In a landmark decision with far-reaching constitutional implications businessmen Brett and Roger Kebble and Hennie Buitendag have been granted leave to appeal against an earlier High Court decision saying they had to stand trial on charges relating to a hostile takeover bid of one of their companies, gold mining company Randfontein Estates.
In an earlier judgment Mr Justice Labuschagne had found that the trio had a case to answer. Now, after argument from Advocate Gilbert Marcus, SC, he has said that after ”anxious consideration” he has come to the conclusion that in light of the Bill of Rights another court might not agree with his earlier decision.
He gave the trio leave to appeal to the Supreme Court of Appeal and argue there that they had no case to answer. If not given the opportunity to have the merits of their appeal considered by the Supreme Court of Appeal he granted them leave to appeal to the Constitutional Court, saying they had raised ”matters of substance”.
He said: ”A criminal trial interferes significantly with the liberty of the” accused person. For the duration of the trial he or she is obliged to be present in court. His or her professional life is subordinated to the trial.”
The judge then reasoned that if the legal foundation of the trial were faulty, the trial would violate the Constitution.
Brett said on Tuesday that the decision was a major advance for human rights in South Africa.
”Effectively the judge is saying that it would be unfair for us to sit through a trial only then to have another court find that the charges were so bogus that we should never have been put on trial in the first place. This will go a long way to protecting people from phony or malicious prosecutions, which would in the end be shown to be false but in the meantime cost the defendants time, money and embarrassment.
”Our case is a classic example of this. I am delighted with this judgement for myself and my colleagues and also because it will add yet more armour to an ordinary citizen’s rights.”
Sharon Wapnick of Moss Morris, head of the Kebbles’ legal team, said the decision was unprecedented and would make legal history.
”It is a landmark judgement because it recognises that the courts must step in to protect accused persons from the trauma of enduring a trial when the charges that led to that trial might disclose no offence and are therefore legally defective.” — I-Net Bridge