Brass and Others v National Director of Public Prosecutions and Another (73283/2017) [2018] ZAGPPHC 660 (30 August 2018)

Brass and Others v National Director of Public Prosecutions and Another (73283/2017) [2018] ZAGPPHC 660 (30 August 2018)

The court found that the previous decision by Magardie AJ was made on procedural grounds and not on the merits, thus res judicata does not apply. The constitutional challenges in the Prince and Stobbs and Clark cases, although focused on possession and use of cannabis, are sufficiently relevant to the applicants' prosecution for large-scale cultivation and money laundering. The respondents failed to demonstrate that the Constitutional Court would uphold the impugned statutory provisions. The applicants would not suffer prejudice if the stay is granted, and justice requires that their prosecution be stayed pending the outcome of the constitutional challenges.

Citation
[2018] ZAGPPHC 660
Parties
Applicant: Jared Brass; Applicant: Jacobus Naude Swanepoel; Applicant: Justin Devan Brass; Applicant: Patrick Fitzgerald Brass; Applicant: Vanessa Eileen Brass; Applicant: Lara Filipa Texeira; Applicant: Tiago Alexandre Texeira; Applicant: David John Jesse Roque; Applicant: Wade David Brass; Applicant: Donovan Angel; Respondent: National Director of Public Prosecutions; Respondent: Director of Public Prosecutions, Gauteng Local Division Johannesburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 August 2018
Case Number
73283/2017
Procedural Posture
Stay Application / Application for Stay of Criminal Prosecution Pending Constitutional Challenge
Outcome
Application granted; criminal prosecution stayed in terms of prayer A of the Notice of Motion.
Judges
Raulinga
Legal Topics
Stay of Prosecution, Money Laundering, Possession of Cannabis, Constitutional Challenge, Res Judicata
Criminal Law Constitutional Law Stay of Prosecution Money Laundering Possession of Cannabis Constitutional Challenge Res Judicata

Case Brief

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Parties

Jared Brass

Applicant

Jacobus Naude Swanepoel

Applicant

Justin Devan Brass

Applicant

Patrick Fitzgerald Brass

Applicant

Vanessa Eileen Brass

Applicant

Lara Filipa Texeira

Applicant

Tiago Alexandre Texeira

Applicant

David John Jesse Roque

Applicant

Wade David Brass

Applicant

Donovan Angel

Applicant

National Director of Public Prosecutions

Respondent

Director of Public Prosecutions, Gauteng Local Division Johannesburg

Respondent

Procedural Posture

Stay Application / Application for Stay of Criminal Prosecution Pending Constitutional Challenge

Legal Issues

  1. 1 Whether the criminal prosecution against the applicants should be stayed pending the outcome of constitutional challenges to the relevant statutory provisions.
  2. 2 Whether the matter is res judicata due to a previous decision by Magardie AJ.
  3. 3 Whether the constitutional challenges in other cases are relevant to the applicants' charges involving large-scale cannabis cultivation and money laundering.

Ratio Decidendi

The court found that the previous decision by Magardie AJ was made on procedural grounds and not on the merits, thus res judicata does not apply. The constitutional challenges in the Prince and Stobbs and Clark cases, although focused on possession and use of cannabis, are sufficiently relevant to the applicants' prosecution for large-scale cultivation and money laundering. The respondents failed to demonstrate that the Constitutional Court would uphold the impugned statutory provisions. The applicants would not suffer prejudice if the stay is granted, and justice requires that their prosecution be stayed pending the outcome of the constitutional challenges.

Court Disposition

Application granted; criminal prosecution stayed in terms of prayer A of the Notice of Motion.

Orders

  • The application is granted in terms of prayer A of the Notice of Motion.