IN THE HIGH COURT OF SOUTH AFRICA

CASE NO: SS81/2000 9542/2000

In the matter between:

THE STATE (duly represented by the Director
of Public Prosecutions, Western Cape, hereinafter

and

JUDGMENT GIVEN ON 19 MARCH 2001

The first accused is charged with the murder of Duminsani Edmund Zwane ("Zwane"). He has in the meantime died and the charges against him have been formally withdrawn.
The second and third accused are charged with being accessories to the murder and, alternatively, defeating the ends of justice.

The trial was due to begin on 5 March 2001.

On 29 December 2000 the second accused gave notice that at the trial an application would be brought interdicting the Director of Public Prosecutions from proceeding with the prosecution. Affidavits were filed by and on behalf of the second accused as applicant, and the State (represented by the Director of Public Prosecutions, Western Cape) as respondent.

The relief sought

In his Notice of Motion, the second accused seeks the following relief:

1. Interdicting and restraining the abovenamed Respondent from proceeding with the prosecution against the abovenamed Second Accused, as at the date aforesaid or on any date thereafter, or with any other prosecution which is based on the same facts and circumstances;
2. Alternatively to that which is contained in prayer 1 herinabove, and only in the event of the above Honourable Court declining to grant the order contained therein:

2.1 Interdicting and restraining the abovenamed Respondent from instructing, permitting or allowing Advocate Kevin Rossouw and/or Advocate De Kock and/or any other member of his staff who
	(a) took part in the interview held on 30 July 1999 with the abovenamed Second Accused, as a State witness, or any interview held with him thereafter as such a witness; and/or
	(b) has knowledge of what was asked of the abovenamed Second Accused and/or was said by him and/or was pointed out by him during any such interview from conducting, taking part in or assisting in any way in the said prosecution of the abovenamed Second Accused, or any other prosecution which is based on the same facts and circumstances;
	(c) directing the abovenamed Respondent to instruct the persons referred to in prayers 2.1(a) and 2.1(b) hereinabove to retain as secret and confidential the knowledge which they possess in consequence of their taking part in the interviews referred to in those prayers or which they possess concerning those interviews, which knowledge has been received from any other source whatsoever;

The background

The background to the application needs to be sketched in no more than the broadest outline. The second accused is a sergeant in the South African Police Service. During 1999 he was stationed at Hout Bay. On 11 May 1999 he was on duty with other police officers. He was a passenger in a police vehicle driven by inspector Ferreira ("Ferreira") who later became the first accused. At about 9h30 they received a radio message that there had been an armed robbery in Cape Town and that the suspects were on their way towards Hout Bay in a beige BMW motor vehicle. Ferreira and the second accused, accompanied by sergeants Lesch and Gouws, were parked at the turn-off to Llandudno and kept the road from Camps Bay to Hout Bay under observation.
A beige BMW approached from the direction of Camps Bay. Shortly before the vehicle reached the turn-off to Llandudno, it swung around and sped back towards Camps Bay. The police set off in pursuit and succeeded in forcing the BMW to a standstill. The occupants jumped out and one of them ran away. Warnings to stand still were shouted and warning shots were fired. Ferreira fired several shots and one of the occupants was fatally wounded.

Ferreira was subsequently arrested and charged with murder, the State case being that Ferreira fired the fatal shots after the fleeing suspect had been wounded and was lying on the ground. The second and third accused were arrested on a charge of being accessories to the murder and, alternatively, defeating the ends of justice.

The consultation with second accused on 30 July 2000

The second accused's application arises from an interview or consultation in the offices of the Director of Public Prosecutions in Cape Town on 30 July 1999. There are factual disputes between the parties as to what precisely had transpired at the interview.

The version of the facts given by the second accused can be summarised as follows:

He made a statement to the police on 11 May 1999. On 30 July 1999 he was invited to attend a consultation with Advocate Kevin Rossouw ("Rossouw"), a senior member of the staff of the Director of Public Prosecutions. The interview was also attended by Advocate De Kock ("De Kock"), a colleague of Rossouw on the staff of the Director of Public Prosecutions.

He was under the impression that he was a state witness in the case against Ferreira and that the purpose of the interview was to discuss the evidence he was to give in that capacity. No word was said about the possibility that he might be charged along with Ferreira and he was not warned that he was a suspect.

After the interview had been going on for a while, Rossouw asked him whether he would mind if the interview was taped. The second accused says that -

"Nie wetende dat hy alreeds beplan het om my te voeg as 'n beskuldigde in Ferreira se saak nie, het ek toestemming verleen tot die opneem van ons onderhoud op band".

A long, aggressive and difficult "interrogation" ("'n lang, aggressiewe and moeilike 'ondervraging'") followed.

On the same day, the second accused and Rossouw visited the scene of the alleged crime and the second accused pointed certain things out to Rossouw. There is no written record of what he said or pointed out during the visit to the scene.

The second accused says that because he was not warned that Rossouw regarded him as a "suspect" and because Rossouw proceeded to interrogate him under the guise of consulting with him as a state witness, his right to a fair trial has irrevocably and irretrievably been subverted.

The version of the facts given by Rossouw differs materially from that of the second accused:

Rossouw, in the first place, denies that as at 30 July 1999 a decision had already been taken by the Director of Public Prosecutions to prosecute Ferreira and that he, Rossouw, had been appointed to conduct the prosecution against him. He accordingly denies that the second respondent could have conceived of himself as being a state witness in the prosecution of Ferreira and that he was treated as such during the consultation.

Rossouw says that at the commencement of the interview with the second accused on 30 July 1999 it was explained to him:
	1. The Director of Public Prosecutions has not as yet made any decision as to whether or not to prosecute Ferreira or any other person in connection with the death of Zwane
	2. The fact that the Independent Complaints Directorate had arrested Ferreira did not mean that a prosecution would necessarily be instituted against him.
	3. The version of events given by sergeant Rhyno Gouws incriminated Ferreira.
	4. It was apparent that the statement made by the second accused on 11 May 1999 was identical to that of Ferreira.
	5. They (ie Rossouw and De Kock) would like to afford the second accused and others the opportunity of giving a more detailed account of the events than what was contained in their statements.
	6. The second accused could choose to make a statement before the Director of Public Prosecutions would take a decision as to what the true facts are and whether or not those facts constituted and offence.

chose not to do so, a decision would have to be taken without the advantage of his version of the events.
8.	If he wished to make a statement, the second accused could first obtain legal advice or approach the legal services of the police, and his legal adviser could be present when he gave the statement.
9.	If a decision were later taken to prosecute him, any statement he made would not be used as part of the case against him.
Rossouw further says that it was only at a much later stage, after a decision had been taken to prosecute Ferreira, and after consultations had been conducted with various other witnesses, that the joining of the second and third accused as co-accused with Ferreira was first considered.

In his answering affidavit, Rossouw states that he has no intention of putting the statement made at the consultation into evidence during the presentation of the case for the prosecution ~

"save under circumstances where parts of the statement were to be elicited by the defence or Wesso [ie second accused] were to give evidence in his own defence and adduce a version contrary to the said statement. The State will then seek leave to put the said statement into evidence in order to impeach the credit of Wesso".

Are the proceedings interlocutory in nature?

Stay of the prosecution

"is radical, both philosophically and socio-politically. Barring the prosecution before the trial begins -- and consequently without any opportunity to ascertain the real effect of the delay on the outcome of the case ~ is far-reaching. Indeed it prevents the prosecution from presenting society's complaint against an alleged transgressor of society's rules of conduct. That will seldom be warranted in the absence of significant prejudice to the accused."

"Now there is no doubt that, in general where it is alleged by the Crown that a person has committed an offence, the proper way of deciding on his guilt is to initiate criminal proceedings against him; and where such proceedings have already, commenced, even if the stage of indictment only has been reached, it seems to me that a court which is asked to exercise its discretion by entertaining proceedings for an order expressly or in effect declaring that the accused is innocent would do well to exercise great caution before granting such an order. In most types of cases such an order would be entirely out of place".

"Ordinarily, and particularly where the prejudice alleged is not trial-related, there is a range of 'appropriate' remedies less radical than barring the prosecution. These would include a mandamus requiring the prosecution to commence the case, a refusal to grant the prosecution a remand, or damages after an acquittal arising out of the prejudice suffered by the accused. A bar is likely to be available only in a narrow range of circumstances, for example, where it is established that the accused has probably suffered irreparable trial prejudice as a result of the delay".

"Indeed, I can think of no other way in which the rights of such persons can be adequately protected."

The second respondent says, in essence, that his right to a fair trial has been undermined, and that he can in fact never have a fair trial, because his right to remain silent has been violated, that there has been an invasion of his legal professional privilege and that, as a result, the prosecution knows what his defence is. The second accused further says that the prosecution continues to violate those rights and that they want to use privileged information against him (and, no doubt ultimately) the third accused.

Van Schalkwyk J proceeds to say (at 862E--G) that in evaluating the nature and extent of an irregularity, regard should be had to the circumstances under which it took place:

"Die volledige uitskakeling van die privilegie is na my mening nie net 'n onreelmatigheid nie, maar 'n uiters growwe onreelmatigheid wat sover dit privilegie betref beswaarlik oortref kan word. Dit ly ook geen twyfel dat die skending van die privilegie in die onderhawige saak die verrigtinge geraak het nie".
The learned Chief Justice concludes (at 845F):

"Ek meen dat in die onderhawige saak weens die aard en omvang van die skending van die privilegie van die appellante dit bevind moet word dat die appellante se beskerming deur privilegie voor en gedurende die verhoor totaal verdwyn het deur die optrede van die Veiligheidspolisie, dat daardeur die verhoor nie voldoen het aan wat geregtigheid in hierdie opsig vereis nie en dat geregtigheid dus nie geskied het nie."

The fact that the prosecution has knowledge of matters pertaining to an accused's case does not necessarily constitute "irreparable trial prejudice" which would warrant barring the prosecution. In fact, the prosecution often has knowledge of matter which forms part of an accused's case and which may not be admissible in evidence against the accused at the trial. The accused may have made an extra-curial confession which is inadmissible in evidence under the provisions of the Criminal Procedure Act 51 of 1977; or, the prosecution may have come into possession of documents by way of unlawful search and seizure. The mere fact that the prosecution has such knowledge does not amount to a violation of an accused person's right to a fair trial.

Is the application is premature?

Mr Albertus submitted that the application is premature in that the respondent has indicated that the statement will not be used as part of the prosecution's case against the second accused. Should the second accused at the trial elect to give evidence in his own defence, the prosecution would not be able, without more, to use the statement in the cross-examination of the second accused. The trial judge may, in the event of any objection by the defence, rule that the statement is inadmissible, in which event the statement may not be used by the prosecution.

"Op sy eie weergawe staan dit dus glad nie vas dat die respondent ooit uitgevra sou word oor ander aspekte wat hy as vertroulik en gepriviligeerd beskou nie. Die kwessie van privilegie kon dus goed moontlik nooit ter sprake gekom het nie. Tot tyd en wyl hy oor 'n gepriviligeerde aspek ondervra sou word, en hy ondanks 'n beroep op privilegie verplig sou word om te antwoord, was daar geen rede om die aansoek te loods nie".

"any such order would amount to an unwarranted intrusion upon the right of the trial court to regulate its procedural matters in accordance with its own discretion".

"If the evidence to which the applicant objects is tendered in criminal proceedings against him, he will be entitled at that stage to raise objections to its admissibility. It will then be for the trial Judge to decide whether the circumstances are such that fairness requires the evidence to be excluded. It follows that the applicant is not entitled to an order from this Court in these proceedings that the evidence secured as a result of the searches and seizures will be inadmissible in criminal proceedings against him."

"I consider that these questions should be determined by the trial court when appraised of the full factual context within which this evidence is sought to be admitted. In this way a correct balance between the right to due process and the imperative of crime control can be struck."

Dit is egter onnodig om in hierdie saak in te gaan op die vraag wanneer so 'n dokument of verklaring toelaatbaar sou wees. Daar is verskillende uitsprake in ons eie reg en in die Engelse reg wat nie op 'n vasomskrewe beginsel wys nie, en die moontlikheid van 'n diskresionere bevoegdheid van die Hof is waarskynlik nie uitgesluit nie."

In my view the second accused has not demonstrated an entitlement to an order barring the prosecution.

The alternative claim

The respondent has given an undertaking that Rossouw will not conduct the prosecution against the accused. Another member of the staff of the Director of Public Prosecutions has been appointed to undertake the prosecution. The relief sought in paragraphs 2.1(a) and (b) of the Notice of Motion accordingly does not arise for consideration.

The further claim for an order that knowledge of what had transpired at the interview on 30 July 1999 be retained as secret and confidential, and tape recordings (and transcripts of tape recordings) be destroyed or kept secret until the trial is brought to finality, cannot be granted. The statement taken at the interview, and the tape recording thereof, constitute evidential material of which the admissibility, if the prosecution desires to make use of it at the trial of the accused, is to be determined by the trial judge.

The third accused

Costs
The parties are agreed that there should be no order as to costs. In the result, the application is dismissed.