Porritt and Another v National Director of Public Prosecutions and Others (978/2013) [2014] ZASCA 168; [2015] 1 All SA 169 (SCA); 2015 (1) SACR 533 (SCA) (21 October 2014)

Porritt and Another v National Director of Public Prosecutions and Others (978/2013) [2014] ZASCA 168; [2015] 1 All SA 169 (SCA); 2015 (1) SACR 533 (SCA) (21 October 2014)

The Supreme Court of Appeal held that the removal of prosecutors on the basis of apprehension of bias does not entitle the accused to an acquittal under section 106(4) of the Criminal Procedure Act. The test for removal of a prosecutor for bias is not the same as that for the recusal of a judicial officer. Prosecutors are inherently partisan in adversarial proceedings, and their prior involvement or funding by SARS does not automatically compromise the fairness of the trial. The correct test is whether substantive unfairness arises on the facts, not a general standard of independence. The court found no evidence of impropriety or conduct by the prosecutors that would justify their removal...

Citation
[2014] ZASCA 168
Parties
Appellant: Gary Patrick Porritt; Appellant: Susan Hilary Bennett; Respondent: National Director of Public Prosecutions; Respondent: Deputy National Director of Public Prosecutions; Respondent: Etienne Mellett Coetzee; Respondent: Jan Maatjan Ferreira; Respondent: Glynnis Breytenbach; Respondent: Stephanus Christiaan Jordaan; Respondent: Commissioner of the South African Revenue Service; Respondent: Deon Victor Boshoff; Respondent: Martin van der Merwe; Respondent: Deon Koekemoer; Respondent: Minister of Justice and Constitutional Development; Respondent: Minister of Finance
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 October 2014
Case Number
978/2013
Procedural Posture
Criminal Appeal / Appeal From South Gauteng High Court, Johannesburg
Outcome
Appeal dismissed; question of law reserved answered in favour of the state; order for removal of prosecutors set aside; matter remitted for trial.
Judges
Mpati, Brand, Tshiqi, Saldulker, Fourie
Legal Topics
Title to Prosecute, Fair Trial Rights, Apprehension of Bias, Removal of Prosecutor, Section 106 Criminal Procedure Act, Role of Prosecutor
Criminal Law Civil Procedure Title to Prosecute Fair Trial Rights Apprehension of Bias Removal of Prosecutor Section 106 Criminal Procedure Act Role of Prosecutor

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Parties

Gary Patrick Porritt

Appellant

Susan Hilary Bennett

Appellant

National Director of Public Prosecutions

Respondent

Deputy National Director of Public Prosecutions

Respondent

Etienne Mellett Coetzee

Respondent

Jan Maatjan Ferreira

Respondent

Glynnis Breytenbach

Respondent

Stephanus Christiaan Jordaan

Respondent

Commissioner of the South African Revenue Service

Respondent

Deon Victor Boshoff

Respondent

Martin van der Merwe

Respondent

Deon Koekemoer

Respondent

Minister of Justice and Constitutional Development

Respondent

Minister of Finance

Respondent

Procedural Posture

Criminal Appeal / Appeal From South Gauteng High Court, Johannesburg

Legal Issues

  1. 1 Whether the removal of prosecutors on grounds of apprehension of bias entitles the accused to an acquittal under section 106(4) of the Criminal Procedure Act.
  2. 2 What is the correct legal test for the removal of a prosecutor for bias or lack of title to prosecute.
  3. 3 Whether the appointment and involvement of the prosecutors infringed the appellants' fair trial rights under section 35(3) of the Constitution.

Ratio Decidendi

The Supreme Court of Appeal held that the removal of prosecutors on the basis of apprehension of bias does not entitle the accused to an acquittal under section 106(4) of the Criminal Procedure Act. The test for removal of a prosecutor for bias is not the same as that for the recusal of a judicial officer. Prosecutors are inherently partisan in adversarial proceedings, and their prior involvement or funding by SARS does not automatically compromise the fairness of the trial. The correct test is whether substantive unfairness arises on the facts, not a general standard of independence. The court found no evidence of impropriety or conduct by the prosecutors that would justify their removal...

Court Disposition

Appeal dismissed; question of law reserved answered in favour of the state; order for removal of prosecutors set aside; matter remitted for trial.

Orders

  • The appeal is dismissed and each party is ordered to pay its own costs.
  • The first question of law reserved in terms of section 319 of Act 51 of 1977 is answered in favour of the state.