Director of Public Prosecutions v King (CC257/2005) [2008] ZAGPHC 118 (24 April 2008)

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IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: CC 257/2005

NOT REPORTABLE DATE: 24/4/2008

In the matter between:

THE

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

VS

DAVID

CUNNINGHAM KING

RESPONDENT

JUDGMENT

BOSIELO J

INTRODUCTION

1 The respondent was arrested on 13 June 2002. The state has preferred a myriad of charges against him, totalling about 322 in number. The charges include fraud, money laundering, racketeering, contravention of the Income Tax Act and Exchange Control Act. The docket comprises some 200 000 pages whilst the indictment amounts to 800 odd pages. The state estimates that it may call approximately 100 witnesses. That the impending trial is going to be a marathon, complex involved and acrimonious legal battle admits of no doubt.

2.

FACTUAL BACKGROUND

2.1 After having been arrested during 2002, the first indictment was served on the respondent during April 2005. The trial was set down for 25 July 2005, on which date the respondent served the state with a request for copies of the docket. The matter was then postponed by agreement to 31 July 2006 for trial. The application for the docket was enrolled before Van der Merwe J for 14 June 2006. After some fierce opposition from the state to furnish with the docket, the state finally relented and made certain parts of the docket available to the respondent i.e. Part A of the docket. It is common cause that the state refuses to furnish the respondent with section B and C of the docket based on privilege. The application for section B and C of the docket was set down for hearing for 29 October 2007. This application could not be heard as arranged because the state filed a supplementary affidavit by the Acting National Director of Public Prosecution (Mr Mpshe) only on 23 October 2007. Regrettably this application is still pending and no date has been set for its hearing. The problems in this case were further exacerbated by the application by the respondent for funds to be made available for his defence. This application which was also strenuously opposed by the state, took rather too long to finalised. Suffice to state that the matter was resolved on 4 September 2006 when I made an order that proper and suitable arrangements be made between the state and respondent to ensure that respondent is put in funds sufficient enough to enable him to obtain or engage legal representatives of his choice for purposes of this trial. An agreement regarding the respondent’s legal fund was concluded on 5 February 2007 to be effective on 1 May 2007.

2.2 Having disposed of the problem concerning legal funds for the respondent, I indicated to the parties that the Judge- President intended to enrol this matter for trial during the third term of 2007. However, this suggestion did not find favour with the respondent. On 10 May 2007 I postponed the matter to 18 April 2008 as a provisional date. On 2 July 2007, the Judge- President wrote a letter advising the parties in clear terms that the date of 18 April 2008 is merely provisional and that the main trial was scheduled to commence on 28 July 2008. I find it necessary and expedient to quote the whole letter which is as follows:

“ 2 July 2007

Bowman Gilfillan Attorneys

P O Box 785812

Sandton

2146

Greetings,

THE STATE v D C KING- CASE No: CC257/05 1. I have received many letters from both sides about this matter. Perhaps it is now necessary to clarify all the issues.

2. The matter will be called on 18 April 2008; however it is a provisional date. As far as the office is concerned, the trial commences on the 28 July 2008.

3. Hon Justice Bosielo will hear interlocutory applications in this matter. He is presently appointed Acting Judge President of the Northern Cape for possibly the rest of the year. However, there is a clear understanding that, despite that, in the event of any interlocutory application in the matter, he will come to Pretoria to hear same.

4. If a provisional view has to be expressed, he is likely to be asked to preside over the trial. However, at this stage, this is not and cannot be, a certainty. Bosielo J may by then be in the middle of another long trial; or be on leave or even be acting in the Supreme Court of Appeal; indeed, it is possible that he may no longer be at this court. These uncertainties would equally apply in respect of any other judge I might think of right now; perhaps that is precisely why Van der Merwe J, fell out of the matter, at least now. It is not fair to expect me to commit myself in respect of a trial which is to commence more than a year from now.

5. I will be preparing the duty roster for the 3rd term next year, only towards the end of May or beginning of June 2008. At this stage, I will know the position and availability of each judge (including of course Bosielo). I will know exactly which judge will do the matter, because the duty roster would have to indicate. I will take the State’s attitude into account; however, that will not necessarily deter me from deciding on Bosielo J.

6. Should the duty roster show that Bosielo J is to hear the matter and should the State want to proceed with this application to prevent him from presiding, the State will then (May – June 2008) let me know. Such an application would then be enrolled in June or even during the winter recess. Bosielo J in conjunction with myself, will determine the date. At least at that stage, you will be “challenging” ( for want of a better word” a decision I would have taken, viz, that Bosielo J presides. Papers have, already been fully exchanged with regard to that possible application, as far as I know; it would therefore just be a matter of enrolling the application.

7. To sum up:

7.1 Bosielo J will continue to hear interlocutory applications;

7.2 for the reason given in paragraphs 4 and 5 above, I cannot at this stage commit myself as to who will, preside over the trial;

7.3 come the end May beginning of June 2008, I will decide on this issue;

7.4 if it is Bosielo J, the matter will be dealt with in accordance with paragraph 6 above, should the State so wish;

7.5 on the 18 April the matter will be postponed to 28 July 2008;

7.6 if the defence wants a postponement then, it will have to convince the judge presiding.

8 An identical letter has been written to your opponents.

With kind regards

B

M NGOEPE

JUDGE PRESIDENT, HIGH COURT OF SOUTH AFRICA TRANSVAAL PROVINCIAL DIVISION”

2.3 To my mind the letter from the Judge President is so clear and self explanatory that it requires no further explanation or elaboration. I therefore accept that all the parties hereto know that 28 July 2008 is the trial date and that any party that seeks a postponement will have to apply for it, on good grounds, to the trial judge. In any event this is trite law see S v Acheson 1991 (2) SA 805 (NM).

2.4 During or about February 2008 and in response to an enquiry regarding the suitability of 28 July 2008 as a trial date by attorneys for the applicant, the respondent replied that “……………. Having regard to the fact that, inter alia, that the docket application is taking longer than anticipated to be heard and which delay has been exacerbated by the late service of the supplementary affidavit of Mr Mpshe last October, there will be inevitably an application for a postponement of the criminal trial”. It is this response which triggered this application by the applicant in an attempt to pre-empt such an application.

3.

THE NATURE OF THE APPLICATION

3.1 The applicant avers that they have reasonable fear that the respondent will once again delay the commencement of this trial 28 July 2008 by applying for postponement. According to the applicant, any further postponement of this trial holds grave and far-reaching consequences for the state. It is the applicant’s case that the longer it takes for this trial to commence, the more likely it is that the course of justice may derailed if not frustrated. Inter alia, the applicant avers that some of its crucial witnesses are of an advanced age whilst others are afflicted by bad health. In fact, the applicant stated, which fact is not controverted, that one Mr Pithey, who was one of the key and material witnesses for the state has passed away already whilst the case is still pending. Furthermore the applicant avers that two of its essential if not material witnesses, Messrs Charles Louis Chipps who is 76 years old and Berry Adams who is 72 years old might not survive to see this trial through if it does not commence on the 28 July 2008. Furthermore, the applicant asserts that with the passage of time, the witnesses memories and recollection of events might become adversely affected, with the result that by the time the trial starts, they may be of little help, if any to the state.

3.2 It is patently clear that the main purpose of the application is to pre-empt the respondent’s intended application for a postponement of the trial on 28 July 2008 and to put him on such strict terms to ensure that he does everything which he requires to do in preparation for the impending trial so that the trial can commence on the 28 July 2008 as scheduled.

4.

LEGAL SUBMISSIONS

4.1 Mr Pretorius SC appearing with Mr Coetzee argued vigorously on behalf of the applicant that the history of this case is such that I should invoke S342 A of the Criminal Procedure Act 51/1977 (CPA) to analyse the history of this matter including, the inordinate delays which occurred in the past for which he blames the respondent and to make an order that this trial should proceed as arranged on the 28 July 2008. In addition thereto, he urged me to take a decisive and robust approach to put the respondent to specific time frames during which he must file his request for further particulars and a date on which the applicant has to furnish such further particulars. Mr Pretorius contended further that given the advanced ages of both Messrs Chipps and Adams and their precarious health conditions, that I should order that their evidence be heard on the 28 July 2008 to avoid the possibility of death intervening as this will hold disastrous consequences for the state. Mr Pretorius was very scathing in his, criticism of the conduct of the respondent, which according to him, was dilatory and obstructive and in fact led inexorably to this trial not having commenced notwithstanding the fact that the state had been ready as far back as July 2005.

4.2 On the other hand, Mr Roux appearing for the respondent was implacably opposed to the application by the applicant. Instead of impugning the merits of the applicant’s application, he preferred to attack its procedural propriety. He submitted with force that, given the facts of this case, the applicant’s application was not only premature but seriously ill-conceived. He contended that it was inappropriate for me to decide this application as it request me to assume the position of an clairvoyant or a person who has prophetic foresight to know and foresee what will happen on the 28 July 2008. The gravamen of his contention is that it is only the trial court which will be better suited to deal with any application for a postponement which can only be brought on 28 July 2008. He contended that it is the trial court which will have to decide such an application on the facts put before it on that day. Relying on the letter from the Judge-President dated 2 July 2007, he contended that it is abundantly clear from that letter that the case is set down for trial on 28 July 2008 and further that any party that wishes to have the case postponed will have to make out a case and convince the presiding judge. Based on this letter, Mr Roux argued that this application is improper and unnecessary.

4.4 Finally, Mr Roux argued that it would be wrong and improper for this court to make orders that might interfere with the discretion of the trial judge. Mr Roux then suggested what this court could possibly do in terms of S342(A) was to investigate any pre-trial delays which have a bearing on this case and to take appropriate steps to ensure that the trial is put on track and should commence on 28 July 2008. In this regard, he argued that the application for Section B and C of the docket which is still outstanding or pending is the event which seriously threatens to derail this trial as the respondent is not in a position to prepare properly for trial until he has received the full docket. Accordingly, he urged me to investigate the cause for the delay in finalising the docket application and in an attempt to take effective control and management of this case, to allocate an earlier date for the hearing and resolution of this pending application. I find it necessary to state that neither Mr Pretorius nor Mr Roux are involved in the docket applications. Having given them the opportunity to contact Messrs Trengove SC and Mr Marcus SC who are involved in the docket application, I was assured that the two counsel undertook to communicate with the Acting Judge President to secure an early date for hearing of the docket application. Much as I find some merit in the Mr Roux’s submission, I don not think that it would be proper for me to do that as such a request does not fall within the ambit of this application.

5.

CONCLUSION

5.1 Section 342 (A)(1) of the CPA provides as follows:

(1)A court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused, or his or her legal adviser. the State or a witness.

(2) In considering the question whether any delay is unreasonable, the court shall consider the following factors:

(a) The duration of the delay;

(b) the reasons advanced for the delay

(c) whether any person can be delay;

(d) the effect of the delay on the personal circumstances of the accused and witnesses;

(e) the seriousness, extent or complexity of the charges;

(f) actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the lost of evidence, problems regarding of evidence and consideration of cost;

(g) the effect of the delay on the administrative of justice;

(h) the adverse effect on the interest of the public or the victims in the event of the prosecution being stopped or discontinued;

(i) any other factor which in the opinion of the court ought to be taken into account.

(3) If the court finds that the completion of the proceedings is being delayed unreasonably, the court may issue any such order as it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order-

(a) refusing further postponement of the proceedings;

(b) granting a postponement subject to any such conditions as the court may determine;

(c) where the accused has not yet pleaded to the charge, that the case be struck off the roll and the prosecution not be resumed or instituted de novo without instruction of the attorney-general;

(d) where the accused has pleaded to the charge and the State or the defence, as the case may be, is unable to proceed with the case or refuses to do so, that the proceedings be continued and disposed of as if the case for the prosecution or the defence, as the case may be, has been closed;

*(e) that-

(i) the State shall pay the accused concerned the wasted costs incurred by the accused as a result of an unreasonable delay caused by the officer employed by the State;

(ii) the accused and his or her legal adviser, as the case may be, shall pay the State the wasted costs incurred by the State as a result of an unreasonable delay by the accused or his legal adviser, as the case may be; or

(f) that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action of any person responsible for the delay.

(4) (a) An order contemplated in subsection 3 (a), where the accused has pleaded to the charge, and an order contemplated in subsection 3(b), shall not be issued unless exceptional circumstances exist and all other attempts to speed up the process have failed and the defence or the State, as the case may be, has given notice beforehand that it intends to apply for such an order.

(b) The attorney-general and the accused may appeal against an order contemplated in subsection 3 (b) and the provision of section 310A and 316 in respect of an application or appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals and, in the case of an appeal by the accused, the provision of section 309 and 316 shall apply mutatis mutandis.

*(5) Where the court has made an order contemplated in subsection (3) (e)-

(a) the costs shall be taxed according to the scale the court deems fit; and

(b) the order shall have the effect of a civil judgement of that court.

(6) If, on notice of motion, it appears to a superior court that the institution or continuance of criminal proceedings is being delayed unreasonably in a lower court which is seized with a case but does not have jurisdiction to try the case, that superior court may, with regard to such proceedings, institute the investigation contemplated in subsection (1) and (2) and issue any order contemplated in subsection (3) to the extent that it is applicable.(7) (a) The National Director of Public Prosecutions must, with in 14 days after the end of January and July of each year, submit a report to the Cabinet member responsible for the administration of justice, containing the particulars indicated in the Table of Awaiting Trail Accused in respect of each accused whose trail has not yet commenced in respect of the leading of evidence, as contemplated in section 150 and who, by the end of the month in question, has been in custody for a continuous period exceeding-

(i) 18 months from date of arrest, where the trail is to be conducted in a High Court;

(ii) 12 months from date arrest, where the trail is to be conducted in a regional court; and

(iii) six months from date of arrest, where the trail is to be conducted in a magistrate’s court.

(b) the Cabinet member responsible for the administration of justice must, within 14 days of receipt of a report contemplate in paragraph (a), table such report in Parliament.

It is abundantly clear from this section that as the presiding judge, I have the power and authority, in the event where there is unreasonable delay towards the finalisation of a trial, to intervene and investigate the cause of such delay. In the event where I find that there is some unreasonable delay, I am enjoined to take such steps which will eliminate such delay and ensure that the trial is attended to as expeditiously as possible. I have presided over several interlocutory applications in this matter. As a result, I have been intimately involved in the case to an extent where I am well conversant with its history. I commented in my judgement delivered on 4 September 2006 that this matter has a long and chequered history. What has compounded or exacerbated the problem herein is the fact that there is no love lost between the protagonists. Every application launched by either party is vigorously defended. The acrimony between the protagonists is palpable. I have gained the clear impression that the parties have at times, allowed their acrimony to cloud their better judgement.

I am baffled by the fact that even issues which the parties, in my view, could resolve by engaging each other, they prefer to do it by litigation which involves extraordinarily voluminous documents. I am seriously intrigued by the uncanny ability of the legal representatives of both parties to produce tomes of documents; each time there is an application to be heard.

Whilst dealing with the delays in this case in my judgement of the 4 September 2006, I observed that having read the tomes of documents and correspondence which have been put before me, that; “I am seriously averse to apportioning blame to any of the parties for the quagmire in which we found ourselves. I am not sure that such an approach will help to solve the problem in this case……………” In simple terms I did not find that any party was to blame for any delays at the stage.

I have already alluded to the fact that the application for access to section B and C of the docket was set down for hearing on 19 October 2007. For circumstances beyond the control of both parties, the application could not be heard. I was advised that this application cannot be finalised as the counsel involved cannot find a suitable date. The respondent claims that he is entitled to section B and C of the docket as this will enable him to fully understand the case against him and put him in a position where he can take an informed decision concerning some interlocutory applications which he wishes to bring before the trial commences. On the other hand, the applicant claims privilege against disclosure of section B and C of the docket of the docket. Furthermore, the applicant avers that the contents of section B and C will have no material effect on the respondent’s case, particularly with regard to the evidence to be adduced by both Chipps and Adams. With regard to the latter submission, I find that it has no merit. It is not for the applicant to decide for the respondent which material is relevant or irrelevant for his defence. The rights of the respondent to a fair trial entails that he be furnished with whatever information the state has in its possession and which it intends to use against him. The applicant can only refuse to disclose information which is legitimately

privilege. In the event where there is disagreement regarding whether the information is privileged or not, it is imperative that an application be made to court so that the court can determine the issue. Suffice to state that this appears to be the main purpose of the pending docket application. I have no doubt that it is imperative and in the interests of justice that this application be heard and finalised without any undue delay. That the respondent has the right to have this matter determined by the court is beyond doubt. I speculate as to what the finding of the court will be concerning this application. However, I am inclined to agree with Mr Roux that it is important and crucial for progress to be made in the preparation of the pending trial that the issue of access to section B and C of the docket be finalised without any delays.

Given the facts of this case, I am unable to find that any party is guilty of having caused the delay towards the finalisation of this trial. On the contrary, I am of the view that it is in the interests of justice that both parties show their bona fides and commitment to have the trial starts by actively attempting to secure an early date for the hearing of the pending docket application.

In the circumstances, I am of the view that this application is premature as it attempts to anticipate what the respondent might do on the 28 July 2008. What is clear is that the respondent has not applied for a postponement of the case. There is therefore no application for me to consider. Even if the respondent was to apply for a postponement on the 28 July 2008, I would be reckless to prejudge his application without having had the benefit of hearing him. It is axiomatic that the judge seized with the trial on 28 July 2008 will be the one in a vantage position to properly adjudicate and decide the application, should there be such an application. Furthermore logic and common sense dictate that such application will have to be decided on the facts put before the court at that time. It follows that I find that this application well intended as it might be, was seriously ill-conceived.

In the result and for the aforegoing reasons, this application is dismissed. The case is postponed to 28 July 2008, being the trial date.

______

L O BOSIELO

JUDGE OF THE HIGH COURT