Savoi and Others v National Director of Public Prosecutions and Another

• Jurisdiction: South Africa
• Citation: 2014 (5) SA 317 (CC)

Savoi and Others v National Director of Public Prosecutions and Another
2014 (5) SA 317 (CC)

2014 (5) SA p317

Citation	2014 (5) SA 317 (CC)
Case No	CCT 71/13; [2014] ZACC 5
Court	Constitutional Court
Judge	Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J and Zondo J
Heard	November 11, 2013
Judgment	March 20, 2014
Counsel	G Marcus SC (with K Kemp SC, M du Plessis and S Pudifin-Jones) for the applicants; D Unterhalter SC (with R Naidu, L Sisilana and C Sibiya) for the respondents.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Protection — Standing to enforce — Abstract challenge to constitutionality of legislation — Though not negating C standing, applicant to show that challenged provision prima facie unconstitutional.

Constitutional law — Legislation — Validity — Prevention of Organised Crime Act 121 of 1998, s 2(1) — Definitions of 'pattern of racketeering activity' and 'enterprise' not unconstitutional — Nor phrase 'ought reasonably to have known'. D

Criminal law — Statutory offences — Organised crime — Racketeering — Ambit of offence — Concept of 'pattern of racketeering activity' aimed at ongoing and varied nature of organised crime, not at individual underlying offences — Definition of offence of racketeering not void for vagueness — Prevention of Organised Crime Act 121 of 1998, s 2(1). E

Criminal law — Statutory offences — Organised crime — Racketeering — Mens rea — Negligence — Negligence standard appropriate to offence of racketeering — Phrase 'ought reasonably to have known' not void for vagueness or unconstitutional — Prevention of Organised Crime Act 121 of 1998, s 2(1). F

Headnote : Kopnota

The applicants were charged in the Pietermaritzburg Division with racketeering offences under s 2 of the Prevention of Organised Crime Act 121 of 1998 (POCA). The court stayed the prosecution when the applicants challenged the constitutionality of the offences they were being charged with. They argued that POCA's definitions of a 'pattern of racketeering G

2014 (5) SA p318

A activity' [*] and 'enterprise' [†] were, respectively, vague and overbroad. They also argued that s 2(2) of POCA violated fair-trial rights by allowing courts to consider otherwise inadmissible evidence such as hearsay, similar fact evidence and evidence of previous convictions. Lastly they argued that the entire ch 2 of POCA was unconstitutional because it operated retrospectively. B The respondents replied that the applicants' failure to place a particular set of facts before the court made their challenge a purely abstract or hypothetical one.

The Pietermaritzburg Division dismissed applicants' challenges and instead declared s 2(1) unconstitutional to the extent that it contained the words 'ought reasonably to have known', which the court held to be unintelligible C and vague to the point of unconstitutionality. In an appeal the Constitutional Court held —

On the abstraction of applicants' challenge: Though the applicants had standing to challenge the constitutionality of the charges against them, the abstract nature of their challenge meant that they bore the heavy onus of showing that the challenged provisions were prima facie unconstitutional. D (Paragraphs [9] – [13] at 324B – 325E.)

On the vagueness of the charges: There was no vagueness. The concept of participation in a 'pattern of racketeering activity' was aimed at the modus operandi of organised crime, at the multifarious ways in which it manifested itself. To attack the definition by isolating individual offences, forming an E opinion on how relatively minor they were, and then concluding that they were incompatible with the notion of organised crime, was to ignore how organised crime worked. And although 'enterprise' covered a wide spectrum, overbreadth was not a self-standing ground of statutory invalidity. (Paragraphs [14] – [33] at 325F – 333C.)

On the procedural challenge: It wrongly assumed that the admission of F otherwise inadmissible evidence would always result in an automatically unfair trial. It might, but the unfairness would stem from a failure by the court concerned to use the filter in s 2(2) in a constitutionally compliant manner. But since the applicants had brought an abstract challenge, this issue did not arise in the present case. (Paragraphs [46], [48] and [59] at 338D – E, 339A – C and 343D.)

G On retrospectivity: POCA criminalised current conduct relating to a past 'pattern of racketeering activity', not individual offences committed pre-POCA or even a pattern of racketeering activity that predated POCA. Organised crime had an ongoing mode of operation, and there was nothing unconstitutional about looking at past conduct to determine an existing pattern of ongoing criminality. (Paragraphs [81] – [84] at 349E – 350D.)

H On the high court's order of invalidity: The words 'ought reasonably to have known' — which imported a negligence standard — were suited to the offences in question. The language was not vague but captured the idea of negligence, and the element of subjectivity it imported was consonant with the interests of justice. Moreover, the order of invalidity was made on a case I the respondents were never called upon to meet. Hence the high court's order of invalidity would be rescinded. (Paragraphs [85] – [92] at 350D – 352G.)

2014 (5) SA p319

Cases Considered

Annotations A

Case law

Southern Africa

Affordable Medicines Trust and Others v Minister of Health and Others2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): dicta in para [108] applied B

Albutt v Centre for the Study of Violence and Reconciliation and Others2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): referred to

Biowatch Trust v Registrar, Genetic Resources and Others2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Case and Another v Minister of Safety and Security and Others; C Curtis v Minister of Safety and Security and Others1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609; [1996] ZACC 7): distinguished

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): compared D

Director of Public Prosecutions, Western Cape v Prins and Others2012 (2) SACR 183 (SCA) ([2012] ZASCA 106): referred to

Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others2014 (3) SA 106 (CC) ([2014] ZACC 3): referred to

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd E 2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): referred to

Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others1995 (4) SA 877 (CC) (1995 (10) BCLR 1289; [1995] ZACC 8): referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others1999 (1) SA 374 (CC) F (1998 (12) BCLR 1458; [1998] ZACC 17): dictum in para [56] applied

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dicta in paras [162] and [165] applied

Genrec Mei (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering, Metallurgical Industry and Others1995 (1) SA 563 (A) ([1994] ZASCA 143): distinguished G

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae)2006 (2) SA 311 (CC) (2006 (1) BCLR 1; [2005] ZACC 14): dicta in para [455] applied

National Director of Public Prosecutions and Another v Mohamed NO and Others H 2002 (4) SA 843 (CC) (2002 (2) SACR 196; 2002 (9) BCLR 970; [2002] ZACC 9): dicta in para [14] applied

National Director of Public Prosecutions v Basson2002 (1) SA 419 (SCA) (2001 (2) SACR 712; 2002 (1) BCLR 419; [2002] 2 All SA 255; [2001] ZASCA 111): dictum in para [1] applied

National Director of Public Prosecutions v Carolus and Others I 2000 (1) SA 1127 (SCA) (1999 (2) SACR 607; [2000] 1 All SA 302; [1999] ZASCA 101): dictum in para [36] applied

National Director of Public Prosecutions v Elran2013 (1) SACR 429 (CC) (2013 (4) BCLR 379; [2013] ZACC 2): dicta in para [22] applied

National Director of Public Prosecutions v King2010 (2) SACR 146 (SCA) (2010 (7) BCLR 656; [2010] 3 All SA 304): dicta in para [5] applied J

2014 (5) SA p320

R v D1958 (4) SA 364 (A): referred to A

R v Katz and Another1946 AD 71: referred to

R v Matthews and Others1960 (1) SA 752 (A): referred to

S v Banana 2000 (3) SA 885 (ZS) (2000 (2) SACR 1): referred to

S v Coetzee and Others1997 (3) SA 527 (CC) (1997 (1) SACR 379; 1997 (4) BCLR 437; B [1997] ZACC 2): dicta in paras [162] and [176] applied

S v D1991 (2) SACR 543 (A): discussed

S v De Blom1977 (3) SA 513 (A): compared

S v De Vries2012 (1) SACR 186 (SCA) ([2011] ZASCA 162): referred to

S v Desai1997 (1) SACR 38 (W): referred to

S v Eyssen2009 (1) SACR 406 (SCA) ([2009] 1 All SA 32; [2008] ZASCA 97): applied

S v Makwanyane and Another1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3): referred to C

S v Melk1988 (4) SA 561 (A) ([1987] ZASCA 148): discussed

S v Mhlungu and Others1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793; [1995] ZACC 4): referred to

S v Molimi2008 (3) SA 608 (CC) (2008 (2) SACR 76; 2008 (5) BCLR 451; [2008] ZACC 2): referred to D

S v Ndhlovu and Others2002 (6) SA 305 (SCA) (2002 (2) SACR 325; [2002] 3 All SA 760; [2002] ZASCA 70): dicta in para [13] applied

S v Nduna2011 (1) SACR 115 (SCA) ([2010] ZASCA 120): discussed

S v Zuma and Others1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401; [1995] ZACC 1): dictum...