S v Levenstein (317/04) [2006] ZAGPHC 108 (20 December 2006)

IN THE HIGH COURT

OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NUMBER: 317/2004

In the matter between:

THE STATE

and

JEFFREY ISRAEL LEVENSTEIN

______________

JUDGMENT ON THE ACCUSED’S

“BETTERMENT OF PARTICULARS” APPLICATION ______________

SCHWARTZMAN J:

A. INTRODUCTION

The accused is unrepresented. On 18 October 2006, he served what is described as a “Betterment of Particulars Application”. Before I deal with this application, it is necessary to set out the background against which it has been brought and the principles to be applied in deciding the application.

In my judgment on the accused’s application for a permanent stay of his prosecution, I chronicled the material events from the date of his arrest, on 30 May 2003, culminating in his appearance before me on 20 November 2006. In this chronology I referred to the fact that when the charge sheet was served on 16 July 2004, the accused was given 24 lever arch files containing the documents on which the State intended to rely, the statements of the witnesses the State intended to call and the annexures to these statements. On 16 July 2004 it was agreed that the accused’s Regional Court trial would start on 15 November 2004. At the time, the accused, who was represented by an attorney and Senior Counsel, decided to proceed to trial without asking for Further Particulars to the eight charges he would be facing. On 15 November 2004 the accused’s trial was, at his request, transferred to the High Court. I was told that the content of the indictment is substantially the same as the charges set out in the charge sheet. His trial was to have started on 4 April 2005. The date on which the indictment was served is not known. However, and with it, the State served a summary of the substantial facts on which it relied and a list of witnesses it intended calling. Sometime before 3 March 2005 the accused terminated the mandate of his attorney and Senior Counsel. On 3 March 2005 Small-Smith,

who was then the accused’s attorney, served a Request for Further Particulars to the indictment. In the course of argument before me the accused said that he had drafted the Request on the advice of Small-Smith and Advocate Heath, who had told him that he had been wrong when he made his original decision not to ask for Further Particulars. Advocate Becker told me that until the accused made this statement,

he believed that the accused’s legal representatives had drafted the Request. I was under a similar impression. The State served its reply on 15 May 2006. When the accused appeared before me on 29 September 2006 I placed him on terms to bring a threatened application for further and better particulars. On 20 October 2006 the accused brought what he calls a Betterment of Particulars Application. He told me that he is the author of this document.

B. THE

PRINCIPLES TO BE APPLIED TO MY DECISION

An accused has a statutory right, in terms of Section 87 of the Criminal Procedure Act (CPA), to further particulars to an indictment or charge sheet. This right, which predates the Constitution, is linked to the recognition of an accused’s right to be properly informed of the case the State intends to prove against him or her so that he or she can properly prepare his or her defence – S v Cooper & Others 1976 (2) SA 875 (T) at page 885H to 886B. Prior to the Constitution, an accused indicted in the High Court was, in terms of Section 144 (3) (a) of the CPA, afforded two additional means to assist him or her in preparing for trial. The first was the requirement that the indictment be accompanied by a summary of the substantial facts of the case, sufficient to inform the accused of the case against him and that would not prejudice the administration of justice – see S v Mpetha & Others 1981 (3) SA (C) 807D to 808H. The second requirement was that the accused be given a list of the names and addresses of the witnesses that the State intended calling.

Section 33 of the Constitution that gives every person the right to access all information held by the State or any of its organs, read with Section 25 (3) that guarantees an accused a fair trial, had the consequence that the Constitutional Court held that, save in exceptional; circumstances, the State was required to make available to an accused the police docket that would include witness statements and documents – see Shabalala & Others v Attorney-General, Transvaal & Another [1995] ZACC 12; 1996 (1) SA 725 (CC). In footnote 58 to this judgment Mohammed DP, who gave the Court’s judgment, said that the application of the law pertaining to the adequacy of the Particulars as set out in Section 87 of the Criminal Procedure Act may have to be re-examined, regard being had to the “spirit, purpose and objects” of the Constitution. (See also Hiemstra: SuidAfrikaanse Strafprosesreg (6th Edition) (2002) at page 252 where, in relation to giving the accused sight of the docket it is said that this “gee immers aan die beskuldige die geleentheid om breedvoerig kennis te neem van die saak wat die staat gaan aanbied, een van die kernoogmerke van nade besonderhede.”)

Ordinarily and in a High Court trial, and given the detailed preview of the State’s case to which an accused is entitled, he or she should be able to prepare for trial without the need to request further particulars in terms of Section 87 of the CPA. Where such a request has been replied to, a Court will only order the furnishing of further and better particulars if it is satisfied that a genuine and necessary request in terms of section 87 of the CPA has not been properly answered.

While it could be said that a legal eye had been cast over the accused’s Request for Further Particulars, this cannot be said for his 163 page “Betterment of Particulars”. As will become apparent, this application cannot be construed as a genuine attempt to get further and better particulars to an inadequately pleaded State case. As will appear hereafter, it is, in the main, a novel and unmeritorious attempt to get the State to deal with and reply to the accused’s version of what he submits must be accepted, at this stage, as the true facts giving rise to each of the counts he faces. More importantly, and what this document, read with the more than 2 000 pages of affidavits and annexures in the accused’s permanent stay application, clearly demonstrates is that the accused knows and has a full understanding of the State’s case against him. In his affidavit he has also set out, in considerable detail, his defence to the charges.

The index to the Betterment of Particulars application states that pages 1 to 3 contain an introduction. What this three page introduction to the 160 pages that follow demonstrate is that the accused has no understanding of the purpose of a request for further particulars, let alone the circumstances under which a Court, in a criminal trial, might order the State to furnish better particulars to an inadequate response to a request for further particulars. This conclusion is based on the following extracts from the introduction.

The State has “maliciously or unintentionally relied on perjured evidence and has amplified same in their further particulars”. The State “whether its submission (further particulars) were maliciously or defectively drafted are now armed with a wide range of Permanent Stay detail and information, which may be employed to better their further particulars”. {Here the accused is referring to his detailed version of events recorded in a 2 400 page founding affidavit.]

The State’s response “in respect of each count and answer, fails unjustly to deal with the irrefutable facts that all issues, over a protracted life cycle period, were endorsed by profiled experts in their respective fields; and the annual attest/audit function – incorporating forensic testing, FSB and JSE scrutiny/testing during Regal’s existence as a going concern. The accused requests that, in respect of all question submitted, the betterment of particulars incorporate this critical perspective.”

“In respect of each count and allegation the accused requests that a suitable explanation be given for the (State’s) reliance on fraudulently misrepresented evidence – the accused refers the court again to the fact that they now have suitable information for satisfying this request (Permanent Stay Information)”.

“The accused requests that the betterment of particulars incorporate, embrace and account for the obviously fraudulent activities of certain designated individuals – and the impact of same of decision (sic) taken in the context of Regal as a going concern: in respect of each and every count and allegation.”

“The betterment of particulars must include in respect of all counts and allegations, why the illegal and unlawful activities of Investec and Ernst & Young have been ignored – and those working in concert to destabilize a South African Bank…”

Pages 4 to 33 of the application purport to repeat the accused’s request for further particulars. It is not, however, a copy of the document served on the State on 3 March 2005, but a copy of page 709 to 726 of a book written and published by the accused titled “Regal – A Bank Ambushed”. Page 709 has the heading “Request for Further Particulars” followed by the statement that “Judge Heath asserts that he will be amazed if they have the answer for any question: submitted to Scorpions / March 2005: Trial scheduled for 4th April 2005.” This is a reference to the original request for further particulars. The extract from the book that repeats the request also includes a number of wholly irrelevant questions not referred to in the request. For example, “Is the State alleging that Tito Mboweni is not both CEO and Chairman of the South African Reserve Bank?” “Cohen convinced the Board to adopt the s 38 (2) (1) (c) route … Lawful and legal in all respects and not a buy back provision or a buy back of shares. The State must have an alternative to this lawful and legal information. Particulars please. We would love to see them (you bastards)”. It contains wholly uncalled for attacks on others. By way of example “S… L… I… C… L and W… enriched themselves with criminal intent”, followed by “Does the State allege that this has no relevance to the ‘run’ on the bank – or any relevance for that matter.” And then, “L… was arrested for fraudulently misrepresenting his entire C.V. which was used to secure salary and dividend flows; and 1 million shares. This equates to self enrichment of about R10 million. Yet the State relied on his evidence. Particulars required which provide the basis for the inclusion of his evidence.”

The accused calls pages 34 to 142 his “abbreviated response to the particulars received – incorporating the particulars received.” What the accused has done is to attach, as pages 90 to 142, a copy of the State’s reply to his request for further particulars on which he has appended his handwritten comments. These handwritten comments have in part been transcribed and are to be found at page 40 to 89. Page 34 to 39 appears to be an introduction to these comments. In argument the accused handed up a further 14 pages detailing the grounds on which specified “betterment” was required.

Pages 143 to 163 are said to be “Trial Particulars” in a High Court action in which the accused as First Plaintiff and the Jeff Levenstein Family Trust, as Second Plaintiff, are suing Ernst & Young. Ernst & Young were Regal Bank’s auditors. The relief sought in this action is not known. This document is wholly irrelevant to any pre-trial interlocutory application.

In oral argument the accused obdurately stuck to his submission (see paragraph 5.1 to 5.5 above) that in dealing with his application, the Court had to accept his untested version of the facts surrounding each charge, and based thereon, require the State to furnish the information he was requesting. No purpose is to be served by burdening this judgment with examples of these submissions – details of which will be found in the record of the proceedings before me. The application for further and better particulars based on this submission is dismissed.

In many other instances the accused has sought, by way of his application, to draw the State into a debate on the evidence to be given at his trial. By way of example only, Count 3 alleges a fraud involving the sale of an immovable property by Regal Treasury Property Investments (Pty) Ltd to Mettle Properties International (Pty) Ltd. One of the false representations said to have been made by the accused is that the sale was “irrevocable, unconditional and an out and out sale”. In paragraph 7.1.1 of his request for further particulars the accused asked “Is the State alleging that the sale agreement is conditional?” The State’s answer to this request is a simple “Yes”. In his Betterment of Particulars Application the accused states that “Strydom admits in his evidence docket that the sale agreement was unconditional. Why has the State contradicted its key State witness? The accused is left confused and in the dark and s 87 (of CPA) has not been satisfied.” The accused must have a copy of the written agreement. For purposes of preparing for trial the accused did not require the particulars requested and it would have sufficed for the State to say so. The further information sought in this part of the Betterment of Particulars application is an abuse of an accused’s right to Further and Better Particulars.

I do not overlook the possibility that by trawling through the accused’s misconceived application, I might find an instance in which he may be entitled to further and better particulars, I have not done this because I do not believe that this is the function of a Court even when it has before it an unrepresented litigant.

I have however considered the accused Betterment of Particulars application together with the relevant parts of his Permanent Stay application. I was also addressed at length by the accused on both applications. What his oral address fortified was my prima facie view, based on the accused’s affidavits, that the accused knows and fully understands the nature and detail of all the charges brought against him. He is in possession of the documents on which the State relies. He has copies of the statements of witnesses the State intends to call. He has been furnished with an adequate reply to his request for further particulars. He has failed to show that he is entitled to any further and better particulars. That the accused is, in all the circumstances, able to prepare for trial is manifested by his ability to deal in detail, in his application and in his book, with his defence to the charges brought against him.

I accordingly dismiss the Betterment of Particulars application.

_____

I W SCHWARTZMAN

JUDGE

OF THE HIGH COURT

Counsel for the State: Adv A Becker

Instructed by: Directorate of Special Operations

On behalf of the accused: Accused appears in person

Judgment handed down: 20 December 2006

REPORTABLE AND OF INTEREST TO

OTHER JUDGES

STATE v JEFFREY LEVENSTEIN:

CASE NUMBER: 317/2004

An accused who has been served with an indictment, a summary of substantial facts, the names of the witnesses the State intends calling and a copy of the police docket should ordinarily not require further particulars in terms of Section 87 of the Criminal Procedure Act.

_______

I W Schwartzman

Judge of the High Court