All SA 380 (C) (17 September 2003)

Reportable
IN THE
HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL DIVISION]
CASE NUMBER: 2377/02
In the matter between:
YOSHEN NAIDOO First Applicant
THANASELVAN KISTA PILLAY Second Applicant
JAYESH VINOED LALLOO Third Applicant
RAVINDREN NAIDOO Fourth Applicant
and
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS First Respondent
THE DIRECTOR OF PUBLIC
PROSECUTIONS: CAPE OF GOOD HOPE Second
Respondent
MR A LE GRANGE ` Third Respondent
JUDGMENT DELIVERED 17 SEPTEMBER 2003
Introduction
On 28 February 2002 the
applicants applied for an order –
1.1 Reviewing and setting aside the issuing of a certificate in terms
of section 342A(3)(c) of Act 51 of 1977 by second respondent
dated 20
November 2000;
AND
that the prosecution in Case No RC (2) 38/2001 in
the Regional Court Bellville be permanently stayed;
Reviewing and
setting aside third respondent’s dismissal of applicants’
application to have the matter struck from the roll
in terms of
section 342A(3)(c) of Act 51 of 1977 in Case No RC (2) 38/2001 in
the Regional Court Bellville;
AND
that the prosecution in Case No RC (2) 38/2001in the Regional Court
Bellville be permanently stayed;
Reviewing and
setting aside third respondent’s dismissal of applicants’
application to have the charges quashed in Case No
RC (2) 38/2001
in the Regional Court Bellville;
AND
that the prosecution in Case No RC (2) 38/2001in the Regional Court
Bellville be permanently stayed;
1.4 that the prosecution in Case No RC (2)
38/2001in the Regional Court Bellville be permanently stayed in the
event of the reviews
not being upheld by this Honourable Court.
At the hearing, the
applicants were represented by Mr CJ Hartenzenberg SC, Mr GP
Scheltema SC and Mr CG van der Walt for the first,
third and fourth
applicants, and Mr CJ Van Schalkwyk for the second applicant. The
second respondent was represented by Mr J Slabbert.
The first and
third respondents were not represented at the hearing of the
application.
The background
The applicants were
arrested during November 1997 and charged (under case number
SHS/15/99) with the armed robbery of seven motor
vehicles. They were
subsequently released on bail.
Disputes on various issues arose
between the State and the defence as a result of which the
prosecution of the matter was delayed.
Some of the reasons for the
delays will be dealt with later in this judgment.
The matter was set down for trial in
the Regional Court, Bellville on 25 January 1999. The matter did not
proceed to trial and further
delays ensued.
On 24 August 2000 Regional Magistrate
Botes struck the matter from the roll in terms of section 342A(3)(c)
of the Criminal Procedure
Act 51 of 1977 (“the Act”).
On 20 November 2000, the second
respondent, acting in terms of section 342A(3)(c) of the Act, ordered
that the prosecution of the
applicants be re-instituted. This was
done under case number RC(2) 38/2001 and the applicants appeared in
the Regional Court, Bellville
on 26 April 2001.
Disputes between the prosecution and
the defence continued to bedevil the progress of the matter. On 12
October 2001, Regional Magistrate
A La Grange (the third respondent)
found that “(the accused) have been sufficiently advised as to the
alleged charges against them”,
and their application to have the
matter struck from the roll once more was refused.
The
case was set down for trial in the Regional Court, Belville on 20-24
May 2002.
On 3 April 2002 the present application
was launched.
The
issues
The issues raised by the applicants
will be dealt with under three heads:
The setting aside
of the certificate in terms of section 342A(3)(c) of the Act issued
by second respondent on 20 November 2000.
The review and
setting aside of the third respondent’s dismissal of the
applicants’ application (i) to have the matter struck
from the
roll in terms of section 342A(3)(c) of the Act, and (ii) to have the
charges quashed.
The permanent stay
of the prosecution.
The setting aside
of the certificate
The applicants seek an order reviewing and setting
aside the certificate dated 20 November 2000 issued by the second
respondent in
terms of section 342A(3)(c) of the Act re-instituting
the prosecution of the applicants. They base their attack on three
submissions:
The reference to
“attorney-general” in section 342A(3)(c) of the Act is a
reference to the National Director of Public Prosecutions
and not to
a Director of Public Prosecutions.
Ms SM Galloway had
no authority to issue the certificate.
The issue of a
certificate in terms of section 342A(3)(c) is not the sort of
day-to-day decision that prosecutors are called upon
to make and
this function was reserved for the National Director.
I shall deal with these submissions
seriatim
.
Section 342A(3)(c) of the Act provides as follows:
If the
court finds that the completion of proceedings is being delayed
unreasonably, the court may issue any such order as it deems
fit in
order to eliminate the delay and any prejudice arising from it or to
prevent further delay or prejudice, including an order
–
(c) where the accused has not yet pleaded to the charge, that the
case be struck off the roll and the prosecution not be resumed
or
instituted
de novo
without the written instruction of the
attorney general.
Section 179(1) of the Constitution of the Republic
of South Africa 108 of 1996 (“the Constitution”) provides for a
“national
prosecuting authority”. Section 179(1)(a) provides that
the national prosecuting authority shall consist of the National
Director
as head of the prosecuting authority and (sub-section
(1)(b)) of the Directors and prosecutors. In terms of section 179(2)
the prosecuting
authority “has the power to institute criminal
proceedings on behalf of the State, and to carry out the necessary
functions incidental
to instituting criminal proceedings.”
The Prosecuting Authority Act 32 of 1998 (“the
Prosecuting Authority Act”) in section 2 thereof establishes a
single national
prosecuting authority under the provisions of section
179 of the Constitution. The structure of the prosecuting authority
consists
of the office of the National Director and the offices of
the prosecuting authority at the High Courts (section 3). The
prosecuting
authority comprises the National Director, Deputy
National Directors, Directors, Deputy Directors and prosecutors
(section 4).
Section 6 of the Prosecuting Authority Act
establishes an office of the prosecuting authority at the seat of
each High Court in the
Republic, headed by either a Director or
Deputy Director. It is common cause that the office of the
prosecuting authority at the
seat of the High Court in Cape Town is
headed by a Director.
In terms of section 20(1) of the Prosecuting
Authority Act, the power, as contemplated by section 179(2) of the
Constitution to,
inter alia,
institute and conduct criminal
proceedings on behalf of the State vests in the prosecuting
authority.
In terms of section 20(3) of the Prosecuting
Authority Act, any Director shall, subject to the control of the
National Director, exercise
the powers referred to in subsection (1)
[which includes the power to institute and conduct criminal
proceedings on behalf of the
State] in respect of (a) the area of
jurisdiction for which he or she has been appointed, and (b) any
offences which have not been
expressly excluded from his or her
jurisdiction, either generally or in a specific case, by the National
Director.
From
this subsection it is clear that the responsibility for the
institution and conduct of criminal proceedings vests in the Director
in respect of offences committed within his or her area of
jurisdiction. This is confirmed by the Policy Directives (paragraphs
A3
and B6) issued by the National Director in accordance with section
179(5)(b) of the Constitution and section 21(1)(b) of the Prosecuting
Authority Act.
Section 45(a) of the Prosecuting Authority Act
provides that any reference in any law to “an attorney-general
shall, unless the
context indicates otherwise, be construed as a
reference to the national director”.
The section clearly envisages that there are
contexts in which “attorney-general” is not to be construed as a
reference to the
National Director. Section 342A(3)(c) of the Act is
such a context. The function described in the section -- the
resumption or institution
of a prosecution -- is a function
previously exercised by an attorney-general which now falls squarely
within the powers of a Director
as set out in the Prosecuting
Authority Act. In my view, Mr Slabbert is correct when he submits
that the authority to act in terms
of section 342A(3)(c) of the Act
is (i) a day to day function of the Director which (ii) does not
require a delegation from the National
Director.
The National Director’s exclusive authority is
set out in section 22 of the Prosecuting Authority Act and in
paragraph A2 of the
Policy Directives. The authority to act in terms
of section 342(3)(c) is not reserved for the National Director, nor
has the authority
to act in terms of that section been expressly
excluded from a Director’s jurisdiction, either generally or in a
specific case,
by the National Director acting under the provisions
of section 20(3) of the Prosecuting Authority Act.
Mr Slabbert, who is a Deputy Director, stated in
argument that he would find it most surprising if the authority to
act in terms of
section 342A(3)(c) were to be reserved for the
National Director, as the National Director would be inundated with
requests to issue
certificates. This is confirmed by Mr FW Kahn SC,
the Director of Public Prosecutions who at the time headed the Cape
Town office
of the prosecuting authority.
The applicants say that Ms Galloway had no
authority to issue a certificate in terms of section 342A(3)(c) (the
section speaks of
a “written instruction”) in that she had not in
terms of section 20(5) of the Prosecuting Authority Act been
authorised in writing
by the National Director to exercise any of the
powers referred to in section 20(1).
In a supplementary affidavit, Mr Kahn says the
following:
“…
and the certificates in terms of Sec 342A(3)(c) of Act
51/1977 are not ordinarily done by me personally, but since the issue
of such
certificates is considered to be of a serious nature they are
issued by a minimum of two senior members, in this case by a Deputy
Director of Public Prosecutions and a Senior State Advocate who are
acting under my direct supervision and control ….”
Mr Kahn is mistaken when
he says that certificates “are issued by a minimum of two senior
members, in this case by a Deputy Director
of Public Prosecutions and
a Senior State Advocate”. It has never been suggested that the
certificate in this case was
issued
by Mr Niehaus, the Deputy
Director who discussed the matter with Ms Galloway. But neither was
the certificate
issued
by Ms Galloway, the Senior
State--Advocate concerned. The certificate emanates from the office
of “Die Direkteur van Openbare Vervolgings,
Kaap die Goeie Hoop”.
At the end of the document, the source of the authority underlying
the certificate is given as –
VAN OPENBARE VERVOLGINGS: KAAP DIE GOEIE HOOP
Ex facie
the
document, the certificate was issued by the Director of Public
Prosecutions of the Cape of Good Hope. It was signed on his behalf
by
Ms Erasmus. It has never been suggested that she issued the
certificate.
It is clear what happened. The matter was
considered by Ms Galloway in consultation with Mr Niehaus. She
decided that it was appropriate
that a certificate be issued in terms
of section 342A(3)(c). In doing so she acted under the direct
supervision and control of the
Director. The certificate was in
effect issued by the Director. In terms of section 20(3) he has the
authority to do so. The Director
was entitled to rely on the
conclusions reached by two senior members of his staff when he issued
the certificate.
It is not without interest, and significance, that
in their Notice of Motion, the applicants ask for an order reviewing
and setting
aside
the certificate issued by the second respondent
.
The applicants further contend that in coming to
the decision that the prosecution is to be re-instated, Ms Galloway
did not apply
her mind to the issues and that the decision to
re-instate the prosecution is for that reason liable to be set aside
on review. Assuming
that a decision to issue a certificate under
section 342A(3)(c) of the Act is reviewable, I am of the view that Ms
Galloway, in consultation
with Mr Niehaus, properly applied her mind
to the issues. The fact that the applicants differ from her
evaluation of the material
in the docket does not render the issue of
the certificate irregular. Indeed, it is only to be expected that
persons charged with
serious crimes may differ from the prosecution
in the evaluation of the situation.
In my view, the
certificate dated 20 November 2000 issued by the second respondent in
terms of section 342A(3)(c) of the Act re-instituting
the prosecution
of the applicants was properly issued.
The review of the
third respondent’s decisions
The general rule in regard to review of the
decision of an inferior court given before a conviction is set out
in the well-known,
and frequently followed, judgment in
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
1959
(3) SA 113
(A) at 119D--120D. At 120A—B the following passage from
Gardiner and Lansdown
(6
th
ed vol 1 750) is quoted
as correctly reflecting the position in relation to unconcluded
criminal proceedings in the magistrates’
courts:
“
While
a superior Court having jurisdiction in review or appeal will be slow
to exercise any power, whether by
mandamus
or
otherwise, upon the unterminated course of criminal proceedings in a
court below, it certainly has the power to do so, and will
do so in
rare cases where grave injustice might otherwise result or where
justice might not by other means be attained. …. In general,
however, it will hesitate to intervene, especially having regard to
the result of such a procedure upon the continuity of the proceedings
in the court below, and to the fact that redress by means of review
or appeal will ordinarily become available.”
In
Wahlhaus and Others v Additional Magistrate,
Johannesburg and Another, supra,
at 120D it is stressed that even
if a preliminary point decided against an accused by a magistrate is
fundamental to the accused's
guilt, a superior court will not
ordinarily interfere, whether by way of appeal or by way of review,
before a conviction has taken
place in the inferior court. Thus in
Ismail and Others v Additional Magistrate, Wynberg
1963 (1) SA
1
(A) a postponement was sought in the magistrate’s court so that a
point of law, which would have been decisive of the validity
of a
proclamation which the accused were charged with contravening, had
been decided in proceedings already pending in the Supreme
Court. The
magistrate refused a postponement. The Appellate Division was not
prepared to interfere on review. In
Lawrence v ARM of Johannesburg
1908 TS 525
an objection was raised on the ground that certain counts
of a criminal charge were laid at a place outside the territorial
jurisdiction
of the magistrate’s court. The magistrate overruled
the objection and an application was made to the Supreme Court for an
order
interdicting the magistrate from proceeding with those counts.
In dismissing the application, Innes CJ said (at 526):
"This
is really an appeal from the magistrate's decision upon the
objection, and we are not prepared to entertain appeals piecemeal.
If
the magistrate finds the applicant guilty, then let him appeal, and
we shall decide the whole matter."
(see also
Wahlhaus and Others v Additional
Magistrate, Johannesburg and Another, supra,
at 119D—120A;
Ismail and Others v Additional Magistrate, Wynberg, supra,
at
5G—H and
Walker v Stadsraad van Pretoria
1997 (4) SA 189
(T)
at 203E--G).
These principles found application in, for
example,
S v Mhlungu and others
[1995] ZACC 4
;
1995 (3) SA 867
(CC) at
894I—895G;
S v Friedman (2)
1996 (1) SACR 196
(W);
Slingsby
v Attorney-General, Western Cape
1999 (2) SACR 13
(C);
Levack
v Regional Magistrate, Wynberg
1999 (2) SACR 151
(C);
S v The
Attorney-General of the Western Cape; S v The Regional Magistrate,
Wynberg and Another
1999 (2) SACR 13
(C) and
Sapat and Others
v The Director: Directorate of Organised Crime and Public Safety and
Others
1999 (2) SACR 435
(C).
The question arises whether this is one of those
rare cases where grave injustice might otherwise result if the Court
does not interfere
before criminal proceedings have been finalised.
The applicants complain, and that complaint has
been at the centre of the drawn out dispute between the prosecution
and the defence
which accounts for much of the delay in this matter,
that the prosecution has furnished them with vague and inadequate
further particulars.
The applicants contend that by reason of the
inadequacy of the further particulars, they are not fully apprised of
the case they
have to meet and that as a result they will suffer
irreparable prejudice at the trial. The prosecution says that it is
unable to
furnish any further particulars and that, in any event, the
applicants have access to the witness statements in the docket. It is
clear from the reasons that he gave for his ruling, that the third
respondent gave careful consideration to the question of the adequacy
or otherwise of the further particulars. Indicative of the fact that
the third respondent applied his mind to the question of the
further
particulars is his earlier order (made on 13 August 2001) that the
State amplify the particulars. He made his final ruling
only after he
had considered the new particulars. In making his final ruling on 3
September 2001, he says that having carefully and
repeatedly perused
the documentation –
“…
.
I’m of the view that accused 1, 4 and 5 have been sufficiently
advised as to the alleged charges against them. In terms of fairness,
in terms of justice to all the accused and to the State, I’m of the
view that they are aware of the charges against them; that
the State
has given them all the necessary information needed to plead to these
charges, and therefore the application by Adv Scheltema
that the
matter be strike (
sic
) off
the roll is denied.”
The applicants have not shown that the third
respondent did not properly apply his mind to the question before him
or that he acted
irregularly in coming to the conclusion which he
reached.
The alleged inadequacy of the further particulars
forms the cornerstone of the application for the review of the third
respondent’s
refusal of the applicants’ application to have the
matter struck from the roll and to have the charges quashed. In view
of the
fact that the prosecution says that it is unable to furnish
any further particulars and that the applicants have access to the
witness
statements and the docket, the question whether or not the
applicants are prejudiced by the allegedly inadequate particulars
furnished
to them can best be determined by the trial court when
apprised of the full evidential and factual context within which
those particulars
operate. In other words, any actual trial-related
prejudice can properly be determined only by the trial court (see
S
v The Attorney-General of the Western Cape; S v The Regional
Magistrate, Wynberg and Another, supra,
at 25j—26a where the
following
dictum
from
US v Marion
[1971] USSC 195
;
404 US 307
is cited
with approval:
“
Events
at the trial may demonstrate actual prejudice, but at the present
time appellee’s due process claims are speculative and
premature.”)
The
following statement, cited in
R v Francois
18 CCR (2
nd
)
187 (Ontario) at 190 from an unreported judgment, is also, in my
view, apposite in the present context:
“
The measurement of the extent of the prejudice in the
circumstances of this case could not be done without hearing all the
relevant
evidence, the nature of which would make it clear whether
the prejudice was real or minimal. The Crown’s submission was, in
our
view, right. The motion was premature and the stay should not
have been granted when it was.”
In my view the applicants have not made out a case for departing from
the general rule against interlocutory appeals and reviews.
The permanent stay
of the prosecution
In
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC)
where a stay of prosecution was sought on the ground that there had
been an unreasonable delay in the prosecution, it is stated
(at par
[38] ) that the relief sought --
"is radical, both philosophically and socio-politically. Barring
the prosecution before the trial begins -- and consequently
without
any opportunity to ascertain the real effect of the delay on the
outcome of the case -- is far-reaching. Indeed it prevents
the
prosecution from presenting society's complaint against an alleged
transgressor of society's rules of conduct. That will seldom
be
warranted in the absence of significant prejudice to the accused."
The principle enunciated by Kriegler J
is one of long standing in our law. In
Attorney-General of Natal v
Johnstone & Co Ltd
1946 AD 256
at 261 Schreiner JA said:
"Now there is no doubt that, in general where it is alleged by
the Crown that a person has committed an offence, the proper
way of
deciding on his guilt is to initiate criminal proceedings against
him; and where such proceedings have already commenced,
even if the
stage of indictment only has been reached, it seems to me that a
court which is asked to exercise its discretion by entertaining
proceedings for an order expressly or in effect declaring that the
accused is innocent would do well to exercise great caution before
granting such an order. In most types of cases such an order would be
entirely out of place".
There have been lengthy
delays in this matter.
In
Wild and Another v Hoffert NO and
Others
[1998] ZACC 5
;
1998 (3) SA 695
(CC) at 702B (par [8]) Kriegler J says:
“
Although
the ultimate enquiry is whether the time between the charge and the
trial is unreasonable, it is obviously relevant that
the one or the
other party is to blame, in whole or in part, for the delay.”
The applicants were arrested on 4 November 1997.
Under the current adversarial system, an accused is entitled to
exercise his or her
rights to the fullest extent permitted by law. He
or she is under no obligation to assist the State in its task of
pursuing the prosecution.
However, the refusal to cooperate with the
State has consequences and in many instances may result in the
pre-trial proceedings or
the trial itself being prolonged. In such
circumstances the State’s “fault” is somewhat mitigated (see
Sanderson v Attorney-General, Eastern Cape, supra,
at 56B—C
(par [33]);
Wild and Another v Hoffert NO and Others, supra,
at 702A (par [8]), and
R v Morin
8 CCR (2
nd
) 193
(SCC) at 207).
It is apparent from the documentation herein that
from the outset the various applicants have elected to conduct their
defence in
an aggressive manner. The circumstances in which the
identity parade was to be held was vigorously challenged. Several
requests for
further particulars were lodged. The requests were long
and, at times, fatuous. There was a great deal of unnecessary
quibbling about
the sufficiency of the replies received. Dates for
the postponed hearings could not easily be arranged. In effect, few
concessions,
if any, were made by counsel acting for the defence. In
the light of this attitude, the applicants must bear some
responsibility
also for the initial delays in the progress of this
trial.
The applicants say that the prosecution was
responsible for the delay in bringing the matter to trial, and as a
result of the delay
they have been prejudiced. There is no doubt that
the State was responsible for some of the delay. Thus, for example,
fingerprints
were lost and fresh prints had to be taken. Considerable
delay was caused by the disputes about the adequacy or otherwise of
the
particulars furnished to the applicants. The particulars are
replete with spelling errors and the use of “and/or”, an
expression
which has elicited much judicial criticism and scorn. Thus
in
Ex parte McDuling
1944 OPD 187
at 189 Van de Heever (J) (as
he then was) referred to “daardie Engelse ongerymdheid” and adds:
“
Dit
is ‘n greep om helder begrippe te ontwyk, nie om hulle uit te druk
nie; mens kan net so wel sê, ‘trousers is and/or are’.”
The inept manner in which the further particulars
were dealt with is an adverse reflection on the office of the second
respondent.
Mr Slabbert offered no excuses for what he admitted to
have been an inept performance. I may add that he was not one of
those responsible
for drafting the particulars.
Mr Slabbert submitted that the prosecution was not
exclusively to be blamed for the delays. Delays were caused by
matters beyond the
control of both the prosecution and the defence.
Thus the withdrawal of the attorney of one of the accused (Moodley)
caused a delay
and on 23 August 2000 Moodley’s counsel was not
available. The offer, on 25 January 1999, by one of the other accused
to give evidence
on behalf of the State changed the whole course of
the prosecution and brought inevitable delay. The unavailability of a
magistrate
on occasion caused delay.
After the re-instatement of the matter on 20
November 2000, the defence on 20 March 2001 requested timeous service
of the summons
on all the accused in order to prevent further delays.
On 26 April 2001, the first appearance on summons, the matter was
postponed
to enable the (then) second accused to obtain legal
representation. At the next appearance on 31 May 2001 the Legal Aid
Board advises
that no one is prepared to take on the case of the
second accused. It is only on 18 June 2001 that he obtained legal
representation.
On 3 May 2001 a request for further particulars is
filed. The prosecution supplies the particulars on 4 July 2001. The
skirmishing
about the adequacy of the particulars resumes. On 12
October 2001, the third respondent rules that the applicants have
been sufficiently
advised as to the alleged charges against them, and
that they have the necessary information to plead to the charges.
The case
was set down for trial in the Regional Court, Belville on 20-24 May
2002, but instead of going to trial, the present application
was
launched on 3 April 2002.
The position in regard to delay can be summarised
as follows: Much of the delay, but by no means all of it, during the
period from
the time of the arrest of the applicants in November 1997
to 24 August 2000 when the matter was struck from the roll in terms
of
section 342A(3)(c) of the Act, can be attributed to the
prosecution. There was, in my view, no dilatoriness or tardiness on
the part
of the prosecution after the reinstatement of the matter on
20 November 2000. Such delays as there were, were in the nature of
systemic
delays in our courts.
The delay from 20 May 2002 to date is wholly for
the account of the applicants. They are entitled to exercise their
right to take
matters on review in the High Court, but the delay
caused thereby and the consequences of the delay are to be laid to
the applicants’
own charge (see
Sanderson v Attorney-General,
Eastern Cape, supra,
at 56B—C (par [33]);
Wild and Another v
Hoffert NO and Others, supra,
at 702A (par [8]) and
McCarthy v
Additional Magistrate, Johannesburg
2000 (2) SACR 542
(SCA) at
555g—556b).
In
Sanderson v Attorney-General, Eastern Cape,
supra,
at 56B—C (par [33]) and
Wild and Another v Hoffert NO
and Others, supra,
at 702A (par [8] ) it is emphasised that an
accused who had been a party to or the primary cause of delay cannot
be heard to complain
of such delay. As I have already stated, an
accused person is entitled to enforce all the rights available to him
or her, but if
the enforcement of such rights gives rise to delay of
a systemic nature within the system, such delay cannot be laid at the
door
of the prosecution. For example, in a letter dated 6 March 1998
addressed to a Cape Town correspondent (the letter is included in
the
Bundle which forms part of the documentation in the matter) the
attorney representing the first, third and fourth applicant states:
“
Furthermore
as far as possible avoid furnishing the State with hair samples,
unless ordered otherwise by the Court.”
The applicants are
perfectly entitled to take up this attitude but any resulting delay
in obtaining an order of court would not be
for the account of the
State.
In
Sanderson v Attorney-General,
Eastern Cape, supra,
it is stated (at 58 D—F (par [38] )) that
a stay of prosecution on the ground that there had been an
unreasonable delay in the
prosecution, will seldom be warranted in
the absence of significant prejudice to the accused. Significant
prejudice which would warrant
the stay of a prosecution is clearly
something more than prejudice to an accused which can be remedied by
another, appropriate remedy
such as, for example, a
mandamus
requiring the prosecution to commence a case or a refusal to grant
the prosecution a remand (
Sanderson v Attorney-General, Eastern
Cape, supra,
at 58G—H ( [par 39] )).
Prejudice which is not trial related
may involve matters such as pre-trial incarceration, social and
occupational disruption, and
social stigma. The applicants are out on
bail and thus not subject to the serious prejudice of pre-trial
incarceration. The delay
of the trial is certainly socially
disruptive for the applicants. The studies of the first, third and
fourth applicants have suffered.
The second applicant says that his
panel-beating business has suffered. The applicants have shown no
more than the usual strains
and anxieties suffered by persons who are
accused of serious offences. It has not been shown that any prejudice
to the applicants
on this score is such as to justify a permanent
stay of the prosecution.
In
Sanderson v Attorney-General,
Eastern Cape, supra,
at 58H ( [par 39] )it is said that a stay of
prosecution –
“
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.”
Trial-related prejudice is not easy to
establish (
Sanderson v Attorney-General, Eastern Cape, supra,
at 55B ( [par 30] )). In
S v A
1995 (2) BCLR 153
(C) at 158C—D
it is said:
“
Getuienis
gaan verlore as gevolg van vertraging, feite se bepaalbaarheid
vervaag; inderdaad doeltreffende regspleging vereis spoedeisende
afhandeling van geskille hetsy tussen Staat en onderdaan, hetsy
tussen landsburgers onderling. Vertraging is die vyand van gesonde
regspraak.”
The applicants aver that memories have faded and a
possible witness for the defence has in the meantime died. It borders
on the impossible
for this Court to determine the impact of the loss
of a witness, or the effect of the lapse of time on the reliability
of the recall
of events by witnesses (I have in mind the words of
Brennan J in
Dickey v Florida
398 US 30
(1970) at 53 that “it
borders on the impossible to measure the cost of delay in terms of
the dimmed memories of the parties and
the available witnesses”.)
The State faces the same prejudice and the extent of the prejudice
can only be properly measured by
the trial court hearing all the
relevant evidence.
The other form of trial-related prejudice on which
the applicants rely, is the prejudice caused by the alleged vagueness
and inadequacy
of the further particulars. In this regard, the
applicants have a recognised alternative remedy: they may seek a
mandamus
directed to the regional magistrate (third
respondent) that he order that the prosecutor furnish the particulars
asked for (
Behrman v Regional Magistrate, Southern Transvaal and
Another
1956 (1) SA 318
(T) at 319-320;
Weber and Another v
Regional Magistrate, Windhoek
1969 (4) SA 394
(SWA) at 397F—398A;
Goncalves v Addisionele Landdros, Pretoria en ‘n Ander
1973
(4) SA 587
(T) at 596H; Du Toit e
t al Commentary of the
Criminal
Procedure Act
14-28). From
these authorities it is apparent that
although the High Court is reluctant to intervene in criminal
proceedings that are still pending
in a lower court, it will direct a
magistrate to order delivery of particulars if the magistrate’s
refusal would seriously prejudice
the accused.
If, however, the prosecution has given the defence
all the information it has, and the prosecution is not able to
furnish the further
particulars asked for, it would be proper to
proceed with the trial and to deal with the question of prejudice as
and when it should
arise (
Green and Others v Assistant Magistrate,
Johannesburg, and Another
1954 (4) SA 580
(T) at 584B;
Behrman
v Regional Magistrate, Southern Transvaal and Another, supra,
at
321B—C).
The relief the applicants do seek, cannot be
granted. As I have pointed out above, the applicants have not made
out a case for the
review of the third respondent’s decision that
the applicants have been given sufficient particulars in order to
prepare their
defence and of his dismissal of their application to
have the matter struck from the roll and to have the charges quashed.
The applicants have also not made out a case for
the drastic remedy, a permanent stay of the prosecution, which they
seek from this
Court.
In my view, the application falls to be dismissed
and the trial in the regional court must proceed. Mr Slabbert has
indicated that
the second respondent would not seek an order for
costs should he succeed.
During the course of the skirmishing about further
particulars, an alleged confession by one of the accused was included
in particulars
which were supplied. Mr Slabbert agrees that the
inclusion of the alleged confession in the particulars was
inappropriate. The offending
document should be removed from the
court file before the matter goes to trial before the regional
magistrate.
In view of the foregoing, I would dismiss the
application and refer the matter back to the regional court for
trial.
HJ
ERASMUS, J
I
agree and it is so ordered.
DESAI,
J