S v Moussa (SS90/2008) [2021] ZAGPJHC 61; [2021] 3 All SA 599 (GJ); 2021 (2) SACR 378 (GJ) (19 May 2021)

S v Moussa (SS90/2008) [2021] ZAGPJHC 61; [2021] 3 All SA 599 (GJ); 2021 (2) SACR 378 (GJ) (19 May 2021)

The court found that Adv Naidoo, the prosecutor, abused her position by entering into an agreement with the accused that implied withdrawal of charges upon payment of R1 million to Absa Bank. This conduct was outside her authority and contrary to the constitutional and statutory duties of a prosecutor. However, the abuse did not affect the title to prosecute, which vests in the prosecutorial authority (DPP/DDPP), not in individual prosecutors. The accused failed to prove that the continuation of prosecution constituted an abuse of the court process or that the prosecution was instituted for an ulterior motive. Therefore, the special plea under section 106(1)(h) could not be upheld.

Citation
[2021] ZAGPJHC 61
Parties
Applicant: Sylla Moussa; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 May 2021
Case Number
SS90/2008
Procedural Posture
Criminal Trial / Special Plea Under Section 106(1)(h) of the Criminal Procedure Act
Outcome
The accused's special plea under section 106(1)(h) of the Criminal Procedure Act is dismissed.
Judges
Strydom
Legal Topics
Abuse of Process, Title to Prosecute, Prosecutorial Discretion, Prevention of Organised Crime Act, Fraud, Money Laundering
Criminal Law Civil Procedure Abuse of Process Title to Prosecute Prosecutorial Discretion Prevention of Organised Crime Act Fraud Money Laundering

Case Brief

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Parties

Sylla Moussa

Applicant

The State

Respondent

Procedural Posture

Criminal Trial / Special Plea Under Section 106(1)(h) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the prosecutor abused the court process by entering into an agreement with the accused regarding payment to a third party.
  2. 2 Whether such abuse, if proven, affects the title to prosecute under section 106(1)(h) of the Criminal Procedure Act.
  3. 3 Whether the continuation of prosecution constitutes an abuse of process warranting a permanent stay.

Ratio Decidendi

The court found that Adv Naidoo, the prosecutor, abused her position by entering into an agreement with the accused that implied withdrawal of charges upon payment of R1 million to Absa Bank. This conduct was outside her authority and contrary to the constitutional and statutory duties of a prosecutor. However, the abuse did not affect the title to prosecute, which vests in the prosecutorial authority (DPP/DDPP), not in individual prosecutors. The accused failed to prove that the continuation of prosecution constituted an abuse of the court process or that the prosecution was instituted for an ulterior motive. Therefore, the special plea under section 106(1)(h) could not be upheld.

Court Disposition

The accused's special plea under section 106(1)(h) of the Criminal Procedure Act is dismissed.

Orders

  • The accused’s plea in terms of section 106(1)(h) of the Criminal Procedure Act is not upheld.