Bonugli and Another v Deputy National Director of Public Prosecutions and Others (17709/2006) [2008] ZAGPHC 28 (1 February 2008)

Bonugli and Another v Deputy National Director of Public Prosecutions and Others (17709/2006) [2008] ZAGPHC 28 (1 February 2008)

The court held that while section 38(3) of the NPA Act permits the appointment of ad hoc prosecutors funded by parties other than the state, the specific circumstances of this case created a reasonable apprehension of bias. The advocates were previously involved with the complainant, Union Finance, and their appointment as prosecutors was funded entirely by the complainant, who also urged the prosecution after charges had been withdrawn. There was ongoing civil litigation between the complainant and a trust linked to the applicants, with overlapping subject matter. These facts, viewed objectively, would lead a reasonable, informed person to apprehend that the advocates might not act...

Citation
[2008] ZAGPHC 28
Parties
Applicant: Beulah Evelyn Bonugli; Applicant: Cynthia Phyllis Greaves; Respondent: Deputy National Director of Public Prosecutions; Respondent: Michael R Hellens N.O.; Respondent: Dirk J Vetten N.O.; Respondent: Director of Public Prosecution (Witwatersrand Local Division); Respondent: Union Finance Holdings (Pty) Limited
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
1 February 2008
Case Number
17709/2006
Procedural Posture
Review Application / Judgment on Review of Prosecutorial Appointment
Outcome
Application granted; the appointment of the second and third respondents as prosecutors is reviewed and set aside.
Judges
B R Du Plessis
Legal Topics
Prosecutorial Independence, Fair Trial Rights, Appointment of Ad Hoc Prosecutors, Conflict of Interest, Section 179 Constitution, National Prosecuting Authority Act
Criminal Law Constitutional Law Administrative Law Prosecutorial Independence Fair Trial Rights Appointment of Ad Hoc Prosecutors Conflict of Interest Section 179 Constitution +1 more

Case Brief

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Parties

Beulah Evelyn Bonugli

Applicant

Cynthia Phyllis Greaves

Applicant

Deputy National Director of Public Prosecutions

Respondent

Michael R Hellens N.O.

Respondent

Dirk J Vetten N.O.

Respondent

Director of Public Prosecution (Witwatersrand Local Division)

Respondent

Union Finance Holdings (Pty) Limited

Respondent

Procedural Posture

Review Application / Judgment on Review of Prosecutorial Appointment

Legal Issues

  1. 1 Whether the appointment of private advocates as prosecutors, funded by the complainant, violates the constitutional requirement of prosecutorial independence.
  2. 2 Whether such appointment creates a reasonable apprehension of bias, undermining the right to a fair trial under section 35(3) of the Constitution.
  3. 3 Whether the decision to appoint the advocates was irrational or disregarded relevant considerations.

Ratio Decidendi

The court held that while section 38(3) of the NPA Act permits the appointment of ad hoc prosecutors funded by parties other than the state, the specific circumstances of this case created a reasonable apprehension of bias. The advocates were previously involved with the complainant, Union Finance, and their appointment as prosecutors was funded entirely by the complainant, who also urged the prosecution after charges had been withdrawn. There was ongoing civil litigation between the complainant and a trust linked to the applicants, with overlapping subject matter. These facts, viewed objectively, would lead a reasonable, informed person to apprehend that the advocates might not act...

Court Disposition

Application granted; the appointment of the second and third respondents as prosecutors is reviewed and set aside.

Orders

  • The decision by the first respondent to appoint the second and third respondents as prosecutors under case number 111/01/06 is reviewed and set aside.
  • The first and fourth respondents are ordered to pay the costs of the application, including the costs of two counsel.