S v Chao and Others
| Jurisdiction | South Africa |
| Judge | NC Erasmus J |
| Judgment Date | 03 February 2009 |
| Counsel | C Webster SC (with HC Booysen and C Breytenbach) for the State.) JC Louw for accused Nos 1, 2, 18 and 19. W King for accused Nos 3 and 16. P Mihalik for accused Nos 5 and 17. DAJ Uijs SC for accused Nos 4, 6 and 7. MS Banderker for accused Nos 8, 9, 10 and 11. D Theunissen for accused No 12. WM Muller for accused Nos 13, 14 and 15. |
| Docket Number | SS 103/08 |
| Court | Cape Provincial Division |
NC Erasmus J:
G [1] Argument in this matter was heard over an extended period which was complicated by the fact that the Supreme Court of Appeal (SCA) was preparing judgments in the matters of National Director of Public Prosecutions v Moodley and Others [1] and National Director of Public Prosecutions v Zuma. [2] Subsequent to the SCA judgment on 12 January H 2009, counsel raised new issues arising from the dicta of the SCA judgments. The argument was finally completed on 3 February 2009 and an order reflected in paras [91] and [92] was handed down. The reasons now follow.
Introduction
I [2] In the above matter the 19 accused have pleaded not guilty to 116 charges, as reflected in the indictment, proffered against them individually.
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[3] Charges 1 and 2 relate to offences under the Prevention of Organised A Crime Act 121 of 1998 (POCA). The remaining charges are contraventions of the Marine Living Resources Act 18 of 1998 (MLRA) and various counts of fraud.
[4] There are two s 2(4) POCA authorisations before the court, as accused 1 to 7 are charged on a contravention of s 2(1)(f) of POCA and B accused 1 to 19 on a contravention of s 2(1)(e) of POCA.
[5] Prior to plea counsel for accused 4, 6 and 7 gave notice of his intention to raise special pleas in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (CPA) and, alternatively, in terms of s 110 of the CPA. The relevant notice reads as follows: C
Be pleased to take notice that the abovementioned accused, besides when calling upon to plead, entering pleas of 'not guilty' in terms of s 106(1)(b) of Act 51 of 1977, shall enter further pleas in terms of s 106(1)(h), alternatively s 110 of the said Act.
Take notice further that these pleas (other than the plea of 'not guilty') D are to the effect that the Prosecutor has no title to prosecute (s 106(1)(h)), alternatively that the above Honourable Court does not enjoy jurisdiction to hear the matter (s 110).
Take notice further that the grounds upon which such pleas are founded are based on the peremptory provisions of s 2(4) of the E Prevent [sic] of Organised Crime Act 121 of 1998 and:
That no admissible evidence have been placed before the above Honourable Court that the National Director of Public Prosecutions has authorise [sic] a prosecution on any offence contemplated in s 2(1) of the said Prevention of Organised Crime Act ('the prescribed offences'). F
That, inasmuch as no such admissible evidence has been placed before the above Honourable Court, unless such evidence is produced, the prosecutor enjoys no title to prosecute the prescribed offences, alternatively the above honourable court enjoys no jurisdiction to hear the matter on the prescribed offences, alternatively: G
That it is incumbent upon the State to have proved or in due course to prove that the authorisation set out in para 1 above existed at the time of the charging of the accused, alternatively before and during the trial, the said National Director -
Having been furnished with all relevant facts and been in the H position to peruse all relevant evidence available to the South African Police before granting such authorisation.
Having applied his/her mind, with the necessary care and diligence, to such relevant facts, before granting such written authorisation. I
Having come to a conclusion which is reasonable in the light of all such relevant facts; and
Having afforded the accused the opportunity to make representations to him/her.
[6] The special pleas relate to the POCA charges, counts 1 and 2 only. J
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A [7] The court is required to rule on the special pleas before evidence is led.
Background facts
[8] The majority of the accused were arrested on 19 June 2006, with the B others being arrested shortly thereafter.
[9] They were arraigned in Bellville, Worcester and Cape Town magistrates' courts, respectively, where they were informed of potential charges. It was envisaged that their ultimate trial would proceed in a higher court. Subsequently, the accused were transferred to the regional C court, at which time they were served with a draft charge-sheet.
[10] On 20 July 2007 the accused appeared in the regional court at Cape Town. On this day, objections were lodged by the defence under s 342A of the CPA with regard to various delays. As a result, the magistrate postponed the matter to 28 January 2008 and issued directives, in terms D of the CPA, in order to prevent unnecessary delays.
[11] Amongst these conditions was that the National Director of Public Prosecutions (NDPP) was required to supply a POCA authorisation in terms of s 2(4) by the postponement date, namely, 28 January 2008.
[12] On 28 January 2008 the magistrate enquired, in terms of s 342A of E the CPA, as to the delays in the matter. One of the outstanding issues was the authorisations issued by the NDPP, in terms of s 2(4) of POCA. During the course of the day, and after the matter stood adjourned, the Acting NDPP, Adv Mpshe SC, issued the relevant s 2(4) authorisation. Facsimile copies of the authorisation were then handed to the regional magistrate. The State thereafter requested that the case be postponed for F a week. The presiding magistrate was not satisfied that the State complied with all the requirements (this excluded the s 2(4) authorisation) as previously set and then made the following order:
I am in terms of s 342A of the Criminal Procedure Act striking this matter from the roll and also adding the condition that it cannot be G placed on the roll again without the written precise permission of the Director of Public Prosecutions.
(My emphasis.)
[13] Consequently the proceedings were terminated. [3]
H [14] On 4 February 2008 the relevant Director of Public Prosecutions (DPP), Adv De Kock, issued written instructions for all 19 accused to be
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arraigned on the charges as set out in the indictment. No new authorisation, A as envisaged by s 2(4) of POCA, was issued by the NDPP.
[15] The accused were rearraigned on 12 and 18 March 2008, respectively, in the magistrates' court, and furnished with copies of the authorisation in terms of s 2(4) of POCA issued on 28 January 2008, the indictment, the summary of the facts and the list of State witnesses. At B this stage, the matter was transferred to the High Court in terms of s 75 of the CPA for trial, to resume on 6 October 2008.
[16] On 20 November 2008 various delays were occasioned, inter alia, by negotiations between some of the accused and the prosecution. Various other interlocutory applications were also argued and decided. C
[17] Certified copies of the NDPP authorisation in terms of s 2(4) of POCA, dated 28 January 2008, were handed up to this court on 20 November 2008. The record of proceedings of the district and regional courts was produced in terms of s 235 of the CPA. D
[18] When the accused were required to plead to the charges, pleas of not guilty were tendered coupled with the special pleas as set out in para [5] above. It must be noted that, although only accused 4, 6 and 7 gave notice of their intention, all 19 accused have by now adopted the special pleas as their own. Save for accused 4, 6 and 7, the rest of the E accused did not comply with the provision of s 106(3) of the CPA, which requirement was waived by the prosecutor and consequently the court was entitled to deal with the special pleas in respect of all the accused.
The issues
[19] The special pleas purport to be in terms of s 106(1)(h), and, in the F alternative, s 110 of the CPA.
[20] Section 106(1)(h) deals with situations where the prosecutor has no title to prosecute and reads as follows:
Where an accused pleads to a charge he may plead . . . that the G prosecutor has no title to prosecute.
[21] Section 110 states the following:
(1) Where an accused does not plead that the court has no jurisdiction and it at any stage -
after the accused has pleaded a plea of guilty or of not guilty; or H
where the accused has pleaded any other plea and the court has determined such plea against the accused,
appears that the court in question does not have jurisdiction, the court shall for purposes of this Act be deemed to have jurisdiction in respect of the offence in question.
(2) Where an accused pleads that the court in question has no I jurisdiction and the plea is upheld, the court shall adjourn the case to the court having jurisdiction.
[22] The special pleas raise the following issues that call for consideration since the s 2(4) POCA authorisation is a prerequisite for a prosecution of the POCA charges proffered: J
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A What are the requirements for an authorisation in terms of s 2(4) of POCA?
How is such authorisation proven?
What is the effect of the magistrate's order in terms of s 342A of the CPA?
B [23] It was further contended, on behalf of all the accused, that their constitutional right in terms of s 179(5)(d) of the Constitution [4] was infringed, as they were not given an opportunity to make representations to the NDPP or the DPP before the matter was re-enrolled on 12 and 18 March 2008, respectively.
The requirements for a s 2(4) POCA authorisation C
[24] Section 2(4) of POCA reads as follows:
(4) A person shall only be charged with committing an offence contemplated in ss (1) if a prosecution is authorised in writing by the D National Director.
(My emphasis.)
[25] It is clear that no prosecution of offences, as contemplated in s 2(1) of POCA, can be instituted by the DPP without the written authorisation E of the NDPP.
[26] It was argued on behalf of the defence, with reference to the Promotion of Administrative Justice Act 3 of 2000 (PAJA), that it is incumbent...
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