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2024
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[2024] ZALMPPHC 121
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De Faria v S (BA25/2024) [2024] ZALMPPHC 121; 2024 (2) SACR 640 (LP) (20 September 2024)
FLYNOTES:
CRIMINAL – Bail –
Access
to state witness
–
Crucial
eyewitness – Consultation with state witness without
knowledge or consent of prosecutor – Ethical breach
–
Gross irregularity – Consultation falls within prohibition
of Act – May allow for intimidation or undue
influence –
Attorney was aware of ethical obligation when he commenced
communication with witness – Attorney
acted improperly –
Appeal struck from roll –
Criminal Procedure Act 51 of 1977
,
s 60(14).
Latest
amended version: 3 October 2024
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: BA25/2024
Praktiseer Case No:
A291/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE: 20/9/2024
SIGNATURE:
In the matter between:
RUI MANUEL DE
FARIA
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
MULLER J:
[1]
This appeal is against the refusal to admit the appellant to bail on
two occasions
by the magistrate sitting at Praktiseer. It came about
in this way. The appellant is charged with murder read with the
provisions
of
section 51(1)
of Act 105 of 1997 which is an offence
mentioned in Schedule 6 of the
Criminal Procedure Act.
[1
]
It is
not disputed that the appellant shot and killed the deceased. The
appellant alleges that he acted in self-defence after he
discovered
his wife in a compromising position in the company of the deceased.
He shot the deceased when he was attacked by the
deceased. The wife
of the appellant is the only eye witness to the events leading to and
the shooting itself.
[2]
The first application for bail was refused on the basis that no
exceptional circumstances
exist, which in the interest of justice
permit the release of the appellant.
[2]
It is
important to note that no appeal was noted when the first order was
made. Instead, a fresh application for bail on new
facts was
launched days after the dismissal of the first bail application.
[3]
The
second application was also unsuccessful.
[4]
Hence
the present appeal which is aimed against both the first and the
second refusal of bail. The appeal came before this
court a
week ago but was removed from the roll due to an incomplete record of
the proceedings having being filed off record. The
complete record
consisting of both applications has now been filed and is before
court.
The parties were granted
the opportunity to file supplementary heads of argument after
conclusion of the arguments. They availed
themselves of the
opportunity.
[3]
The new facts relied upon by the appellant in support of his
application emerged mainly
from an affidavit deposed to by the wife
in which she has indicated that she has no objection to him being
released on bail provided
that certain conditions are imposed.
[4]
The affidavit deposed to by the wife came about two days after the
first application
was dismissed when the wife addressed an email to
the attorney of the appellant eliciting his assistance to draft and
formulate
an affidavit in support of bail being fixed for the
appellant. The attorney obliged and drafted a
pro forma
affidavit that was forwarded to her under cover of an email for her
approval. She was cautioned by the attorney to:
“
Please
respond to us in writing with any query or question so that we may
avoid any allegation raised later that we communicated
with you.
It should be best for
ourselves to communicate in writing regarding the matter.”
[5]
Several emails followed between them until the wife was satisfied
with the wording
of the affidavit which she approved and deposed to.
The legal representative of the appellant presented the said
affidavit together
with certain emails, purportedly exchanged between
the attorney and the wife together with an affidavit deposed to by
the appellant,
as evidence on new facts.
[6]
The investigating officer was called by the prosecution in opposition
of the application.
She and the prosecutor were clearly caught by
surprise by the contents of the affidavit. She mentioned that the
attorney for the
appellant informed her on a previous occasion at
court that he is in possession of an affidavit deposed to by the
wife. She
was never given a copy of the affidavit nor was she
afforded sight thereof prior to the application. The investigating
officer
also insinuated during cross-examination that the change in
the attitude of the wife within two days after the first application
was dismissed can be attributed to a visit paid to the wife by the
attorney. The allegation was denied by the attorney.
[7]
The legal representative on behalf of the appellant was requested to
address the court
on the question whether a gross irregularity has
been committed as a result of the consultation with a state witness
without the
knowledge or the consent of the prosecutor to draft an
affidavit for her in support of a bail application by the appellant,
on
new facts.
[8]
It was contended that communication was initiated by the wife and
that there was no
consultation with her. Apart from this
contention, it was argued on behalf of the appellant with reliance on
Shabalala
and Others v Attorney-General of Transvaal and Others
[5]
that
an attorney has a right to consult with a state witness without the
consent of the prosecutor and that he/she is also entitled
to be
placed in possession of all the information contained in the docket
due to the onus on an accused person by virtue of the
provisions of
section 60(11)
of the CPA which requires from an accused person to
prove exceptional circumstances.
[9]
It was a long standing and firmly embedded rule in our criminal
justice system that
a legal representative who acts on behalf of an
accused person in criminal proceedings has an ethical duty not to
consult with
a state witness without the permission of the prosecutor
or the relevant Director of Public Prosecutions. In
S
v Shabalala and Others v Attorney-General of Transvaal and Others
[6]
the
constitutional court was called upon to decide whether the applicable
ethical rule at that time, can constitute a denial of
the right to a
fair trial. The court stated:
“
Whatever
be the origin of the rule that an accused person may not consult
State witnesses save with the permission of the Attorney-General
or
the prosecutor, it subsequently became entrenched in practice and now
forms such a basic part of our system of criminal justice
as to make
it effectively impossible for an accused person to get his or her
legal representative to consult with such a witness
without the
permission of the prosecuting authority. Any legal practitioner who
does so would be guilty of unprofessional and unethical
practice.
Moreover, a breach of an ethical rule has been held to be capable of
constituting an irregularity in the trial.
[7]
[10]
After discussing the need to consult on the one hand and the need to
protect a state witness
on the other, the following conclusion was
reached:
“
It
follows from these conclusions that the blanket rule which prohibits
an accused person from consulting with a State witness without
the
permission of the prosecuting authority in all cases and regardless
of the circumstances is too wide and is not protected by
s 33 of the
Constitution. However, the claim to consult State witnesses without
the prior permission of the prosecuting authority
can only be
justified in circumstances where the right of the accused to a fair
trial would in the special circumstances of the
case be impaired if
the defence is denied the opportunity to have such consultations.”
[8]
[11]
The court held that:
“
B1.
Insofar and to the extent that the rule of practice pertaining to the
right of an accused or his legal representative to consult
with
witnesses for the State prohibits such consultation without the
permission of the prosecuting authority, in all cases and
regardless
of the circumstances, it is not consistent with the Constitution.
An
accused person has a right to consult a State witness without prior
permission of the prosecuting authority in circumstances
where his or
her right to a fair trial would be impaired if, on the special facts
of a particular case, the accused cannot properly
obtain a fair trial
without such a consultation.
The accused or his or her
legal representative should in such circumstances approach the
Attorney-General or an official authorized
by the Attorney-General
for consent to hold such consultation. If such consent is granted the
Attorney-General or such official
shall be entitled to be present at
such consultation and to record what transpires during the
consultation. If the consent of the
Attorney-General is refused the
accused shall be entitled to approach the Court for such permission
to consult with the relevant
witnesses.
The right referred to in
para 2 does not entitle an accused person to compel such consultation
with a State witness:-
(a)
if such State witness declines to be so consulted; or
(b)
if it is established on behalf of the State that it has reasonable
grounds to believe such consultation might lead to the intimidation
of the witness or a tampering with his or her evidence or that it
might lead to a disclosure of State secrets or the identity of
informers or that it might otherwise prejudice the proper ends of
justice.
Even
in the circumstances referred to in para 4
(b),
the
Court may, in the circumstances of a particular case, exercise a
discretion to permit such consultation in the interest of justice
subject to suitable safeguards.”
[9]
[12]
An accused person may consult with state witnesses if the
consultation is justified in order
to ensure a fair trial. The
consent of the prosecuting authority should be obtained, but, if
consent is refused then the court
may on application grant
permission. An accused does not have complete freedom to consult with
state witnesses with or without
their consent. There might
conceivably be differences in opinion whether a consultation with a
state witness is necessary for a
fair trial. It seems that the
appellant is under the impression that it falls solely within the
discretion of an accused or his
legal representative in all cases to
decide whether a consultation with state witnesses is called for in
the interest of a fair
trial.
[13]
No doubt exists that the attorney was aware of this ethical
obligation when he commenced communication
with the wife. He should
immediately have informed the prosecutor that he was approached by
the wife to have the appellant released
on bail and that he needed to
consult with the wife in connection therewith prior to exchanging
emails with her on the topic. The
attorney, in my view, acted
improperly.
[14]
It matters not that he communicated by means of emails. There is no
difference between communication
by telephone or other digital
methods of communication, such as emails or remote audiovisual
communication on the one hand, and
a face to face consultation in the
presence of the wife, on the other.
[15]
The attorney was aware that the wife is a crucial eye witness who was
present during the shooting
incident. His continued engagement with
the wife without informing her or the prosecution until an acceptable
affidavit was formulated
is a gross irregularity and a breach of his
ethical duty. James JP remarked in
S
v Hassim,
[10]
where
counsel unbeknown by the prosecution obtained statements from state
witnesses after they had testified in a trial:
“
I
have no doubt in doing so he committed a serious error of the
professional judgment which the court is entitled to expect from
an
advocate and that his conduct fell far short of what courts have
right to expect from one of its officers.”
[16]
What the effect the ethical breach will be on the trial itself is
impossible to say at this stage
of the proceedings. It will be
recalled that the investigating officer stated that the attorney paid
a visit to the wife. It might
only become apparent at the trial when
the wife is called upon to testify what was said. What was said or
not said in communications
between them which are not included in the
record might become relevant at the trial.
[17]
In
S
v Dintwe and Another
[11]
a
trial was held to be unfair where a legal representative who appeared
for two accused persons failed to withdraw from the case
when a
conflict of interest developed between the accused persons during the
trial. The court held that making use of the information
received
from the one accused is a breach of attorney-client confidentiality
relationship.
[18]
In
S
v Moseli en ‘n Ander (2)
[12]
proceedings
were declared void by Erasmus J where there was a gross breach of
privilege between counsel and his client when counsel
called the
interpreter to give evidence as what the accused person had told him
in consultation.
In
S
v Mushimba en Andere
[13]
a
member of the staff of the firm of attorneys who acted on behalf of
the accused persons had given copies of their statements and
other
confidential information to the police. It was held that the breach
of confidentiality affected the fairness of the entire
trial. All
these matters dealt with privileged information irregularly made
available to the prosecution that resulted in the trials
being
unfair. It must be emphasized that a bail application is not a
criminal trial but is nevertheless criminal proceedings. Bail
proceedings implicate the right to a fair criminal trial as
entrenched in section 35(3) of the Constitution.
[19]
Although section 35 seeks to protect the right of an accused to a
fair trial the prosecution
by necessary must by implication also be
afforded the right to a fair trial. Public policy demands that the
prosecution also be
treated fairly. Evidence irregularly obtained
from a state witnesses may well be detrimental to the state case and
the administration
of justice. The evidence irregularly
obtained from the state witness which was tendered in support of the
efforts by the
appellant to obtain bail compromised the state witness
and the fairness of the bail proceedings. The investigating officer,
was
unaware of the extent of the information provided by the wife to
the attorney and what the circumstances were that lead to the
consultation despite the explanation proffered by the attorney that
he was approached by the wife.
[20]
Section 60(14) of the CPA provides that an accused person for
purposes of bail proceedings has
no right of access to any
information, record or document relating to the offence for which
he/she is charged which is contained
in the police docket including
any other information which is held by the investigating officer
unless the prosecutor otherwise
direct. Such information for purposes
of an application for bail is privileged and cannot be waived by the
wife without the consent
of the prosecutor.
[21]
The consultation with the wife in terms whereof she has made an
affidavit and has set out the
circumstances and conditions for the
appellant to be admitted to bail without the knowledge of the
prosecutor falls within the
prohibition provided for by the
provisions of section 60(14).
[22]
As pointed out elsewhere, it was contended that the ethical rule is
not applicable to applications
for bail in respect of offences
mentioned in schedule 6.
[23]
I cannot agree with the submission. There are competing interests
between the State who has the
duty to ensure that the rules of
criminal law are enforced and that the fundamental rights of an
accused person who applies for
bail under the burden that section
60(11)(a) read with schedule 6 of the CPA placed on such an accused
person, are respected.
[24]
The importance of witnesses in the criminal justice system can hardly
be overemphasized. Untrammeled
access to state witnesses by accused
persons in serious cases may allow for intimidation, undue influence
and undue pressure being
exerted on them not to testify or to change
their evidence to assist or exonerate accused persons. Such access
will not only undermine
the protection of the witnesses against
influence and intimidation but will totally destroy public confidence
in the administration
of justice which is of vital importance for the
proper functioning of the criminal justice system. It strikes at the
very heart
and effectiveness of the administration of justice and the
right to a fair trial. A bail application is a precursor to the
trial.
Evidence presented at bail proceedings is admissible at the
eventual trial and may play a very important role.
[14]
The
witness statement of the wife will be made available to the appellant
before the trial. He is, therefore, able to be fully appraised
of the
evidence of the wife, before the trial commences.
[25]
If the respondent had been informed by the attorney when she
contacted him of her changed attitude
towards the appellant, bail may
not have been opposed. The improper consultation to obtain an
affidavit from the wife without the
knowledge of the prosecution
constituted a gross irregularity that resulted in an unfair bail
hearing, on new facts. The irregularity
was of such a nature that the
administration of justice and the fair trial right of the prosecution
was compromised. The outcome
of the bail proceedings cannot undo the
irregularity and the consequences. This court has inherent
jurisdiction to restrain illegalities
in lower courts by way review,
interdict or
mandamus
and
may correct proceedings in lower courts.
[15]
[26]
I now turn to the notice of appeal which is directed at refusal of
the first bail application
as well as the refusal of bail based on
new facts. To note an appeal against the first refusal of bail and
simultaneously noting
an appeal against refusal to admit the
appellant to bail on new facts, is irregular. Section 65(1) of the
CPA envisage an appeal
against a refusal of bail prior to an
application for bail on new facts. When an accused person
exercised the right to apply
for bail on new facts instead of noting
an appeal against the first order he/she exercised an election to
accept the outcome of
the first application and to forgo the right to
appeal the first order. It is an acquiescence of the first order. If
the appellant
was dissatisfied with the result of the first
application he should have noted an appeal against that order. It
cannot be countenanced
that an appeal against the first order be
entertained at the same time as an appeal against the second order.
The noting of an
appeal against the first order after the application
for bail on new facts was dismissed, is a irregularity and an abuse
of the
process of court.
[27]
A letter was addressed to the Polokwane High Court which was emailed
to the secretary of the
presiding judge, the Chief Justice and the
Legal Practice Council, by the attorney on behalf of the appellant on
the same day the
appeal was argued, referring
inter
alia
to
“
DIM
VIEW OF HONOURABLE JUDGE MULLER WILL BE CURED BY READING CONTENTS
HEREUNDER”.
[16]
Paragraph
7 to 10
[17]
says:
“
7.
This is the reason, this letter is being dispatched within several
hours of the date of hearing above.
8. Readers hereof are
respectfully referred to the case
Shabalala v Attorneys General
1996(1) SA725 CC.
On page 64 order B 2, the Constitutional Court
found:-
“
An
accused person has the right to consult a state witness without the
prior permission of the prosecuting authority in circumstances
where
his or her right to a fair trial would be impaired…”
9. The special (peculiar)
circumstances of the aforesaid case are the following:-
(a) The accused’s
wife to whom he remains married is the only (single) witness.
(b) The state single
witness is competent but not compellable, she has already expressed
hesitancy against testifying against the
accused who remains her
husband.
(c) There are 2 children
born from the marriage.
(d) the couple’s
daughter is a medical student studying at Wits.
(e) Their son manages a
business in Burgersfort.
(f) the family, together
with the accused’s mother-in-law are living together in one
house.
(g) The lawyers attached
to Zehir Omar Attorney’s deny having elicited a consultation
with the accused wife.
(h) The aforesaid
authority substantiates the view that the special circumstances of
this case permitted the accused / his lawyer
to consult with the
state witness.
10. We hope that the
contents of this letter will cure the DIM View of Judge Muller.”
[28]
The letter was obviously meant for the presiding judge to read and
consider. Mr Omar, who assisted
Me Omar in court during argument, was
also afforded an opportunity to address the court when he requested
an audience. At the conclusion
of the arguments the parties were
again invited to file supplementary heads of argument in connection
with the matters raised during
the argument. The issues
mentioned in the letter could and should have been raised in the
heads of argument. It is wholly
inappropriate to address such a
letter to the judge seized with the appeal after judgment was
reserved. Be that what it may, in
paragraph 9(b) of the said letter
it is averred that the wife has already expressed hesitancy against
testifying against the appellant.
Such hesitancy to testify at the
trial was neither expressed by the wife in her emails exchanged
between the attorney and her,
nor stated in her affidavit presented
at the bail hearing.
[29]
Counsel who appeared on behalf of the State argued that the affidavit
of the wife should have
been disallowed in terms of section 35(5) of
the Constitution. It was contended by the appellant that the bail
hearing was conducted
on the basis that the affidavit contained
sufficient evidence to warrant a hearing on new evidence and that the
particular issue
was never raised by the prosecution at the hearing.
I agree. The issue cannot be raised for the first time by the
respondent on
appeal.
[30]
The matter did not end there. The appellant filed together with a
reply to the supplementary
heads of argument filed by the respondent,
on 12 September 2024 an application to lead further evidence on
appeal in terms of section
19(b) of the Superior Court Act.
[18]
The application was opposed by the respondent. The parties again
appeared in court on 13 September 2024 to present argument in
respect
of the application to receive evidence on appeal.
[31]
The test to be applied in an application to present evidence on
appeal was set out by the Supreme
Court of Appeal in
Staatspresident
en ‘n Ander v Lefuo
as:
[19]
“
Alhoewel
in die formulering van die vereistes nie altyd dieselfde woorde
gebruik is nie, kom dit op die volgende neer. Eerstens
moet die
applikant ‘n redelike annvaarbare verduideliking verskaf waarom
die getuienis nie by die verhoor van die saak gelei
is nie; tweedens
moet die betrokke getuienis van wesentlike belang in die saak wees en
derdens moet dit waarskynlik die uitslag
van die saak verander (Die
Weimers
-saak
op 514H-515F). In die
Colman
-saak
is ‘n vierde vereiste gestel, naamlik dat die aansoek nie
toegestaan sal word indien die omstandighede so verander het
dat die
ander party benadeel sal word nie (op162). In die
De
Beer
-saak
is dit egter beklemtoon (op 748) dat elke aansoek op sy eie meriete
beslis moet word en in
S
v De Jager
(
supra
)
het Holmes AR op 613E-F daarop gewys dat, hoewel die aansoek vir die
lei van verdere getuienis gewoonlik geweier sal word indien
enige van
bogemelde basiese vereistes nie aanwesig is nie, die Hof wel in ‘n
seldsame geval op een of ander buitengewone
grond die aansoek mag
toestaan.”
[20]
[32]
A
prima facie
view expressed by the presiding judge during
oral argument has given rise to the birth of this application. Family
members made
affidavits to explain what prompted the wife to freely
and voluntarily depose to the affidavit produced at the bail hearing
in
support of the appellant. The importance of their evidence only
came about upon reflection by the attorney of the “Dim View”
remark made during argument.
[33]
The respondent filed no answering affidavit but simply filed an
affidavit deposed to by the wife
in opposition to the application.
There is no counter-application to receive her affidavit as evidence
in the appeal by the respondent.
Her affidavit cannot be considered
as evidence in the appeal.
[34]
The family members were available at all relevant times and could
have deposed to the affidavits
to confirm all the averments made by
the wife in support of the bail application and that she made the
statement freely and voluntarily.
That being the position the
appellant has failed to meet the first requirement of the test namely
to explain why the evidence was
not adduced at the bail hearing to
confirm and support her evidence. There are, moreover, no special or
extraordinary circumstances
present in this matter. Circumstances are
such that the respondent will be prejudiced. Their evidence may very
well be relevant
and material in a future bail application, on new
fact. In the premises the application falls to be dismissed.
[35]
Once again the attorney for the appellant forwarded a document to the
registrar of this court
with the heading “APPELLANTS REASONS AS
TO WHY THIS HONOURABLE COURT SHOULD NOT REMIT THE CASE TO THE LOWER
COURT”
to place further argument before the court after
judgment was reserved. The court allowed the respondent the
opportunity to respond
to the new submissions. The respondent filed a
reply.
[36]
It is contended by the appellant that a remittal may only be made if
the record does not contain
sufficient evidence or information for
determining the appeal and if the court is of the opinion that
further evidence is necessary.
An additional submission is put
up that the matter should not remitted to the magistrate because the
road from Gauteng to
Praktiseer, where the court is situated, is bad
and that the costs involved having regard to the court having
adjourned the appeal
hearing on three occasions are “PROHIBITIVE,”
to use the words of the attorney.
[37]
The removal of the appeal from the role on the first occasion was
occasioned by the legal representatives
of the appellant who filed an
incomplete record of the bail proceedings on new facts. The appeal
hearing took place on the second
occasion after the complete record
was filed. The third appearance was again occasioned by the legal
representatives who filed
an application to lead further evidence on
appeal. The appeal was always treated with the required urgency and
the hearings were
held on each occasion in the very same week that
the papers were filed.
This court has a measure
of sympathy with the legal representatives of the appellant who has
to travel to court.
[38]
A copy of this judgment must be furnished to the Legal Practice
Council: Polokwane for consideration.
ORDER
1.
The application to receive further evidence on
appeal in terms of section 19 (1) (b) of Act 10 of 2013 is dismissed.
2.
The appeal against the order dated 4 April 2024
in Praktiseer Case no A291/2024 is struck from the roll.
3.
The proceedings conducted on 5 June 2024 in the
bail application on new facts by the appellant are set aside.
4.
The application for bail on new facts is
referred back to the magistrate Praktiseer for hearing before another
magistrate.
5.
The registrar is directed to forward a copy of
this judgment to the Legal Practice Council: Polokwane.
G.C MULLER
JUDGE OF THE HIGH
COURT,
POLOKWANE: LIMPOPO
DIVISION
APPEARANCES
FOR
THE APPELLANT
:
Ms Y OMAR
Mr
Z OMAR
INSTRUCTED
BY
:
ZEHIR OMAR ATTORNEYS
FOR
THE RESPONDENT
:
Adv M RATSHIBVUMO
INSTRUCTED
BY
:
DPP, POLOKWANE
DATE
OF HEARING
:
06 SEPTEMBER 2024 and 13 SEPTEMBER 2024
DATE
OF JUDGMENT
:
20 September 2024
[1]
Act
51 of 1977 (Hereinafter “the CPA”).
[2]
On 4
April 2024.
[3]
On 7
May 2024.
[4]
The
application on new facts was dismissed on 5 June 2024.
[5]
1996
(1) SA 725 (CC).
[6]
Supra.
[7]
Par
62.
[8]
Par
69.
[9]
757I-758E.
[10]
1972
(1) SA 200
(N) 203G-H.
[11]
1985
(4) SA 539 (BGD).
[12]
1969
(1) SA 650 (O).
[13]
1977
(2) SA 829 (A).
[14]
s
60(11B)(c) of the CPA.
[15]
Wahlhaus
and Others v Additional Magistrate Johannesburg and Another
1959
(3) SA 113
(A) 119H.
[16]
There
is no indication that the letter was also forwarded to the
respondent.
[17]
Paragraphs
1-6 are introductory remarks with reference to the “Dim View”
taken.
[18]
Act
10 of 2013.
[19]
1990
(2) SA 679 (SCA).
[20]
692A-D.