THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no:  263/08

In the matter between:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

and

SAROJINI MOODLEY

First Respondent
SHUNMUGAM JAMES MOODLEY

Second Respondent
SHAWN BEHARIE

Third Respondent

Neutral citation:  National Director of Public Prosecutions v Moodley (263/08) [2008]
ZASCA 137 (26 November 2008)

______________________________________________________________

Coram                     :
SCOTT, MAYA, COMBRINCK, CACHALIA JJA
et  MHLANTLA AJA

Date of hearing
:
10 NOVEMBER 2008

Date of delivery
:
26 NOVEMBER 2008

Summary:  Written authorisation of NDP in terms of s 2(4) of POCA given prior to
accused pleading to charge of racketeering – whatever meaning given to 'charged' in
s 2(4), prosecution lawful at least from date of authorisation.

______________________________________________________________

ORDER

______________________________________________________________

On appeal from: the High Court, Pietermaritzburg (NICHOLSON J and
NTSHANGASE J concurring, sitting in review of a decision of the Regional
Court:

The following order is made:

(1)
The appeal is upheld with costs, including the costs of two counsel.
(2)
The order of the court a quo is set aside and the following substituted
in its place.

'The application is dismissed with costs.'

JUDGMENT

SCOTT JA (MAYA, COMBRINCK, CACHALIA JJA and MHLANTLA AJA
concurring):

[1] This is an appeal from the judgment of Nicholson J, with whom
Ntshangase J concurred, sitting in the High Court, Pietermaritzburg. It
concerns the interpretation and application of s 2(4) of the Prevention of
Organised Crime Act 121 of 1998 ('POCA'). Before considering the
contentions advanced by counsel in this court it is necessary to set out as
briefly as the circumstances permit the events which culminated in the appeal.

[2] The three respondents are respectively accused numbers one, two and
four in a pending criminal trial in the Pietermaritzburg Regional Court. On 8

July 2003 the second and third respondents were arrested together with two
others (accused number three and five) on drug related charges, ie dealing in
and the possession of mandrax (methaqualone) tablets. On 10 September
2003 the matter was postponed to 2 December 2003 at the request of the
prosecutor to enable the State to investigate the possibility of preferring
racketeering charges against the accused. On the latter date the matter was
postponed for trial in the regional court commencing on 31 May 2004.

[3] On 10 December 2003 the respondents' attorney, Mr Kogulan Chetty,
was handed a charge sheet containing 14 counts of which three related to
racketeering. According to the prosecutor, Mr Hansraj Cheetanlal, the charge
sheet was given to Chetty in an envelope marked 'Draft Charge Sheet' and
was not lodged with the clerk of the court. This allegation was not denied by
Chetty in his replying affidavit and must be accepted. The first respondent
was cited as accused number one although she was in fact arrested only
subsequently on 15 December 2003.

[4] The charge sheet runs to 21 pages. It sets out in detail the State's case
against the accused. In short, it alleges that the first and second respondents,
who are married to each other, have for many years engaged in a drug
dealing business on a large scale involving the purchase in bulk, storage and
selling of drugs, mainly mandrax tablets. It is alleged further that as the
enterprise increased in size, the other accused (including the third
respondent) were employed to assist in the sale and distribution of drugs.
Count one is the contravention of s 2(1)(e) of POCA and relates to all three
respondents and one other. The offence, in short, is the conducting of, or
participation in, the affairs of [a drug dealing] enterprise through a 'pattern of
racketeering activity'.1 Count  2  is  the  contravention  of  s 2(1)(f)  of  POCA,

1 'Pattern of racketeering activity' is defined in s 1 of POCA to mean:
"the planned, ongoing, continuous or repeated participation or involvement in any offence
referred to in Schedule 1 and includes at least two offences referred to in Schedule 1, of
which one of the offences occurred after the commencement of this Act and the last offence
occurred within 10 years (excluding any period of imprisonment) after the commission of such
prior offence referred to in Schedule 1."
The offences listed in Schedule 1 include
"any offence referred to in section 13 of the Drugs and Drug Trafficking Act 140 of 1992." '

namely  the management of a [drug dealing] enterprise through a 'pattern of
racketeering'. This count relates only to the first and second respondents.
Count three is the contravention of s 2(1)(g). It relates only to accused
number five who is not a party to these proceedings. The remaining counts
relate to one or more of the accused. They include counts of possession and
dealing in methaqualone in contravention of various provisions of the Drugs
and Drug Trafficking Act 140 of 1992, assault with intent to do grievous bodily
harm, theft and intimidation in contravention of the Intimidation Act 72 of 1982.

[5] On 11 May 2004 the respondents' attorney wrote to the prosecutor
requesting a copy of the appellant's written authorisation in terms of s 2(4) of
appellant's POCA. The subsection reads:
'A person shall only be charged with committing an offence contemplated in subsection (1) if
a prosecution is authorised in writing by the National Director.'
(The first three counts all relate to offences contemplated in subsection 1.) On
17 May 2004, the prosecutor replied, enclosing the appellant's authorisation
which is dated 24 March 2004. This document is headed 'Authorisation in
terms of section 2(4) of the Prevention of Organised Crime Act, no 121 of
1998'. Beneath the heading appear the words: 'The State versus' followed by
the names of the five accused.  Thereafter, the document proceeds:
'I, BULELANI THANDABANTU NGCUKA, the National Director of Public Prosecutions of
South Africa, do hereby, in terms of section 2(4), read with section 1 and 2 of the Prevention
of Organised Crime Act, No 121 of 1998, authorize the institution of prosecution in respect of
a contravention of section 2(1)(e), 2(1)(f) and 2(g) of the Prevention of Organised Crime Act,
No 121 of 1998, against the above accused.'
The signature of Mr Ngcuka appears at the foot of the page under the words
'Given under my hand at Pretoria this 24th day of March 2004'. The signature
is followed by Ngcuka's full names and title, 'National Director of Public
Prosecutions'. On 28 March 2004, ie after the written authorisation had been
given, a second charge sheet (albeit identical to the first) was handed to the
respondents' attorney.

[6] The trial did not commence on 31 May 2004, although the prosecutor
was ready to proceed. Instead, the regional magistrate heard and rejected an
application brought by the accused for an inquiry to be held into an alleged

unreasonable delay in the proceedings in terms of s 342A of the Criminal
Procedure Act 51 of 1977. On 1 June 2004 the accused applied for the
'recusal' of the prosecutor. This application dragged on for a total of 27 court
days. Ultimately on 1 December 2006 the application was 'suspended' when
another prosecutor was assigned to the case so as to avoid further delay.

[7] In the meantime on 19 August 2005, and while the 'recusal' application
was still pending, the respondents launched an application in the High Court,
Pietermaritzburg, in which they sought an order (a) declaring counts 1, 2 and
3 to be unlawful and (b), setting those counts aside. The relief sought was
founded on the contention that the respondents had been 'charged' with
racketeering on 10 December 2003, ie prior to the written authorisation by the
appellant which was signed on 24 March 2004. The matter was enrolled for
hearing on 3 November 2005 and again on 25 November 2005. On the latter
occasion the application was postponed sine die, apparently because the
judge had indicated in chambers that the relief sought should be pursued in
the regional court.

[8] On 28 November 2005 the respondents launched an application in the
regional court in which the same relief was sought, founded on the same
grounds. In its judgment, delivered on 3 April 2006, the regional court declined
to consider the merits of the application but dismissed it on the grounds of
lack of jurisdiction and that it amounted to an abuse of the process of the
court. By this time the application in the High Court had been withdrawn.

[9] The next step was the application by the respondents in the High Court
for an order reviewing and setting aside the regional magistrate's decision and
the substitution of an order declaring unlawful, and setting aside, counts 1, 2
and 3 of the charge sheet. This application was launched on 21 September
2006. Various grounds of review were advanced but the central issue raised
and the one that was argued in the court a quo was that the three counts were
unlawful because the respondents had been 'charged' before the appellant
had given his written authority as required by s 2(4) of POCA. The matter
came before the High Court which upheld the application and set aside the

three racketeering counts. It did so, however, not on the grounds relied upon
by the respondents but on a ground raised mero motu and in respect of
which, we were told in this court, no argument was presented. The ground
relied upon was that the authorisation by the appellant was inadequate
because it 'was too broad and lacked the necessary specificity required'. In
support of this conclusion, Nicholson J, who delivered the judgment of the
court, observed that there 'was a total failure to mention any dates, or places
at which the offences were committed' and that 'it would lead to abuse for
such an authorisation to be permissible'. In the result the court a quo made
the following order with regard to the merits of the application:
'(a)
The authorization issued by the National Director of Public Prosecutions dated 24
March 2004, purporting to authorize charges against the three applicants [now the
respondents] in terms of section 2(4) of the Prevention of Organised Crime Act 121 of 1998 is
declared to be invalid and of no force and effect.
(b)
Counts 1, 2 and 3 of the charges brought against the two applicants [now the
respondents] before the Regional Court, Pietermaritzburg under Case No 430/04 are
declared to have been invalidly instituted and are set aside.'
When the appellant applied for leave to appeal the respondents abandoned
the judgment in so far as paragraph (a) of the order was concerned. Although
para (b) of the order flowed directly from the order in para (a), the
respondents nonetheless sought to uphold the order granted in terms of para
(b) but on the basis that they had been 'charged' on the counts of racketeering
prior to the written authorisation required in terms of s 2(4) of POCA.2 This
issue was not dealt with by the court a quo in its judgment.

[10] In view of the abandonment, it is unnecessary to say anything more
about the validity of the authorisation save to comment that in my view the
respondents were correct in the circumstances to abandon para (a) of the
order, which is clearly not to be regarded as a precedent.

[11] As pointed out by Kriegler J in Sanderson v Attorney-General, Eastern
Cape 1998 (1) SACR 227 (CC) para 16 at 236e-g, 'the word "charge" is
ordinarily used in South African criminal procedure as a generic noun to

2The subsection is quoted in para 5 above.

signify the formulated allegation against an accused' but that 'used as a verb it
bears no defined or precise meaning in the [Criminal Procedure Act] nor in
criminal law procedure.' The learned judge observed 'that "charged" can be
interpreted very narrowly, so as to refer to formal arraignment or something
tantamount thereto, or broadly and imprecisely to signify no more than some
or other intimation to the accused of the crime(s) alleged to have been
committed.' He cautioned that 'it is not useful to attempt a universally valid
interpretation of a word so vague and which therefore derives much of its
content and meaning from the particular context in which it may be used'. In
this court counsel for the appellant contended for a narrow interpretation of
'charged' in s 2(4) of POCA to mean 'charged' in the sense of a charge or
indictment being put to an accused who is asked to plead. In the alternative, it
was contended that 'charged' had to be construed as a reference to the stage
when the charge sheet is lodged with the clerk of the court. The basis for this
contention was s 76(1) of the Criminal Procedure Act which provides that the
proceedings at a summary trial in a lower court (unless the accused has been
summoned to appear) 'shall be commenced by the lodging of the charge
sheet with the clerk of the court'. I should add that there is no evidence that a
charge sheet has been lodged with the clerk of the court. It is, however,
common cause that the respondents have not yet been asked to plead. The
respondents, on the other hand, contended for a broad interpretation. They
argue that for the purposes of s 2(4) a person is 'charged' when advised by a
competent authority that it has been decided that he or she is to be
prosecuted. In the present case, they say, this occurred on 10 December
2003 when the charge sheet was handed to the respondents' attorney. In
support of this submission reliance was placed on the meaning attributed to
'charged' in Du Preez v Attorney-General, Eastern Cape 1997 (2) SACR 375
(E) at 384e. But in that case, as in Sanderson, supra, the court was
concerned with 'charged' in the context of s 25(3)(a) of the Interim
Constitution (Act  200 of 1993) which afforded every accused person the right
'to a public trial before an ordinary court of law within a reasonable time after
having been charged.' Quite clearly the considerations relevant to the
meaning to be attributed to 'charged' in the context of s 25(3)(a) of the Interim
Constitution are very different from those relevant to 'charged' in s 2(4) of

POCA and the meaning attributed to 'charged' in the former context provides
no assistance.

[12] Counsel on both sides sought to rely on various indicators which they
submitted supported the interpretation for which they contended. None, in my
view, can be regarded as decisive. It was argued on behalf of the
respondents, for example, that a charge of racketeering would affect an
accused's prospects of being granted bail and that accordingly the legislature
would have intended the written authorisation contemplated in s 2(4) to be
given before an accused person could be prejudiced in this way. But, as
pointed out by counsel for the appellant, the fact that racketeering charges
were being investigated and could be added to the charge sheet would
similarly weigh with a court when deciding whether to grant bail or not. It
seems to me, however, unnecessary for the purposes of the present case to
decide precisely where the word 'charged' in s 2(4), to borrow from the
language of Kriegler J in Sanderson, 'falls along the continuum of possible
meanings of the word'. In my view, counsel for the appellant correctly
submitted that once the prosecution is authorised in writing by the National
Director there can be no reason, provided the accused has not pleaded, why
the further prosecution of the accused on racketeering charges would not be
lawful, even if the earlier proceedings were to be regarded as invalid for want
of written authorisation. The respondents contended, however, that in the
latter event the further prosecution would be 'tainted' and would remain
invalid. But they were unable to advance any proper basis to support this
contention. Indeed, until an accused has pleaded the state would be at liberty
to withdraw the charge and recharge the accused once the authorisation had
been granted.3 But such an exercise would serve no purpose and I can see
no reason why it should be necessary.

[13] It follows that whatever the position may have been prior to 24 March
2004 – and it is unnecessary to express a view in this regard – once the

3 See s 6(a) of the Criminal Procedure Act.

written authorisation to prosecute was granted, the prosecution, in my view,
was lawful in terms of s 2(4) of POCA.

[14] The following order is made:
(1)
The appeal is upheld with costs, including the costs of two
counsel.
(2)
The order of the court a quo is set aside and the following
substituted in its place.

'The application is dismissed with costs.'

__________

D G SCOTT

JUDGE OF APPEAL

APPEARANCES
:

FOR APPELLANT :
M WALLIS SC

R KEIGHTLEY (MS)

D A DAMERELL

Instructed by
:
State Attorney, DURBAN

Correspondents
:
State Attorney, BLOEMFONTEIN

FOR RESPONDENT:
C J HARTZENBERG SC

G P SCHELTEMA SC

Instructed by
:
Chetty, Asmall &Maharaj PIETERMARITZBURG

Correspondents
:
Webbers  BLOEMFONTEIN

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Case no:  263/08

In the matter between:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS                        APPELLANT

and

SAROJINI MOODLEY AND OTHERS

RESPONDENTS

From :
The Registrar, Supreme Court of Appeal
Date:
26  November 2008
Status:
Immediate

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

The SCA today upheld an appeal by the National Director of Public Prosecutions
against a judgment of the High Court, Pietermaritzburg, setting aside three counts of
racketeering in drugs preferred against the respondents.

The respondents had sought to have the counts set aside on the ground that they
had been charged with racketeering before Mr Bulelani Ngcuka, the National
Director of Prosecutions, had given his written authorisation for the prosecution, as
required by the Prevention of Organised Crime Act. It was common cause that the
respondents had not yet been asked to plead to any of the counts contained in the
charge sheet when the written authorisation was given.

In the High Court Mr Justice Nicholson, with whom Mr Justice Ntshangase
concurred, set aside the racketeering counts on a totally different ground and one
not raised by the respondents, namely that Mr Ngcuka's written authorisation was
invalid for want of particularity regarding such details as to dates and the places at
which the offences were committed.

On appeal, the respondents abandoned the ground relied upon by the High Court
and sought the relief they claimed on the ground they had advanced in the High
Court and which had not been dealt with in the judgment of the High Court.

The SCA noted that the abandonment was correct in the circumstances and that the
order made by the High Court regarding the invalidity of the authorisation was not to
serve as a precedent. With regard to the ground relied upon by the respondents, the
SCA held that whatever the position may have been prior to the National  Director's
written authorisation, once it was granted the prosecution was lawful. Accordingly
the appeal had to succeed.

--- ends ---