Friday, June 21, 2024

Is the Kebonang judgment opening a pandora’s box?

The High Court’s decision that reviewed and set aside the Director of Public Prosecutions’ decision to institute criminal proceedings against the two applicants raises some very interesting issues, such as adherence to procedure by our courts, and how easy it is for the court and legal practitioners to lose direction with respect to the issues that are to be determined.

I found the determination of whether the applicants had brought their application for review out of time very strange in the route that it took. The court agreed with the applicants that a review application should be brought to court after exhausting internal remedies. This raises the question of whether the steps taken at the magistrate court by the applicants seeking further particulars in terms of Section 147(1) of the Criminal Procedure and Evidence Act are internal remedies. The court seems to hold that they are.

The court in my respectful view seems to lose sight of the fact that the review application relates not to the determinations of the magistrate court, but to the decision of the Director of Public Prosecutions to level criminal charges against the applicants in exercise of a constitutional power vested in him. The court proceeds to determine whether the internal remedies interrupted prescription. This is very strange when the court has previously noted that the Director of Public Prosecutions point in limine is about the time within which a review application has to be made, as provided for in the Rules of the High Court.

The court seems in my respectful view to confuse time limitation provisions with prescription. The court made reference to Dow J in Murima v Kweneng Land Board, a decision that went to the Court of Appeal where a distinction was made between time limitations for causes of action and prescription of causes of action. The court seems further to assume that a determination of an application at magistrate court level is a judicial step that interrupts prescription, a rather confusing state of affairs. Even if the determination of an application at magistrate court level was deemed to be an administrative step, the review application before the court was not about the determination of the magistrate but about the decision of the Director of Public Prosecutions. The court reiterates this at paragraph 175 of its judgment.

The process that the court took in determining the application for review seems to me to have short changed the Director of Public Prosecutions in certain respects. The court made reference to the review record on very few occasions focusing mostly of what was said in the affidavits of the parties. The court ended up determining factual differences that were not part of the review record. Surely the facts stated by the applicants were not part of the review record. If they were the court would have stated so.

In dealing with the application proper I get the impression that the court here failed to follow the procedure for determining applications. To my knowledge applications are determined according to certain rules one of which is to have regard to the facts stated in the answering affidavit and those admitted by the applicant and deciding whether the applicant is entitled to the relief that they seek. In the instant case the court looked at the founding affidavits of the applicants and contrasted this with those of the respondent, effectively making factual determinations from the affidavits. Of course, the courts may do this but given that this was a review application the court effectively allowed presentation of evidence outside the review record, which in my view it is not entitled to do. In fact, the court maintains the correctness of this position at paragraph 239 of its judgment.

The step taken by the court should inform the Director of Public Prosecutions to give an accused person an opportunity to tender an explanation before level charges. In the end it seems the exchanges in the affidavits are what determined the matter not really the review record.  The court was effectively hearing new facts and then applying the same to the review record.

To my knowledge where there are disputes of fact the applicant must make an application for the matter to go to trial otherwise if the factual disputes are material the applicant must lose. In the instant case the court even made determinations on issues that it quite clearly did not know what they meant. For example, an applicant stated that he was a non-executive director in what is a private limited liability company. Our Companies Act does not define this term in relation to private companies. The court effectively believed the applicant without knowing what the applicant was talking about.

Quite obviously if the court had followed the rules with regard to determination of applications the matter would have gone to trial, the very thing the applicants wanted to avoid. The best option for the applicants would have been for them to be dismissed. Of course, they went on to win, lucky for them.

The court also did what I thought was rather disturbing. It seemed to hold the view that the Director of Public Prosecutions should not have relied on the recommendation of his junior. If the Director of Public Prosecutions has to personally read each and every docket very view cases will proceed to trail. I believe from an administrative law point of view the Director of Public Prosecutions has to rely on the input of his juniors depending on their seniority and experience. Criminal activity quite obviously is now complex and the Director of Public Prosecution cannot be expected to be an expert of each and every type of criminal activity.

The judgment presents a bit of a dilemma to accused persons and their lawyers. What is the significance of the courts findings for the magistrate court? Supposing the court holds that there is a prima facie case. Then an accused person cannot make an application for absolution or no case to answer because the magistrate may feel comfortable upholding the position of the High Court. A defence lawyer now has to determine whether the risk of such a finding is worth taking. Even though initially I had thought the case opened the flood gates to such applications I think the benefits of taking this route may prove unattractive.

The determination of the review application against the Director of Public Prosecutions does not mean he cannot level the same charges against the applicants if he has more or better evidence that passes the test set out in the case. Interestingly the court seemed to determine what evidence will prove a prima facie case by restricting itself to the relationship that the applicants set forth as being the one that shows a link between the applicants and the offences charged. The question to ask is what happens if the Director of Public Prosecutions shows that there are other ways of establishing a link other than being a shareholder, director, employee, or signatory of bank account? At what stage must he show such links and to whom?

Some commentators have lauded the decision of the court and I too embrace the legal principles with regard to how the Director of Public Prosecutions is supposed to make determinations to prosecute, but as set out above I think the decision though resulting in a correct position was not in my view arrived at procedurally.

The issue of procedure is very central to our legal system and without it there will be chaos, for it will be difficult for litigants to know what is required of them. I have observed that generally we think for so long as the outcome is in our favour procedure is irrelevant. Our judges must be seen to be and must be at the forefront in ensuring that procedure is followed for they themselves are constrained by law. The legal profession must also itself promote fair dealing in determination of issues. This will ensure that matters do not take forever in our court system leading to unnecessary backlogs.

Overall, the decision is good in so far as it establishes the test for prosecution, and one hopes that even if the Director of Public Prosecutions were to appeal, the Court of Appeal will not overturn the test as set out at the High Court. One might even suggest that no matter how aggrieved the DPP might be with the decision, it does not harm his ability to discharge his mandate. After all it really speaks to the investigator to give him credible evidence to work with. The decision is therefore more about the executive empowering the investigators than the DPP.  It is also about the breadth of our criminal laws in so far as they deal with what society considers to constitute criminal activity.

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