Appeal — In what cases — From decision in high court remitting matter to magistrate’s court for continuation of trial — General rule against permitting piecemeal appeals — Objection to prosecutor’s title to prosecute, if upheld, would not necessarily lead to nullification of trial — No prejudice to accused — Appeal in any event not on any of grounds permitted by court granting leave to appeal — Appeal struck from roll.
Appeal — Against remittal order — Whether order of high court (sitting as a court of appeal), remitting matter to magistrate for trial to continue, appealable — Authority of prosecutor to prosecute challenged five years after commencement of trial — Whether in interests of justice for appeal to be entertained — No unusual circumstances — Remittal order not appealable — Whether Supreme Court of Appeal has jurisdiction to entertain appeal where leave is granted by high court on specific rather than general grounds — Appeal struck from roll.
The appellants were granted leave to appeal by the high court against a finding that their case had to be remitted to the magistrates’ court to be continued, as the appointment of the prosecutors substantially complied with the provisions of the National Prosecuting Authority Act 32 of 1998 (the NPA Act). The matter had come before the high court by way of an appeal by the state against a finding by the magistrate in the trial that had run for five years. It was only after an application for the discharge of all the accused at the end of the state’s case was partly successful, in that 5 of the 13 accused were discharged, that the remaining 8 accused (the appellants) raised for the first time the issue that the authority of the two prosecutors to conduct the prosecution was irregular. They claimed, inter alia, that the lead prosecutor (senior counsel practising at the Pretoria Bar) was being paid by Sars, the complainant in the criminal trial, and the other prosecutor was an advocate in the full-time employ of Sars. The magistrate found that the appointment of the two counsel gave rise to a reasonable perception that they would not conduct the prosecution fairly. The magistrate then ordered that the matter be referred to the high court for special review. The high court found, without considering the merits, that there were no proper grounds for the magistrate to have referred the case for review before the conclusion of the trial, and it accordingly remitted the matter for the trial to continue. In November 2011 the appellants sought to file an application to amend their earlier not guilty plea by introducing a special plea, purportedly in terms of s 106(1)(h) of the CPA, challenging the prosecutors’ title to prosecute the trial. The magistrate upheld the appellants’ contentions and held that the appellants were entitled to amend their pleas to challenge the authority of the prosecutors, and their acquittal in terms of s 106(4) of the CPA then had to follow. The state appealed against this decision to the high court, which held that the documents signed by the Director of Public Prosecutions and handed in by the state at the commencement of the trial, indicating that the prosecutors had been engaged in terms of s 38 to conduct the prosecution, substantially complied with the requirements of the NPA Act. This finding, it said, disposed of the appeal and it remitted the matter again for the trial to continue. The appellants then applied for leave to appeal against this ruling and the court granted leave specifically on six legal issues, but the leave granted made no reference to the court’s finding that the appointment of the prosecutors substantially complied with the NPA Act.
Held, that the general rule, underpinned by s 35(3)(d) of the Constitution, was against permitting piecemeal appeals. It was therefore in the interests of justice that criminal trials should commence and be completed without unreasonable delay and that appeals should not be entertained before the trial was completed. However, in unusual circumstances a departure from the general rule might be required. The general rule therefore required a remittal order not to be appealable, unless unusual circumstances warranted it. Held, further, that, if the contention by the appellants, that, even if the objection to the prosecutors’ title on the ground of standing were bad, the fact that their appointment was irregular nullified the proceedings, were to be upheld, it would mean that the trial would have to commence de novo. This submission was preposterous and the question in regard to irregularities was whether they had resulted in a failure of justice. Bearing in mind that irregularities did not in and of themselves lead to a failure of justice, there was little likelihood of the court holding that they would in the present circumstances.
Held, further, that the appellants had not claimed that they suffered any trial-related prejudice by the irregular appointment of the prosecutors, and any other prejudice they may have suffered would have been of their own making. They had not objected to the appointment of the prosecutors at the outset or required the prosecutors to prove their authority. They had taken the point that they were not properly appointed seven years into their trial and after they had unsuccessfully applied to be discharged at the end of the state’s case. The real prejudice occasioned by all the delays had been to the state.
Held, further, that for the courts to allow a piecemeal appeal in the present circumstances would produce an intolerable situation. The only unusual thing about the trial was that it was unusual for a criminal trial of this nature to take longer than a decade to be completed. Held, further, that there was another reason why the appeal was not properly before the court, and that was that the High Court had granted leave on very limited grounds which did not include its principal finding that the appointment of the prosecutors substantially complied with s 38 of the NPA Act. This meant that the court had no jurisdiction to consider the appeal. The appeal was accordingly struck from the roll.