S v Brooks and Others

• Jurisdiction: South Africa
• Citation: 2019 (1) SACR 103 (NCK)

S v Brooks and Others
2019 (1) SACR 103 (NCK)

2019 (1) SACR p103

Citation	2019 (1) SACR 103 (NCK)
Case No	KS 21/2015
Court	Northern Cape Division, Kimberley
Judge	Daffue J
Heard	August 28, 2018; August 29, 2018
Judgment	September 10, 2018
Counsel	E Sithole for the first applicant.; S Ebrahim (attorney) for the second and fifth applicants.; MM Hodes SC for the third and eighth applicants.; LM Hodes SC for the fourth and sixth applicants.; CF van Heerden for the seventh, ninth, eleventh and twelfth applicants.; JJ Schreuder for the tenth and thirteenth applicants, instructed by Legal Aid South Africa.; JW Roothman (with M Makhaga and T Barnard) for the state.

Flynote : Sleutelwoorde

Prosecution — Conduct of — Duty to convey information to defence — Information that attempts had been made to bribe and threaten presiding E judge — Matter investigated by Director of Public Prosecutions for two years while trial continuing without defence being informed thereof — Ethical duty on prosecution to convey such information.

Prosecution — Permanent stay of prosecution — Application for — Trial- related prejudice — Application for permanent stay after judge presiding in lengthy trial recused herself — State having blown up case to appear F more serious — State case based on trap where star witness was paid R1 million without having testified — Applicants having suffered extreme hardship since their arrest four years previously — Permanent stay granted.

Evidence — Witness — Payment to state witness — State case based on trap G authorised by Director of Public Prosecutions — Payment of large sum to witness even before he testified deprecated.

Headnote : Kopnota

The applicants applied for a permanent stay of their prosecution, triggered by the recusal of the trial judge in August 2018. They had all been arrested in H August 2014 in a trap operation authorised by the Acting National Director of Public Prosecutions of the Northern Cape to secure illicit diamond transactions with them. The trap used by the police, one Mr Jephta, was paid R1 million for his contribution to the operation.

The first witness in the trial started testifying only two years after the applicants were arrested. A trial-within-a-trial commenced at the beginning of 2017 and had not yet been concluded by the time the judge recused herself I (Mr Jephta did not testify in the trial-within-a-trial).

The recusal of the trial judge arose from an attempt to bribe and threaten her in August 2016. She had informed the Director of Security in the Office of the Chief Justice, who requested the Director of Public Prosecutions (the DPP) in Kimberley to investigate the matter. The DPP declined to prosecute after an investigation that took nearly two years to finalise. The fact of the J

2019 (1) SACR p104

attempted A bribe and threat was not conveyed to the applicants until June 2018, which then precipitated the recusal application brought by applicants 1 – 6 and 8.

In her ruling in the recusal application, the judge stated that she was not aware that the DPP had been informed of the incidents and had been requested to investigate the matter. It appeared from other evidence that Mr Jephta had also B been approached and offered bribes not to testify.

Held, that the prosecution team was under an ethical duty to take their colleagues for the defence into their confidence and inform them of the threats and attempts to bribe the trial judge and a crucial state witness. If the matter had been openly discussed therein, then in August 2016 the trial would in all probability not have become a nullity two years later after numerous C witnesses had already testified. (See [19].)

Held, further, in considering and balancing the interests of the applicants and the state, it had to be taken into account that the state had included a charge of racketeering on the basis of a criminal enterprise between the applicants and Mr Jephta, the former investigating officer, and other participants in the trap. The state had clearly tried to blow up the case to something more D serious than illicit diamond-dealing. (See [51].)

Held, further, that the most damning aspect in respect of the state's case was the character and attitude of its star witness, Mr Jephta, who, on his own version, had personally contacted at least one of the accused and allowed people to negotiate with him not to testify for the state, and even to splash E his 'story' in a local newspaper. His credibility was in tatters and the question had to be asked whether the applicants should go through another trial to see whether he came to testify or was kept away from the witness box. (See [52].)

The court also remarked obiter that the star witness had already received F R1 million for his involvement in the entrapment, but demanded a further R4 million to testify. The Constitutional Court had not yet considered the use of traps but there was little doubt that the court would not sanction the payment of traps, to the extent in the present case, especially prior to the testimony of the trap or finalisation of the trial. (See [56].)

The court held that in circumstances where the applicants had suffered tremendous G hardship, some having had to sell their properties in order to survive; others having lost business deals and/or partners; and many in a serious financial predicament and who might not be able to afford further legal services, they ought not be subjected to a further trial. The state might not only try to rectify mistakes made, but the applicants would also have even more ammunition to further cross-examine witnesses who had already H testified, bearing in mind what others had testified about later. There could be no fairness in allowing the state a second bite at the cherry in the circumstances. The application was accordingly granted. (See [57] – [58].)

Cases cited

Bothma v Els and Others I 2010 (1) SACR 184 (CC) (2010 (2) SA 622; 2010 (1) BCLR 1; [2009] ZACC 27): referred to

Director of Public Prosecutions and Another v Phillips [2012] 4 All SA 513 (SCA): applied

Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others 2014 (3) SA 106 (CC) (2014 (4) BCLR 373; [2014] ZACC 3): dictum in J para [71] applied

2019 (1) SACR p105

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) A 2007 (3) SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24): referred to

Legal Aid Board v The State and Others 2011 (1) SACR 166 (SCA) ([2011] 1 All SA 378; 2010 (12) BCLR 1295): considered

McCarthy v Additional Magistrate, Johannesburg 2000 (2) SACR 542 (SCA) ([2000] 4 All SA 561): distinguished B

Minister van Polisie v Van der Vyver [2013] ZASCA 39: referred to

National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) (2010 (7) BCLR 656; [2010] 3 All SA 304; [2010] ZASCA 8): dictum in para [5] applied

Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO; New Clicks South Africa (Pty) Ltd v Minister of Health and Another C 2005 (3) SA 238 (SCA) (2005 (6) BCLR 576; [2005] 1 All SA 326): referred to

R v Katz 1959 (3) SA 408 (C): referred to

S v Dalindyebo 2016 (1) SACR 329 (SCA): distinguished

S v Halgryn 2002 (2) SACR 211 (SCA) ([2002] 4 All SA 157): applied D

S v Ohlenschlager 1992 (1) SACR 695 (T): referred to

S v Porritt and Another GJ SS 40/2006: distinguished

S v Shaik and Others 2008 (1) SACR 1 (CC) (2008 (2) SA 208; 2007 (12) BCLR 1360; [2007] ZACC 19): dictum in para [43] applied

S v Suliman 1969 (2) SA 385 (A): dictum at 390 applied

Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC) E (1998 (2) SA 38; 1997 (12) BCLR 1675; [1997] ZACC 18): applied

Van Heerden v National Director of Public Prosecutions and Others 2017 (2) SACR 696 (SCA): referred to

Wild and Another v Hoffert NO and Others 1998 (2) SACR 1 (CC) (1998 (3) SA 695; 1998 (6) BCLR 656): referred to

Zanner v Director of Public Prosecutions, Johannesburg 2006 (2) SACR 45 (SCA) F (2006 (11) BCLR 1327; [2006] 2 All SA 588; [2006] ZASCA 56): referred to.

Case Information

E Sithole for the first applicant.

S Ebrahim (attorney) for the second and fifth applicants. G

MM Hodes SC for the third and eighth applicants.

LM Hodes SC for the fourth and sixth applicants.

CF van Heerden for the seventh, ninth, eleventh and twelfth applicants.

JJ Schreuder for the tenth and thirteenth applicants, instructed by Legal Aid South Africa. H

JW Roothman (with M Makhaga and T Barnard) for the state.

An application for the permanent stay of a prosecution in a trial on charges of racketeering and illicit diamond-dealing.

Order I

The prosecution against all 13 applicants instituted by the Director of Public Prosecutions, Northern Cape, under case No KS 21/2015, as set out in the latest indictment dated 5 August 2016 containing 139 counts, encompassing all relevant dockets pertaining to the case, is permanently stayed. J

2019 (1) SACR p106

Judgment

Daffue J: A

I Introduction

[1] This is an application by 13 applicants for permanent stay of their prosecution by the state, which application was triggered by the recusal B of the trial judge on 13 August 2018. Several serious, emotional allegations have been made by the parties and some of those will be dealt with.

[2] Whatever my final decision, it will have far-reaching consequences. C If the application is granted, persons that might have been convicted of serious crimes will get off scot-free. If the application is dismissed, the state will start the trial de novo in its search for the accused persons' convictions. Such a criminal trial may last another two or three years, which will have further detrimental effects on the estates and lives of the accused persons and their families.

II The parties D

[3] The 13 applicants are...