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[2024] ZAFSHC 136
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Moeketsi v National Director of Public Prosecutions (1590/2023) [2024] ZAFSHC 136 (14 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no:
1590/2023
In
the matter between:
MOEKETSI
SIMON LESIA
Applicant
and
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
Respondent
CORAM:
JP DAFFUE J
HEARD
ON:
4
APRIL
2024
DELIVERED
ON:
14
MAY 2024.
This
judgment was handed down electronically by circulation to the
applicant's representatives by email and release to SAFLII. The
date
and time for hand-down is deemed to be 16h30 on 14 May 2024.
[1]
On 4 April
2024 an application in terms of rule 35(7) of the Uniform Rules of
Court served before me in the unopposed motion court.
The applicant,
Mr Moeketsi Simon Lesia, sought the following relief against the
National Director of Public Prosecutions (NDPP):
'1
.
That the
Respondent
be
ordered
to
fully
comply
with the Applicant's
notice in
terms of Rule
35(6)
by making
available for inspection police docket Bayswater Cas 58/05/2018
within 10
days
of the order of this Court;
2.
That the
Respondent be ordered to pay the costs of this
application.'
[2]
Having studied
the application
papers
and heard
brief argument by the applicant's counsel, Adv M Mazibuko, I was not
convinced that the application should
succeed.
I reserved judgment and requested counsel to file brief heads of
argument. I wish to thank counsel for the heads of argument.
[3]
I may just
record that my
prima
facie
view
upon perusal of the application papers was that the applicant was
merely using the procedure
in
terrorem.
I
noticed from the court file that the applicant as plaintiff claims an
amount in excess of R12 million from the NDPP as defendant
based on
alleged malicious prosecution. The criminal proceedings instituted
against him were unsuccessful,
he being
acquitted on all counts in the Free State High Court in terms of
s
174
of the
Criminal Procedure Act 51 of 1977
.
[4]
Soon after
receipt of the NDPP's discovery affidavit the applicant's attorneys
insisted on inspection of the complete docket. The
notice in terms of
rule 35(6)
was served on 20 October 2023.
In the reply
to the notice in terms of
rule 35(6)
the NDPP's attorney made the
following statement:
'BE
PLEASED
TO TAKE NOTICE
that
the Defendant hereby makes available
copies
of
item
3 as set out and described in FIRST SCHEDULE,
PART 1
of the
Defendant's Discovery Affidavit date 11th
September
2023
for
inspection in terms of the provisions of
Rule 35(6)
of the Uniform
Rule of Court as requested.'
[5]
On 12 January
2024 and as a result of non-compliance by the NDPP, the applicant's
attorneys served an application to compel. The
State Attorney
indicated that they would comply and that application was thereupon
removed from the roll by agreement,
the NDPP to
pay the costs thereof
.
[6]
Hereafter, the
State Attorney tendered to provide an opportunity to the applicant's
legal representatives to inspect the contents
of the police docket as
required in the
rule 35(6)
notice
.
A time slot
and date, to wit 14h15 to 16h00 on 2 February 2024, was suggested by
the particular State attorney dealing with the
matter, but she failed
to make herself available. Eventually the inspection took place on 5
February 2024. Instead of providing
the full police docket, the State
Attorney furnished only a handful of documents which clearly does not
constitute the complete
docket. In particular, these documents did
not include the investigation diary which is part of the docket.
[7]
My initial
view was that the applicant as a former accused would have been
entitled to all witness statements and other documents
incriminating
him contained in the police docket. In my view it would be
unnecessary to ask for an opportunity to make avai
l
able
the contents of the docket for inspection in accordance with
rule
35(6).
I accepted at that stage that I was not dealing with a
criminal matter, but with civil litigation. However, I believed that
a blanket
order would cause unnecessary tension between the legal
representatives acting for the parties, bearing in mind the
established
case law.
[8]
In
Shabalala
and
Others
v
Attorney-General of
the
Transvaal
and
Another
[1]
the
Constitutional
Court
dealt with the contents of police dockets, to wit the three sections,
ie
section
A
in
respect
of
witness'
statements,
expert
reports
and
documentary
exhibits,
section B dealing with internal reports and memoranda,
and
section C, being the investigation diary.
[2]
The court declared that the so-called 'blanket docket privilege' was
inconsistent with the Constitution to the extent that
it
protects
from disclosure all the documents in a police docket
[3]
.
However,
the
court made it
clear
that it confined itself to the problem
of
access
to
witness
statements
included
in
the police docket, although accepting that there might be other
documents, such as expert and technical documents,
which
might
be
important
for
an
accused
to
properly
adduce
and
challenge evidence
[4]
.
[9]
In
National
Director of Public Prosecutions
v
King
[5]
the
Supreme Court of Appeal held, in line with the
Shabalala
judgment,
that litigation privilege no longer applies to documents
in
a police docket that are
incriminating,
exculpatory
or
prima
facie
likely
to be helpful to the defence
[6]
.
However,
the
court made it clear that the former blanket privilege had not been
replaced by a blanket right to every bit of information in
the hands
of the prosecution,
confirming
that litigation privilege still exists, also in criminal cases,
albeit in an attenuated form.
[7]
[10]
I
have had the
opportunity to now carefully
scrutinise
the NDPP's
discovery
affidavit
,
after
having
considered counsel's heads of
argument. The
NDPP's
discovery
affidavit
has been disposed to by a senior advocate, Adv DI Vorster.
Item 3 in the
First Schedule attached to the affidavit refers to '[c]opies of
Bayswater docket CAS 58/05/2018'. In line with the
provisions of rule
35(2)(a), the NDPP clearly did not have any objection to produce
copies of the police docket. In order to prevent
any doubt, the
Second Schedule attached to the affidavit, deals with those documents
in respect of which the deponent has a valid
objection to produce. It
does not deal at all with any reports and/or documents contained in
the police docket. Therefore, it is
apparent that the NDPP does not
claim privilege in respect of any report and/or document contained in
the police docket. If the
NDPP intended to rely on legal privilege
pertaining to any documents in the police docket, such as the
investigation diary, those
documents should have been specifically
excluded from the First Schedule and inserted in the Second Schedule
which it did not do.
[11]
It is also
apparent that the NDPP has waived any privilege or confidentiality in
respect of the contents of the police docket, bearing
in mind the
correspondence between the parties, the reply to the rule 35(6)
notice and the evidence contained in the applicant's
founding
affidavit.
[12]
.
I
have referred to the handful of documents supplied to the applicant's
attorneys on 5 February 2024. On 12 February 2024 the applicant's
attorneys
insisted
on
inspection of the complete docket to which the NDPP's attorneys
failed to reply.
[8]
This
failure
led
to the institution
of
the application
in
terms of rule 35(7). The NDPP failed to oppose the application.
Consequently,
the
applicant is entitled to the relief sought.
Order
1.
The
·
respondent
shall fully comply with the applicant's notice in terms of rule 35(6)
by making available for inspection the police
docket,
Bayswater
CAS 58/05/2018, within 10
days of
service of this order
.
2.
The respondent
shall pay the costs of this application
.
JP
DAFFUE J
On
behalf of the Applicant:
Adv
M Mazibuko
Instructed
by:
Mazibuko
& Wesi Inc
BLOEMFONTEIN
[1]
1996
(1)
SA
725
(CC).
[2]
Ibid
para
10.
[3]
Ibid
para
72.
[4]
Ibid
para
57.
[5]
2010
(2)
SACR
146
(SCA).
[6]
Ibid
para
1
[7]
Ibid
para
2.
[8]
Founding
affidavit
paras 4.9 -
4.11
and annexures
relied
upon.