Panayiotou v the State and Others

• Jurisdiction: South Africa
• Judgment Date: 20 September 2016
• Citation: 2017 (1) SACR 354 (ECP)

Panayiotou v the State and Others
2017 (1) SACR 354 (ECP)

2017 (1) SACR p354

Citation	2017 (1) SACR 354 (ECP)
Case No	CC 26/2016
Court	Eastern Cape Local Division, Port Elizabeth
Judge	Goosen J
Heard	September 14, 2016
Judgment	September 20, 2016
Counsel	A Hattingh for the applicant.; M Stander for the first and second respondents.; G Wolmarans for the intervening party.

Flynote : Sleutelwoorde

B Fundamental rights — Right to fair trial — Right of access to information — Contents of sections B and C of police docket — Mere assertion of right of access to documents, without any prima facie facts to establish relevance, insufficient — In casu, stated intention to challenge conduct of investigation to establish that evidence implicating him inadmissible, by reason of manner in which it was obtained, sufficient to establish C right to access to section C.

Evidence — Witness — Subpoena — Issue of subpoena duces tecum to police official in respect of documents already subject of dispute in application to compel access to police docket — Subpoenaed persons required to D attend hearing of application — Rule 38(1)(b) not permitting party to nominate date for appearance of witness other than date of trial and procedure adopted accordingly irregular — Conduct of attorney unacceptable and to be deprecated — Uniform Rules of Court, rule 38(1)(b).

Headnote : Kopnota

The applicant had been arraigned for trial in the High Court on seven charges relating to the murder of his wife, and the matter was set down for a E pre-trial hearing on 25 August 2016. Before that date, he brought a substantive application for access to certain documents in the police docket. That application was also to be heard on 25 August 2016 but it was later postponed to 14 September to allow opposing papers to be filed. The state F duly filed its answering affidavits. The applicant then issued and served a number of subpoenas duces tecum on various police officials involved in the investigation of the case against him, requiring them to attend on 14 September to give evidence and produce the documents requested, which documents were the subject of the substantive application. The Minister of Police applied to intervene to set aside the subpoenas and the court granted the application. The main thrust of the application for access to documents G in the police docket was that the applicant wanted access to the B and C sections of the docket, which contained, respectively, internal reports and memoranda, and the investigation diary.

The court held that the mere assertion of a right of access to relevant documents without any prima facie facts to establish relevance was insufficient (see [27]). In the present matter the application for access to all the documents H in the B section was speculative and the applicant had not established prima facie facts which pointed to the contents of that section as being relevant. The DPP's assertion that the B section did not contain any material which was exculpatory, or which prima facie favoured the applicant, or was relevant to his guilt or innocence, had to be accepted in such circumstances. The B section was accordingly not discoverable and the applicant was not I entitled to the order that he sought (see [32]).

Different consideration applied to the C section. The applicant had set out in some detail the reasons for seeking access. The correspondence pertinently referred to the fact that the applicant intended to challenge the conduct of the investigation from its outset, in order to establish that evidence allegedly implicating him was, by reason of the manner in which it was obtained, J inadmissible against him at trial. In so doing he had set out, at least prima

2017 (1) SACR p355

facie, an entitlement to such access on the basis that it was required to A adduce and challenge evidence presented at the trial. Access to the C section would be granted (see [34]).

In respect of the subpoenas issued on behalf of the applicant, the court held that the applicant, as an accused person in pending criminal proceedings, was entitled to use the machinery provided by s 179(1) of the CPA read with the rules of court, including rules 54 and 38, to issue subpoenas, as well as the B machinery provided by s 35 of the Superior Courts Act (see [49] – [50]). However, it had not been explained why, having launched the application for access to the documentation, it was then decided to issue the subpoenas. This notwithstanding the existence of a dispute in relation to the production of those documents or why they were issued in relation to the hearing of the application on 14 September 2016 (see [54]). Rule 38(1)(b) did not C permit a party seeking to compel the production of documents at trial to nominate a date for appearance of the subpoenaed witness, other than the date of trial. The procedure adopted by the applicant, requiring the subpoenaed persons to attend the hearing of the application on 14 September was not authorised by the rules and was accordingly irregular (see [64]–[65]). D

The conduct of the applicant's attorney in this regard was clearly unacceptable and had to be deprecated. Setting aside the subpoenas would, however, serve little purpose, other than to mark the court's disapproval of the conduct. In the circumstances it would be appropriate rather to defer the obligation to comply to the date of the trial (see [69]). E

Annotations:

Cases cited

Reported cases

Attorney-General, Transvaal v Kader 1991 (2) SACR 669 (A) (1991 (4) SA 727): applied

Beinash v Wixley 1997 (3) SA 721 (SCA) ([1997] 2 All SA 241; [1997] ZASCA 32): dictum at 734F – G applied F

Minister of Police and Others v Premier of the Western Cape and Others 2014 (1) SA 1 (CC) (2013 (12) BCLR 1405; [2013] ZACC 33: dictum in para [1] applied

National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) (2010 (7) BCLR 656; [2010] 3 All SA 304): dictum in para [1] applied

R v Steyn 1954 (1) SA 324 (A): referred to G

Shabalala and Others v Attorney General, Transvaal and Another 1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593; [1996] 1 All SA 64; [1995] ZACC 12): applied

South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) Ltd and Others 2007 (6) SA 628 (D): referred to H

Trust Sentrum (Kaaptstad) (Edms) Bpk v Zevenberg and Another 1989 (1) SA 145 (C): discussed.

Legislation cited

The Criminal Procedure Act 51 of 1977, s 179(1): see Juta's Statutes of South Africa 2015/16 vol 1 at 2-368 I

The Superior Courts Act 10 of 2013, s 35(1): see Juta's Statutes of South Africa 2015/16 vol 1 at 2-269.

Rules Considered

Rules of court cited

Uniform Rules of Court, rules 38 and 54: see The Superior Courts Act and the Magistrates' Courts Act and Rules (Juta 2016) at 61-62 and 80. J

2017 (1) SACR p356

Case Information

A Hattingh for the applicant. A

M Stander for the first and second respondents.

G Wolmarans for the intervening party.

An application to compel access to the contents of a police docket for the purposes of a pending criminal trial.

Order B

1.

The second respondent is ordered to provide the applicant with a copy of the C section (investigation diary) of the investigation docket Kabega Park CAS 229/04/2015 within 10 days of the date of this order.

2.

C The second respondent is directed, in accordance with the undertaking furnished, to provide the applicant with a copy of the statement of Theresa May Botha, as well as any accompanying documents and digital presentations, and a copy of the statement of Lieutenant Rynhardt Swanepoel, on or before 23 September 2016.

3.

D In respect of each of the subpoenas duces tecum issued by the applicant under case No CC 26/2016, requiring the attendance of witnesses on 14 September 2016, the date for such attendance and production of the specified documents is deferred to the date of trial, being 11 October 2016, subject to the provisions of rule 38(1)(b) of the Uniform Rules of Court.

4.

E There is no order as to costs.

Judgment

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.

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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...