S v Van der Westhuizen

• Jurisdiction: South Africa
• Judge: Cloete JA, Snyders JA and Theron JA
• Judgment Date: 28 March 2011
• Docket Number: 266/10
• Hearing Date: 23 February 2011
• Counsel: MO Julius (DPP, Cape Town and Bloemfontein) for the State.
• Court: Supreme Court of Appeal

Cloete JA (Snyders JA and Theron JA concurring):

Introduction E

[1] On 28 July 2006 the appellant shot and killed his three children. He was found guilty of three counts of murder by the Western Cape High Court (Louw J) and sentenced to 14 years' imprisonment on each count. Nine years of each of the sentences, on the second and third counts, were F ordered to run concurrently with the sentence on the first count. The effective term of imprisonment was therefore 24 years. The appellant has appealed, with the leave of the court a quo, against both his conviction and the sentence imposed. This judgment addresses two questions:

•

whether the appellant had a fair trial; and

•

whether, having consented to admissions being recorded formally in G terms of s 220 of the Criminal Procedure Act (the CPA), [1] the appellant was entitled, without more, to lead evidence and advance argument in contradiction of such admissions.

Fair trial

[2] The submission that the appellant had not been accorded a fair trial H was based on an argument that the prosecutor had not been impartial, and on specific instances of alleged misconduct on the part of the prosecutor and the court.

Impartiality of the prosecutor I

[3] I shall deal first with the impartiality of the prosecutor. The appellant's attorney submitted:

Cloete JA

(a)

A that the prosecutor had called Inspector Koekemoer, a sniper and part of the special task force deployed at the appellant's house after he had shot his children, to give evidence prejudicial to the appellant, when the prosecutor could have called the hostage negotiators, especially the senior negotiator Superintendent Herman Bosman, whose evidence, it was submitted, would have B been less prejudicial to the appellant, and important for the court to appreciate the appellant's mental state; and

(b)

that the prosecutor had not called:

(i)

Ronel Arendse, the psychologist to whom Mrs Van der Westhuizen had been referred on the date of the shootings, who C was still treating her when she gave evidence, and whose summary of what was told to her allegedly differed from Mrs Van der Westhuizen's evidence as to what had happened on the night of the shootings;

(ii)

Tanya Swart, a psychologist at Valkenberg and part of the team D that observed the appellant when he was referred there for an inquiry into his mental state, and a report as contemplated in Ch 13 of the CPA, whose notes contained material which the defence considered to be of assistance to the appellant, which were used to cross-examine State witnesses and which were handed in as an exhibit by the defence;

(iii)

E Ronel Kemp (née Ollewagen), a psychologist consulted by the appellant and Mrs Van der Westhuizen in 2004; and

(iv)

Captain Marinda van Zyl, a social worker from the Employee Assistance Services of the police, whom both the appellant and Mrs Van der Westhuizen consulted during the year in which the F shootings took place.

[4] The appellant's attorney asked this court to draw the inference that witnesses that could support the appellant's case were not called; and that the State had gone out of its way to obtain and place before the court evidence that showed the appellant in a bad light. At the heart of this G argument is a fundamental misconception of the duties and function of a prosecutor in a criminal case.

[5] Section 179(4) of the Constitution [2] provides that:

'National legislation must ensure that the prosecuting authority H exercises its functions without fear, favour or prejudice.'

The national legislation concerned is the National Prosecuting Authority Act. [3] Two sections of that Act are relevant for present purposes, namely s 32 and s 22(6). The former section provides:

'(1)(a) A member of the prosecuting authority shall serve impartially I and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.'

Cloete JA

The oath and affirmation prescribed in ss (2)(a) of the same section also A contain the words 'enforce the Law of the Republic without fear, favour or prejudice'. Section 22(6) of the National Prosecuting Authority Act requires the National Director of Public Prosecutions — in consultation with the Minister, and after consultation with Deputy National Directors and Directors — to frame a code of conduct, and provides that such code shall be complied with by the prosecuting authority. [4] B

[6] The Code of Conduct for Members of the National Prosecuting Authority was recently published by GN R1257 in GG 33907 of 29 December 2010. It contains the following provisions relevant for present purposes: C

'B. INDEPENDENCE

The prosecutorial discretion to institute and to stop criminal proceedings should be exercised independently, in accordance with the Prosecution Policy and the Policy Directives, and be free from political, public and judicial interference. D

'C. IMPARTIALITY

Prosecutors should perform their duties without fear, favour or prejudice. In particular, they should —

(a)

carry out their functions impartially and not become personally, as opposed to professionally, involved in any matter; E

(b)

avoid taking decisions or involving themselves in matters where a conflict of interest exists or might possibly exist;

(c)

take into consideration the public interest as distinct from media or partisan interests and concerns, however vociferously these may be presented;

(d)

avoid participation in political or other activities which may F prejudice or be perceived to prejudice their independence and impartiality;

(e)

not seek or receive gifts, donations, favours or sponsorships that may compromise, or may be perceived to compromise, their professional integrity;

(f)

act with objectivity and pay due attention to the constitutional G right to equality;

(g)

take into account all relevant circumstances and ensure that reasonable enquiries are made about evidence, irrespective of whether these enquiries are to the advantage or disadvantage of the alleged offender;

(h)

be sensitive to the needs of victims and do justice between the H victim, the accused and the community, according to the law and the dictates of fairness and equity; and

(i)

assist the court to arrive at a just verdict and, in the event of a conviction, an appropriate sentence based on the evidence presented.'

[7] The Code was not in operation at the time of the appellant's I prosecution, but it is consistent with the United Nations Guidelines on

Cloete JA

A the Role of Prosecutors, [5] as well as the Standards of Professional Responsibility and Statements of the Essential Duties and Rights of Prosecutors of the International Association of Prosecutors. [6] Clause 13 of the UN Guidelines provides:

'In the performance of their duties, prosecutors shall:

(a)

B Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;

(b)

Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they C are to the advantage of the suspect.'

[8] The International Association of Prosecutors' Standards contains the following provisions relevant for present purposes:

'3. Impartiality

D Prosecutors shall perform their duties without fear, favour or prejudice.

In particular they shall:

carry out their functions impartially;

remain unaffected by individual or sectional interests and public or media pressures and shall have regard only to the public interest; act E with objectivity;

have regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;

in accordance with local law or the requirements of a fair trial, seek to ensure that all necessary and reasonable enquiries are made and the result disclosed, whether that points towards the guilt or the innocence F of the suspect;

always search for the truth and assist the court to arrive at the truth and to do justice between the community, the victim and the accused according to law and the dictates of fairness.

4. Role in criminal proceedings

4.1

G Prosecutors shall perform their duties fairly, consistently and expeditiously.

. . .

(d)

in the institution of criminal proceedings, they will proceed only when a case is well-founded upon evidence reasonably believed to H be reliable and admissible, and will not continue with a prosecution in the absence of such evidence; throughout the course of the proceedings, the case will be firmly but fairly prosecuted; and not beyond what is indicated by the evidence.'

[9] I pause to emphasise that the concept of impartiality in the South I African Code, the UN Guidelines and the Standards of the International Association of Prosecutors is not used in the sense of not acting

Cloete JA

adversarially, but in the sense of acting even-handedly, ie avoiding A discrimination; and the duty to act impartially is therefore part of the more general duty to act without fear, favour or prejudice.

[10] Against this local and international background, it would be apposite to quote from the judgment of Rand J of the Supreme Court of Canada in Boucher v The Queen: [7] B

'It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its C legitimate strength but...