PROCEDURE FOR REMOVAL OF PROSECUTOR BASED ON APPREHENSION OF BIAS

PORRITT AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS 2015 (1) SACR 533 (SCA)
Plea — Prosecutor has no title to prosecute — Removal of prosecutor — Lack of title to prosecute in terms of s 106(1)(h) of Criminal Procedure Act — Effect of plea — Doubtful that it would result in acquittal — Removal of prosecutors in instant case not for want of title but of apprehension that biased.
Prosecution — Prosecutor — Powers and duties of — Role of prosecutors in criminal trial could not be equated with that of magistrates or judges: their duties, functions and responsibilities were different — Contention that involvement of prosecutor would compromise accused’s right to fair trial simply because he had previously assisted in litigation to which accused was linked, could not be sustained.
The appellants were facing more than 3000 counts involving commercial crimes, racketeering and fraud. They tendered a plea in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (CPA), alleging that the prosecution team, which consisted of two advocates, E Coetzee SC (an advocate practising at the Pretoria Bar) and J Ferreira (Senior Deputy Director of Public Prosecutions at the Specialised Commercial Crime Unit), had no title to prosecute. The complaint against Coetzee was that he had been involved in cases involving the appellants, and the complaint against Ferreira was that he had assisted in the drafting of an affidavit in support of an application for the liquidation of a company in which the first appellant was involved, and that he had supported the appointment of Coetzee to the prosecution team. The court upheld the plea, holding that there was no reasonable explanation before the court why, as a prosecutor, employed with the National Prosecuting Authority (NPA), Ferreira would be involved in drafting an affidavit in respect of a civil matter. Having regard to the contents of the affidavit his role in the appointment of the third respondent, Coetzee’s conduct, reasonably created a perception of bias. However, the court did not accept that it followed that the appellants were entitled to an acquittal: the court merely ordered that in the event that the NPA proceeded with the prosecution it would have to appoint different prosecutors. The appellants appealed against the decision not to acquit them and the National Director of Public Prosecutions successfully applied for the reservation of a question of law in terms of s 319 of the CPA, namely as to the legal test to be applied, either in terms of s 106(1)(h) of the CPA or the common law, for the removal of a prosecutor; and whether the test was correctly applied by the trial court on the facts as found by the court. In respect of the appellants’ appeal, their counsel contended that, once the court upheld their pleas for the removal of the prosecutors on the basis that there was tension, as prosecutors in the case would infringe their fair trial rights entrenched in s 35(3) of the Constitution, it should have acquitted them in terms of s 106(4) of the CPA.
Held, that the decision of the court a quo to remove the prosecutors was not based on their lack of title but rather that there was an apprehension on the part of the appellants that the prosecutors were biased. It could not be said that where a prosecutor was found to be biased his or her removal would be based on a lack of title to prosecute. It was not necessary for the appellants to place reliance on s 106(1)(h) for their application for the removal of the prosecutors on the basis that they were biased. The appellants did not have to tender a plea in order to place that objection before the court. The removal of the prosecutors was not grounded on a lack of title in terms of s 106(1)(h) and they were therefore not entitled to demand an acquittal in terms of s 106(4) of the CPA. It was in any event doubtful whether such a plea, where an accused had not pleaded on the merits of the matter, entitled such an accused to an acquittal.
Held, further, as to the question of law reserved, that the appellants’ argument that the involvement of Ferreira would compromise their right to a fair trial simply because he had previously assisted in litigation to which the appellants were linked, could not be sustained. There were no allegations of impropriety on his part in the course of the previous litigation or during the course of the present proceedings. There was no suggestion of conduct on his part that could have constituted a basis for the existence of a reasonable apprehension in the minds of the appellants that he was biased against them. That he at all times performed his normal duties as a prosecutor and senior official of the NPA was uncontroverted. They could not be removed simply because they were not independent of the complainant which in the present case was the state. The fact that Coetzee was linked to Sars, another component of the state, could not be held to be a basis for his removal from the case. He too was not alleged to have conducted himself in an improper manner at all and their previous roles would not per se bring about substantive unfairness in the ensuing trial.
Held, further, that the role of prosecutors in a criminal trial could not be equated with that of magistrates or judges: their duties, functions and responsibilities were different, and the test applied by the court a quo was that for the recusal of a judicial officer, and was the wrong test.
Held, further, that the appeal had to be dismissed and the question of law reserved answered in favour of the state. The matter was remitted to the court a quo for it to proceed with the criminal trial.

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