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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 136

PARTIES:

JACQUES PIENAAR                                                    FIRST APPLICANT

RAVIN GOORANAH                                                     SECOND APPLICANT

and

THE MAGISTRATE (MR J BURGER, ESQUIRE)

ZWELITSHA                                                                   FIRST RESPONDENT

THE STATE                                                              SECOND RESPONDENT

REFERENCE NUMBERS -

• Registrar:   745/05

• Magistrate:

• High Court: Bhisho

HEARD: 15 November 2005

DATE DELIVERED: 20 April 2006

JUDGE(S): Dambuza J

LEGAL REPRESENTATIVES -

Appearances

• for the State/Applicant(s)/Appellant(s): Adv Collett

• for the accused/respondent(s): Adv Simoyi

Instructing attorneys:

• Applicant(s)/Appellant(s): Hutton & Cook

• Respondent(s): The State Attorney

CASE INFORMATION -

• Nature of proceedings :

• Topic:

• Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(BHISHO)

          CASE NO: 745/05

                                   

In the matter between:

JACQUES PIENAAR                                                    FIRST APPLICANT

RAVIN GOORANAH                                                     SECOND APPLICANT

and

THE MAGISTRATE (MR J BURGER, ESQUIRE)

ZWELITSHA                                                                   FIRST RESPONDENT

THE STATE                                                              SECOND RESPONDENT

______________________________________________________________

JUDGMENT

______________________________________________________________

DAMBUZA J:

1.         In this application the Applicants originally sought an order calling upon:

           

“1.1       The First and Second Respondents to show cause, if any, why the ruling by the first Respondent in favour of the Second Respondent and the Applicants’ objection to a first and second charge sheet at the Zwelitsha Magistrates’ Court, Zwelitsha, Province of the Eastern Cape in the criminal case of the State versus Jacques Pienaar and 3 Others under case number C32/04 should not be reviewed and set aside;

1.2        The First and Second Respondents to show cause, if any, why a permanent stay of the prosecution against the Second Respondent should not be granted in favour of the Applicants;

1.3        The Respondents to pay the costs of this application jointly and severally, the one paying the other to be absolved.”

2.         During argument it was brought to my attention by counsel for the parties that a ruling was made by the learned Judge Hole AJ in respect of the first prayer.  I could, however, neither find the order by Hole AJ nor a record thereof in the court file.   What I found is rule nisi granted by Hole AJ on 7 July 2005 which orders that:  

2.1        A Rule Nisi be issued calling upon the Respondents to show cause on the 21 July as to why an order in the following terms should not be granted:

2.2        The Second Respondent is to issue a permanent stay of the prosecution against the Applicants;

2.3        The Second Respondent is to pay the costs of this application.

3.         The issue before me at this stage therefore is whether a permanent stay of the criminal proceedings together with an attendant costs order should be granted (i.e. confirmation or discharge of the Rule Nisi). 

4.         According to first applicant’s founding affidavit on 4 September 2002 the applicants, together with one Abnerson Moyisi Sandile Majeke were charged with the offence of defeating or obstructing the administration of justice.  A copy of the charge sheet which Applicants received in January 2004 is annexed to the Applicants’ founding paper and sets out the charges against the Applicants as follows:

“MAIN COUNT:

DEFEATING OR OBSTRUCTING THE ADMINISTRATION OF JUSTICE:

            The Accused are charged of the said offence in that upon or about the 4^th September 2002 and at or near Dimbaza in the District of Zwelitsha  the Accused did unlawfully and with intent to defeat or obstruct the course of justice commit an act to wit by interfering with immigration officers to execute a search warrant. (sic)

ALTERNATIVE TO COUNT 1:

Contravening the provisions of Section 57 (1) (d) of Aliens Control Act 96 of 1991 read with Section 2, 57 (2)

            The Accused are charged of the said offence in that on the 4/09/2002 and at or near Dimbaza in the District of Zwelitsha the Accused did unlawfully and intentionally hindered and or interfered with Immigration Officers in the performance of their duties.” (sic)

6.         The charge sheet also provides that the date of the Applicants’ first appearance in court was to be the 21 January 2004.

7.         Subsequent to being charged, first applicant served a Request for Further Particulars, dated 26 March 2004, on the Clerk of the Criminal Court, and on the Senior Prosecutor, Dimbaza Magistrate’s Court.  There is no indication thereon as to when the clerk of the court and the Prosecutor received it.  Further particulars were furnished by the Prosecutor.  There is no indication on the copy thereof annexed to applicants’ founding papers as to when they were received by the first applicant. 

8.         I could find no indication in the papers as to what happened in court on 21 January 2004.

            The Applicants appeared in court (again) on 1 June 2004 and the case had to be postponed to 10 September 2004 for purposes of arranging that a magistrate from a magisterial jurisdiction outside Dimbaza preside over the trial.  First Respondent is an attorney practising in King William’s Town, a neighbouring magisterial jurisdiction to Dimbaza and is known to the magistrates in Dimbaza.

9.         On 31 August 2004 First Applicant served a “Notice of Intention to Object charges on main and alternative counts” on the clerk of the criminal court, Dimbaza and on the prosecutor, Dimbaza magistrates’ court.  The basis for the objection appears as follows in the notice:

“AD MAIN COUNT

            1.1        The charge is vague and embarrassing in that:

(a)        the State has failed to allege precisely when on 4^th September 2003 Accused No 1 attempted to obstruct or defeat the course of justice;

(b)        the State has failed to allege that the Accused subjectively intended to “defeat or obstruct” the course of justice;

(c)        the State has failed to disclose how precisely in what manner Accused No 1 “interfered in the arrest of illegal immigrants by immigration officials.

1.2        Accordingly the State has failed to inform the defence for Accused No 1 with precision regarding the perpetration of the actus reus.

            AD ALTERNATIVE COUNT

            The charge is vague and embarrassing in that:

2.1        The state has failed to inform Accused No 1 as to precisely when on 4^th September 2003, Accused No 1 committed the offence at R G Textiles, Dimbaza;

2.2        The State has failed to inform the defence with regard to how Accused No 1 perpetrated the actus reus by “obstructing an immigration officer in the performance of his duties or exercise of his power;

2.3        The State has failed to inform the Accuseds (sic) with precision concerning “requirements” of “officer” or “police officer” (sic).  It is insufficient to merely refer to the wording of the section of the Act in charge (sic);

2.4        The State has failed to allege any form of intention by Accused No 1 to perpetrate the Act.”

10.       On 8 September 2004 there was still no Magistrate available to preside over the case and it was postponed to 3 December 2004.  First Applicant states in his Founding Affidavit that on 8 September 2004 his Counsel was unavailable due to illness and that they had received notice that the state had not yet arranged for an “independent magistrate.”

           

11.       The State merely indicated its intention to oppose the application.

12.       On 1 December 2004 the case was heard in the Zwelitsha magistrates’ court before the First Respondent.  First Applicant’s Counsel was still unavailable and Mr A Van Coller, an attorney practising in King William’s Town appeared on first Applicant’s behalf.  When the charges were put to the Applicants they differed on certain aspects from the charge sheet with which the Applicants were furnished in January 2004 (the first charge sheet).   The second charge sheet reads as follows:

            “MAIN COUNT:

ATTEMPTING TO DEFEAT OR OBSTRUCT THE COURSE OF JUSTICE:

The Accused are charged of the said offence in that upon or about the 04 September 2003 and at or near R G Textiles Dimbaza they unlawfully interfered with the process of arrest of illegal immigrants by immigration officers in an attempt thereby to defeat or obstruct the administration of justice.

ALTERNATIVE COUNT:

C/S 58 (1) (d) of the Aliens Control Act No 96/91-obstructing an Immigration Officer in the performance of his duties or exercise of his powers.

The Accused are charged of the said offence in that on the 04 September 2003 and at or near R G Textiles Dimbaza they unlawfully obstructed, hindered, opposed or interfered with immigration officers in the performance of their duties or exercise of their powers under the Act or without just cause refused or failed to comply with a requirement by the Officer or Police Officer under the Act.”

13.       An objection was then raised to the charges contained in the two charge sheets.  The main difference between the two charge sheets is that the second charge sheet referred to an offence which was allegedly committed in 2003 whereas the first charge sheet had referred to an offence allegedly committed in 2002.  Further, there was no reliance on the Aliens Control Act No 96 of 1991 in the second charge sheet.  For these reasons and the reasons contained in the “Notice of Intention to Object to the charges” the defence submitted that the accused would suffer prejudice as a result of the two different charges and that the charges against the accused should be “quashed.”  The First Respondent overruled the objection and found that the accused could be afforded an opportunity, if needs be, by a postponement, to prepare their defence in the light of the altered charges.

14.       In this application the Applicants contend that failure by the state to inform them of the charges with precision resulted in the trial being unfair in violation of the provisions of Section 35 of the Republic of South Africa, Act No 108 of 1996 (the Constitution).  For these reasons therefore, so the argument goes, the criminal proceedings against the Applicants should be permanently stayed.

15.       In argument, Ms Collett, who appeared on behalf of the Applicants submitted that the prosecuting authority had caused inordinate delays by failing to adequately prepare their case, thus causing prejudice to the Applicant in the preparation of their case and in violation of the Applicants’ rights to a fair and speedy trial.  Respondents, on the other hand, contend that the delay in the prosecution of the criminal case was not so unreasonable as to justify the relief sought by the Applicants.

16.       Section 25 (3) (a) of the Constitution accords every person the right to a fair trial before an ordinary court of law within a reasonable time after having been charged.  It is by now trite that the relevant factors in determining whether a delay in prosecuting a criminal case is unreasonable include the following:

16.1    The length of the delay from the commission of the offence to the commencement of the trial;

16.2    The reasons for the delay;

           

16.3    The assertion by the accused of his rights; and

16.4    Any prejudice suffered or likely to be suffered by the accused as a result of the delay.

See:               Du Preez v Attorney-General of the Eastern Cape 1997 All SA 713

17.       On the first leg of the enquiry I have difficulty in ascertaining the date of commission of the alleged office.  The Applicants’ assertion that they were charged on 4 September 2002 is not disputed.  The best I can conclude from this is that the offence must have been committed prior to 4 September 2002.  On the other hand it seems to me that the 4 September 2003 had been communicated to the Applicants as the date of the commission of the offence as early as when first Applicant prepared his Request for Further Particulars.  In paragraph 6 of the Request for Further Particulars the following appears:

“6.1.1    At precisely what time on 4^th September 2003 did Accused No 1 allegedly attempt to defeat or obstruct the course of justice?” 

The reply is “At about 11h00.”

18.       Further, paragraphs 1.1 and 2.1 of the Notice of Intention to Object to the charges also refer to the 4 September 2003 as the date of the commission of the alleged offence.

19.       A report attached to the Applicants’ founding papers, prepared by C A Pringle, a Chief Immigration Officer refers to events that occurred on 4 September 2002.  The first charge sheet sets out the date of the alleged offence as 4 September 2002, and the second one sets out the date of the alleged offence as 4 September 2003.  As I am unable to determine the correct date of the commission of the offence, I am unable to determine the length of the delay from the commission of the crime to the commencement of the trial. 

20.       If the alleged offence was committed on 4 September 2002, there is no indication as to what happened between that date and January 2004 when the Accused were to appear in court for the first time.  In determining whether there was an undue delay in prosecuting the trial I have to consider that:

“It is in the interest of an Accused person that the anxiety and stress which is an inevitable consequence of a charge being laid against him should where reasonably possible be minimized and Section 25 (3) (a) of the Constitution gives him the right to insist that he be tried within a reasonable time after he has been charged.  At the same time it is in the public interest that persons who have committed serious crimes be charged, prosecuted and sentenced therefor.

It could e.g. happen that a statement is given to the police indicating the commission of a serious crime by a person.  If that person, when asked to do so, furnishes the police with a statement indicating his innocence, the police may drop the matter in the belief that no successful prosecution can be brought against him.  If several years later more information comes to light justifying a prosecution, and it is then decided to

prosecute him, it would lead to an injustice if the accused person were able to successfully obtain a permanent stay of prosecution by alleging that the initial enquiry

amounted to a “charge” against him and that an unreasonable time has lapsed since the date.

My conclusion is that a person is not charged in the context of Section 25 (3) (a) until he is advised by a competent authority that it has been decided that he be prosecuted.”

See:               Du Preez’s case (supra) at 722G-723D

21.       As I have already said, there is no explanation as to what happened in court in January 2004, if the criminal case was before court at all on that day.  I cannot find that the prosecuting authorities caused the postponement on 1 June 2004.  There is no indication of when it became apparent that special arrangements would have to be made for a Magistrate to preside over the case.  In any event, it seems that all the parties agreed to the postponement on this day.  There is no evidence on the papers as to what the attendant factors were in making such special arrangements for a Magistrate and I am therefore not in a position to determine how long it would reasonably take for such arrangements to be made in the circumstances of this case.  Similarly I cannot find that the postponement on 8 September 2004 was caused by failure on the part of the state to make the necessary arrangements.  I agree that if the Accused needed time to prepare in the light of the altered charges and the court were to grant a postponement on 1 December 2004, blame for the delay caused by such a postponement would be attributable to the state.

22.       Against this background, my view is that the delay attributable to the State cannot be found to be so unreasonable as to justify a permanent stay of the criminal case against the Applicants.

23.       Any postponement and resultant delay in the finalization of the criminal case was bound to result in prejudice to the Accused.  Whilst I understand the emotional and financial prejudice that First Applicant would suffer as a result of a further postponement, particularly as he is self-employed, I cannot find that such prejudice justifies the drastic relief sought by the Applicants.    

24.       I do not, for one moment, agree that the common practice in the district courts for routine postponements for such reasons as further investigations, is a relevant consideration when assessing whether the rights of the accused to a fair and speedy trial guaranteed under the Constitution have been violated.

25.       On the original objection to the charge, Section 84 (1) of the Criminal Procedure Act 51 of 1977 provides that a charge shall set forth a relevant offence in such a manner and in such particulars as to the time and place at which the office is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.

26.       The First Respondent found that the objections raised to the charges did not pertain to failure by the State to set out the charges against the Applicants with sufficient particularity.  He further found that even if that had been the basis of the objection, the court could order the State to amend the charges.  The matter would then be postponed to afford Applicants opportunity to prepare in the light of the amended charges.

27.       I agree with the First Respondent’s view in this regard.

“Ample provision is made for rectifying defective charges and clarifying any vagueness and ambiguity.”

See:               Du Toit and Others; Commentary on the Criminal Procedure Act; at 14-14

28.       My view is that the original charge, as amplified by the extensive further particulars, contains sufficient particulars in regard to the date, place, and person so as to properly inform the Applicants of the case against them in this case.  I am satisfied that the charges are expressed with sufficient detail such that Applicants know the State case that they have to answer to.

29.       What should happen is that all the parties should consult on a mutually suitable date for the trial to proceed.  The State should, then serve a Summons together with what it intends to be the final amended charge sheet on the Applicants.  The court would then order amendment of the charge sheet prior to the Applicants’ pleading.

In the result I order that:

1.         The rule nisi is discharged with costs.

_______________________                               

N DAMBUZA

JUDGE OF THE HIGH COURT                                                    6 April 2006

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