THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 062/04
In the matter between:
YOSHEN NAIDOO 1
st Appellant
THANASELVAN KISTA PILLAY 2
nd Appellant
JAYESH VINOED LALLOO 3
rd Appellant
RAVINDREN NAIDOO 4
th Appellant
and
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 1
st Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS, CAPE OF 2nd Respondent
GOOD HOPE PROVINCIAL DIVISION
A LE GRANGE ESQ 3rd Respondent
________________________________________________________________
Coram: Mpati DP, Zulman, Navsa, Ponnan JJA et Comrie AJA
Date of hearing: 28 February 2005
Date of delivery: 29 March 2005
Summary: Order in terms of s 342A(3)( c) of the Criminal Procedure Act 51 of 1977 that
prosecution not be resumed or instituted de novo without written instruction of attorney-
general ─ written authorisation by prosecutor not valid ─ provisions of National
Prosecuting Authority Act 32 of 1998 considered ─ Directors of prosecutions at the seat
of a High court authorised to issue such instruction.
________________________________________________________________
JUDGMENT
________________________________________________________________
2
NAVSA JA:
[1] The crisp issue in this appeal is whether the resumption or
institution de novo of the prosecution against the four appellants in
the Regional Court, Bellville was properly authorised by a written
instruction, dated 20 November 2000, issued by Ms Susanna
Galloway purportedly on behalf of the second respondent. At that
time Ms Galloway was a senior State advocate in the second
respondent’s office. I will hereafter, for the sake of convenience, refer
to that written instruction as ‘the certificate’.
[2] The appeal is against a judgment of the Cape High Court
(Desai and HJ Erasmus JJ) which, in refusing an application by the
appellants for an order, inter alia, reviewing and setting aside the
certificate, held that it was valid.
[3] The first respondent is the National Director of Public
Prosecutions (the NDPP), appointed in terms of s 179(1)( a) of the
Constitution as head of the Nati onal Office of the prosecuting
authority, established in terms of s 5 of the National Prosecuting
Authority Act 32 of 1998 (the NPAA).
3
[4] The second respondent is the Director of Public Prosecutions,
Cape of Good Hope Provincial Divisi on, appointed in terms of s 13,
read with s 6(2), of the NPAA.
[5] The third respondent is Mr A La Grange, a Regional Magistrate
at the Bellville Magistrates’ Cour t, whose role in the matter is
described in para 11 below.
[6] In the court below only th e second respondent opposed the
application, the other two respondents choosing to abide the decision
of that court. Before us the firs t and third respondents adopted the
same passive position.
[7] The four appellants had been arrested during November 1997
and were charged with several counts of robbery of motor vehicles.
Their criminal trial was pending in the Regional Court at Parow and,
later, at Bellville. Almost two years thereafter, on 24 August 2000,
Mr Botes, a Regional Magistrate at the Bellville court, after concluding
an investigation into the delay in the completion of proceedings in
terms of s 342A(1) of the Criminal Procedure Act (the CPA), struck
the matter from the roll pursuant to s 342A(3)( c) of the CPA and
made an order as envisaged in that subsection, namely, that the
4
prosecution against the appellants not be resumed or instituted de
novo without the written instruction of the attorney-general. Mr Botes
found that the State was to blame for the unreasonable delay in the
completion of the proceedings. For reasons that will become
apparent, it is not necessary to co nsider the correctness of that
conclusion.
[8] On 20 November 2000 Ms Gallowa y issued the certificate. The
second respondent has always ma intained that the certificate
qualifies as the written instruction of the attorney-general.
[9] The certificate requires closer scrutiny. It is contained in a
document bearing the title
‘THE DIRECTOR OF PUBLIC PROSECUTIONS’
and is addressed to the Senior Stat e prosecutor, Private Bag X10,
Bellville. It purports to be dispatched from ‘Die Direkteur van
Openbare Vervolgings, Kaap die G oeie Hoop, Privaatsak 9003,
Kaapstad’.
The material part of the certificate reads as follows:
‘Ek gelas dat die vervolging in terme van artikel 342A(3)(c) van Wet 51 van 1977
heringestel word teen die beskuldigdes
1. YOSHEN NAIDOO
5
2. JASHMENDREN NAIDOO
3. THANASELVAN PILLAY
4. YAMESH VINOED LALLOO
5. RAVINDREN NAIDOO; en
6. GONASAREN MOODLEY
op 7 aanklagte van gewapende roof in die Streekhof.
Die beskuldigdes moet gedagvaar word vi r verskyning op ‘n datum wat hulle
regsverteenwoordigers pas en was op ( sic) die verhoor begin/afgehandel kan
word.’
Below a signature at the bottom of the page the following appears in
typeface:
‘DIREKTEUR VAN OPENBARE VERVOLGINGS: KAAP DIE GOEIE HOOP’.
It is unclear who signed the certificate.
[10] During April 2001 the State, rel ying on the certificate, resumed
the prosecution against the f our appellants or instituted it de novo by
way of summons. Thereafter, duri ng 2001, the appe llants appeared
periodically in the Regional Court, Bellville, with the State and the
defence involved in skirmishes c oncerning further particulars and
objections to the charge.
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[11] On 13 August 2001, the th ird respondent, before whom the four
appellants had appeared during 2001 and whom they had attempted
to persuade that the certificate wa s invalid because it was not a
written instruction by the NDPP or his properl y authorised delegate,
ruled against them on that question.
[12] On 3 April 2002 the appellants, repeating their contention that
only the NDPP or his properly auth orised delegate could issue the
written instruction contemplated in s 342A(3)( c), launched the
application in the court below. It is common cause that the NDPP had
not delegated specific authority in this regard to the second
respondent or to anyone else.
[13] The court below reasoned that since s 20(3) of the NPAA
provides that a director, such as the second respondent, has within
his or her area of jurisdiction the overall powers ascribed to a
prosecuting authority in terms of s 179(2) of the Constitution, he or
she has the authority to issue the wr itten instruction contemplated in
s 342A(3)(c) of the CPA. After consi dering the factual background,
the court held that, in deciding to issue the certificate, Ms Galloway
acted under the direct supervision of the second respondent and that
7
the latter had thus, in effect, issued t he certificate. On that basis it
found that the certificate was properly authorised.
[14] An application for leave to appeal was refused by the court
below.
[15] The appellants were subsequently granted leave to appeal by
this Court, such leave being limited to the following issues:
‘(a) Whether the court a quo erred in deciding that t he second respondent is
empowered to resume or institute de novo a prosecution by virtue of s 342A(3)(c)
of Act 51 of 1977 read with s 45(a) of Act 32 of 1998.
(b) Whether, if the second respondent was so empowered, the second
respondent did give the “written instruction” to which s 342A(3)(c) refers;
(c) Whether, if he did not and the wr itten instruction was given by Ms
Galloway and/or Mr Niehaus, they or either of them had the power to do so.’
(Emphasis added.)
[16] It is necessary at this sta ge to explain the respective roles
played by Ms Galloway and Mr Niehaus in the history of the matter.
[17] Ms Gesina Erasmus was the prosecutor in the appellants’ trial
during 1999. Mr Strydom, who was the prosecutor at the time that
proceedings were launched in the court below, succeeded her. As
8
stated earlier, at the time that the certificate was issued, Ms Galloway
was a senior State advocate in the second respondent’s office. At
that time Mr Jacobus Niehaus was one of a num ber of deputy
directors of public prosecutions in the office of the second
respondent, having been appointed as such in terms of s 15(1)( b) of
the NPAA. Ms Galloway had been a ppointed a prosecutor in terms of
s 16 of the NPAA and acted in that capacity at all material times.
[18] In her affidavit in support of the second respondent’s case, Ms
Galloway stated that she had on ly become involved with the
appellants in the institution of the prosecution de novo and not before.
She had no independent recollection of the case:
‘3. Ek kan nie onthou hoe dit gebeur het dat ek die eerste keer van die saak
bewus geword het nie, maar uit die inhoud van korrespondensie wat oor hierdie
saak op lêer is, sowel as my kant oordagboek, blyk dit dat ek die onderhawige
saak op 21.8.2000 met adv Niehaus bespreek het. Ek neem aan dat dit as
gevolg van die feit dat di e verdediging die Staat se aansoek om uistel op
23.[8].2000 sou opponeer en die Streek landdros aangedui het dat hy die
aansoek om uitstel in terme van ar tikel 342A van Wet 51 van 1977 sou
ondersoek.’
9
[19] After Mr Botes had made t he order referred to earlier, Ms
Galloway made arrangements for a t ranscript of the proceedings to
be placed before her to determine t he reasons for the delay in the
completion of proceedings. Upon re ceipt of the transcript, together
with the investigation dockets, she considered what further steps to
take.
[20] The following parts of Ms Gallo way’s affidavit are of particular
importance:
’11. Op 17.11.2000 ontvang ek die betro kke oorkonde en word ‘n opdrag . . .
gedateer 20.11.2000 uitgerei k nadat ek die aangeleent heid met adv Niehaus
bespreek het . . .
12. Hoewel ek na 17.11.2000 die saak met adv Erasmus en Mnr Strydom
bespreek het, het ek self nie weer ‘n beslissing in die saak gemaak nie.
. . .
18.3 Dit word dus ontken dat ek buite my magtiging gegaan het toe ek die
sertifikaat van herinstelling van die vervolging uitgereik het.
. . .
19.3 Dit word dus ontken dat ek nie al die feite behoorlik oorweeg het nie ,
en dit word verder ontken dat ek onbillik of onredelik opgetree het.
19.4 Dit word ontken dat ek die nadeel (“pr ejudice”) wat die Applikante gelei het
nie in aanmerking geneem het nie. Ek herhaal dat ek van mening was dat hulle
ook tot ‘n groot mate tot hulle eie nadeel bygedra het. Dit m oet verder genoem
10
word dat ek die Staat se benadeling ook in gedagte moes hou , en aangesien
ek van mening was dat die Staat nie uitsluitlik vir die vertraging verantwoordelik
was nie, het gesonde regspleging geverg dat die vervolging heringestel word.’
(Emphasis added.)
[21] It is clear from the parts of Ms Galloway’s affidavit referred to
above that she had two discussions with Mr Niehaus before she
made the decision to issue the cert ificate. The first was before the
order by Mr Botes and the second was before she made the decision
to issue the certificate. It is evident from the remainder of Ms
Galloway’s affidavit that she cons idered her authority to issue the
certificate on behalf of the second respondent to be found in the
provisions of the NPAA that deal with powers delegated to a
prosecutor. This appears even more clearly from her supplementary
affidavit. I will consider those provisions in due course.
[22] In Mr Niehaus’ affidavit he does no more than confirm the
contents of Ms Galloway’s affidavit insofar as it refers to his
‘betrokkenheid of . . . medewete of goedkeuring . . .’.
[23] At the relevant time the second respondent was Mr Frank
Kahn. In his affidavit he stated that his power to re-institute a
11
prosecution amounted to a repetition of his original power to institute
a prosecution. He pointed out that historically his powers derived from
the Attorney-General Act 92 of 1992 (the AGA), which was repealed
on 16 October 1998 and replaced by the NPAA. Mr Kahn considered
that at the time the certificat e was issued his powers derived from
ss 20(1) and 20(3) of the NPAA and t hat those provisions authorised
him to issue the written inst ruction referred to in s 342A(3)( c). In
response to the appellants’ assertions to the effect that he had failed
to apply his mind to the matter wh en the certificate was issued, he
merely referred to the affidavits of Ms Galloway and Mr Niehaus and
stated that they had both worked under his direct control and
supervision. Mr Kahn does not say that he was personally involved in
the decision to issue the certific ate. It is clear that he, like Ms
Galloway, considered that the provisions of the NPAA dealing with
the delegation of powers to prose cutors, authorised Ms Galloway,
acting with Mr Niehaus, to issue the cert ificate in his stead. This is all
the more apparent from his supplementary affidavit.
[24] Before us the appellants s ubmitted that by requiring in
s 342A(3)(c) of the CPA that a prosecu tion could only be resumed or
instituted de novo on the written instructi on of the attorney-general,
12
the legislature intended to ensure, in the interest of a fair trial and
justice, that a decision to do so w ould be taken at the highest level. It
was submitted that this was done to prevent abuse on the part of
prosecutors, who on occasion are themselves the cause of
unreasonable delays in the comp letion of proceedings. It was
contended that the attorney-general, who was the head of a regional
prosecution authority under the AGA, was supplanted by the first
respondent who is now the head of a single national prosecuting
authority and that he or she alone could issue the written instruction.
This position, so it was submitted, was preserved by s 45 of the
NPAA and it followed that, since t he first respondent had never been
personally involved in the decision to resume the prosecution or to
institute it de novo, the certificate was irregul arly issued and fell to be
set aside.
[25] The appellants submitted furt her that, even assuming that the
provisions of the NPAA enabled directors of public prosecutions, such
as the second respondent, to issue t he written instruction referred to
in s 342A(3)(c), it was clear that in the present case the only person
who considered and decided to resume or institute the prosecution de
13
novo was Ms Galloway, who had no power to do so. The certificate
was therefore irregularly issued.
[26] Section 45 of the NPAA provides:
‘Any reference in any law to ─
(a) an attorney-general shall, unless the context indicates otherwise , be
construed as a reference to the National Director; and
(b) an attorney-general or deputy attorney -general in respect of the area of
jurisdiction of a High Court, sha ll be construed as a reference to a Director or
Deputy Director appointed in terms of this Act, for the area of juri sdiction of that
Court.’
(Emphasis added.)
[27] The first question is whether, within the context of s 342A(3)(c),
the second respondent was entitled to issue the certificate.
[28] The NPAA repealed the whole of the AGA. It is, however,
useful to consider the provisions of the AGA as it is clear that the
designation ‘attorney-general’, as it appears in s 342A(3)( c), derived
from that Act.
[29] In terms of s 2 of the AG A an attorney-general was appointed
by the State President in respect of the area of jurisdiction of each
14
provincial division and of the Witw atersrand Local Division of the
Supreme Court (now High Court). In terms of s 2(2) deputy attorneys-
general were appointed by the Minist er of Justice for each area for
which an attorney-general had been appointed. Section 5 set out the
duties and powers of attorneys-g eneral which included the general
power to prosecute on behalf of the St ate in criminal proceedings in
any area of that att orney-general’s jurisdiction. It also included the
power to prosecute appeals. In term s of s 5(2) an attorney-general
was empowered to perform all dutie s and exercise all powers
imposed or conferred under the C PA and any other law consonant
with the AGA. Section 6 provided for a delegation to others, including
prosecutors, subject to the control and direction of the attorney-
general, of the authority to conduc t prosecutions in criminal
proceedings in the S upreme Court and in lower courts and to
prosecute appeals. Other powers were not stated to be delegable.
[30] Section 179(1) of the Consti tution ushered in a new regime and
provided for a single national prosecuting authority to be structured in
terms of an Act of Parliament, consisting of the NDPP as its head and
Directors of Public Prosecutions and prosecutors to be determined by
the envisaged legislation.
15
[31] The NPAA is the legislation envisaged by s 179 of the
Constitution. In terms of s 3 of the NPAA the single national
prosecuting authority consists of the office of the NDPP and the
offices of the prosecuting authority at the High Courts, established by
s 6.
[32] Section 5 of the NPAA established the National Office of the
prosecuting authority which consists of the National Director, Deputy
National Directors, Investigating and Special Directors, other
members assigned or appointed to the office, special investigators
and administrative staff.
[33] Section 6 established an office for the prosecuting authority at
the seat of each High Court which consists of:
(a) the head of the office who sha ll be either a Director or a Deputy
Director who shall control the office;
(b) Deputy Directors;
(c) prosecutors;
(d) persons engaged on behalf of the St ate to perform services in
specific cases;
(e) administrative staff.
16
[34] Section 20(1) provides that the power as contemplated in
s 179(2) of the Constitution, to institute and conduct criminal
proceedings on behalf of the Stat e and to discontinue criminal
proceedings, vests in the prosec uting authority. Section 20(2)
provides that any Deputy National Director shall exercise those
powers subject to the control and directions of the NDPP. Section
20(3) provides that any Director shall, in respect of his or her area of
jurisdiction, exercise those powers subject to the control and
directions of the NDPP. Section 20(4) provides that Deputy Directors
shall, within their area of jurisdiction, exercise those powers subject to
the control and directions of the Director.
[35] Section 24(1)( a) of the NPAA provides that a Director has the
power, within his or her area of jurisdiction, to institute and conduct
criminal proceedings and to carry out functions incidental thereto.
Section 24(1)( b) provides, significantly for our purposes, that a
Director has the power to supervise, direct and coordinate the work
and activities of all Deputy Directors and prosecutors in the office of
which he or she is the head. Secti on 16(2) provides that prosecutors
may be appointed to the office of the NDPP, to offices of Directors
17
established at the seats of High C ourts, to Investigating Directorates
and to lower courts.
[36] Section 24(4)( d) provides that a Director shall, subject to the
directions of the NDPP, be responsible for the day to day
management of the Deputy Directo rs and prosecutors under his or
her control. Section 24(9) provides:
‘(a) Subject to section 20(4) and the control and directions of a Director, a
Deputy Director at the Office of Director referred to in section 13(1), has all the
powers , duties and functions of a Director.
(b) A power, duty or function which is ex ercised, carried out or performed by a
Deputy Director is construed, for the purposes of this Act, to have been exercised,
carried out or performed by the Director concerned.’
[37] As is clear from what is se t out above, the NPAA provides that
the NDPP has overall control and maintains an oversight role in
relation to all prosecutions nationally. However, as was the position
under the AGA, the heads of prosecution authority offices at the seats
of the High Courts mentioned abov e are responsible for and manage
prosecutions within their areas of jurisdiction. They have
comprehensive powers which, by necessary implication, must include
the power to reinstitute prosecutions subject only to oversight by the
18
NDPP. Directors such as the second respondent are the equivalent of
the erstwhile attorneys-general.
[38] It is clear that, having regard to the Constitution, particularly the
rights of accused persons to a fair trial ─ including the right (in terms
of s 35(1)( d)) to have their trial begin and conclude without
unreasonable delay ─ that a decision to resume or institute de novo
a prosecution in circumstances where a court has already determined
that there has been an unreasonable delay in the completion of
proceedings is not one to be tak en lightly. The interests of the
accused, the State and witnesses are all to be taken into account. I
agree with the submission on behalf of the appe llants that it was a
decision meant to be taken at a high er level of authority. In my view,
the legislature chose, in enacting s 342A(3)( c) of the CPA, to reserve
the exercise of the power to issue the written instruction referred to
therein to attorneys-general at th e seats of High Courts and, under
the present statutory regime, Di rectors such as the second
respondent have that power. It is not necessary to decide whether
that power extends to Deputy Dire ctors, for the reasons set out in
para 44 below.
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[39] I consider it necessary to po int out that, in terms of s 179(5)( c)
of the Constitution, the NDPP maintains oversight in relation to the re-
institution of prosecutions in that he or she may review a decision to
prosecute or not to prosecute, after consulting the relevant Director
and after taking representations fr om an accused and any other
person whom he or she considers necessary. This power is mirrored
in s 22(2)(c) of the NPAA.
[40] The court below was thus c orrect in holding, after considering
the historical position of a ttorneys-general and the powers of
Directors as stipulated in the provisio ns of the NPAA, that the second
respondent was authorised to issue the written instruction
contemplated in s 342A(3)(c) of the CPA.
[41] Section 20(5) of the NPAA provides that any prosecutor shall
be competent to exercise the powers ref erred to in subsection (1), to
the extent that he or she has been authorised thereto in writing by the
National Director or by a person de signated by the National Director.
Even though powers can be delegated by the Director to prosecutors
it would defeat the purpose of s 342A(3)(c) of the CPA, ie of reserving
the power to re-institute a prosec ution to be exercised by a higher
20
office to ensure proper oversight and ju stice, for that power to be so
delegated. In practice it would mean that a def aulting prosecutor who
caused delays in a prosecution could thereafter issue a written
instruction authorising the resumption or institution de novo of a
prosecution, thereby frustrating the purpose of s 342A(3)( c). The
reasoning of the court below referred to in para 13 above, namely,
that since the second respondent had the authority to issue the
certificate and since Mr Niehaus and Ms Galloway worked under his
supervision, they were entitled to act in his stead and that the
certificate issued by Ms Gallowa y was therefore properly authorised
and valid, does not take prop er account of the purpose of
s 342A(3)(c).
[42] It is clear on the fa cts that Ms Galloway, a prosecutor, took the
decision during November 2000 to iss ue the instruction to resume or
institute de novo the prosecutions involv ing the appellants. The
suggestion that Mr Niehaus, a Deputy Di rector, in fact approved of or
authorised the decision to issue th e written instruction is without
foundation. Ms Galloway’s affidavi t refers in vague terms to two
discussions with Mr Niehaus. At bes t for the second respondent it is
unclear what Mr Niehaus’ role in the decision had been. If he had
21
made the decision or authorised it in some or other manner, it would
have been easy for him to say so. More importantly, Ms Galloway
states emphatically that she made the decision.
[43] Mr Kahn and Ms Galloway both filed supplementary affidavits.
At the time that this occurred it was clear that Ms Galloway’s authority
to issue the certificate was a critic al issue. Neither used this second
opportunity to state that Mr Niehaus in fact authorised the certificate.
It would have been a simple matter to do so. Indeed, it would have
been even simpler for Mr Niehaus himself to have said so. Mr Kahn in
his supplementary affidavit stated in vague terms that although he
could not recall the appe llants’ case he agreed with the issue of the
certificate. He does not say that he considered the case and took all
the relevant factors into account in ‘agreeing’ to the issue of the
certificate.
[44] In the light of the preceding discussion it is plain that the
answer to the second question posed , when leave to appeal to this
Court was granted, is t hat the second respon dent did not issue the
certificate.
22
[45] The third question required us to consider whether, if Ms
Galloway and/or Mr Niehaus issued the certificate, either had the
power to do so. It is cl ear from the facts that Ms Galloway made the
decision to issue the certificate and it is equally clear from the
preceding discussion that she did not have the necessary authority to
do so. It is therefore not necessary to address the question relating to
the authority of Mr Niehaus.
[46] It was submitted by counsel representing the second
respondent that a conclusion to t he effect that only higher authority
could resume or institute a prosecution de novo would place too great
a burden on Directors at the seat of each High Court, because cases
are frequently struck off the roll in Magistrates’ courts. In his
supplementary affidavit, Mr Kahn once again stated in general and
vague terms that matters are struck off the roll in Magistrates’ courts
on a daily basis. He did not tell us on what basis this was done ─ no
detail is supplied. In any event, the rights of an accused person as
provided for in s 35 of the Constituti on, the interests of other parties
to a case, and in general, the consti tutional norms of accountability
23
and transparency, dictate that delays of the ki nd resulting in an order
in terms of s 342A(3)(c) should be the exception rather than the rule.
[47] In my view, this means si mply that prosecution authorities
should take greater care in conducting prosecutions and should do so
in accordance with constitutional norms.
[48] In my view, for the reasons set out above, t he appeal should
succeed and the finding of the court below that the certificate was
properly issued and the order that the matter be referred back to the
Regional Court for trial should be set aside.
[49] The following order is made:
1. The appeal is upheld.
2. The finding of the court below that the certificate dated 20
November 2000 was properly issu ed is set aside and is
replaced by the following:
‘The written instruction dated 20 November 2000 in terms of which the
prosecution of the appellant s was resumed or instituted de novo is held to
have been issued without the requisi te authority and is therefore set
aside.’
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3. The order referring the matter back to the Regional Court for
trial is set aside.
________________
MS NAVSA
JUDGE OF APPEAL
CONCUR:
MPATI DP
ZULMAN JA
PONNAN JA
COMRIE AJA