Panayiotou v the State and Others

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: Goosen J
• Judgment Date: 20 September 2016
• Citation: 2017 (1) SACR 354 (ECP)
• Hearing Date: 14 September 2016
• Docket Number: CC 26/2016
• Counsel: A Hattingh for the applicant. M Stander for the first and second respondents. G Wolmarans for the intervening party.

Goosen J:

[1] The applicant, who has been arraigned for trial on seven charges F arising from the murder of his wife, seeks orders compelling the second respondent to disclose and to furnish copies of certain documents contained in the case docket. The first and second respondents oppose the relief sought. The central issue to be determined is whether, in the circumstances, the applicant has made out an appropriate case for the granting of what amounts to further 'discovery' in the context of a G pending criminal trial.

[2] It is necessary to set out by way of background the circumstances in which the application was brought.

[3] The applicant was indicted on seven counts, including conspiracy to commit murder, kidnapping, murder, robbery and possession of firearms H and ammunition, before this court on 26 July 2016. Prior to this the applicant, along with a number of co-accused, made appearances in the magistrates' court before the matter was transferred to this court.

[4] The procedure followed by the Director of Public Prosecutions, in relation to matters enrolled upon the High Court trial roll, is to arrange I for one or more appearances before this court as part of a procedure to facilitate the finalisation of all pre-trial procedures. Upon service of the indictment the prosecution makes available to the defence copies of the investigation docket, specifically such documents and statements and reports as are contained in the docket and upon which the prosecution J is to be based.

Goosen J

[5] The case is then set down for what is termed a pre-trial hearing at A which a determination is made whether the matter is ready for trial and whether it may formally be allocated a trial date. This procedure is, particularly in matters such as the present where the duration of the trial is expected to be lengthy, directed to ensure that the matter may, as far as is reasonably possible, commence and then proceed to finality in a single allocated trial period. In accordance with this procedure the B matter was enrolled for a pre-trial hearing on 25 August 2016.

[6] Shortly before that hearing the applicant launched a substantive application for access to a broad range of documents in addition to those already furnished by the prosecutor. The application was set down for C hearing on the day of the pre-trial hearing. However, in the light of the substantive nature of the application and its status as civil proceedings, it was agreed that the application be heard on 14 September after opposing papers had been filed.

[7] On 26 August 2016 the applicant filed a notice withdrawing the D application and on the same day caused an application in identical terms to be issued. The only difference was that the Director of Public Prosecution was cited in the application as the second respondent. The respondents filed a notice of intention to oppose the application on 6 September 2016 and on the same date filed answering affidavits by the second respondent, as well as a supporting affidavit by Swanepoel, E the investigating officer in the criminal matter.

[8] On 9 September 2016 a notice of amendment was filed by the applicant, indicating the applicant's intention to delete paras 2.1, 2.2, 3, 4(a), 4(b)(i), 4(c) – (g), 5, 6 and 9 of the prayers set out in the notice of motion, and further stating that the applicant would no longer seek such F relief. I shall return to the content of the relief sought in these paragraphs hereunder. On the same day, 9 September 2016, the applicant filed its replying affidavit.

[9] It should be mentioned here that on 8 September 2016 the first and G second respondents filed a notice of irregular proceedings which related to the fact that the applicant had caused to be issued and served a number of subpoenas duces tecum on various members of the South African Police Service, requiring them to attend the hearing on 14 September 2016 to give evidence and to produce certain documents specified in the respective subpoenas duces tecum. H

[10] Included in the case file are 14 subpoenas duces tecum issued by the registrar of this court and furnished to the sheriff of the court for service on 29 August 2016. The persons in respect of whom the subpoenas were issued include the 12 persons named in para 3 of the notice of motion and, it appears, the relevant officials who are the I commanding officers of the two police stations referred to in para 2.1 of the notice of motion.

[11] On 12 September 2016 the Minister of Police (the Minister) filed an application to intervene in the proceedings, together with a notice of irregular proceedings setting out the basis of the objection to the J

Goosen J

A subpoenas issued by the applicant. In the notice of motion seeking leave to intervene in the proceedings the Minister sought orders that the subpoenas referred to above be set aside as being an irregular step in the proceedings, alternatively that it be ordered that the members of the South African Police Service need not comply with the terms of the B subpoenas until the underlying dispute between the parties had been resolved by order of this court. The applicant filed a notice to oppose the relief sought by the Minister on the basis that the subpoenas are not irregular and that they do not pre-empt any relief sought in the notice of motion issued by the applicant.

C [12] At the commencement of the hearing the Minister moved for an order granting leave to intervene. This was not opposed by the applicant. Accordingly the Minister was granted leave to intervene and is accordingly cited as such.

[13] I shall deal with the issues raised in this matter under separate D headings, as accords with the manner in which the application was argued before me.

The access application

E [14] As I have already indicated, the ambit of the access application became more and more attenuated as it progressed. At the commencement of the hearing, the applicant sought only disclosure of (a) the so-called B and C sections of the case docket; (b) the cellphone-billing information or records of cellphone No XXX, being the cellphone of the witness Ndedwa; (c) the affidavit of Theresa Botha; and (d) the affidavit F of Rynhardt Swanepoel.

[15] During the course of argument applicant's counsel, Mr Hattingh, abandoned the order sought in respect of the cellphone-billing information in respect of the witness Ndedwa. The reason for doing so appeared to be the unanswerable basis of the second respondent's opposition to G the order. In the supporting affidavit deposed to by Swanepoel it was stated that the cellphone number belonging to Ndedwa was not used during the relevant period and that the investigation established that no telephonic contact was made between that number and any of the telephone numbers of the 'role players'. Accordingly the billing H information was not obtained by the investigation team. The prosecution was therefore not in possession of the requested documents. In argument, Mr Stander pointed out that the only means by which the information could be obtained from the relevant service provider was by way of issuing a subpoena in terms of s 205 of the Criminal Procedure Act 51 of 1977 (the CPA). In the light of the information at the disposal of the I investigators, it was not possible to meet the requirements of s 205 in relation to these records. It was pointed out in the affidavit of Swanepoel that, with reference to the cellphone records of those persons whom the state alleged played a role in the commission of the offences, it was possible to establish that the witness Ndedwa's telephone No XXX J was not used to make contact with any of the relevant persons.

Goosen J

[16] In regard to the affidavits of Botha and Swanepoel the applicant A persisted with seeking an order compelling production, whilst apparently accepting that the prosecution was not yet in possession of the two affidavits. Mr Stander indicated that the prosecution would be in possession of both of the statements by 23 September and further undertook to immediately make them available to the defence. B

[17] With this in mind the central issue raised in respect of the access application was therefore the applicant's right of access to the B and C sections of the case docket. Mr Stander's opposition to making these portions of the docket available to the applicant was founded upon the assertion that the applicant had not set out with any particularity in his C papers why the said documents would be required, nor established that the documents contained in the investigation docket in the two sections concerned bore any relevance to the matters to be addressed at trial. It was also argued that the applicant's reliance upon the provisions of the relevant standing orders which deal with docket management and the D contents of the various portions of a police-investigation docket which serve merely as guidelines as to what the portions should contain, and in any event did not support the applicant's assertion, that these documents would be necessary. Mr Stander further submitted that the allegations pertaining to the assertion of the applicant's right to a fair trial and the E applicant's assertion of the relevance of the documents are, at best, generally asserted in the applicant's founding papers, and that upon close analysis no basis is established upon which it could be found that the requested documents are reasonably required for the purpose of ensuring that the applicant has a fair trial. F

[18] In countering these arguments Mr Hattingh argued that it is not necessary for the applicant to establish that the documents he seeks will indeed be relevant and therefore potentially admissible at the trial. All that the applicant needs to establish in asserting the right to a fair trial is that there are documents in the possession...