S v Shaik and Others

• Jurisdiction: South Africa

S v Shaik and Others
2008 (1) SACR 1 (CC)

2008 (1) SACR p1

Citation	2008 (1) SACR 1 (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 Westhuizen J
Heard	May 23, 2007; May 24, 2007
Judgment	October 2, 2007
Counsel	N Singh SC (with H Gani) for the applicants.; W Trengove SC (with A Cockrell) for the respondent.

Flynote : Sleutelwoorde

Appeal — Leave to appeal — To Constitutional Court — Leave to appeal granted if applicant raising constitutional matter, or issue connected with decision on constitutional matter, and if in interests of justice to grant leave — Careful weighing up of all relevant factors, including importance of constitutional issue and prospects of success — C Deciding on prospects of success requiring court to have regard to evidence before it and to consider new evidence applicants seeking to introduce.

Appeal — Leave to appeal — To Constitutional Court — Application to introduce new evidence on appeal — New evidence must meet requirements of either rule 30 or 31 of Constitutional Court Rules — In terms of rule 31, if D evidence was not incontrovertible, it was inadmissible — Rule 31 finding no application where facts sought to be canvassed irrelevant or genuinely disputed — Under rule 30, court having discretion to grant leave to adduce further evidence, but this ordinarily exercised only where special grounds existing or where there would be no prejudice to other side, and such E evidence necessary to do justice between the parties.

Indictment and charge — Joinder of accused — Corruption — Whether failure to join alleged corruptee in trial of alleged corruptor irregularity — Fact that there might often be cogent reasons for holding of joint trials not meaning specific trial unfair simply because other possible perpetrators not charged together with accused — No indication accused suffering any prejudice F whatsoever, or that they would have gained any advantage from presence of other 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. G

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Trial — Prosecutor — Conduct of — Whether prosecutor overstepping line between prosecutor and investigator — National A Prosecuting Authority Act 32 of 1998 making provision for overlapping of certain functions of investigators and prosecutors — Act giving prosecutors more authority than just to institute cases — In casu, clear prosecutor not exceeding limits placed on him by Act — Not taking over functions of investigators, merely B assisting them — Not interrogating accused, but interviewing certain employees of corporate accused, as entitled to do - No evidence prosecutor not adhering to his constitutional duty to remain impartial and to execute his functions without fear, favour or prejudice.

Sentence — Imposition of — Factors to be taken into account — Proper approach C to sentencing requiring historical context of all relevant circumstances be considered — Appellant contending past discriminatory policies denying him equal opportunity and causing him to commit economic crimes— Appellant's crimes commencing after dawn of democracy and continuing after legislation enacted to further interests of parties who had suffered discrimination — Oppressive and discriminatory past not excuse for commission D of crime, or justification for reduction in otherwise appropriate sentence, except under rare and exceptional circumstances — Any message by sentencing courts that South Africa's brutal past general excuse, or mitigating factor, degrading noble efforts of millions of previously and presently deprived people to live law-abiding lives under difficult circumstances — Appeal dismissed.

Sentence — Prescribed sentences — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — E Alleged retrospective application of minimum sentence legislation — Corruption — Charge of corruption concerning giving of benefits over period of time extending both before and after commencement of Act 105 of 1997 — This corruption F ongoing offence — Each act of corruption that followed first itself constituting offence of corruption — Offences committed after commencement of Act exceeding statutory threshold of R500 000 — Therefore no logical reason why minimum sentence legislation should not apply — Application for leave to appeal dismissed.

Headnote : Kopnota

G The first applicant, a businessman, was convicted in the High Court on two counts of corruption and one of fraud and sentenced to an effective 15 years' imprisonment. 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 H certain of the applicants' property in terms of s 18 of the Prevention of Organised Crime Act 121 of 1998 (POCA). The applicants' appeals to the 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 I issue of whether or not leave to appeal should be granted.

The application came before the court in two parts. The first concerned 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 J by the first applicant, as well as a company, T, and an individual, AT, had

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not been joined in the prosecution, and on the ground of supposed A misconduct by the 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 S, 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 Amendment Act B 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 confiscation; argued that certain of the benefits that had been subject to the POCA proceedings had not been obtained as a result of Z's intervention; and C contended that the confiscation had been disproportionate.

As to 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 with a decision on a constitutional matter, and if it was in the interests of justice to grant leave. Determining the latter depended on a careful weighing up of all relevant factors, including the D 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, the evidence before it and to consider the new evidence which the applicants sought to introduce. (Paragraph [15] at 14f–15b.)

As to the law regarding the admission of new evidence on appeal E

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 court's 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 F genuinely 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 15f–18a.)

Held, further, regarding the first bundle of new evidence (Bundle A), that this G contained various affidavits connected with the 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 H the effects of that decision. Accordingly, to the extent that the affidavits in Bundle 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 I was both irrelevant and controvertible, the requirements of neither rule 30 nor rule 31 had been satisfied, and the application to admit the evidence contained in Bundle A must fail. (Paragraphs [24]–[25] and [29]–[30] at 18b–e and 19g–20c.)

Held, further, regarding the second bundle of new evidence (Bundle B), that this included certain documents that were already part of the...