Booysen v Acting National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Gorven J
• Judgment Date: 26 February 2014
• Citation: 2014 (2) SACR 556 (KZD)
• Docket Number: 4665/2010
• Hearing Date: 07 February 2014
• Counsel: A Katz SC (with M Collins) for the applicant.LM Hodes SC (with N Manaka) for the respondents.
• Court: KwaZulu-Natal Local Division, Durban

Gorven J:

[1] On 18 August 2012 the first respondent issued two written authorisations to charge the applicant (Mr Booysen) with contraventions of H s 2(1)(e) and (f), respectively, of the Prevention of Organised Crime Act (POCA). [1] In terms of s 2(4) of POCA, a person may only be charged with committing any of the offences created by s 2(1) if a prosecution is authorised in writing by the National Director of Public Prosecutions. Pursuant to the authorisations, Mr Booysen, a major-general in the police at the time, was arrested on 22 August 2012 and has been served I with an indictment which confronts him with seven counts, the first two of which relate to the alleged contraventions of POCA. Although the first respondent was, at the time, the Acting National Director of

Gorven J

A Public Prosecutions, she fulfilled the functions of the National Director and I will refer to her in this judgment as the NDPP.

[2] Mr Booysen seeks to review and set aside the decision to issue the authorisations in question (the first impugned decision) and the decision to prosecute on the counts confronting him (the second impugned B decision). Mr Booysen states pertinently that he does not rely on the provisions of the Promotion of Administrative Justice Act (PAJA) [2] but does not enter the debate as to whether the first impugned decision might be excluded from the operation of PAJA. [3] He bases the application directly on the Constitution of the Republic of South Africa, 1996 (the Constitution), and, in particular, relies on the principle of legality. C Section 172(1) of the Constitution reads as follows:

'(1) When deciding a constitutional matter within its power, a court —

(a)

must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b)

D may make any order that is just and equitable. . . .'

The NDPP and the second respondent have opposed the application. The remaining respondents have not entered the lists.

[3] The relief sought by Mr Booysen is in the following terms:

'(a)

E Declaring the decisions taken by the first respondent purportedly in terms of the provisions of s 2(4), read with s 1 and 2 of the Prevention of Organised Crime Act, No 121 of 1998 (POCA), on 17 August 2012 to authorise the applicant's prosecution on charges of contravening ss 2(1)(e) and 2(1)(f) of POCA inconsistent with the Constitution of the Republic of South Africa, 1996 and F invalid;

(b)

Reviewing and setting aside the aforesaid decisions taken by the first respondent on 17 August 2012;

(c)

Declaring the decision(s) taken by the first respondent, alternatively second respondent, alternatively first and second respondents, to prosecute the applicant on the charges contained in counts G 1 and 2 and 8 to 12 of the indictment served upon the applicant on 29 October 2012 (the indictment) inconsistent with the Constitution of the Republic of South Africa, 1996 and invalid;

(d)

Setting aside the first respondent's, alternatively second respondent's, alternatively first and second respondents', decision(s) to prosecute the applicant on the charges contained in counts 1 and H 2 and 8 – 12 of the indictment;

(e)

Interdicting the first respondent and her successors from authorising the prosecution of the applicant on any charge referred to in s 2(1) of POCA unless and until facts under oath implicating the applicant in the commission of such offences and justifying such prosecution are placed before the first respondent or her successors I by an official or officials whose duty it is to place such facts before the first respondent.

Gorven J

(f)

Ordering the first respondent and any other respondent who A opposes this application to pay the applicant's costs of suit, which costs are to include the costs consequent upon the employment of two counsel.'

Prayers (a) and (c) are sought pursuant to s 172(1)(a) of the Constitution and prayers (b) and (d) pursuant to s 172(1)(b). Mr Booysen B submitted in argument that the interdict sought in prayer (e) should be granted within the discretion afforded by the provisions of s 172(1)(b). I will return to this submission later.

[4] Mr Booysen's heads of argument submit, in summary, that:

(a)

The impugned decisions are arbitrary and irrational and that such C irrationality offends the principle of legality and the rule of law; and

(b)

his right to dignity is impaired merely by having to face a prosecution where there are no facts to support a rational decision to authorise his prosecution and to indict him in the first place.

It is clear that: D

'A rationality enquiry is not grounded or based on the infringement of fundamental rights under the Constitution. It is a basic threshold enquiry, roughly to ensure that the means chosen . . . are rationally connected to the ends sought to be achieved.' [4]

Mr Booysen therefore need not show an impairment of his rights, such E as the right to dignity, in order to succeed on the first ground. The infringement of his right to dignity was not pressed in argument and I do not intend to say anything more about it.

[5] The two counts under POCA allege that Mr Booysen participated in the conduct of an enterprise through a pattern of racketeering activity [5] F and managed the operations of such an enterprise. [6] This is alleged to have been done whilst he was in charge of a specialised unit based at the Cato Manor Police Station. The other five counts allege criminal activity conducted with certain members of the South African Police Service who were under his command, comprising murder, housebreaking with G intent to commit murder, assault, defeating or obstructing the course of justice and unlawful possession of firearms and ammunition. Twenty-nine others were arrested, although two have since died. There is a total of 116 counts which confront one or more of those presently accused. The trial has not yet commenced.

[6] A point in limine raised by the respondents is that, since the H impugned decisions were taken in Pretoria and the respondents reside there, this court does not have jurisdiction to entertain the application. Mr Booysen submits that because he has been charged in this division, this court does have jurisdiction. During argument the respondents conceded that this division has jurisdiction, on the basis set out in I

Gorven J

Estate Agents Board v Lek. [7] In my view the concession was appropriate. It was submitted, however, that it is the trial court which should determine an application such as this and that the application is accordingly premature and has been brought in the wrong forum. A

[7] The Constitutional Court has expressed itself against pre-trial applications. B In an application alleging that evidence had been obtained in a manner which violated a right in the Bill of Rights of the Constitution, Langa CJ said the following:

'I nevertheless do agree with the prosecution that this court should C discourage preliminary litigation that appears to have no purpose other than to circumvent the application of s 35(5). Allowing such litigation will often place prosecutors between a rock and a hard place. They must, on the one hand, resist preliminary challenges to their investigations and to the institution of proceedings against accused persons; on the other hand, they are simultaneously obliged to ensure the prompt D commencement of trials. Generally disallowing such litigation would ensure that the trial court decides the pertinent issues, which it is best placed to do, and would ensure that trials start sooner rather than later. There can be no absolute rule in this regard, however. The courts' doors should never be completely closed to litigants. If, for instance, a warrant is clearly unlawful, the victim should be able to have it set aside E promptly. If the trial is only likely to commence far in the future, the victim should be able to engage in preliminary litigation to enforce his or her fundamental rights. But in the ordinary course of events, and where the purpose of the litigation appears merely to be the avoidance of the application of s 35(5) or the delay of criminal proceedings, all courts should not entertain it. The trial court would then step in and F consider together the pertinent interests of all concerned. If that approach is generally followed the State would be sufficiently constrained from acting unlawfully by the application of s 35(5) and by the possibility of civil and criminal liability.' [8]

[8] The respondents submit that the trial court would be best suited to G deal with the authorisations since the issue whether the NDPP had information before her justifying rational decisions to authorise Mr Booysen's prosecution on charges of racketeering 'can only be adjudicated upon' in a trial context. In S v Chao and Others [9] it was held that a challenge to such a decision-making process should be brought by way of a substantive application. In S v De Vries and Others [10] an attack H was launched on authorisations under s 2(4) of POCA during the trial, after the accused had pleaded and evidence had been led. The court held that a special entry would have to be made and that the time to launch

Gorven J

any attack on the authorisations was prior to the accused pleading. The A court could then assess the matter without, in effect, being asked to review its own proceedings.

[9] I am in respectful agreement that a proliferation of applications brought prior to a criminal trial must be discouraged. If an accused B person has properly been brought before a trial court, that court should generally deal with applications which bear on the outcome of the trial, such as admissibility of evidence, the validity of search warrants, and the like. However, this matter is...