Van Eeden v Director of Public Prosecutions, Cape of Good Hope

• Jurisdiction: South Africa

Van Eeden v Director of Public Prosecutions, Cape of Good Hope
2005 (2) SACR 22 (C)

2005 (2) SACR p22

Citation	2005 (2) SACR 22 (C)
Case No	8356/03
Court	Cape Provincial Division
Judge	Traverso DJP, Ngwenya J and Budlender AJ
Heard	July 11, 2004
Judgment	September 8, 2004
Counsel	C Bisschoff for the applicant.; D A Greyling for the State.

Flynote : Sleutelwoorde

Plea — Plea E bargain — One of F elements of 'notions of basic fairness and justice' in accordance with which criminal trial conducted is that State is to be held to plea bargain which it has made or is deemed to have made — Such an element of substantive fairness — Palpably unfair to allow prosecution to enjoy benefits of a plea agreement, but avoid doing what was clearly contemplated when agreement reached. G

Headnote : Kopnota

One of the elements of the 'notions of basic fairness and justice' in accordance with which a criminal trial must be conducted is that the State is to be held to a plea bargain which it has made or is deemed to have made. This is an element of substantive fairness. It would be palpably unfair to allow the prosecution to enjoy the benefits H of a plea agreement, but avoid doing what was clearly contemplated when that agreement was reached. (Paragraphs [22] and [23] at 27f - h.)

The applicant and a co-accused had made an offer to the State that the co-accused would plead guilty to an alternative charge and the State would withdraw its case against the applicant. That is what occurred. I Subsequently, the State sought to re-charge the applicant. The applicant applied to a High Court for an order staying the prosecution. The Court found that either there was an agreement entered into between the applicant and the State or that there was deemed to have been such an agreement due to the conduct of the State after the offer was made to it. Accordingly, the Court ordered that prosecution of the applicant be stayed. J

2005 (2) SACR p23

Annotations:

Cases cited

Reported cases

North Western Dense Concrete CC and Another v Director of Public Prosecutions (Western Cape) 1999 (2) SACR 669 (C): approved and applied A

Nortje and Another v Attorney-General, Cape, and Another 1995 (1) SACR 446 (C) (1995 (2) SA 460; 1995 (2) BCLR 236): dictum at 471e - i (SACR) and 485C - G (SA) applied B

S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) (1992 (1) SA 343): considered

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): dictum in para [16] applied.

Legislation cited

Statutes

The Criminal C Procedure Act 51 of 1977, s 105A: see Juta's Statutes of South Africa 2003 vol 1 at 1-348.

Case Information

Application for an interdict to stay prosecution. The facts and issues appear from the reasons for judgment, handed down by Budlender AJ, Traverso DJP and Ngwenya J concurring. D

C Bisschoff for the applicant.

D A Greyling for the State.

Cur adv vult.

Postea (September 8). E

Judgment

Budlender AJ:

[1] The applicant seeks an interdict preventing the respondent from prosecuting him on certain charges. The applicant was originally represented by Mr Bisschoff on the instructions of the Legal Aid Board. Those instructions were F subsequently withdrawn. Mr Bisschoff then continued to act for the applicant, on a pro amico basis. I record the appreciation of the Court in this regard.

The factual context

[2] On 6 August 1996, the applicant and one Adams were stopped G by the police when they were travelling together in a car which the applicant was driving. A bag containing 2 000 Mandrax tablets was found in the car, and dagga was found on Mr Adams. The applicant and Mr Adams were then arrested. H

[3] The applicant made a statement to the police, setting out his version of what had happened. He said that he had been driving his car, had seen Mr Adams hitch-hiking, and had given him a lift. He had seen that Mr Adams had a bag with him, but had not known what was in it. It transpired that this bag contained 2 000 Mandrax tablets. Mr Adams also made a statement to the police. His statement confirmed the I applicant's version of the events.

[4] The applicant and Mr Adams were charged with dealing in drugs in contravention of s 5(b) of the Drugs and Drug Trafficking Act 140 of 1992. They were represented by the same attorney, Mr Liddell. J

2005 (2) SACR p24

Budlender AJ

[5] The applicant states that, on 9 January 1997, Mr A Liddell, acting on a mandate from both him and his co-accused, approached the prosecutor, Mr Fisher. Mr Liddell made an offer to the State: Mr Adams would plead guilty to a charge of unlawful possession of the drugs in question, and the State would not proceed against Mr Adams on the charge of dealing, and would withdraw the charges against the applicant. This evidence of the applicant was confirmed by Mr B Liddell.

[6] The respondent chose not to file any opposing affidavit. Instead, Ms Greyling, for the respondent, informed us that the respondent would rely on an earlier affidavit which was annexed to the applicant's founding affidavit. The earlier affidavit C had been filed in opposition to a previous application by the applicant under case No 4258/02. I refer later to the contents of that affidavit. At this stage, it is sufficient to record that the affidavit does not dispute the evidence of the applicant with regard to...