S v Zuma and Another
| Jurisdiction | South Africa |
| Citation | 2022 (1) SACR 575 (KZP) |
S v Zuma and Another
2022 (1) SACR 575 (KZP)
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Citation |
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Case No |
CCD 30/2018 |
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Court |
KwaZulu-Natal Division, Pietermaritzburg |
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Judge |
Koen J |
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Heard |
October 26, 2021 |
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Judgment |
October 26, 2021 |
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Counsel |
W Trengove SC and A Breitenbach SC (with Du Plooy and K Singh) for the state. |
Flynote : Sleutelwoorde
Plea — Prosecutor has no title to prosecute — Determination of such plea — Oral hearing not required.
Plea — Prosecutor has no title to prosecute — Applicability — Plain meaning of s 106(4) of Criminal Procedure Act 51 of 1977 not contemplating range of instances where such plea might succeed.
Plea — Prosecutor has no title to prosecute — Meaning of 'prosecutor' — Reference to 'prosecutor' in s 106(1)(h) of Criminal Procedure Act 51 of 1977 not reference to state, but to person acting as prosecutor.
Plea — Prosecutor has no title to prosecute — What constitutes — Lack of independence and impartiality could not amount to lack of title to prosecute — Criminal Procedure Act 51 of 1977, s 106(1)(h).
Plea — Prosecutor has no title to prosecute — Removal of prosecutor — In adversarial criminal proceedings inevitable that prosecutors would be partisan, but method of removing prosecutor is by way of substantive application and not plea in terms of s 106(1)(h) of Criminal Procedure Act 51 of 1977.
Plea — Prosecutor has no title to prosecute — Meaning of 'title to prosecute' — No need to adopt strained wider meaning of word 'title' in s 106(1)(h) of Criminal Procedure Act 51 of 1977.
Plea — Prosecutor has no title to prosecute — Reliance by state on principle of issue estoppel — Policy considerations underlying principle clearly conveyed that no reason why issue estoppel, cautiously applied, should not apply across civil and criminal matters.
Headnote : Kopnota
The two accused faced numerous serious charges in a trial in the High Court, to which they had pleaded not guilty. In addition, the first accused raised a plea in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (the CPA), in which he contended that the lead prosecutor of the prosecuting team, one Mr Downer, had no title to prosecute as contemplated in that section, and had to be removed as prosecutor. He further demanded that, in the event of it being found that Mr Downer lacked title to prosecute, he was entitled to an acquittal of all the charges against him in terms of s 106(4) of the CPA.
The founding affidavit supporting the special plea set out the evidence in respect of the grounds relied upon by the first accused, but did not contain any request for oral evidence to be adduced or that the special plea be dealt with by way of a trial. Nonetheless, his counsel advanced the argument that the special plea had to be determined by trial proceedings, as opposed to on the affidavits. This was sought, both as an extension of the argument that the special plea should be referred to oral evidence, and as part of an argument that the special plea could only, as a matter of law, be determined by way of a trial. It was only from the time when the replying affidavit to the special plea was filed that the first accused requested that oral evidence be received. This contention was pursued by his counsel from the bar at the hearing of
2022 (1) SACR p576
the special plea. His counsel submitted, with reference to s 35(3)(e) of the Constitution, which provides that an accused was entitled to be present when being 'tried', and that 'tried' in s 108 of the CPA meant a trial with oral evidence, which would then also allow for the first accused's request that Mr Downer be available to be questioned generally on his past involvement in the first accused's prosecution, and other complaints raised by the first accused.
The court held that 'tried' did not denote only a trial with oral evidence, but included a legal adjudication of the special plea by any appropriate process the court might approve, with due cognisance of the accused's constitutional rights. In the present case the interests of justice clearly demanded that the special plea be dealt with as expeditiously as possible, as the charges went back to events which had occurred more than 15 years ago. An oral hearing was not required, not on the wording of s 106(1)(h), s 108 of the CPA or the law generally. If any real disputes of fact on material issues were to arise on the affidavits, then those disputed factual issues, if properly identified, could be dealt with by an appropriate reference of the disputed issues only to oral evidence, or alternatively to trial. The parties were agreed that the adjudication of the special plea should proceed on the affidavits exchanged, and that was undoubtedly a correct position in law, having regard to the wide powers a court had in terms of s 173 of the Constitution to protect and regulate its own process, and to develop the common law, taking into account the interests of justice. (See [52] – [53] and [60].)
Counsel for the first accused submitted that s 106(4) of the CPA envisaged a range or continuum of instances where a plea of lack of title might succeed, and that whether an acquittal of the accused should indeed follow would require that evidence be led to justify such an order. It was submitted that the first accused required such an opportunity, as he believed that he should be entitled to an acquittal. The court held that the plain meaning of s 106(4) did not contemplate such a range of instances, or a court having a discretion, depending on the facts giving rise to the particular lack of title of a prosecutor, to either acquit an accused or not. On the plain wording of the section, if any plea, other than the plea that the court lacked jurisdiction, succeeded, the accused would be 'entitled to demand that he either be acquitted or convicted'. That an accused, who had successfully established the jurisdictional requirement set by s 106(4), could demand, without any qualification, to be acquitted was a significant legal consequence which not only affected a proper interpretation of the section, but also, in context, affected the meaning to be attributed to the words 'title to prosecute' in s 106(1)(h) to prevent such an absurd result. (See [61] – [62].)
Despite the concession by the first accused that our courts had held that the reference to 'prosecutor' in s 106(1)(h) was not to the state, but to the person who acted as prosecutor, which was undoubtedly a correct concession of the law, there were numerous allegations in the first accused's affidavits that the state/National Prosecuting Authority (the NPA), as an entity, as opposed to Mr Downer (as natural person and prosecutor), had been disqualified from prosecuting him because of alleged political interference by others, or on the basis of some other complaint. Those complaints against officials of the NPA other than Mr Downer, assuming them to be established, were not grounds to which regard could be had under the rubric of the special plea raised in the matter, whether on a narrow or strict interpretation of 'title to prosecute'. Complaints raised against the state/NPA, which might have affected the first accused's trial rights, could at this stage before the commencement of the trial, at best, have entitled the first accused to a permanent stay of prosecution or some similar relief, but the possible infringement of fair-trial rights did not arise for consideration under the special plea. (See [73] and [77].)
2022 (1) SACR p577
In respect of the complaint by the first accused, that Mr Downer was not an independent and impartial prosecutor, it was incompatible with prosecutions by private and statutory prosecutors, by the very nature of those prosecutions. A lack of independence and impartiality could not amount to a lack of 'title to prosecute', otherwise every private and statutory prosecutor would lack the 'title to prosecute'. The same principle applied to public prosecutors employed by the state. Section 106(1)(h) drew no distinction between public and other prosecutors. Hence, as a matter of consistent statutory interpretation, a lack of independence and impartiality would also not amount to a lack of title. The lack of 'title to prosecute' provided for, unqualified in s 106(1)(h), could not, at the level of interpretation, mean a lack of independence and impartiality in respect of one type of prosecutor, that is, public prosecutors, but not others, that is, private prosecutors. The title to prosecute in the context of public prosecutors, at best, included their authority to prosecute, such as whether they had been properly appointed or were suitably qualified, or possibly whether they had the required authorisation in instances where an additional specific authority might be required to authorise the prosecutor to pursue a specific charge, such as charges of entrapment, which required authorisation in terms of s 252A(4) of the CPA, or prosecutions under the provisions of POCA, where specific authority was required in terms of s 2(4). It could never have been intended that, if one of the many prosecutors employed by the NPA might have some defect attached to their appointment as public prosecutor, but could be replaced by another prosecutor in the employ of the NPA who was properly appointed, or the prosecution continue with the remaining prosecutors only, such a 'defect' in the appointment of one would amount to a lack of title to prosecute on behalf of the other prosecutors, resulting in the accused being entitled to demand in terms of s 106(4) that he be acquitted, no matter how serious the charges might be. (See [88] – [89] and [93] – [94].)
In adversarial criminal proceedings it was inevitable that...
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