Panday v National Director of Public Prosecutions

• Jurisdiction: South Africa
• Judge: Gorven J
• Judgment Date: 16 September 2020
• Docket Number: 4477/2018P
• Hearing Date: 14 August 2020
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Citation: 2020 JDR 1951 (KZP)

Gorven J:

[1]

This matter has its genesis in the 2010 FIFA World Cup hosted in South Africa. On 26 January 2018, Mr Abrahams, who was at the time the National Director of Public Prosecutions (the NDPP), communicated his decision to prosecute the applicant (Mr Panday) for fraud and corruption (the impugned decision). In this application, Mr Panday asks that:

'The decision of the respondent in terms of section 22(2)(c) of the National Prosecuting Authority Act 32 of 1998, on 26 January 2018, in Durban-Central CAS 781/2010, to prosecute the applicant be reviewed and set aside'.

[2]

In the years since 1994, there has been a single National Prosecuting Authority (the NPA). The head is the NDPP. [1] This office was created by s 179(1)(a) of the Constitution, [2] read with the National Prosecuting Authority Act (the Act). [3] It is as well to briefly mention those members of the NPA who feature most prominently in this application. Mr Abrahams was NDPP for the period from June 2015 to August 2018. Thereafter Dr Ramaite was appointed Acting NDPP until 1 February 2019, since when Ms Batohi has been the NDPP. Ms Jiba was Deputy NDPP for a period after which Mr Mzinyathi was the Acting Deputy NDPP. At all material times,

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Gorven J

the Director of Public Prosecutions (the DPP) KwaZulu-Natal was Ms Noko. Mr Letsholo was a senior advocate attached to the Durban Specialised Commercial Crime Unit (SCCU) of the NPA and Ms Vimbani was the Senior Deputy DPP for the SCCU.

[3]

Some context will give perspective. The impugned decision was to prosecute Mr Panday in CAS 781, along with Colonel Navin Madhoe and Captain Ashwin Narainpershad. The latter two were members of the South African Police Service (the SAPS) at the time. The allegation is that those three (the three suspects) defrauded the SAPS. This concerned the supply of temporary accommodation to members of the SAPS during the FIFA World Cup. The investigations in CAS 781 went anything but smoothly and, as a result, spawned three further dockets.

[4]

The first was CAS 386 alleging interference in the investigation under CAS 781. The National Head of the Directorate for Priority Crime Investigation (the DPCI), Lieutenant General Dramat, had requested a progress report from Major General Booysen in the investigation under CAS 781. General Booysen reported that he had been instructed by the KZN SAPS Provincial Commissioner, Lieutenant General Ngobeni, to abandon the investigation. General Dramat instructed that the investigation should continue, but that it should do so under the national office of the DPCI. CAS 386 was opened concerning the alleged actions of General Ngobeni. On 30 January 2017, Ms Noko decided not to prosecute CAS 386. On 26 January 2018, she was requested to investigate further. She again decided against prosecution. That decision was reviewed under s 22(2)(c) of the Act by the NDPP and a decision was taken to prosecute under CAS 386.

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Gorven J

[5]

The second was CAS 466 which also alleged interference. The allegation was that Colonel Madhoe, on behalf of Mr Panday, attempted to bribe General Booysen to quash CAS 781. An undercover operation was launched on 8 September 2011. This allegedly resulted in Colonel Madhoe handing cash of R1.43 million to General Booysen. This led to the arrest of Colonel Madhoe and to CAS 466. Ms Noko provisionally withdrew the matter. She made a final decision not to prosecute CAS 466 on 21 October 2014. In support, she put up a detailed memorandum which included references to, and reasons for, a recent decision not to prosecute under CAS 781. Her decision not to prosecute under CAS 466 was also reviewed by the NDPP under s 22(2)(c) of the Act, who decided to prosecute that matter.

[6]

The third was CAS 122. This arose from allegations that Mr Panday fraudulently attempted to secure the unfreezing of funds which he claimed were payable to him by the SAPS and which were the subject of CAS 781.

[7]

Apart from her decisions not to prosecute under CAS 386 and CAS 466, Ms Noko took a decision not to prosecute Mr Panday under CAS 781. It is this decision which Mr Abrahams reviewed under s 179(5)(d) of the Constitution read with s 22(2)(c) of the Act leading to the impugned decision.

[8]

Section 179(5)(d) of the Constitution provides:

'The National Director of Public Prosecutions-

(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i) The accused person.

(ii) The complainant.

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(iii) Any other person or party whom the National Director considers to be relevant.'

And s 22(2)(c) of the Act provides:

'In accordance with section 179 of the Constitution, the National Director-

(c) may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations, within the period specified by the National Director, of the accused person, the complainant and any other person or party whom the National Director considers to be relevant.'

Although both s 179(5)(d) of the Constitution and s 22(2)(c) of the Act use the word 'review' this is not a review by a court. It is, in effect, a mechanism whereby the NDPP can reverse the decision of a DPP. This must be borne in mind so as not to confuse that kind of review with a judicial review such as the present one.

[9]

A decision to prosecute is not susceptible of review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). [4] It may be reviewed only if it offends the principle of legality. In Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others, [5] it was said that the principle of legality expresses the fundamental idea that 'the exercise of public power is only legitimate where lawful'. [6] In Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others, Chaskalson P expressed it as follows: [7]

'The exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.'

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[10]

It may be that a decision not to prosecute would be reviewable under PAJA. This question has so far been left open. [8] Unlike a decision to prosecute, such a decision is not explicitly excluded from the definition of administrative action under PAJA. Professor Hoexter believes it is reviewable under PAJA. [9] However interesting that debate may be, it must await a future occasion.

[11]

Because the impugned decision involved the exercise of public power, the principle of legality applies to it. A decision based on the principle of legality has two features:

'Firstly, the [decision maker] must act within the law and in a manner consistent with the Constitution. He or she therefore must not misconstrue the power conferred. Secondly, the decision must be rationally related to the purpose for which the power was conferred. If not, the exercise of the power would, in effect, be arbitrary and at odds with the rule of law.' [10]

The first feature is to act within the law. This includes that the decision maker is empowered to make such a decision and does so in accordance with the precepts of the empowering provision. The second feature is that all exercise of public power 'must be rationally related to the purpose for which the power was given'. [11] Mr Panday submits that Mr Abrahams complied with neither of the Masetlha features.

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Gorven J

[12]

The first ground of attack on the legality of the impugned decision is that Mr Abrahams failed to consult Ms Noko before reviewing her decision. There is no challenge to the power of Mr Abrahams to review the decision of Ms Noko. This ground invokes the first feature of Masetlha, contending that he did not comply with the empowering provision which required prior consultation with Ms Noko.

[13]

The second ground is a failure of rationality. This invokes the second feature of Masetlha. It relates to recordings of intercepted communications (the intercepted material). These were obtained after an order was made and subsequently extended by a designated judge under the Regulation of Interception of Communications and Provision of Communication-Related Information Act (the Interception Act). [12]

[14]

I deal first with the contention that Mr Abrahams failed to consult Ms Noko before reviewing her decision not to prosecute. The legality requirement here is that 'any statutory requirements or preconditions that attach to the exercise of the power must be complied with'. [13] This brings squarely into focus the requirement in s 179(5)(d) of the Constitution which is echoed in s 22(2)(c) of the Act. These provide that the NDPP may review such a decision 'after consulting the relevant Director'. In other words, s 22(2)(c) provides that the power to review a decision arises only after the DPP has been consulted. Unless a DPP has been consulted before a decision is made, any purported review of such a decision would be incompetent as being ultra vires the provisions of s 22(2)(c) of the Act and thus a breach of the principle of legality.

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[15]

This aspect turns on what is meant by 'after consulting' in that section. A distinction has been drawn in the cases between phrases such as 'in consultation with' and 'after consultation with'. [14] It has been held that 'after consultation with' means variously that the functionary must have regard to the views of the other functionary but is not bound by them [15] or must give serious consideration to their views. [16] I was not referred to, and nor did I find, any...