S v Delport and Others

JurisdictionSouth Africa
JudgeCachalia JA, Leach JA, Theron JA, Majiedt JA and Schoeman AJA
Judgment Date28 November 2014
Citation2015 (1) SACR 620 (SCA)
Docket Number861/2013 [2014] ZASCA 197
Hearing Date26 November 2014
CounselB Pretorius for the first and fifth, seventh and eighth appellant. LG Nkosi-Thomas SC (with LA Friester Sampson and PJ Louw) for the state.
CourtSupreme Court of Appeal

Cachalia JA (Leach JA, Theron JA, Majiedt JA and Schoeman AJA concurring):

[1] After hearing the parties in this matter the appeal was struck from the E roll on the ground that the order of the high court (sitting as a court of appeal), remitting the matter to a magistrate for the continuation of a criminal trial, is not appealable. These are the reasons for the decision.

[2] The appellants were among 13 accused who were arraigned before a regional magistrate on multiple charges, including fraud and racketeering. The main allegation against them is that during the period F May 1998 and March 2002 they defrauded the South African Revenue Service (Sars) of approximately R264 million.

[3] The accused first appeared in court on 2 June 2003. The trial commenced about 13 months later, on 12 July 2004. Mr PA van Wyk SC of the Pretoria Bar informed the court that he would prosecute the case G on behalf of the state and that Ms T Kannemeyer, an employee of Sars and also an advocate, would be assisting him. He handed in two documents signed by the Director of Public Prosecutions (DPP), without objection from the defence, indicating that they had been engaged in terms of ss 38(1) and (3) of the National Prosecuting Act 32 of 1998 (the NPA Act) to undertake the prosecution. The propriety of their appointment H became an issue in the trial seven years later, and is an issue in this appeal.

[4] At the commencement of the trial all the accused pleaded not guilty to the charges. The trial ran for five years. After the testimony of many witnesses the state closed its case. The accused applied to be discharged I under s 174 of the Criminal Procedure Act 51 of 1977 (the CPA).

[5] On 10 December 2008 the magistrate granted the application for five of the accused, but refused to discharge the eight others. He also, mero motu, asked the parties to prepare written argument on the applicability, of the principle enunciated in Bonugli and Another v Deputy National J

Cachalia JA (Leach JA, Theron JA, Majiedt JA and Schoeman AJA concurring)

Director of Public Prosecutions and Others, [1] to the instant case. There the North Gauteng High Court had held that two advocates from the Johannesburg Bar were disqualified from conducting a prosecution on behalf of the National Prosecuting Authority (NPA), as the complainant — a bank — would be paying them. Furthermore, one of the advocates, B a senior counsel, had advised the bank on the prospects of a criminal prosecution after the state had withdrawn charges. The case against the accused was reinstated at the bank's behest. At the same time there was civil litigation pending between the bank and a trust closely linked to the accused. These facts, in the learned judge's view, gave rise to a reasonable apprehension that the advocates would not act without C fear, favour or prejudice, [2] and that the right of the accused to a fair trial would be infringed if the prosecution continued in these circumstances. Their appointments were thus set aside. A

[6] On 1 April 2009, after hearing the parties' submissions on the D applicability of Bonugli to the facts of this case, the magistrate found, as in Bonugli, that the appointment of both Mr Van Wyk and Ms Kannemeyer gave rise to a reasonable perception that they would not conduct the prosecution fairly. This was because Mr Van Wyk, said the magistrate, was being paid directly by Sars, the complainant, and not by the NPA, which meant that Sars was in effect his client. And in the case of E Ms Kannemeyer, she had been in the employ of Sars for about ten years. The magistrate thus ordered that the matter be referred to the high court for special review, the effect of which was to suspend the trial.

[7] On 14 January 2011 the high court (Van der Merwe DJP, Du Plessis J F concurring) delivered its judgment. It found, without considering the merits, that there were no proper grounds for the magistrate to have referred the case for review before the conclusion of the trial. It accordingly remitted the matter for the trial to continue.

[8] But the trial was delayed further because the second and sixth G appellants had terminated the services of their counsel and engaged new ones. On 7 November 2011 the second appellant filed an application to amend his earlier not guilty plea. He now sought to introduce a special plea, purportedly in terms of s 106(1)(h) of the CPA, challenging the prosecutors' title to prosecute the trial. Soon thereafter all his co-accused, excluding the sixth appellant, grasped at the opportunity and H joined the second appellant's application.

[9] After hearing argument the magistrate delivered his judgment on 20 March 2012 upholding the appellants' contentions. In doing so he made three rulings: The appellants, excluding appellant six who was the I only accused not to have joined the proceedings, were entitled to amend their pleas to enable them to challenge the authority of the prosecutors under s 106(1)(h) of the CPA after the state had closed its case; their

Cachalia JA (Leach JA, Theron JA, Majiedt JA and Schoeman AJA concurring)

special plea putting the title of the prosecutors in issue should be upheld, A and, consequently, their acquittal in terms of s 106(4) of the CPA had to follow.

[10] The state appealed the decision in terms of s 310 of the CPA, which permits it to appeal any question of law given in a lower court in favour B of an accused. This time, appellant six, who was not party to the dispute over the title of the prosecutors, joined the other accused in opposing the appeal. The high court seems to have incorrectly laboured under the impression that he had also been party to this dispute and entertained his appeal along with the other appellants, even though he apparently had no legal interest in the outcome of the appeal. C

[11] There were six questions the high court identified the magistrate as having considered in arriving at his decision. These were:

(i)

Whether an accused may at any stage during a criminal trial raise a plea in terms of s 106(1)(h) of the CPA, even though s 106 in terms D permits the plea to be raised when the accused pleads to the charge — in other words, before the trial commences;

(ii)

what legal consequences follow in the event of a court upholding such a plea in those circumstances;

(iii)

what in law is to be understood by the expression 'engage, under agreements in writing' as it is used in ss 38(1) and (3) of the NPA Act; E

(iv)

whether a person appointed in terms of s 38 requires written authorisation in terms of s 20(5) to institute and conduct prosecutions;

(v)

in the event of this question being answered affirmatively, whether, F in addition, the authorisation must, in terms of s 20(6), specify the area of jurisdiction, the offences and the court or courts in which the powers are to be exercised; and

(vi)

whether a person appointed in terms of s 38 must also take the oath or make an affirmation in the terms prescribed in s 32(2). G

[12] The high court (Makgoba J and Van der Byl AJ) delivered its judgment on 13 June 2013. It found that the documents signed by the DPP and handed in by the state at the commencement of the trial, indicating that the prosecutors had been engaged in terms of s 38 to conduct this prosecution, substantially complied with the requirements H of the NPA Act. This finding, it said, disposed of the appeal. It nevertheless considered the questions identified by the magistrate by way of obiter dicta and answered all of them in the state's favour. In the result it again remitted the matter for the trial to continue.

[13] Not satisfied with this outcome, on 18 September 2013 the I appellants applied to the high court for leave to appeal to this court against the remittal order. The application was considered by Makgoba and Kgomo JJ, who granted all the appellants, including appellant six, leave to appeal to this court specifically on the six questions mentioned above. The judgment granting leave to appeal makes no reference to its finding that the appointment of the prosecutors substantially complied J

Cachalia JA (Leach JA, Theron JA, Majiedt JA and Schoeman AJA concurring)

A with the NPA Act. I return to this question later when I consider whether, in light of this omission, this court has jurisdiction to entertain the appeal.

[14] After the parties, including appellant six, filed their written submissions in this court they were afforded an opportunity to submit further B argument on whether the remittal order is appealable. They did so. Separate heads of argument were also filed on behalf of appellant six for the appeal to be upheld on the basis of the decision in Bonugli, even though the high court had earlier refused to consider this issue when the matter was referred for special review.

C [15] The appellants submit that the remittal order is appealable. This is because, they say, the dispute concerns the proper appointment of the two prosecutors in terms of the relevant provisions of the NPA Act, which was enacted pursuant to s 179(4) of the Constitution, to ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. The dispute therefore concerns the violation of their constitutional D rights and ought to be...

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4 practice notes
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...97S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 76S v Delport 2015 (1) SACR 620 (SCA) ................................................. 235-7S v Dlamini 2012 (2) SACR 1 (SCA) .................................................... 400, 421S v Dlamini; S......
  • Director of Public Prosecutions, Free State v Mokati
    • South Africa
    • Invalid date
    ...All SA 497; [2012] ZASCA 155): referred to S v De Beer (SCA case No 121/2004, 12 November 2004): referred to S v Delport and Others 2015 (1) SACR 620 (SCA) ([2015] 1 All SA 286; [2014] ZASCA 197): dictum in para [41] applied 2022 (2) SACR p4 S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382;......
  • S v Zuma and Another
    • South Africa
    • Invalid date
    ...referred to Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T): compared S v Delport and Others 2015 (1) SACR 620 (SCA) ([2015] 1 All SA 286; [2014] ZASCA 197): S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793; [1995] ZACC 4):......
  • S v Mthethwa
    • South Africa
    • Invalid date
    ...mentioned in court concerning the case should be on record for all concerned to understand and follow. If anything is said in the J 2015 (1) SACR p620 Makgoka J (Tolmay J A language not understood by all concerned, as was apparently the case here, it should be translated for the benefit of ......
3 cases
  • Director of Public Prosecutions, Free State v Mokati
    • South Africa
    • Invalid date
    ...All SA 497; [2012] ZASCA 155): referred to S v De Beer (SCA case No 121/2004, 12 November 2004): referred to S v Delport and Others 2015 (1) SACR 620 (SCA) ([2015] 1 All SA 286; [2014] ZASCA 197): dictum in para [41] applied 2022 (2) SACR p4 S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382;......
  • S v Zuma and Another
    • South Africa
    • Invalid date
    ...referred to Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T): compared S v Delport and Others 2015 (1) SACR 620 (SCA) ([2015] 1 All SA 286; [2014] ZASCA 197): S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793; [1995] ZACC 4):......
  • S v Mthethwa
    • South Africa
    • Invalid date
    ...mentioned in court concerning the case should be on record for all concerned to understand and follow. If anything is said in the J 2015 (1) SACR p620 Makgoka J (Tolmay J A language not understood by all concerned, as was apparently the case here, it should be translated for the benefit of ......
1 books & journal articles
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...97S v De Oliveira 1993 (2) SACR 59 (A) ................................................. 76S v Delport 2015 (1) SACR 620 (SCA) ................................................. 235-7S v Dlamini 2012 (2) SACR 1 (SCA) .................................................... 400, 421S v Dlamini; S......

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