S v Tshotshoza and Others (18/2009) [2009] ZAGPPHC 172; 2010 (2) SACR 274 (GNP) (17 April 2009)

S v Tshotshoza and Others (18/2009) [2009] ZAGPPHC 172; 2010 (2) SACR 274 (GNP) (17 April 2009)

The High Court held that the appointment of Adv. Krause as prosecutor, paid by Business Against Crime and SABRIC, did not create a reasonable perception of possible prejudice in the minds of reasonable, right-minded persons. The arrangement was distinguished from the Bonugli matter, as the contributors (banks) had no direct control over prosecutions and did not stand to benefit directly from convictions. The agreement between the NPA and Krause complied with section 38 of the National Prosecuting Authority Act, and Krause acted under the supervision and direction of the Director of Public Prosecutions. The attacks on Krause's conduct, including settling affidavits and delayed discovery,...

Citation
[2009] ZAGPPHC 172
Parties
Applicant: The State; Respondent: Amos Tshotshoza and Others; Respondent: Accused number 4
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 April 2009
Case Number
18/2009
Procedural Posture
Review Application / High Court Review of Regional Court Referral
Outcome
Magistrate's finding set aside; application to remove Adv. Krause as prosecutor refused; matter remitted for trial finalization.
Judges
Hartzenberg, Khampepe, Jordaan
Legal Topics
Fair Trial Rights, Appointment of Prosecutors, Section 38 National Prosecuting Authority Act, Perception of Bias, Public Vs Private Prosecution
Criminal Law Constitutional Law Fair Trial Rights Appointment of Prosecutors Section 38 National Prosecuting Authority Act Perception of Bias Public Vs Private Prosecution

Case Brief

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Parties

The State

Applicant

Amos Tshotshoza and Others

Respondent

Accused number 4

Respondent

Procedural Posture

Review Application / High Court Review of Regional Court Referral

Legal Issues

  1. 1 Whether the appointment and remuneration of Adv. Krause as prosecutor, paid by a private entity, violates the accused's constitutional right to a fair trial.
  2. 2 Whether the agreement between the National Prosecuting Authority and Adv. Krause complies with section 38 of the National Prosecuting Authority Act.
  3. 3 Whether the conduct of Adv. Krause in the prosecution gives rise to a reasonable perception of bias or prejudice.

Ratio Decidendi

The High Court held that the appointment of Adv. Krause as prosecutor, paid by Business Against Crime and SABRIC, did not create a reasonable perception of possible prejudice in the minds of reasonable, right-minded persons. The arrangement was distinguished from the Bonugli matter, as the contributors (banks) had no direct control over prosecutions and did not stand to benefit directly from convictions. The agreement between the NPA and Krause complied with section 38 of the National Prosecuting Authority Act, and Krause acted under the supervision and direction of the Director of Public Prosecutions. The attacks on Krause's conduct, including settling affidavits and delayed discovery,...

Court Disposition

Magistrate's finding set aside; application to remove Adv. Krause as prosecutor refused; matter remitted for trial finalization.

Orders

  • The finding of the magistrate that the appointment of Adv. GF Krause is unlawful, and insofar as he has found that Adv. Krause's conduct was improper, is hereby set aside and the application by the applicants to have him removed as the prosecutor in the prosecution against them is refused.
  • The matter is remitted to the magistrate for finalization of the trial.