IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 803/2011
Reportable

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS          FIRST APPELLANT
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT

SECOND APPELLANT

and

ANDREW LIONEL PHILLIPS                                                   RESPONDENT

Neutral Citation:
The DPP and Minister of Justice and Constitutional
Development v Phillips (803/11) [2012] ZASCA 140 (28
September 2012)
Coram:
NAVSA, CLOETE, SHONGWE and TSHIQI JJA and
PLASKET AJA

Heard:

3 September 2012
Delivered:

28 September 2012
Summary:
Permanent stay of prosecution – Criminal Procedure Act 51
of 1977 – Constitution  – assertion of fair trial rights – right
to have trial begin and conclude without unreasonable
delay – undue delay by the Director of Public Prosecutions
in prosecuting appeal – trial having endured for many years
– factors to be taken into account and weighed in
determining whether permanent stay of prosecution
warranted

______________________________________________________________
ORDER
______________________________________________________________

On appeal from: South Gauteng High Court, Johannesburg (Satchwell J
sitting as court of first instance).

(1)
The appeal is dismissed with costs, including the costs of two counsel.
(2)
Paragraph 1 of the order of the court below is altered to read as
follows:
‘1. The appeal of the first respondent (“Director of Public Prosecutions”) against the
judgment and order handed down by Mr S.P. Bezuidenhout in the Regional
Magistrates Court for the Regional Division of Gauteng in case No 41/1899/00 on 26
November 2008 in which the Learned Magistrate acquitted the applicant (“Andrew
Lionel Phillips”) is permanently stayed.’
______________________________________________________________
JUDGMENT
______________________________________________________________

NAVSA JA (Cloete, Shongwe and Tshiqi JJA and Plasket AJA concurring)

Introduction

[1] This is an appeal, with the leave of this court, against a judgment of the
South Gauteng High Court, Johannesburg (Satchwell J). It arises because of
an abortive appeal – at least up until now – in terms of s 310 of the Criminal
Procedure Act 51 of 1977 (the Act), by the first appellant, the Director of
Public Prosecutions (the DPP), against an acquittal by the Johannesburg
regional court of the respondent, Mr Andrew Lionel Phillips.

[2] Pending the appeal in terms of s 310 – referred to in the preceding
paragraph, which, it must be said at the outset, the DPP did not prosecute
with any real intent or efficiency – Phillips brought an application in the court
below, in terms of which he initially sought, inter alia, that the appeal be

permanently struck off the roll on the basis that s 310, read with s 39(2)1 of
the Constitution, did not authorize the hearing of an appeal by the State
against an acquittal. He contended that this was particularly so where the
necessary consequence of a successful appeal would be the re-opening of
the criminal trial as this would result in him being tried twice for the same
offence. An alternative basis was that, if s 310 did authorize such an appeal, it
was unconstitutional and therefore invalid. Later, he added to the relief
sought, an order that the prosecution against him be permanently stayed on
the bases referred to above, as well as on the basis of an unjustifiable delay
in the prosecution of the appeal. In this regard, it was contended that the
delay in prosecuting the appeal which in itself was inordinate, had to be
considered alongside the elapsed time from his arrest through a very lengthy
trial. It was submitted that this infringed his right in terms of s 35(3)(d) of the
Constitution to have his trial begin and conclude without unreasonable delay.

[3] Phillips was successful. The court below struck the appeal from the roll
on the basis of the inordinate delay in finalizing both the trial and the appeal
and declared the DPP’s right to appeal the acquittal permanently stayed. The
court also ordered the DPP and the second appellant, the Minister of Justice
and Constitutional Development (the minister), jointly and severally, to pay
Phillips’ costs. It is against these conclusions that the present appeal is
directed.

[4] A detailed background leading up to the appeal is set out hereafter. For
reasons that will become apparent and, in part, due to the manner in which
the present appeal arose, the record before us is undesirably sketchy,
compounding an already shambolic litigation history.

1 Section 39(2) provides:
‘When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’

Background

[5] Phillips was arrested and detained on 2 February 2000 and, on 22
December 2000, certain of his property was attached in terms of the
provisions of the Prevention of Organised Crime Act 121 of 1998 (POCA).
The charges on which he had been arrested, and later prosecuted, are related
to the keeping of a brothel and alleged further breaches of the law, apparently
connected to that main activity. More specifically, the following were the
charges faced by Phillips:
Contraventions of:
i
Section 2 of Act 23 of 1957 (Keeping a brothel);
ii
Section 10(a) of Act 23 of 1957 (Procuring females to have carnal
intercourse);
iii
Section 12A of Act 23 of 1957 (Foreseeing that a person may have
intercourse against payment of a fee);
iv
Section (1)(a) of Act 23 of 1957 (Living off the proceeds of prostitution);
v
Section 32(1)(a) of Act 96 of 1991 (Contravening the Immigration Act);
and
vi
Perjury.

[6] In January 2004 the trial commenced in the regional court,
Johannesburg. Phillips pleaded not guilty to the charges and proceedings in
that court continued until November 2006. During the duration of the State’s
case a number of prosecutors were engaged in the prosecution. After the
State closed its case on 20 November 2006, Phillips applied for a discharge in
terms of s 174 of the Act, which was refused.

[7] The defence case was scheduled to commence on 2 June 2008. Prior
and subsequent to that date Phillips’ legal representatives sought further
information from the prosecuting authority. On 24 June 2008 Phillips raised an
additional plea in terms of s 106(1)(h)2 of the Act, namely, that a number of

2 Section 106(1)(h) reads as follows:
‘When an accused pleads to a charge he may plead–
. . .

the prosecutors who conducted his prosecution lacked title to prosecute. The
regional magistrate considered the question whether such a plea could be
raised at any stage of the trial as opposed to only at the beginning when an
accused is required to plead to the charges, and answered it affirmatively in
favour of Phillips. The magistrate went on to consider whether the
appointment as prosecutors of members of the private bar, to assist in
Phillips’ prosecution, had taken place in terms of the National Prosecuting
Authority Act 32 of 1998 (the NPA Act). He concluded, after considering
relevant sections of that Act, that they had participated in the prosecution
unlawfully and held that this had the result of vitiating the entire prosecution.
He then proceeded to acquit Phillips on all the aforesaid charges. This
occurred on 26 November 2008.

[8] Aggrieved, the DPP required the magistrate, in terms of s 3103 of the
Act, to state a case for consideration on appeal by the South Gauteng High
Court. On 26 January 2009 the magistrate formulated the questions of law as
follows:
‘i)
Is it permissible to raise a plea in terms of section 106(1)(h) of the CPA at any
stage of a trial or could it only be raised before the commencement of the
trial?
ii)
If a plea succeeds in terms of section 106(1)(h) of the CPA, is a court
compelled to acquit the accused in view of the peremptory provisions of
section 106(4)4 of the CPA, or may it resort to alternative relief instead?

(h) that the prosecutor has no title to prosecute.’
3 Section 310(1) of the Act provides as follows:
‘When a lower court has in criminal proceedings given a decision in favour of the accused on
any question of law, including an order made under section 85(2), the attorney-general or, if a
body or a person other than the attorney-general or his representative, was the prosecutor in
the proceedings, then such other prosecutor may require the judicial officer concerned to
state a case for the consideration of the provincial or local division having jurisdiction, setting
forth the question of law and his decision thereon and, if evidence has been heard, his
findings of fact, in so far as they are material to the question of law.’
4 Section 106(4) reads as follows:
‘An accused who pleads to a charge, other than a plea that the court has no jurisdiction to try
the offence, or an accused on behalf of whom a plea of not guilty is entered by the court,
shall, save as is otherwise expressly provided by this Act or any other law, be entitled to
demand that he be acquitted or be convicted.’

iii)
Does section 20 of the National Prosecuting Authority Act 32 of 1998 (the
NPA) provide for the appointment of prosecutors or does it merely regulate a
prosecutor’s powers and functions?
iv)
Is the taking of an oath in terms of section 32 of the National Prosecuting
Authority Act of 1998 a prerequisite for a person appointed in terms of section
38(1) of the Act?
v)
If, during the course of a trial, more than one person acted as prosecutor, and
one or more of them are not properly appointed as such, will this affect the
entire trial, or only those portions which were dealt with by the prosecutor not
properly appointed?’

[9] Delays occurred in the prosecution of the appeal, with the DPP and
Phillips’ legal representatives ostensibly unable to agree about the extent of
the appeal record, and whether the record, allegedly improperly compiled,
could be ‘corrected’.5 It appears that the full record of the trial, at that stage,
was voluminous – apparently comprising more than 6000 pages. The DPP
then contended that, given the narrow ambit of the questions formulated by
the magistrate in terms of s 310 of the Act, a very limited part of the record
was relevant. Phillips’ legal representatives disagreed. Correspondence was
exchanged between the parties and the Deputy Judge President of the high
court concerning the appeal. The Deputy Judge President insisted that an
appeal record be prepared and the appeal be enrolled in the ordinary course.
Several months passed without any real progress being made by the DPP in
the prosecution of the appeal. In July 2009 Phillips launched the application
referred to in para 2 above, requesting that it be considered at the hearing of

5 Rule 67 of the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts
of South Africa regulates the preparation of a record of proceedings on appeal to the high
court. Rule 67(5) provides:
‘Upon an application for leave to appeal being granted the registrar or clerk of the court shall
prepare a copy of the record of the case, including a transcript thereof if it was recorded in
accordance with the provisions of rule 66(1), and place such copy before the judicial officer
who shall within 15 days thereafter furnish to the registrar or clerk of the court a statement in
writing showing–
(a) the facts he or she found to be proved;
(b) his or her reasons for any finding of fact specified in the appellant’s statement of
grounds of appeal; and
(c) his or her reasons for any ruling on any question of law or as to the admission or
rejection of evidence so specified as appealed against.’

the appeal. I shall, later in this judgment, revert to correspondence between
the DPP’s office and the Deputy Judge President which is an aspect that has
to be addressed, and in respect of which the DPP’s office is deserving of
censure.

[10] It is necessary to record that subsequent to Phillips’ acquittal by the
magistrate, his legal representatives wrote to the curator appointed in terms of
the provisions of POCA to Phillips’ seized assets, concerning the release
thereof, notifying him of an intended application to the high court for a
rescission of the restraint order in terms of which his assets were being held.
Because of the pending appeal, the threatened application did not eventuate.

[11] Subsequent to the launching of the application to have the appeal
struck from the roll, and after failed attempts to reach agreement on the
compilation and extent of the record, Phillips filed a supplementary affidavit
indicating that, over and above the legal bases already provided for striking
the matter from the roll, he would rely on the additional ground of the
inordinate delay in prosecuting the appeal.

[12] In opposing the application, the DPP contended that the appointment
of private counsel as prosecutors had occurred in terms of the provisions of
the NPA Act. Because of the basis on which the present appeal is to be
decided, it is not necessary to consider any further the legality of the
appointment of private counsel.

[13] In respect of the delay in the prosecution of the appeal, the DPP stated
that Phillips’ legal representatives had contributed thereto by not reaching
agreement on the nature and extent of the record to be placed before the high
court, acting as a court of appeal. The DPP persisted in the view that the plea
in terms of s 106 of the Act (that had been upheld),  raised legal issues within
a narrow compass that required the appeal record to comprise only the
documents related to the plea itself and the magistrate’s reasons for
upholding it. It was contended that the issues on appeal were legal issues that

did not involve the facts or evidence placed before the regional court during
the trial. The following part of the answering affidavit by Ms Xolisile Jennifer
Khanyile, on behalf of the DPP, is relevant:
‘I further submit that the matter could have been dealt with expeditiously by placing a
core bundle of documents and the relevant portions of the record before the court of
appeal.’

[14] In her opposing affidavit, Khanyile assured the court below that the
filing of an appeal record ‘is being attended and a workable record has now
been obtained and will be filed in due course. I have also been informed that
the process is near to completion’. It is common cause that by the time
Phillips launched his application to have the appeal struck from the roll,
namely 3 July 2009, the record, as envisaged by the DPP, had not been filed.
Before us counsel on behalf of the DPP rightly conceded that it was
inexcusable that this had not been done.

[15] Moreover, it is common cause that, when the application for the striking
of the appeal from the roll and for the permanent stay of the prosecution was
ripe for hearing, no appeal record of any kind had been filed and an appeal
could thus not properly have been enrolled. This was recognized and
expressly recorded by Satchwell J at para 31 of her judgment. She went on to
hear the application as a single judge, which is the usual manner in which
applications are heard in motion court. Counsel representing the DPP
ultimately and expressly agreed in the court below that Satchwell J was
entitled to hear the application sitting as a single judge.

[16] Satchwell J considered the delay in the prosecution of the appeal,
related in the main to the filing of the record, to be the primary question to be
addressed. She stated that since the DPP was dominus litis in the appeal, it
was his primary responsibility to ensure its compilation and filing with the court
of appeal. She had regard to the DPP’s tardiness in obtaining funding for
obtaining the record. The learned judge noted that it took almost eight months
after the DPP’s notice of appeal before his office applied for such funding.

Satchwell J took into account that details of the difficulties the DPP allegedly
encountered in respect of the record that had been supplied by the service
provider, had not been communicated to Phillips’ legal representatives. This,
she reasoned, rightly caused them to be sceptical, which scepticism was
borne out by the service provider failing to provide the record because of non-
payment of its fees. Against that background, so Satchwell J reasoned, it was
disingenuous for the DPP to approach Phillips’ legal representatives to agree
to a limited record. The real reason for the delay, she held, was funding and
bureaucratic ineptitude. Satchwell J had regard to the inexplicable extensive
delays that occurred subsequent to the record being supplied by the service
provider. This, she reasoned, was due to waning enthusiasm for the pursuit of
the appeal on the part of the DPP. She rejected a plea on behalf of the DPP
to have regard to systemic problems, both in the magistrate’s court and the
office of the DPP.

[17] The court below stated the following:
‘ 52. I cannot find other than that the DPP has been dilatory in attending to
procurement of the record, naïve in failing to appreciate the need for funds to be
made available in advance of contracting with service providers, stubborn in seeking
to resolve the problems of an inadequate record by unilateral reconstruction thereof,
disingenuous in advising that the DPP was still reconstructing alternatively that
portion only of the record need be utilized.
53. I am in agreement with the view of the DPP that there has been “an inordinate
delay” in filing the record. The result has been an inordinate delay in pursuing the
appeal. This delay can be laid at the door of the DPP and nowhere else.’

[18] Satchwell J went on to consider whether the delay was such as to
justify a permanent stay of the DPP’s appeal. The following is the greater part
of the factors the court below considered relevant:
‘ 59. First, more than eleven years have elapsed since Phillips was arrested. Seven
years have passed since he first pleaded. The trial concluded some four and a half
years ago. There has been a hiatus of two and a half years since judgment was
handed down. I have no knowledge that any delay has been irregularly or
deliberately occasioned by Phillips in order to frustrate the conduct of the trial.

60. Second, the State noted its appeal two years and five months ago on 17th
February 2009. That appeal has not yet been heard which delay, as I have already
discussed in this judgment, must be ascribed to the office of the DPP.
61. Third, absent a complete record, the epic continues without land in sight. There is
no indication when or how the missing portions of the record will be reconstructed to
the approval of an appeal court. Even if this task were completed in the course of
2011, it is unlikely that a date for the hearing of the appeal could be allocated before
2012 – twelve years after arrest, in the sixth year after acquittal, three years after
noting an appeal. I repeat that such further delay would continue to fall upon the
shoulders of the office of the DPP.
62. Fourth, Phillips was charged with four counts in terms of the Sexual Offences Act
No 23 of 1957, one count in terms of the Aliens Control Act No 96 of 1991 and one
count of perjury.
63. Fifth, this is not an appeal by a convicted accused but an appeal by the
prosecution against the acquittal of Phillips. The purpose of the appeal is to have his
acquittal set aside and have him referred back to trial. I leave, for this moment, the
question of the constitutionality or otherwise of section 310 of the CPA. Instead, I
note that the clear intention and possible result of the appeal will be to once again
place Phillips in jeopardy of conviction. I am mindful of section 35(3)(m) of the
Constitution which prohibits that an accused person “be tried for an offence in
respect of an act or omission for which that person has previously been either
acquitted or convicted.” Accordingly, if such an appeal is permitted, this would
constitute an extraordinary process. At the very least, it would have to be prosecuted
with greater diligence, knowledge of law and cognizance of constitutional principles
than required in ordinary appeals. Intrinsic to such requirements is promptitude.
64. Sixth, if Phillips’ acquittal is overturned and the trial is reopened, then Phillips will
have to mount his defense at least eleven to twelve years after he was initially
charged. The prejudice to Phillips is considerable: witnesses become unavailable
and neither Phillips nor defense witnesses can be expected to remember events
more than eleven years ago clearly or confidently. Au contraire, the State has already
led all its evidence and closed its case some five to seven years ago when events
were less distant. There can be no doubt that the prosecution in this trial would have
an unfair advantage over the defence.
65. Seventh, Phillips suffers ongoing prejudice as a result of the delays in pursuit of
and finalizing this appeal. Some of these would be suffered by all accused persons in
his position. Others are unusual and unique to himself.

a. First, for over a decade he has been identified as an accused person with
criminal charges pending against him. He is described in this application as
the “notorious accused”, whose frequently successful litigation against the
NPA shows “the attitude and character of the accused.” The stigma in all
circles in South Africa is considerable. There must have been and continues
to be anxiety and stress in contemplating this apparently neverending saga. It
is not inappropriate to describe this as the “exquisite agony of the accused”.
Where imposition of psychological stress and social stigma is unwarranted,
such imposition would violate Phillips’ constitutional rights to dignity and
personal security.
b. Secondly, the financial burden cannot have been or continue to be
inconsiderable. The State has disclosed it has spent “millions” on this
litigation and so, I must assume, has Phillips.
c. Thirdly, Phillips exercises no control over the future conduct of this process.
He is precluded from finalizing the criminal proceedings against him. He is
dependant upon the office of the DPP to finalise this matter and their
endeavours, thus far, cannot inspire confidence that this ordeal will be
expeditiously concluded.
d. Fifth, certain of Phillips’ assets were restrained at the instance of the NPA in
terms of Chapter 5 of POCA in December 2000. No judge of the South
Gauteng Division can fail to have knowledge of this restraint and the
differences of opinion between Phillips and the curator of these assets over
the past eleven years. Notwithstanding his acquittal by a court of competent
jurisdiction, these assets have not been released from restraint and returned
to Phillips unencumbered. For so long as the appeal is pending, these assets
are not returned to Phillips. This is most significant curtailment of Phillips’ use
and enjoyment of his property.’

[19] The court below went on to conclude that any prosecutorial appeal and
any ensuing trial would place Phillips in double jeopardy. This is another
aspect to which I will revert in due course.

[20] Satchwell J was satisfied that Phillips’ right to a fair trial had been
infringed by the delay in finalizing the appeal. She took the view that the delay
in prosecuting the appeal served inevitably and irremediably to taint the

overall substantive fairness of the trial. The learned judge reasoned that an
appeal may be struck from the roll in exceptional circumstances and that it is
a measure to be resorted to with due caution. She concluded as follows:
’75. I take the view that the appropriate remedy is to order a permanent stay of the
appeal noted by the DPP against the conviction of Phillips. The appeal will therefore
be permanently struck off the roll.’

[21] Although the court below did not find it necessary to consider the
constitutionality of s 310 of the Act, it nevertheless thought it necessary to
criticize the deponent who opposed the application on behalf of the minister,
for failing to engage with the question whether such limitation which s 310
might impose on fair trial rights, was justified in terms of s 36 of the
Constitution. The minister’s deponent was criticized for merely referring to the
work of the South African Law Commission which had found that such
limitation is permitted in certain foreign jurisdictions. I shall say something
about this in due course.

[22] Before us the DPP and the minister relied on only three grounds of
appeal. First it was submitted that Satchwell J sitting as a single judge had no
jurisdiction to hear a matter related to the appeal in terms of s 310. In this
regard sections 22 and 13 of the Supreme Court Act 59 of 1959 were relied
upon. The relevant part of s 22 reads as follows:
‘The appellate division or a provincial division, or a local division having appeal
jurisdiction, shall have power–
(a) . . .
(b) to confirm, amend or set aside the judgment or order which is the subject of
the appeal and to give any judgment or make any order which the
circumstances may require.’ (Emphasis added.)
The relevant parts of s 13 read as follows:
‘Constitution of courts of provincial or local divisions-
(1)(a) Save as provided in this Act or any other law, the court of a provincial or local
division shall, when sitting as a court of first instance for the hearing of any civil
matter, be constituted before a single judge of the division concerned: Provided that
the judge president or, in the absence of both the judge president and the deputy

judge president, the senior available judge of any division may at any time direct that
any matter be heard by a full court consisting of so many judges as he may
determine.
(b) . . .
(2)(a) The court of a provincial or local division shall, except where it is in terms of
any law required or permitted to be otherwise constituted–
(i) for the hearing of any appeal against a judgment or order of an inferior court, be
constituted before not less than two judges.’ (Emphasis added.)

[23] It was submitted on behalf of the DPP that counsel representing him
and the minister had wrongly agreed in the court below that Satchwell J had
jurisdiction to hear the application and that they were not bound by his error of
law.

[24] The second point relied on before us is that the DPP could not be
blamed for the delay in filing the appeal record. As stated earlier, it was
contended that the delay was occasioned principally by the unreasonable
insistence of Phillips’ legal representatives to have a full record placed before
the court that would hear the appeal in terms of s 310. It was submitted that
an appeal in terms of s 310 is, by its nature, a very limited one and that
findings of fact are not susceptible to alteration on appeal. Thus, so it was
argued, only a limited record was required to be placed before the court that
would hear the appeal.

[25] The third point relied on by the DPP and the minister was that the relief
granted by the court below had not been properly foreshadowed in the
application brought by Phillips or in the supporting documentation. This point
can be dealt with briefly and immediately. Counsel on behalf of the DPP and
the minister rightly did not press this point with any enthusiasm or conviction.
There is no merit whatsoever in this point. The further basis for seeking a
striking of the appeal from the roll, namely the undue delay in prosecuting the
appeal, was communicated by way of a letter to the DPP and was fully
traversed in a supplementary affidavit as was the consequence of reliance on
that additional ground, namely a permanent stay of the appeal. The DPP and

the minister could have been under no illusion as to the nature and extent of
the relief sought by Phillips. In any event, the notice of motion was amended
ex abudante cautela.

[26] As noted by the court below, the DPP had not, up until the application
had been heard, sought condonation for the inordinate delay in filing the
appeal record. Indeed, as stated before, as things presently stand, no appeal
record of any kind has been filed.

Conclusions

Jurisdiction

[27] It is common cause that the DPP had removed the appeal against the
magistrate’s decision from the roll on the day prior to the hearing of the
application by Satchwell J.

[28] It was rightly conceded by counsel representing the DPP and the
minister that, notionally, one could have an application to the high court in
respect of a trial that has not been completed and that the application could
be unrelated to substantive issues raised on appeal by the prosecution in
terms of s 310 of the Act. Counsel was constrained to accept that in those
circumstances the high court could hear the application in the ordinary course.
In those circumstances a single judge would usually hear the matter.

[29] The submission on behalf of the minister and the DPP in respect of the
jurisdictional point is misplaced. It fails to take into account that the appeal in
terms of s 310 could not be heard because no record of any kind had been
finalized or filed. Thus, it could as a first step not be properly enrolled. If the
appeal in terms of s 310 had in fact been heard by the high court constituted
as a court of appeal, that court would have been confined to dealing with only
those issues raised as a result of the magistrate’s conclusions in relation to

the plea by Phillips in terms of s 106 of the Act and to procedural matters
directly related to that appeal.

[30] An appeal court becomes seized of an appeal when it has been duly
prosecuted in terms of the rules of that court, and in accordance with any
applicable statutory provision.6

[31] The application before Satchwell J was not interlocutory and certainly
was not accessory or subordinate to the appeal in terms of s 310 of the Act.7
It was a self-standing application, distinct from the main proceedings. This is
particularly so in respect of reliance by Phillips on the delay in the prosecution
of that appeal, which he contended ultimately infringed his rights to a fair trial
guaranteed by s 35(3) of the Constitution. I agree with the submission that this
part of his case is based on distinct facts which arose, in the main,
subsequent to the order that is intended to be appealed against in terms of
s 310 of the Act.

[32] In the event that any accused intends to challenge procedural
irregularities in the magistrates’ court, or raise the kind of issues raised by
Phillips in the application before Satchwell J, particularly in respect of the
undue delay in prosecuting the appeal, it would ordinarily require a proper
notice of motion, specifying the relief sought supported by the necessary
affidavits. Interested parties would have to be given notice and the matter
would ultimately be decided after all the affidavits had been filed. In the
present case that was done. The application was ripe for hearing. The appeal
was not.

[33] Furthermore, a litigant such as Phillips would, according to the DPP
and the minister’s view, have to wait until the DPP finally properly enrolled an

6 See D & H (Pty) Ltd v Sinclaire 1971 (2) SA 157 (W) at 158C-E, citing Campbell v Monto
1952 (3) SA 82 (T) at 84H-85A and R v Kluyts 1951 (1) SA 474 (C) at 478F-H
7 See Massey-Ferguson (South Africa) Ltd v Ermelo Motors (Pty) Ltd 1973 (4) SA 206 (T) at
214G-H.

appeal, if at all. This would mean that a litigant such as the DPP could unduly
frustrate an accused who might well have legitimate grievances concerning
irregularities in a criminal trial or about the prosecution of an appeal, not
directly related to the issues raised in a contemplated appeal.

[34] The concession on behalf of the DPP, set out in para 28 above, was
rightly made and the point was not pursued with any real conviction. It is clear
that the court below was properly constituted in terms of s 13(1)(a) of the
Supreme Court Act 59 of 1959. I do not wish to be understood as laying down
the principle that an application, such as that brought by Phillips, can only be
heard by a single judge.It may be considered necessary or convenient for the
matter to be heard by two, or indeed, by three judges.

Delay in filing the appeal record

[35] It is necessary to record that counsel for the DPP and the minister
rightly admitted that there was no evidentiary material before us, or indeed,
before Satchwell J, that demonstrated any wilful obstruction by Phillips of the
appeal process. As stated earlier, counsel for the DPP and the minister
conceded that, at the very least, the DPP could have filed the limited record
his office insisted was all that was required for the hearing of the appeal in
terms of s 310 of the Act. The DPP could then have abided a decision by the
court of appeal on whether the record was adequate.

[36] In my view the communication and litigation history between the DPP’s
office and Phillips, noted by the court below and recorded in paras 17 and 18
above, in respect of the prosecution of the appeal, as well as its conclusion
that the inordinate and continuing delay can rightly be placed at the door of
the DPP, cannot be faulted.

[37] Rule 51(3) of the Uniform Rules of Court, which applies in general to
the setting down of criminal appeals from magistrates’ courts, provides that
the ultimate responsibility of ensuring that all copies of the appeal record are

in all respects properly before the court, rests on the appellant or his or her
legal representative. Further, it provides that, where an appellant is
unrepresented, that responsibility rests on the DPP. The latter can hardly
escape responsibility when he appeals from the magistrates court in terms of
s 310 of the Act.

[38] Generally speaking, where there is a delay in prosecuting an appeal,
courts require an appellant to apply for condonation for failure to comply with
prescribed time limits and to fully explain why there has been a delay. In
Napier v Tsaperas 1995 (2) SA 665 (A), there was no such application for
condonation when an appellant filed the record more than four months late. At
671A-C this court stated the following:
‘I must not, however, be taken to express, in this judgment, any firm views on the
merits of an application for condonation. For present purposes, it suffices to say that
there appear to be several weaknesses in the explanations offered for the late
lodging of the record, and that the Court, in deciding on condonation, may also have
regard to the appellant’s failure to bring the application timeously. In Rennie v Kamby
Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G it is said that an appellant, when he
realises that he has not complied with a Rule of Court, should apply for condonation
without delay. His inaction may also be relevant, in my view, when he should have
realised, but did not, that he has not complied with a Rule. The matters to be taken
into account in an application for condonation include the respondent’s interest in the
finality of a judgment, the avoidance of unnecessary delay in the administration of
justice and, last but not least, the convenience of the Court.’
In Napier, absent an application for condonation, this court struck the matter
from the roll.

[39] In Beira v Raphaely-Weiner 1997 (4) SA 332 (SCA) at 337D-E, the
following appears:
‘There is no explanation on the papers for the delay between the second and the
third dates. In the circumstances of this case this is fatal, even should there be
prospects of success, because an application for condonation must be made as soon
as it is realised that the Rules have not been complied with; the petitioner is required
to give a full and satisfactory explanation for whatever delays have occurred; and the

respondent’s interest in the finality of the judgment is a factor which weighs with the
Court . . . .’

[40] In Toyota South Africa Motors (Pty) Ltd v Commissioner, South African
Revenue Service 2002 (4) SA 281 (SCA) para 15, Howie JA, with reference to
Beira, said the following:
‘A party seeking condonation must, among other things, give a full and satisfactory
explanation for whatever delays non-compliance has occasioned; an inadequate
explanation could well bar the grant of condonation . . ..’

[41] It is more than two years beyond the time envisaged by rule 67 of the
magistrates’ court rules for the provision of the record to the court of appeal,
in respect of which, as pointed out above, an appellant holds ultimate
responsibility. As noted by Satchwell J, there is still no end in sight. I recorded
earlier that counsel for the DPP was at pains to explain to this court that he
was unable to justify the failure by the DPP’s office to file even the limited
record it insisted was all that was required. The asserted justification by the
DPP for the inordinate and continued delay was rightly rejected by the court
below. Having regard to the authorities set out above, an application for
condonation in the ordinary course might well be doomed to failure. In
addition, where there has been a flagrant disregard of the rules of court, that
on its own may render prospects of success irrelevant. In this regard see
Darries v Sheriff, Magistrate’s Court, Wynberg 1998 (3) SA 34 (SCA) at 41B-
E.

[42] I interpose to state that, arguably, a more extensive record than
contended for by the DPP was required to answer the questions of law posed
by the magistrate in terms of s 310. It might well have been necessary for the
high court sitting as a court of appeal to consider the extent of the involvement
of the ‘private’ prosecutors and their impact on the trial. As stated earlier, and
as will become clear, that is a question that does not require to be addressed
by us. I merely restate that, in any event, the DPP was entitled to assert his
perspective on the extent of the appeal record by filing the limited record he

contended was justifiable, and then abiding the court of appeal’s decision in
relation thereto.

[43] I now turn to deal with whether the decision by the court below to order
a permanent stay of the prosecution was correct. In order to do so, it is
necessary to address Phillips’ contention that his right to a fair trial was
infringed, more especially because of the delay in prosecuting the appeal.

[44] Section 35(3)(d) of the Constitution provides:
‘Every accused person has a right to a fair trial, which includes the right–
. . .
(d) to have their trial begin and conclude without unreasonable delay.’

[45] Ordinarily, when fair trial rights are asserted on the basis of any of the
sub-categories of s 35, including, for example, the right to have a legal
practitioner assigned by the State, if substantial injustice would otherwise
result, it is pre-eminently a matter for the trial court to adjudicate upon. This
would involve having regard to the alleged infringement of rights and the
resultant prejudice, if any.8 It does not, however, exclude a higher court, in the
event of established facts clearly indicating an infringement of rights, from
making that determination.

[46] In Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC),
the Constitutional Court dealt with a case of an accused who was well known
in entertainment circles who had allegedly sexually interfered with two young
girls years before his arrest. For various reasons, there was a lengthy delay in
bringing him to trial in the regional court. The accused approached the high
court seeking a permanent stay of the prosecution on the basis that there had
been an unreasonable and inexcusable two year delay in prosecuting him,

8 See Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) para 30; The Legal
Aid Board (Ex parte) v Pretorius [2007] 1 All SA 458 (SCA) para 43 and Betts v Brady (1941)
316 US 455 at 472.

infringing his rights to a speedy trial as provided for in the interim Constitution.
He failed in the high court and proceeded to appeal the matter in the
Constitutional Court. Kriegler J considered why the right to a trial within a
reasonable time was included as one of the specifically enumerated elements
of a fair trial. He had regard to comparative constitutional provisions. The
Constitutional Court held that liberty, security, trial and non trial-related
interests should all be regarded as protected.

[47] In Sanderson, the Constitutional Court considered that an accused
person is subject to various forms of prejudice and penalty, merely by virtue of
being an accused. That court noted that socially, doubt would have been
sown in the eyes of family, friends and colleagues as to the accused’s integrity
and conduct. The repercussions would vary from case to case but with the
reality of the criminal justice system. In addition to social prejudice, an
accused is subject to invasions of liberty that range from incarceration to
onerous bail conditions to repeated attendance at remote courts for formal
remands. Kriegler J recorded that this kind of prejudice resembled closely the
kind of ‘punishment’ that ought ideally to be imposed on convicted persons.
He had regard to our apartheid past in which the machinery of the criminal
justice system was abused. The response of the Constitution has been
pragmatic. The trial accompanied by the forms of prejudice set out above
must be ‘within a reasonable time’.

[48] The Constitutional Court, in Sanderson¸ addressed the critical question
of how to determine whether a particular lapse of time is reasonable. First, the
amount of elapsed time is obviously central to the enquiry. Factors generally
relied on by the State, such as waiver, the inherent time requirements of the
case and systemic reasons for delay, all seek to diminish the impact of
elapsed time. In Sanderson at para 30 the Constitutional Court said the
following:
‘The courts will apply their experience of how the lapse of time generally affects the
liberty, security and trial-related interests that concern us. Of the three forms of
prejudice, the trial-related variety is possibly hardest to establish, and here as in the

case of other forms of prejudice, trial courts will have to draw sensible inferences
from the evidence. By and large, it seems a fair although tentative generalisation that
the lapse of time heightens the various kinds of prejudice that s 25(3)(a) seeks to
diminish.’

[49] The following were considered to be the most important factors bearing
on the enquiry. First, the nature of the prejudice suffered by the accused, from
incarceration to restrictive bail conditions and trial prejudice even carried
through to mild forms of anxiety. The greater the prejudice, the shorter should
the period be within which the accused is tried. Second, the nature of the case
is important. In this regard, judges must bring their own experiences to bear in
determining whether a delay is over-lengthy. Third, systemic delay should be
considered. Systemic failures, so the Constitutional Court stated, are probably
more excusable than cases of individual dereliction of duty. Nevertheless,
there comes a time when systemic causes can no longer be regarded as
exculpatory.

[50] Kriegler J, in Sanderson, considered that it is by no means only the
accused who has a legitimate interest in a criminal trial commencing and
concluding reasonably expeditiously. At para 37 he stated the following:
‘Since time immemorial it has been an established principle that the public interest is
served by bringing litigation to finality.’

[51] Importantly the Constitutional Court noted that barring a prosecution –
in Sanderson, there was an application for an order in those terms before the
trial began – was far reaching. In that case, because the trial had not begun,
there was no real opportunity to ascertain the real effect of the delay on the
outcome. Kriegler J observed that such an order prevents the prosecution
from presenting society’s complaint against an alleged transgressor of
society’s rules of conduct and that in the absence of significant prejudice to an
accused, it would seldom be warranted. In favour of the prosecution, the
Constitutional Court considered the difficulty in handling complaints of sexual
abuse in children. In Sanderson, after weighing all the necessary factors, the

Constitutional Court held that it was not an appropriate case to order a stay of
the prosecution.

[52] In Bothma v Els 2010 (2) SA 622 (CC), the Constitutional Court dealt
with a 37-year pre-trial delay. It concerned the prosecution of someone for
allegedly having raped a 13-year-old school girl and thereafter repeatedly
subjecting her to sexual abuse. The alleged victim had waited decades before
turning to the criminal justice system. In Bothma, the Constitutional Court
considered that in the balancing of the various factors relating to prejudice to
the accused, the nature of the offence was a necessary counter weight to be
taken into account. It referred with approval to the decision of this court in
Zanner v Director of Public Prosecutions, Johannesburg 2006 (2) SACR 45
(SCA), in which it was considered important to have regard to those
distressed by the horrors of the alleged offence. In Zanner, this court thought
that against the accused’s interests should be juxtaposed the societal demand
in serious offences that an accused should stand trial. The Constitutional
Court noted that child rape is an especially egregious form of personal
violation. It had regard to the fact that only recently have adult women come
to grips with sexual abuse they suffered as children and were more willing to
confront their abusers. This process, however, generally takes quite a long
time. It is clear in Bothma, that the special character of the sexual abuse of
children, its impact on them and the time it takes to come to terms with it, are
especially important when a permanent stay of prosecution is sought in
relation thereto.

[53] In my view, Satchwell J properly weighed up the necessary factors.
Even contemplating that the position of women, as a vulnerable class, might
well have come into play in the trial, given the lack of particularity supplied by
the DPP, it is difficult to take it into account. There is no engagement by the
DPP on affidavit about how such factors impacted on the duration of the trial
and on the delay in the prosecution of the appeal. There is no indication that
the prosecution has endured for so long and the appeal was unduly delayed

due to the difficulties attendant upon a particularly vulnerable class of victims.
There was no reliance thereon by the DPP.

[54] It is true that there is reference by the DPP to foreign nationals who
apparently had testified that they had been brought to South Africa and forced
into prostitution. One would have expected that the DPP, allegedly concerned
about the issues thrown up by the evidence already adduced, would act with
greater purpose and commitment. Should a court, without an end in sight in
respect of the proposed appeal (in terms of s 310) and therefore no indication
of when the trial might resume, in the event of a successful outcome for the
DPP, expect an accused to continue to be in limbo? In the totality of the
circumstances of this case, I think not.

[55] I can find no fault with Satchwell J’s reasoning in her path toward
concluding that a permanent stay of the prosecution was justified. She was
correct in laying the fault for the delay at the door of the DPP. She was correct
to conclude that the inordinate delay was inexcusable. The learned judge was
correct in her reasoning about the impact of the delay on the trial that itself
was unduly prolonged. This was ironic, given that the justification for engaging
‘private’ prosecutors was that it would result in greater efficiency and
expedition.

[56] In my view, the permanent stay of the prosecution ordered by the court
below was justified. I express caution concerning Satchwell J’s remarks about
a successful result in the appeal by the DPP in terms of s 310, resulting in
double jeopardy for Phillips or, indeed, for any accused. It is an open question
whether an irregularity resulting in an acquittal or conviction is in effect a
decision properly arrived at on the merits and whether it truly results in double
jeopardy. The answer to that question might very well depend on the
circumstances of the case, more particularly the nature of the irregularity, the
evidence already heard and the prejudice that might ultimately result for an
accused. We do not make any pronouncement on that issue and it was
unnecessary for the court below to say anything in that regard. Additionally, it

was not necessary for the court below and, considering the reasons provided
above, it is also not necessary for us to engage in a discussion on the
constitutionality of s 310 of the Act. Phillips was arrested more than twelve
years ago. An appeal record has still not been finalised. The time has come to
put an end to a sorry saga. This, the high court below rightly attempted to do.

[57] Satchwell J’s criticism of the deponent on behalf of the minister for
failing to provide justification for the right of an appeal by the DPP in terms of
s 310 was in my view not well-grounded. An extensive international
comparative study of the right by prosecution authorities to appeal decisions
against acquittals was referred to. That study was relevant and would
certainly have been of assistance in the event that the constitutionality of
s 310 of the Act had to be decided.

[58] It is now necessary to address an issue referred to earlier, namely an
unethical letter sent to the Deputy Judge-President of the South Gauteng High
Court by the DPP’s office, concerning the prosecution of the appeal in terms
of s 310 of the Act. In a letter dated 3 June 2010 Mr GS Maema, the then
Acting Director of Public Prosecutions, based at the South Gauteng High
Court, Johannesburg stated, inter alia, the following:
‘1. The accused is the owner of a well-known brothel – The Ranch - that was situated
in Rivonia.
. . .
3. This case is a prime example of human trafficking as some of the prostitutes
testified that they were brought to SA under false pretences and forced to work at
The Ranch. The trafficker testified that he brought the women to SA in conjunction
with the accused. The accused also paid for the traveling expenses of the women
brought to SA.’

[59] Counsel representing the DPP rightly conceded that the letter was
indefensible and ethically questionable. He agreed that it was deserving of
censure. It is unacceptable for the office of the DPP to engage in a
communication, in a tone that was rightly described by Phillips’ legal
representatives as being familiar and collaborative. The Deputy Judge

President rightly registered his dismay in a letter to the DPP’s office. The
office of the DPP should know better than to communicate with the head of a
court on the merits of an appeal before it is heard.

[60] There is one remaining aspect that requires brief attention. The court
below ordered that the appeal in terms of s 310 be permanently struck from
the roll. Given that the appeal in terms of s 310 had not been properly
enrolled, and that, in any event, it had been withdrawn from the roll, that part
of the order of the court below is difficult to understand. The permanent stay
of the prosecution of the appeal ordered by the court below would in any
event have been the end of the litigation path between the parties.
Accordingly the order requires to be adjusted minimally. The parties were
agreed that in the event of an outcome favourable to Phillips, the order was to
be altered in the form that appears hereafter.

[61] The following order is made:
1 The appeal is dismissed with costs, including the costs of two counsel.
2 Paragraph 1 of the order of the court below is altered to read as follows:
‘1. The appeal of the first respondent (“Director of Public Prosecutions”) against the
judgment and order handed down by Mr S.P. Bezuidenhout in the Regional
Magistrates Court for the Regional Division of Gauteng in case No 41/1899/00 on 26
November 2008 in which the Learned Magistrate acquitted the applicant (“Andrew
Lionel Phillips”) is permanently stayed.’

____________________
MS NAVSA
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

P. Ellis SC

Instructed by:

The State Attorney, Johannesburg

The State Attorney, Bloemfontein

FOR RESPONDENT:

MR Hellens SC (with him David Unterhalter SC)

Instructed by

Shannon Little Attorneys, Alberton

Webbers Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 September 2012

STATUS

Immediate

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

DPP and Minister of Justice and Constitutional Development v Phillips (803/2011)
[2012] ZASCA 140 (28 September 2012)

The Supreme Court of Appeal (SCA) today dismissed with costs an appeal by
the Director of Public Prosecutions and the Minister of Justice and
Constitutional Development against an order of the South Gauteng High Court
(Satchwell J), in terms of which it ordered a permanent stay of prosecution
against Mr Andrew Lionel Phillips. Mr Phillips was arrested in February 2000
and on 22 December of that year substantial property was attached in terms
of the provisions of the Prevention of Organised Crime Act 121 of 1998. The
charges on which he had been arrested and later prosecuted were related to
the keeping of a brothel and alleged further breaches of the law, apparently
connected to that main activity.

In January 2004 the trial commenced in the regional court, Johannesburg.
Phillips pleaded not guilty to the charges and proceedings in that court
continued until November 2006. During the duration of the State’s case a
number of prosecutors were engaged in the prosecution. After the State
closed its case on 20 November 2006, Phillips applied for a discharge in

terms of s 174 of the Act, which was refused. Subsequently, Mr Phillips raised
a plea in terms of s 106(1)(h) of the Criminal Procedure Act 51 of 1977 (the
Act), namely that a number of prosecutors, who conducted his prosecution,
lacked title to prosecute. That plea was upheld.

Aggrieved, the Director of Public Prosecutions (DPP) required the Magistrate
to formulate questions for an appeal by it to the South Gauteng High Court in
terms of s 310 of the Act. Delays occurred in the prosecution of the appeal,
mainly due to ineptitude on the part of the prosecution authorities. Years had
passed since Mr Phillips’ trial commenced. The contemplated appeal in terms
of s310 by the DPP had not yet materialised, because a record of appeal,
which is the responsibility of his office, has not yet been filed.

Because of the lengthy delay in finalising the appeal, Mr Phillips applied to the
South Gauteng High Court for a permanent stay of his prosecution, on the
basis that, even if it were to run its course, it would, because of the
inexcusably lengthy delay, impinge on his right to a fair trial. Mr Phillips was
successful in the High Court.

This court, in dismissing the appeal, said the following:

‘. . . , [T]he permanent stay of the prosecution ordered by the court below was
justified.
. . .
Phillips was arrested more than twelve years ago. An appeal record has still not been
finalised. The time has come to put an end to a sorry saga.’