THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
CASE NO 690/06

In the matter between

THE DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE

Appellant

and

PAUL  KILLIAN

Respondent

________________________________________________________________________

CORAM:
HOWIE P, FARLAM, MTHIYANE, HEHER et PONNAN
JJA
________________________________________________________________________

Date Heard:
6 November 2007

Delivered:
30 November 2007

Summary:      A criminal trial is not unfair, fundamentally or at all, simply because
the prosecutor also interrogated the accused at an earlier statutory inquiry at which
the latter was denied the right to silence and the right against self-incrimination

Neutral Citation: This judgment may be referred to as DPP, Western Cape v Killian
[2007] SCA 169 (RSA)
________________________________________________________________________
HOWIE P

HOWIE P
[1] The issue in this appeal is whether a criminal trial is unfair, to the
extent of being entirely vitiated, because the person who officiated as
prosecutor also interrogated the accused in an earlier statutory inquiry, the
provisions regulating which denied the interrogatee the right to silence and
the right against self-incrimination.

[2] The first respondent, whom, for convenience, I shall call the
respondent, was convicted and sentenced in a regional court in respect of
one count of fraud and 23 counts of theft. Apart from appealing against his
convictions and the various sentences imposed he also instituted review
proceedings.  The appeal has yet to be heard.

[3] The review application came before Motala and Bozalek JJ in the
Cape High Court. The learned Judges allowed the application but granted
leave for this appeal. (Also cited as respondents were the trial magistrate and
the Minister of Justice and Constitutional Development but they did not
participate in the proceedings in either court.)

[4] The interrogation was conducted in terms of the Investigation of
Serious Economic Offences Act 117 of 1991 (the Act) which was

subsequently repealed.1 Section 5(6) empowered the Director of the Office
for Serious Economic Offences to summon to an inquiry anyone believed to
be able to furnish information on the subject of the inquiry. The provision
denying the right against self-incrimination was contained in s 5(8)(a) and
the right to silence was effectively denied by s 5(10)(b) and (c) which, on
pain of prosecution, compelled the interrogatee to be sworn (or to affirm)
and ‘to answer fully and to the best of his ability’ any question lawfully put.
Section 5(8)(b) provided that no evidence regarding any questions and
answers at such an inquiry was admissible in criminal proceedings (save, of
course, if the charge were one of statutory perjury or of contravening s
5(10)).

[5] In the court below and in the respondent’s heads of argument the
constitutionality of those provisions was challenged.  That challenge was
abandoned on appeal. Also advanced in the respondent’s heads of argument
but not pursued in oral argument on appeal were, firstly, submissions
purporting to assess the impact of the aforementioned provisions of the Act
on the fairness of the interrogatee’s subsequent trial and, secondly,
submissions based on a line of American cases beginning with Kastigar v

1  The repeal was effected by the National Prosecuting Authority Act 32 of 1998 which replaced the Act,
enacting similar provisions to those involved here.

United States2 which constitute authority for the proposition that neither
direct nor derivative use may be made of evidence obtained at an inquiry
such as that which was involved here. It is consequently unnecessary to
evaluate those submissions for present purposes. Obviously the implications
of compulsory testimony at the inquiry are the same even if the prosecutor is
entirely unconnected with the interrogation and the Constitutional Court, in
Ferreira v Levin NO3, declined to follow the Kastigar line of authority in so
far as derivative use is concerned.

[6] At the inquiry the respondent was represented by counsel, Mr R
Goodman.  The person who conducted the inquiry was Mr T Estié, a
member of the office for Serious Economic Offences.

[7] Mr Estié compiled a report concerning the inquiry. It concluded with a
recommendation that the respondent be prosecuted on a multiplicity of
charges including those on which he was eventually convicted.  The
recommendation was accepted.

[8] Pursuant to the recommendation the respondent was criminally
charged. The prosecutor at the trial, Mr P Snyman, was briefed with a copy

2  406 US 441 (1972).
3  1996 (1) SA 984 (CC) paras 104, 106-9, 133-140, 141-5 and 146-153.

of the report and a transcript of the inquiry evidence, including that of the
respondent. The respondent was represented throughout the trial by Mr R
McDougall, SC. During the trial Mr Snyman fell ill. Because a substitute
other than Mr Estié would have required considerable time to become
sufficiently acquainted with the case, the prosecuting authority decided, in
order to avoid prejudicial delay to the respondent, to assign the continuation
of the prosecution to Mr Estié.  The latter completed the State case and
cross-examined the respondent when he testified in his defence.

[9] In his founding affidavit in support of the review the respondent
claimed that the trial was unfair for the following reasons:

‘19.1 I had no right to refuse to answer any question at the interrogation. If I had
refused, the person who had to decide if I must furnish an answer to such question was
the person asking the question, Advocate Estié. He was both “the judge and jury”. No
independent arbitrator was appointed to whom I could have appealed to stop Advocate
Estié eliciting answers from me unfairly.
19.2
I was the target of the inquiry conducted by Advocate Estié. I was called upon to
answer the questions of Advocate Estié after the matter had been fully investigated by
him. As can be seen from the record of such interrogation, the questions put to me were
not aimed at investigating the facts but were aimed at eliciting in detail, and did elicit in
detail, my defence to the charges. Such information extracted from me guided the

prosecution in the presentation of its case and in the cross-examination of myself during
the criminal trial.
19.3
I had to answer the questions posed to me without having knowledge or sight of
the evidence against me and without having had legal advice on such evidence.
Numerous admissions were extracted from me during the interrogation, which
admissions were made without full knowledge of the facts and which then carried a
criminal sanction if I later wanted to amend or change such admissions.
19.4
During my cross-examination at the trial, evidence obtained during Advocate
Estié’s inquiry and not presented during the State case was put to me by Advocate Estié,
unfairly I submit. I refer in this regard to the cross-examination relating to what Mr
Hewat is purported to have said to Advocate Estié.
19.5
When Advocate Estié cross-examined me during the criminal trial, I understood
that he was questioning me with the full knowledge of what had transpired during the
inquiry and with the knowledge of the answers he had extracted from me. His
understanding of my defence case was unique as he knew in advance what the answer to
his question would be. Furthermore, because I had given answers at the inquiry without
knowing the full ambit of the evidence, such answers were also not full and complete. I
was faced however with the dilemma during cross-examination at my trial that if I
changed my evidence at all I would be faced with criminal sanctions and my credibility
would suffer. I believe that the Regional Magistrate’s findings on my credibility resulted
from my dilemma.
19.6
I submit that my interrogation by Advocate Estié was geared towards a
prosecution and as I was the pioneer of the scheme that was the subject of his inquiry I

was therefore more than a suspect; I was the person against whom the State was building
a case. The search and seizure of all my documents, the fact I was called in for
questioning right at the end of the investigation and the type of questions posed to me,
prove this.’

He went on to say in the next paragraph:
‘20.
The issue of Advocate Estié becoming a prosecutor in the matter was never raised
or discussed with me during the trial by my then counsel or attorney.’

[10] Counsel for the respondent at the inquiry raised no objection or
complaint during the interrogation that the questions, or the manner in which
they were put, were unfair.

[11] When Mr Estié took over the prosecution no objection was raised
against his doing so. Nor was any objection made at the start, or even at any
time during, the respondent’s cross-examination, either with regard to
Mr Estié’s role as prosecutor or in relation to the content or manner of his
questioning.

[12] When, during the trial, Mr Estié sought to cross-examine the
respondent on evidence at the inquiry given by someone not called as a
witness in the trial, Mr McDougall successfully objected to that line of

questioning. The respondent was accordingly protected from any potential
unfairness inherent in what was sought to be put.

[13] The trial magistrate made credibility findings adverse to the
respondent but despite the latter’s assertions in para 19.5 of his founding
affidavit4 it has not been demonstrated, or alleged (other than the belief
referred to in the last sentence of para 19.5), that any of such findings were
the product of cross-examination based on the respondent’s inquiry evidence
or attributable to Mr Estié’s knowledge of such evidence.

[14] In observance of the prohibition in s 5(8)(b) of the Act against direct
use of the inquiry evidence in the trial, there was indeed no such use. Nor,
bearing in mind the dicta in Ferreira v Levin NO5 concerning derivative use
subject to the trial court’s role in determining the fairness of such use, was
there any derivative use made, or even sought to be made. That is to say, no
evidentiary derivative use. What the defined issue may well be said to
encompass (and I shall revert to this) is whether there was what one might
call non-evidentiary derivative use, in so far as Mr Estié was able, with
knowledge of the inquiry evidence, to shape his cross-examination as far as

4  See para 9 above.
5  1996 (1) SA 984 (CC) para 153.

possible to attack the respondent’s credibility and thereby to defeat his
defence.

[15] The court below found in the respondent’s favour that it was grossly
irregular for the prosecution to have had a transcript of the respondent’s
inquiry evidence and for Mr Estié to have conducted part of the prosecution
case. In the court’s view those features vitiated the trial and the respondent’s
failure to object relevantly during the criminal proceedings was clearly due
to his ignorance that they were irregularities. The reasoning of the court a
quo is illustrated by the following passage in its judgment:
‘In my view, those two factors, cumulatively at least constituted irregularities which
rendered the trial unfair. It does not require much imagination or experience to appreciate
the immense advantage gained by a prosecutor who has in his or her possession the
sworn statement or testimony of an accused or who has previously interrogated that
person in relation to the same subject matter.  My conclusion is reinforced by the fact that
the prosecuting authority, despite its opposition to this application, appears to share my
view. Annexed to applicant’s replying affidavit is an affidavit by Mr W Hofmeyer the
Deputy Director of Public Prosecutions in charge of the Asset Forfeiture Unit. In
countering a challenge to the constitutionality of section 26(6) and 27 of the Prevention
of Organised Crime Act , No 121 of 1998, which Act provides for a process similar to
that created by the impugned provisions of ISEO and the NPAA, he said the following:

“Firstly, the purpose is not to use information acquired from these affidavits as evidence
against the deponent in a criminal case, except in cases of perjury. For this reason, the
Unit has a policy in terms of which disclosures obtain pursuant to chapter 5 proceedings
are strictly withheld from the criminal investigation and prosecution teams. This is
demonstrated by the inclusion of paragraph 1.20 in the Order of 13 July 2001 and
generally in all other restraint orders. I repeat that undertaking herein.”’ (Underlining by
the court below)

[16] An accused person has a constitutional right to a fair trial.6 The word
‘includes’ in the first line of s 35(3) of the Constitution indicates that
fairness extends beyond the specific matters listed in the subsection. Fairness

6  Section 35(3) of the Constitution reads:
Every accused person has a right to a fair trial, which includes the right -
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed to this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if
substantial injustice would otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not practicable, to have
the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national or
international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has preciously
been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the
offence has been changed between the time that the offence was committed and the time of
sentencing; and
(o) of appeal to, or review by, a higher court
Subsection (5) adds:
Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the
admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of
justice.

must be substantive, not just procedural.7 It therefore entails more than the
‘formalities, rules and principles of procedure according to which our law
requires a criminal trial to be initiated or conducted’.8 It was the breach of
those formalities, rules and procedures which the legislature had in mind in
enacting the provision in s 309(3) of the Criminal Procedure Act 51 of 19779
(and its precursors) and in referring in the proviso to an ‘irregularity’. Long-
established case law based on the proviso has distinguished between an
irregularity which vitiates the whole trial and one which may yet leave proof
of guilt sufficiently established. In the present case what we are concerned
with is not, strictly, whether there was an irregularity within the meaning of
the Criminal Procedure Act but whether there was, constitutionally speaking,
unfairness to the respondent in the fact that Mr Estié acted as prosecutor and,
if so, whether such unfairness was so fundamental that the trial verdict
cannot be allowed to stand.  This is the issue I have endeavoured to
formulate in para [1] above.

7  Schabir Shaik v The State (unreported) Constitutional Court case 86/06 para 45; [200] JOL 20751(CC)
8  S v Zuma 1995 (2) SA 642 (CC) para 16, citing S v Rudman 1992 (1) SA 343 (A).
9  Section 309(3) reads:
‘The provincial or local division concerned shall thereupon have the powers referred to in section 304(2),
and, unless the appeal is based solely upon a question of law, the provincial of local division shall, in
addition to such powers, have the power to increase any sentence imposed upon the appellant or to impose
any other form of sentence in lieu of or in addition to such sentence:  Provided that, notwithstanding that
the provincial or local division is of the opinion that any point raised might be decided in favour of the
appellant, no conviction or sentence shall be reversed or altered by reason of any irregularity or defect in
the record or proceedings, unless it appears to such division that a failure of justice has in fact resulted from
such irregularity or defect.’

[17] Turning to that issue, and beginning with the findings and reasons of
the Court below, counsel for the respondent did not rely in this court on the
prosecution’s possession of the inquiry record, or the suggested ignorance on
the part of the respondent or on the Asset Forfeiture Unit’s alleged policy.
Counsel’s approach was understandable.

[18] As to the prosecution’s possession of the inquiry record, the Act’s
primary objective was the investigation and prosecution of serious economic
crimes. It would have been illogical and self-defeating, to say the least,
having obtained an inquiry report recommending criminal proceedings, to
have withheld the report and the inquiry record from the prosecutor. The
latter would surely have required to be fully briefed so as to make the
optimum permissible use of available evidence and to determine where to
look for further evidence. Presentation of the prosecution case was
inevitably (and sufficiently) subject to the bar against direct use of the
inquiry evidence and, further, subject to the trial court’s control of the use of
derivative evidence in general and derivative use of the accused’s inquiry
evidence in particular. By those measures fairness in the ensuing trial was
adequately capable of achievement. The prosecution’s mere possession of
the inquiry record has not been shown to have prejudiced the fairness of the
trial in fact.

[19] In so far as the suggested ignorance of the respondent is concerned
regarding the alleged irregularities which the court below found to have
occurred, this was not something which the respondent alleged in his
founding or replying affidavits. What he said was that Mr Estié’s taking over
the prosecution was not raised or discussed with him by his legal advisors.
He did not say it was a matter which never occurred to him to raise with
them or, more specifically, that it was a matter the implications of which he
was unaware.

[20] Then, as regards the alleged policy of the Asset Forfeiture Unit, this
was a subject which was raised for the first time in the respondent’s replying
affidavit. It was therefore not canvassed as an issue in the review
proceedings. What motivated the alleged policy one does not know. As far
as one can judge the alleged policy might have been influenced by the
intention to avoid a prosecutor’s potential direct or derivative use of an
accused’s evidence obtained under statutory, pre-trial, measures which could
have had the effect of applying pressures affecting, or possibly affecting, its
trial admissibility. If so, the considerations influencing the policy would
have been the same as those potentially relevant to fairness in the instant

case. In that event they add nothing to the issue. If they were based on other
considerations, they cannot assist.

[21] Of the reasons of the court below there remains the matter of Mr
Estie’s dual role of initial interrogator and subsequent prosecutor. As I have
indicated, it is that that has given rise to the issue for decision in this court.

[22] The court below referred to the ‘immense advantage’ to the prosecutor
of, inter alia, having personally conducted the prior interrogation. It is not
clear, on the facts of this case, how Mr Estié  was in a better position (an
unfairly superior position, one has to say) than Mr Snyman, in having
conducted the inquiry. The only possible advantage one can envisage is that,
although not apparent from the transcript, Mr Estié would have been aware
(if they existed) of instances when the respondent appeared plainly
uncomfortable or at a loss when specific issues were canvassed, so that those
could be concentrated upon in cross-examination. However, it is not readily
conceivable that the respondent would not himself have remembered such
occasions and therefore have been in a position to brief counsel to object
accordingly. In all other respects Mr Estié would not have been able to make
any better non-evidential derivative use of the inquiry proceedings than Mr
Snyman.

[23] It is true that cases might occur in which the accused is unable to
afford legal representation at either the inquiry10 or the trial but that is  no
argument in favour of an absolute ban on a dual role. The case of Ferreira v
Levin NO makes it clear that derivative use is not absolutely excluded but is
subject to the trial court’s rulings according to what is fair. What applies to
evidential derivative use must, in my view, apply equally to non-evidential
derivative use. It follows that in the case of the envisaged impecunious
accused a trial court would be obliged to exercise extra vigilance to ensure
the maintenance of the required fairness.

[24] Counsel for the respondent called in aid certain passages in the recent
Constitutional Court judgment in the case of Schabir Shaik v The State11
more particularly in paras 51 to 68.  In my view they do not assist the
respondent. The prosecutor in that case did not interrogate the accused at a
prior statutory inquiry (under the National Prosecuting Authority Act). The
court was therefore not called on to decide whether fulfilment of the
particular dual role in issue here would per se have involved a trial
unfairness to the accused. If anything, the judgment seems to indicate that

10  Now in terms of the National Prosecution Authority Act – see footnote 1.
11 See footnote 7.

the determination of unfairness would depend on other, factual,
considerations, not simply on the fact of the dual role.

[25] As counsel for the respondent developed his argument before us, the
thrust of it appeared to be that Mr Estié’s earlier role as interrogator robbed
him of the impartiality or lack of bias required of a prosecutor. That seems to
me also to raise an ad hoc issue of fact and not to compel a universal
conclusion of procedural law. In paras 65 to 68 of the Constitutional Court
judgment in the Shaik case12 it is explained that additional knowledge and
understanding which a prosecutor obtains in an investigatory position cannot
amount to bias or prejudice. Rather, having regard to case law, what one
would look for to establish a prosecutor’s lack of impartiality would be, for
example, the waging of a personal vendetta, impairing the conduct of the
proceedings and the dignity of the court, or using the same office as the trial
judge’s assessors.

[26] Counsel for the respondent also referred us to an unreported High
Court review case13 involving a series of prosecutions under prison
regulations, where the same person gave prosecution evidence in one case
and prosecuted in another. The caveat was understandably expressed in the

12  See para 24 above.
13  GR Els v FS Gericke and others, Cape Provincial Division, judgement delivered on 23 December 1963.

judgment that care should be taken to avoid the impression that a prosecutor
is biased towards the accused. One would readily agree. However bias is not
per se to be inferred from Mr Estié’s dual role in this case.

[27] To the extent that the determination of what is fair or unfair in a
particular case may depend on the accused’s subjective view of the
proceedings or their surrounding circumstances, one cannot expect a court in
the absence of objection by the accused to guess what that view is if there
are no facts or circumstances which should reasonably prompt the court to
inquire and investigate. Of course there is no onus on an accused in this
regard and there can be no waiver of the right to a fair trial. At the same time
the absence of a defended accused’s objection to the prosecutor’s
involvement or the prosecutor’s cross-examination is a factor which can
reasonably induce the court to infer that the accused has no intention to
allege prosecutorial unfairness. No such intention was evinced in the present
case. This is no doubt why counsel for the respondent was driven to submit
that fulfilment of the dual role of interrogator and prosecutor was
axiomatically unfair.

[28] Counsel sought to base that submission on cases such as S v Moodie14
and S v Mushimba.15 The former involved the deputy sheriff of the court
concerned being secluded with the jury, and the latter involved an illegal
breach of the accused’s attorney and client privilege. Both cases constitute
very obvious examples of circumstances which rendered the respective trials
fundamentally unfair procedurally at the times at which they were decided
and which would render them substantively unfair now. The question
remains whether the prosecutor’s dual role in this case created a substantive
unfairness per se. Neither precedent nor principle persuades me that it did.
Whether fulfilment of that dual role does involve or bring about substantive
unfairness in an ensuing criminal trial will be a matter to be decided on the
facts of each case by the trial court. Unfairness does not flow axiomatically
from a prosecutor’s having had that dual role.

[29] The appeal must consequently succeed and the order of the court
below ought to have been one dismissing the application.  Counsel for the
appellant asked for cost in both courts. Because the respondent sought to
enforce his constitutional right to a fair trial, and the issue in both courts was
whether that right had been infringed, I think that he should not be made to

14  1961 (4) SA 752 (A).
15  1977 (2) SA 829 (A).

pay the costs. It seems to me that this approach is consonant with
constitutional litigation and jurisprudence.
[30] The appeal is accordingly dismissed. The order of the court below is
set aside and substituted by the following:
‘The application is dismissed.’

______________________
CT HOWIE
PRESIDENT
SUPREME COURT OF APPEAL

CONCUR:

FARLAM  JA
MTHIYANE  JA
HEHER  JA
PONNAN  JA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

DPP, WESTERN CAPE V KILLIAN
FROM:

The Registrar, Supreme Court of Appeal
Date:

30 November 2007
Status:

Immediate
Today the Supreme Court of Appeal upheld the appeal of the Director of
Public Prosecutions against an order of the Cape High Court which set
aside the convictions and sentences of Paul Lawrence Killian of Cape
Town on various regional court charges arising out of a failed property
acquisition scheme in the Paarl area.  Killian lodged an appeal which is
yet to be heard.  He also brought a review application, alleging that his
trial was fundamentally unfair, amongst other reasons because the same
person who prosecuted him, had interrogated him at an earlier inquiry
under the now repealed Serious Economic Offences Act.  By law he was
compelled to testify at the inquiry and also could not rely on the right
against self-incrimination.  The High Court decided the review in his

favour, holding that it was unfair for the prosecution to posses the inquiry
record and for the prosecutor to have been the interrogator at the inquiry.

The Supreme Court of Appeal decided that the trial was not unfair in
either respect.  Firstly, the statute governing the inquiry forbade direct use
of the inquiry evidence in a subsequent criminal trial and Constitutional
Court jurisprudence laid down that derivative use of the inquiry evidence
was subject to the control of the criminal court which would itself decide
on the fairness of such use. In Killian’s case there was neither direct nor
derivative use of the inquiry record.

As to the dual role of the prosecutor, the court of appeal held that this was
not an unfairness in itself and had not been objected to at any time in the
trial.  It had also not been shown that the prosecutor had any specific
advantage which another prosecutor would not have had.

The High Court should therefore have dismissed the review.