Gary Patrick Porritt & Susan Hilary Bennett v The National Director of Public Prosecutions & others

The appellants were arrested in December 2002 and March 2003 and faced over 3000 counts involving contraventions of the Income Tax Act, Companies Act, Stock Exchange Control Act, racketeering and fraud. When their trial commenced in the South Gauteng High Court on 5 March 2012, they tendered a plea in terms of s 106(1)(h) of the Criminal Procedure Act challenging the title to prosecute of the prosecution team consisting of Advocates Etienne Coetzee SC (private advocate) and Jan Ferreira (senior Deputy Director of Public Prosecutions). The appellants challenged Coetzee's appointment on grounds of: (1) lack of consultation with the Minister of Justice as required by s 38(1) of the NPA Act; and (2) breach of fair trial rights due to his previous involvement representing SARS in cases involving the appellants and being funded by SARS. Against Ferreira, they alleged he had assisted in drafting an affidavit for a liquidation application involving the first appellant's company and supported Coetzee's appointment. The high court (Mailula J) dismissed the first ground but upheld the second ground, ordering the removal of both prosecutors on the basis of apprehension of bias, applying the SARFU test for judicial recusal. However, the court refused to acquit the appellants under s 106(4) of the CPA. The appellants appealed seeking acquittal, while the NDPP reserved questions of law regarding the correct test for removing prosecutors.

• Whether a successful plea in terms of s 106(1)(h) of the CPA automatically entitles an accused to acquittal under s 106(4)
• Whether the removal of prosecutors on grounds of apprehension of bias is based on s 106(1)(h) (lack of title to prosecute) or on s 35(3) of the Constitution (fair trial rights)
• What is the correct legal test for the removal of a prosecutor on grounds of bias or apprehension of bias
• Whether the test for judicial recusal (as formulated in SARFU) applies equally to prosecutors
• Whether a prosecutor's previous involvement in related matters or connection to a state entity (SARS) creates grounds for removal
• Whether unfairness flows axiomatically from a prosecutor's dual role

1. The appeal by the appellants was dismissed, with each party ordered to pay its own costs. 2. The first question of law reserved in terms of s 319 of the CPA was answered in favour of the state. 3. The order of the high court for the removal of Advocates Coetzee and Ferreira was set aside and substituted with an order dismissing the application for their removal. 4. The matter was remitted to the court below to proceed with the criminal trial.

The binding legal principles established are: (1) The role of prosecutors cannot be equated with that of judicial officers; prosecutors are necessarily partisan while judges must be independent and impartial decision-makers. (2) The test for removal of a prosecutor on grounds of bias is not the SARFU test for judicial recusal, but rather the test in Killian: unfairness does not flow axiomatically from a prosecutor's dual role or previous involvement in related matters; whether such involvement creates substantive unfairness must be determined on the facts of each case. (3) A prosecutor's previous involvement in matters related to an accused, or connection to a state entity like SARS, does not per se provide grounds for removal or compromise the right to a fair trial. (4) The removal of a prosecutor on grounds of apprehension of bias is based on s 35(3) of the Constitution (fair trial rights), not on s 106(1)(h) of the CPA (lack of title to prosecute). (5) An accused is not entitled to demand acquittal under s 106(4) of the CPA where prosecutors are removed on grounds of apprehension of bias rather than lack of title under s 106(1)(h). (6) The protection of an accused lies not in a general standard of independence and impartiality required of all prosecutors, but in the right to a fair trial entrenched in s 35(3) of the Constitution.

The court made several non-binding observations: (1) It noted (at para 9) that it is doubtful whether a plea in terms of s 106(1)(h), where an accused has not pleaded on the merits, entitles him or her to an acquittal, but refrained from expressing a firm opinion on the issue. (2) The court discussed the UN Guidelines on the Role of Prosecutors and the principle that prosecutors must perform their duties impartially and protect the public interest while acting with objectivity. (3) The court observed that prosecutors often carry out their functions vigorously and zealously, and approach prosecutions with a view (sometimes strong) that the accused is guilty, which is permissible subject to the caveat that they must not prosecute in single-minded pursuit of conviction. (4) The court noted that South African law recognises a wide range of prosecutors including state officials, municipalities (which may have financial interest in fines), and private prosecutors, and that their interest in the outcome does not per se deny an accused a fair trial. (5) The court acknowledged that a prosecutor can be disqualified on grounds of bias where the bias affects the accused's right to a fair trial, citing Smyth v Ushewokunze as an example of over-zealous, vindictive and dishonest prosecutorial conduct warranting removal. (6) The court made observations about the purpose of s 319 of the CPA being to allow the state a right of appeal on questions of law.

This case is significant for establishing the following principles in South African criminal procedure law: (1) It clarifies that the role and functions of prosecutors differ fundamentally from those of judicial officers, and therefore different standards apply to them regarding independence and impartiality. (2) It confirms that prosecutors are expected to be partisan and zealous in pursuing the state's case, subject to their duty to ensure a fair trial. (3) It establishes that the test for judicial recusal (SARFU test) does not apply to prosecutors. Instead, the test from Killian applies: unfairness does not flow axiomatically from a prosecutor's previous involvement or dual role; whether such involvement creates substantive unfairness must be determined on the facts of each case. (4) It clarifies the relationship between s 106(1)(h) pleas (lack of title to prosecute), applications for removal on bias grounds (under s 35(3) fair trial rights), and entitlement to acquittal under s 106(4). (5) It confirms that prosecutors funded by or previously associated with state entities like SARS are not automatically disqualified from prosecuting related matters. (6) It affirms that s 319 of the CPA, read with s 322, is intended to allow the state a right of appeal on questions of law. The judgment protects the independence of the NPA and NDPP in allocating cases to prosecutors while maintaining the accused's right to a fair trial as the ultimate protection.