THE STATE
and
HENDRIK FREDERICK DELPORT CHRISTOPHER ARTHUR PICKARD PETRUS CASPARUS HORNE
H FOURIE
IANNIS PAPOULIAS
MICHAEL 1ERMANUS KINNEAR ”VICTOR WILL\AN\ ARLOW
Firs* Respondent Second Respondent
Makgoba J et Van der Byl AJ:-
Introduction
This is an appeal by the State in terms of section 310 of the Criminal Procedure Act, 1977 (Act 51 of 1977) (“the C m/na/ Procedure Act'), against a decision of a regional magistrate sitting in the regional court at Pretoria allowing and upholding a plea in terms of section 106(1) h) of the Criminal Procedure Act raised by the Respondents after the close of the State case.
The eight Respo .dents yzeie \oge\ñer»ith six other accuseci persons) charged as Accused Nos. 1, 3, 4, 5, 9, 10. 12 and 13 smith 7 239 charges consisting of charges of, fer a/la. fraud and contraventions of section 2(1)(a) of the Prevention of Organised Crime Act, 1998 Act 121 of 1998) (rackete ring activities), the Customs and Excise Ast, 1964 {Act 91 of 1954) (expert of goods to a destination other than the one indicated at the time of clearance of such goocis for export), the Value-Added Tax Act, 1991 (Act 89 of 991) (submitting raise returns claiming refunds or exemptions). and the Riotous Assembly Aci, 1956 {Act 17 of 1956) (conspiracy to sommit fraud).
{/ The barges ra ie to am aeged uMawu| ene rse :v c wasab$eiy
The Respondents, like their co-accused pleaded not guilty on all the charges against them on 12 July 2004, whereupon, the trial commenced and proceeded for some five years when the State, after having adduced the evidence of many witnesses, closed its case.
The prosecution was, a decision having earlier been taken by Advv Henring and Smit, being member of the National Prssecting Authority, to prosecute, conducted on öehalf of the State by Adv P A van Wyk SC, a practising advocate at the Pretorta Bar, tcgetheF with AdV T KannemeyeF, an advocate in the employ of the South African Rev=nue Service.
At the commencement of the prosecution and before the charges were put to the Accused and before they were called upon tc plead. Adv. Van Wyk, announced that Adv Kannemeyer and himself were, by virtue of an appoints nt or "engagement' by the Director of Public Prosecutions, acting on behalf of the State. and handed in two documents dated 24 June 2004 which were admittedly issued and signed by Adv MJ iVlpshe SC, the then Director of Public Frcsecuticns, each indicating that, he in terms of section 38{1) and (3) of the Nationai Prosecuting Act, “:•998 (Act 32 of 1998) (‘ the
I, Mokotedi Joseph Mpshe, Director of Public Prosecutions for the Transvaal Provincial Division of the High Court, in consultation with the National Director of Public Prosecutions, hereby engage Adv P A van Wyk la:
institute and conduct criminal proceedings on behalf of the State,
carp out any necessary functions incidental to institut,’ng and conduct such criminal proceedings,’
within my area ofjurisdiction and subject to my control and directions in the rafter of the State versus Hendrik Frederick Delport and others.
DATE. 24 JUNE 2004 (sgd) ADV M J MPSHE SC D RECTOR OF PUBLIC PROSECUTIONS TRANSVAAL PROVINCIAL DIVISION’.
(The document retating to Adv T Kannemeyer is simiiarly v/orded)
We may add that Adv Van Wyk was, in accordance with the traditions followed
IV FäCtising ccunsel et the Bar, du!y briefed by a firm of attorneys on bedalf of the South AfFican Revenue Service v/hich was at the time its client.
After the State ctcsed its case the mag!strate upon or about 10 December 2008 granted, in terms of section ’.7*. of the Criminat Procedure Act an app4cation for the
of Du Plessis J in this Court under Case No. 17709/2006 on 1 February 2008 (now reported as Bonugli and Another v Deputy National Dfrecfor of Public Prosecutions anc/ Others 2010 (2} SACR 134 (T)).
{11] In Bonog/i’s case, sopra, Du PTessis J was concerned with an application for an order reviewing and setting aside a decision of the Deputy National Director of Public Prosecutions to appoint, in terms of section 38 ofthe National PFosecuting Authority Act, t«o practising advocates and members of the Johannesburg Bar to conduct the prosecution against the two applicants on charges GI fraLld. The two applicants contended that the appointment of the two ad«ccates were unlawful in effect on the grounds thereof that in view of the factua! backgror!nd of their appointments, the prosecution will not be conducted without fear. favour or prejudice as reo,uired by section 179(4), read with section 35(3), of the Constitution and section 32(1) of the FJationai Prosecuting Authority Act.
At 144g Du Plessis J after having alluded to the facts relevant to th= matter concluded
the two applicants did not raise a plea in terms of section 106(1)(h) of the Criminal Procedure Act, but instead elected, before their trial commenced. to rather approach this Court for an order reviewing and setting the decision to appoint the two advocates to conduct the prosecution on behalf of the State;
the learned Judge held, as already indicated, that in the particular circumstances of that case the deGision to appoint the two advocates was unconstitutional, but dici not hood, as a genera! principio, tha! the appointment of practising advoca*.es as prosecutors is under all circumstances to be held to be unconstitutional.
The circumstances in that case were the follo ›//ng -
that the first applicant was a trustee of a Trust that owned all the shaFes in the U Company, a finance ccmpany, and the Ch!ef Executive Officer of the iJ Company, and the seccnd appiicant was the Discounting Aóministration Manager of that company;
tb) t.°›at the Trust dur[ng 1997 sold all its shares to !aÜlbáPK Ltd warranti g that the
inflation cf the U Company's profits;
that the U Gompany's attorney at some stage briefed the second respondent for his opinion as to whether a fraud had been committed in relation to inflation of the U Company's profits.
that the Director of Public Prosecutions then decided to prosecute, /n/era//a. the first applicant and. as the State had difficulty in formulating the charge-sheet, the U CCmpany's attorney retained ihe second and third respondents to assist the State in the criminal proceedings;
that, en representations made by the first applicant's attoFn y, the Director of Public Prosecutions withdrew the charges against the first applicant and har co-accused;
that, following certain developments, the attorney of the U Company appFoached a member of the staff cf Director of Public Prosecutions. with a view to getting the f,•aud charges reinstateci
section 38 of the National Prosecuting Authority Act on the basis that they would be paid by the complainant:
that, bearing in mind the fact that the facts show -
that the second respondent previously advised the complainant in the case against the applicants on the prospects of successfully pros cuting at least the first applicant;
tii) that the prosecution was reinstituted at the urgings cf the complainant's attorney acting on its behalf;
(iii) that the advocates were to be paid with funés that the complainant made available and that the prosecution would, but for the complainant’s funding not have proceeded,
Du Plessis J held that the question whether a reasonable, objective and informed person would on these facts have reasonably apprehend that the second and third responde! ,ts a•outd nct act witnoLit fear f3voriF Or prejudice.
Having heard argument on behalf of all the parties on the principles referred to in that matter and, particularly, on the issue whether the appointment or “engagement' ofAdvv Van Wyk and Kannemeyer was contrary to the law, the regional magistrate held on 1 April 2009 as follows:
“MY BEVINDING IS DAN EERSTENS DIE REG IS GESKEND, JA. TWEEDENS, VOLGENS MYIS DIT NIE VAN SO N FUNDAMENTELE AARD DAT DIT NOODWENDIG MOET LEI TOT, EN KAN DIT NIE OP HIERDIE STADIUM LEI TOT N VRYSPRAAK NIE.’”.
The magistrate thereafter elected to refer the matter for special review.
{14] On 14 January 2011 this Court (Van der flerwe DJF), hav.ng considered the special review. handed down a judgment holding that no case has been made out why this Court should review the proceedings in the regional court and remitted the matter to the magistrate to deal with the matter in accordance with the la • .
[15] On 7 November 2011, ie., some 10 months later, the Second Respondent (Accused No 3) filed an application to change his plea to one wnereby, in terms of section 1O6i1}(h) of tt ,e Criminal Procedure Act, it is pleaded that the prosecutors did
similar application
After having heard argument on behalf of all parties in this regard, the magistrate delivered judgment on 20 March 2012 and held -
that the Respondents were entitled to change their pleas at that stage of the proceedings, ie., after the State had closed its case;
that their plea in terms of aforesaid section 106(1)(h) be upheld; and
that they are all in terms of section ’. 05{^.) cf the Criminal Procedure Act entitled to be acquitted.
{16} It is aaa'nst this decision ‹hat the State lodged this appeal in terms or, aS NS
atFead”y indicated, sec*.ion 310 of the Criminal Procedure Act.
19] .As s appar nt from the magistrate’s reasons he approached the matter on the
basis of the following questions, namely -
thirdly, the question as to what is in law to be understood under the expression ‘engage, under agreements in whiting in section 38(1) and (3) of the National Prosecuting Authority Act:
fourthly, the question whether it is in law a requirement that a person appointed undeF the aforesaid section 38 should, furthermore, arse be authoFized in wFiting in teFms of section 20(5) of that Act to conduct prosecutions,
fifthly, the question whether it is in law a .°equirement that a person who is so authorized to also comply with the pfoViSions of section 20(6) of that Act. and
(f
{20]
sixthl , the question whether it is in law a requirement that a person appointed under section 38 of the National Prcsecuting Authority Act te atso take the oath envisaged in section 32(2) cf that Act.
In eur opinion the first question, which may be decistve of this appeal, is the
question whetheF or not a plea in terms of section 106(1)(h) of the Criminal Procedure Act can or shoutd, assuming fer present purposes that the Respondents were entitled
iuestiom vvhc{her or mot a glea ir lecms mf seatiom 106(4)h) cf she Croirai ProCeJure Act CQn 6£ Should in the oircumstanses of this case sMCceed
[21] On this question the magistrate held that, upon a pFoper interpretation of section 38(1) and (3) of the National Prosecuting Authority Act, the documents handed in at the commencement oi the trial entitled “ENGAGEMENT IN TERMS GB SECTION 38(1) AND (3) OF ACT 32 OF 1998" cannot be regarded as "agreements in writing’ as envisaged in section 38(1) of that Act and that in any event no consultation had taken place with the Minister as is likewise envisaged (being an issue which was not raised by any of the parties in argument before us).
(22] It does not appear from this finding that, apart from the alleged procedural shortcomings of the respective appointments, the appointments rendered the proceedings. as was held by Du Plessis J in Bonugli's case, supra, regard being had to the circumstances surrounding their appointments, to have been unccnstitutiona'.
[23) The contention is merely one that, upon a proper interpretation of section 38
,-ead with sections 20 and 32 of the National Prosecuting Authority Ast, the two prosecutors were not duly appointed and authorized to conduct the prosecution against the Respondents.
In our opinion the magistrate took a too narrow and particularly legalistic approach in considering the relevant legislation.
Section 38 of the National Prosecuting Act reads as follows:
““(1) The National Director may in consultation with the Minister, and a Deputy National Director or a Director may, in consultation with the Minister and the National Director, on behalf of the State, engage, under agreements in writing, persons having suitable qualifications and experience to perform services in specific cases.
/2/ the terms and conditions of service of a person engaged by that National Director, a Deputy National Dlrector or a Director under subsection (1) shall be as determined from time to time by he Minister in concurrence with the Minister of Finance.
Where the engagement of a person contemplated in subsection
(1) will not less// in financial implications for the State -
he National Director; or
a Deputy National Director or a Director, in consultation with the National Director,
may, on behalf of the State, engage, under an agreement in writing, such person to perform the services contemplated ln subsectiOfJ (1) without consulting the Minister as contemplated in that subsection.
For purposes of this section, ’services'include the conducting of a prosecution under the control and direction of the National Director, a Deputy National Director or a Director, as the case may be."
Tne evidence shows that Adv Van *Vyk had, In anticipation of concluding an
açreemen' wúicn he suomitted to Aóv Mpshe SC Annexure JHC 3, Volume 7, record
p. 776 el seq on 22 June 2004 provtding Voter alia -
that the National Prosecuting Authority must immediately upon the acceptance of the instruction to the prosecuting counsel furnish the prosecuting counsel with a written authority to prosecute in terms of section 38 of the National Prosecuting Authority Act (which, bearing in mind that the agreement prepared and signed by Adv Van Wyk was signed on 22 June 2004 (followed, incidentally, by Adv Mpshe's “engagement" two days later on 24 June 2000);
that the National Prosecuting Authority must make the Policy and Procedural Guideline. the Operational Procedures of the SCCU available to the prosecuting counsel;
foF the obligations of the prosecuting counsel;
that the agreement has nc CGSt llT'lpIisations for the National Prosecuting
for progress reviews between the National P› osecuting Authority anci the prosecuting counsel.
in the records of the National Prosecuting Authority;
that a copy of the agFeement made available by Adv Van Wyk was submitted to Adv Mpshe SC to establish whetheF he could remember having signed the agreement, but he was. possibly because of the elapse of five years, unable to recall having signed the document.
[2Sj In argument at the hearing of this appeal ccunsel who appeared on behalf of the FiFSt, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents heavily relied on the decision in Philips v Botha 199s /zy SACR 228 (W) and, part.cuIarly, the passage at 231i where the learned Judçe expre•sed h:mseif as follows:
“It seems to me that he failure to take objection dy away of pleading to a charge does not prevent an accused from raising it thereafter. Absence of title In he prosecutor is fundamental ‹’o the pr«ceedings, a jurisdictional void.”.
[30] in relying en this decis‹on and, particularly. en this passage counsel submitted that there is no need to show. as we have indicated in paras°aph [24] above, tnat in that onduc% of the proceedinçs there was at any time any decision or action taken by the two counset cancer ed welch had the çotential ,*or them to have, cCnsc›ousIy or
32] In that case the Court was concerned with a matter where an accused was in a private prosecution in terms of section 7(1)(a) of the Criminal Procedure Act discharged at the end of the prosecution's case on the grounds thereof that the prosecut on had failed to prove that it had a 'substantial and peculiar interest in the issue of the fr/a/ arising out of some injury which he indlVidually suffered in consequence of the commission of he offence” within the meaning of s 7(1)(a) of the Criminal Procedure Act. On appeal by the prosecution the learned Judge sitting on the appeal raised the question whether the issue cculd not have been more properly raised by way of a plea in terms of section 106(’. )(h) of the Criminal Procedure Act, but counsel on behalf cf the prosecution declined to rely thereon. It was in this context that the learned Judge expressed himself at 23fi in the passage quoted above, but Succeeded tc dea! w.th tne appeal on the basis that a causal connection between the yu suffeFed by the private prosecutor and the commiss:on of the offence was a size qua now of the /ocr›s standi of the prosecutor and held that the private prosecutor faiieci to establish such a causal connection.
[33j it ia accordingly qu.te clear that the passage relied upon ‘was a mere od/ter
need for the learned Judge to cans cier. as was do, .e in the Bonugli case, supra.
the commission of the said offence’ as envisaged in section 7(1)(a) oi the Criminal
Procedure Act.
[35] In our view it is in this matter obvious that all the parties proceeded in the trial on the basis that the two counsel concerned were properly authorized or engaged, as is apparent from the documents handed in, to conduct the prosecution until, presumably, they were requested by the magistrate to address him on the pFincipies enunciated in the Bonugli's case, supra, whicn are, as we haven already indicated distinguishable from the principles involved in this matter.
obvious that ihey all proceeded on the basis that section 36 Of the NatiGODl P,°osecuting Authority Act had at all times öeen complied with and that the pFosecution proCeeded in the spirït of the agreement prepared by Adv Van Wyk and accordingly in accordance with the objectives and aims of the said section 38.
In view of the aforepoing we are satisfied, bearing in mind that the section
contains no indication that such an agreement should be contained in a single document
In any event in our opinion the requirement for an agreement as envisaged in section 38 is, upon a propet interpretation of the section, a requirement to ensure certainty between the Director of Public Prosecutions and the counsel concerned which cannot have an effect on the title of those counsel. The power to engage so-called outside prosecutors is a power which confers a discretion on the Director of Public Prosecutions to designate “perso/7S having suitable qualifications and experience to peJorm seu'ices in specifi› cases”. The discretion exercised by the Director of , ublic Prosecutions was not, as was the case i'n the Bonugli case, supra. challenged .n this case. The question whether or not Advv Van V'7yk and Kannemeyer are persons having suitable qualifications and experience was never in dispute. We have no reason to draw any inference fFoM *.he section that the Legislatu e intended that any shortcomings, if
any, iQ ,relation to the conclusion of any such agreement would render the prosecution
conducted by the counsel concern d to be invalid or unconstitutional or could have such an effect on the proceedings.
In th‹s regard *.he following passage from the judgment In R v Busa 1959 (3) SA 385
(A) is informative where at 390B Steyn CJ dealt with this principle as follows
been, upheld.
Although ouF conclusion en this issue disposes of this appeal, we deem it necessary to briefly deal with the other questions posed by the magistrate, namely, (1) the question whether an accused can at any stage during a criminal trial raise a plea in terms of section 106(1)(h) of the Criminal Procedure Act; (2) the question as to the legal consequences of such a plea, if upheld; (3) the question whether it is a requirement that a person appointed under secticn 38 ts comp!y with the previsions of section 20(5j and
(6) of the National Prosecuting Authority ACt; and (4) the question whether it is a requirement that a person appointed unóer section 38 to comply with the provisions of section 32 of that Act.
We deal serat/m with each of these quest:ons.
Question whether a plea in terms of section 186(1)(h) of the Criminal Procedure Act can be raised as a general proposition at any stage of criminal proceedings or, il not, whether such a plea can be raised in the circumstances of this case
a* that stage cf the triat be›ng at the caos of the State s case
We are unpersuaded that the magistrate's finding is supported by the two decisions on which he relied for coming to his conclusion.
In the Mkhuzangewe case, supra, the Court was concerned with a situation where the question was considered whether an accused was entitled to change his plea in the course of the trial from nct guilty to one of autrefois acquit envisaged in section 106(1){d) of the Criminal ProceduFe Act. The magistrate Fefused to allow the accuseci to so change his plea. On appeal M T Steyn J, upholding the appeal, held at 255F as follows:
“Ek meen die landdr s fret foufe r c*e r te bes'is <“at n e.zceptio rei judicatae, of te »vel dixv pleit van vorige vryspraak (of'van autr fois acquit soos dit oak vanwee die Engeisregtelike invloed hier bekend staan) waarvoor voorsiening gemaak is by art 106(1)(d) van die Strafproseswet. slegs by disk aanvang van ’n verhoor geopper kan word. Die doel van die regspraak is om die aktuali‹’eite van ’n besondere regsaangeleentheid te bepaal en dit daarvolgens te bereg. Dit is feel maklik denkbaar dat ’n e a ka ooko a i i besaa. n nv e s aak es n
arie lo an n a e hoo en be kke besk eds
e /e// het ntdek ka o d. (Die onderhawige is trouens ’n baie goeie voorbeeld van daardie soort regsontdekking.) i o i o eval onclenkbaar wees dat blote formalisme sou seevier en die verhoor e so ev son aa ebe k de
own
brya
e
tef.” (Our emphasise.
k.n e. v nv i e
The magistrate‘s reliance on this decision clearly lost sight of the fact that this decision is not support foF a general proposition that an accused is allowed to change any plea from one to another at any time during the course cf the trial and that such a change in effect depends on the ciFCumstances of the particular case.
In the Philips case, supra, the Court was, as we have already indicated, concerned with a matter where an accused was in a private prosecution in terms of section 7(1)(a) of the Criminal Procedure Act discharged at the end of the prosecution's case on the grounds thereof that the prosecution had faiied to prove that it had a "substantial and peculiar interest in the issue of the trial arising out of some injury which
meaning of s 7(1)(a) of the Criminal Procedure Act.
Apart from the obiter nature of this consideration. the magistrate, in relying en this decision. lost sight of the fact that the teaFned Judge obviously did not intend to lay down a rule, as a general proposition, that, despite the circumstances of a particular sase, an accused is entitled to change his ptea under whatever c:rcumstances at any times during crim:‹nal proceedings.
their appointments.
[48] The objections were obviously not directed at the competency and, as in the Bonugli's case, supra. the objectivity of the two counsel and that their appointments were unconstitutional in that they would conduct the prosecution “a/tñout tear, favour orpre}udte’
t49] We are asccrding!y unpersuaded that this is a case where it can be held that the two counsel acted without fear, favour or prejudice and were in a position to take, as in the circumstances which prevailed in the Bonc/g//’s case, supra, decisions on a daily
basis or o*.herwise that ciid or ccutd have sericusly impact on the rights and interests of
the Respondents
As a matter of face it would seem -
that the trial proceeded for a period of more than five years without any indication of any Gbjections having been raised against ti^.e integrity and objectiv ty of tne trio advocates concerned, and
Bearing in mind that had this plea been raised at the commencement of the proceedings as the Respondents should have done, the shortcomings, if any. complained of could easily have been resolved or remedied or other persons could have been appointed or designated to conduct that prosecution.
In having raised this issue at this particularly late stage of the proceedings the State is cbViously placed in a position to its extreme prejudice to either institute criminal proceedings afresh against the Respondents in similar circumstances after the alleged shortcomings have been remGved or to rather abandon any further steps against the Respondents whilst the Respondents have not sufferred oF have shown any trial related
This is a state of affairs that cannot be regaFdedto be in the interest of justice.
In this regard it is rele»ant and cf particular importance to Fefer to the following dictum in National Director of Public Prosecutions v King 2010(2) SACR 146 (SCA) at 151f, para [5):
para [8). f9) and f’/**}, where the Court dealt with a situation where a presiding officer failed to inform an unrepresented accused of his right to legal representation, is in our view informative:
“[9) The crucial question to be answered is what legal effect such irregularity had on the proceedings at the appellants' trial. What needs to be stressed imm diately is that failure by a presiding judicial officer to inform an unrepresented accused of his right to legal representation, if found to be an irregularity, 6oes not por se result in an unfair /r/a/ necessitating !he setting aside of the conviction or appea!.
f56] The Respondents' application to have sought a change of their pleas at this late stage seems to smack in all the circumstances of opportunism.
(57] We are satisfied that the magistrate erred in finding that the Respondents ›xere entitled to have changed their respective pleas without considering all the circumstances relevant to the questiGn Whether such a plea could haven Leen raised at that late stage of the proceedings.
The question, in the event of a change of a plea from not guilty to one in terms of section 106(1)(h) of the Criminal Procedure Act , as to the legal consequences of sMch a plea beir§j Mghold
The magistrate, having correctly pointed out that there are no direct authority on this issue, nevertheless held that they are in terms of section 106(4) of the Criminal Procedure Act entitled, because they had alFeady pleaded, to a judgment, and acquitted the Respondents.
There are a numbeF of difficulties in this approach
61] In sthget fi lace a plea in terms of section 106(1j(h) of the Criminal PFocedure
Act is obviously intended to be raised at the commencement of proceedings in which an accus d is charged with some criminal conduct. If such a plea is raised at that stage he proseedinps r.an simply not proceed on tie ments of *.he charges before either a
decision can and is reached on the question whether or knot the prosecutcr concerned has indeed a title to prosecute or another perscn having such title is appointed or designa%ed to act as prosecutor. By having raised this plea at such a late stage :‹n these proceedings the Respondents have obviously deprived the State. to its extreme prejudice, of such an opportunity
fC2] in the sec d I c the q,uestion can be raised, as the magistra*e did, whether,
of not guilty is entered by he court, shall, save as is otherwise expressly provided by this Act or any other law, be entitled to demand that he be acquitted or be convicted "
It is not cleaF whether the magistrate granted the main order claimed by the Respondents that their respective pleas be changed from not guilty to a plea in terms of section 106(1)(h) or whether he granted the alternative prayer claimed that their original plea of not guilty be allowed to stand anJ that they be ailowed to raise the said section 106(1)(h) as an additional plea.
We have, therefore, to accept that the Respcndents' main claim was granted.
In having allowed the Respondents te change their pteas frcm nst guilty to a piea in terms of section 106(1)(h), the Respondents' plea of not guilty is in effect no longer on record whish raises the question whether they are, upcn a proper inteFpretation of section 106(4), entitled to demanci to be acquitted.
The section obviously has as its aim to entitle an accused that has pIeaaed not guilty or guilty to a charge, depend:Eng on whether he or she has pleaded guilty or not guilty. to demard to eitheF be acquitted or convicted.
.ere question +uvve ‘er ñe. e is v‹’hethe.° an cSuseJ wk . a sed a plea :n terms °f
In so far as the magistrate upheld the plea, it follows that the proceedings may have been a nullity calling for an order for it to be so declared in respect of which the magistrate has no power or authority.
In the third lace the consequences of a plea raised timeously are. however, somplicated where an accused is permitted, as /.n case. to raise such a plea in the course of the proceedings. In our view, assuming that it is in particular circumstances permissible to raise such a plea in the course of a trial, the Droceedings up to that date may, if such a plea is upheld, depending if it can. perhaps, be held that the accused's right to a fair trial has been infringed, be a nullity. A magistrate has no authority to
dectare any oroseeJings %o be a in.Iity. in such an event an accused in such a matter will be bound to approach the High Court for an crder declaring such proceedings to be
We are accordingiy of the opinion that the magistrate had no authority to apply section 106(4) on the basis of a finding that the proceedings were e nullity being an issue which falls w!th the Eur:sdiction of the High Court.
The question when:her it is a requirement that a person appointed under section 38 of the National Prosecutirig AMI:hOrity @Ct to comply with the provisiorts of
pointed out, that a person appointed in terms of section 38 of that Act must over and above such appointment also be authorized to conduct a prosecution by way of a delegation in terms of section 20(6) of that Act which must also comply with provisions of subsection (6) of that section and to take the oath envisaged in section 32 of that Act.
The said section 20(1), (5) and (6) reads as follows:
“(1) The power, as contemplated in section 179 (2) and all other relevant sections of the Constitution, to -
institute and onduct criminal proceed'”ngs on behalf of the State,
carry out any necessary functions incidental to instituting and conducting such criminal proceedings, and
discontinue criminal proceedings.
vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the Republic.
Any prosecutor shall be ompetent to exercise any of the pewei's referred to in subsection (1) to the extent that he or she has been authorised ihereto in writing by the National Director. or by a person designated by the National Director.
A written authorisation referred to in subsection (5) shall set out -
the area ofjurisdiction,“
fbj the OVenoes: and
It would accordingly appear that it was not the intention that a person appointed under section 38 should over and above such appointment be furthermore authorizeci to conduct a prosecution.
The obvious reason for that is the fact that, as opposed to appo.ntmen*.s in terms of section 15, an appointment in terms of section 38 in effect provides, not only for the engagement, but also with the authority to prosecute.
The question whether fts .s a requirement that a person appointed under section 38 to comply with the provisions of section 32 of the National ProsecMting Authority Act
Section 32 reads as follows:
‘, 1) (a)
e:
A member of the prosecuting authority snail serve impartially and exercise, carry out or perfofm his or her powefs, duties and functions in gocd faith and witn,out fear ha«our car prejudice and sub'ect onl'y ‹'a the Constitution and the law
this Act, take an oath or make an affirmation, which shall be subscribed by him or her, in the form set out below, namely -
. ... ........ ......... ..... . ..... ....
(full name)
do hereby swear/solemnly affirm that I will in my capacity as National Director/Deputy National Director of Public Prosecutions/Director/Deputy Director of Public Prosecutions/prosecutor, uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law. (In the case of an oath So help me God.)’.
Such an oath or affirmation shall -
in the case of he /Vat/ona/ Director, or a Deputy National Director, Director or Deputy Director, be taken or made before the most senior available judge of the High Court within which area ofjurisdiction the Office of the National Director, Director or Deputy Director, as the case may be, is situated; or
in the case of a prosecutor, be taken or made before tho Director in whose Office the prosecutor concerned has been appointed or before the most senior judge or magistrate at the court where the prosecutor is stationed,
who shall at the bottom thereof endorse a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.“.
71] Similarly as in the case of section 20 the expression “prosecutor’ in this section
relates to a prosecutor appointed under section 16
{72} ltwou|daccord+ng|yappear nOttohavebeentheintenfionOftheLegislatureto
prescribe an oath to be taken by a person appointed under section 39
In any event -
we can find no reason or indication in the National Prosecuting Authority Act as to why the failure to have taken any oath should reflect adversely on the validity of an appointment under section 38;
it is well-known that all advocates are on admission required to take an oath or make an affirmation swearing or affirming that he or she will frn/y and lowest/ demean" himself or herself in the practice and to be faithful to the Republic of South Africa (which. although worded differently in the oath or affirmation
resp ct the Taws of this country, including the aims of the Constitution).
C onClUSÏOR
For the reasons set out in this judgment, we are :n cOnGlusion of the vie» -
la) that, teking into consideratiG0 III the circumstences in this matter, Ad iv Van
person who was indeed engaged as prosecutor,
(ii) that there are no grounds on which it can be held that the circumstances under which the trial took place had or could have given rise to an unfair trial; and
in relation tc the question whether the Respondents were entitled to raise a plea in teFms of section 106(1j(h) of the Criminal Procedure Act at any time during the trial, that the Respondents, having been aware of all the facts relevant to their plea, were in the circumstances of this case not entitled to have raised such a plea at any time after the commencement of the trial;
in relation to the question vvhetheF Advv Van Wyk and Kannemeyer should, in acidition to their “engagement’ under section 38, have been authoriz=d in terms of section 20(5) and (6) to conduct the prosecution in a,uesticn, that they were rot required to have been so authorized; ancl
in relation to the o,uestion whether they should have taken the oath prescr'.bed
have been granted and that the concomitant orders cr rulings made by the magistrate should accordingly fall away.
Order
[76] In all the circumstances, and for the reasons given, we make the following
orders:-
THAT the appeal be upheld, that the order granted by the magistFate be set
aside and replaced with the following order:
THAT the Respondents applicati n to cñacge tñe/r plexus Iron not guilty to a plea in terms of section 106(1)(h) of the Criminal Procedure Act. 1O77, he refused.”.
THAT the matter be remitted to the magistrate to proceed with the tr'aI in
a rdance with the iaw
JUDGE OF THE HIGH COURT
F C VAN R BYL ACTING JUDGE OF THE HIGH COURT
PRETORIA
Ref: Mr J H C van Heerden/9/2/4/4-PTX 174/06 & PA 472012
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On behalf of the 1*t, 3'^, 4th, Sth, 7*^ and 8th Respondents ADV B PRETORIUS
On the instructions of
On behalf of the 6^ Respondent
On the instructions of
Date heard Judgment delivered
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13 June 2013