THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 373/09

In the matter between:

GARY WALTER VAN DER MERWE
Appellant

and

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
1st Respondent
THE HEAD OF THE DIRECTORATE OF SPECIAL
OPERATIONS
2nd Respondent
THE MINISTER OF SAFETY AND SECURITY
3rd Respondent
SENIOR SPECIAL INVESTIGATOR PHILLIPUS
DU TOIT HAYWOOD
4th Respondent
INSPECTOR LIONEL TAYLOR
5th Respondent
THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
6th Respondent

Neutral citation:
Van der Merwe v NDPP (373/09) [2010] ZASCA 129 (30
September 2010)

Coram:
HARMS DP, NUGENT, SHONGWE and TSHIQI JJA and
BERTELSMANN AJA

Heard:
20 AUGUST 2010
Delivered:
30 SEPTEMBER 2010

Summary:
Fair trial – appellant charged with transgressing Exchange Control
Regulations and defeating ends of justice – appellant alleging that investigation
against him conducted by the Directorate of Special Operations (DSO)
(Scorpions) acting outside their mandate – appellant before pleading launching
application in terms of section 172(1) of the Constitution to have consequences
of DSO's alleged conduct declared unlawful, invalid and unconstitutional –
whether court obliged by s 172(1) to issue a declaratory order if consequences of
alleged conduct are found to be such – application amounting to preliminary
litigation which must be discouraged – court not obliged to issue declarator, even
if appellant could have established a case on the facts – issues arising from
DSO's alleged conduct to be resolved by trial court – dismissal of application by
High Court confirmed on appeal.

__________________________________________________________________

ORDER
_______________________________________________________________________

On appeal from: Western Cape High Court (Cape Town) (Olivier AJ sitting as
court of first instance).

The following orders are made:

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

________________________________________________________________

JUDGMENT
________________________________________________________________

BERTELSMANN AJA (Harms DP, Nugent, Shongwe and Tshiqi JJA concurring)

INTRODUCTION
[1] The appellant – Mr Gary Van der Merwe – is a businessman who faces
two criminal charges of having contravened the Exchange Control
Regulations and of defeating the ends of justice respectively. The offences
are alleged to have been committed during July 2004 when the appellant was
arrested at the Cape Town International Airport. Foreign currency found in his
possession was attached in terms of s 20 of the Criminal Procedure Act 51 of
1977. An application to have the currency released was dismissed by the

Cape High Court. An appeal to the full court of that division was
unsuccessful.1 An appeal to the Constitutional Court also failed.2

[2] After several postponements the appellant’s trial was set down for 9
June 2008 in the Regional Court Bellville. The appellant has not yet pleaded
to the charges and indeed on 9 June 2008 he launched an urgent application
for a declaratory order that the Directorate of Special Operations (DSO)
(known before the unit’s disbandment as the Scorpions) and one of its
members, Inspector Haywood, had acted outside the legislative and
operational mandate of the Scorpions by investigating the offences the
appellant is alleged to have committed. Such offences, it is common cause,
did not fall within the definition of serious and organised crime the Scorpions
were mandated to investigate and combat. Such conduct, the appellant
argued, was in conflict with the Constitution and invalid and should be
declared to be such.

[3] Needless to say, conduct cannot be declared to be invalid, but only the
legal consequences of that conduct.  During the hearing of the appeal the
order the appellant sought was amended to read: ‘It is declared that the
Second and Fourth Respondents acted outside of the legislative and
operational mandate of the DSO and the consequences of their conduct are
accordingly unlawful, inconsistent with the Constitution and invalid’.

1 Reported as Van der Merwe & another v Nel & others 2006 (2) SACR 487 (C).
2 Reported as Van der Merwe & another v Taylor N O & others 2008 (1) SA 1 (CC).

[4] A further declarator was sought in the notice of motion that the charges
brought against the appellant were unlawful, unconstitutional and invalid. This
relief was not persisted with.

[5] The court below dismissed the application on the ground that the
issues raised by the appellant should best be decided by the trial court. It
made no order as to costs.  The appellant was granted leave to appeal to this
court. The first and second respondents – the National Director of Public
Prosecutions and the Head of the DSO respectively – were granted leave to
cross-appeal against the costs order.

[6] The Ministers of Safety and Security and of Justice and Constitutional
Development were cited in the proceedings in the court below but they played
no active role and abided the decision of the court. Inspector Lionel Taylor, an
inspector in the service of the South African Police Service, who was the
investigating officer responsible for the appellant’s case docket, was also
cited, and similarly abided the decision of the court.  The application was
opposed only by the first, second and fourth respondents, the last-mentioned
being Mr Phillipus Haywood, the fourth – a senior special investigator of the
DSO. He was joined in his personal capacity because of his alleged
transgression of the DSO’s mandate by investigating the appellant.

THE RELEVANT FACTS
[7] The DSO was created by s 7 of the National Prosecuting Authority Act
32 of 1998 ('the NPA Act') and commenced operations in 2001. It was created

to deal with national priority crimes, in particular organised crime and other
specified serious offences. It was disbanded during 2009 after the
amendment of s 7 of the NPA Act by s 3 of the National Prosecuting Authority
Amendment Act 56 of 2008.

[8] At the time that is relevant to this appeal the appellant was under
investigation by the DSO. The investigation was authorised in terms of s 28(1)
prior to the amendment referred to above. Various charges of fraud, theft and
contraventions of the Company Act were preferred against the appellant and
others allegedly acting in concert with him.

[9] Mr Haywood was the lead investigator in the DSO investigation. He
received information on 7 July 2004 that the appellant intended to take more
than R 1 million in foreign currency out of South Africa on 11 July 2004.

[10] After discussing the matter with his superiors it was decided to inform
the relevant law enforcement agencies; the Commercial Crime Unit of the
SAPS, the SAPS Border Unit and SARS.

[11] It is common cause that the conduct or the anticipated conduct of the
appellant – if it constituted an offence – did not fall within the definition of
serious and organised crime that the Scorpions were mandated to investigate.
That notwithstanding, Mr Haywood took an interest in the matter and he
travelled to the airport on 11 July 2004 in the company of Mr Louw of SARS.
There he learnt that the appellant had changed his flight to 13 July 2004.

[12] On that day Mr Haywood returned to the airport with another DSO
member, Mr Koekemoer. There they met Captain Koegelenberg and
Inspector Gululu of the Border Unit and Mr Guerreiro of Customs. Mr
Haywood pointed the appellant out to the Border Unit.

[13] Mr Nico Maree of the SARS was requested by Mr Guerreiro to assist
by obtaining a customs declaration from the appellant. The appellant agreed
to a search of his luggage in which the foreign currency was discovered.

[14] The matter was handed to the Border Unit. Captain Koegelenberg and
Inspector Gululu allowed the appellant to board the plane as they were
uncertain which regulation of the Exchange Control Regulations the appellant
might have transgressed. Enquiries from the Commercial Branch and from Mr
Haywood elicited the information that regulation 3(1)(a) was contravened.
Inspector Gululu then had the appellant removed from the aircraft.  He was
arrested and the currency confiscated. The appellant was handed over to the
Commercial Branch.

[15] The next morning Inspector Taylor was assigned to investigate the
matter and he interviewed the appellant on 14 July 2004. At the subsequent
bail application on the same day, Adv Van Vuuren of the DSO appeared, duly
authorised by a written delegation by the Director of Public Prosecutions;
Western Cape. Another member of the DSO, Adv Bunguzana, received a

similar delegation. Inspector Taylor consulted with Adv Van Vuuren on the bail
application and the bail amount. Mr Haywood was present at the bail hearing.

[16] On 28 October 2004 the appellant was arrested on the fraud charges
that were being investigated by the DSO. According to Mr Haywood he
approached Inspector Taylor with an eye to a joinder of the fraud and
exchange control charges, but met with a negative response. Nonetheless, it
is common cause that from that date until the end of 2007 the matters were
dealt with on the basis that the appellant would be tried in the High court on all
the charges.

[17] According to the appellant, all postponements of the matter, of which
there were several, were, with one exception, attended to by members of the
DSO. On 22 April 2005, Adv Bunguzana informed the court at one such
postponement that the case was investigated by the Scorpions after initially
having been the responsibility of the SAPS. Correspondence on behalf of the
prosecution and the investigators was sent on the DSO letterhead. One
potential witness to the exchange control charges, Ms Rohr, informed the
appellant that Mr Haywood had told her that he was the investigating officer
when he subpoenaed her.

[18] As it turned out, the appellant was arraigned for trial in the regional
court. The trial was postponed when the present application was launched
and has still not commenced.

THE ARGUMENT IN THE COURT A QUO
[19] The appellant’s case is that the entire investigation against him was
conducted surreptitiously by the DSO, using other agencies as puppets, and
the process of identifying witnesses, collecting evidence and preparing the
prosecution was orchestrated by the department because of an improper
intention on the part of the DSO to persecute the appellant.

[20] The appellant submitted that in doing so the DSO – and in particular Mr
Haywood – acted outside its statutory authority by becoming engaged in the
case against him. It was submitted that the investigation was not and could
not be authorised in terms of s 28 of the NPA Act, which restricted the DSO
mandate to organised crime and other specified offences. Exchange control
violations admittedly did not resort under the DSO. Mr Haywood and the other
members of the DSO, so it was submitted, therefore acted unconstitutionally,
irregularly and unlawfully by orchestrating the investigation against him.

[21] The appellant argued that s 172(1) of the Constitution obliged the court
to issue a declaration that the investigation conducted in the manner alleged
was unlawful. That section provides, amongst other things, that when deciding
a constitutional matter within its power, a court ’must declare that any law or
conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency’. The appellant sought no consequent relief.

[22] It was not entirely clear from the appellant’s papers why a declaratory
order was sought in vacuo, without any consequent relief.  In the course of

argument before us, however, counsel for the appellant informed us quite
frankly that a declaratory order would bind the trial court when it was called
upon to decide what evidence might be admitted.

[23] The respondents denied any suggestion that the DSO had played any
part in the investigation against the appellant, other than to pass  information
of the possible commission of an offence on to other law enforcement
agencies. The DSO had co-operated with the prosecution services while it
was intended to prosecute all charges in one trial.

[24] The respondents furthermore submitted that the issue raised by the
appellant was one that ought not to be decided piecemeal, but that the trial
court was the appropriate forum to deal with questions relating to the
admissibility of evidence, the authorisation of the public prosecutor to prefer
the charges against the appellant and the appellant’s right to a fair trial.

[25] The court a quo found in a meticulous and closely reasoned judgment
that the appellant had failed to establish that the DSO had driven the
investigation against him. It also held that the respondents’ version was
neither so unreliable nor so far-fetched that it would justify a referral to oral
evidence.

[26] That notwithstanding, the court below considered the question whether
the declaratory relief in terms of section 172(1) of the Constitution should be
granted in the event of its findings on the merits being incorrect. After a

careful consideration of relevant authorities the court concluded that it had the
discretion to consider whether an order of this nature should be issued or not.
Weighing the facts of the matter the learned judge concluded that it would be
inappropriate to decide the constitutional issue raised by the appellant, which
should best be left to be decided by the trial court. The application was
therefore dismissed. No costs order was made.

THE ARGUMENTS BEFORE US
[27] The court below held against the appellant on the merits and found that
the allegedly, unlawful and unconstitutional conduct of the DSO and Haywood
had not been established. Although it would be difficult to fault the court below
on this finding, I will assume for present purposes that the appellant indeed
made out a case that the DSO exceeded its statutory mandate and that its
conduct was thus inconsistent with the Constitution. The question that
remains is whether a court is obliged in the circumstances to issue a
declaratory order, notwithstanding that no consequent relief is claimed.

[28] It was argued on behalf of the appellant that s 172(1) of the
Constitution allows no room for the exercise of a discretion once conduct is
found to be unconstitutional. But that argument does not find support in the
decided cases. On the contrary, the following was said in Islamic Unity
Convention v Independent Broadcasting Authority & others:3
‘A Court's power under s 172 of the Constitution is a unique remedy created by the
Constitution. The section is the constitutional source of the power to declare law or
conduct that is inconsistent with the Constitution invalid. It provides that when a Court

3 2002 (4) SA 294 (CC) paras 10-11.

decides a constitutional matter, it must declare invalid any law or conduct
inconsistent with the Constitution. It does not, however, expressly regulate the
circumstances in which a Court should decide a constitutional matter. As Didcott J
stated in J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and
Others:
"Section 98(5) admittedly enjoins us to declare that a law is invalid once we have
found it to be inconsistent with the Constitution. But the requirement does not mean
that we are compelled to determine the anterior issue of inconsistency when, owing
to its wholly abstract, academic or hypothetical nature should it have such in a given
case, our going into it can produce no concrete or tangible result, indeed none
whatsoever beyond the bare declaration."
. . .
In determining when a Court should decide a constitutional matter, the jurisprudence
developed under s 19(1)(a)(iii) will have relevance, as Didcott J pointed out in the J T
Publishing case. It is, however, also clear from that judgment that the constitutional
setting may well introduce considerations different from those that are relevant to the
exercise of a Judge's discretion in terms of s 19(1)(a)(iii).’

[29] The appellant’s counsel relied for the proposition that a court before
whom a constitutional issue is raised has no alternative but to rule on the
matter on Dawood & Minister of Home Affairs & others,4 and Matatiele
Municipality & others v President of the RSA & others (No 2).5 Neither
decision supports the argument. In both matters the court was faced with
constitutional issues that needed to be decided in the interests of justice.

4 2000 (3) SA 936 (CC).
5 2007 (6) SA 477 (CC).

[30] The very wording of section 172 (1) imposes a duty upon a court that is
approached to decide a matter said to be constitutional in nature to consider
whether an order should be granted or not: ‘When deciding a constitutional
matter . . .’

[31] In its context the word ‘when’ means ‘in the, or any, case or
circumstances in which’ (The Shorter Oxford English Dictionary on Historical
Principles Oxford University Press 1988 reprint p 2534). A court faced with 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, has a duty to refuse an order that would
encourage preliminary litigation. In National Director of Public Prosecutions v
King6 Harms DP said:
'Fairness is not a one-way street conferring an unlimited right on an accused to
demand the most favourable possible treatment, but also requires fairness to the
public as represented by the State. This does not mean that the accused's right
should be subordinated to the public's interest in the protection and suppression of
crime; however, the purpose of the fair trial provision is not to make it impracticable
to conduct a prosecution. The fair trial right does not mean a predilection for technical
niceties and ingenious legal stratagems, or to encourage preliminary litigation - a
pervasive feature of white collar crime cases in this country. To the contrary: courts
should within the confines of fairness actively discourage preliminary litigation. Courts
should further be aware that persons facing serious charges - and especially
minimum sentences - have little inclination to co-operate in a process that may lead

6 2010 (2) SACR 146 (SCA) para 5.

to their conviction and 'any new procedure can offer opportunities capable of
exploitation to obstruct and delay'.7 One can add the tendency of such accused,
instead of confronting the charge, of attacking the prosecution.’

And in Thint (Pty) Ltd v National Director of Public Prosecutions & others;
Zuma & another v National Director of Public Prosecutions & others8 Langa
CJ said:
‘I nevertheless do agree with the prosecution that this court should discourage
preliminary litigation that appears to have no purpose other than to circumvent the
application of s 35(5). Allowing such litigation will often place prosecutors between a
rock and a hard place. They must, on the one hand, resist preliminary challenges to
their investigations and to the institution of proceedings against accused persons; on
the other hand, they are simultaneously obliged to ensure the prompt
commencement of trials. Generally disallowing such litigation would ensure that the
trial court decides the pertinent issues, which it is best placed to do, and would
ensure that trials start sooner rather than later. There can be no absolute rule in this
regard, however. The courts' doors should never be completely closed to litigants.’

In Key v Attorney-General, Cape Provincial Division, & another9  Kriegler J
emphasized that, if evidence is tendered to which the accused objects, it is for
the trial court to decide in the light of all the circumstances of the case
whether fairness requires the evidence to be led or to be excluded.

7 R v H; R v C [2004] UKHL 3 ([2004 2 AC 134; [2004] 1 All  ER 1269; [2004] 2 WLR 335;
[2004] HRLR 20; [2004] 2 Cr App R 10; 16 BHRC 332 para 22 per Lord Bingham of Cornhill.
8 2009 (1) SA 1 (CC) (also reported at 2008 (2) SACR 421 (CC)) para 65.
9 1996 (4) SA 187 (CC) para 13-14.

[32] The same considerations must apply in this case. It was well-
established before the present constitutional era that a criminal trial is not to
be conducted piecemeal, and that continues to apply today. An accused is not
entitled to have the trial interrupted – or to have it not even begin – so as to
have alleged irregularities reviewed by another court in the course of the trial.
It is important to bear in mind that while the Constitution guarantees to an
accused a fair trial that does not mean that the prosecution must satisfy the
accused in advance that the trial will indeed be fair. It is the duty of the trial
court to try a charge, and to ensure that the trial is fair, and if it turns out that it
was not, then any conviction that followed might be set aside. It might even
turn out that the accused is acquitted, in which case the alleged irregularities
will be irrelevant. Litigation of the kind that is before us falls squarely into the
category of preliminary litigation that ought to be avoided and discouraged. As
Davis J said in Sapat & others v The Director: Directorate for Organised
Crime and Public Safety & others:10
‘For these reasons, I find that the essential purpose of applicants' notice of motion
was directed to the constitutionality and hence admissibility of certain evidence which
has been extracted by way of blood, semen and other samples. I consider that these
questions should be determined by the trial court when appraised of the full factual
context within which this evidence is sought to be admitted. In this way a correct
balance between the right to due process and the imperative of crime control can be
struck.'

[33] No grave injustice would result were the issues raised by applicants to
be determined by the trial court. It was said on behalf of the appellant that a

10 1999 (2) SACR 435 (C) 443 c-f.

regional court has no jurisdiction to decide constitutional issues, but that is
only partly correct. A regional court, as with any criminal court, has the duty to
ensure that a trial is fair, and that duty necessarily requires it to determine at
times whether the accused’s constitutional rights have been breached.

[34] I have pointed out above that a court is not obliged to entertain a
constitutional claim in a vacuum and thus declaratory relief is not there for the
asking. At this stage the appellant asks for a declaration to be made in vacuo.
No good reason commends itself why a court should consider such a claim.
The court below was correct in dismissing the claim and the appeal must fail.

THE CROSS-APPEAL
[35] The trial court made no costs order in the light of what it regarded as
serious constitutional issues that the appellant raised.

[36] The first and second respondents submit that the application was
vexatious and purely intended to delay the criminal proceedings. For this
reason, it was submitted that the costs of the proceedings a quo should be
awarded to the respondents.

[37] Had this court sat as court of first instance, I would have been strongly
minded to grant a costs order against the appellant. However, it cannot be
said that the trial court exercised its discretion not to award costs to the
successful respondents capriciously or injudiciously. There are no exceptional
circumstances that might justify interference with the order.

[38] The cross-appeal must therefore be dismissed.

[39] As the hearing of the cross-appeal only occupied a short period of the
hearing of this appeal no costs order will be made in respect thereof.

THE CONDONATION AND POSTPONEMENT APPLICATION
[40] While the appeal was pending, the appellant failed to adhere to the
time limits laid down for the prosecution thereof. The record was filed late.
The appellant launched an application for condonation of the late filing of the
appeal and for a postponement thereof, but arranged an extension for the
filing of the record with the office of the Registrar of this court. The
respondents opposed the application for condonation and the application for a
postponement.

[41] The application for a postponement was not persisted with, nor was the
opposition to the application for condonation.  The respondents are
nonetheless entitled to the costs of those applications as neither was
withdrawn and remained live issues until the matter was called. The
respondents are entitled to have this aspect disposed of in their favour.

[42] The following orders are made:

1.
The appeal is dismissed with costs which include the costs of two
counsel.

2.
The cross-appeal is dismissed.
3.
The appellant is to pay the costs of the application for condonation and
of the application for a postponement.

__________________
E BERTELSMANN
ACTING JUDGE OF APPEAL

APPEARANCES:

For appellant:
A Katsz SC

D Simonsz

Instructed by:

Carl van der Merwe Attorneys c/o Cornel Stander
Attorneys, Cape Town

Webbers Attorneys, Bloemfontein

For respondent:
A de V la Grange SC

A Erasmus

Instructed by:

The State Attorney, Cape Town

The State Attorney, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME COURT OF
APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:  2010

STATUS:
Immediate

Van der Merwe v National Director of Public Prosecutions

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal (SCA) today dismissed the appeal against the
refusal by the high court of a declaratory order to pronounce the
consequences of an allegedly unauthorised investigation of the case against
the appellant by the former DSO (‘the Scorpions') unconstitutional, invalid and
unlawful.

The appellant faces charges of transgressing the Exchange Control
Regulations and defeating the ends of justice in the regional court. He alleged
that the Scorpions had investigated the case against him. Such investigation
would have fallen outside the mandate of the Scorpions. Before pleading to
the charges, he launched an urgent application in the high court for a
declaratory order that the consequences of the Scorpions’ alleged actions
were unconstitutional, invalid and unlawful. The high court dismissed the
application, holding that the issues raised by the appellant should be decided
by the trial court. The SCA described the application as pre-trial litigation

designed to avoid the necessity of having to plead to the charges and aimed
at pre-empting the trial court’s ruling on the admissibility of evidence tendered
in support of the State’s case. The appeal was dismissed.