Marianne Merten
The Cape High Court this week delivered one of South Africa’s first rulings on ethical and accountable conduct by state officials when it slammed as unconstitutional the actions by two state advocates in prosecuting the 1996 murder of Cape gang boss Rashaad Staggie.
Cape Deputy Judge President Jeanette Traverso and Judge Dennis Davis set aside the grounds for the state’s successful application to a London court to obtain video footage of Staggie’s murder from Reuters and Associated Press (AP) because the prosecutors acted “clandestinely”.
The judges said Deputy National Director of Public Prosecutions Jan D’Oliveira and his Western Cape counterpart, advocate Willie Viljoen, had placed misleading evidence before the London Central Criminal Court and withheld information.
D’Oliveira and Viljoen were also slammed for giving the wrong impression to Reuters and AP’s lawyers that they would be informed timeously of any international legal steps in various correspondence, meetings and telephone calls.
Tuesday’s judgement effectively means the international news organisations no longer have to comply with the London court order to hand over the video material of the night of August 4 1996 when Staggie was beaten, shot and set alight during a march by People against Gangsterism and Drugs (Pagad).
And the state has to relaunch its bid to secure the footage it considers crucial evidence for the trial of five current and former Pagad leaders, which resumes on August 13.
“This [decision] is spelling out the conduct of administrative officials … It’s a milestone,” said Professor Jeremy Sarkin, deputy dean of the law faculty at the University of the Western Cape.
Although the judgement invalidated how the video material was secured, it had not ruled the footage itself inadmissible. It is now up to the state to follow the correct procedure to obtain it and this could mean further delays of the trial, said Sarkin.
Alleged Mafia boss Vito Palazzolo is continuing to contest a similar application for international assistance next month. In court papers he has accused head of the Investigative Directorate for Organised Crime, Percy Sonn, of misleading the Cape High Court to secure an order for help from Lichtenstein authorities to access documents of his trusts and companies in December 1999.
Reuters and AP lawyers in June asked the Cape High Court to review the state’s approach to the British courts on the basis of ethical, honest and procedurally fair action by state officials set down in sections 195 and 33 of the Constitution.
The application for international help was lodged on November 8 last year days before the start of the trial and shortly after the local bureau chiefs of Reuters and AP were subpoenaed. But it was not mentioned in court on November 13 last year when the state successfully obtained a six-month postponement. Later during the trial Viljoen said this was done not to tip off the media. The request for assistance was not carried out until March this year when D’Oliveira activated it.
During the trial Viljoen repeatedly expressed frustration over not having the videos. On several occasion he asked the court to sit in camera or order that no details of a witness could be published because of fears for their safety. At least three witnesses arrived in court under heavy police protection.
Yet Judges Traverso and Davis pointed out in their judgement that during the London application Viljoen told the British judge “he was of the opinion that any witness who testified or who had already testified in a Pagad related matter was in minimal or no danger of being harmed”.
The judges, who did not consider issues of media freedom, said evidence before them showed that Viljoen and D’Oliveira were determined to obtain the video material at all costs.
“It seems that they were satisfied that whatever the means, they could justify the end … It is indeed a sad day when senior members of the prosecuting authority themselves make contradictory statements and mislead the court.”
Copies of the judgement have been sent to President Thabo Mbeki, Minister of Justice and Constitutional Development Penuell Maduna and National Director of Public Prosecutions Bulelani Ngcuka as the judges said the prosecutors’ conduct was “of such a serious nature that it warrants investigation at the highest level”.
Representatives of Ngcuka and Maduna said the ruling was disappointing and could be appealed. Asked for a response to the judges’ comments and similar criticism this week by a KwaZulu-Natal judge, Ngcuka’s spokesperson Sipho Ngwema said “it’s not a train smash” as the prosecuting authority brought thousands of cases to court without any criticism.
“We have full confidence in the two officials [Viljoen and D’Oliveira]. They are people of high integrity,” said Maduna’s spokesperson, Paul Setsetse. Presidential spokesperson Bheki Khumalo said the ruling was being studied.
Pagad welcomed the decision as one which “restores some faith in the judiciary”, but warned that the conduct of the prosecutors was just the tip of the iceberg.