IN THE HIGH COURT OF SWAZILAND
Held at Mbabane Case No.: 559/2017
In the matter between
THOKOZILE LINDIWE VILAKATI Applicant
And
THE DIRECTOR OF PUBLIC PROSECUTIONS 1ST Respondent
THE REGISTRAR OF THE HIGH COURT 2ND Respondent
THE ATTORNEY GENERAL 3RD Respondent
Neutral Citation: Thokozile Lindiwe Vilakati v The DPP& 2 Others (559/2017) [2018] SZHC 47 (20th March 2018)
Coram: Hlophe J.
For the Applicant: Mr D.J. Combrink Instructed by Robinson Betram Attorneys
For the Respondents: Mr G. J. LaPan Instructed by the Director of Public Prosecutions
Date Heard: 5th December 2017
Date Judgement Delivered: 20th March 2018
Summary
Application Proceedings –Various reliefs sought by means of application including an order to interdict a Pretrial Conference in Criminal Proceedings pending finalization –Order also sought compelling the provision of certain alleged further particulars as are set out in Schedule A to the application by the First Respondent –A further order directing the Respondent to allow applicant’s legal Representatives access to Crown witness also sought –Stay of the proceedings pending the determination by this court of the reliefs mentioned above sought with costs –Whether applicant has made a case for the reliefs sought –Whether Applicant entitled to be supplied with the documents not in the First Respondent’s possession in law –Whether applicant entitled to access to the Crown Witnesses.
JUDGMENT
[1] This application is a follow up to certain criminal proceedings instituted against the applicant, in terms of which she was accused of having defrauded a company known as Swazi MTN, where she was at the time employed as the Chief Financial Officer, a sum of E1, 253, 500-00.
[2] According to the indictment and the summary of evidence annexed thereto, the applicant allegedly gave instructions to her juniors at work to pay the sum of money reflected above to a company known as Viva Air Conditioners and Refrigeration (PTY) LTD (Viva). In reality the funds were to be transferred from an account held with the Local branch of Standard Bank by the Applicants employer and paid into an account the said Viva allegedly held with an FNB Bank Branch in Piet Ritief, Republic of South Africa. The payment was for services allegedly rendered by the said Viva to the applicant’s then employer, Swazi MTN in the Construction of the latter’s Ezulwini premises. It is further alleged against the applicant that with the instruction having been complied with and with the said sum of money about to be paid into that account, it turned out that the account number given did not correspond with the name of the company being paid. The allegations go on to suggest that as a matter of fact the account in question belonged to the applicant as it had allegedly been opened in her name with the Piet Retief Branch of the First National Bank of South Africa (FNB).
[3] It is a further case of the Respondents against the applicant that because of the discrepancy between the number of the account held at the FNB Piet Retief, branch and the Account holder, particularly with regards the payment of the amount of money referred to above, there ensued communication between the Piet Retief branch of the FNB Bank and the Mbabane Branch of Standard Bank. This communication it is alleged ended up reaching the applicant who allegedly directed that the transaction be reversed and that it was to be corrected later on as a mistake had been made in the allocation of the Piet Retief FNB Account Number to the company that had allegedly rendered the services being paid for.
[4] The Crown’s case continued to say that the investigations that were subsequently conducted revealed that the payment of the amount referred to as due to the company that had allegedly rendered services was never pursued after the reversal of the transaction. More significantly, it was alleged that the purported payee, Viva Air Conditioners and Refrigeration (PTY) LTD clarified through one of its Directors, Mr Andrew Vivian that it had done no work for the complainant warranting it be paid such a sum of money. Otherwise all the work it had done for Swazi MTN for which it had invoiced the latter, it had been paid accordingly. Realistically it was contended that Viva had never issued an invoice for the payment of the sum of money claimed.
[5] It is noteworthy that from the allegations made, the case against the Applicant seems to be dependent on individual witnesses than on documents. She is for instance implicated by such witnesses as Nothando Dlamini, Pinkie Ndzimandze, Sipho Mbethe and Welile Dlamini from the documents filed of record. The statements of each one of these witness on what the Applicant allegedly said or did are annexed to the papers forming the foundation of this application. As indicated above the version by these witnesses is further supported by the allegations made by Andrew Vivian of Viva.
[6] It is a fact however that the case for the criminal trial against the Applicant was allocated to Judge Mamba. It was one of the matters that served before him for the first session of 2017 which ran from beginning of February 2017 to about the end of April 2017. It later transpired that this allocation of the matter to the Honourable Judge was somewhat premature because it was before the applicant could be served with the indictment and summary of evidence. It is also true that when this happened, a pretrial had not been held as was the normal procedure.
[7] This apparently necessitated that the matter be referred to a pretrial which was set for a specific date. It is then that the applicant, acting through her attorneys, commenced a process of engagement with their counterparts at the offices of the First Respondent in terms of which correspondence was exchanged. At the heart of this correspondence was a request for further particulars which the applicant sought from the Respondents. Notably, some of the letters from the applicant’s attorneys were in my view expressed in an unfortunate and needlessly aggressive language. The iterms sought as further particulars to enable the applicant attend a pretrial meaningfully included certain reports and policies which the investigators engaged by Swazi MTN had referred to or had relied upon.
[8] Although the First Respondent provided some of the documents sought including the two Forensic Audit Reports by the MTN Group and that by Detoitte, it indicated that it could not provide those documents either not in its possession or those not in its docket. In the view of the First Respondent, it could in law only provide those documents as were contained in its docket or as were referred to in the indictment as provided for in Section 151 of the Criminal Procedure and Evidence act of 1938. This however differed sharply from the view held by the Applicant who contended that the First Respondent was obligated not only to provide documents contained in its dockets or referred to in the indictment but also those in the possession of its witnesses or even third parties. Glaring among the documents sought by the applicant which the First Respondent could however not avail, were a certain invoice allegedly used by the applicant when instructing the complainant’s company’s employees, Nothando Dlamini, Pinkie Ndzimandze and Sipho Mbethe to effect payment of the amount forming the basis of the charge. There was also sought the document allegedly issued by the South African Minister responsible for International Relations. This document had allegedly allowed the investigations into the Piet Retief FNB Account referred to above. This document would have allegedly issued in accordance with the agreement for Mutual Legal Assistance between that country and the Kingdom of Swaziland.
[9] These documents could not be provided by the First Respondent because, in the case of the invoice that instituted the payment, it allegedly disappeared soon after the fraud complained of was committed or attempted. In the case of the document authorizing the investigation in Piet Retief, it could not be provided because it was a diplomatic document exchanged between two states. The First Respondent contended that, these documents were neither in its possession nor were they in its dockets and that they were not going to be relied upon in proving a case against the Applicant. The Applicant on the other hand alleged that the said documents were part of those that the First Respondent was suppressing to prejudice the applicant. I must say I find this accusation by the applicant unfair and baseless firstly because it is not explained what evidential value these documents have to support the latter’s case in the context of the matter, nor is it suggested how non-production of such documents would prejudice the applicant in her defence. Furthermore the applicant has not been able to show that as a matter of fact the documents in question are in the First Respondent’s possession or that they are under her control. For these and the other documents not provided by the First Respondent, the latter’s standpoint was repeatedly that those documents were either not in its docket or were not in its possession or control and the contrary could not be shown or established.
[10] Other than the prayer for the provision of particulars, the applicant sought as well an order of court granting it access to three crown witnesses who it seeks to interview in preparation for the pretrial meeting. Although the reasons for demanding this access on the part of the applicant are a bit of a wobble in the papers filed of record, as it is merely said that their aim is to enable them attend a pretrial conference without giving details. It is stated in the Applicant’s Heads of Argument that the aim is to interview these witnesses because the invoice accompanying the instruction to pay or transfer the sum of money forming the subject matter of the charge went missing. The question will have to be whether this Court can conclude that the applicants will not be given a fair trial unless the court departed from the practice whereby an accused person or his legal representative may only consult with a state witness with the consent of the prosecution. See in this regard Shabalala and Others Vs Attorney General, Transvaal And Another 1996(1) SA 725; at Paragraph 64. I shall revert to this point later on in this judgement.
[11] Reverting to the matter of the particulars sought, it is not in dispute that according to Section 151 of the Criminal Procedure and Evidence Act of 1938, the First Respondent is obliged to provide particulars of any matter alleged in the indictment or summons. That section is couched in the following terms:-
“151(1) Either before or at the trial, the court may, if in any case it thinks fit, direct particulars to be delivered to the accused of any matter alleged in the indictment or summons, and may if necessary, adjourn such trial for the purpose of the delivery of such particulars.”
[12] I agree with the applicant that although the section of the Criminal Procedure and Evidence Act cited above suggests that the crown is only obligated to provide particulars of a matter alleged in its indictment or any document contained in its docket, that will be too restrictive an approach in a constitutional dispensation particularly where such particulars are relevant and they are required by an accused person to defend himself.
[13] I further agree that the constitution, under the section that covers a fair hearing would necessitate that such an accused be provided with all the documents that are either in the possession of the crown or those that are under its control as long as they are relevant. I however do not agree that a proper interpretation of section 21 of the constitution places any obligation on the Crown to provide the accused person with any documents in the possession of third parties or witnesses if it does not itself seek to rely on them and is also not in their control.
[14] I do not understand why the applicant would find himself unable to compel the production of such a document through seeking an order of Court against the person who is known to be in possession of it but refuses to avail it. I in this sense therefore agree with the sentiments expressed in such judgements as Shabalala and Others Vs Attorney General, Transvaal and Another 1996(1) SA 725 and Nchindo and Others Vs Director of Public Prosecutions and Others 2010 (1) BLR 223 (CA), with regards the entitlement of an accused person to those documents as may be in the possession or control the Crown.
[15] As I understand it, the First Respondent’s case is that the documents it is said to be failing to provide applicant with are those that are neither within its possession nor are they under its control. I agree with the First Respondent that it cannot be required to avail such documents to the applicant as ordering otherwise would entail its having to run around looking for such documents from third parties which should be unfair to it. It makes it worse where the crown has no desire to use such documents in prosecuting its case. The good thing about this is that if the First Respondent does not supply the applicant with documents it intends to use, it cannot itself use the same documents against that party in law.
[16] Owing to the outlay of the facts in this matter, I find it unnecessary that I deal with the specific documents the First Respondent has failed to avail the Applicant one by one. If suffices that all the documents the First Respondent has not availed the former was because they were not in the First Respondent’s possession or control and there has not been established a contrary position. It seems to me that it is proper in the circumstances of the matter, for the First Respondent not to provide the said documents to the Applicant.
[17] Furthermore from the facts set out in the papers, the case against the Applicant is not complicated, as it is dependent on the versions of the witnesses which is a matter that can be canvassed by or on behalf of the applicant under cross examination and their versions were fully set out in their statements, all of which were provided to the Respondent. I am therefore convinced that the documents sought by the applicant are in the circumstances of this matter, not justified by the need to ensure a fair trial to the Applicant. In Shabalala Vs Attorney General, Transvaal Supra, this observation was put as follows at Paragraph 39:-
“39. Even in prosecutions in the Supreme Court, the state might successfully contend that, having regard to the particulars in the indictment, read with the summary of substantial facts and any particulars obtained under Section 87 of the Criminal Procedure Act, access to the contents of the Police docket itself is not justified by the need to ensure a fair trial. The court would have to have regard to all the relevant circumstances in identifying whether the right to a fair trial in a particular case should include the right of access to the Police docket. If the answer is in the negative, the application for such access must fail. If the answer is in the affirmative, the court would ordinarily direct that access by the accused to the relevant parts of the Police Docket be allowed unless the rule in Steyn’s case is held to be consistant with the constitution..”
[18] With regards the applicant’s access to the three Crown Witnesses, I start from acknowledging the general rule that there should not be a blanket refusal against the provision of such access to an accused as was observed in Shabalala and Others Vs Attorney General of the Transvaal and Another Supra; where the position was captured in the following words from paragraph 62-64:-
“62. “Whatever be the origin of the rule that an accused person may not consult state witnesses save with the permission of the Attorney General or the prosecutor, it subsequently became entrenched in practice and now forms such a basic part of our system of criminal justice as to make it effectively impossible for an accused person to get his or her legal representative to consult with such witnesses without the permission of the prosecuting authority. Any legal practitioner who does so would be guilty of professional and unethical practice. Moreover, a breach of an ethical rule has been held to be capable of constituting an irregularity in the trial.
63. The question is whether such a practice can constitute a denial of the right to a fair trial to an accused person in terms of section 25(3) of the constitution. In many cases it would not because the accused or his or her legal representative would have a full opportunity of canvassing with the witness during cross examination relevant material which he or she would otherwise have wanted to canvass in consultation. But there may be circumstances where the right to a fair trial might justify a prior consultation with a state witness. An accused might wish to canvass with the witness the identity or whereabouts of some person vital to his or her alibi and there may be a real risk that, the evidence would be lost if the witness is not immediately traced. In a prosecution for culpable homicide, there may be an urgent need to trace the whereabouts of a particular motor car in order to identify the nature of the damage sustained by it during a collision and there may again be a real danger that, if the witness was not consulted, such evidence might be lost, obscured or distorted by the subsequent use of the vehicle. Many other such examples are conceivable.
64. The relevant issue is not whether or not such consultations would ordinarily be justified in order to ensure a fair trial but whether it could legitimately be said that such consultations can never be justified, the blanket prohibition against the right of an accused to consult state witnesses (without the consent of the prosecution) regardless of the circumstances or the conditions, might indeed bear unfairly on the accused.”
[19] Whether or not to allow the access required by the defence to consult with crown witness, the request in question should in my view be well grounded to ensure that the defence witnesses do not end up being intimidated during the said consultation, which may result in witnesses refusing to make statements to the detriment of the entire criminal justice system. The consultation could also result in a dispute on what was or was not said.
[20] Whatever the situation, it is important to note that such access should be granted in situations where it can be justified on the ground that a fair trial will be impaired if such a prior consultation is not allowed. It would also be allowed where it is shown that the opportunity afforded the defence to cross examine the crown witness to canvass the issue concerned, will not sufficiently afford the defence the opportunity required. These observations were expressed in the following words in the Shabalala and Others Vs Attorney General, Transvaal (Supra) judgement, at paragraph 67:
“…but it must be remembered that there may not be many cases in which consultations can be justified on the ground that a fair trial will be impaired if such prior consultation is not allowed and on the ground that the opportunities subsequently offered to the accused in cross-examination of the witness to canvass the relevant issues, will sufficiently compensate the accused for the disadvantage.”
[21] Concerning the matter at hand, I am not convinced that a case has been made to enable this court conclude that a fair trial will be impaired if the access required is not granted. Similarly, it has not been shown that the opportunity availing the defence in the cross examination of the accused will not be enough.
[22] In his heads of argument the Applicant contends that he requires access to the witnesses in question because the invoice that was used to instruct that the payment be made to Viva Air Conditioners and Refrigeration (PTY) LTD cannot be found. I do not see how this can prove detrimental to the accused so as to lead to an unfair trial. Further still I am convinced that whatever issue needs to be canvassed can be properly covered under cross-examination.
[23] In the circumstances I have come to the conclusion that the Applicant’s application cannot succeed and it is dismissed with no order as to costs.
______________________
N. J. HLOPHE
JUDGE – HIGH COURT
