S v Shaik and Others

• Jurisdiction: South Africa
• Citation: 2008 (2) SA 208 (CC)

S v Shaik and Others
2008 (2) SA 208 (CC)

2008 (2) SA p208

Citation	2008 (2) SA 208 (CC)
Case No	CCT86/06
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van Der Westerhuizen
Heard	May 23, 2007; May 24, 2007
Judgment	October 2, 2007
Counsel	M Brassey SC (with H Gani) for the applicants; WH Trengove SC (with W Downer SC, A Cockrell, A Breitenbach, A Steynberg and G Baloyi) for the respondent; In the POCA proceedings; N Singh SC (with H Gani) for the applicants; WH Trengove SC (with A Cockrell) for the respondent

Flynote : Sleutelwoorde G

Criminal procedure — Appeal — Leave to appeal — To Constitutional Court — Granting of — Relevant factors — Where applicant raising constitutional H matter or issue connected therewith and if in interests of justice — Careful weighing of factors, I including importance of constitutional issue and prospects of success, required — Deciding on prospects of success requiring court to consider both evidence before it and new evidence applicants seeking to introduce.

Criminal procedure — Appeal — Leave to appeal — To Constitutional Court — Leave to adduce further evidence — New evidence to meet requirements of J

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either rule 30 or 31 of Constitutional Court Rules — In terms of rule 31 if evidence not A incontrovertible, inadmissible — Rule 31 not applying where facts sought to be canvassed irrelevant or genuinely disputed — Under rule 30 court having discretion to grant leave to adduce further evidence, but ordinarily exercised only where special grounds existing or where no prejudice to other side, and such evidence necessary to do justice between parties. B

Criminal procedure — Indictment and charge — Joinder — Of accused — Charge of corruption — Whether failure to join alleged corruptee in trial of alleged corruptor amounting to irregularity — Although cogent reasons might exist for holding joint trials, not meaning specific trial unfair simply because other possible perpetrators not charged together with accused — No indication that accused suffering prejudice nor that he would have gained any advantage from presence of other C alleged perpetrators — Even where accused disadvantaged by fact that someone else not charged in same trial, not rendering trial unfair — Failure to charge another suspected party in same trial as accused not necessarily amounting to breach of any rules of criminal procedure.

Criminal procedure — Trial — Prosecutor — Conduct of — Whether prosecutor overstepping line between D prosecution and investigation — National Prosecuting Authority Act 32 of 1998 making provision for overlapping of certain functions — Act authorising prosecutors to do more than merely institute cases — In casu, prosecutor clearly not exceeding limits in Act — Not taking over functions of investigators, but merely assisting — Not interrogating accused, but interviewing certain employees of corporate accused, as entitled to do — No evidence prosecutor not E adhering to constitutional duty to remain impartial and to execute functions without fear, favour or prejudice.

Criminal procedure — Sentence — Imposition of — Factors to be taken into account — Proper approach to sentencing requiring consideration of historical context and all relevant circumstances — Appellant contending past discriminatory F policies causing him to commit economic crimes — Appellant's crimes commencing after advent of democracy and continuing after anti-discrimination legislation enacted — Oppressive and discriminatory past no excuse for commission of crime nor justification for reduction in otherwise appropriate sentence — Appeal dismissed.

Criminal procedure — Sentence — Prescribed sentences — Minimum sentences — Imposition of G in terms of Criminal Law Amendment Act 105 of 1997, s 51(2)(a)(i) — Retrospective application — Corruption — Charge concerning giving of benefits extending over period of time both before and after commencement of Act — Corruption being continuing offence — Each act of corruption following first itself constituting offence of corruption — Since offences committed after commencement of Act exceeding statutory threshold of H R500 000, no logical reason why minimum-sentence legislation should not apply — Application for leave to appeal dismissed.

Headnote : Kopnota

The first applicant, a businessman, was convicted in the High Court under s 1(1)(a) of the Corruption Act 94 of 1992 on two counts of corruption and one of fraud and sentenced to an effective 15 years' imprisonment, the minimum sentence in terms of I s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997. The remaining ten applicants, all companies associated with the first applicant, were convicted on various counts of corruption and fraud and sentenced to the payment of fines in varying amounts. In addition, the High Court granted confiscation orders against certain of the applicants' property in terms of s 18 of the Prevention of J

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Organised Crime Act 121 of 1998 (POCA). The applicants' appeals to the A Supreme Court of Appeal (SCA) were unsuccessful, with the exception of some of the appeals against the confiscation orders.

When the applicants sought leave to appeal to the Constitutional Court against the decision of the SCA, the Chief Justice directed that the parties should address only the issue of whether or not leave to appeal should be granted.

The application came before the court in two parts. The first concerned B the criminal proceedings, in which it was alleged that the applicants' rights to a fair trial, equality and dignity had been infringed, and in which the sentences were also challenged. The applicants contended that the trial had been unfair on the ground that one Z, the beneficiary of corrupt payments from the first applicant, as well as a company, T, and an individual, AT, had not been joined in the prosecution, and on the ground of supposed misconduct by the C prosecutor, D. The applicants sought to introduce new evidence in support of these grounds. The challenge to the sentences was based on the assertion that the first applicant, as someone previously subjected to racial discrimination, had been denied equal opportunities and that this had forced him to commit economic crimes. In addition, it was contended that the prescribed sentencing provisions of the Criminal Law D Amendment Act 105 of 1997 ought not to have been invoked as the initial commission of the crime predated the advent of that legislation.

The second part of the application related to the POCA proceedings. The applicants applied to introduce new facts relating to the confiscations arguing that certain benefits subject to the POCA proceedings had not been obtained as a result of Z's intervention, and contending that the confiscation had been disproportionate. E

The test for the granting of leave to appeal:

Held, that leave to appeal would be granted if an applicant raised a constitutional matter, or an issue connected therewith, and if it was in the interests of justice. Determining the latter depended on a careful weighing-up of all relevant factors, F including the importance of the constitutional issues and the prospects of success. Deciding on the prospects of success, in turn, required the court to have regard to, and evaluate, both the evidence before it and the new evidence which the applicants sought to introduce. (Paragraph [15] at 222A - C.) G

The law regarding the admission of new evidence on appeal:

Held, that the approach to be adopted in an application to introduce new evidence on appeal was clear: the evidence must meet the requirements of either rule 30 or 31 of the Constitutional Court Rules. In terms of rule 31 if the evidence was not incontrovertible it was inadmissible - the rule would find no application where the facts sought to be canvassed were irrelevant or genuinely H disputed. Under rule 30, the court had a discretion to grant leave to adduce further evidence, but this would ordinarily be exercised only where special grounds existed or where there would be no prejudice to the other side, and such evidence was necessary in order to do justice between the parties. (Paragraphs [17] - [23] at 223A - 225C.)

Held, further, regarding the first bundle of new evidence (bundle A), that this contained various affidavits connected with the I State's application for a postponement of criminal proceedings against Z. These affidavits, according to the applicants, were of direct relevance to the question of the non-joinder of Z and T, and to their claims of prosecutorial misconduct. However, the applicants conceded that it was not the decision to prosecute them separately from Z and T that had rendered their trial unfair, but rather J

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the effects of that decision. Accordingly, to the extent that the affidavits in bundle A A purported to give reasons for this decision, they were irrelevant to the issues before the court. Furthermore, the facts upon which the applicants relied were not only strenuously disputed by the State, the applicants themselves had also sought to dispute the veracity of some of the evidence they had applied to tender. Since, therefore, the evidence was both irrelevant and controvertible, the requirements of neither rule 30 nor rule 31 had been satisfied, and the application to B admit the evidence contained in bundle A had to fail. (Paragraphs [24] - [25] and [29] - [30] at 225D - 226A and 227B - D.)

Held, further, regarding the second bundle of new evidence (bundle B), that this included certain documents that were already part of the trial record; to the extent that it was sought to have them admitted as part of the appeal record, they were superfluous and C therefore...