S v BREDENKAMP 2013 (2) ZLR 228 (H)

Flynote

Constitutional law — Prosecutor-General — duties of — duty to exercise functions impartially and without fear, favour, prejudice or bias — Prosecutor-General declining to prosecute on grounds that dispute was a civil one — reinstituting criminal proceedings under pressure from complainant — dereliction of constitutional duty

Criminal procedure — discharge at close of State case — when application should be granted

Legal practitioner — conduct and ethics — Prosecutor-General — duties of

Headnote

The accused was charged with fraud arising out of a business deal between himself and the complainant. Initially the Attorney-General, then responsible for criminal prosecutions, had declined to prosecute on the grounds that the matter was a civil dispute. The Attorney-General nonetheless refused the complainant's request for certificate of nolle prosequi. The Attorney-General brokered a settlement that the accused was to pay the complainant certain sums by a stipulated date. Sometime after that date, the Attorney-General changed his mind and decided to prosecute the accused, apparently under pressure from the complainant, presumably because the accused had not paid the sums in full. The accused applied for discharge at the close of the State case.

Held, granting the application, that where the court considers that there is no evidence that the accused committed the offence it has no discretion but to acquit him. In establishing whether or not the accused committed the offence charged the court must consider whether (a) there is evidence to prove an essential element of the offence; (b) there is evidence on which a reasonable court, acting carefully, might properly convict; and (c) the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. The court can refrain from exercising its discretion in favour of the accused if, at the close of the State case, it has reason to suppose that the evidence adduced by the State might be supplemented by the defence evidence. It is the duty of the State to place evidence of probative value before the court in order for the court to hold that the State has established a prima facie case against the accused, meaning proof of the commission of the offence which implicates the accused to such a degree as to call for an answer.

Held, further, that whilst the act of declining to prosecute a matter and refusing to grant a certificate of nolle prosequi does not bring a criminal matter to finality and the Prosecutor-General can reinstitute a prosecution, that must take cognisance of the rights of the accused, particularly when the Prosecutor-General has communicated an earlier decision not to prosecute the matter. In this matter, the conduct of the Prosecutor-General to reinstitute prosecution amounted to a dereliction of his duty under the Constitution. He shied away from his responsibility to decline to prosecute a matter and burdened the court with the responsibility to discharge the accused. Section 260 of the Constitution provides for the independence of the Prosecutor-General. Subsection (2) provides that the Prosecutor-General is not subject to the direction or control of anyone and "must exercise his or her functions impartially and without fear, favour, prejudice or bias." Here, the driving force behind the prosecution was the complainant. The Prosecutor-General succumbed to the pressure from the complainant to prosecute an apparently civil matter and therefore acted in complicity with the complainant to use a criminal court to put pressure on the accused in order to collect a civil debt. State counsel appeared to go through the motions of a trial merely to satisfy a persistent complainant, even in the face of inherently inadequate and inconsistent State evidence. The proper course that would have been expected of counsel was to withdraw the charge at the close of the State case. State counsel under the National Prosecuting Authority, just like any other officer of the court, owe a duty to the court to assess the strength of their case as the trial proceeds. Where it becomes apparent that they cannot sustain the charge, they should withdraw the charge instead of defending the indefensible and shifting their responsibility onto the court, as happened in the present case.