In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 	Applicant 
and

JUDGMENT

MSIMANG, J:
[1] This is an application launched by the National Director of Public Prosecutions (applicant) seeking an order reviewing and setting aside a decision made by a Regional Magistrate on or about 13 February 2007, declining to state a case in response to the applicant's notice in terms of Section 310(1) of the Criminal Procedure Act 51 of 1977 read with Rule 67(12) of the Magistrates' costs rule.

[5]     The second respondent does not oppose the application.

[6] The third respondent, however, filed a notice to oppose the application and has strenuously opposed the same and, for that purpose, has filed a lengthy answering affidavit comprehensively dealing with the issues raised by the applicant in his founding affidavit. In response, the latter has delivered a replying affidavit.

[7] The provisions of Section 310(1) of the Criminal Procedure Act read as follows:-
"When a lower court has in criminal proceedings given a decision in favour of the accused on any question of law, including an order made under section 85(2), the attorney-general or, if a body or a person other than the attorney-general or his representative, was the prosecutor in the proceedings, then such other prosecutor may require the judicial officer concerned to state a case for the consideration of the provincial or local division having jurisdiction, setting forth the question of law and his decision thereon and, if evidence has been heard, his findings of fact, in so far as they are material to the question of law."

[9] It was on the basis of the alleged absence of this jurisdictional fact that the first respondent declined to state a case, his contention being that his decision which he had given in favour of the second and third respondents in the criminal trial had been on the facts and that the submission that the decision had been based on a point of law was contrived. It was also on this basis that the third respondent resisted the application.

[10] The crisp issue before this Court is therefore whether the decision made by the first respondent in favour of the second and third respondents in the criminal trial had been based on the facts as contended for by the first and third respondents or that, as submitted by the applicant, that it had been based on a point of law.

“....one must firstly have regard to the charges as such, and then the evidence relevant thereto, and lastly the finding of the magistrate."   

[13] Though the second and the third respondents had faced several charges at the said trial, only two of those are pertinent to the present application, namely, those pertaining to the contravention of the provisions of Section 1(1)(b)(i) read with the provisions of Section 3 of the Corruption Act 94 of 1992.

[14] In Count 1 the State alleged that on or about 18 April 2002 and at Cape Town, the accused, one and the other as co-perpetrators and/or in furtherance of a common purpose, unlawfully and corruptly received or obtained or agreed to receive or attempted to obtain a benefit, namely R300000 and/or benefits in the form of being entertained and/or wined and dined, from one Count Riccardo Agusta ("Agusta"), with the intention that they should remove obstacles in the path of the approval of the Roodefontein development and/or ensure the issuance of a positive record of decision (RoD) and/or ensure the expeditious authorisation of the Roodefontein development.

[15] In Count 2 the State alleged that on or about 19 April 2002 and at Franschoek and/or Cape Town, the accused unlawfully and corruptly received or obtained or agreed to receive or attempted to obtain a benefit, namely R100 000 for removing obstacles in the path of the approval of the Roodefontein development and/or for ensuring a positive RoD and/or for ensuring the expeditious authorisation of the Roodefontein development and/or for deciding an appeal against the RoD issued, in favour of the developer.

[16] The stage has now been set for the consideration of the evidence relevant to the said charges which was adduced during the trial of the matter.

[17] The National Party, once a formidable force in South African whites' politics, had its political influence progressively waning, commencing from the general elections held during 1994. During 2002, having changed its name to "New National Party" (NNP), the party found itself controlling only the province of the Western Cape. Both the second and the third respondents were members of the party, the second respondent holding the position of Minister of Environmental Affairs and Development Planning in the provincial government and the third respondent the position of Premier of the provincial government.

[22]   It is important at this stage to refer to the relevant portions of the charge sheet relating to the surrounding circumstances and to the events that unfolded during this meeting. In the charge sheet it had been alleged that -

23.1. requested a meeting with the developers on 17 April 2003 (sic);
231	wanted D M Malatsi and officials of DEADP to issue a positive ROD;
232	gave an undertaking to the developers on 17 April 2002 that their development will be approved; and
233	approved tacitly and/or expressly all the steps that D M Malatsi took leading up to getting a positive ROD issued.

[28] On 24 October 2002, the second respondent heard the developer's appeal and varied certain conditions.  In effect he upheld the appeal.

[29] Apart from the aforegoing narration, the following further evidence had been placed before the Regional Court by the State.

"The NDPP does not seek the deportation of Count Agusta, nor requires his further involvement in any way in any continuing or further prosecution or investigation concerning or arising from his relations with Marais and Malatsi at all times and in any respect, including the loans set out in paragraph 12 above."

[34] The above constitutes a brief synopsis of the evidence upon which the State relied to prove the conviction of the second and third respondents on the two counts of corruption. Both had pleaded not guilty to both counts and the second respondent testified in his defence while the third respondent closed his case without adducing any evidence.

[35] In evaluating this evidence the first respondent took into account that one of the elements of each crime was that the second and third respondents must have received financial consideration with a view to the issuing of a RoD and/or to ensure the expeditious authorisation of the Roodefontein development.

[38]   He also referred to the plea and sentence agreement concluded by

inference therefrom that it was:-
“....highly unlikely that the National Director of Public Prosecutions will authorise a plea and sentence agreement where one of the terms of the agreement is that the accused person will not be used as a witness in subsequent criminal proceedings knowing hat the accused possessed valuable information which may assist the prosecutor to secure a conviction against other perpetrators."

[41] He then moved on to what he termed "the substratum of the State's case against" the second and third respondents, namely, what transpired at and the circumstances revolving around the meeting held on 17 April 2002.

[43]   He then took notice of the fact that none of the witnesses who had

remarks allegedly made by the third respondent.   It is perhaps apposite to
quote in full the first respondent's evaluation of this part of the evidence which
runs as follows:-
"Averinos testified that the meeting was businesslike and accused 2 as Premier at the time wanted to know from the Department what was going on. After he gave each party present an opportunity to state their case he then made a comment that 'you have got the information please go and evaluate it and make a decision'. According to her evidence accused 2 did not say that it must be a positive decision. Browning testified that accused 2 asked accused 1 to use his discretion in producing a decision and at no time did accused 2 mention that it must be a positive decision. He also stated that the attorney's firms Stadler Swart of George had formally initiated a process of seeking an audience with the office of accused 1. (Indistinct) testified that accused 2 had merely stated that the Department or to the Department that they should go and make a decision without specifying what type of decision should be made.
Mr. Tolmay, the head of the Department, testified that accused 2 never said he wanted a positive decision only that a decision should be made. Tolmay also expressed the view that having regard to the circumstances of this matter and the complaints by the developer the response of accused 2 had been appropriate at the meeting."

[47]   Having analysed and evaluated all this evidence, the first respondent

arrived at the following conclusion:-

"The bulk of the evidence before me seem to suggest that Marais did nothing out of the ordinary to influence a positive decision regarding the development. The fact that Mr. Marais ordered the banking details of the New National Party to beforwarded to Augusta immediately after this meeting however suspicious and untimely does not lead to the inescapable or only reasonable conclusion that his comments during this meeting amounts to an act or to acting in a corrupt manner. There is insufficient evidence to prove beyond a reasonable doubt that accused 1 had any knowledge that Augusta paid an amount of R300 000 into the New National Party on April 2002. The evidence of Mr. van Schalkwyk does not take this matter any further."

[48]   Regarding the second count of corruption, insofar as the third

respondent was concerned, the first respondent remarked as follows:-

"Having regard to the totality of the evidence I am satisfied that the State proved beyond a reasonable doubt that accused 1 is guilty on count 2. In respect of count 2 the prosecutor conceded that given the probabilities in this matter, there is insufficient evidence to prove beyond a reasonable doubt that accused 2 was aware of the cheque in the amount of R100 000 that was given to accused 1 and Mr. Morrison, the prosecutor in this case, did not seek a conviction for Mr Marais on this count."

[49] Before dealing with the grounds upon which the applicant relies for submitting that there were decisions in this matter which the first respondent made in favour of the second and third respondents based on the points of law, it is, perhaps, apposite to first give a brief survey of the legislative history of the provisions of Section 310(1) of Act 51 of 1977.

[50] Prior to the promulgation of the Criminal Procedure Amendment Act 31 of 1917 (the 1917 Act) the position in South African Law was that a prosecutor could not appeal a decision of a competent Court acquitting an accused person. Such a bar operated whether the basis for such an appeal was a question of fact or a question of law.    The bar was based on what was:-
"	 conceived to be a general principle of South African
Criminal Law that a person who, after trial by a Court having competent jurisdiction, is acquitted of a charge, is entitled to the full benefit of such acquittal, so that he cannot again be tried on the same charge."  

and on the spirit of the English Law that once a person has been acquitted of a criminal offence :-
"	he should never be put in jeopardy again	"   

[51] The position was altered by the introduction of Section 372 of the 1917 Act which provided that a question of law could be reserved for the consideration of a Court of Appeal by the Court on its motion or at the request of either the prosecutor or of the accused but added the following sub-section (2) >
"Whenever the Superior Court reserves any such question and the accused is convicted, the Court shall state the question or questions reserved and shall direct such case to be specially entered in the record and a copy thereof to be transmitted to the Registrar of the Court of Appeal."

"It is clear from this sub-section that a question of law can reach the Court of Appeal only if the accused is convicted of the charge laid against him and, that being the position, it follows that a question of law can be stated only if an answer in favour of the accused might result in some benefit to him."   

[53] It was probably because of these remarks that the Criminal Procedure Amendment Act 37 of 1948, by means of Section 12 thereof, introduced anamendment to Section 374 of the 1917 Act by couching the provisions of subsection (3) of that section in the following forms :-
"Where a question of law has been reserved on the application of a prosecutor in the case of an acquittal, and the Court of Appeal has given a decision in favour of the prosecutor, the Court of Appeal may order that such of the steps referred to in section three hundred and seventy five be taken as the Court may direct."

[55] When the Criminal Procedure Act 56 of 1955 (the 1955 Act) was enacted, the provisions of sub-section (3) of Section 374 of the 1917 Act were retained verbatim in sub-section (3) of Section 369 of the 1955 Act. The position which then applied before the promulgation of the present Criminal Procedure Act 51 of 1977 (the 1977 Act) was that a question of law could be reserved at the instance of the State for the consideration by the Appeal Court in cases where accused were acquitted, the effect of the legal position being that, in that event, the State could take a matter on appeal only on that question of law.

[56] Section 310(1) of the 1977 Act therefore constitutes a codification of the legal position as existing at the time of its promulgation which, pursuant to that section, was made to apply to the lower courts, with specific reference to any decision given in favour of an accused person on any question of law.

[58]   In that case the Court had to interpret the provisions of Section 285 of

the 1917 Act the provisions of which ran as follows :-

"Any court or jury which is trying any person on a charge of any offence may convict him of any offence alleged against him in the indictment, summons or charge, under trial, on the single evidence of any accomplice: Provided that the offence has by competent evidence, other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of such court or jury (as the case may be) to have been actually committed."

[59]   One of the questions of law which had been reserved in terms of the
provisions of Section 370 of that Act in that case had been couched in the
following terms :-
"That the proceedings in respect of counts 1 and 3 were irregular and not according to law, inasmuch as the jury were directed that there was evidence on which they might convict accused, whereas the only evidence for the prosecution that was inconsistent with the innocence of the accused was the evidence of accomplices, and there was no competent evidence other than the single and unconfirmed evidence of accomplices that the offences were actually committed."

[60]   After distinguishing between the procedure contemplated in the
provisions of Section 370    from the one contemplated under Section 372

the question whether there was corroborative evidence for the evidence of a
single witness, is a question of law.    The Court there grappled with the
provisions of the Section which made it mandatory for such evidence to be
corroborated.   That requirement has since been omitted from the provisions
of Section 208 of the present Criminal Procedure Act which provides that-
"An accused may be convicted of any offence on the single evidence of any competent witness."

"There is no rule of thumb test or formula to apply when it comes
to a consideration of the credibility of the single witness	" 

was when the first respondent drew an inference from the provisions of the

according to him,
"It was an analysis of the nature and consequences of a plea and sentence agreement and its affect (sic) on subsequent cases."

"I am unable to accept counsel's widely-based and generalised proposition that in all cases the question whether a particularinference is the only reasonably possible inference to be drawn from a given set of facts is a question of law. To accede to the proposition in such general terms would, I consider, open the door to the possibility of large numbers of appeals being brought under sec. 104 of Act 32 of 1944, contrary to the limited scope of that section which I conceive the Legislature contemplated. One example of those possibilities that were canvassed during the argument will suffice. Suppose that an accused is charged with an offence of which a specific intent is an element, e.g. assault with intent to do grievous bodily harm. On the evidence, the magistrate finds that such intent is not the only reasonable inference to be drawn from the facts, and consequently he convicts the accused of common assault. I cannot for one moment imagine that the Attorney-General will have a right of appeal upon the footing that an intent to do grievous bodily harm was the only reasonable inference to be drawn from the facts."

with the following paragraph :-

"It is accordingly submitted that the omission to apply the doctrine of common purpose is a question of law."

[72] Applicant's submissions based on this ground are accordingly anchored on his hypothesis that, during his evaluation of the evidence, the first respondent omitted to apply the doctrine of common purpose which, admittedly, was pleaded in the charge sheet.

[73] The hypothesis is, however, not borne out by the contents of the judgment of the first respondent the perusal of which shows, not only that he had been mindful of the fact that the second and third respondents had been charged "as co-perpetrators and in furtherance of a common purpose", but also that, later in the judgment, he made remarks which indicated that he had concluded that there had been insufficient evidence to justify a finding that those respondents had acted as co-perpetrators and in the furtherance of that purpose.

himself as follows:-

"Common purpose arises most frequently in the cases of murder involving groups of two or more perpetrators, but the doctrine is
also applicable in cases of culpable homicide 	 where it
appears that a participant (A) knew this or foresaw it as a
possibility and yet persisted in his participation reckless of the
consequences, then if an unlawful killing did ensue such a
participant will be guilty of murder irrespective of the fact that
another participant actually perpetrated the murder and
irrespective of the fact that there was no causal connection
between his (As) own conduct and the death of the
deceased	"

[75]   Lower down on the same page he continued to hold as follows :-

"A common purpose may arise by prior agreement between the participants or it may arise upon an impulse without prior consultation or agreement 	 It is seldom that there is direct evidence of such an agreement. Usually the Court is asked by the prosecution to infer it from the proven facts. But the fact that in a particular case the prosecution relies upon inference to prove the agreement to accomplish a common aim does not make the question as to whether the prosecution succeeded in establishing this inference beyond a reasonable doubt one of law." 

[76]   Acquitting the second respondent on the first count of corruption the
first respondent found as follows in his judgment-
There is insufficient evidence to prove beyond a reasonable doubt that accused 1 had any knowledge that Agusta paid an amount of R300 000 into the New National Party in April 2002. The evidence of Mr. van Schalkwyk does not take this matter any further."

[78] Regarding the second count of corruption, it seems to have been common cause between all the parties (it was certainly conceded by the prosecution) that, given the probabilities in the matter, there was insufficient evidence to sustain proof beyond a reasonable doubt that the third respondent had been aware of the cheque in the amount of R100 000 that had been given to the second respondent. Accordingly the prosecution did not press for a conviction against the said respondent on this count.

[79] Clearly therefore in the findings referred to in paragraphs 76 and 78, the first respondent dealt with the doctrine declaring that there had been insufficient evidence of prior agreement between the second and third respondents regarding the acceptance by the third respondent of the amount

of R300 000 and regarding the acceptance by the second respondent of the amount of R100 000.

[81] It would appear that, during the police investigations into the matter, the second respondent, accompanied by his erstwhile legal representative, had approached the investigating team and made an offer for this respondent to give evidence for the prosecution against the third respondent. It was, as a result of these negotiations that the second respondent's erstwhile representative had furnished the investigating team with a sworn statement which was entered in evidence and marked "CC2".

[82] During the proceedings in the Regional Court the prosecution wished to have the statement admitted in evidence, the admissibility of which was apparently strenuously resisted by the second respondent's legal representatives. The first respondent accordingly ruled that a trial-within-a-trial be held so that the admissibility of the statement could be established.

[83] The statement is headed "Strictly Confidential" and contains what appears to be incriminating statements. For instance, in sub-paragraph 17.4 the second respondent states:-
"I was aware that he had given Mr. Marais a R300 000 donation to the party and I assumed that he might want to give a further donation."

and in sub-paragraph 17.11 he deposes as follows :-

"There were however subtle pressures put on me by various persons to make decision (sic)."

[84]   In his judgment in the trial-within-a-trial the first respondent ruled that

the said statement was inadmissible in evidence, finding that :-

"Op die getuienis voor my bevind ek dat die woorde 'strictly confidential', soos vervat op bewysstuk cc2, bedoel dat die inhoud van die verklaring slegs vir die oe van die party aan wie dit gerig was, bedoel is en sal beskuldigde nommer 1 se Grondwetlike reg tot privaatheid geskend word indien dit openbaar word. Die diskressie wat ek het om dit toe te laat ten spyte dat dit die beskuldigde se Grondwetlike reg skend, moet oorweeg word met faktore, soos byvoorheeld, sal die uitsluiting van die getuienis nadelig wees vir regspleging? Op die getuienis voor my en die argumente wat voorgehou was deur meneer Raymond en advokaat Morrison, bevind ek dat die uitsluiting van die getuienis nie die regspleging sal benadeel nie. Ek bevind dat die inhoud van die verklaring soos vervat in bewysstuk CC2 sal indruis tot beskuldigde 1 se reg tot 'n billike verhoor en bevind ek dat die inhoud van die verklaring ontoelaatbaar is."

[87] Should this Court, as a result of the said error, grant the present application and set aside the decision of the first respondent declining to state a case in this matter. The answer to this question would depend upon what this Court considers would be the result should the questions of law involved be decided in applicant's favour on appeal.

Basson.

"Of die Verhoorhof se feitebevindings reg of verkeerd is, is gevolglik totaal irrelevant ten einde te bepaal of hy regtens fouteer het. Dit volg dat 'n regsvraag slegs onstaan wanneer die feite waarop die Verhoorhof sy uitspraak baseer 'n ander regsgevolg kan he as die regsgevolg wat die Verhoorhof bevind het."

and on the next page that :-

"Dit volg dat wanneer die Staat wens te appelleer teen 'n onskuldigbevinding op grond daarvan dat 'n regsfout begaan is, 'n regsvraag slegs voorbehou sal word indien daar 'n redelike vooruitsig bestaan dat die beskuldigde skuldig bevind sou gewees het indien die regsfout nie begaan is nie. Indien daar nie so 'n redelike vooruitsig bestaan nie is daar geen rede om 'n nuwe verhoor te gelas nie. Die regsfout is dan in werklikheid irrelevant wat betref die onskuldigbevinding."

[89] Returning to the sworn statement the evidence of which was declared inadmissible by the first respondent in this matter, it is true that it contained certain admissions. However, the contents of the same cannot constitute evidence against the third respondent. Regarding the second respondent, I have carefully perused and considered the contents in the context of the totality of the evidence and have concluded that, even if the relevant question of law could be decided in applicant's favour on appeal, no prospects exist that a conviction of the second respondent on count 1 would ensue. The issue would therefore only be of academic value.

[90] The applicant has consequently not made out a case for the relief which he seeks and no valid reason exists why the costs in this matter should not follow the results.

The order I accordingly propose is the one dismissing the application with costs.

I agree

PRELLER, J

It is so ordered

MSIMANG, J