About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 317
|
|
S v Thabethe and Others (15/2023) [2024] ZAFSHC 317 (7 August 2024)
FLYNOTES:
CRIMINAL – Fair trial –
Delay
–
Court
investigation into unreasonable delay – Alleging State is
reason for the delay – Prosecution failed to comply
with its
duty – Whether accused supplied with whole content of
information available to it – Facts central to
case being
electronic data – Information on hard drive supplied by
State to defence could not be properly accessed
by defence –
Accused entitled to such information before trial commences –
Incurable prejudice to accused –
Matter struck from roll –
Criminal Procedure Act 51 of 1977
,
s 342A.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 15/2023
In
the matter between
The
State
and
Mbana
Peter
Thabethe
First
Accused
Seipati
Silvia Dlamini
Second
Accused
Takisi
Jankie Masiteng
Third
Accused
Kamal
Vasram
Fourth
Accused
Mosebenzi
Zwane
Fifth
Accused
Ronica
Ragavan
Sixth
Accused
Ugeshni
Naidoo (nee Govender)
Seventh
Accused
Sahara
Computers (Pty) Ltd
Eighth
Accused
Aerohaven
Trading (Pty) Ltd
Ninth
Accused
Oakbay
Investments (Pty) Ltd
Tenth
Accused
Linkway
Trading (Pty) Ltd
Eleventh
Accused
lslandsite
Investments 180 (Pty) Ltd
Twelfth
Accused
Westdawn
Investments (Pty) Ltd
Thirteenth
Accused
Mabengela
Investments (Pty) Ltd
Fourteenth
Accused
Confident
Concept (Pty) Ltd
Fifteenth
Accused
Neutral
citation:
The
State v Mbana Peter Thabete and 14 Others
Coram:
Reinders
J
Heard:
5
and
6
August
2024
Delivered:
7
August 2024
Summary:
Criminal
procedure -
investigation in terms of
s
342
of the
Criminal Procedure Act 51 of 1977
-
discovery
-
right to expeditious trial.
ORDER
1.
The matter is struck from the roll in
respect of all the accused before court.
2.
The matter may not be resumed or instituted
de novo without the written instruction and authorization of either
the National Director
of Public Prosecutions, alternatively, the Head
Investigating Directorate of the National Prosecuting Authority, and
in the further
alternative, the Director of Public Prosecutions: Free
State.
JUDGMENT
Reinders
J
[1]
The fifteen accused before me, according to the
indictment in my possession, are to stand trial on various charges.
Although all
the accused are not charged in respect of all the
counts, it suffices to mention the charges include counts of fraud,
money laundering
and corruption running into millions of rands.
[2]
The summary of the substantial facts, as required
by
s 144(3)
of the
Criminal Procedure Act 51 of 1977
, as amended
(hereafter referred to only as 'the Act') explaining the various
counts, consists of 190 pages. The list indicating
the proposed
witnesses to be called on behalf of the prosecution reveals the names
of at least 177 witnesses.
[3]
Without being presumptuous, I would think it fair
to state that the accused stands trial in what
has
become
generally
known as
a
'State
capture'
case, and
in
casu, in
particular with reference to the Estina Dairy Project.
[4]
The matter is enrolled before me and was set down
for trial on the continuous roll to run from 5 August 2024 at least
until 13 September
2024. It was as such
enrolled when the matter was certified trial ready by the Judge
President of this Division almost a year ago,
on 29 August 2023.
[5]
On 30 July 2024 accused seven to sixteen, by way
of affidavits, drew my attention thereto that the prosecution has
failed to comply
with its duty to supply the various accused with the
whole of the contents of information available to it. They aver that
they
cannot therefore properly consult and prepare for purposes of
trial, and requested me to hold an investigation, as is provided for
in
section 342A
(1) of the Act,
and to find
that the State is therefore the reason for the delay in the
prosecution.
[6]
I am being urged to make an order that the matter
should be struck from the roll, and that the prosecution not be
resumed without
the written instruction and authorisation of the
National Director of Public Prosecutions. Similar complaints were
hereafter received
by the rest of the accused, save for accused six,
who indicated by way of a letter that it abides by the Court's
decision.
[7]
On the morning of 5 August 2024, shortly before
the matter was called, opposing papers were filed by the prosecution.
I afforded
the accused until 6 August 2024 with an opportunity to
reply thereto. In some instances, the Defence prepared short heads of
argument
for my consideration, for which I am indebted.
[8]
The
Apex court in
Ramabele
v Sand related
matters
[1]
(Ramabele)
stated
at para 56 the following:
'The overarching aim of
section 342
A is to provide courts with a statutory mechanism to
avoid unreasonable delays in the finalisation of criminal
proceedings.
Section 342
A empowers a court to examine the reasons
for the delay. In order to ascertain whether the delay is reasonable
or not, courts consider
an array of factors, as is stipulated in
section 342A (2).'
[9]
The
Ramabele
decision
in para 57 also clearly
states that:
'
Section
342A
is the vehicle for giving practical application to the
constitutional right entrenched by section
35(3){d)
,
which guarantees to an accused an
expeditious trial which should begin and be concluded without
unreasonable delay. Where an accused
is of the view on proper grounds
that his rights are being infringed, he or she is
entitled to bring an application in terms of
section 342
A.'
I must therefore consider
whether the delay viewed in the totality of the evidence presented
before me can meet the required threshold
of unreasonableness.
[10]
In
Ramabele,
in
para 58, referred to earlier, the Constitutional Court referred to an
earlier decision in
Sanderson
v Attorney-General Eastern
Cape,
[2]
and made the following observations
in
para
59
regarding
what
would
constitute
an
'unreasonable
delay'.
'Therefore, the approach
is as follows: courts ought to consider whether a lapse of time is
reasonable by considering an array of
factors, including:
a)
The nature of the prejudice suffered by the
accused;
b)
The nature of the case; and
c)
Systemic
delay.
Courts have developed
further factors, such as the nature of the Defence, as well as the
interest of the family and/or the victims
of the alleged crime. A
proper consideration of these factors requires a value judgment with
reasonableness as the qualifier. Furthermore,
it is a fact specific
enquiry.'
[11]
I have read all the affidavits and carefully
considered the arguments on behalf of all parties. I do not intend to
repeat each and
every detail thereof herein. The case law to which I
was referred was thoroughly considered by me.
[12]
As
a
starting
point,
the
prosecution
in
its
opposing
affidavit
explains
that
the Defence was
supplied with certain documents as far back as 2023. In its opposing
affidavit the prosecution explains, in from
the answering affidavit:
'18. This disclosure in
January 2023 also included affidavits relating to the search and
seizure of documents. Those affidavits
are marked as A 94, A 95, A
189 and A 312 in the docket (1. Evidence File: Digital Forensic). All
the data referred to above forms
part of the contents of a five-
terabyte hard drive which was provided to the Defence on 19 June
2024.
19. The ' Gupta Leaks'
emails consist of data recovered and retrieved from the hard drive,
which I will refer to in this affidavit
as the 'original harddrive
disk' ("Original HOD").
The State engaged with
the Commission in terms of
section 71
to obtain the HOD drive. Only
hard copies were obtained, necessitating that a further process be
undertaken.'
The
opposing
affidavit
further states: 'On 29 August 2023 ...
'
'..
the matter was remanded for trial from 5 August to
13 September 2024. On the said date, the
State
provided
the
Defence
with additional
disclosure
consisting
of
32 affidavits. The
State
also indicated
to
the
Court
that there was additional
electronic
disclosure
(data) still
outstanding, the original HOD.' For purposes of obtaining the HOD
drive, the State embarked on a mutual legal assistance
process with
the Netherlands counterparts, following which the HOD drive was
obtained on 1 March 2024.
[13]
It is then explained via the State that the expert
who was initially engaged, one Mr CP Lourens, took possession of the
original
HOD, and the forensic copy thereof on the 2 May 2024. The
State requested him to do a comparison of hash values and provide a
copy
of the
forensic
copy
created in
the
Netherlands
from the
original HOD.
Unfortunately, Mr. CP Lourens fell ill on 23 May 2024. It then states
that:
'The
services
of
another
service
provider
were
obtained.
That
person
austensibly took
possession
of the
forensic copy of the original HOD for purposes of authentication and
preparing a copy which had to be provided to the Defence.
Then once
the expert had concluded the above process, on 19 June 2024 email
communication
was sent to all the legal
representatives of the accused to provide five- terabyte hard drives
to the State to enable us to download
the data relating to the search
and seizure (1. Evidence File) and forensic copy of the original HOD
(2. Evidence File). The State
received the five-terabyte hard drives
from the legal representatives between 24 June 2024 and 5 July 2024.
The hard drives containing
the disclosures were handed back to the
legal representative
of the accused between
5 July and 16 July 2024.'
[14]
I
deem
the
following
to
be
important
also
from
the
State's
answering
affidavit:
'On 9 July 2023 we
received a letter from Krause Attorneys, attached hereto marked B,
indicating that ... (and of course there is
an error, it should be
"2024") ...indicating that, amongst others, they had
encountered difficulty in accessing the contents
of the 5-terabyte
hard drive, some portions are accessible, and some are not. The State
is called upon to explain the reason for
the late disclosure for
supplying disclosure which cannot be accessed, and how the accused
are supposed to prepare for trial on
inaccessible and unreadable
disclosure.'
[15]
Hereafter it was indicated by the prosecution that
it did attempt to make provision for some of its IT specialists to
assist. It
is then clear from certain email communication, that the
following occurred: there was an email by Adv Serunye subsequent to
Krause'
s letter, dated 15 July 2024, in which he indicated the
following:
'In our endeavour to
ensure that there are no unnecessary delays in the trial commencing
as scheduled, and to help your clients
to avoid incurring costs to
procure the required software, we have engaged our service provider
to download the necessary software
in a CD to enable you to access
the contents of 2. Evidence Item. The messenger must bring back the
five-terabyte harddrive to
enable our service providers to load a
readable format of the forensic copy (1. Evidence Item).'
[16]
Of great importance
is
the prosecution's
own acknowledgement that:
'The
case
against
the
accused
is
very
complex,
it
is
the
type
of
case
requiring
the
testimony
of
experts, forensic accountants, computer experts and handwriting
experts. It is a type of case requiring detailed analysis of
documents and computer data, thus the investigation of this type of
case will naturally take longer to complete than other less
complicated cases, and further its acknowledgement that 'the accused
ought to be afforded enough time to prepare for the electronic
data
forming part of this latest disclosure.'
[17]
Furthermore
it
was also stated by the prosecution in their
answering
affidavit and stressed: 'The
facts central to
this case is
electronic data.'
[18]
The undisputed factual position is that the
information on the said five-terabyte hard drive supplied by the
State to the Defence
could not be properly accessed by the Defence.
This position has remained unchanged even at the time of me now
handing down the
judgment.
[19]
It
begs no explanation that if it was not able to be opened, it is akin
to no discovery at
all.
It has been conclusively held by the Apex court almost three decades
ago in
Shabalala
&
Others
v Attorney-General of the Transvaal
&
Another
[3]
(Shabalala)
that
an accused is entitled, before the trial starts, to be supplied with
all the information and documentation in possession of
the State, as
is guaranteed by the Constitution.
[20]
It also became common cause that each of the
accused would be entitled to the information or discovery as
contained in the five-
terabyte hard drive before the trial
commences. The prosecution deemed this information so essential and
necessary in proving their
case that it did intend supplying it to
the Defence.
[21]
The prosecution, however, argued that the
information
is not relevant at this stage,
and that it has taken so-called 'precautionary safety measures' to
curb any potential prejudice in
that the prosecution, during the
present six weeks set down for trial, does not intend to adduce any
evidence concerning the documents
that cannot be opened.
[22]
Moreover, so the argument went, not all of the
documentation contained in the five terabyte hard drive is
relevant for purposes
of trial, or put differently, there is
documentation that is irrelevant for purpose of trial.
[23]
In response to a pertinent question put by
me to counsel appearing for the prosecution
on
whether he has himself been able to
access
all the information on the five terabyte hard
drive, the answer was regrettably somewhat evasive, to the extent
that I was
informed, 'It had been seen on the so-called "Gupta
leaks" information', but eventually
it
became
evident
to
me
that
the
prosecution
itself
has
not
seen
all
the documents
contained in
the hard
drive.
[24]
I have various concerns with the
aforementioned approach by the prosecution. Firstly, it does not lie
in the mouth of the prosecution
to tell the Defence which documents
they should look at for purposes of consulting and considering its
defences. On the contrary,
a legal practitioner
who
thoroughly assists her or his client needs to study all the
documentation available to consider her or his client's position,
and
the merits and/or demerits thereof. As indicated, the Constitutional
Court in
Shabalala
confirmed
the constitutional right of an accused to be provided with all
documentation before the start of the trial.
[25]
I find it difficult to comprehend an
argument, therefore, that the prosecution can prescribe selectively
which information or documentation
it deems to provide and to
consider the sufficiency thereof. At the commencement of the trial
there was no application for a postponement
before me. It does,
however, not mean that I could not consider the same. The
prosecution, however, insisted that it was ready
for trial.
Notwithstanding the history of this matter and the fact that some of
the accused were arrested for the first time as
far back as 2018, the
prosecution was not able to tell me when the required information and
discovery would be
properly made.
[26]
The prosecution' s intention was to start
with the trial. I can only speculate on the legal consequences
and possible prejudice to the accused when the
trial gets to the stage when documents and information contained in
the mentioned
files might become relevant whilst remaining
inaccessible. But more important, I am now fully aware of the
predicament of the accused
by not having had access to the
documentation that the prosecution, on its own version, undertook to
furnish to the Defence with
via electronic data, but failed to do so.
To allow the trial to start might result in incurable prejudice to
the accused, and a
continuous wrong in contravention of the
Constitution and the accuseds' right to a fair trial.
[27]
In conducting an investigation
as
envisaged in section 342A of the Act, I may make any such order as I
deem fit with the purpose of eliminating any delay or prejudice
arising from it.
[28]
In a belated attempt to oppose the application for
the matter to be struck from the roll, the prosecution suggested some
kind of
a postponement. During submissions made by the Defence, I
made it clear that one of the remedies afforded to me in terms of
section
342A is that I may have the matter postponed, to which the
Defence, with reference to all papers filed, argued why such an
option
would not curb the prejudice that their clients would suffer.
[29]
I have considered duly an order to postpone
the matter, such an order to be subject to
conditions as I deem fit. I have, however, already indicated that the
matter cannot be
postponed indefinitely, where even the prosecution
cannot reasonably furnish me with information as to when it would be
in a position
to properly access and supply the documents.
[30]
It goes without saying that, even should such a
proper discovery of the information on the five-terabyte hard drive
be made now,
it is undeterminable how long it would take the Defence
to properly investigate the voluminous content of the hard drive. It
goes
without saying that the legal representatives for the accused
must then still consult with their clients, and might even decide
to
request further particulars from the State.
[31]
In assessing whether the delay, which is
inevitable in view of what I have alluded to herein above, is
unreasonable, I have taken
into account the factors as prescribed in
section 342A (2) under subsections
(a)
to
(i).
The golden thread running through the
founding and replying affidavits filed by the accused paints a
picture of the adverse effect
on the personal circumstances of the
accused. This includes some having lost their employ, and subsequent
financial constraints.
Although they are also desirous of having the
matter brought to finality, they do not desire to do so at the cost
of the infringement
of their constitutional right to a fair trial. It
can be accepted that prejudice would also lie in the continuous
financial implications
of having the legal
representatives on brief to defend them.
[32]
The prosecution argued that the factors mentioned
by me herein are irrelevant for the purposes of adjudicating
the said application before me. This cannot be
correct. It is trite that these are some of
the
considerations
or factors which I
should consider and take into account.
[33]
The undetermined and consequent lengthy duration
of the delay is evident from what has been concluded by me herein
above. Although
I do not intend to lay the blame for the delay on any
specific person, it can, in my view, not be gainsaid that the late
furnishing
and eventual inability to access the documentation on the
five-terabyte hard drive did, in fact, cause this delay. The
prosecution
failed to proffer any proper explanation in its answering
affidavit, or even in court, of the details on accessing of the
five-terabyte
hard drive from the Netherlands only in May 2024, after
undertaking at the pre-trial conference to do so some nine months
earlier.
[34]
The seriousness, extent and complexity of the
charges cannot be gainsaid, nor can the interest of the public (more
specifically
the alleged victims to wit farmers of this province) in
having this matter finalized, and bringing those that are implicated
of
having committed crimes emanating from the Estina Dairy Project
before court, be denied.
[35]
However, this matter should be conducted in full
compliance and adherence to the Constitution. Having taken all the
above factors
into consideration, I conclude that the delay caused by
the prosecution is indeed under the circumstances unreasonable for
the
reasons as I have fully explained. The prosecution argued that
should the Court make an order in terms of s 343A(3)(c), as requested
it, 'effectively prevents the prosecution from presenting society's
complaint against alleged transgressors of society's rules
of
conduct.'
[36]
The relief sought by the Defence is not that of a
stay of prosecution. I am satisfied that the trial cannot proceed in
these circumstances;
it can most certainly not be postponed
indefinitely. The only appropriate order to make ,in my view , is an
order as prayed for
in terms of section 342A(3)(c), which provides
the remedy where the accused has not pleaded yet, as in this matter.
The Director
of Public Prosecutions: Free State and the Head of the
Investigating Director of National Director of Public Prosecutions
can still
overview the prosecution and declare that the existing
constraints are, by then, historic once the investigation is
completed,
and the Defence is in possession of all the information
necessary to properly prepare for trial. The relief that I intend
granting
is not one barring the prosecution. I, therefore, make the
following order:
ORDER
1.
The matter is struck from the roll
in respect of all the accused before court.
2.
The matter may not be resumed or instituted
de novo without the written instruction and authorization of either
the
National
Director
of
Public
Prosecutions, alternatively, the Head
Investigating Directorate of the National Prosecuting Authority, and
in the further alternative,
the Director of Public Prosecutions: Free
State.
C
REINDER, J
On
behalf of the State:
Adv T
Motau SC
Adv
Serunye
Adv
Nhlatywayo
Instructed
by:
STATE
BLOEMFONTEIN
On
behalf of the Accused 1:
Mr L
Mantsha
Instructed
by:
Lungisani
Mantsha Attorneys.
c/o
Bokwa Attorneys Inc.
BLOEMFONTEIN
On
behalf of the Accused 2:
Adv
Edeling SC
Instructed
by:
Bokwa
Attorneys Inc.
BLOEMFONTEIN
On
behalf of the Accused 3:
Adv
Motselebane
Instructed
by:
ZB
Moletsane Attorneys.
BLOEMFONTEIN
On
behalf of the Accused 4:
Adv
Ramlal
Instructed
by:
Abdool
and Associates.
c/o
Bezuidenhouts Inc.
BLOEMFONTEIN
On
behalf of the Accused 6:
Adv L
Hodes SC
Instructed
by:
Denga
Incorporated.
BLOEMFONTEIN
On
behalf of the Accused 7-16:
Adv M
Helens SC
Adv D
Joubert SC
Instructed
by:
Krause
Attorneys Inc.
c/o
Honey Attorneys.
BLOEMFONTEIN
[1]
Ramabele
v S; Msimango v S
[2020]
ZACC 22; 2020 (11) BCLR 1312 (CC)
[2]
Sanderson
v Attorney-General, Eastern Cape
[1997]
ZACC 18; 1997 (12) BCLR 1675.
[3]
Shabalala
&
Others
v Attorney-General
of
the Transvaal
&
Another
[1995]
ZACC 12
; 1996 (1) SA725.