Eight appellants were among 13 accused arraigned before a regional magistrate on fraud and racketeering charges, allegedly defrauding SARS of approximately R264 million during May 1998 to March 2002. The accused first appeared in court on 2 June 2003 and the trial commenced on 12 July 2004. Two prosecutors, Mr van Wyk SC and Ms Kannemeyer (a SARS employee and advocate), were appointed under section 38 of the National Prosecuting Act 32 of 1998. The trial ran for five years. After the State closed its case, five accused were discharged but eight were not. Seven years into the trial, the appellants challenged the authority of the prosecutors to prosecute, arguing their appointments under section 38 were irregular because they had not entered into proper written agreements, lacked written authorization under sections 20(5) and (6), and had not taken the required oath under section 32. The magistrate upheld their special plea and acquitted them. The State appealed to the high court, which found that the prosecutors' appointments substantially complied with the NPA Act and remitted the matter for trial to continue. The high court granted the appellants leave to appeal to the Supreme Court of Appeal on six specific legal questions, but not on the finding of substantial compliance.
The appeal was struck from the roll with the effect that the matter was remitted back to the magistrate's court for the criminal trial to continue.
An order of the high court remitting a matter to a magistrate for continuation of a criminal trial is not appealable unless unusual circumstances exist that would make it contrary to the interests of justice not to entertain the appeal. The general rule against piecemeal appeals in criminal proceedings is firmly established and supported by section 35(3)(d) of the Constitution, which requires criminal trials to begin and conclude without unreasonable delay. While courts have power to depart from this rule in unusual circumstances where grave injustice might result, such circumstances do not exist where accused persons raise objections to prosecutorial appointments seven years into trial, after receiving appointment documents at the commencement of trial without objection, and after unsuccessfully applying for discharge at the close of the State's case. Furthermore, where a high court grants leave to appeal on specific limited grounds, the Supreme Court of Appeal lacks jurisdiction to consider issues beyond those grounds, and an appellant's remedy is to petition for expanded grounds rather than to appeal directly on matters not included in the leave to appeal.
The court made several important obiter observations: (1) Even assuming the appointment of prosecutors was irregular for want of strict compliance with the NPA Act, irregularities do not in and of themselves lead to a failure of justice - the question is always whether they resulted in a failure of justice. (2) Section 106(4) of the CPA, which entitles an accused who has pleaded to demand acquittal or conviction, was intended to prevent trial proceedings from hanging over an accused indefinitely after pleading, and to ensure an accused is acquitted or convicted on the charge to which he pleaded, not an entirely different offense. It cannot be invoked to demand acquittal based on irregular appointment of prosecutors mid-trial as this would allow unscrupulous accused to use it for improper purposes and cause immense prejudice to the prosecution. (3) If the objection to prosecutors' appointments were upheld requiring the trial to commence de novo, this would be preposterous given no trial-related prejudice was demonstrated. (4) The court implicitly endorsed its recent decision in Porrit v NDPP which overruled the high court's decision in Bonugli regarding challenges to prosecutors based on perceived bias due to association with complainants. (5) The judgment appears to suggest there is doubt whether section 106(1)(h) can be invoked midway through trial, though the court assumed this in favor of appellants without deciding the point.
This case is significant in South African criminal procedure law for several reasons: (1) It reinforces the general rule against piecemeal appeals in criminal proceedings and confirms that remittal orders are generally not appealable absent unusual circumstances. (2) It emphasizes the constitutional imperative in section 35(3)(d) that criminal trials must begin and conclude without unreasonable delay, and that appellate intervention during ongoing trials undermines this right. (3) It clarifies that when a high court grants leave to appeal on specific limited grounds, the Supreme Court of Appeal has no jurisdiction to consider issues beyond those grounds unless the appellant successfully petitions to expand the grounds. (4) It confirms that irregularities in the appointment of prosecutors do not necessarily lead to a failure of justice or nullify proceedings, particularly where no trial-related prejudice is demonstrated. (5) It demonstrates judicial unwillingness to allow accused persons to delay trials by raising technical objections to prosecutorial authority many years into proceedings when they had knowledge of the alleged irregularities from the outset. (6) The case illustrates the pragmatic and flexible approach courts should take to the interests of justice, balancing considerations of convenience, delay and prejudice to both prosecution and defense.
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