Prosecuting authority — National Director of Public Prosecutions — Authorisation in terms of s 2(4) of Prevention of Organised Crime Act 121 of 1998 to charge person with commission of offences contemplated in s 2(1) — Challenge to legality of authorisation — Challenge correctly brought as separate application before trial, especially where applicant one of many accused and he was only one in respect of whom authorisation was made.

Prosecuting authority — National Director of Public Prosecutions — Authorisation in terms of s 2(4) of Prevention of Organised Crime Act 121 of 1998 to charge person with commission of offences contemplated in s 2(1) — Challenge to legality of authorisation — No information in dockets or additional statements relied on by NDPP justified authorisation — Decision not passing even least stringent test of rationality — Authorisation set aside.

The applicant applied for an order to review and set aside two written authorisations to charge him with contraventions of s 2(1)(e) and (f) of the Prevention of Organised Crime Act 121 of 1998 (POCA) and the decision to prosecute him on further counts. He based his application directly on the Constitution and in particular on the principle of legality. It was alleged by the respondents in respect of the first two counts that the applicant participated in the conduct of an enterprise through a pattern of racketeering activity and managed the operations of the enterprise. This had been done whilst he was in charge of a specialised police unit. In respect of the remaining five counts the respondents alleged his criminal activity was conducted with certain other members of the police under his command, comprising murder, housebreaking with intent to commit murder, assault, defeating or obstructing the course of justice, and unlawful possession of firearms and ammunition. The trial had not yet commenced. The respondents raised a point in limine to the effect that it was the trial court which was to determine an application such as the present and that the application was accordingly premature. As regards the merits of the application, the applicant contended that, notwithstanding the compliance with the formalities of POCA, the first respondent had to have adequately assessed the sufficiency and admissibility of evidence to provide reasonable prospects of a successful prosecution. The applicant submitted that the decision to authorise the prosecution lacked a rational basis since, at the time that it was made, the material relied on by the NDPP could not, viewed objectively, support a decision to prosecute him for those offences. He submitted that the material did not include any evidence at all of his having contravened the relevant provisions of POCA. It appeared that in respect of 23 dockets relied upon by the NDPP, the applicant was mentioned in only two. Of 290 statements in all of the dockets, only three statements even mentioned him: two of the statements said he arrived at the scene of a shooting by helicopter after the event and the third stated that he was noticed on the scene of a shooting after it had taken place. The first respondent attached four statements to her answering affidavit which she claimed she had relied upon prior to having made the impugned decision. The respondents conceded in argument that no statements contained in the dockets implicated the applicant in any of the offences with which he had been charged. As regards the additional statements that emerged via the answering affidavit, one had been made after the impugned decision had been taken; one was not even a sworn statement or even dated or signed; and the others did not implicate him in any other way. Despite the applicant’s assertion in his replying affidavit that the NDPP was mendacious, there was no response to this by the NDPP.

Held, as regards the point in limine, that although a proliferation of applications brought prior to a criminal trial had to be discouraged, issues raised in the application could and should be dealt with prior to the commencement of the trial. For the counts under POCA to be valid, the authorisations had to be valid. If they were not valid they could be reviewed and set aside. In addition, because the application related to only one of a number of accused persons, it could most conveniently be dealt with in a separate application which did not affect the conduct of the trial. In the present narrow instance the court was the appropriate forum and the appropriate procedure had been adopted. The point in limine was accordingly dismissed.

Held, further, as regards the merits of the application, that in the absence of a reply by the NDPP to the applicant’s assertion of mendacity on her part, the court was entitled to draw an inference adverse to her. Most significantly, the inference had to be drawn that none of the information on which she said she relied linked the applicant to the offences in question. This meant that the documents on which she says she relied did not provide a rational basis for the decisions to issue the authorisations to charge the applicant for contraventions of s 2(1)(e) and (f), respectively.

Held, further, that it was not necessary to attempt to set a threshold for the rationality test applicable to the decision to issue authorisations to prosecute under s 2(4) of POCA. Even accepting the most stringent test for rationality imaginable, the decision of the NDPP did not pass muster. The impugned decisions were arbitrary, offended the principle of legality, and therefore the rule of law, and were unconstitutional. The impugned decisions were accordingly declared invalid.