Question NW3601 to the Minister of Justice and Correctional Services
16 November 2023 - NW3601
Mulder, Mr FJ to ask the Minister of Justice and Correctional Services
(1)With reference to the complaint of Mrs Léanca Louw against Mr Nicolaas Wilhelm Herbst (CAS 25/4/2022 Primrose Police Station) and the latter’s countercharge (CAS 43/4/2022 Germiston Police Station), (a) what are the reasons that the State Prosecutor in the case did not proceed on the charges brought by Mrs Louw and (b) how did the countercharges proceed to trial before the investigations into the main charges were finalised; (2) whether, after Senior State Prosecutors received a complete docket and apparently realised that there was potential tampering with the docket, it requested an investigation into the matter; if not, why not; if so, what are the relevant details; (3) once the Senior State Prosecutor was given the full facts, what are the reasons that the (a) trial proceeded knowing that there was a material dispute of fact and (b) Senior State Prosecutor attempted to mediate the matter on behalf of the suspect on the countercharge; (4) what are the reasons that the Office of the State Prosecutor failed for a year to respond to correspondence from the attorney of Mrs Louw; (5) whether he will make a statement on the matter?
Reply:
This question involves sensitive information that, in the interests of protecting the integrity and confidentiality of the parties in question, the NPA is willing to make available to Ms Louw’s legal representatives to disclose further (as he or she deems fit). Where this is the case, it has been expressly indicated. With the above in mind, below are the replies to the questions:
1. AD QUESTION 1(a):
- 1.1 On 07 April 2022 the police presented the Control Prosecutor with one case docket of Primrose CAS 25/04/2022. Having perused the docket content, the Control Prosecutor was of the view that the said docket did not contain sufficient evidence to constitute enrolment as there were no reasonable prospects of a successful prosecution. The NPA is willing to provide the reasons for this decision to Ms Louw’s legal representatives.
- 1.2 The Control Prosecutor requested further investigations.The investigating officer was instructed to re-submit the docket for a final decision as soon as the investigation queries were attended to.
- 1.3 On 07 April 2022, the police provided the Control Prosecutor with Primrose CAS 25/04/2022. The Control Prosecutor was unaware that there was also a counter charge under Primrose CAS 43/04/2022.
AD QUESTION 1(b):
- 1.5 On 12 April 2022, the police presented the prosecution with one case docket of Primrose CAS 43/04/2022 (counter charge). This matter was attended to by the Acting Control Prosecutor and not the Control Prosecutor who dealt with the docket of Primrose CAS 25/04/2022.
- 1.6 The Acting Control Prosecutor, unaware of the other docket, perused CAS 43/04/2022, and decided that there were sufficient grounds to prosecute. The matter was enrolled in the normal course of events and proceeded to trial on 07 November 2022.
2. AD QUESTION 2:
- 2.1 The legal representative of Ms Louw brought the matter to the attention of the Senior Public Prosecutor (SPP) on 02 December 2022.
- 2.2 The legal representative alleged that the South African Police Service tampered with police case docket of Primrose CAS 25/04/2022.
- 2.3 The SPP verbally advised the legal representative to report this allegation to the relevant Commander of the Criminal Investigation Unit.
- 2.4 The SPP had no personal knowledge of any of the two criminal cases prior to 02 December 2022.
- 2.5 The SPP took immediate steps and called for the dockets from the police. The SPP promptly attended to the matter as soon as the case dockets were received.
AD QUESTION 3(a):
3.1 The trial in the matter of Primrose CAS 25/04/2022 commenced on 07 November 2022.
3.2 The legal representative of Ms Louw brought the matter to the attention of the SPP only on 02 December 2022.
3.3 The SPP was not aware of the two cases or a material dispute of fact prior to 02 December 2022.
AD QUESTION 3(b):
3.4 The SPP canvassed the possibility of Formal Mediation with the legal representative of Ms Louw based on the facts at the prosecution’s disposal at that time.
3.5 Mediation forms part of the Criminal Justice System as an Alternative Dispute Resolution Mechanism in terms of the Policy Manual of the National Prosecuting Authority.
4. AD QUESTION 4:
The SPP communicated with the legal representative of Ms Louw on a regular basis spanning the period December 2022 to August 2023. The NPA is willing to make available the details of dates and forms of communication to Ms Louw’s legal representative.
5. AD QUESTION 5:
5.1 See paragraphs 1 – 4 supra.