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[2021] ZASCA 87
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Rodrigues v National Director of Public Prosecutions and Others (1186/2019) [2021] ZASCA 87; [2021] 3 All SA 775 (SCA); 2021 (2) SACR 333 (SCA) (21 June 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1186/2019
In
the matter between:
JOAO
RODRIGUES
APPELLANT
and
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
OF SOUTH AFRICA
FIRST RESPONDENT
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
SECOND RESPONDENT
THE
MINISTER OF POLICE
THIRD RESPONDENT
IMITIAZ
AHMED CAJEE
FOURTH RESPONDENT
Neutral
citation:
Rodrigues
v The National Director of Public Prosecutions and Others
(1186/2019)
[2021] ZASCA 87
(21 June 2021)
Coram:
MAYA P, CACHALIA and
DLODLO JJA and LEDWABA and POYO-DLWATI AJJA
Heard:
6 November 2020
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
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 11h30 on 21 June 2021.
Summary:
Right to a fair
trial – s 35(3)
(d)
of
the Constitution – whether a lengthy delay in commencing
criminal prosecution of charges, including murder, allegedly caused
by political interference caused the appellant trial-related
prejudice justifying a permanent stay of prosecution.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (Kollapen, Moshidi and
Opperman JJ sitting as a court of appeal):
The
application for leave to appeal is granted and the appeal is
dismissed.
JUDGMENT
Ledwaba
AJA (Maya P, Dlodlo JA and Poyo-Dlwati AJA concurring):
Introduction
[1]
The
appellant, Mr João Rodrigues, was indicted in the Gauteng
Division of the High Court, Johannesburg on a charge of murder
and
defeating and/or obstructing the administration of justice. The
murder charge related to the death of the late Mr Ahmed Essop
Timol,
on 27 October 1971, at John Vorster Square Police Station. The
appellant has not yet pleaded in the criminal trial. He filed
an
application, which was heard by a Full Court of the Division,
seeking:
‘
1.
A declaratory order that the
criminal proceedings instituted against the Applicant constitutes
an
unfair trial against the Applicant as is envisaged in section 35(5)
of the Constitution of the Republic of South Africa, Act
108 of 1996.
2.
A declaratory order that the criminal proceedings instituted against
the Applicant
constitute an infringement of his fundamental rights to
a fair trial as is provided for in section 35(5) of the Constitution
read
with section 342A of the Criminal Procedure Act, Act 51 of 1977.
3.
That the Applicant is granted a permanent stay on the charge of
murder in the criminal
proceedings against the Applicant relating to
the death of the late Ahmed Essop Timol on or about the 27
th
of October 1971.
4.
That the First and/or Second Respondents are prohibited from
proceeding with the criminal
prosecution against the Applicant on a
charge of murder relating to the death of Ahmed Essop Timol.
5.
That the First and/or Second Respondents are ordered to withdraw the
criminal proceedings
against the Applicant relating to the death of
Ahmed Essop Timol.’
[2]
The
Full Court
(
Kollapen
J and Moshidi and Opperman JJ concurring) dismissed the application
and refused leave to appeal. The appellant then brought
an
application for leave to appeal in this Court, which was referred to
oral argument in terms of s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
. The parties were further
directed to address the court on the merits.
Amici Curiae
[3]
The
Southern Africa Litigation Centre and certain former Commissioners of
the Truth and Reconciliation Commission (the TRC), namely
Yasmin
Sooka, Dumisa Buhle Ntsebeza, Mary Maria Burton, Wendy Orr, Glenda
Wildschut and Fazel Randera, successfully applied to
this Court to be
admitted in the proceedings as amici curiae. In addition to filing
heads of argument, they were also granted leave
to make oral
submissions during the hearing of the matter.
Condonation
[4]
The
appellant sought condonation for the delay in the filing of the
record. In his application he ascribed the delay to the effects
of
the Covid-19 lockdown and the peculiar nature of his funding
arrangement with the State. He explained that he is not allowed
to
incur any litigation costs or expenses without the prior
authorisation of the State Attorney and that his attorney’s
request for authorisation to obtain the record was not answered,
probably due to the Covid-19 lockdown. His attorneys ultimately
procured the record at their own cost. But by then the period within
which it should have been filed had already expired.
[5]
The
application was not opposed, and given the somewhat unusual
circumstances relating to the funding arrangements of the appellant’s
litigation costs, as well as the effect of the national state of
lockdown, I am satisfied that the appellant gave a full and proper
explanation for the delay, which justifies granting the condonation
application.
Application
for leave to appeal
[6]
The
application for leave to appeal was advanced on the basis that the
Full Court erred in concluding that the delay in bringing
the
prosecution will not taint the fairness of the trial and violate the
appellant’s right to a fair trial. The appellant
submitted that
the court erred in finding that he was not being prosecuted for an
improper motive and that the court erred in not
finding that the
alleged political interference by the Minister of Justice and the
State President, by stopping the prosecution
of TRC cases, caused the
unreasonable delay and had the effect of tainting the fairness of the
trial he is required to face. He
argued that a substantial number of
further prosecutions of similar cases involving alleged offences
perpetrated during the apartheid-era
by police officers, who did not
seek amnesty for the offences from the TRC, would follow in future.
They would raise the same issues
relating to fairness of such
prosecutions, as in this case, and it was therefore imperative to get
clarity and finality on the
approach to be followed by courts in such
matters. These factors, he contended, were sufficient to convince the
court to grant
him leave to appeal.
[7]
The
Full Court dealt with these contentions when it refused the
application for leave to appeal. In my view, the issue of the alleged
political interference by the Executive and the State President in
the prosecution of crimes such as the present one and its ongoing
impact and relevance for prosecutions that may still be instituted in
future is certainly relevant. It, inter alia, raises the
important
question of what effect, if any, political interference, as a matter
of principle, has on the operations of the criminal
justice system.
For that reason, I think that there is a compelling reason to grant
leave to appeal.
[8]
The
merits of the matter should therefore be considered. But in doing so,
this Court should exercise the caution expressed by Ponnan
JA in
Hattingh
v Furman and Others N.O.
,
[1]
that the granting of leave to appeal does not suggest in any manner
whatsoever that an appellant in such circumstances has made
out a
case for success on the merits of the appeal because different
considerations come into play in the determination of an application
for leave to appeal, as opposed to an appeal on the merits.
The
merits
[9]
In
considering the merits of the appeal, I will briefly set out some of
the relevant factual background. The late Mr Timol, a political
activist and member of the South African Communist Party (SACP), was
arrested on 22 October 1971 at a roadblock after the South
African
Police found pamphlets of the then banned SACP in the boot of his
car. He died whilst in detention, on 27 October 1971.
In the inquest
held in 1972, the appellant’s testimony was that Mr Timol
opened a window of Room 1026 on the 10
th
floor of John Vorster Square and jumped out to his death before he
could be stopped. The Presiding Magistrate concluded that Mr
Timol
committed suicide and that no person was responsible for his death.
[10]
A
second inquest was held in 2017 before Mothle J after recommendations
were made to the second respondent, the Minister of Justice
and
Correctional Services, for the re-opening of the inquest of the
deceased in terms of s 17A of the Inquests Act 58 of 1959.
In October
2017, Mothle J concluded that Mr Timol was pushed from Room 1026 of
John Vorster Square with the necessary intent to
kill him and that
his death was preceded by torture at the hands of the police,
resulting in serious injuries to Mr Timol. He further
found that the
appellant participated in a cover up to conceal the crime of murder
and ordered that he be investigated with a view
to being prosecuted.
[11]
The
appellant was thereafter arrested and charged with the murder of Mr
Timol, on 30 July 2018, and then released on bail in the
amount of R1
000. His first appearance in the Gauteng Division of the High Court,
Johannesburg was on 18 September 2018. The trial
court is awaiting
the final outcome of this application.
Period
before appellant indicted
[12]
The
period between the death of Mr Timol and the arrest of the appellant
is about 47 years. The Full Court aptly divided this period
into
three sub-periods. The first period is the period from 1971 to 1994
related to the time when the former apartheid government
was still in
power and when the inquest findings of 1972 concluded that no one was
responsible for the death of Mr Timol and immunised
the appellant
from prosecution. There was no will in the Office of the Attorney
General of the day to challenge the inquest ruling
and it cannot be
ruled out that the Government could have also ensured that the truth
about Mr Timol’s death was suppressed.
[13]
The
second period, 1994 until 2002, was characterised by the transition
to democracy and the work of the TRC. This included the
amnesty
mechanisms which were open to those who may have committed political
crimes in the past. They had the opportunity to come
forward and
apply for amnesty. If they were successful in their applications for
amnesty they would be insulated from future prosecutions,
but if they
were unsuccessful or chose not to apply for amnesty, the risk of
future prosecution remained open.
[14]
The
third period is the period from 2003 until 2017. This is, in my view,
the most crucial period, because it relates to the period
when the
alleged political interference by the Executive, the alleged amnesty
granted by the State President and the alleged agreement
between
Government and other interested parties occurred.
Grounds
of appeal
[15]
The
main grounds of the appellant’s appeal, which were also raised
before the Full Court and comprehensively addressed by
it, were that
the envisaged prosecution will infringe the appellant’s rights
in terms of s 35(3) read with s 12 of the Constitution
of the
Republic of South Africa, 1996 (a) to have a trial that is
procedurally fair and is not instituted and/or prosecuted with
an
unlawful and/or improper motive; (b) to have the trial begin and be
concluded without unreasonable delay; (c) to be informed
of the
charge against him with sufficient detail to answer it; (d) to adduce
and challenge evidence effectively; and (e) to remain
silent and not
incriminate himself. The appellant further alleged that he was
granted amnesty and that there was an agreement that
he would not be
prosecuted.
[16]
In
supporting his grounds of appeal, the appellant, who is now an
octogenarian, contended that it was unfair to charge him some
47
years after the death of Mr Timol. He further argued that the reason
for the delay not to prosecute him was a deliberate decision
of the
National Prosecuting Authority (NPA), because of the interference by
the Executive and the State President.
[17]
According
to the record, Advocate Vusi Pikoli, who was the National Director of
Public Prosecutions (NDPP) during the second period,
complained about
the interference of the Government when he wanted to prosecute
apartheid-era perpetrators who had not applied
for amnesty or were
denied amnesty. It was not contested that from 2003 to 2017,
investigations into the TRC cases were stopped
as a result of an
executive decision. This was indeed interference with the NPA.
[18]
On the
issue of whether or not there was undue delay before the appellant
was charged, he contended that the delay should be calculated
from
1971. The NPA, on the other hand, argued that the period should be
calculated from 2018 when the appellant was charged.
[19]
It
should first be noted that before an accused person can be charged, a
police docket is opened and the matter is investigated.
Thereafter
the Office of the Director of Public Prosecutions (DPP) determines if
the accused person should be charged, or if charges
should be
withdrawn, or if they decline to prosecute.
[20]
To
determine whether or not there was any undue delay or if, as happened
in this case, an inquest should be held, all relevant factors,
including the time when the accused person is charged, should be
considered. The period before the accused person is charged is
important and cannot be ignored. The court should carefully consider
whether any delay could be calculated to infringe the accused’s
right to have his trial begin and be concluded without unreasonable
delay under s 35(3)
(d)
of the Constitution.
[21]
The
Full Court dealt with the first period (1971 to 1994, totalling 23
years), in detail. I agree with its finding for the reasons
it gives
that the said period, which was a pre-democratic era, should not be
taken into account in the determination of the delay.
[22]
It
should be noted that the appellant did not apply for amnesty during
the second period (1994-2002) and that it is common cause
that those
who did not apply for amnesty accepted the risk of future criminal
prosecution. This was also the view expressed in
the final TRC report
that made reference to the need to put in place a bold prosecutions
policy to avoid suggestions of impunity
or of the South African
Government and the NPA not complying with their constitutional
mandate to police and prosecute crime.
[23]
It is
clear, therefore, that if there was any delay in the second period of
eight years, it was beyond the control of the prosecution
and was
largely due to the operation of the Promotion of National Unity and
Reconciliation Act 34 of 1995 (TRC Act) and the political
circumstances that existed at the time.
[24]
As I
have said, any person who may have been involved in politically
motivated crimes of the past and who elected not to use the
mechanisms of the TRC to seek and obtain amnesty, could face the risk
of prosecution in the future. There is nothing unfair or
inequitable
about such a policy. In any event, this accords with what was
described as the constitutional obligation upon the State
to
prosecute crimes in
S
v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC) paras 31-33, where the Court said:
‘
The
question that arises is whether the quashing of the charges gives
rise to a constitutional matter. In our constitutional State
the
criminal law plays an important role in protecting constitutional
rights and values. So, for example, the prosecution of murder
is an
essential means of protecting the rights to life, and the prosecution
of assault and rape a means of protecting the right
to bodily
integrity. The State must protect these rights through, amongst other
things, the policing and prosecution of crime.
The
constitutional obligation upon the State to prosecute those offences
which threaten or infringe the rights of citizens is of
central
importance in our constitutional framework. The effect of the High
Court’s judgment in this case, given the interpretation
of s
319 by the SCA and its previous jurisprudence, is that the State will
be prevented from prosecuting the accused on the charges
which were
quashed, without the State being given an opportunity to appeal the
correctness of that decision. This case is different
from those in
which a charge is quashed, but where the State is able to supplement
the charge-sheet in a manner that enables the
prosecution to take
place. This course is not open to the State here.
The
importance of the State’s duty to prosecute crime is implicit
in s 179(2) of the Constitution, which provides that:
“
The
prosecuting authority has the power to institute criminal proceedings
on behalf of the State, and to carry out any necessary
functions
incidental to instituting criminal proceedings.”
By
providing for an independent prosecuting authority with the power to
institute criminal proceedings, the Constitution makes it
plain that
the effective prosecution of crime is an important constitutional
objective. Where, therefore, a court quashes charges
on the ground
that they do not disclose an offence with the result that the State
cannot prosecute that accused for that offence,
the constitutional
obligation of the prosecuting authority and the State, in turn, is
obstructed. The constitutional import of
such a consequence is
particularly severe where the State is in effect prevented from
prosecuting an offence aimed at protecting
the right to life and
security of the person. In these circumstances the quashing of a
charge in an indictment will raise a constitutional
matter.’
[25]
In my
view, the Full Court correctly summed up the effect of the period
spanning 1994 to 2002 in paras 52-53 of its judgment, where
it said:
‘
Accordingly,
this part of the timeline, to the extent that it constituted a delay,
was a delay of the kind that was regarded as
necessary and important
to allow a new society to come to terms with its past, to allow
victims and perpetrators to take advantage
of the opportunities
created by the TRC Act, and to provide a mechanism – flawed,
but the product of a historical compromise
– to seek and find
closure.
It
could not, in my view, be said to be a part of the delay when, by
operation of the law, it was a period of hiatus that was contemplated
by the TRC Act. Even if it could be regarded as a period of delay,
then there are meritorious reasons why it was the kind of delay
that
could hardly be regarded as culpable. It was a historic and unique
time in the history of South Africa. A difficult political
compromise
was being given effect to. The nation was collectively prevailed upon
to give the process an opportunity to succeed
in the hope that it
would advance the twin objectives of reconciliation and
reconstruction. It was imperative that South Africa
embrace this
process if it were to have any chance of growing as a new nation and
overcoming the deep distrust and suspicion that
characterised the
relationship between its people for so long.’
The
period 2003 - 2017
[26]
It was
during this 14 year period that the Executive adopted a policy
position conceded by the State parties that TRC cases would
not be
prosecuted. It is perplexing and inexplicable why such a stance was
taken both in the light of the work and report of the
TRC advocating
a bold prosecutions policy, the guarantee of the prosecutorial
independence of the NPA, its constitutional obligation
to prosecute
crimes and the interests of the victims and survivors of those
crimes.
[27]
All
these considerations, either viewed individually or collectively,
should have stood in the way of any such a moratorium on the
prosecution of TRC era cases. That it happened despite the
constitutional, legal and other considerations suggests disdain for
those important considerations and interests. The Full Court rightly
recommended a proper investigation into these issues by the
NDPP and
a determination whether any action in terms of s 41(1) of the
National Prosecuting Authority Act 32 of 1998 (NPA Act)
was
necessary.
[28]
Section
179(2) of the Constitution vests exclusive power to the NPA to
institute criminal proceedings on behalf of the State and
s 179(4)
requires the NPA to exercise its functions without fear, favour or
prejudice and requires the enactment of legislation
to give effect to
this requirement.
[29]
That
legislation is the NPA Act which provides in relevant part:
‘
32
Impartiality of, and oath or affirmation by members of prosecuting
authority -
(1)
(a)
A member of the
prosecuting authority
shall serve impartially
and exercise, carry out or
perform his or her powers, duties and functions
in good faith and
without fear, favour or prejudice and subject only to the
Constitution
and the law.
(b)
Subject to the
Constitution
and
this
Act
,
no organ of state and no member or employee
of an organ of state nor any other person shall improperly
interfere
with, hinder or obstruct the
prosecuting
authority
or any member thereof in the exercise, carrying out or performance of
its, his or her powers, duties and functions.
.
. .
41
Offences and penalties
(1)
Any person who contravenes the
provisions of section 32(1)
(b)
shall be guilty of an offence
and liable on conviction to a fine or to imprisonment for a period
not exceeding 10 years or to both
such fine and such imprisonment.’
[30]
The ineluctable conclusion in all the circumstances is that political
decisions were taken by the Executive which
may have affected the
investigation and prosecution of the TRC cases. Be that as it may,
however, whether the nature of the political
decisions amounted to a
lawful pardon or amnesty – an issue which was not raised in the
Full Court and which the appellant
can still raise during the plea
proceedings in the trial – remains unclear on the available
evidence. I agree entirely with
the Full Court’s finding that
while the issue of political interference is a matter of great
seriousness, the absence of
detail as to why it occurred was not an
impediment to the determination of the matter. There is simply no
evidence showing how
the political interference impacts on factors
relating to whether the substantial fairness of the trial is
tainted.
[2]
[31]
It is firmly established that an application for the permanent stay
of prosecution should not be easily granted.
In
Sanderson
v AG Eastern
Cape
,
[3]
the Constitutional
Court pointed out that such an application has the effect of
depriving society of presenting a complaint against
someone who has
transgressed its rules. This is such a central feature of any
functioning democracy that it should never become
diluted or
distorted. On the contrary, any application for a stay must be
considered in the context of how it impacts on the ability
and the
imperative of the State to carry out this important function.
[32]
In
Bothma
v Els
,
[4]
the Constitutional Court reiterated the approach taken in
Sanderson
.
It held that in determining relief for a permanent stay of
prosecution, the court is required to engage in a balancing exercise
in which the conduct of both the prosecution and the accused are
weighed and the following considerations examined: the length
of the
delay, the reasons the government assigns to justify the delay, the
accused’s assertion of a right to a speedy trial
and prejudice
to the accused. The Constitutional Court, however, did not regard
these factors as constituting a closed list and
indicated that the
nature of the offence and the public policy considerations that may
be attached to it would also be a relevant
consideration. It is
ultimately a value judgment the court brings to bear after a proper
consideration of the evidential material
relating to the relevant
factors.
[33]
The Full Court dealt with each of these factors in some detail. I do
not intend to repeat what is contained in
its judgment and its
conclusions in this regard as the appellant did not take issue with
that analysis, with which I agree. I cannot
find that the Full Court
erred in exercising the value judgment that it did or that it
misdirected itself in any manner justifying
the interference of this
Court.
[34]
There is another important factor to consider. In
Zanner
v Director of Public Prosecutions, Johannesburg
,
[5]
this Court said:
‘
The
nature of the crime involved is another relevant factor in the
enquiry. This is particularly so in the present case, considering
its
seriousness. The sanctity of life is guaranteed under the
Constitution as the most fundamental right. The right of an accused
to a fair trial requires fairness not only to him, but fairness to
the public as represented by the State as well. It must also
instil
public confidence in the criminal justice system, including those
close to the accused, as well as those distressed by the
horror of
the crime. It is also not an insignificant fact that the right to
institute prosecution in respect of murder does not
prescribe.
Clearly, in a case involving a serious offence such as the present
one, the societal demand to bring the accused to
trial is that much
greater and the Court should be that much slower to grant a permanent
stay.’
These
comments apply with equal force in this case.
[35]
The appellant did not complain that there was a delay to charge him
after the ruling of Mothle J in the inquest
and did not contend that
any evidence upon which criminal charges against him could be
formulated before those proceedings. Neither
did he complain that
after his first court appearance in July 2018, the NPA unreasonably
delayed in proceeding with the trial.
The provisions of
s 342A(1)
and
(2) of the
Criminal Procedure Act 51 of 1977
[6]
are, therefore, not applicable. Ultimately, there is no evidence that
the 47 years pre-trial delay would inevitably taint the overall
fairness of the trial.
[36]
The appellant has been furnished with copies of the police docket, a
summary of substantial facts and the indictment.
His version of the
events of 27 October 1971 in the inquest in no way suggests that his
memory has faded due to old age as he contended
before us. In any
event, as the Full Court pointed out old age and infirmity would be
relevant at the sentencing stage and are
not grounds upon which the
appellant can rely upon as a form of prejudice.
[37]
The right to adduce evidence and challenge the State’s evidence
can best be dealt with during the trial proceedings.
The appellant
testified at the second inquest proceedings and challenged the
evidence led there. He knows exactly what case the
State intends to
put forward. Furthermore, the fact that he has been charged with
premeditated murder whilst Mothle J, in his judgment,
referred to him
as an accessory does not, in my view, assist the appellant because
the Judge did not prescribe the charges to be
preferred against the
appellant. The NPA has the prerogative to formulate charges based on
the available evidence.
[38]
In passing, it is interesting to note that the appellant seeks a
permanent stay of the proceedings in respect of
the murder charge
only. However, the evidence that would be presented by the State in
respect of the second charge of defeating
the ends of justice or
obstructing justice is inextricably interwoven with the death of Mr
Timol. One is left wondering as to the
appellant’s stratagem in
this regard.
[39]
For all these reasons, I am not persuaded the appellant has
established that he has or will likely suffer trial-related
prejudice
if he is not granted a permanent stay of prosecution and is brought
to trial. The trial court will be best suited to
deal with any issue
of potential prejudice. The appeal must, accordingly, fail.
[40]
Regarding the issue of costs, based on the nature of this
case, it is not appropriate to make an order of costs against
the
appellant.
[41]
In the result, I make the following order:
The
application for leave to appeal is granted and the appeal is
dismissed.
A P LEDWABA
ACTING
JUDGE OF APPEAL
Cachalia
JA
[42]
I have read the judgment of Ledwaba AJA (the first judgment). The
facts pertaining to this appeal and much of the
law have been set out
in detail by the court a quo, and recounted in the first judgment. I
agree with the conclusion in the first
judgment that the court a quo
correctly dismissed the appellant’s application for his
prosecution to be permanently stayed.
My reasons differ slightly. I,
however, disagree with the first judgment that the appellant has made
out a proper case for the
appeal to be entertained by this Court.
There were no compelling reasons to entertain this appeal, much less
reasonable prospects
of success. I would accordingly dismiss the
application for leave to appeal against the order of the high court.
My reasons follow.
[43]
It is apparent that even though the appellant sought broadly
formulated and overlapping relief in the court a quo,
[7]
what he wanted in substance was a permanent stay of his prosecution.
This is how the court a quo understood it and, which counsel,
who
appeared on his behalf in this Court, confirmed.
[44]
Before I deal with what appear to be the main grounds for the stay
application, the appellant advanced two other
grounds, also to
support the stay application. First, he contended that the President
had granted him a pardon or amnesty in terms
of s 84(2)
(j)
of
the Constitution.
[8]
Secondly, he argued that there was an agreement by the Government
involving the President, the Minister of Justice and the NPA
not to
prosecute apartheid-era crimes. There is no merit in either of these
complaints.
[45]
As regards the pardon or amnesty allegedly granted by the President,
the appellant did not make out any case, much
less provide any facts
to support this startling written submission in his heads of
argument. In addition, because the President
is the sole bearer of
all obligations pertaining to pardons under s 84(2)
(j)
he
had to be joined in these proceedings because of his legal interest
in the matter, but was not.
[9]
The court a quo therefore correctly rejected this ground.
[46]
The same criticism may be made regarding the second equally
astonishing ground, ie that there was an agreement
by senior State
officials, including the President, not to prosecute politically
motivated apartheid-era crimes. This argument
was advanced for the
first time in the appellant’s written heads of argument in the
present application. It must fail for
the same reasons as the first
ground. In addition, if there was any such secret agreement, it would
probably be unlawful and unconstitutional,
and would fall to be set
aside on multiple grounds. It is unnecessary to explore this question
further in the judgment.
[47]
It bears mentioning, as I pointed out earlier, that the appellant
seeks only a stay of prosecution. But what he
has done is simply
merge these arguments regarding an agreement or pardon, which are not
supported by any facts, to buttress the
case for a permanent stay of
his prosecution. If there was a pardon or
lawful
agreement
pertaining to the prosecution of apartheid-era crimes that would be
the end of the matter. There would be no need for
a stay application.
Put differently, the speculative amnesty or agreement not to
prosecute these crimes are irrelevant to the stay
application and
were advanced for no reason other than to add colour to the stay
application.
[48]
I now turn to the appellant’s main grounds in support of the
application for a permanent stay of the prosecution.
These were:
firstly, the unreasonable delay of 47 years in instituting the
prosecution; secondly, the alleged political interference
and
pressure on the NPA from senior government officials not to prosecute
apartheid-era crimes, which contributed to the delay;
thirdly, that
the decision to prosecute the appellant on a charge of murder was
made for an improper purpose, as it was not supported
by the findings
of the Inquest Court; fourthly, the alleged infringement of his right
to adduce and challenge evidence occasioned
by the delay and the
State’s failure to respond properly to his request for further
particulars to the charges against the
appellant; and finally, that
the NPA and the Minister of Justice allegedly withheld relevant
information from the court a quo in
response to the stay application.
[49]
Before I deal with these grounds it is noteworthy that the law
regarding stays of prosecution is settled and straightforward.
The
court a quo dealt with the important cases on the topic and applied
them, as did the first judgment. I shall not burden this
judgment by
referring to them. The appellant does not suggest that the court a
quo – constituted by three judges –
misdirected itself
either in regard to the applicable legal principles or the facts. He
simply wants this Court to grant his application
for leave to appeal
on the grounds that this Court may come to a different conclusion.
[50]
The cases on this topic have all been concerned with delays in the
commencement of a trial where reliance has been
placed on the
constitutional right of an accused, in s 35(3)
(d)
of the
Constitution, to have his trial begin and conclude without
unreasonable delay. Briefly stated, where there has been an
unreasonable delay – and there can be no quibble that in this
case the delay was extraordinary – the central enquiry
is
whether the accused’s trial-related interests have been
prejudiced by the delay. For the courts have made clear that an
unreasonable delay does not per se infringe the accused’s right
to a fair trial.
[51]
Permanent stays are almost never granted following delays in the
commencement and conclusion of a trial.
[10]
This is because a permanent stay is an exceptional remedy. It may
only be granted where the delay is egregious and has resulted
in
irreparable trial-related prejudice. Moreover the trial-related
prejudice must be demonstrably clear (‘definite not
speculative’).
More often than not, where there is a delay, but
no clear trial-related prejudice, there are a range of less drastic
remedies available
to ameliorate any broader prejudice an accused may
suffer. These include a mandamus requiring the prosecution to
commence the trial
forthwith, denying it a postponement of the trial
or awarding damages to an accused following an acquittal.
[52]
Apart from the delay and the consequent prejudice to the appellant
that may have resulted therefrom, the other
grounds relied upon by
the appellant to support the stay are either speculative or amenable
to being ameliorated through less drastic
remedies. The first is the
accusation of political interference that resulted in the initial
decision not to prosecute apartheid-era
crimes, including the present
case, and contributed to the delay. The NPA disclosed this
interference but insisted there was no
trial-related prejudice.
Allied to this ground is the contention that the prosecution is being
pursued for an improper purpose,
which overlaps with the case of
political interference being made. The court a quo rejected both
contentions. Its conclusions cannot
be faulted.
[53]
I should add that the fact of this political interference in the
decision not to initially prosecute apartheid-era
crimes was the main
ground advanced by the appellant to argue that this was a compellable
reason for this Court to grant leave.
The first judgment inclines to
granting leave on this ground, but in the absence of any demonstrable
trial-related prejudice I
am constrained to disagree that a proper
case for leave was made out. And this Court has already dealt with
the problem, as I point
out below.
[54]
The contention that political interference has tainted a decision to
prosecute – or not to prosecute –
has gained increased
currency in recent years as individuals who wield political power
seek to shield themselves from being held
to account for their
actions in criminal courts. One such case, is that of the erstwhile
President of the Republic, Mr Jacob Zuma,
who has sought to avoid
being prosecuted on, inter alia, the ground that there was political
interference in the original decision
not to prosecute him, which
tainted the subsequent decision to prosecute him.
[55]
The issue arose pertinently in
National
Director of Public Prosecutions v Zuma
,
[11]
even though it did not concern a permanent stay specifically. In
dealing with Mr Zuma’s allegation that there had been political
interference with a prosecutorial decision not to prosecute him,
which he claimed had tainted the subsequent decision to prosecute
him, the court said the following:
‘
A
prosecution is not wrongful merely because it is brought for an
improper purpose. It will only be wrongful if, in addition,
reasonable
and probable grounds for prosecuting are absent . . .
which in any event can only be determined once criminal proceedings
are concluded. The motive behind the prosecution is irrelevant . . .’
[56]
Applying this dictum to the present matter, it is apparent that the
political interference that admittedly happened
did not make the
decision to prosecute the appellant wrongful. If, therefore, the
prosecution is not wrongful, and no trial-related
prejudice has
occurred as a result of this interference, the remedy of a permanent
stay is simply not competent. The fact that
the NPA and the Minister
did not disclose the full extent of the political interference when
it filed its first set of answering
affidavits, is to be deprecated,
but is not a ground to grant a permanent stay. There is, therefore,
no reason to revisit this
question in this case.
[57]
The allegation that the prosecution for murder is being pursued for
an improper purpose is similarly groundless.
The appellant contends
that the Inquest Court found that there was sufficient evidence for
him to be prosecuted as an accessory
after the fact to murder, but
not for murder. The NDPP is not bound by findings of an Inquest
Court. It has a discretion to charge
an accused with any crime, the
only qualification being that there is reasonable and probable cause
for the prosecution on a charge.
If there is not – a matter
that can only be decided if the appellant is acquitted on the murder
charge – he will be
entitled to pursue a damages claim against
the NDPP. He, therefore, has a remedy and is not entitled to a
permanent stay on this
ground either.
[58]
The contention that the appellant’s right to adduce and
challenge evidence is being infringed by the failure
of the
prosecution to provide him with further particulars to prepare for
trial is utterly hopeless. He complains that in having
to respond to
the charge of murder allegedly committed in the execution of a common
purpose, he requested further particulars regarding
the precise acts
he is alleged to have committed in furtherance of the common purpose.
The NDPP, he says, has refused to answer
the questions insisting that
the case is based on circumstantial evidence. It also refuses to
provide clear answers to questions
pertaining to the alleged torture
that Mr Timol endured before his death and the acts allegedly
committed by the appellant in this
regard.
[59]
The appellant is represented by experienced counsel. He would
therefore be aware that this is a complaint that
can only be
entertained by a trial court. He has a remedy to object to the charge
and apply to the trial court to compel the production
of the
particulars under
s 85
of the
Criminal Procedure Act 51 of 1977
.
[12]
If the court is persuaded that the application is well-founded, and
orders that the particulars be furnished to the appellant,
he may
apply for the charges to be quashed, if the prosecutor fails to do
so. That would have the same effect as granting a permanent
stay. The
appellant therefore conflates a possible remedy for the delivery of
further particulars with the drastic remedy for a
permanent stay.
This complaint is, therefore, irrelevant to his present application
for a permanent stay. The court a quo rightly
rejected it.
[60]
What remains is the delay itself. The first judgment, with respect,
correctly holds that there is no basis to interfere
with the court a
quo’s conclusion that there is no evidence that the delay in
this case will result in any trial-related
prejudice. The fact that
there was political interference that contributed to the delay takes
the matter no further. The Timol
family have also been victims of
this delay; they have waged what can only be described as a heroic
struggle with dogged determination
to bring the alleged perpetrators
of these crimes to trial. The public interest demands that their
efforts are not in vain.
[61]
It must be mentioned that once the appellant pleads and his trial
proceeds, it shall be the duty of the trial judge
to ensure the
fairness of the trial. The court will be aware that because the trial
is proceeding many years after Mr Timol’s
death, the evidence
available to the State and the defence may be less than satisfactory.
As the Canadian Supreme Court has observed
with regard to an
accused’s difficulties caused by an inordinate delay:
‘
Difficulty
may well be experienced by an accused in gathering rebuttal evidence
. . . [T]he potential for such difficulty is likely
one of the
reasons why the prosecution bears the heavy onus of
proving
all aspects of guilt beyond reasonable doubt.
In
that regard the criminal [justice] system has always taken into
consideration that it will occasionally be difficult for an accused
to demonstrate innocence, and has removed the need to do this, by
putting a high onus of proof on the Crown.’
[13]
The
trial court will thus have to be astute to whatever deficits there
may be in the evidence because of the passage of time, and
which may
have prejudiced the appellant in conducting his defence. And, if it
appears that there are shortcomings in the evidence
as a result of
which the appellant has been prejudiced in preparing or conducting
his defence, this will redound to his favour.
He will also have an
opportunity to appeal against the judgment if the trial court
misdirects itself in this regard.
[62]
In conclusion, the appellant has not demonstrated any legal or
factual basis that he has any reasonable prospects
of success in an
appeal. Neither has he advanced a compellable reason for this Court
to entertain the appeal. The order I would
thus make is that the
application for leave to appeal is dismissed.
A
CACHALIA
JUDGE
OF APPEAL
APPEARANCES
For
the appellant:
J G Cilliers SC (with S J Coetzee SC)
Instructed
by:
Ben Minnaar Attorneys, Pretoria
Hill McHardy &
Herbst Inc, Bloemfontein
For
the 1
st
, 2
nd
and 3
rd
respondents: K Tsatsawane SC (with T Seboko)
Instructed
by:
The State Attorney, Pretoria
The State Attorney,
Bloemfontein
For
the 4
th
respondent:
H Varney SC (with T Scott)
Instructed
by:
Legal Resources Centre, c/o Webber Wentzel, Johannesburg
Webbers Attorneys,
Bloemfontein
For
the 1
st
amicus curiae:
B Meyersfeld (with S Nakhjavani)
For
the 2
nd
amicus curiae:
K Pillay SC
(with K Premhid)
[1]
Hattingh v Furman and Others
NNO
[2020] ZASCA 123
(SCA).
[2]
Bothma v Els
[2009] ZACC 27
;
2010 (2) SA 622
(CC) para 35.
[3]
Sanderson v AG Eastern Cape
1998 (2) SA 38 (CC).
[4]
Footnote 2.
[5]
Zanner v Director of Public
Prosecutions, Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) para 21.
[6]
Section 342A.
Unreasonable
delays in trails:
‘
(1)
A court before which criminal proceedings are pending shall
investigate any delay in the completion of proceedings which appears
to the court to be unreasonable and which could cause substantial
prejudice to the prosecution, the accused or his or her legal
adviser, the State or a witness.
(2)
In considering the question whether any delay is unreasonable, the
court shall consider the following factors:
(a)
The duration of the delay;
(b)
the reasons advanced for the
delay;
(c)
whether any person can be blamed
for the delay;
(d)
the effect of the delay on the
personal circumstances of the accused and witnesses;
(e)
the seriousness, extent or
complexity of the charge or charges;
(f)
actual or potential prejudice
caused to the State or the defence by the delay, including a
weakening of the quality of evidence,
the possible death or
disappearance or non-availability of witnesses, the loss of
evidence, problems regarding the gathering
of evidence and
considerations of cost;
(g)
the effect of the delay on the
administration of justice;
(h)
the adverse effect on the
interests of the public or the victims in the event of the
prosecution being stopped or discontinued;
(i)
any other factor which in the
opinion of the court ought to be taken into account.’
[7]
Paragraph 1 above.
[8]
Section 84(2)
(j)
of the Constitution
provides that the President is responsible for ‘pardoning or
reprieving offenders and remitting any
fines, penalties or
forfeitures’.
[9]
Minister of Justice and
Constitutional Development v Chonco
[2009] ZACC 25
;
2010 (4) SA 82
(CC) paras 40 and 44.
[10]
The exception is
Broome
v Director of Public Prosecutions, Western Cape and Others; Wiggins
and Another v Acting Regional Magistrate, Cape Town
and Others
2008
(1) SACR 178
(C). That case turned on its narrow facts where the
court held that the loss of evidence occasioned by the delay of 7
years had
caused irreparable prejudice to the accused in preparing a
proper defence.
[11]
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009
(2) SA 277
(SCA) para 37.
[12]
Section 85. Objection
to charge:
‘
(1) An
accused may, before pleading to the charge under section 106,
object to the charge on the ground –
(a)
. . .
(b)
. . .
(c)
. . .
(d)
that the charge does not contain
sufficient particulars of any matter alleged in the charge . . .
(e)
. . .
(2)
(a)
If
the court decides that an objection under
subsection
(1)
is well-founded, the court shall make such order
relating to the amendment of the charge or the delivery of
particulars
as it may deem fit.
(b)
Where
the prosecution fails to comply with an order under
paragraph
(
a
)
,
the court may quash the charge.’
[13]
R v Carosella
[1997]
1 SCR 80
para 105, cited with approval in
Bothma
v Els
[2009] ZACC 27
;
2010 (2) SA 622
(CC) para 81.