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Case  CCT232/17 & CCT207/18
[2020] ZACC 22

Judgement Date: 16 September 2020

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 16 September 2020 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the High Court of South Africa, Free State Division, Bloemfontein. The High Court convicted the applicants of different offences which included: racketeering, theft, and the acquisition, possession, or disposal of unwrought gold. For this, the applicants were sentenced to imprisonment for periods ranging between ten to fifteen years.

The background to the case is as follows: in February 2002, the South African Police Services implemented a National Investigating Task Team. Its object was to identify gold and platinum smugglers in the assigned areas. In Klerksdorp, its efforts were met with success when the applicants were found to have allegedly been involved in the running of operations that refined and sold unwrought gold.

The applicants were then arrested and charged with 133 counts, in particular, for contravening sections 2, 4, 5 and 6 of the Prevention of Organised Crime Act, sections 143 and 145 of the Mining Rights Act, as well as section 4 of the Precious Metals Act. In addition, they were charged with theft. They were then tried in the High Court where they all pleaded not guilty and elected not to disclose the basis of their defence. The proceedings spanned a six-year period from 2008 to 2014. The trial commenced in June 2012 and ended in October 2014, during which several postponements at the instance of the applicants were granted. This was ostensibly to seek funds to procure the services of their preferred legal representative. At some stage, the High Court eventually facilitated access to free legal assistance for the applicants. This was initially accepted but later refused as the applicants maintained that they sought to engage the services of their preferred legal representative. Following continued delays emanating from this, the High Court, in August 2014, issued an order that the accused cases were deemed closed as the unreasonable delays constituted exceptional circumstances as required by section 342(A)(3)(d) and (4)(a) of the Criminal Procedure Act.

An application for leave to appeal to a Full Court of the High Court was refused. They then proceeded to petition the Supreme Court of Appeal for leave to appeal but were unsuccessful. Mr Ramabele lodged an application for the reconsideration of the order in terms of section 17(2)(f) of the Superior Courts Act. That application was dismissed on 12 September 2016 on the basis that there were no exceptional circumstances that would justify leave to be granted.

The applicants approached the Constitutional Court for leave to appeal. This matter was determined without a hearing. The applicants submitted that their right to a fair trial, in particular, section 35(3) of the Constitution had been infringed on the grounds that: the trial Court did not properly evaluate the evidence; the trial Judge was biased as he did not grant a postponement to allow them to prepare their defence or seek funds to engage the services of a legal representative of their choice; and the consequences of section 342A were not explained to them.

The central question before this Court was whether the refusal of an application for a further postponement of a trial in order for accused persons to earn and save funds to secure their preferred legal representation amounts to an infringement of their fair trial rights. Further, at what stage may a Court invoke the provisions of section 342A of the Criminal Procedure Act in relation to the facilitation of a fair trial, particularly for unrepresented accused persons.

In a unanimous judgment penned by Mhlantla J (with Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majiedt J, Tshiqi J and Victor AJ), the Constitutional Court held that the matter engaged this Court’s jurisdiction as constitutional issues were raised and it was in the interests of justice to grant leave to appeal.

In respect of the question whether the failure to grant a postponement for the purposes of seeking funds to obtain preferred legal counsel infringed on the accused’s fair trial rights, this Court held that there was no right to have an ongoing trial postponed for a lengthy period to allow an accused an opportunity to acquire income to secure the services of a preferred legal representative and this was beyond the bounds of reasonableness. On the issue of bias, the question is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. In this regard, this Court held that the trial Judge had shown an ability to consider the facts and objectively analyse them.

This Court also considered whether the procedural content of section 342A of the Criminal Procedure Act was properly explained and followed, particularly in respect of unrepresented accused persons. This section empowers a court to make any such order, including one to close the defence case, where it has, upon an inquiry, found that an unreasonable delay or prejudice in proceedings may result. In this case, this Court found that a proper reading of section 342A reveals that the section requires an investigation into the reasonableness of the delay and in this instance the delay was unreasonable. This Court then had regard to whether exceptional circumstances existed to justify closing the defence case. It concluded that this was so, due largely to the unreasonable conduct of the applicants during the trial. Finally, this Court held that the provision and its consequences were fully explained to the applicants. Therefore, the appeal was dismissed.

The Full judgment  here