Porritt and Another v National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Mpati P, Brand JA, Tshiqi JA, Saldulker JA and Fourie AJA
• Judgment Date: 21 October 2014
• Citation: 2015 (1) SACR 533 (SCA)
• Docket Number: 978/2013 [2014] ZASCA 168
• Hearing Date: 11 September 2014
• Counsel: KJ Kemp SC for the appellants. LG Nkosi-Thomas SC (with PJ Louw and DWM Broughton) for the state. WH Trengove SC for the amicus curiae.
• Court: Supreme Court of Appeal

Tshiqi JA (Mpati P, Brand JA, Saldulker JA and Fourie AJA concurring): C

[1] The issues in this appeal arise as a result of an indictment served on the appellants in 2004. The appellants were arrested in December 2002 and March 2003, respectively. They appeared before the South Gauteng High Court (Mailula J) on 5 March 2012, facing more than D 3000 counts involving contraventions of the Income Tax Act, [1] the Companies Act [2] and the Stock Exchange Control Act, [3] as well as racketeering and fraud. At the commencement of the trial the appellants tendered a plea in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (the CPA), alleging that the prosecution team, consisting of Advs Etienne Coetzee SC (Coetzee) and Jan Ferreira (Ferreira), had no E title to prosecute. At the time of their appointment to conduct the prosecution against the appellants, Ferreira was a Senior Deputy Director of Public Prosecutions at the Specialised Commercial Crime Unit (SCCU) (formerly the Scorpions and now the Hawks) in Pretoria, while Coetzee was an advocate in private practice at the Pretoria Bar.

F [2] The first ground on which Coetzee's title to prosecute was challenged was an alleged lack of compliance with the provisions of s 38(1) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act). In terms of s 38(1) the national director may, in consultation with the Minister of Justice and Constitutional Development, engage, under G agreements in writing, suitably qualified and experienced persons to perform services in specific cases. No consultation is necessary if the appointment of such persons has no financial implications for the state (see s 38(3)). The appellants alleged that such consultation with the minister did not take place. This assertion was based on the fact that Coetzee was in private practice and had to be paid for his services, thus H creating a financial burden for the state. The second ground of objection proffered was that the appointment of both prosecutors was in breach of the appellants' fair trial rights as encompassed in s 35(3) of the Constitution, read with s 179(4). Moreover, it was alleged that the appointment of the prosecutors was in conflict with the provisions of s 32(1) of the NPA Act, which provide, inter alia, that a member of the prosecuting I authority shall serve impartially and carry out his or her duties and

Tshiqi JA (Mpati P, Brand JA, Saldulker JA and Fourie AJA concurring)

functions without fear, favour or prejudice. The complaint against A Ferreira was that he had assisted in the drafting of an affidavit in support of an application for the liquidation of a company in which the first appellant was involved. In addition it was alleged that Ferreira was tainted because he had supported the appointment of Coetzee.

[3] The history of Coetzee's appointment may be summarised as B follows: He was briefed in 2004 to assist Ferreira because of the magnitude of the prosecution's case against the appellants, and Ferreira's workload at the SCCU. Coetzee was chosen because he had previously been involved in other consultations, investigations and in respect of certain criminal and civil litigation which concerned the appellants in C their personal capacities, as well as entities to which they were linked. In all instances he was either representing or assisting the South African Revenue Service (Sars) or the NPA. Because of this previous exposure it was felt that he would add value to the quality of the prosecution against the appellants. Although reliance was placed on his legal expertise and previous exposure as aforementioned, the final decision on the action to D be taken in each instance was always that of the NPA. And in circumstances where he was involved in plea and sentence agreements, these were finalised subject to the approval of the various magistrates who presided in those matters.

[4] Mailula J dismissed the plea on the first ground and upheld it on the E second ground. On the first ground the learned judge held that there had been proper consultation as required by the NPA Act, that there were no irregularities in Coetzee's appointment and that the appointment was therefore valid. The appellants do not take issue with the court's conclusion in that regard. When dealing with the second ground of F objection the court criticised Coetzee's prior involvement with the cases involving the appellants and, as against Ferreira, it reasoned as follows:

'There is no reasonable explanation before the court why as a prosecutor employed with the NPA, he [Ferreira] would be involved in drafting an affidavit in respect of a civil matter. The affidavit is clearly a response to G the first applicant's [Porritt's] allegations in the liquidation application . . . Having regard to the contents of the affidavit (directed at opposing or contradicting the first applicant's affidavit) as well as his role in the appointment of the third respondent (in light of Sars's proposal) his conducts reasonably create a perception of bias/partiality.'

For those reasons the court held that a proper basis had been established H for the objection (on the second ground) and ordered the removal, from the prosecution, of both Coetzee and Ferreira.

[5] Although the court upheld the objection on the second ground, it nonetheless rejected the contention by the appellants that they were also entitled to an acquittal in terms of s 106(4) of the CPA. I

The relevant parts of s 106 read:

'(1) When an accused pleads to a charge he may plead —

. . .

(h)

that the prosecutor has no title to prosecute.

. . . J

Tshiqi JA (Mpati P, Brand JA, Saldulker JA and Fourie AJA concurring)

A (4) An accused who pleads to a charge, other than a plea that the court has no jurisdiction to try the offence, or an accused on behalf of whom a plea of not guilty is entered by the court, shall, save as is otherwise expressly provided by this Act or any other law, be entitled to demand that he be acquitted or be convicted.'

B With regard to the appellants' contention that they were entitled to an acquittal the learned judge said:

'The order for the recusal of the prosecutors is not based on any impropriety on their part, but on the perception of lack of impartiality. . . . Further the decision is not based on the merits of the case. . . . The present case is in my view akin to the recusal of a presiding officer. C The proceedings in such a case (recusal of a presiding officer) are a nullity, and the accused would not be entitled to demand either conviction or acquittal. . . .

It should be borne in mind that the plea of lack of title to prosecute relates to the individual/person who has been appointed prosecutor in D the particular case. . . . I am of the view that entertainment of such a plea is not dispositive of the matter. It is similar to interlocutory proceedings in civil litigation . . . . The prosecuting authority should in the circumstances, be allowed an opportunity to appoint another prosecutor and to proceed with the criminal trial, in the event it so decided.'

E Having ordered the removal of the two prosecutors the court added that —

'(i)n the event the National Prosecuting Authority decides to proceed with the prosecution of the applicants, a different Prosecutor(s) should be delegated, appointed or assigned, as the case may be'.

F [6] It is against the refusal by the court below to acquit the appellants that they now appeal to this court, leave having been granted by the court below. The NDPP, on the other hand, successfully applied for the reservation of a point of law in terms of s 319 of the CPA. The court below formulated the point of law reserved for this court as follows:

(a)

G What is the legal test to be applied, either in terms of s 106(1)(h) of the CPA or the...