The State v Hendrik Frederick Delport and 7 others
25 June 2013
Posted by: Author: SAIT Technical
Author: SAIT Technical
This case was initiated by an appeal lodged by the State against a
decision made in a regional magistrate sitting in the regional court of
The magistrate allowed the eight Respondents to make a plea in terms of
section 106(1)(h) of the Criminal Procedure Act after the State closed its
case. The eight Respondents were (together with six other accused persons)
accused of 7 239 charges that included fraud and contraventions of:
- section 2(1)(a) of
the Prevention of Organised Crime Act nr 121 of 1998 for the involvement
in racketeering activities
- the Customs and
Excise Act nr 91 of 1964 for exporting goods to a destination other than
the one indicated at the time of clearance of the goods for the export.
- the Value-Added Tax
Act nr 89 of 1991 for submitting false returns claiming refunds or
- the Riotous Assembly Act nr 17 of 1956 for conspiracy to commit fraud.
The above charges relate to an alleged unlawful enterprise that
was allegedly commenced and continued by the Respondents during the period May
1998 to March 2002. The common purpose and aim with this enterprise was to
obtain, unlawfully and intentionally, certain tax benefits and/or to avoid the
payment of any tax having allegedly given rise to a loss to the South African
Revenue Service (SARS) and/or the fiscus.
The eight Respondents pleaded not guilty on the above charges but were
not discharged when the magistrate delivered his judgement. Subsequently, the
Respondents added an additional plea (in terms of section 106(1)(h) of the
Criminal Procedure Act) in which they stated that the prosecutors (representing
the State) did not have the necessary authority to prosecute in this case. They
opposed that, because of these appointments, the prosecution will not be
conducted without fear, favour or prejudice as is required by the National
Prosecuting Authority Act.
The magistrate acquitted the Respondents on these grounds and stated
that the Respondents were entitled to change their pleas at that stage of the
proceedings (after the State closed its case).
The State lodged an appeal against the magistrate’s judgement in terms
of section 310 of the Criminal Procedure Act. They were of the opinion that the
magistrate took a narrow and particularly legalistic approach when he
considered the relevant legislation and that the Respondents did not have
sufficient grounds to succeed with a plea in terms of section 106(1).
Furthermore, they argued that there were no allegations or indications during
the proceedings that one of the two councils (representing the prosecution) had
any unjustified regard towards the interest of SARS.
The High Court concluded that the prosecutors were duly authorized to be
engaged in the proceedings in terms of section 38 of the National Prosecuting
Act and that their appointment could not result into an unfair trial.
Furthermore it was determined that the Respondents was not entitled to raise a
plea in terms of section 106(1)(h) after the trial commenced. There was also no
legal requirement on the prosecution to be authorized in terms of section 20(5)
and (6) in addition to their "engagement” and additionally they are not
required to take an oath under section 32.
The above findings contradicted the
magistrate’s interpretation of the applicable legislation and therefore its
judgement was set aside. As a result, the High Court refused to grant the
Respondents’ applications to change their pleas from not guilty to a plea in
terms of section 106(1) of the Criminal Procedure Act.
Please click here to access the full case.