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[2020] ZASCA 80
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Director of Public Prosecutions, Northern Cape v Brooks and Others (505/19) [2020] ZASCA 80 (2 July 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 505/19
In
the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS,
NORTHERN
CAPE APPELLANT
and
ASHLEY MARK
BROOKS FIRST
RESPONDENT
PATRICK JOHN
MASON SECOND
RESPONDENT
MANOJKUMAR DAYABHAI
DETROJA THIRD
RESPONDENT
KOMALIN PACKIRISAMY
FOURTH
RESPONDENT
AHMED ISHABHAI
KHORANI FIFTH
RESPONDENT
ANTONELLA NATASCIA
FLORIO-POONE SIXTH
RESPONDENT
KENYADITSWE MCDONALD VISSER SEVENTH
RESPONDENT
WILLEM JANK
WEENINK EIGHTH
RESPONDENT
JOSEPH SAREL VAN
GRAAF NINTH
RESPONDENT
CARL STEVE VAN
GRAAF TENTH
RESPONDENT
KEVIN TREVOR
URRY ELEVENTH
RESPONDENT
TREVOR
PIKWANE TWELFTH
RESPONDENT
FRANK SAMUEL
PERRIDGE THIRTEENTH
RESPONDENT
Neutral
citation:
Director
of Public Prosecutions, Northern Cape v Brooks and Others
(Case
no 505/19)
[2020] ZASCA 80
(2 July 2020)
Coram:
PETSE DP, MOCUMIE AND MOLEMELA JJA
AND LEDWABA AND EKSTEEN AJJA
Heard
:
This appeal was disposed of without an oral hearing in terms of
s 19(a)
of the
Superior Courts Act 10 of 2013
.
Delivered
:
This judgment was handed down
electronically by circulation to the parties' representatives by
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 10h00 on 2
July 2020.
Summary:
Permanent stay of
prosecution – recusal by trial judge before finalisation of
trial – discretion of Director of Public
Prosecutions in
respect of proceedings
de
novo
–
application for stay of prosecution triggered by delay caused by
recusal – reasonableness of delay – no trial
prejudice
established.
ORDER
On
appeal from:
Northern
Cape Division of the High Court, Kimberley (Daffue J sitting as court
of first instance):
1 The appeal is upheld.
2 The order of the high court is set aside and replaced
with the following:
‘
The application is dismissed.’
JUDGMENT
Eksteen AJA (Petse DP concurring)
[1]
The appeal, which proceeded with leave granted by this court, is
against an order by Daffue J in the High Court, Kimberley (the
high
court), that the prosecution against the thirteen respondents
(collectively referred to as ‘the respondents’)
instituted by the Director of Public Prosecutions (DPP) as set out in
the indictment dated 5 August 2016, containing 139 counts,
be
permanently stayed. The parties agreed that the appeal be considered
in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
, without an oral hearing. The
question in the appeal is whether the order was correctly granted in
accordance with the applicable
legal principles.
[2]
The application (the stay application) followed the recusal of Pakati
J (the trial judge) at an advanced stage of the criminal
proceedings.
The consequence of the recusal is that the proceedings before the
trial judge had been rendered a nullity. If the
DPP chose to proceed
with a prosecution it would have had to start
de
novo
. However, the
respondents contended that their constitutional right to a fair trial
within a reasonable time, guaranteed in s 35(3)
(d)
of the Constitution
of 1996 (the Constitution), had been infringed by irregularities
giving rise to delay, and eventually the recusal
of the trial judge.
The timeline of the events and the reasons for the various delays,
postponements and the eventual recusal of
the trial judge are
therefore central to the determination of the appeal.
[3]
The facts leading up to the application are as follows. The
respondents had all been engaged in one way or another with the
diamond industry. During February 2012 the Director for Priority
Crimes Investigation Unit (DPCI) in the Northern Cape had commenced
a
covert operation under the name ‘Project Darling’
(the investigation) to investigate allegations of contraventions
of
the Diamonds Act.
[1]
The investigation proceeded in two phases. In the first phase an
agent had been used to purchase unpolished diamonds from a number
of
identified targets. This phase of the operation had been conducted
over a period of approximately a year terminating in February
2013.
In the second phase of the operation, which spanned a further
12 months, an agent had sold State owned diamonds to identified
targets. Where necessary, authorisation in terms of s 252A of
the Criminal Procedure Act, 51 of 1977 (the CPA) had been obtained
from the DPP for the use of the agents for entrapment. The operation
was completed in February 2014.
[4]
On 22 August 2014 nine persons were arrested and charged. They had
appeared before the Magistrate’s Court, Kimberley (the
magistrate’s court) and bail was fixed. A further thirteen
persons had been arrested on 25 August 2014 and on the
same
day they appeared, together with the original nine arrestees
(collectively referred to as the accused) in the magistrate’s
court where bail was fixed in respect of the new arrestees and the
matter was postponed to 13 October 2014. Two further persons
had
subsequently been arrested and released bail.
[5]
On 13 October 2014 the matter had been postponed to 28 January 2015
for further investigation. In consequence of the further
investigation charges were withdrawn against one accused. The
prosecution had indicated its intention to charge some of the
accused,
including the respondents, with racketeering and accordingly
sought and obtained an order that their trial be separated from the
remaining accused. In order to proceed with a charge of racketeering
a certificate had to be obtained from the National Director
of Public
Prosecutions (NDPP) in terms of s 2(4)
[2]
of the Prevention of Organised Crime Act 121 of 1998 (POCA). It
further transpired that certain of the alleged offences had been
committed in Gauteng and others in the Northern Cape. The prosecutor
recorded that he was awaiting input from the accused in respect
of
the intended centralisation of these charges, which the NDPP would
have had to consider before issuing a s 2(4) certificate.
He
accordingly sought a further postponement of the trial.
[6]
The defence had, however, objected to the postponement and urged the
magistrate to invoke the provisions of s 342A(3)
(c)
[3]
of the CPA, which was opposed by the State. The application had been
refused and the matter postponed to 15 May 2015. The State
was put to
terms to obtain the necessary certificate in terms of s 2(4) of POCA
before the next appearance. This, it had duly done.
[7]
An agreement was reached on 28 January 2015 with the legal
representatives of all the accused that the trial would be set down
for 19-30 October 2015 and 9-20 November 2015. The dates had been
agreed to suit the various legal representatives and, as the
envisaged trial was complex, sufficient time had been required for
preparation. I have alluded earlier to the duration of the
investigation. The transactions involved in the charges amounted to
approximately R28 million and the consolidated docket prepared
in
this matter encompassed 3 308 pages.
[4]
Notwithstanding the agreement in respect of the trial dates the
matter had been postponed, provisionally, to 15 May 2015 in
the
magistrate’s court.
[8]
In the interim, during February 2015, a number of the accused had
submitted representations to the office of the NDPP objecting
to the
centralisation of charges and claiming a misjoinder in the
indictment. However, the NDPP had been satisfied, on a review
of the
dockets, that the issue of a certificate in terms of s 2(4) of POCA
authorising the prosecution on charges of racketeering
and the
centralisation of the charges was appropriate. The certificate had
been handed in at the appearance on 15 May 2015
and the
prosecution requested that the matter be postponed to 27 July in
order to be transferred to the high court for trial on
the agreed
dates.
[9]
The indictment had been provided to the accused on 15 June 2015 and
the prosecution advised on 30 June 2015 that an electronic
copy of
the docket was ready (a copy thereof had been provided to the accused
between 30 June 2015 and 9 July 2015).
When the matter was
transferred to the high court on 27 July 2015 there were 20
accused and they were instructed to appear
on 8 September 2015 for
pre-trial procedures. At that stage Mr L Hodes SC had then recently
been briefed on behalf of certain of
the respondents. The previously
agreed dates were not suitable to him. The parties had agreed to
approach the Judge President to
arrange new dates.
[10]
At the pre-trial procedure the accused had indicated that they would
not be in a position to proceed to trial as they contended
that they
had not been furnished with full disclosure of the docket. In
particular, they had contended that transcripts of audio
and video
images, copies of the original s 252A applications, the Part B and C
sections of the docket and some of the statements
contained in the
docket had not been provided to them. The prosecution denied their
entitlement to further disclosure. The parties
agreed in the
circumstances that any preliminary and
in
limine
applications
which any of the accused may have wished to bring would be heard in
the week of 19-23 October 2015, being the first
week of the
previously agreed trial period. In order to accommodate Mr L Hodes
the Judge President in Kimberley, directed that
the trial would
proceed on the running roll from 18 April 2016 to 23 September 2016.
[11] On 19 October 2015 counsel on behalf of the various
accused had brought applications for:
(i) the quashing of the charges and relief as envisaged
in s 342A(3)
(c)
;
(ii) the disclosure of documentation
which formed part of the s 252A applications
[5]
as well as Parts B and C of the case docket;
(iii) the disclosure of further statements allegedly
contained in the dockets; and
(iv) further particulars.
All
of these were opposed. Argument was not completed by 23 October 2015
and the matter was postponed to 4 and 5 February 2016.
Again it was
not completed and the applications were further postponed to 20 April
2016 when argument was finalised. In the course
of argument Mr
Roothman, on behalf of the State, had contended that the State had
disclosed all witness statements.
[6]
In respect of the further documentation sought by the accused, Mr
Roothman had argued that some were protected from disclosure
by the
Police Act and others were privileged and that counsel for the
accused were accordingly not entitled to them. Mr Roothman
had
asserted that he had provided more than what he was required to do.
[12]
On 16 May 2016 the trial judge had ruled on the applications and
ordered the DPP to provide further particulars on certain
limited
points and to update the summary of substantial facts. The remainder
of the applications had been dismissed. In consequence
of these
applications the agreed trial date had come and gone. Two of the
respondents had indicated their intention to bring further
applications to compel further particulars and the trial dates were
rearranged for 27 July-12 August 2016, with certain days excluded.
[13]
Another application for further particulars was heard on 17 June
2016. It had been prompted by a newspaper article which had
appeared
on 7 April 2016 stating that Mr Linton Jephta (Jephta), a
crucial State witness and one of the agents who had
been used in the
entrapment during the investigation, would refuse to testify unless
the Hawks paid him R4 million before the trial
commenced. The article
recorded that he had already received an amount of R1 million
[7]
and that a spokesperson on behalf of the Hawks had indicated that
Jephta would only receive the further R4 million after he had
testified and the case had been finalised. The documentation upon
which the article relied had apparently been sourced from Mr
Korff
(Korff).
[14]
This application too, had been opposed. The papers do not reveal the
particularity which the accused had sought to compel,
but it is
evident that the documentation provided by Korff was central to the
argument. Roothman had protested that the trial court
ought not to
rely on newspaper articles and he had asserted that documentation
provided by Korff was fraudulent. He had contended
that Korff would
not testify on behalf of the State and that the documents provided by
him were privileged and covered by a non-disclosure
agreement. Thus,
he had argued that the documents were inadmissible fraudulent
documents. One of the assertions which Korff had
made was that
Warrant Office Potgieter, the erstwhile investigating officer, had
received various payments into his personal bank
account in relation
to the matter.
[8]
The trial judge ruled that these documents could only be dealt with
during the trial and that it would have been premature to deal
with
them at that stage.
[15]
At an undisclosed stage the parties were advised that the trial would
only commence on 1 August 2016. The circumstances giving
rise to this
change do not appear from the papers. On 1 August 2016, however, the
legal representatives on behalf of seven of the
accused had
approached the trial judge to request time as they intended to
negotiate with the prosecution in respect of a
possible plea in terms
of s 105A of the CPA. The matter had accordingly stood down. On 2
August 2016 they had reached an agreement
with the State and charges
had accordingly been withdrawn against those seven accused. Their
trial proceeded in another court.
The papers do not reveal what the
agreement entailed or what offences these accused had pleaded guilty
to. The respondents were
then the remaining accused in the trial.
[16] These developments had caused the respondents to
seek the recusal of the trial judge (the first recusal application)
based
on the fact that she had learnt that charges had been withdrawn
against certain accused who had agreed to plead guilty to certain
offences. This, they contended, created the perception that they were
also guilty. They further insisted that the indictment had
to be
amended to remove any reference to the seven accused against whom the
charges had been withdrawn.
[17]
The first recusal application had been opposed and dismissed and the
State was ordered to amend the indictment as requested.
The revised
indictment was dated and delivered on 5 August 2016. It is this
document which was referred to in the order of Daffue
J.
[18]
The trial had commenced on 10 August 2016 and on 11 August the
State called Mr Dreyer (Dreyer). During cross-examination
of Dreyer
both Mr M M Hodes SC (for third and eighth respondents) and Mr L
M Hodes SC had wanted the witness to bring an audit
report of the
diamonds kept in the custody of the State Diamond Evaluator. Neither
the witness nor the prosecuting authority had
been in possession of
such an audit and the matter accordingly stood down for the witness
to procure the document from his office.
The following day Dreyer
brought the said audit for the year 2016, presumably the most recent
audit available. Mr M M Hodes, however,
indicated that he had wanted
the report for 2013-2014, which neither the witness nor the
prosecuting authority had in their possession.
Dreyer had accordingly
been requested to procure the document at the next hearing and the
matter was then postponed to 19 September
2016.
[19]
On 19 September 2016 Dreyer had returned to the witness box and
handed the document to the court. Mr M M Hodes, inexplicably,
had no
questions on the document. He indicated, instead, that he required
the audit report for 2010-2011. This request was later
abandoned.
[20]
On 21 September 2016 the State had indicated its intention to call
Mr Lochner, who had downloaded video and audio recordings
from
the recording machine allegedly used by Jephta in the investigation.
The defence objected to the admissibility of the evidence
and on 23
September 2016 the trial court ordered that a trial-within-a-trial be
held to determine the admissibility of this evidence.
The trial had
then been postponed to 30 January 2017. The agreement with
the Judge President, referred to earlier, was
that the trial could
run until 23 September and the postponement at this stage had
therefore been inevitable.
[21]
At the resumption on 30 January 2017 the State had been ready to
commence with the trial-within-a-trial. However, Mr T Price
SC, on
behalf of some of the respondents sought a postponement in order to
consult. The matter had accordingly stood down to 31
January 2017. On
31 January Mr Price brought a formal application for a postponement
to 13 February 2017 as he needed further consultations
which he
contended, ‘will bring the trial to an end’. There were
no objections.
[22]
On 13 February 2017 Mr Price was still not ready and a further
postponement ensued to 15 February 2017. Still Mr Price was
not in a
position to proceed and the matter stood down to 11h30 that morning.
The trial-within-a-trial then commenced and Korff
was called on
behalf of the respondents represented by Mr Price. For reasons which
were not disclosed Mr Roothman had not been
advised of the intention
to call Korff until the morning of 15 February. Korff proceeded
to testify until 17 February 2017,
when he fell ill and the matter
had to be postponed to 28 February. On resumption, the
cross-examination of Korff commenced.
[23]
During the course of Korff’s evidence a substantial volume of
documentation which the State had previously not been favoured
with
had been handed in. Accordingly, on 8 March 2017 Mr Roothman
requested a postponement in order to study the numerous exhibits
handed in by Korff. The respondents objected. The trial court ruled,
however, that by virtue of the complexity of the matter and
the
numerous documents handed in by Korff in the course of his evidence
the interest of justice demanded that the State be afforded
an
opportunity to study the documents and to consult with its witnesses
in respect thereof. The matter had accordingly been postponed
to
27 March 2017 when Korff continued.
[24]
In accordance with a ruling made by the trial judge in respect of the
procedure for the trial-within-a-trial the State then
proceeded to
call its witnesses. An adjournment followed on 31 March 2017 to 8 May
2017. No reason for the postponement is apparent
from the papers nor
was any blame attributed to any party for the adjournment.
[25]
On 8 May 2017 the matter recommenced and counsel on behalf of certain
of the respondents renewed argument in respect of the
disclosure of
the s 252A application. On this occasion the trial judge had ordered
that a redacted version of the application be
furnished deleting the
names of any informers where they appeared in the applications.
[9]
The State complied and the trial proceeded to Thursday 17 May 2017
when it was postponed to 6 November 2017, apparently as
the
State had not been ready to proceed with its next witness on that
day. No reason was advanced for the duration of the postponement
nor
was any blame attributed to any of the parties. On 9 November
2017 the trial had again been postponed, by agreement between
the
parties, to 29 January 2018.
[26]
When the trial court reconvened Warrant Office Potgieter (Potgieter),
the original investigating officer and the handler of
the agent
Jephta was called only in respect of the trial-within-a-trial which,
as I have said, related to the admissibility of
the audio and video
recordings made. On 31 January 2018, however, Potgieter fell ill. He
sought medical attention and a medical
certificate verifying his
indisposition was handed in. The medical opinion expressed that he
was unfit for service until 5 February
2019. The matter accordingly
stood down to enable the State to prepare another witness.
[27]
Mr Botha (Botha), the Acting DPP in the Northern Cape, who had
authorised the applications for s 252A authorisation took to
the
witness stand on 1 February 2018 and his testimony continued to
9 February 2018, when the State requested a postponement
for two
weeks as Mr Roothman’s wife had fallen ill and had been
hospitalised. Notwithstanding the objections by the
respondents a
postponement was granted and the matter recommenced on 19 February
2018.
[28]
Potgieter returned to the witness box and Mr Roothman attempted to
lead his evidence on the content of the video material.
To this an
objection was again raised and argument presented. The court ruled
against the State holding that the content of the
video material
could only be considered during the evidence of Jephta, who still had
to be called by the State. As Potgieter’s
evidence continued he
again complained of illness and said he was suffering severe
headaches. Notwithstanding objections from the
respondents the matter
was adjourned to the following day when medical opinion again
recommended that Potgieter was not fit to
continue. Whilst Mr
Roothman had diligently prepared a standby witness this too had been
to no avail as the standby witness fell
ill and a medical certificate
in this regard was tendered.
[29]
In these circumstances Mr Roothman was compelled yet again to seek an
indulgence. The respondents again protested and they
applied for a
ruling that the delay in finalising the matter was unreasonable and
that, in terms of s 342A(3)
(d)
of the CPA, the proceedings should continue and be disposed of as if
the case for the prosecution had been closed.
[10]
Their application in this regard was unsuccessful as the trial court
ruled that the delay had not been foreseeable. The matter
was
accordingly postponed to 12 March 2018.
[30]
At the resumption, Mr Roothman called Colonel Serfontein (Serfontein)
who had conducted cellphone data analyses. Counsel for
the
respondents objected to his evidence on the basis that a statement
prepared by Serfontein had been presented to them at the
eleventh
hour. Mr Roothman acknowledged this to be so. The statement, however,
was not a statement which had been contained in
the docket and was an
additional statement which had subsequently been prepared.
[11]
The matter accordingly stood down to the following day when the trial
proceeded to 16 March 2018, which had been the end of that
session.
Trial dates could not be arranged for the second term in 2018 as the
trial judge was on long leave.
[31]
The trial reconvened on 31 July 2018 and the prosecution had fully
consulted and was ready to present the evidence of Jephta
when they
were informed that some of the respondents intended to bring an
application for the recusal (the second recusal application)
of the
trial judge. The second recusal application had a history of its own.
On 14 August 2016, shortly after the commencement
of the evidence,
the trial judge had been approached by Mr Gugu (Gugu), a Captain in
the South African Police Service stationed
at Kimberley. Gugu who was
described by the trial judge as ‘my home boy’ had
been well-known to her. He reported
an approach by one Khaya, a
diamond dealer in Kimberley, who had advised that he was aware of the
close association between the
trial judge and Gugu. Gugu said that
Khaya had requested him to speak to her to find out what she would
want from the respondents
for their problem to go away. She rejected
the offer whereupon Gugu had told her that he was concerned for what
could happen to
her if he were to inform Khaya that she did not want
anything from them. He had advised that Khaya was aware that she
drives a
black Jeep with a GP registration number and Gugu
suggested that she refrain from using the vehicle for her own safety
and
that of her children.
[32] The trial judge had duly reported the matter to the
Director of Security at the Office of the Chief Justice. The Office
of
the Chief Justice in turn, had requested the DPP on 16 August 2016
to request the police to investigate the matter. An investigation
docket had been opened and investigated and on 12 June 2018 the
DPP had addressed a letter to the legal representatives of
the
respondents. The letter recorded:
‘
THE STATE VERSUS: KHAYALETU CHARLES
TUBANE WITH REGARD TO THE STATE VERSUS BROOKS AND OTHERS ENQUIRY NC
DPCI CAS 04/08/2016
(DEFEATING THE ENDS OF JUSTICE/CORRUPTION)
1. This office received information from the Assistant Director,
Security, attached to the Office of the Chief Justice, that there
was
an attempt to unduly influence or bribe the Honourable Judge Pakati
in relation to the Brooks matter and that her safety might
have been
endangered.
2. An Enquiry docket with reference number NC DPCI CAS 04/08/2016 was
opened and investigated by the Serious Corruption Investigations
Unit, South African Police Service.
3. According to the information, the suspect in this matter was a
person by the name of Khayaletu Charles Tubane.
4. After a protracted investigation, the Enquiry docket was finally
submitted to this office for a decision. The office declined
to
prosecute on 21 May 2018, based on the available evidence.
5. In the interests of justice and transparency
you are accordingly informed.’
[33]
The respondents had immediately requested a copy of the docket
relating to the matter which had been provided on 23 July 2018.
On
31 July 2018 however, Mr Roothman provided four additional
statements by Jeptha which had not previously been provided
and which
appear to have been the subject of a separate enquiry. These
statements bear the dates 27 June 2016, 26 August
2016 and
6 March 2018, whilst one statement was undated. In these statements
Jeptha related how he had been approached by and met
with persons,
including one Eddy Poone, previously a co-accused and the husband of
the sixth respondent, and offered substantial
amounts of money not to
testify. Self-evidently these events may have impacted on the
evidence of Jephta and were relevant to his
cross-examination.
[34]
Furthermore, on 20 July 2018 the DPP had provided the respondents
with two compact discs (CDs) containing audio and video material
of
two conversations which had allegedly taken place between Mr Ashley
Brooks, the first respondent (Brooks) and Jephta. These
had not
previously been provided and Mr Barnard, for the DPP, has explained
that they were not previously in possession of the
DPP. These CDs, he
explained, had been discovered on a laptop computer which had
previously been used by Potgieter while he had
been the investigating
officer.
[35]
All of this had triggered the second recusal application. Pakati J
obliged. At the time of her recusal the trial-within-a-trial
relating
to the admissibility of video and audio material of the entrapment
had remained incomplete. Potgieter’s evidence
had been
incomplete and Jephta, the agent, was yet to testify. Not all the
respondents supported the second recusal application
and some of them
actively opposed it. The consequence of the recusal by the trial
judge, as I have said, is that all the proceedings
before her were
nullified. The application for the stay of prosecution had followed
just two weeks after the recusal.
[36]
In the stay application the parties provided separate timelines which
reflected certain factual disputes relating to the reasons
for the
various postponements and delays. The stay application sought final
relief by way of application proceedings which, generally,
could only
have been granted if those facts averred by the applicants
(respondents in the appeal) in their affidavits, which had
been
admitted by the respondent (appellant), together with the facts
alleged by the appellant, justified such an order.
[12]
In narrating the facts giving rise to the recusal of the trial judge
I have adopted this approach
.
[37]
In the stay application Brooks attested to a founding affidavit. All
the respondents have aligned themselves with the averments
made in
the affidavit of Brooks. They relied on an alleged infringement upon
their right to a fair trial and the right to have
their trial
commence and conclude without unreasonable delay.
Brooks blamed the State, and
particularly its legal representatives, for the delays and launched
an attack on the professionalism
and integrity of Mr Roothman and
Botha. He alleged:
‘
I have been advised . . . that it can never
be said that the State has clean hands in the prosecution. Over and
above all the irregularities
alluded to in the applications
concerning the provision of equipment and money by the Complainant
and the payments made to the
Investigating Officer into his personal
bank account, coupled with his failure to return to continue his
testimony and be cross-examined
for an indefinite period, the
withholding of documents taints this prosecution and renders it
unfair.’
The
alleged ‘irregularities alluded to in the applications
concerning the provision of equipment and money by the complainant’
were not explained in the stay application and to the extent that
this may have referred to the evidence of Korff, the trial judge
had
not ruled on these issues yet. Similarly, Potgieter had not completed
his evidence; his version of events and his explanations
of his
alleged conduct had not been heard. These are matters which must be
considered in the trial.
[38]
Brooks concluded: ‘The State’s conduct in this matter is
inexplicable and deserving of censure. It is unacceptable
for
Office(r)s of the Director of Public Prosecutions to conduct
themselves in this manner. They ought to know better than to withhold
crucial statements that are vital to the preparation of a defence . .
. .’
[39] Brooks reserved his most scathing criticism of the
representatives of the State for Botha. He alleged:
‘
[80] One of the most significant aspects
pertaining to the application for the Presiding Judge’s recusal
was that Adv Botha
had received the complaint from the Presiding
Judge prior to him testifying under oath in this matter. He made no
mention of this
when he testified and did not provide any of the
documentation that he had been aware of since August 2016.
[81] This information was crucial and would have in my respectful
submission influenced the Presiding Judge in relation to her
acceptance or rejection of his testimony and more importantly that of
Linton Jeptha.
[82] Most significantly, Adv Botha expressly
stated at page 3131 on 2 February 2018 under oath in open court as an
officer of this
Honourable Court, that he had no other information or
documentation relating to this matter. This was a blatant lie.’
[40] In respect of the delay Brooks alleged:
‘
By virtue of the Presiding Judge having
recused herself, the trial that had commenced on 5 August 2016 and
run until 1 August 2018
becomes a nullity and must start
de
novo
. The blame for this falls squarely
upon the State and its legal representatives.’
[41]
I revert to the merits of the application. The respondents approached
the court in terms of s 38 of the Constitution.
[13]
The right which they assert is set out in s 35(3)
(d)
of the Constitution which provides:
‘
Every accused person has the right to a
fair trial, which includes the right:
. . .
(d) to have their trial begin and conclude without
unreasonable delay.’
[42]
The remedy of a permanent stay of prosecution has been described as
‘extraordinary’.
[14]
A permanent stay of prosecution will not be granted unless the court
is satisfied that there exists an unreasonable delay.
[15]
Whether a delay is unreasonable depends upon the circumstances of
each individual case. In order to determine whether a particular
lapse of time is reasonable the court will perform a ‘balancing
act’ in which the conduct of both the prosecution and
the
accused, the length of the delay, the reason which the State assigns
to justify the delay and the prejudice to the accused
are weighed.
The most important factors bearing upon the enquiry relate to the
nature of the offence, the length of the delay and
the reasons given
therefor and the prejudice, actual or potential, to the accused.
[16]
[43]
The charges against the respondents included racketeering, corruption
and illegal dealing in uncut diamonds. These are serious
offences.
Racketeering may attract a sentence of life imprisonment
[17]
and corruption, which is disturbingly prevalent in South Africa,
undermines the moral fibre of our society. In
Zanner
v Director of Public Prosecutions
[18]
this court noted that the right of an accused to a fair trial
requires fairness not only to him, but fairness also to the public
as
represented by the State. It must instil public confidence in the
criminal justice system and in cases involving serious crime
the
interest of society demands that the State bring an accused to
trial.
[19]
[44] However, the high court was critical of the
charges, particularly, of racketeering. Daffue J remarked:
‘
. . . The State attempted to show that the
alleged illicit dealing in diamonds and further action by the
applicants resorted within
the ambit of the Prevention of Organised
Crime Act, 121 of 1998 (“POCA”) as is apparent from the
indictment. In order
to do so, it came up with a novel, outrageous
argument – bordering on fiction – that an enterprise has
been established
by the agent, the Boss and Erasmus (the s 204
witness), as the members of the criminal association so formed . . .
Although I raised
my eyebrows in disbelief when I read this in the
summary of substantial facts I was not addressed on the issue and
will not say
much more, save for some final remarks . . . .’
[45]
These unfortunate remarks create the regrettable perception of an
unjustified bias. The judge
a
quo
had not heard
argument on the matter neither had he heard the evidence. Neither the
agent nor Erasmus had testified and Potgieter
(the Boss) had not
completed his evidence. The criticism of the charges, instituted on
the authority of a certificate issued by
the NDPP, was premature.
What is important for purposes of the inquiry is the gravity of the
charges.
[46] Reverting to the question of delay, in
Sanderson
Kriegler J stated:
‘
. . . The courts will apply their
experience of how the lapse of time generally affects the liberty,
security and trial related
interests that concern us. Of the three
forms of prejudice, the trial related variety is possibly hardest to
establish, and here
as in the case of other forms of prejudice, trial
courts will have to draw sensible inferences from the evidence. By
and large,
it seems a fair although tentative, generalisation that
the lapse of time heightens the various kinds of prejudice that s
25(3)
(a)
seeks to diminish.’
[20]
[47]
Kriegler J noted too that if an accused has been the primary agent of
delay he should not be able to rely on it in vindicating
his right to
a trial within a reasonable time. He should not be allowed to
complain about periods of time for which he has sought
a postponement
or delayed the prosecution in ways that are less formal.
[21]
Kriegler J noted that systemic delays caused by court congestion are
probably more excusable than cases of individual dereliction
of
duty.
[22]
[48]
The respondents complain both of delays which occurred during the
trial which has now become a nullity and the delay which
is
occasioned by the recusal of the trial judge.
[49] In respect of the former the high court remarked,
as a point of departure, in assessing delay:
‘
Bearing in mind the planned operation, one
would have expected the State to have its ducks in a row and ready to
proceed with the
trial without delay, but alas, the record shows that
the first witness in the criminal trial testified only two years
later,
i.e.
on
10
August 2016 . . . .’
[50]
These remarks do not do justice to the facts of the case. All the
respondents had been granted bail on their first appearance
in August
2014. Some of the respondents had been unable to pay the initial
amount fixed and the amounts had been decreased to allow
them not to
be detained and further accused had been arrested after 25 August.
The matter was postponed to 13 October 2014
when, on the very
first joint appearance an application was brought in terms of s
342A(3)
(c)
to
investigate the delay on the part of the State. The application was
correctly dismissed. The matter was complex, as I have said,
and
substantial evidence was involved. Whilst the papers did not
expressly deal with the events after the first postponement warning
statements had to have been obtained from the various accused which,
no doubt, required further investigation. In my view it would
have
been remiss of the State to proceed with charges without first
investigating explanations given or averments made in the warning
statements. There was nothing in the papers which could support a
conclusion that the request on 13 October 2014 for a postponement
for
purposes of further investigation was not well justified. Criticism
thereof by the high court was, in my view, ill-founded.
[51]
On 25 January 2015 the accused were separated into various groupings.
In respect of one accused, probably as a result of the
further
investigation, the charges were withdrawn. Some accused were charged
only of dealing in diamonds whilst others were earmarked
for
prosecution under s 2 of POCA. At this early stage trial dates were
already agreed with all the representatives for November
2015. There
was no suggestion that the State had not been ready to proceed. At
that stage there were 20 accused; the papers do
not reveal how many
different legal representatives were to be accommodated in the
agreement on the trial dates and the papers
did not suggest that this
delay was attributable to dilatoriness of the prosecution.
[52]
Things changed in July 2015 when Mr Hodes was briefed on behalf of
some of the respondents. The trial dates were not suitable
to him and
new trial dates had to be obtained from the Judge President for April
2016. The availability of Mr Hodes accordingly
delayed the
commencement of the trial at this stage by nearly five months. This
delay cannot be ascribed to the State.
[53]
At the pre-trial procedure in September 2015 agreement was reached
that the initial days of the originally agreed trial dates,
when Mr
Hodes was available, would be utilised for purposes of any
preliminary applications. Various applications were brought
as set
out earlier, including an application in terms of s 342A(3). Argument
could not be completed during the allocated period
and the
preliminary applications were postponed on two occasions to finalise
argument. These postponements again delayed the commencement
of trial
beyond the dates allocated by the Judge President. The trial judge
ruled on the applications on 16 May 2016. The preliminary
applications were predominantly unsuccessful. However, the State was
ordered, as I have said, to provide some further particulars.
Its
earlier resistance to the disclosure thereof was not due to any
dilatory or indecisive conduct, nor has it been suggested that
the
State had been unable to provide these promptly. The delays which
occurred as a result hereof cannot be blamed on the State.
The State
did indeed have ‘its ducks in a row’ and had been in a
position to proceed.
It
was not improper for Mr Roothman to defend his right not to
provide further particulars or disclose certain documents and
the
ruling by the trial judge largely vindicated his decision.
[54]
The affidavit of Brooks reflects a thinly veiled suggestion that
Mr Roothman had misled the court in suggesting that he
had no
further documents to discover. In fact, on Brooks’ own version,
what Mr Roothman contended was that he had no other
witness
statements in his possession. The very essence of the opposition to
the application, as set out earlier, had been that
he was not
required to disclose the further documentation in his possession. The
scurrilous attack on Mr Roothman in this respect
was unwarranted.
[55]
In consequence of the delay occasioned by these applications new
dates had been allocated for the trial which had to commence
on 1
August 2016. On the morning of trial, however, a number of the
accused approached the State to negotiate a plea in terms of
s 105A
of the CPA. This could not have been foreseen by Mr Roothman and the
delay which ensued thereafter is attributable to the
decision of some
of the accused at that stage. In all the circumstances the evidence
indicates that the State proceeded with due
haste to commence the
proceedings. The delays which occurred after 25 January 2015
to the commencement of trial can predominantly
be attributed to
delays incurred at the instance of the respondents or their erstwhile
co-accused.
[56] The delays which occurred between 11 and 13 August
2016 could likewise not be attributed to the State. These delays
could have
been averted had the specific documentation been requested
before Dreyer had testified.
[57]
On 23 September 2016 the trial-within-a-trial was ordered. The State
was unprepared to proceed immediately and sought an indulgence
to
prepare. The trial was accordingly postponed at this stage as the
period allocated for the trial on the running roll had expired.
The
delay attributable to Mr Roothman’s unpreparedness was
therefore minimal. The trial-within-a-trial was scheduled
to commence
on 30 January 2017 and the State was ready to proceed. It was then
delayed for more than two weeks due to the unpreparedness
of Mr
Price. Once the trial-within-a-trial did proceed Korff testified at
some length and handed in a considerable volume of documents
which
had not been provided to the State prior to his testimony. This
necessitated a postponement in order for Mr Roothman
to consult
with various witnesses and study the documentation. These delays too
could have been avoided had Mr Price provided the
documentation to Mr
Roothman prior to calling Korff. The blame cannot be laid at the door
of the State.
[58]
The State was plagued on various occasions by the illness of
Mr Roothman’s wife and of witnesses, predominately
Potgieter. Brooks, in his founding affidavit, did not accept that
Potgieter was indeed ill and, as set out earlier, criticised
him for
his failure to return to continue his testimony and cross-examination
for an indefinite period. The criticism was not justified.
The
evidence established that on each occasion medical opinion supported
his illness and that he had been booked off. There is
no evidence
that the respondents challenged the validity of the medical opinion
at that time. The suggestion that Potgieter had
failed to return to
the witness box for an indefinite period to continue with his
testimony is also unfounded. The trial-within-a-trial
was incomplete
when the second recusal application was moved and there is no
evidence that Potgieter was at that time unable or
unwilling to
complete his testimony. It was within the discretion of Mr Roothman
to decide at what stage he wished to recall
Potgieter. Delays which
occur due to unforeseen illness of witnesses are not uncommon in
litigation.
[59]
So, although a substantial period of time may have lapsed before the
second recusal application was made it is predominately
attributable
to one or more of the respondents, the illness of witnesses, or, in
some instances systemic difficulties, such as
the long leave of the
presiding judge and the exigencies of the court roll.
[60] I turn to consider the events giving rise to the
second recusal application. The respondents who supported the
application
relied primarily on two grounds. Firstly, the failure to
advise them of the attempt to bribe the trial judge, and, secondly
the
non-disclosure of Jephta’s statements of the attempt to
bribe him. In this regard the high court observed:
‘
I do not wish to criticise my colleague for
not informing the legal representatives of the conversation with
Captain Gugu . . .
However, I believe that I would probably have
acted differently.
. . .
This does not support the State in casu. The DPP in Kimberley was
well aware of the situation and even instituted investigations.
I
personally believe that the trial judge should have informed the
parties immediately in order to obtain assurances that none
of the
applicants were responsible for the alleged threat/or attempt to
bribe.
In my view the prosecution team was under an
ethical duty to take their colleagues for the defence in their
confidence and inform
them of the alleged threats and attempts to
bribe the trial judge and a crucial witness. If the matter was openly
discussed there
and then, that is in August 2016, the trial would in
all probably not have become a nullity in August 2018, two years down
the
line and after numerous witnesses have testified . . . .’
[61]
The approach to the trial judge by Gugu occurred in August 2016.
There were at that stage 13 accused before her. Prima facie,
the
logical inference at the time would have been that the approach to
her had in all probability, been prompted by or on behalf
of one or
more of the respondents. No indication was provided to her of the
identity of the persons who might have instigated the
approach and it
is inconceivable, in my view, that anyone could have perceived her to
hold a bias against any particular respondents
as a result of the
event. I do not consider in these circumstances that any duty rested
upon her to advise the accused of the approach
by Gugu. In the event
that one or more of the respondents had initiated the approach it is
naive to suggest that those responsible
would have admitted it to the
trial judge. The conduct of the trial judge after the unsolicited
approach to her cannot be faulted.
[62]
The office of the Chief Justice had requested the DPP to have the
matter investigated. The attempted bribery of a high court
judge
presiding in a criminal trial, coupled with a threat to her safety,
is a serious matter. An investigation docket was opened
in order to
probe these allegations. To alert the respondents, who as a matter of
logic, as I have said, were suspects, could only
have served to
prejudice the entire investigation and with it the administration of
justice. Assurances from the respondents of
their innocence would
have been predictable, but of no assistance. The caution expressed by
Harms JA in
National
Director of Public Prosecutions v King
[23]
is appropriate in this regard where
he observed:
‘
Courts should . . . be aware that persons
facing serious charges – and especially minimum sentences –
have little inclination
to co-operate in a process that may lead to
their conviction and, “any new procedure can offer
opportunities capable of exploitation
to obstruct and delay.”
One can add the tendency of such accused, instead of confronting the
charge, of attacking the prosecution.’
[63]
These remarks are particularly apposite to this case. None of the
respondents have expressly distanced themselves from the
approach to
the trial judge, instead, they have launched a scathing attack on the
State for its failure to advise of its knowledge
of the
investigation. For the same reasons that it would have been
inappropriate for the trial judge to advise the defence of the
approach I do not consider that there was any ethical duty on the
State to reveal the existence of a separate, and sensitive,
investigation unrelated to the events forming the subject matter of
the criminal trial, prior to its completion. Once the investigation
was complete the DPP did advise the respondents and provided a copy
of the docket.
[64] The approach by Gugu to the trial judge, and the
content of the docket, could have had no bearing on the issues in the
trial
before her. Again, the observations by Harms JA in
King
are
instructive where he said:
‘
There is no such thing as perfect justice –
a system where an accused person should be shown every scintilla of
information
that might be useful to his defence – and discovery
in criminal cases must always be a compromise. Fairness is not a
one-way
street conferring an unlimited right on an accused to demand
the most favourable possible treatment, but also requires fairness
to
the public as represented by the State. This does not mean that the
accused’s right should be subordinated to the public’s
interest in the protection and suppression of crime; however, the
purpose of the fair trial provision is not to make it impractical
to
conduct a prosecution . . . .’
[24]
[65] In respect of Jeptha’s statements the trial
judge in the second recusal ruling held:
‘
It raises a question though as to why the
State decided to hold onto the agent’s statements for so long
and not discover them
when the defence asked for further particulars.
The State instead told the court that there was nothing to discover.’
Neither
her ruling nor the affidavit of Brooks identified the occasion where
Mr Roothman assured the court that there was nothing
to discover.
[66]
The first application to compel the discovery of further
documentation and further particulars commenced on 9 October 2015
and
argument was completed on 20 April 2016. In the course thereof Mr
Roothman contended, allegedly in February 2016, that the
State had
disclosed all witness statements and that there was nothing more to
discover. The contentious statements of Jephta were
not in existence
at the time, the first thereof having been taken on 16 June 2016.
Similarly, the additional affidavit by Serfontein
did not exist at
the time and, as explained by Mr Barnard, the prosecution was not in
possession of the two CDs which were provided
in June 2018. It is
moreover apparent from the ruling of the trial judge in the recusal
judgement that no reliance was placed on
the late discovery of the
CDs in the second recusal application.
[67]
On 17 June 2016 a further application was brought by the third
applicant for the delivery of further particulars. This application
was prompted by a newspaper article relating to allegations made by
Korff. As I have said, Mr Roothman contended that the
documents
provided to the State by Korff were privileged and covered by a
non-disclosure agreement. This was a legal argument which
he was
entitled to raise. There is no averment that Mr Roothman on this
occasion contended that the State was not in possession
of further
documentation unrelated to the further particulars requested.
[68]
Botha was the acting DPP and had authorised the s 252A application on
behalf of the DPP. He was called to testify in a trial-within-a-trial
in respect of the authorisations which he granted. At an early stage
in cross-examination he was requested by counsel for certain
of the
appellants to confine himself to issues about the admissibility of
the trap evidence. The issue of the attempt to bribe
the trial judge
or Jephta had been irrelevant to his testimony in respect of the s
252A authorisations. There was no reason for
Botha to have referred
to these allegations or the statements in respect thereof.
[69]
As for the accusation of perjury, credibility findings are best left
to the trial judge. There was no transcript of the trial
proceedings
annexed to the stay application and the alleged portion of Botha’s
evidence had not been placed in any proper
context to enable the high
court to assess it. There was accordingly no factual basis laid for
the allegation that Botha had deliberately
lied under oath. The
allegation is a serious one, made, as it was, against an officer of
the court. Where litigants seek to attack
the integrity of officers
of the court a firm factual basis must be laid for the conclusion
contended for. This was not done. I
shall revert to this issue below
in consideration of an appropriate order for costs. Suffice it to say
that the criticism by the
trial judge of Mr Roothman and the
unsubstantiated attack by Brooks upon Botha on this aspect was, in my
view, not justified.
[70]
The statements of Jephta had been the subject of a separate enquiry.
It dealt with allegations of corruption and defeating
the ends of
justice, which are events extraneous to those which form the subject
matter of the prosecution and the investigation
thereof remained
incomplete at the time of the stay application. The only relevance
which the statements may have had to the prosecution
relates to the
cross-examination of Jephta. They could have had no bearing on the
substance of the defence raised by any of the
respondents and it has
not been suggested that any of the respondents would have conducted
their defence differently had they had
knowledge of Jephta’s
statements. Jephta had not yet testified and to the extent that these
statements may have had a bearing
on the preparation of the
cross-examination of Jephta they were timeously provided. No
prejudice could accordingly arise from the
fact that these
statements, originating from a separate inquiry were provided at a
late stage. It follows that the finding of the
high court that the
prosecution was under an ethical obligation to disclose the approach
made to the trial judge and the additional
statements of Jeptha at an
earlier stage cannot be sustained.
[71]
In respect of the prejudice, or potential prejudice, each of the
respondents have also set out the personal prejudice which
they have
suffered. Their arrest enjoyed considerable publicity, each was
required to pay substantial amount for bail and they
personally were
exposed to negative publicity which affected not only their persons
but also their business interests. Their children
have been subjected
to ridicule at school and their finance houses have shown greater
reluctance in assisting them.
[72]
Each have engaged counsel of varying seniority but in every case at
considerable expense. However, a permanent stay of prosecution
will
generally only be granted where trial related prejudice has been
suffered, unless there are circumstances rendering the case
so
extraordinary that a permanent stay of prosecution is the only
appropriate remedy.
[25]
A party seeking a permanent stay of prosecution is required to show
‘definite and not speculative prejudice in order for
it to be
considered irreparable trial prejudice’.
[26]
[73]
In this instance, by virtue of the recusal of the trial judge, all
proceedings before her have been nullified. Proceedings
would
accordingly be required to start
de
novo
. It is,
however, for the prosecution to decide whether proceedings would be
instituted afresh, and if so, in respect of which offences.
[27]
The DPP is not bound by the indictment dated 5 August 2016. Much
reliance was placed by the respondents on the strength of the
State’s
case, the reliability of the evidence of Potgieter and that of Jephta
and the admissibility of audio and video evidence.
It is premature at
this stage to draw any conclusion on any of these aspects. Suffice it
to say that the DPP would have to give
careful consideration to these
issues prior to taking a decision as to whether it wishes to proceed
with a new prosecution. In
doing so they would give consideration to
evidence led before Pakati J. They may decide to proceed on lessor
charges, or against
only some of the respondents, but they should
have the opportunity to do so. As I have said, the stay application
was
launched just 14 days after the recusal. This is not a case where
the DPP has shown any dilatoriness in this respect and there is
no
evidence that they have been put to terms to take such a decision.
[74]
The trial prejudice which the respondents were required to establish
relates to prejudice in a new trial. In this regard it
was alleged
that it is doubtful whether Korff and Potgieter would ever return to
court to testify. This assertion was purely speculative
in nature and
no facts were alleged to support the conclusion. The significant
payments made to Jeptha and the promise for a further
exorbitant
payment were raised to attack the fairness of the trial, if it were
to proceed. These considerations may potentially
have an impact upon
the reliability, and perhaps credibility, of the evidence of Jephta.
The admissibility thereof would have to
be determined in the new
trial. The presiding judge would have to hear the witness, give due
consideration to all the factors raised,
including the criticisms of
the investigation and the payments made, and then to assess the
credibility and the reliability of
the witness in conjunction with
all the admissible evidence placed before him or her.
[75]
The payments allegedly made to Potgieter are on a similar footing.
Potgieter has not been cross-examined in the trial-within-a-trial.
These alleged payments would have to be canvassed with him; his
version of events heard; and his explanations tested for the
presiding
judge to consider his credibility and reliability. An
allegation of impropriety on the part of a State witness, even the
investigating
officer cannot, of itself, render the trial unfair.
[76]
I have dealt earlier with the additional statements received from
Jephta and, as I have said, in my view, they can have bearing
only on
the credibility or reliability of Jephta’s evidence. The
respondents did not allege that any of them would have conducted
their defence differently had they been in possession of the
statements at an earlier stage. Jephta has not testified yet and the
defence are in possession of these statements. No basis has been laid
for a conclusion of prejudice in a future trial relating
to the late
delivery of these statements.
[77]
In the final analysis the court is required to exercise a value
judgment in assessing the reasonableness of the delay.
[28]
On due consideration of the nature of the offences in issue, the
delays in the course of the prosecution, the circumstances which
gave
rise to the recusal as well as the prejudice occasioned to the
respondents, I do not consider that the delay, in the context
of this
case can be said to be unreasonable. Nor, in my view, have the
respondent shown actual trial prejudice if the trial were
to commence
de novo.
[78] The case is not so extraordinary that a stay of
prosecution is the only appropriate remedy. However, objectively, the
delay
has been substantial, even though it is not due to the
dilatoriness or misconduct of the State. In these circumstances the
State
would be well advised to proceed without delay, and to expedite
the process wherever possible, if it does choose to proceed
de
novo
against the respondents.
Costs
[79]
The application for a permanent stay of prosecution raises important
constitutional issues and generally a court would be disinclined
to
make a costs order against such applicants. This is so as litigants
should not be discouraged by the threat of an adverse costs
order
from approaching a court to vindicate their constitutional rights.
What distinguishes this case from the general rule is
the manner in
which it has been conducted. The unwarranted and unsubstantiated
attacks upon the professionalism and integrity of
officers of the
court, who are not even parties to the litigation, in the performance
of their professional duties was ill-advised
and unjustified. Whilst
not all of the respondents supported the application for the recusal
of the trial judge they have all aligned
themselves with the
averments made by Brooks in this regard. For these reasons I would
uphold the appeal with costs, including
the costs of two counsel.
__________________________
J
W EKSTEEN
ACTING JUDGE OF APPEAL
Molemela
JA (Mocumie JA and Ledwaba AJA concurring)
[80]
I have read the judgment of my brother, Eksteen AJA (the first
judgment). Although I agree that the appeal ought to succeed,
I am,
for the reasons indicated hereafter, unable to agree with the costs
order proposed in the first judgment.
[81]
It is trite that, a
t
the end of the day, each case must be decided on its own peculiar
facts.
A
fact that cannot be disregarded in this matter is that the charges in
this matter emanated from an entrapment that was duly authorised
in
terms of s 252 of the CPA. This means that the state, as
dominus
litis
,
is the party that determined when the covert operation had to stop
and when consequent arrests had to be effected. Despite this,
subsequent to the arrests of the respondents, it was the State that
applied for a postponement of the matter, purportedly for further
investigations.
[29]
The inevitable postponement of the matter, for a period of three
months, was at the instance of the prosecution. At the next
appearance,
the State again applied for a postponement, which was
opposed by the defence. The matter was nevertheless postponed to
enable the
State to file a certificate from the NDPP.
[82] In
Sanderson
, the
Constitutional Court cautioned as follows:
‘
.
. . [J]udges must bring their own experiences to bear in determining
whether a delay seems over-lengthy. This is not simply a
matter of
contrasting intrinsically simple and complex cases. Certainly, a case
requiring the testimony of witnesses or experts,
or requiring the
detailed analysis of documents is likely to take longer than one
which does not. But the prosecution should also
be aware of these
inherent delays and factor them into the decision of when to charge a
suspect. If a person has been charged very
early in a complex case
that has been inadequately prepared, and there is no compelling
reason for this, a court should not allow
the complexity of the case
to justify an over-lengthy delay. . . .’
[30]
[83]
I tend to agree with the high court’s postulation that given
the fact that this was an entrapment case, one would have
expected
the State to have had all its ducks in a row. Indeed, based on this
aspect, one would have expected the prosecution to
be in a state of
readiness regarding any information within its possession, and to
swiftly make the information sought by the respondents
available.
This is especially because Adv Botha, having authorised the
entrapment, was involved in the operation from its inception.
[31]
Alas, there were numerous postponements for purposes of furnishing
further particulars.
[84]
It is noteworthy that as late as 16 May 2016, the trial Judge still
had to compel the State to furnish further particulars
requested
approximately six months before that date.
[32]
Given this late submission of further particulars, the trial could
not have commenced on the first trial date that had been agreed
upon.
The late commencement of the trial is therefore not solely
attributable to Mr Hodes only coming on the scene on behalf of
some
of the respondents
in
July 2015.
[85]
Moreover,
despite the various interlocutory applications requesting further
particulars, it turned out that certain CD recordings
[33]
that were stored in Warrant Officer Potgieter’s computer were
never made available to the respondents
[34]
until 20 July 2018. Warrant Officer Potgieter, as the
erstwhile investigating officer and Jephta’s handler, played
an
integral role in the investigation and prosecution of this matter.
His failure to disclose the CD has not been explained.
[86]
The CD’s
in question were apparently discovered when the new investigating
officer, Col Botha, took over as the investigating
officer. The date
on which Col Botha disclosed the existence of these CDs to
Mr Roothman has not been disclosed in Mr Barnard’s
affidavit. In my view, the two year delay in disclosing the existence
of the CD recordings does not fall within the category of
systemic
delays; rather, it is an inexcusable dereliction of duty on the part
of a key member of the prosecution team: the investigating
officer.
[35]
That conduct is undoubtedly at odds with the following dictum
in
Wild
:
‘Endemic blemishes in our criminal justice system . . . must be
addressed conscientiously by investigating officers, prosecutors,
judicial officers and administrators’.
[36]
Taking into account the principles of accountability, t
he
S
tate
should shoulder the blame for Warrant Officer’s conduct.
[87]
The first judgment correctly records that o
n
17
June 2016,
[37]
another
interlocutory statement was made on behalf of some of the
respondents, specifically in relation to Jephta having been paid
a
substantial amount of money to be an agent and in return for his
testimony against the respondents. It is common cause that by
that
date, Jephta had already signed the first statement, with the
investigating officer (Potgieter) signing as a commissioner
of oaths.
Notwithstanding the existence of the statement signed by Jephta, it
was not disclosed to the defence on that date. This
is not to suggest
that Mr Roothman was aware of its existence.
[88]
On 23 July 2018, it was Mr Roothman who volunteered all the
statements previously made by Jeptha, to the defence. There is
no
record of him having advanced any reasons for the state’s
failure to disclose these statements at an earlier stage. Without
ascribing any fault to Mr Roothman for the late disclosure of
Jephta’s statements, what is of importance is that Mr Roothman
considered it prudent to disclose these statements to the defence
before adducing Jephta’s evidence. That he considered it
important to do so is a relevant consideration in this matter. In
Shabalala and others
v Attorney General
,
[38]
the Constitutional Court observed that a late disclosure of a state
witness may potentially result in the accused being unable
to
timeously identify witnesses who would have been able to contradict
the assertions made by that state witnesses. I do not think
that
there is any need to speculate on whether that late disclosure is
likely to have a bearing on the substance of the respondents’
defence,
[39]
considering that the respondents expressly stated that the statements
that were withheld were vital to the preparation of their
defence.
[89]
With regards to the recusal of the trial Judge, it is common cause
that the State did not oppose the recusal application. I
am mindful
of the fact that an independent and impartial Judge is not expected
to defer to opinion of others in coming to his or
her decisions,
including on an application for recusal. While the views of the
respective parties in respect of the application
for the recusal of
the trial Judge could never be elevated to evidence, I do find it
ironic that in this matter, active opposition
to the recusal
application came from some of the respondents’ ‘co-accused’
and not from the State Advocate. To
my mind, the views of the State
in relation to that recusal application would have been a relevant
consideration in the matter,
especially in an application launched at
such an advanced stage of the proceedings.
[90]
As things turned out, the supine attitude adopted by the State in the
recusal application had certain repercussions. As correctly
mentioned
in the first judgment, Jephta’s statements were withheld from
the defence. This non-disclosure triggered the recusal
application.
It is clear from the recusal judgment that no explanation for the
late disclosure of Jephta’s statements was
given by the
prosecution to the trial Judge despite several defence counsel having
raised the late disclosure of Jephta’s
statements as an issue
and also having identified it as one of the reasons for seeking the
recusal of the trial Judge. All that
was before the court was the
letter from the prosecution which states, without any explanation,
that ‘it appears as though
the contents hereof [have not yet
been] submitted to you’.
[91] In the course of handing down her recusal judgment,
the trial Judge stated as follows:
‘
It raises a question though as to why the
state decided to hold onto the agent’s statements for this long
and not discover
them when the defence asked for further particulars.
The state instead told the court that there was nothing to discover.
It is
therefore mindboggling that the day the agent was supposed to
testify on 31 July 2018, the state handed the statements to the
defence.
In my view the officers are the officers of the court and
have an obligation to the court and also to see to it that justice is
done all the time.’
I
pause to mention that it is clear from this passage that some of the
allegations made by the respondents against Mr Roothman merely
constituted an echoing of the sentiments already expressed by the
trial Judge, rightly or wrongly, in relation to the late disclosure
of Jephta’s statements.
[92]
It is trite that the State is expected to respond somewhat
comprehensively to the allegations made against it regarding its
failure to furnish documents.
[40]
The remark made by the Judge was not proven to have been misplaced.
As correctly stated in para 68 of this judgment, we were not
provided
with the transcript of the trial proceedings and are therefore not
privy to the discussions between Mr Roothman and the
trial Judge in
relation to the availability of further witness statements. What we
do know, however, is that the trial Judge bemoaned
the fact that she
had been given an inaccurate assurance by the State. In the absence
of any refutation, we are obliged to accept
that the trial Judge
would not have voiced a criticism if it was not justified by what
transpired during the proceedings. Against
this background, it seems
to me to be unfair to take these statements into account when
castigating the respondents for the allegations
they made against
some of the members of the prosecution team.
[93]
Notably, Mr Barnard’s explanation about the CDs and Jeptha’s
statements appears in Mr Barnard’s answering
affidavit, which
was obviously filed after the deponents had already moved their
application for the stay in prosecution. Significantly,
Mr Barnard
conceded that an explanation regarding the late disclosure of the CD
recordings ought to have been given. The date on
which Mr Roothman
became aware of the existence of Mr Jephta’s statements
has not been mentioned in Mr Barnard’s
affidavit. All that was
stated in relation to those statements was that the State had decided
to provide them to the defence in
anticipation of an application for
recusal and also because the State intended canvassing the bribery
allegations in Jephta’s
testimony.
[94]
The allegations made by the respondents in relation to Mr Roothman
must therefore be seen in a proper perspective: first, Mr
Roothman
was present when the late disclosure of Jephta’s statements was
criticised by the defence counsel but did not give
the court the
benefit of his explanation; second, the explanation about the
circumstances in which the CDs were discovered had
been unknown to
the respondents and only came to light in Mr Barnard’s
affidavit filed in opposition of their application.
It is against
that light that the respondents’ conduct in pursuing the
application for the stay in prosecution must be seen.
Consequently, I
am unable to agree with the first judgment’s finding that the
conduct of the respondents warrants them being
mulcted with costs
despite having raised a constitutional issue.
[95]
As I conclude, it bears mentioning that the first judgment correctly
observed that the delay, objectively speaking, has been
substantial,
albeit not unreasonable.
[41]
An undeniable fact that cannot be disregarded is that a trial
de
novo
is
unquestionably going to cause a further delay in the finalisation of
the matter. As observed by this court in
S
v Suliman
,
[42]
a recusal, including one on objectively inadequate grounds, does not
amount to an irregularity amounting to a failure of justice.
This
Court however, acknowledged that such recusals occasion expense and
inconvenience to the accused persons concerned. This is
the hardship
that the respondents in this matter are inevitably faced with, unless
the State decides not to pursue the criminal
proceedings against
them. This is a weighty factor that must surely count in favour of
the respondents when an appropriate order
of costs is considered.
[96]
The foregoing paragraphs were intended to demonstrate that this is
not a matter in which the State was blameless in relation
to the
numerous postponements that were occasioned during the course of the
trial. The respondents can certainly not be regarded
as the primary
source of the delays.
[43]
Notably, some respondents did not, at any stage, participate in any
of the interlocutory proceedings which delayed the finalisation
of
the proceedings.
In
my view, disentitling the State to an order of costs despite its
success in this appeal would, under the circumstances, be the
appropriate way of indicating this court’s displeasure with the
State’s overall conduct in relation to this matter.
[97]
It was stated in
Lawyers
for Human Rights v Minister in the Presidency and others
[44]
that the well-established test when considering whether to award a
costs order against a private party in a constitutional litigation
is
whether the litigation in question was frivolous, vexatious or
manifestly inappropriate. The court stated that ‘to be
subject
to an adverse costs order, the litigant’s conduct must be
worthy of censure’. Given the peculiar circumstances
highlighted above, I am unable to find that the respondents’
conduct warrants an order mulcting them with costs.
[98] For all the reasons alluded
to, above, the following order is made:
1 The appeal is upheld.
2 The order of the high court is set aside and replaced
with the following:
‘
The application is dismissed.’
______________
M B Molemela
Justice of Appeal
Appearances
For
Appellant: J G Van Niekerk SC
(with
him S L Erasmus)
Instructed
by: State Attorney, Kimberley
State
Attorney, Bloemfontein
For
1
st
Respondent: E Sithole
For
2
nd
& 5
th
Respondents: Saleem Ebrahim
Attorneys
For
3
rd
and 8
th
Respondents: M M Hodes SC
For
4
th
and 6
th
Respondents: L M Hodes SC
For
7
th
, 9
th
, 11
th
and 12
th
Respondents: C F Van Heerden
For
10
th
and 13
th
Respondents: J J Schreuder
Instructed
by:
(1
st
– 6 and 8
th
Respondents) Saleem Ebrahim Inc,
Johannesburg
Bezuidenhouts
Inc, Bloemfontein
(7
th
,
9
th
, 11
th
and 12
th
Respondents)
Towell & Groenewaldt Attorneys, Kimberley
(8
th
Respondent) Engelsman Magabane Inc, Kimberley
[1]
Act 56 of 1986.
[2]
Section 2(1) of POCA defines the crime of
racketeering and s 2(4) provides: ‘A person shall only be
charged with committing
an offence contemplated in subsection (1) if
a prosecution is authorised in writing by the National Director.’
[3]
Section 342(3)
(c)
of
the CPA provides: ‘If the court finds that the completion of
the proceedings is being delayed unreasonably, the court
may issue
any such order as it deems fit in order to eliminate the delay and
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.’
[4]
A number of separate dockets had been opened
during the investigation. When the separation of trials was effected
a consolidated
docket was prepared in respect of the accused who
would be charged of racketeering.
[5]
In particular, the respondents sought information
relating to all the informers utilised in the investigation,
including those
alluded to in the authorisation.
[6]
There is no evidence to suggest that he, or the
DPP, was in possession of any further witness statements at the time
which had
not been disclosed.
[7]
The evidence later established that the
information relating to this payment was correct.
[8]
Potgieter had been removed as investigating
officer from the case during May 2015 and been replaced by a new
investigating officer.
He remained an essential witness for the
State as he had been Jephta’s handler for purposes of the
entrapment.
[9]
The information relating to the informers, which
had been sought in the earlier application in October 2015 was
specifically excluded.
[10]
Section 342A(3)
(d)
provides:
‘
If the court finds that the
completion of the 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
–
. . .
(d) where the accused has pleaded to the charge and the
State or the defence, as the case may be, is unable to proceed with
the
case or refuses to do so, that the proceedings be continued and
disposed of as if the case for the prosecution or the defence,
as
the case may be, has been closed.’
[11]
The statement had been prepared in consequence of
his consultation with Mr Roothman and it was not in existence in
February 2016
when Mr Roothman assured the court that he had
disclosed all the witness statements in his possession.
[12]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
(Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A);
[1984] 2 All
SA 366
(A)
.
[13]
The material portion of s 38 of the Constitution
provides: ‘Anyone listed in this section has the right to
approach a competent
court, alleging that a right in the Bill of
Rights has been infringed or threatened, and the court may grant
appropriate relief,
including a declaration of rights.’
[14]
See
Wild and Another
v Hoffert NO and Others
[1998] ZACC 5
;
1998 (2) SACR
1
(CC);
1998 (6) BCLR 656
(CC) para
11. See also
Sanderson v
Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998
(2) SA 38
(CC);
1998 (1) SACR 227
(CC) para
38 where the court considered the right to a speedy trial under s
25(3)
(a)
of
the Interim Constitution of the Republic of South Africa, 1993
(which although worded differently, has the same object).
[15]
Wild
para 8, 9
and 28.
[16]
Sanderson
para
25 and 31–35.
[17]
Section 3
of the
Prevention of Organised Crime
Act 121 of 1998
.
[18]
Ibid
fn 18.
[19]
Zanner v Director Public Prosecutions,
Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA);
[2006] 2 All SA 588
(SCA)
para 21.
[20]
Sanderson
para
30.
[21]
Sanderson
para
33; see also
Van Heerden and Another v
National Director of Public Prosecutions and Others
[2017]
ZASCA 105 (SCA); 2017 (2) SACR 696 (SCA).
[22]
Sanderson
para
35.
[23]
National Director of Public Prosecutions v
King
[2010] ZASCA 8
;
2010
(2) SACR 146
(SCA) para 5.
[24]
King
para 5.
[25]
Wild
para 27.
See also
Sanderson
para 38.
[26]
See
Bothma
v Els
[2009] ZACC
27
;
2010 (1) SACR 184
(CC) para 68.
[27]
See
S v Gumbi and
Others
[2018] ZASCA 125
;
2018 (2) SACR
676
(SCA) para 9.
[28]
Van Heerden
para
54.
[29]
See para 5 and 6 of this judgment.
[30]
Sanderson
para
34.
[31]
See para 27 of this judgment.
[32]
See para 12 of this judgment.
[33]
See para 34 of this judgment.
[34]
Ibid.
[35]
Sanderson
para
35.
[36]
Wild
para 12.
[37]
See para 67 of this judgment.
[38]
Shabalala and Others v Attorney-General of the
Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
;
1995 (12) BCLR 1593
para 37.
[39]
See para 70 and 76 of this judgment.
[40]
Compare
van Heerden v NDPP
paras 31 and 32
.
[41]
See para 77 of this judgment.
[42]
S v Suliman
1969
(2) SA 385
(A) at 392.
[43]
Compare
Sanderson
para 33.
[44]
[2016] ZACC 45
;
2017 (1) SA 645
(CC);
2017 (4)
BCLR 445
(CC) at para 7.