IN THE HIGH COURT OF SWAZILAND
CASE NO. 1772/08
HELD AT MBABANE
MAKHONYA DLAMINI... FIRST APPLICANT
MKD COMPANY (PTY) LIMITED… SECOND APPLICANT
THE DIRECTOR OF
PUBLIC PROSECUTIONS... RESPONDENT
CORAM AGYEMANG J
FOR THE PLAINTIFF: XXX ESQ.
FOR THE DEFENDANT: XXX ESQ.
DATED THE 28TH DAY OF JUNE 2010
In this application the applicants pray for orders in the following terms: An order,
Directing that the proceedings in this court under Criminal Case No. 35/2003 be stayed permanently;
Permanently interdicting the respondent from re-instituting any prosecution against the applicants in respect of the charge set out in the indictment in respect of the said criminal case;
Costs of the application;
Further and/or alternative relief.
The matters giving rise to this suit are these:
In or around 2002, the applicants herein and one other were charged with fraud. In 2003, they were arraigned before the magistrate’s court. The particulars of offence charged that they had acted in furtherance of a common purpose and with intent to defraud the Treasury and Public Works Department. The applicants alleged that on that occasion, an application was made for further particulars of the charge and an order was made accordingly for the respondent to furnish same. It is common cause that after this, the respondent secured an order freezing the bank account of the second applicant held with the Swaziland Building Society. It was alleged that subsequently, the case was removed from the roll when at a hearing it was found that the respondent had failed to comply with the order to supply further particulars. In a subsequent application by the respondent in a suit numbered 35/2003, the respondent was granted an interim order directing that the applicants show cause why the said bank account should not remain frozen.
The applicants were subsequently indicted before the High Court on the same charges in respect of which further particulars had been ordered. Upon an application by one Bunnie Mhlanga co-charged with the applicants, the court presided over by Matsebula J on 13th August 2004 ordered further particulars regarding the charge against the said accused person. Apparently, that order was not complied with. In the absence of the provision of the said further particulars, the court sitting over the case numbered 35/2003, quashed the entire indictment on 19th January 2006. In that order, Mamba J ordered that prosecution may only proceed after such further particulars as were requested had been furnished by the Crown.
The present application has been brought seeking the aforesaid prayers because that order to supply further particulars was never carried out by the respondent who has in a subsequent indictment: Case No. 80/2006, sought to reinstate the said charges and without the supply of the further particulars ordered by both the magistrate before whom the applicants were first arraigned, and the High Court.
It was the case of the applicants that the respondent’s presentation of the case had been inefficient and the source of harassment in that the respondent had failed to furnish the further particulars ordered by the court. The applicants who alleged that there had been undue delay in this case which commenced with the formulation of charges against them in AD 2002, also contended that the respondent’s manner in the prosecution of the case against them had been with the sole intention of harassing or persecuting them rather than in a quest for justice. They alleged the delay in prosecution to be unreasonable having regard to the lack of complexity of the case. The applicants further alleged that the delay had resulted in prejudice to them besides the fact that the lack of precision in the formulation of the charge in respect of which particulars were sought, had caused embarrassment to them and impaired their ability to formulate their defence. The applicants alleged the prejudice resulting from the delay in prosecution to include anxiety associated with criminal proceedings that had been pending since AD 2002, the expense of retaining the services of several attorneys over the period, and their inability to continue to engage attorneys as the case drags on, trial-related prejudice regarding defence witnesses some of whom may have forgotten the facts or simply cannot be located, restriction of the first applicant’s movements by reason of bail conditions that required him to surrender his passport and remain within the jurisdiction.
Learned counsel for the applicants relied on the said matters to invoke S. 35 (1) of the Constitution and thereby, to submit that the applicants had a right to enforce their constitutional right to a fair trial which right ought not to be subjugated to other people’s only because the first applicant had been granted bail. Pointing out that there had been a lapse of six and a half years from the time they were charged in 2002 until the present time, learned counsel contended that the delay in prosecution was unreasonable, for not only was it occasioned without just cause, but that the respondent failed to make reasonable attempts to speed up the process such as availing itself of the provisions of S. 88 bis of the Criminal Procedure and Evidence Act. This, counsel contended, had occasioned the denial of the applicants’ procedural right to be brought to trial within a reasonable period in accordance with S.21(1) of the Constitution. The result of the inordinate delay he contended, was that the applicants had suffered trial-related prejudice.
Regarding what delay may be regarded as reasonable, learned counsel cited for the approval of the court, the case of Moeketsi v. Attorney General, Bophuthetwane and Anor. 1996 (1) SACR 675. In this case some light was shed, to wit, that a reasonable period ought to be determined with regard to such factors as the length of the delay, the reason for the delay, the considerations of delay due to the state, special circumstances relating to the case, delays inherent in the system of justice delivery and delays caused by the accused person.
Learned counsel contended that the respondent’s assertion that Bunny Mhlanga’s request for further particulars was responsible for the delay was untenable, as same was the reasonable exercise of the applicants’ right under S.21(2) (b) of the Constitution to be informed in sufficient detail of the crime he had been charged with.
In his answering affidavit deposed to by the Acting Director of Public Prosecutions on his behalf, the respondent raised points in limine. Arguing the said points, learned counsel for the respondent contended that the non-joinder of the Attorney General was fatal to the instant proceedings. Relying on S. 2 of the Government Liabilities Act of 1967 as well as S. 77(3) (a) and S.77(5) (c) of the Constitution of Swaziland he averred that the requirement of laying a suit against the Attorney General was applicable in casu as it was in respect of all claims against the government and further, was a hallowed practice that recognised the Attorney General as the constitutionally designated principal advisor of the government.
Beyond this, the respondent alleged that the first applicant had no mandate to represent the second applicant a company in the proceedings as no resolution granting such authority had been exhibited.
These arguments were countered by learned counsel for the applicants who contended that the Government Liabilities Act of 1967 was inapplicable in the present instance as it was concerned with civil suits brought against Government Departments. Submitting that in casu, the respondent could be cited standing alone and not through the Attorney-General, he contended that the suit was properly brought against the respondent who had the constitutional mandate to institute all criminal prosecutions in the country in accordance with S.162 (4)(a-c) and S. 162 (6)(b) and was thus a competent party.
On the second leg, learned counsel supported his submission that the first applicant was properly authorised to bring this suit on behalf of the second applicant, by exhibiting a company resolution dated 17th June 2008.
On the merits of the suit, it was deposed on behalf of the respondent, that it was in the public interest that the applicants face trial. Refuting the allegation that the prosecution was a ploy to harass the applicants, the deponent averred that the case pending before the High Court was only a reinstatement of charges regarding which the respondent was ready both to supply further particulars should the applicants so request, and also, to prosecute. Denying that the applicants herein had made any request for further particulars which the respondent had not complied with, the deponent alleged that when the applicants were arraigned before the High Court, it was rather Bunny Mhlanga their co-accused who made such a request which request was allegedly complied with only to have what was supplied rejected by the court as inappropriate. At first denying that the prosecution had been delayed, the respondent conceded that there had been some delay which he blamed on such matters as the allegedly incessant demand of the said Bunny Mhlanga for further particulars, the congestion of the court’s roll over which the respondent had no control, and the giving of priority to the prosecution of incarcerated accused persons over persons out on bail.
The respondent averred that no prejudice would result in the continued prosecution of the applicants as defence witnesses could be located by the Police and furthermore, could refresh their memories from recorded statements. Nor, he contended, could anxiety be avoided as it was a normal consequence of a criminal charge against a person.
Learned counsel for the respondent contended that there was no delay or alternatively, that what delay obtained was not unreasonable. In this regard, learned counsel contended that the quashing order of Mamba J was that the charges against the applicants were void ab initio and consequently, criminal charges were no longer pending against them. Reinforcing his argument with the dictum of Winn J in Hancock v. Prison Commissioners  3 All ER 513 at 514, he canvassed that when the charges were quashed, the preceding proceedings were done away with, and the clock was no longer ticking hence, there was no delay at all.
Learned counsel submitted, relying on the dictum of Kriegler J in Sanderson v. Attorney General Eastern Cape 1998 (2) SA 40, that this circumstance opened up other remedies to the applicant including a prayer for an order of mandamus to compel the respondent to supply the further particulars and recommence the process of prosecution rather than the drastic prayer of a permanent stay of prosecution made in casu.
Learned counsel contended also that the applicants were not without blame regarding the delay in prosecution. He blamed the applicants for postponements that resulted from the absence of the first applicant or his counsel, some applications made by them, and the applications for further particulars which had resulted in the quashing of the indictment. The postponements, he averred, led to the matter being sent to the Registrar’s Office and out of the control of the respondent regarding its enrolment. These matters counsel argued indicated that there was no unreasonable delay in the prosecution.
Lastly learned counsel submitted that although the applicants may have suffered social prejudice (which was the unavoidable consequence of criminal prosecution), the applicants had not made out a case of trial-related prejudice as they failed to set out definite prejudice such as which witnesses could not be located or had lost their memories and how that would significantly affect their defence.
Learned counsel prayed that the application be dismissed with costs.
At the close of the arguments and having regard to the affidavits herein, the following issues remained to be determined:
Whether or not the non-joinder of the AG is fatal to the success of this suit;
Whether or not the noncompliance by the prosecution of the order to supply further particulars should bar them from proceeding with the prosecution;
Whether or not there has been unreasonable delay in the prosecution;
Whether or not there has been trial-related prejudice;
Whether the applicants are entitled to the prayers sought.
Is the non-joinder of the Attorney General fatal to this suit? The respondent in argument relies on S. 2 of the Government Liabilities Act of 1967 to say that the duty to cite the Attorney General in a suit against a government department, applies to all claims including criminal matters. The said S. 2 reads:
“Any claim against the Swaziland Government which would if it had arisen against an individual person or corporate body, be the ground of an action in any competent court, shall be cognisable by any such court whether the claim arises or has arisen out of any contract lawfully entered into on behalf of the Government or out of any wrong committed by any servant of the Government...”
As the name suggests, that legislation is concerned with where a suit imputing liability is brought against a Government department. The wording also makes it clear that the claims referred to are either founded on contract or delict. S. 77(3) (a) of the Constitution indeed makes the joinder of the Attorney General imperative in claims against Government Departments; yet I am of the view that a suit against the Director of Public Prosecutions (the person with the constitutional mandate to institute all criminal proceedings), not imputing liability, but seeking an order that either constrains that official to, or restrains him from performing his work need not cite the Attorney General as a party. The requirement to join the Attorney General in the instant suit is thus applicable in the present instance.
As for the point raised over the first applicant’s lack of the authority to bring the action, same has been rendered moot with the exhibiting of a resolution by the first applicant upon the challenge of the respondent. Although the resolution exhibited was dated 17th June 2008, that is, days after the application was filed in this court, it seems to me that a ratification of the suit by its directors is sufficient acknowledgment thereof and will constitute sufficient evidence of authorisation. There the matter must rest. This is because, to prove such authorisation a company resolution is not always necessary. Per Joubert’s The Law of South Africa 3 Ed. Civil Procedure and Costs p.74 at pp138, “the annexing of a copy of the resolution itself is not always necessary but sufficient proof under the circumstances that the application was properly authorized should be laid before the court. …the doctrine of unanimous consent may provide sufficient authority”, see also South West Africa National Union v. Tjonzongoro and ors 1985 (1) SA 376 SWA citing with approval, Dowson & Dobson Ltd v. Evans & Kerns (Pty) Ltd 1973 (4) SA 136; Thelma Courts Flats (Pty) Ltd v. McSwigin 1954 (3) SA 457.
With regard to the alleged unreasonable delay, there is no gainsaying that there has been some delay in the prosecution of this matter, and that the respondent has been negligent in the performance of its duty which is to comply with the order to furnish further particulars to the applicants. There is also no denying that the respondent’s assertion that it was the demand for further particulars by the applicant’s co-accused which brought about the delay, is no more than a lame, vain, and unreasonable attempt to make the applicants share in their blame. Having regard also to the history of this case as it relates to the non-prosecution, I am persuaded that the respondent was completely at fault in the delay that resulted from his failure to supply the further particulars ordered by the court. But it was not enough for the applicants to show that there was delay in the prosecution of the charge laid against them. It had to be demonstrated that the delay was unreasonable and furthermore, that the applicants had suffered prejudice thereby. The facts are that the charge against the applicants was laid about six years before the present application was commenced. There does not appear to be any real reason for the delay, the respondent failed to address the court on the reason for his failure to supply particulars ordered, which were intended for the co-accused of the applicant to prepare his defence.
On the admission of the respondent, the respondent made three court appearances between 2003 and 2006; the matter remains thus: that the respondent failed to comply with the order of the court to supply the further particulars applied for by one of the accused persons.
The conduct of the respondent may not have been so reprehensible if he had not been penalised for it. Although the respondent in his answering affidavit denied that the matter was ever postponed or removed from the roll at the magistrates court for his failure to supply further particulars applied for, there is no denying that before the High Court, the order was made and that the respondent failed to comply with it leading to a further order quashing the indictment. That even at the present time, the said particulars have not been furnished cannot be glossed over.
The respondent, basing his arguments on the legal effect of Mama J’s quashing order, contends that the present charge laid against the applicants is not a reinstatement of the charges that were quashed. By this argument, he submits that there was no continuing time that would amount to delay in the prosecution. The argument is certainly disingenuous, for there is no denying that the charge contained in the instant indictment remains the same as the one on which the applicants were arraigned at the magistrate’s court That charge was no doubt the same one that Mamba J, manifestly exasperated over the respondent’s conduct of non-compliance with the court’s order, made an order quashing same.
I am in no doubt that the present charges are a reinstatement of the prior charges done in disregard of the order of the High Court which restrained the respondent from so doing without a furnishing of the further particulars ordered.
Yet it seems to me that for the prayers sought herein to be granted, thus shutting the door permanently on the prosecution of the applicants on the said charges, the applicants had to demonstrate that beyond reprehensible conduct bordering on contempt of the court in the respondent’s conduct of persisting in the charges without due compliance with the court’s order, the respondent’s conduct had brought about a state of affairs that would deny the applicants a fair trial. This included a demonstration that the applicants had suffered trial-related prejudice. It is only under such circumstances that the court in weighing the right of the society to, on one hand, frown on and demand an answer from the applicants through prosecution, against the rights of the applicants not to be unfairly prejudiced by being denied a fair trial, may find in favour of the latter.
The assertion of the applicants that the respondent’s delay to prosecute them had resulted in the engagement of a multiplicity of lawyers at great expense, that some witnesses would not be located or had forgotten part of their testimony, would have sufficed in this enterprise had they provided some detail and specific information that would have given credence thereto. In the absence of such, they remained mere general assertions incapable of moving the hand of the court to grant so drastic a remedy as is being sought in the present application.
I have no doubt that the delay in prosecution must have resulted in considerable uncertainty to the applicants over their fate. I bear in mind also that while social prejudice accompanying criminal prosecution may be inevitable, it need not be prolonged without just cause. Yet it is my view that persuasive though the applicant’s case may be, the applicants’ allegation that the respondent’s manner in the prosecution of the case against them demonstrated that his sole intention was to harass or persecute them rather than a quest for justice, has not been made out. Such evidence as is contained in the affidavits is not such as should close the door permanently on the prosecution of this case, especially where the respondent is in a position to remedy the situation. Furthermore, the onerous bail condition which has restricted the first applicant’s movements may be varied. It is regrettable that this court in the exercise of its civil jurisdiction cannot make orders varying bail conditions in that criminal case. I have no reason to believe that an application made by the first applicant for such variation, will be opposed by the respondent given the conduct of the respondent in this matter. To the extent that the respondent may remedy the situation through compliance with the court’s orders, the application must fail.
In consequence I go ahead to make the following orders:
The respondent is to furnish the further particulars ordered by this court presided over by Matsebula J on 13 August 2004 within ten days of this order;
In the absence of such compliance within the period specified, the prayers sought in the instant application will stand as granted.
The respondent will pay the applicants’ costs of suit.
MABEL AGYEMANG (MRS.)
HIGH COURT JUDGE