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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING

Case No. 20/2013

In the matter between:

THE STATE

and

DIRK HENDRIK CONRADIE ACCUSED 1SARAH NGENOHANI DAMASES ACCUSED 2

Neutral citation: S v Conradie & Another (CC 20/2013) [2016] NAHCMD 24 (12 February 2016)

CORAM: MASUKU, J

Heard: 01 and 02 December 2015

Delivered: 12 February 2016

REPORTABLE

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Flynote: CRIMINAL PROCEDURE – Provisions of s.106 and 85 of the Criminal

Procedure Act 1977 discussed and applied - Plea of lack of jurisdiction and whether an

accused by pleading to an indictment without the issue of jurisdiction having been first

dealt with thereby clothes the court with jurisdiction to try him or her - Application of s.85

and whether an accused is entitled to the quashing of a charge in the absence of

evidence being led by the prosecution as to whether the charge contains all the

essential allegations required by the Anti-Corruption Act, 2009.

Summary: PLEA - The two accused persons were charged with alleged

contraventions of the Anti-Corruption Act. Accused 1 alleged that the court does not

have jurisdiction to try him as part of the offence alleged in count 1 allegedly occurred in

Lisbon, Portugal. The question was whether by pleading to the count the said accused

person would thereby confer this court with jurisdiction without having dealt with the

plea of lack of jurisdiction. Held – the plea provided for in s. 106, including lack of

jurisdiction is the one that joins issues between the State and an accused and is

peremptory. Held – No plea, no lis. Held further that by pleading lack of jurisdiction, the

accused does not thereby clothe the court with jurisdiction. Accused persons called

upon forthwith to plead to the indictment.

QUASHING OF CHARGES – The 1st accused also applied for the charge in count 2 on

allegations of corruption to be quashed on the basis that the said accused was not a

public officer within the meaning of the Anti-Corruption Act and that it was not shown

that the company MTC was a State Enterprise and that the remuneration paid to the

said accused person in his capacity as a Director and Chairperson of the MTC Board

were public funds within the meaning of the Anti-Corruption Act. Held – the application

to quash the charges was premature as the State has the obligation to lead evidence to

prove the allegations made in the charge sheet and must be afforded the opportunity to

do so. The application to quash the charges in count 2 was accordingly dismissed.

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ORDER

1. The accused persons are forthwith called upon to plead to the indictment.

2. The application by Accused 1 to quash the charges in respect of Count 2 is

dismissed.

RULING

MASUKU J,

Issues for determination

[1] Two principal issues fall for determination in this Ruling. The first is whether the

1st accused, Mr. Dirk Conradie, and his co-accused, Ms. Sarah N. Damases, should at

this stage, be called upon to plead to the indictment containing the charges the State

has preferred against them in terms of s. 106 of the Criminal Procedure Act1(the ‘Act’).

The second issue involves an application by the 1st accused only for the quashing of the

charges in the second count against him in terms of the provisions of s. 85 of the Act.

Introduction

[3] The two accused persons stand before me jointly charged with a count of alleged

contravention of the provisions s. 42 (2) (a) and (b) of the Anti-Corruption Act2, as read

with ss. 32, 43, 46, 49, 50 and 51 of the said Act. In addition to this count, the 1st

accused is charged with two counts of the alleged contravention of the provisions of s.

1 Act No. 51 of 1977.2 Act N0. 8 of 2003.

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43 (1) as read with s. 32, 43 (2), 43 (3), 46, 49, 50 and 51 and the contravention of the

provisions of s. 46 of the Anti-Corruption Act. In the last count, he is alleged to have

contravened the provisions of s. 242 (5) as read with subsections (1), (2) (a), (b), (3) (a),

(b), and (6) of s. 242 and s. 243 (1) the Companies Act3 (the “Companies Act”).

[4] The first three charges relate to corrupt activities allegedly committed by the

accused persons in relation to a tender for services involving a company known as MTC

Limited, in which at issue was an advertising tender in the amount of N$ 60 Million in

relation to which it is alleged there was conduct by the accused persons in

contravention of the Anti-Corruption Act. The last count relates to the 1 st accused’s

alleged failure to disclose an interest he and the 2nd accused allegedly had in the

aforesaid tender. I find it unnecessary, at this stage to state in full all the allegations

made in relation to each count, considering the limited nature of the issues presently

identified for determination.

[5] I should mention at this nascent stage of this Ruling that both issues falling for

determination as captured above, do not touch or concern the 2nd accused. Both of

them relate to the 1st accused.

[6] I intend to deal with both live issues and detail the material upon which both

attacks are predicated. For ease of reading, I propose to start with the issue relating to

the question whether the accused persons should be called upon to plead at this stage.

As earlier intimated, the 2nd accused has no difficulties tendering her plea to the single

count in respect of which she stands indicted, but the 1st accused does and for reasons

to be advanced and detailed below. I will thereafter proceed to deal with the application

for the quashing of the second count in relation to the 1st accused.

Pleading to the charges

3 Act No. 28 of 2004.

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[7] The issue for determination in this part of the Ruling relates to count four. In that

count, the 1st accused is alleged to have contravened the provisions of s. 242 (5) as

read with subsection (1), (2) (a), (b), (3) (a) (b) and (6) of section 242 and section 1 of

243 of the Companies Act. The 1st accused, through his counsel filed a special plea,

which shorn of all frills essentially attacks this court’s jurisdiction to try the said accused

person for this count on the basis that some of the conduct forming the charge allegedly

took place in Lisbon, Portugal, outside this court’s jurisdiction. It must be mentioned in

this regard as trite that unless the offence involves theft, which is in law regarded as a

continuous offence or the legislature intervenes and clothes the court with special

powers and jurisdiction, a court does not ordinarily have the power to try an offence that

allegedly occurred outside its territorial precincts.4

[8] At this juncture, the argument advanced on behalf of the 1 st accused is that

because he has challenged this court’s jurisdiction to try him for the said offence by

notice in terms of s. 106 (3) of the Act and for the aforestated reasons, he may not

properly plead to the charges at this stage because if he does so plead, he will have, by

the very act of pleading, clothed this court, without further ado, with the jurisdiction

necessary to try him for same.

[9] According to Mr. Soni, for the 1st accused, as I understood him, the court is

bound to deal with the special plea of jurisdiction in the first instance and determine it

one way or the other before the 1st accused can be called upon to plead to this count

and the others preferred against him. Needless to say, Mr. Marondedze, for the State

took a contrary view and actually pushed for the accused persons to be called upon to

plead at this stage even before the issue of the court’s jurisdiction can be determined by

the court. To do otherwise, so he contended, would amount to putting the cart before

the horse as it were. It is Mr. Marondedze’s application for the accused persons to

forthwith plead to the charges that must first be determined.

4 S 16 of the High Court Act No. 16 of1990

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[10] Mr. Soni, in his spirited address argued that where an accused person attacks

the court’s jurisdiction or competence to try him on the basis that the charge in question,

or essential components thereof allegedly took place outside the court’s jurisdictional

precincts, then if the said accused person tenders a plea to the charge, and I may

mention in this regard that if he or she pleads the absence of the court’s jurisdiction, by

that very act of pleading, and without more, he or she will have thereby submitted to the

court’s jurisdiction and given the said court the wherewithal, so to speak, to try him or

her for the said count. Crucially, I must mention, no authority was cited in support of this

novel but far-reaching proposition.

[11] Mr. Marondedze, for his part, relied for his argument on the very provisions of s.

106 (1) of the Act. It is important in my view to quote the said provision in its entirety for

ease of determining this very contentious issue. The said section reads as follows:

‘When an accused person pleads to a charge he may plead –

(a) that he is guilty of the offence charged or of any offence on which he may be convicted

on the charge; or

(b) that he is not guilty; or

(c) that he has already been convicted of the offence with which he is charged; or

(d) that he has already been acquitted of the offence with which he is charged; or

(e) that he has received a free pardon under section 327 (6) from the State President for the

offence charged; or

(f) that the court has no jurisdiction to try the offence; or

(g) that he has been discharged under the provisions of section 204 from prosecution for the

offence charged; or

(h) that the prosecutor has no title to prosecute; or

(i) 342 A(3) (c)’

[12] Section 106 (3), on the other hand, reads as follows:

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‘An accused shall give reasonable notice to the prosecution of his intention to plead a

plea other than the plea of guilty or not guilty, and shall in such notice state the ground upon

which he bases his plea: Provided that the requirement of such notice may be waived by the

attorney-general or the prosecutor, as the case may be, and the court may, on good cause

shown, dispense with such notice or adjourn the trial to enable such notice to be given.’

[13] I should point out that a plain reading of the provisions of s 106 (3) quoted above,

inexorably points to the conclusion that the said section is couched in peremptory terms

and this is seen from the employment of the word ‘shall’, which appears more than

once. It is accordingly clear that the requirements of the said subsection are mandatory

and which an accused person may not depart from lightly, unless he or she has been

duly excused by the court on good cause shown or the prosecution has duly waived the

application of the said requirement. There is no argument that in the instant case, the

accused person did notify the prosecution of his intention to plead lack of this court’s

jurisdiction and nothing therefore turns on this issue for present purposes.

[14] A further import of the section is that once an accused person has been charged

and called upon to plead, he may plead any one of the pleas mentioned in the above

section either individually or some applicable ones in the alternative. What is further

plain is that if the accused person pleads other than the plea of guilty or not guilty, then

the provisions of s. 106 (3) kick in. At that point, the notice to the prosecution has to be

complied with by the accused further indicating the bases upon which the said plea

other than those mentioned specifically is predicated. This notice, it must be specifically

mentioned, is not addressed to the court in the first instance, but to the prosecution.

[15] Crucially, the nomenclature employed by the lawgiver does not make any special

provision for an instance when the accused intends to plead that the court has no

jurisdiction to try him or her for the offence charged. The procedure to be followed in

that event remains the same. In my view, the fact that an accused person intends to

plead the absence of jurisdiction means that the accused has to give the statutory

notice to that effect to the prosecution together with the grounds upon which the said

plea is predicated as required and when called upon to plead, it is at that juncture that

the accused would then plead the absence of jurisdiction before court. It is at that stage

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in my opinion that the court will then deal with the issue of the plea and the prosecution

may then lead evidence to show that the court indeed has jurisdiction to try the offence.

[16] I mention the latter statement above because the onus to prove that the court

has jurisdiction to try the offence lies with the prosecution and must be proved beyond

reasonable doubt. All that an accused has to do is to raise the issue of jurisdiction and

place it in issue.5

[17] I have consulted the relevant authorities, including the commentary on the above

provisions and there is nothing, from my reading that suggests, even remotely that the

court has to deal with the issue of jurisdiction alleged by the accused person before the

plea is taken. To do so, it would seem to me, is to put the cart before the horse because

only after tendering the plea to the court’s jurisdiction may the court properly and

conveniently deal with the issue of jurisdiction. I say so because the plea needs to be

formally placed before the court and put on the record first. In footballing terms, that

event of tendering a plea to the indictment is the one that sets the ball rolling as it were

and enables the issue of jurisdiction pleaded by the accused to be formally and properly

investigated by the court thenceforth.

[18] There is nothing, in my view to suggest even remotely, as argued by Mr. Soni, in

relation to the plea of jurisdiction, that the accused person, by pleading to the indictment

in terms of s. 106 (1) (f) of the Act, he or she by so doing and without more, confers

jurisdiction upon the court to try him or her, thereby rendering the intended plea of lack

of jurisdiction irrelevant. This line of reasoning would thus enable the court, without

investigating the merits or demerits of the said plea, to proceed to try the said accused

person, literally shutting its ears to his or her plea and proceeding on the basis that it

has been clothed with jurisdiction to try his case and that his plea is meaningless and is

dismissed so to speak, without even investigating its merits or demerits as the case may

well be. That would be a travesty of justice of the highest order and with which this court

ought not to be associated, even remotely.5 R v Radebe 1945 AD 590 at 603; S v December 1995 (1) SACR 438 (A) at 439 j; S v Mushwena and Others 2004 NR 35 at p39.

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[19] In S v Mamase and Others6 Snyders J.A. remarked as follows in relation to the

plea under investigation in this case:

‘At the time that the issue was raised and decided in the court below the appellants had

not been asked to plead. Thus there was no plea in terms of s 106 (1) (f) of the CPA that raised

the absence or presence of jurisdiction as a justiciable issue for decision. A plea in criminal

proceedings is peremptory in terms of s 105 and it is done in terms of s 106 (1) and (2). It is

therefore clear that the point that was decided was not an objection to the indictment, was not a

reservation of a question of law and was not a plea of lack of jurisdiction.’

[20] From the foregoing excerpt, it is clear that the tendering of a plea is mandatory in

criminal proceedings and must be done before the issue of presence or absence of

jurisdiction, if raised by the accused, can be investigated. Section 105 states the

following in that regard, ‘ The charge shall be put by the prosecutor before the trial of

the accused is commenced, and the accused shall subject to the provisions of sections

77, 85 and 105A, be required by the court forthwith to plead thereto in accordance with

section 106’. (Emphasis added). Section 106, it must be stressed, includes a plea by an

accused that the court has no jurisdiction to try him or her. The underlined portions

above reflect the mandatory nature of the plea and therefore leads ineluctably to the

conclusion that an accused person must first plead to the indictment even if he or she

intends to raise the issue of the absence of jurisdiction in relation to a particular charge

or count as is the case in the instant matter.

[21] If there should be any doubt, the import and significance of the plea in issue was

stated with absolute clarity in Mamase (supra) at para [6] in the following language:

6 2010 (1) SACR 121 (SCA) at [7].

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‘The plea is a procedure that initiates the trial and serves to define the issues that are

submitted to the court for adjudication. If there is no plea there is no lis between the state and

the accused.’ (Emphasis added).

It is accordingly clear from the foregoing that the plea is not a mere procedural

incantation that is idle in nature and inconsequential in effect. It serves to identify and

delineate the issues in contention and to be submitted to the court for resolution

between the protagonists. It thus conduces to clarity and a structured approach to the

conduct of the criminal trial.

[22] I have had regard to S v Mushwena and Others7 in which a plea of lack of

jurisdiction was raised by way of application by the accused and this court deemed it to

have been duly raised in terms of s. 106 of the Act. The accused persons claimed that

they had been brought into this Republic to stand trial on charges of high treason

amongst others, illegally and without the State having followed the extradition

procedures with Botswana and Zambia where the said accused persons had been

apprehended.

[23] The court declined its jurisdiction to try them after evidence was led. It held that it

could not lend its processes to the violation of principles of international law by

assuming jurisdiction. Importantly, the court proceeded, once the plea of jurisdiction in

terms of s. 106 (1) was raised, to deal with the evidence the State marshalled in a bid

to discharge the onus placed upon it in regard to the special plea of jurisdiction.

Crucially, the court did not hold or find that by virtue of the accused persons merely

pleading the lack of jurisdiction, it had thereby and without more, been clothed with the

necessary jurisdiction to try the offence thereby wittingly negating the special plea of

lack of jurisdiction properly raised by the accused persons. This case, in my view,

illustrates the proper manner of dealing with this special plea in this jurisdiction.

7 2004 NR 35.

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[24] It is for the foregoing reasons that I am of the considered view that Mr. Soni’s

argument on behalf of the 1st accused attractive and seductive as they may appear to

be, to the effect that by pleading the absence of jurisdiction, this court is clothed with

jurisdiction to try him cannot be sustained. It is my considered view that the accused

persons in this matter should forthwith be called upon to plead in order to properly join

issue with the State and thereby lend clarity to what the State will in due course have to

prove against them in relation to the indictment, depending of course on the pleas

tendered in response to the respective counts.

[25] In turn, the respective pleas to the respective counts will enable the State to

prepare and to marshal the evidence that it will need to present in my view. In that way

the issue of the alleged absence of jurisdiction will, after the plea has been tendered, be

properly placed in issue for the court to determine it, with evidence being led if that is

found upon proper consideration, to be the appropriate course.

Quashing of charges in Count 2

[26] The second issue for determination, as stated earlier in this ruling, relates to the

quashing of the charges in count 2. In essence it is alleged in count 2 that the 1 st

accused was appointed in terms of the State Enterprises Governance Act,8 as a

Director and later the Chairperson of the Board of Directors of MTC, a public company

providing telecommunication services in Namibia. It is furthermore alleged that an

agreement was entered into between Namibia Posts and Telecommunications Holdings

(NPTH) and Portugal Telecom (PT) Afritel according to the shareholders agreement.

[27] It is further alleged that Namibia Post and Telecommunications (NPTH), is the

holding company of MTC and is a State owned Enterprise. Furthermore, it is alleged

that both companies i.e. MTC and NPTH were established and are operating and

performing a public function in terms of the Post Telecommunications Companies

8 Act No. 2 of 2006.

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Establishment Act9 and that the 1st accused, by virtue of his appointment and duties and

remuneration drawn therefrom, was a public officer and wrongfully and unlawfully and

corruptly used his position or office as the Chairperson of the Board of MTC to obtain a

gratification for his own benefit or for that of the 2nd accused, his business associate in

the form of the 1st accused using his influence as Chairperson of MTC to prevail over

the other Directors of MTC to ensure that DV 8 Saatchi and Saatchi (Pvt) Ltd should be

awarded the advertising tender by MTC in return for DV 8 Saatchi and Saatchi (Pvt) Ltd

co-opting the 2nd accused as a Black Economic Empowerment (‘BEE’) partner and/or

any other portfolio in the said companies, thereby contravening the provisions of s 43

(1) read with s 32, 43 (2), 43 (3), 46, 49, 50 and 51 of the Anti-Corruption Act.

[28] By application dated 14 July 2015, the 1st accused moved for the quashing of the

indictment in count 2 in so far as it relates to the 1st accused. The main bases for the

application, as gleaned from the affidavit attached to the notice of motion, are

essentially that the said accused person was not a ‘public officer’ within the meaning of

the Anti-Corruption Act and that being a public officer as defined, should have used his

position or office in a ‘public body’. It is contended that the indictment does not contain

factual averments to justify the conclusion that the 1st accused is a public officer within

the meaning of the Act. He further alleges that there are no factual allegations to the

effect that MTC is a public body within the meaning of the relevant Act.

[29] In support of these arguments, Mr. Soni referred to the definition section of the

Anti-Corruption Act10 and also handed up certain documents which were sought to

demonstrate that MTC is not a public body within the meaning of the Anti-Corruption

Act. These documents include the Shareholders’ Agreement between NPTH and

Portugal Telecom Sociedade Gestora de Participacoes; the Namibian Broadcasting

Communications Commission Act;11 the articles of association of MTC; the Posts and

Telecommunications Companies Establishment Act,12 to mention but a few.

9 Act No. 17 of 1992.10 Section 31 of the Anti-Corruption Act (supra).11 Act No. 4 of 1992.12 Act No. 17 of 1992.

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[30] The long and short of the argument presented on behalf of the 1 st accused, was

that whereas the section under which the 1st accused was indicted requires that the

person charged be a public officer, there were no allegations that could justify the

conclusion that the 1st accused was a public officer and that for that reason, the charge

was liable to be quashed in terms of the provisions of s. 85 of the Act. It was also

submitted, by reference to the documents mentioned in the immediately preceding

paragraph that MTC is a company with limited liability and formed in terms of the

Companies Act (supra). It was argued therefore that it is not a public body within the

meaning of the Anti-Corruption Act and that for that reason, the charge stands to be

quashed.

[31] In his spirited address, Mr. Soni referred this court to the case of S v Nathaniel

and Others13, a judgment of the Full Bench of this court. In that case, the majority of this

court were confronted with an application for the quashing of charges on the basis that

the essential requirements of the charge laid had not been made out and that for that

reason, the charge sheet should not be remedied in regard to the main charge but that

the charge should be quashed out-rightly and in final fashion without affording the

prosecution an opportunity to amend same. The majority of the court found that on the

facts of the case, it was proper course to quash the charge without affording the

prosecution the opportunity to amend the charge sheet as it was, on the facts,

unsalvageable, so to speak.

[32] The minority was of the view that although the objection to the charge was

sound, it was, however, fair and proper for the court not to speculate as to whether or

not the prosecution would be able to mount up a sound charge after being afforded an

opportunity to amend same so as to cure the defects. The minority was of the view that

13 1987 (2) SA 225 (SWA).

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the prosecution should be afforded the chance to amend the charge. Mr. Soni implored

the court to follow the decision of the majority in the instant case and to quash the

charge without affording the State an opportunity to amend same as on any

construction, he argued, it cannot be doubted that the prosecution failed to show that

the accused falls within any of the categories mentioned in the Anti-Corruption Act nor

that MTC was itself a public company.

[33] Mr. Marondedze’s argument was a horse of a different colour. He submitted that

the argument raised on behalf of the 1st accused should not be sustained as it was

tantamount to pre-empting the evidence that the State would call in proof of the charge

in question and the specific allegations made in the indictment. He submitted that what

the court must consider, in terms of s. 85 is whether the indictment discloses an

offence. Once satisfied that it does, and that it raises a triable issue, then the indictment

should be allowed to stand and should survive the attempt to have it quashed.

[34] It was his further argument that the court should fix its eyes on whether as the

charge presently stands, there are sufficient allegations to inform the accused of the

material facts upon which the case against him is predicated to enable him or her to

know the case against him or her. The issue of the evidence to be led in support of the

charge, he submitted, is a matter to be considered later and may be the subject, for

instance of an application for discharge at the close of the State’s case if the evidence

does not subsequent to the commencement of the trial proper, show that accused has a

case to answer.

[35] Having regard to the issues presently up for determination, I am of the

considered view that having made the allegations against the accused person in the

indictment on count 4, the State should be allowed the opportunity to prove those

allegations against him. It would be an ill-advised and probably hazardous course for

this court, based only on the useful and probably relevant documents submitted on

behalf of the 1st accused to then determine the matter to finality without having afforded

the State its basic and procedural right to lead evidence at its disposal in proof of the

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allegations it has made against the said accused. As to whether the State will

eventually prove its case against the 1st accused is one to be decided at the appropriate

juncture and not at this present moment. To do otherwise might serve to constrict the

free flow of evidentiary material, both documentary and viva voce, which the State is

otherwise at liberty to lead in proof of the allegations contained in the charge sheet.

[36] It would, in my opinion, be in very unusual and special circumstances when the

court would be correct to deny the State, as the dominis litis, the right to lead evidence

in proof of the allegations it has made against an individual and choose to base its

decision to quash the charges and with a degree of finality, as is the case herein, only

on the interpretation accorded the documents by one or both parties. The allegations in

this matter are about conduct attributed to the said accused person. The documents

handed up by the defence may assist in defining the issues to some limited extent but it

would be courting disaster to then exclude the leading of evidence in relation to the

allegations made, which may result in the adduction not only of more documentary

evidence, but in addition viva voce evidence, to explain, where appropriate, some of the

documents tendered. To decide the matters at play solely on the interpretations to be

accorded the documents presented may prove to be a slippery slope that may endanger

the interests of justice and the fairness of the trial on the part of both protagonists.

[37] I am, on first principles of the considered view that the charge preferred against

the 1st accused in count 2 does serve to inform the said accused of the case against him

in sufficient detail. The allegations made are sufficient to enable him to prepare his

defence accordingly in my considered view. It would, however, be improper at this stage

for the court to embark, as entreated by the defence, upon reading the documents

handed up by the defence to determine the history, purpose, nature and status of the

entity called MTC without affording an opportunity to the State to lead relevant

evidence, which may conduce to deciding whether the accused was a public officer as

envisaged in the Anti-Corruption Act, on the one hand, and to proceed to make a

determination whether MTC is a public body or one performing a public power or a

public function within the meaning of the relevant provisions of the Anti-Corruption Act.

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[38] Equally ill-fated, would be a decision at this stage, based exclusively on the

documents presented on behalf of the 1st accused to decide whether or not the said

accused person received money in his capacity as a director and/or chairperson of MTC

that can be correctly characterized as public funds. Whatever foreboding, suspicions or

premonitions the accused may justifiably hold regarding whether the relevant facts

alleged can eventually be proved in evidence, must await determination at the

appropriate stage with evidence having been tendered. To do otherwise would be

tantamount to calling upon this court to engage in divination escapades which this court

is eminently unfit and unsuited to embark upon. The ordinary legal forensic tools for

fact-finding must be employed in this case to untie the proverbial Gordian Knot and this

must not be circumvented by the application of methods that will curtail the search for

the truth.

[39] Whilst a cursory look at the documents presented by the defence may shape

one’s thinking in relation to the count under attack, they should not be looked at in

isolation. There may well be issues relevant that may be elicited properly and placed

before court by way of evidence that may shed further light and place the court in the

privileged position to make a determination of all the material issues with the benefit not

only of the documentary evidence at hand but further documentary evidence and viva

voce evidence as well.

[40] In State v Kelly Nghixulifa and Three Others14, this court had occasion to deal

with an application to compel the furnishing of further particulars. Liebenberg J, in

dealing with that issue, made some remarks which I find, when read in context, would

apply to the present case. At p 8 para [17], the learned Judge said the following:

‘It is settled law that although the accused is entitled to obtain details of the facts to be

proved, it does not mean that the accused should also be informed as to how it will be proved;

neither is he entitled to be informed about every fine particular of the case against him. In

Alexander (supra), it was said that “the Court should exercise care not to confuse particulars 14 Case No. CC 02/2014.

17

which may be essential to warn an accused fairly and reasonably of the case which they have to

meet, with the evidence which may be led in proof of the commission of the offence.’

[41] I am of the opinion that all is not lost for the accused person. Delay does not

always amount to denial. The fact that this application is not upheld at this stage

because I hold the view that the State has to be afforded the opportunity to lead

evidence does not necessarily mean that the application may not be subsequently

upheld if after evidence has been led it still remains plain that certain elements of the

charge have not been proved by the State. The court can only be in a position to so

hold once the evidence, both documentary and viva voce has been led. To attempt to

take hold the bull by the horns as it were, at this stage, in the absence of the necessary

evidence may well be precipitous and may amount to putting the cart before the horse

as it were.

[42] In the premises, I am of the considered view that the following order should be

granted:

1. The State’s application for the accused persons to be called upon to plead

at this stage is hereby granted.

2. The application by the 1st accused to quash the charge in count 2 is

hereby dismissed.

______________

TS Masuku,

Judge

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APPEARANCES

STATE: E. E. Marondedze

Instructed by: Office of the Prosecutor-General

ACCUSED 1: Soni SC

Instructed by: Conradie & Damaseb Legal Practitioners

ACCUSED 2: J. Diedericks

Instructed by: Diedericks Inc.