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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number:  40248/18

In the matter between:

RALPH ISRAEL STANFIELD                                          

(IDENTITY NUMBER:  [….])                                           First Applicant

NICOLE TRACEY JOHNSON                                       

(IDENTITY NUMBER:  [….])                                         Second Applicant

FRANCISCA STANFIELD                                               

(IDENTITY NUMBER:  [….])                                         Third Applicant

 

and

 

THE NATIONAL DIRECTOR OF            

PUBLIC PROSECUTIONS ADVOCATE

SHAUN KEVIN ABRAHAMS N.O.                                       First Respondent

ADVOCATE QUENTIN APPELS N.O.

NATIONAL PROSECUTING AUTHORITY

CAPE TOWN                                                                    Second Respondent

 

JUDGMENT

 

 

POTTERILL J

[1]     Ralph Israel Stanfield, the first applicant, Nicole Tracey Johnson, the second applicant and Fransisca Stanfield, the third applicant (“the applicants”) are applying for an order suspending the prosecution instituted against the applicants, “as well as the persons set out in the schedule attached hereto known as accused 4-23 under Khayelitsha Regional Court case number 59/18.”[1]  It was conceded that only the applicants are before this court and not accused 4-23. 

[2]     The applicants are also requesting this court to review and set aside the decision of the National Director of Public Prosecutions Adv. Shaun Kevin Abrahams N.O. (“NDPP”), first respondent, to consolidate the trial of the applicants under case number 59/18 to the Regional Court D, Khayelitsha.

[3]     The second respondent, Adv. Quintin Appels N.O. National Prosecuting Authority Cape Town (“Appels”) is sited only in his representative capacity in charge of the prosecution.  Although the notice of motion[2] only indicates that no costs is sought against him, there is seemingly also no relief sought against Appels.

[4]     The applicants conceded that paragraphs 10 and 11 of the founding affidavit is to be struck out on the basis that the contents thereof are irrelevant and/or scandalous and/or vexatious.  The applicants are thus to carry the costs of such application.

[5]     The application is brought in terms of sections 3(4) of the Promotion of Administrative Justice Act 3 of 2000 as read with section 6 thereof, “or in terms of any other provision of the Promotion of Administrative Justice Act the above Honourable Court deems appropriate”.[3]

 

          The decision

[6]     The decision to be reviewed was issued on 1 February 2018, acting in terms of section 22(3) of the National Prosecuting Authority Act No 32 of 1998 (“the NPA Act”) read with section 111 of the Criminal Procedure Act No 51 of 1977 (“the CPA”), Adv. Abrahams, acting in his capacity as NDPP, issued a direction as follows:  “I THEREFORE HEREBY DIRECT that the criminal proceedings against the said accused in respect of the aforementioned offences be commenced and concluded in the Regional Magistrate Court, Khayelitsha in the area of jurisdiction of the Director of Public Prosecutions Western Cape Division, Cape Town.”

[7]     It is necessary to first address the point in limine raised by the NDPP.

 

 

Point in limine

[8]     The point raised is that the reliance of the applicants on PAJA for review is not competent.  The argument was that section 1(ff) of PAJA specifically excluded prosecutorial decisions from the ambit of administrative action.

               “1.      In this Act, unless the context indicates otherwise-

'administrative action' means any decision taken, or any failure to take a decision, by-

                                       (a)     an organ of state, when -

(i)      exercising a power in terms of the Constitution or a provincial constitution; or

(ii)     exercising a public power or performing a public function in terms of any legislation; or

(b)     a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, but does not include –

          …

(ff)   a decision to institute or continue a prosecution; …”

 

[9]     The applicants were alerted to this point in limine, as it was correctly raised in the answering affidavit.  In the replying affidavit the applicants misunderstood the point in limine and agree that to suspend the prosecution in toto would be incompetent;  not understanding that the reliance on PAJA as foundation for the review application is referred to as being incompetent.  This incorrect understanding is underlined in paragraph 14 of the replying affidavit which reads as follows:

“The Applicants seek to set aside the decision to centralise at Khayelitsha in terms of PAJA and such decision is irrational and unreasonable.”

 

[10]   A decision by the NDPP to prosecute, or not, is not susceptible to review under PAJA.  In Democratic Alliance v Acting NDPP [2012] 2 All SA 345 (SCA) the court found that the decision to prosecute or discontinue a prosecution was subject to a rule of law review and not PAJA.[4]  In NDPP v Freedom Under Law 2014 (4) SA 298 (SCA) at paragraph [27] the court found as follows:

                   “My conclusion from all this is that:

(a)     It has been recognised by this court that the policy considerations underlying our exclusion of a decision to prosecute from a PAJA review are substantially the same as those which influenced the English courts to limit the grounds upon which they would review decisions of this kind.

(b)     The English courts were persuaded by the very same policy considerations to impose identical limitations on the review of decisions not to prosecute or not to proceed with prosecution.

(c)     In the present context I can find no reason of policy, principle or logic to distinguish between decisions of these two kinds.

(d)     Against this background I agree with the obiter dictum by Navsa JA in DA and Others v Acting NDPP, that decisions to prosecute and not to prosecute are of the same genus, and that, although on a purely textual interpretation the exclusion in s 1 (ff) of PAJA is limited to the former, it must be understood to incorporate the latter as well.

(e)     Although decisions not to prosecute are – in the same way as decisions to prosecute – subject to judicial review, it does not extend to a review on the wider basis of PAJA, but is limited to grounds of legality and rationality.” [my emphasis]

 

[11]    The initial charges were withdrawn.  A decision is then taken by the NDPP to consolidate the charges and the accused receive summonses to appear, with the charge sheet attached thereto, at the Khayelitsha Court in the Western Cape.  The decision to consolidate can only be to enable prosecution and nothing else.  Section 1(ff) is thus applicable and this decision can only be reviewed in terms of a rule of law review. 

[12]    No such rule of law review is before me and on this ground alone this application must be dismissed simply because a review in terms of PAJA is incompetent.

[13]    I do however find it prudent to address the other two issues raised in the application to ensure the applicants’ right to have their trial begin and conclude without unreasonable delay.[5]

 

          The interpretation of s22(3) of NPA Act read with s111 of the CPA

[14]    The first ground raised is that section 22(3) of the NPA Act only allows the NDPP to issue a certificate directing that an offence be tried within the area of the jurisdiction of another Director and not to direct which court should hear a matter.  The heart of the complaint is that the Khayelitsha Court was specified. 

 

[15]    Section 22(3) of the NPA Act reads as follows:

“Where the National Director or a Deputy National Director authorised thereto in writing by the National Director deems it in the interest of the administration of justice that an offence committed as a whole or partially within the area of jurisdiction of one Director be investigated and tried within the area of jurisdiction of another Director, he or she may, subject to the provisions of section 111 of the Criminal Procedure Act, 1977 ( Act 51 of 1977), in writing direct that the investigation and criminal proceedings in respect of such offence be conducted and commenced within the area of jurisdiction of such other Director.”

 

[16]   Section 111 of the CPA reads as follows:

                   “Minister may remove trial to jurisdiction of another attorney-general

111(1)(a)      The direction of the National Director of Public Prosecutions contemplated in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), shall state the name of the accused, the relevant offence, the place at which (if known) and the Director in whose area of jurisdiction the relevant investigation and criminal proceedings shall be conducted and commenced.” 

 

[17]    The locus classicus of interpretation is set out in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para [18]:

“The present state of the law can be expressed as follows:  Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision of provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.  Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax;  the context in which the provision appears;  the apparent purpose to which it is directed and the material known to those responsible for its production.  Where more than one meaning is possible each possibility must be weighed in the light of all these factors.  The process is objective, not subjective.  A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.  Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.  To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation;  in a contractual context it is to make a contract for the parties other than the one they in fact made.  The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

 

[18]    In casu s111 must be interpreted in context with section 23 of the NPA and the apparent purpose to which it is directed.  A sensible approach must be followed.  The ordinary rules of grammar and syntax must be applied.

[19]   The point of departure is the language of the provision itself, read in context and having regard to the purposes of the provisions.  When applying the ordinary rules of grammar and syntax to the wording of section 111(1) of the CPA the reference to the place at which (if known) can only refer to the area of jurisdiction where the criminal proceedings shall be conducted and commenced.  In context, this section deals with moving a criminal trial to another jurisdiction.  If known, the place within the jurisdiction should be stated.  This is the sensible approach, because any other interpretation for instance the place referring to where the offence was committed is not in context with the purpose of the sections. 

[20]   On behalf of the applicants I was referred to an unreported judgment of my brother Van der Linde J, in VV Khumalo and two others v Magistrate, Mr. Louw and the Director of Public Prosecutions, Gauteng Local Division, Johannesburg, case number 2014/40692.  This judgment takes the matter no further, because that judgment related to whether a transfer of jurisdiction to another Court requires at least part of the offence to be in the jurisdictions transferred to and from.  This judgment has no bearing on the meaning of “the place” in section 22(3). 

 

[21]    This ground of review is bad in law. 

 

          The NDPP did not apply his mind and the decision is irrational

[22]   The second ground of the review is that the representatives of the NDPP did not properly apply their minds to the issue of the certificate and that the facts and reasons therefor render the decision irrational.  It was argued that the balance of convenience favours that the matter be heard in Pretoria, alternatively Olifantsfontein.  

[23]  The facts for this argument set out in the notice of motion are the following:

23.1    All of the jurisdictional facts exist in Pretoria, alternatively Olifanteinsfontein and that the balance of convenience thus favours that the matter be transferred to one of the two magistrates courts.  The only jurisdictional fact in favour of the NDPP’s decision is that some, but not all, of the accused reside in the greater Cape Town area.

23.2   The case of the NDPP is premised on the provision of false information and the making of false entries into the records of the Olifantsfontein Police Station.  The veracity and the originality of these documents will be tested in the criminal proceedings.  Thus the original documents will have to be removed from Olifantsfontein and the officers and state employees who are responsible for the administration of firearms within the Olifantsfontein environment will be required to attend court in Cape Town and will be cross-examined necessitating such persons travelling from Gauteng to the Western Cape at tax payer’s expense.

23.3   The records of the Central Firearms Registry are relevant to the determination of the criminal charges and this Registry is based at Volkstem Avenue in Pretoria within the jurisdiction of the Pretoria court.  Furthermore the hard copies of the documents are stored in Silverton as well as the Central Firearms Registry.  It will thus cause great inconvenience if the presiding Magistrate in Khayelitsha as well as the accused have to travel to Pretoria to inspect the records and computer system of the Central Firearms Registry in Pretoria.

23.4   The applicants issued motion proceedings against the Minister of Police and the National Commissioner of Police for the return of the firearms and licences and competency certificates.  Twala J referred the matter for an enquiry in terms of section 102 of the Firearms Control Act to be instituted in Olifantsfontein or Pretoria.

 

[24]   The basis for the decision and accordingly the rationality of the decision is set out in the opposing affidavit with the following facts:

          24.1    Except for three of the 23 accused, all are resident in the Western Cape.

24.2   The matter has been investigated for some time with the police in the Western Cape.

24.3   The NPA in the Western Cape has been dealing with this specific matter for some time.

24.4   It is not economical neither practical to move committed NPA advocates dealing with this matter in the Western Cape to Pretoria in order to conduct the trial taking into account that these advocates have other matters which they are prosecuting as well.  Some of these trials do not run on every consecutive day when they are set down.

24.5   There is a shortage of resources and it is impractical to require the police who are busy with crime investigation and police matters in the Cape to leave the Cape and to be located in Pretoria for the duration of a long trial.

24.6   A large and unnecessary expense would have to be incurred in accommodating the NPA prosecutors and police in Pretoria for the duration of the trial where this expense would not be incurred if the trial is conducted in the Western Cape.

24.7   Many high profile racketeering matters have been conducted by the NPA Organised Crime Component in the Western Cape.

 

[25]   In the replying affidavit all of these facts are just baldly denied.  In view of the fact that the respondents’ assertions are not palpably implausible, far-fetched or so clearly untenable, a court is justified in accepting these facts on the papers.  This is especially so with the respondents’ version consisting of bald or uncreditworthy denials.[6]

[26]   A court cannot substitute its discretion for that of the decision-maker.  The court can only review a decision if the decision-maker failed to apply his or her mind to the relevant issues in accordance with the tenants of natural justice and the behest of the statute.[7]  For the first time in the heads of argument on behest of the applicants an argument is set forth that the decision to prosecute in the Western Cape is indicative of an ulterior motive.  This argument is astounding as it does not flow from any facts in the founding or replying affidavit and must be rejected. 

[27]   I cannot find that the NDPP in making the decision it did, did not apply its mind to the facts.  It is most certainly in the interest of the administration of justice to try the accused, who are overwhelmingly resident in the Western Cape, in that jurisdiction.  It saves the accused money and inconvenience.  No assertion is made as to why the accused will not receive a fair trial if their case is tried in the Western Cape or Khayelitsha.  The balance of convenience is not the test, but if it was then the balance favours it to be heard in the Western Cape.  All of the alleged inconvenience raised by the applicants relates to inconvenience of the state.  The only concern for the accused should be that they are not prejudiced and that they receive a fair trial.  The applicants nowhere state how and why they will be prejudiced or not receive a fair trial if the trial is held in the Khayelitsha court in the jurisdiction of the Western Cape.

[28]   The inconvenience raised by the applicants that they would have to travel to Pretoria to inspect records and the computer system of the Central Firearms Registry in Pretoria is rationally countered by the NDPP that to the best of their knowledge all the original documents are already in the possession of the prosecution in the Western Cape.  Upon perusal of the charge sheet it is clear that many of the Prevention of Organised Crime offences occurred in the Western Cape and that court accordingly does have jurisdiction.  With most of the accused resident in the Western Cape and the investigation and prosecution team in the Western Cape this court can never find that the decision of the NDPP was irrational.  The judgment of Twala J pertains to a section 102 enquiry and has no bearing on the jurisdiction of the criminal trial and cannot in any way bind the NDPP in exercising its discretion to consolidate. 

 

In the founding and replying affidavit the procedure in coming to this decision is not attacked, i.e. the procedural fairness is undisputed.  In argument it was raised that the date on the charge sheet would imply that the NDPP made this decision before the charge sheet was issued and without reference to the charge sheet.  This argument does not strengthen the applicants’ case and does not render the decision irrational.  Firstly, this court is not taken into its confidence that many of the offences occurred in the jurisdiction of the Western Cape, nor does the applicants ever deny it.  But secondly, in the very matter the applicants referred me to Van der Linde J finds at paragraphs [45] and [46] as follows:

“[45]  As regards investigations, s.22(3) does not say that these will only be ‘commenced’ with in the second area of jurisdiction;  it simply says that the investigations shall be ‘conducted’ in that second area.  This does not suggest that the fruits of that part of the investigations that had already been conducted, somehow become inadmissible.

[46]   This makes sense, because one would assume that in a perfect world, first come the investigations, and only thereafter, once the NDPP knows what charges to prefer against the accused, then come the criminal proceedings.  The factors that the NDPP will want to take into account might only become known to her after the investigation will in fact have commenced.”

The fact that the decision pre-dated the charge sheet, after investigation, is business as usual and not irrational.

 

[29]   For the first time in supplementary heads of argument handed up at the hearing section 90(8) of the Magistrates Court Act 32 of 1944, as amended, is raised.  It is now argued that the power to refer a matter to a specific court lies with the Provincial Director of Public Prosecutions.  This argument is rejected as not being part of the affidavits and the case made out by the applicants.  But, in any event, I am satisfied that in terms of section 22(3) the NDPP has the right to specify the place where the trial is to take place.

[30]   In conclusion, the applicants would thus also not on these facts be successful with a “rule of law review” based on legality and rationality.

[31]    I accordingly make the following order:

          1.       The application is dismissed.

2.       The applicants are to, jointly and severally, carry the costs, including costs

                   consequent upon the employment of two counsel.  The costs to include the costs of the striking-out application.

 

 

S. POTTERILL

JUDGE OF THE HIGH COURT

 

CASE NO:  40248/18

 

HEARD ON:   11 September 2019

 

FOR THE APPLICANTS:  ADV. M. SNYMAN SC

 

INSTRUCTED BY:  MJ Hood & Associates

 

FOR THE RESPONDENTS:  ADV. H. EPSTEIN SC

                                      ADV. P. KHOZA

 

INSTRUCTED BY:  State Attorney, Pretoria

 

DATE OF JUDGMENT:   17 September 2019 

 

 

 

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