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[2024] ZAFSHC 120
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Moses and Another v Director of Public Prosecutions (3518/2023) [2024] ZAFSHC 120 (29 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:3518 /2023
In
the appeal of:
IGBO
MOSES
1
st
Applicant
JOHN
OBIASOR
2
nd
Applicant
and
DIRECTOR
OF PUBLIC PROSECUTIONS
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
12 DECEMBER 2023
DELIVERED
ON:
29 APRIL 2024
[1]
The Applicants seek permanent stay of the
prosecution in the pending criminal trial in the Bloemfontein
Regional Court under case
number 20/189/20. The Respondent opposes
the application.
[2]
The facts surrounding this matter are
largely common cause and I summarise same hereinafter. The Applicants
were arrested on 23
March 2020 on various offences of contravention
of section 5(a) and (b) of the Drug and Drug Trafficking Act 140 of
1992. The offences
were allegedly committed in 2018 and 2019.
They made various appearances in the
district and regional courts.
[3]
On 28 May 2021 they appeared in the
Regional Court and their case was postponed to 8-10 September 2021
for trial. Prior to this
postponement date, they had been supplied
with copies of the contents of the docket. On 8 September 2021 the
Prosecution applied
for the remand of the matter with a view to
discover over 800 pages of documents to the defence. The Applicants
did not object
to the postponement. The case was then postponed to 29
November 2021.On 9 September 2021 the prosecution provided the
Applicants
with two volumes of evidential material. On 8 October 2021
the Applicants were informed that another Prosecutor had been
assigned
to deal with the case and that there was "further new
information in a form of video material that will be used" in
the
trial.
[4]
On the day of the trial,29 November 2021,
the trial could not be commenced with because the Applicants filed a
Request for Further
Particulars in terms of section 87 of the
Criminal Procedure Act 51 of 1977.What the Applicants sought with
regard to this request
was
"the
application in terms of
section 252A
of the
Criminal Procedure
Act 51 of 1977
, which was made to
the Director of the Public Prosecutions."
The applicants also applied for the
transcription of the audio recording of the video footages. The
Applicants then applied for
the postponement and same was granted and
the matter postponed to 10 December 2021. On 10 May 2021 the
transcription was still
outstanding. On 24 February 2022 the
Applicants were handed the transcribed recordings.
[5]
On 10 March 2022 the Applicants filed the
second Request for Further Particulars. The case was struck off the
roll-on 25 April 2022
due the prosecution's failure to provide
further particulars as requested in the second request. The case was
reinstated towards
the end of 2022. On the said date it
was
postponed
to
13
March
2023
for
trial.
On
8
March
2023
the
State
supplied the defence with phone extraction report, affidavit in terms
of
section 212(4)
as well as a new charge sheet. The phone report and
the
section 212(4)
report were dated August 2019.
[6]
The applicants contend that they were
supplied with video footage materials contained in four CD's. They
instructed a transcription
entity to transcribe the four CD's. The
said company only managed to transcribe three of the said CD's. The
end result is that
they could not obtain information in the fourth CD
and the prosecution could also not provide same. According to the
Applicants,
the fourth CD apparently contained recording pertaining
to the incident of 6 August 2019. It is thus contended that the
Applicants
are unable to mount a defence
on
the recorded
conduct
of the trap contained
in
the fourth CD.
[7]
The respondents contend as follows: “...
.it might be favourable for the
Applicants
during
the
trial
on
a
particular
charge. Missing
footage
in
respect of one incident is however
not
a
reason
to grant
a
permanent
stay of prosecution."
[8]
The applicant also contends that they
requested an application by Captain Huysteen in terms of the
Regulation of Interception of
Communication and Provision of
Communication Related Information Act 70 of 2000. It also appears, so
it is contended, that Captain
Huysteen had resubmitted the
application.
The
prosecution
refused
to supply
the
requested
particulars
on the basis that it is classified
information.
[9]
The case of the applicants is that the
failure to provide the requested documents
is in breach
of
the applicants' constitutional rights to
have adequate time and facilities to
prepare their defences. For this alleged failure, so it is submitted,
the applicants
have
established
trial
related prejudice.
[10]
Every accused person has a right to a fair trial, which includes the
right to have their trial commence and conclude
without unreasonable
delay. Our courts in determining the unreasonableness or otherwise of
the delay, perform a balancing act.
See
Moeketsi v Attorney
General Bophuthatswana and Another
1996(1) SACR 675 (B) and
Ou
Preez v Attorney General of the Eastern Cape
1997(2) SACR 357
(E). The court in this balancing act looks at the conduct of both the
prosecutor and the accused.
[11]
The court in
Rodrigues
v The National Director of Public Prosecution and Others
(1186/2019
[2021] ZASCXX 87 (21June2021)
said
the following:
" [32]In
Bothma v
Els,
the Constitutional Court reiterated the approach taken in
Sanderson.
It held that in determining relief for a permanent
stay of prosecution, the court is required to engage in a balancing
exercise
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 a right to a speedy trial and prejudice
to
the accused. The Constitutional Court, however, did not regard these
factors as constituting a closed list and indicated that
the nature
of the offence and the public policy considerations that may be
attached to it would also be a relevant consideration.
It is
ultimately a value judgment the court brings to bear after a proper
consideration of the evidential material relating to
the relevant
factors." (Footnotes omitted)
[12]
It is common cause that there was a delay
in this case. The applicants appeared in court for the first time in
2020 and about 3
years later the trial had not commenced. However,
it has to be borne in mind that the
prosecution was downright tardy in the handling of this matter. The
delay was primarily occasioned
by the Request For Further Particulars
which was not attended to
in
time as well as supplying
further
evidential
material
at times closer
to the trial dates. The prosecution
gave the requested
particulars in piecemeal format. While I
accept that such conduct might be prejudicial to the preparation of
the defence cases,
I cannot say that such prejudice was essentially
trial related. The reason for saying so, is that of the time when
this application
was launched, the requested particulars had been
given save for the particulars which the prosecution alleges was
confidential
and the fourth CD which could not be transcribed.
[13]
Both the state and the defence had at
different times applied for the postponement
of this matter.
The presiding
officer is also enjoined by
section 342A
of
the
Criminal Procedure Act 51 of 1977
to investigate any
unreasonable delay in these proceedings.
The application before me does not show that such an application was
ever embarked upon.
Apart from that, there is no indication on record
that the applicants also sought to compel the prosecution to furnish
them with
the requested particulars. One would have expected the
applicants to also demonstrate the actions they took in order to
pursue
the remedies available to them before embarking on a drastic
step of seeking the permanent stay of the proceedings.
[14]
Some
delays
occurred
as
a
result
of
the
failure
to
provide
the
defence
with
the
transcribed record of the fourth CD. The evidence however, makes it
apparent that the fourth CD cannot be transcribed. If indeed
it is
so, I cannot see how the state will use such evidence against the
applicants. According to the Applicants, this fourth CD
is only
applicable to the incident of 6 August 2019. Failure to provide the
CD will thus only impact the charge relating to the
said date. I
agree with the state that the failure to provide that single CD,
which only pertains to the events of 6 August 2019
cannot be a reason
to order permanent stay of all the proceedings.
[15]
The applicants complain that they were not
furnished with the documents relating
to
an application
and
re-application of a section
252A
authority
to
set a trap. As alluded to above, the prosecution contends that such
particulars are privileged. In my view, the rights to adduce
and
challenge such evidence can best be dealt with by the trial court
during the proceedings. The applicants are well entitled
to approach
the trial court to challenge the leading of such evidence. The
evidence goes to the heart of the merits of this case
and would best
be left to the trial court.
[16]
I have said earlier that when this
application
was
launched,
the
prosecution had already furnished all the particulars requested. The
reason for saying that is that the state cannot be compelled
to
furnish a CD, which the defence themselves
have
failed
to transcribed. Surely,
if the state would
use such a CD, which is alleged to be
damaged, it will be prejudicial to the defence and they
are
at
liberty
to raise
it
with
the
trial
court. As indicated, the issue
of
the
documents in respect of the
section 252A
are best left to the trial
court. The application must thus fail.
[17]
The applicants came before this court to
vindicate their constitutional right. I accordingly hold the view
that they should not
be mulcted with costs. I accordingly make this
order:
ORDER
1.
The application for a permanent stay
of the proceedings is dismissed.
2.
There is no order as to costs
P.E
MOLITSOANE, J
On
behalf of the Applicants:
Adv.
Nkhahle
Instructed
by
Motaung
Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.
Mkhabela
Instructed
by
Director
of Public Prosecutions
BLOEMFONTEIN