Page 776 - SAIT Compendium 2016 Volume1

CASE DIGEST 2013–2014
be in consultation with the Minister of Justice if such person’s appointment has nancial implications, ie if that person for instance has to be paid.
The second challenge was against both persons’ right to prosecute the accused on the basis that it was in breach of the appellant’s right to a fair trial as set out in s 35 (3) of the Constitution, as the prosecutors did not meet the standard of serving impartially or without prejudice. This challenge was based on the fact that Mr Ferreira had previously assisted in drafting an af davit for the appellants in support of liquidating a company they were involved in. Advocate Ferreira, it was alleged, was also tainted by supporting the appointment of Adv Coetzee, who had previously been involved in criminal and civil litigation against the appellants in their personal capacities and entities linked to them. In all instances he was either representing SARS or the NPA.
The High Court dismissed the rst challenge on the basis that there was suf cient consultation with the Minister and that there were no irregularities in the appointment of Adv Coetzee. The court upheld the second challenge on the basis that Ferreira’s actions regarding the drafting of the relevant af davit and his role in appointing Adv Coetzee reasonably creates a perception of bias or partiality. Notwithstanding the court’s order for the removal of the prosecutor and his legal counsel, the court held that the appellants were not entitled to an acquittal under s 106 (4) of the CPA as the removal was akin to a recusal of a presiding of cer; it was therefore not based on impropriety by the prosecutor and was not dispositive of the merits of the matter.
The appellants appealed against the decision not to acquit them. The NPA also reserved two points in law on the matter to be heard on appeal, namely the question of what legal test is to be applied in terms of s 106 (1) (h) or the common law for the removal of a prosecutor and, secondly, whether this test was properly applied by the high court.
Held
Acquittal for lack of title to prosecute
The court stated that the removal of the prosecutors was not factually based on s 106 (1) (h) of the CPA as the appellants did not have to plead to have the prosecutors removed on the basis of bias. The court held that factually the appellant’s application was based on their apprehension of bias and not being actually prejudiced by bias, but that the two matters were argued together by agreement of the relevant legal counsels. The court held that the removal of the prosecutors by the High Court was therefore not in terms of s 106 (1) (h) of the CPA and that the appellants were therefore not entitled to demand acquittal in terms of s 106 (4) of the CPA.
Question of law: Role of prosecutors
The NPA submitted that the rst question to answer was whether the role of prosecutors should be equated with the role of magistrates. The court stated that there is a fundamental difference between the role and functions of the judiciary and those of prosecutors. The judiciary are the decision makers of the adversarial system. The prosecutor’s role is to decide what evidence is credible and can be put in front of the court as evidence of the alleged crime, which makes it inevitable that there would be perceived bias. This role must be performed ef ciently with an ingrained sense of dignity and the justness of judicial proceedings. In respect of this role the court cites the following obiter dictum with approval at para [13]:
‘In our practice it is not the function of a prosecutor disinterestedly to place a hotchpotch of contradictory evidence before a court, and then leave the court to make what it wills. On the contrary, it is the role of the prosecutor rmly, but fairly and dispassionately, to construct and present a case from what appears to be credible evidence, and to challenge the evidence of the accused and other defence witnesses, with a view to discrediting such evidence, for the very purpose of obtaining a conviction. That is the essence of a prosecutor’s function in an adversarial system that is not peculiar to South Africa.’
The court stated that the protection of the accused does not lie in the general standard of impartiality and independence of all prosecutors, but in the right to a fair trial in s 35 (3) of the Constitution, which does not include a right to an independent or impartial prosecutor. This right is explained in the following approved dictum at para [14]:
‘The right to a fair trial requires a substantive, rather than a formal or textual approach. It is clear also that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires fairness to the public as represented by the state. It has to instil con dence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of the crime.’
A prosecutor may well be disquali ed if there is an inherent danger of unfairness such as that the prosecutor will not have due regard to the basic rights and dignity of the accused. The court held that there was no impropriety by Adv Coetzee and that no impropriety existed merely because SARS proposed and paid him, as SARS’ interest was no more than that of the NPA, which interest is enforced on behalf of the public. The court held that unfairness does not ow axiomatically from the dual role of investigator and prosecutor and there must be allegations of actual impropriety during the current or previous proceedings. The court held that the facts presented no evidence of impropriety by Mr Ferreira or Adv Coetzee and that the previous roles would not constitute substantive unfairness in the trial.
The court concludes that the high court had erred by applying the test for impartiality of magistrates to prosecutors and not the test as approved regarding whether from the facts, the perceived bias of the prosecutor will result in substantive unfairness to the accused at the trial. Accordingly the appellant’s appeal was dismissed and the question of law was answered in favour of the state, with each party to pay its own costs.
22. Roshcon (Pty) Ltd v Anchor Auto Body Builders CC (49/13) [2014] ZASCA 40 (31 March 2014)
Introduction
This case considers who was the true owner of ve trucks which were acquired by the appellant through a series of transactions, where the supplier and oor plan agreements reserved ownership, as security, for the nancier of the
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