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[2023] ZAWCHC 228
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Van Veen v Director of Public Prosecutions, Western Cape and Others - Application for Leave to Appeal (2280/2022) [2023] ZAWCHC 228 (31 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
Case no. 2280/2022
In
the matter between:
MARC
VAN VEEN
Applicant
and
DIRECTOR
OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
First
Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Second
Respondent
THE
FINANCIAL SECTOR CONDUCT AUTHORITY
Third
Respondent
JUDGMENT delivered on
31 AUGUST 2023
Application for leave
to appeal
(Delivered by email
and listing on SAFLII)
BINNS-WARD J:
[1]
The applicant, who applied to this court,
unsuccessfully, for a permanent stay of prosecution, now applies for
leave to appeal from
the judgment dismissing his application in the
principal case. The judgment in the principal case has been
listed on SAFLII
sub nom. Van Veen v
Director of Public Prosecutions, Western Cape and Others
[2023]
ZAWCHC 174
(31 July 2023).
[2]
The judgment in the principal case identified that
the applicant had sought a permanent stay of prosecution on three
grounds,
viz
.
(i) unreasonable delay, (ii) mental or intellectual
incapacitation due to the effects of a brain tumour and (iii) that
the prosecution’s case is reliant on unlawfully obtained
self-incriminatory evidence. See para 7 of the judgment. The
application for leave to appeal does not attack the correctness of
the court’s summary of the grounds on which the application
was
made.
[3]
As to the first ground, the judgment held that
there had been an unreasonable delay by the state in instituting the
criminal proceedings,
but that the applicant had failed to establish
that the delay had caused him material trial-related prejudice.
It is well
established by the SCA and Constitutional Court
authorities cited in the principal judgment that to obtain a
permanent stay it
was incumbent on the applicant to show such
prejudicial effect of the delay; see para 16-24 of the principal
judgment and
the further authorities cited in footnotes 6 and 14.
[4]
The judgment noted that the third ground was not
pressed in argument and held that it was in any event without merit;
see para 8-12
of the principal judgment.
[5]
I am unable to form the requisite opinion that
there is a reasonable prospect that another court might find on
appeal that this
court erred in its findings that the applicant had
not established an entitlement to the relief he sought on the
aforementioned
first and third grounds of his application, nor do I
consider that there is any other compelling reason for an appeal
against them
to be entertained.
[6]
As to the second ground, the applicant’s
case was that the sequelae to the pituitary adenoma for which he had
received medical
treatment prevented him from being able to
adequately instruct his legal representatives in the criminal
proceedings and meant
that he was intellectually incapacitated from
properly defending himself at a criminal trial. The medical
opinion evidence
that the applicant adduced in support of the second
ground was uncontroverted because the prosecution chose not to engage
with
it, contending that the issue fell to be addressed in terms of
ss 77
and
79
of the
Criminal Procedure Act 51 of 1977
.
[7]
The applicant contended that the medical evidence
established that his fair trial rights under s 35(3) of the
Constitution
would be infringed were the criminal case to go to
trial. This court held, however, that the applicant’s
intellectual
incapacity made out by the evidence was of the sort of
disability contemplated by, and provided for, in
s 77
and
79
of
the
Criminal Procedure Act. Applying
the principle of
subsidiarity, this court held that a civil application for a stay of
prosecution on the second ground relied on
by the applicant was
precluded because the pertinent provisions of the
Criminal Procedure
Act covered
the question procedurally and substantively. See
para 28-39 of the principal judgment. This court also held that
in
any event the relief sought by the applicant was of a final
interdictory character and that, because of the redress he could
obtain
under the
Criminal Procedure Act, he
had not satisfied the
requirement of showing the absence of an adequate alternative
remedy. See para 40 of the principal
judgment.
[8]
Whilst I am doubting about the likelihood of this
court’s findings on the second ground of the principal
application being
reversed on appeal, the questions raised in the
applicant’s second ground are nevertheless novel, not
altogether free of
complexity, and deserving of clarification in a
nationally binding judgment. I could foresee that had the
application been
granted on the second ground, it would provide the
foundation for similar such applications by other accused persons in
future
to pre-empt the statutory criminal procedural process.
That is why I consider it desirable for clarity on the subject to be
obtained from a higher court. These factors have led me to form
the opinion that there is sufficient reason, under the ambit
of
s 17(1)(a)(ii)
of the
Superior Courts Act 10 of 2013
, to grant
leave to the applicant to appeal to the Supreme Court of Appeal on
the limited questions whether this court was correct
in dismissing
the principal application on the bases of the application of the
principle of subsidiarity and the applicant’s
failure to comply
with the requirements for a final interdict.
[9]
The applicant’s counsel, having been
apprised of my prima facie view that leave to appeal should be on
limited issues, argued
against the proposition. In a written
submission, he argued that ‘[t]
he
Court’s conclusions in relation to the question of trial
prejudice cannot be separated from the reliance on the principle
of
subsidiarity
’
and further that
the effect of the holding by this court at para 38 read with para 30
of the principal judgment was that the ‘
trial-related
prejudice to the applicant must be addressed in the criminal
proceedings
’
.
[10]
These arguments misconceive the effect of the
limitation of issues that I propose to direct. The whole case
was about the
applicant’s alleged trial-related prejudice on
the three grounds mentioned in paragraph 2 above. As discussed
earlier,
the only one of those grounds with any substance was the
second one, ie the applicant’s trial-related prejudice by
virtue
of intellectual incapacity. The application on that
ground was dismissed by virtue of the principle of subsidiarity,
alternatively
because the applicant had failed to show that he lacked
an alternative adequate remedy. It is appropriate therefore
that
those be the issues separated for consideration on appeal.
It would in fact be misdirected, considering my remarks at paragraphs
3 to 5 above, for this court to grant leave to appeal on an
unrestricted basis.
[11]
I am, however, concerned about the further delay
in the criminal proceedings that any appeal will occasion. This
matter has
already been dragging on for about 15 years and it is
manifestly desirable that any further delay be kept as short as
practically
possible. I therefore intend, as permitted by
s 17(5)
of the
Superior Courts Act, to
attach as a condition
that the applicant apply to the President of the Supreme Court of
Appeal within 20 days of the granting of
the order for an expedited
enrolment of the appeal for hearing.
[12]
An order will issue in the following terms:
1.
Leave to appeal from the judgment of this court
delivered on 31 July 2023 is granted limited to the following issues
only: whether
the court was right to dismiss the application on the
application of the principle of subsidiarity, or because the
applicant failed
to satisfy all the requirements for final
interdictory relief.
2.
The appeal shall lie to the Supreme Court of
Appeal.
3.
The relief granted in terms of paragraph 1 of this
order is granted conditionally upon the applicant making written
application
to the President of the Supreme Court of Appeal within 20
days of the granting of this order, supported by a copy of this
judgment,
for an expedited enrolment of the appeal for hearing.
4.
The costs of the application for leave to appeal
shall be costs in the appeal.
A.G. BINNS-WARD
Judge of the High
Court