Moussa v the State and Another

• Jurisdiction: South Africa
• Judge: Navsa ADP, Ponnan JA, Mhlantla JA, Mbha JA and Zondi JA
• Judgment Date: 14 April 2014
• Citation: 2015 (2) SACR 537 (SCA)
• Docket Number: 181/2014 [2015] ZASCA 61
• Hearing Date: 05 March 2014
• Counsel: LJ Lowies for the appellant. N Rajab-Budlender (with S Kazee) for the respondents.
• Court: Supreme Court of Appeal

Navsa ADP (Ponnan JA, Mhlantla JA, Mbha JA and Zondi JA concurring):

G [1] This appeal, with the leave of the court below, concerns the constitutionality of s 38 of the National Prosecuting Authority Act 32 of 1998 (the NPA Act). The appellant, Mr Sylla Moussa, is a Guinean national who, during June 2006, was charged with 16 counts of fraud, alternatively three counts of theft and three counts of money-laundering H in terms of the provisions of the Prevention of Organised Crime Act 121 of 1998 (POCA). The preamble to the indictment reflects the following: The appellant was in control of two accounts held by corporate entities with Absa Bank. The accounts, labelled 'credit accounts', bore a no-risk status, which meant that the appellant could immediately make withdrawals against cheque deposits into the account. I Electronic transfers can only be made from such an account if sufficient funds exist in that account, even if only by way of cheque deposits. The appellant, so it is alleged, conducted 'cross-fire fraud' which is described in the preamble to the indictment as follows:

'[1.10.1]

No value cheques or cheques of insufficient value (facilitation cheques) would be deposited into the beneficiary bank

Navsa ADP (Ponnan JA, Mhlantla JA, Mbha JA and Zondi JA concurring)

account at Absa and drawn against the drawer's account at A Absa.

[1.10.2.]

The lack of funds in the drawer's account to support the amounts depicted as per face value of the facilitation cheques, resulted in an artificial credit being created in the beneficiary bank account.

[1.10.3.]

The drawing and depositing of the facilitation cheques would B be recorded on the bank statements of the drawer's and beneficiary bank accounts as debit and credit entries respectively.

[1.10.4.]

From the beneficiary bank account, the accused would then, on or about the day that the cheques were deposited or shortly thereafter, remit via electronic banking transfer a C similar amount (contra amount) back to the drawer's bank account.

[1.10.5.]

When remitting the contra amount back to the drawer's account, the initial beneficiary account would be debited and the drawer's account credited.

[1.10.6.]

The recording of the facilitation cheques on the drawer's D bank account would however only happen after depositing the cheques into the beneficiary bank account, which would be on the same day or shortly after the contra amount is remitted, creating the impression of availability of funds in the drawer's account when the facilitation cheques were recorded and/or debited.

[1.10.7.]

The balances and credits recorded on the respective bank E statements of the beneficiary and drawer bank account would therefore not be represented by genuine and/or sufficient underlying funds created in bona fide manner in the ordinary course of business, but such balances and credits would record mere artificial or illusory balances of a temporary nature. F

[1.10.8.]

Such credits and balances were designed to mislead Absa into accepting and/or believing that accused and/or the corporate entities were conducting bona fide transactions and/or are involved in genuine and bona fide arms length business transactions and/or doing well financially and that sufficient underlying funds existed to honour the facilitation cheques and subsequent contra payments.' G

[2] For present purposes it is not necessary to deal with the particulars relating to the alternative charges of fraud, theft or the charges related to the contraventions of POCA which are all founded on the same allegations. The amount Absa Bank is said to have lost as a result of the H appellant's alleged conduct appears in the indictment, namely R41 329 188,37.

[3] Because of the nature of the commercial transactions in relation to which the appellant was charged, the National Prosecuting Authority (the NPA) took the view that it required the skills of a specialised I prosecutor and thus engaged the services of Mr Zirk Pansegrouw (Pansegrouw), an advocate in private practice and member of the Pretoria Bar, and a former prosecutor. In doing so, the NPA purported to act in terms of s 38 of the NPA Act which reads as follows:

'(1) The National Director may in consultation with the Minister, and a Deputy National Director or a Director may, in consultation with J

Navsa ADP (Ponnan JA, Mhlantla JA, Mbha JA and Zondi JA concurring)

A the Minister and the National Director, on behalf of the State, engage, under agreements in writing, persons having suitable qualifications and experience to perform services in specific cases.

(2) The terms and conditions of service of a person engaged by the National Director, a Deputy National Director or a Director under subsection (1) shall be as determined from time to time by the Minister B in concurrence with the Ministers of Finance.

(3) Where the engagement of a person contemplated in subsection (1) will not result in financial implications for the State —

(a)

the National Director; or

(b)

a Deputy National Director or a Director, in consultation with the C National Director,

may, on behalf of the State, engage, under an agreement in writing, such person to perform the services contemplated in subsection (1) without consulting the Minister as contemplated in that subsection.

D (4) For purposes of this section, services include the conducting of a prosecution under the control and direction of the National Director, a Deputy National Director or a Director, as the case may be.'

[4] After his arrest in June 2006 the appellant appeared in the regional court, Johannesburg, and was released on R100 000 bail. During March 2008 his trial was transferred to the Gauteng Local Division, Johannesburg. Faced with Pansegrouw as the prosecutor, appellant's legal representative requested documentation to allay the appellant's E concerns about Pansegrouw's authority to conduct the prosecution. After the documentation was supplied and scrutinised, the appellant correctly concluded that the oath in terms of s 32(2) of the NPA Act had not been taken by Pansegrouw. I interpose to set out the relevant part of that subsection:

F '(a) A National Director and any person referred to in section 4 must, before commencing to exercise, carry out or perform his or her powers, duties or functions in terms of this Act, take an oath or make an affirmation, which shall be subscribed by him or her, in the form set out below . . .

. . .

G (b) Such an oath or affirmation shall —

(i)

. . .

(ii)

in the case of a prosecutor, be taken or made before the Director in whose office the prosecutor concerned has been appointed or before the most senior judge or magistrate at the court where the prosecutor is stationed,

H who shall at the bottom thereof endorse a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.'

[5] Section 4 sets out the composition and hierarchical structure of the National Prosecuting Authority as follows:

I 'The prosecuting authority comprises the —

(a)

National Director;

(b)

Deputy National Directors;

(c)

Directors;

(d)

Deputy Directors; and

(e)

J prosecutors.'

Navsa ADP (Ponnan JA, Mhlantla JA, Mbha JA and Zondi JA concurring)

Prosecutor is defined as follows: 'prosecutor' means a prosecutor A referred to in section 16(1).

Section 16(1) in turn provides:

''(1) Prosecutors shall be appointed on the recommendation of the National Director or a member of the prosecuting authority designated for that purpose by the National Director, and subject to the laws B governing the public service.'

[6] Having regard to the fact that at that stage Pansegrouw had not taken the oath provided for in s 32(2) of the NPA Act, the appellant gave notice in terms of s 106(3), read with s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (the CPA), challenging Pansegrouw's authority to C prosecute, [1] because he had not taken the oath provided for in s 32(2) of the NPA Act. The appellant launched an application in the Gauteng local division in which he sought an order: (a) that Pansegrouw had no authority to prosecute him; (b) that his trial was unfair; and (c) for a permanent stay of his prosecution. D

[7] That application came before Mailula J in the Gauteng local division. An exchange ensued between Mailula J and appellant's counsel, during which the judge expressed reservations about whether a prosecutor appointed in terms of s 38 of the NPA Act was required to take an oath. That view appeared to be shared by appellant's counsel, who E consequently sought a postponement in order to challenge the constitutionality of s 32(2) of the NPA Act, ostensibly because it did not provide for counsel appointed from outside of the NPA to take the oath provided for in that section. The original notice of motion was amended and the second respondent, the Minister of Justice and Constitutional Development (the Minister), was joined as a party, as required by Uniform Rule 10A. F [2] Before the merits of the case were addressed, the appellant's legal

Navsa ADP (Ponnan JA, Mhlantla JA, Mbha JA and Zondi JA concurring)

A representative was asked by Mailula J whether the appellant would abide Pansegrouw taking the prescribed oath before the trial commenced. Since the appellant's attitude was that it was the taking of the prescribed oath that was foundational to prosecutorial independence, one would have thought that the suggestion that Pansegrouw would take the oath B would put paid to the appellant's objections to him being the prosecutor. Alas, the appellant changed tack and chose, instead, to challenge the constitutionality of s 38 of the NPA Act, which, as reflected in [3] above, enables the engagement of persons outside of the...