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Porritt & another v The NDPP & others (978/13) [2014] ZASCA 168 (21 October 2014)

11 November 2014   (0 Comments)
Posted by: Author: Pieter Faber
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Author: Pieter Faber (SAIT Technical Executive: Tax Law & Policy)

Introduction

This case is an appeal to the Supreme Court of Appeal by the first and second appellants Gary Porritt (1st appellant) and Susan Bennet (2nd appellant) against part of the judgement delivered in the South Gauteng High Court in 2012. In those proceedings the appellants challenged the right of Mr. Ferreira, the prosecutor, and Advocate Coetzee, the legal counsel he appointed to assist, to conduct the criminal prosecution against them on behalf of the National Prosecuting Authoring (‘NPA’), including for multiple tax offences.

Facts

The appellants were indicted in 2004 after being arrested in December 2002 and March 2003 respectively, on various charges of fraud, racketeering and tax offences. They appeared in the South Gauteng High court on 5 March 2012. The senior prosecutor, Mr. Ferreira, on proposal by SARS, appointed Adv. Ferreira to assist, who had previously assisted SARS with investigations against the appellants. SARS also paid for counsel to assist the NPA. 

The appellants sought to demand acquittal on the charges in terms of a plea in terms of section 106(1)(h) Criminal Procedure Act 51 of 1977 (‘CPA’), namely that the prosecutor had no title to prosecute, on the basis of two challenges. The first ground to challenge the title to prosecute was that Adv. Coetzee’s appointment did not conform to the requirements of section 38 of the NPA Act, namely that the appointment of suitably qualified persons as prosecutors for specific cases must be in consultation with the Minister of Justice if such person’s appointment has financial implications, such as having to be paid.

The second challenge was against both persons’ right to prosecute them on the basis that it was in breach of the appellant’s right to a fair trial as set out in section 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 affidavit 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, the latter who was previous involved in criminal and civil litigation against the appellants in their personal capacities and entities linked to them. In all instance he was either representing SARS or the NPA.

The High Court dismissed the first challenge on the basis that there were sufficient 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 of drafting the relevant affidavit 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 section 106(4) of the CPA as the removal was akin to a recusal of a presiding officer, namely not based on impropriety by the prosecutor and was therefore 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 section 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 section 106(1)(h) of the CPA as the appellants did not have to plea 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 section 106(1)(h) of the CPA and that the appellants were therefore not entitled to demand acquittal in terms of section 106(4) of the CPA.    

Question of law: Role of prosecutors

The NPA submitted that the first 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 the prosecutor. The judiciary are the decision makers of the adversarial system. The prosecutor’s role is to decide what evidence is credible that it wants to 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 efficiently with an ingrained sense of dignity and the justness of judicial proceedings. This role the court cites the following obiter dictum with approval at par [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 firmly, 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 prosecutors 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 section 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 par [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 confidence 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 disqualified if there is an inherent danger of unfairness such as that the prosecutor will not have due regard to 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 flow 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 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 appellants appeal was dismissed and the question of law is answered in favour of the state, with each party to pay its own costs. 

Please click here to view judgement.


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