S v Thomas en Anders (SS12/2010) [2011] ZAWCHC 412 (25 October 2011)

S v Thomas en Anders (SS12/2010) [2011] ZAWCHC 412 (25 October 2011)

The court found that the murder of six potential witnesses in this matter constituted exceptional circumstances justifying deviation from the open court principle. The risk to the safety of the witness Staggie, who is part of the witness protection programme, outweighed the prejudice to the defence. The court held that it was in the interests of justice, as contemplated in section 153(1) of the Criminal Procedure Act and section 74(1)(b)(i) of the Prevention of Organised Crime Act, that Staggie's testimony be heard in camera, his identity protected, and publication of related information prohibited. The application by the State was accordingly granted.

Citation
[2011] ZAWCHC 412
Parties
Applicant: The State; Respondent: George Thomas; Respondent: Jason Stynders; Respondent: Fred Williams; Respondent: Peter McNiel; Respondent: Derrick Claasen; Respondent: Giovanni Kannemeyer; Respondent: Alfonso van Heerden; Respondent: Herman Wakefield; Respondent: Mogammat Stemmet; Respondent: Jerome Karlmeyer; Respondent: Ashley Appollis; Respondent: Kenneth Lavita; Respondent: Howard Jansen; Respondent: Ronald Swarts; Respondent: Gregory Meyer; Respondent: Ashraf Ryklief; Respondent: Rodney Joubert; Respondent: Ashwin Charles; Respondent: Reyaaz Dennis
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 October 2011
Case Number
SS12/2010
Procedural Posture
Criminal Application / Interlocutory Application for Witness Protection and in Camera Testimony
Outcome
Application by the State granted; orders made for in camera testimony, protection of witness identity, and prohibition of publication of related information.
Judges
Fortuin R
Legal Topics
Open Court Principle, Witness Protection, In Camera Testimony, Identity Protection, Publication Ban
Criminal Law Open Court Principle Witness Protection In Camera Testimony Identity Protection Publication Ban

Case Brief

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Parties

The State

Applicant

George Thomas

Respondent

Jason Stynders

Respondent

Fred Williams

Respondent

Peter McNiel

Respondent

Derrick Claasen

Respondent

Giovanni Kannemeyer

Respondent

Alfonso van Heerden

Respondent

Herman Wakefield

Respondent

Mogammat Stemmet

Respondent

Jerome Karlmeyer

Respondent

Ashley Appollis

Respondent

Kenneth Lavita

Respondent

Howard Jansen

Respondent

Ronald Swarts

Respondent

Gregory Meyer

Respondent

Ashraf Ryklief

Respondent

Rodney Joubert

Respondent

Ashwin Charles

Respondent

Reyaaz Dennis

Respondent

Procedural Posture

Criminal Application / Interlocutory Application for Witness Protection and in Camera Testimony

Legal Issues

  1. 1 Whether the testimony of the prospective witness Staggie should be heard in camera or in open court.
  2. 2 Whether the identity of the witness should be protected and publication of related information prohibited.
  3. 3 Whether the circumstances justify deviation from the open court principle due to risks to the witness.

Ratio Decidendi

The court found that the murder of six potential witnesses in this matter constituted exceptional circumstances justifying deviation from the open court principle. The risk to the safety of the witness Staggie, who is part of the witness protection programme, outweighed the prejudice to the defence. The court held that it was in the interests of justice, as contemplated in section 153(1) of the Criminal Procedure Act and section 74(1)(b)(i) of the Prevention of Organised Crime Act, that Staggie's testimony be heard in camera, his identity protected, and publication of related information prohibited. The application by the State was accordingly granted.

Court Disposition

Application by the State granted; orders made for in camera testimony, protection of witness identity, and prohibition of publication of related information.

Orders

  • The testimony of Mr Staggie shall be heard behind closed doors in terms of section 153(2)(a), and no person shall be present unless necessary or authorised by the court.
  • The identity of the witness shall not be disclosed until the court lifts the prohibition, in terms of section 153(2)(b).