Van der Merwe v National Director of Public Prosecutions

Gary Van der Merwe (the appellant) was a businessman facing two criminal charges: contravening Exchange Control Regulations and defeating the ends of justice. The offences were alleged to have occurred in July 2004 when he was arrested at Cape Town International Airport with foreign currency in his possession. The currency was attached under s 20 of the Criminal Procedure Act. The Directorate of Special Operations (DSO, known as the Scorpions) had been investigating the appellant for various other charges including fraud, theft and contraventions of the Company Act. In July 2004, Mr Haywood, a DSO investigator, received information that the appellant intended to take more than R1 million in foreign currency out of South Africa. Although such offences did not fall within the DSO mandate (which was restricted to serious and organised crime), Haywood attended the airport with DSO colleagues, informed other law enforcement agencies, and pointed the appellant out to the Border Unit. The appellant was arrested and the currency confiscated. Subsequently, the investigation and prosecution appeared to be conducted or coordinated by the DSO, with DSO members appearing at bail hearings, handling postponements, and corresponding on DSO letterhead, even though the exchange control violations were not within their statutory mandate. Before pleading to the charges in the Regional Court, the appellant launched an urgent application seeking a declaratory order that the DSO and Inspector Haywood acted outside their legislative and operational mandate, and that the consequences of their conduct were unlawful, unconstitutional and invalid under s 172(1) of the Constitution.

• Whether a court is obliged under s 172(1) of the Constitution to issue a declaratory order that conduct is unconstitutional once such conduct is found to be inconsistent with the Constitution
• Whether the court should decide constitutional issues raised in a preliminary application before a criminal trial commences
• Whether preliminary litigation challenging the investigation process should be entertained or should be left to the trial court
• Whether the DSO acted outside its statutory mandate by investigating offences that did not fall within the definition of serious and organised crime
• Whether issues relating to admissibility of evidence and fairness of trial should be determined by way of preliminary application or by the trial court

1. The appeal was dismissed with costs including the costs of two counsel. 2. The cross-appeal was dismissed. 3. The appellant was ordered to pay the costs of the application for condonation and of the application for a postponement.

The binding legal principles established by this case are: 1. Section 172(1) of the Constitution does not compel a court to determine constitutional issues and issue declaratory orders when such issues are abstract, academic or hypothetical in nature, or where no concrete or tangible result beyond a bare declaration would be produced. 2. Courts have a duty to actively discourage preliminary litigation in criminal matters, particularly when such litigation appears designed to delay proceedings or circumvent the trial process. 3. Issues relating to the admissibility of evidence and alleged constitutional violations in the investigative process should ordinarily be determined by the trial court within the full factual context of the trial, rather than through preliminary applications to other courts. 4. The constitutional right to a fair trial does not entitle an accused to prevent a trial from commencing or to interrupt it in order to have alleged irregularities reviewed by another court in advance of or during the trial. 5. Criminal trials should not be conducted piecemeal, and the trial court is best placed to determine issues of fairness and admissibility of evidence when appraised of the full factual context. 6. A court faced with an application that constitutes preliminary litigation designed to delay or avoid a criminal trial has a discretion to refuse the order, even if the constitutional challenge has merit, where the issues can properly be addressed by the trial court.

The court made several non-binding observations: 1. Bertelsmann AJA noted that had this court sat as court of first instance, he would have been strongly minded to grant a costs order against the appellant, suggesting the application was viewed as unmeritorious. 2. The court observed that the application amounted to 'an unmeritorious forensic finesse, clothed in constitutional garb, designed to delay or avoid the necessity of having to plead in a criminal trial, or to pre-empt a consideration by the trial court of the admissibility of evidence in terms of s 35(5) of the Constitution.' 3. The court noted the 'tendency of such accused, instead of confronting the charge, of attacking the prosecution' in the context of persons facing serious charges and minimum sentences having little inclination to cooperate in proceedings that may lead to conviction. 4. While not necessary for the decision, the court assumed for purposes of argument that the appellant had established that the DSO exceeded its statutory mandate by investigating offences outside the definition of serious and organised crime, thereby indicating that the court's reasoning would apply even if the constitutional challenge had merit. 5. The court emphasized that while regional courts have limited jurisdiction on constitutional matters, they nonetheless have the duty and authority to ensure trials are fair and can determine whether constitutional rights have been breached in that context. 6. The judgment affirmed that 'the courts' doors should never be completely closed to litigants' while nevertheless establishing that preliminary litigation should generally be discouraged, suggesting there may be exceptional circumstances where such applications would be appropriate.

This case is significant in South African criminal procedure and constitutional law for establishing important principles regarding preliminary litigation in criminal matters: 1. It clarifies that s 172(1) of the Constitution does not impose an absolute obligation on courts to decide constitutional matters and issue declaratory orders when such matters are raised in abstract or hypothetical circumstances without seeking consequent relief. 2. It reinforces the principle that criminal trials should not be conducted piecemeal and that preliminary litigation designed to delay or circumvent the trial process should be actively discouraged by courts. 3. It confirms that the constitutional right to a fair trial does not entitle an accused to have the prosecution satisfy them in advance that the trial will be fair - rather, it is the trial court's duty to ensure fairness during the trial itself. 4. It establishes that issues relating to the admissibility of evidence and alleged constitutional violations in the investigation process are generally best determined by the trial court within the full factual context of the trial, rather than through separate preliminary applications. 5. It affirms that regional courts, despite having limited jurisdiction on constitutional matters, have the duty and authority to determine whether constitutional rights have been breached in the course of ensuring a fair trial. 6. The judgment serves as a significant precedent discouraging tactical use of constitutional litigation to delay or obstruct criminal proceedings, particularly in white collar crime cases. The case balances the accused's constitutional rights with the public interest in efficient administration of justice and the suppression of crime.