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S v Okah (SS94/11) [2013] ZAGPJHC 75 (26 March 2013)

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REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA

JOHANNESBURG


CASE NO: SS94/11

DATE: 20/03/2013





In the matter between

THE STATE

and



HENRY EMOMOTIMI OKAH..........................................................ACCUSED



J U D G M E N T

(Application in terms of Section 317 of Act 51 of 1977)



C. J. CLAASSEN J:

1. Counsel appearing for the accused at this stage is Advocate JP Marais, duly instructed by Mr van Huysteen. At this stage an application was brought in terms of Section 317 of the Criminal Procedure Act 51 of 1977 for this court to make a special entry regarding certain alleged irregularities that occurred during the trial but which do not manifestly appear from the record of the trial itself.



2. Three grounds have been advanced for purposes of making such an entry and I quote from the applicant’s notice of motion dated 14 March 2013.

1. Mr Clifford Osagie, a member of the Nigerian State Security Service sat directly across from witnesses who were participants in the acts for which the applicant was tried during their testimony.

2. The applicant had not been warned of his rights in terms of Article 7(3)(a), (b), (c) of the International Convention for the Suppression of Terrorist Bombings.

3. The learned judge should have in the interest of justice issued a letter of request to obtain the defence’s evidence from witnesses in Nigeria.



The Presence of Mr Osagie in Court



3. I shall deal with the first irregularity as the alleged “unlawful” presence of Mr Osagie during the trial when certain witnesses were testifying.
Mr Osagie is a chief legal officer in the legal department of the Department of State Security Services (“SSS”), Abuja, Federal Republic of Nigeria.



4. It is common cause that he was involved with the investigation and prosecution of the accused as well as other co-conspirators in Nigeria. The complaint is that at the time when the state advocate, Mr Abrahams, introduced Mr Osagie to this court the explanation which was given was cursory and referred to him only as a barrister and prosecutor, but not as a member of the SSS and member of the prosecutorial team in Nigeria.



5. At page 573 line 21 of the record, Mr Abrahams introduced
Mr Osagie in the following terms:



I have also requested Barrister Osagie from Nigeria to just take a seat next to me for purposes of this (sic) witnesses. He is just here to assist me should I need him for any particular reason.”





Mr Marais’ argument is that this introduction did not inform this court of the fact that he was involved in the prosecution of the other alleged co-conspirators in the bombings that occurred on 15 March 2010 in Warri, Nigeria and again on 1 October 2010 in Abuja, Nigeria.



6. Mr Marais submitted that had those facts been made known to the defence team then the former counsel for the accused, Mr Maunatlala would most probably have asked for an order removing Mr Osagie from the presence of the court. It is common cause that Mr Maunatlala did not ask for any such order from the court.



7. What is also common cause is that Mr Osagie assisted the former legal team of the accused in their application on behalf of the accused to arrange for this court to travel to Nigeria to take the evidence of certain witnesses that the defence wished to call, in Nigeria on oath.



8. For the sake of clarity I must just mention that the state filed a further set of documents also containing affidavits inter alia from Mr Osagie and others as well as documents attached to such affidavits. However, in his first answering affidavit filed on 26 February 2013, Mr Osagie had this to say:



22. I had been involved in the management of investigations and prosecution of applicant and other persons for alleged unlawful activities in the Niger Delta region over a period of time, which inter alia related to treason, arms smuggling, kidnapping of ex-patriots employed by international oil companies and for which demands for ransom were made from 2005 to date.

23. Although warrants for applicant’s arrest were obtained in Nigeria, applicant was first arrested and detained in Angola in 2007.

24. I first met applicant in Angola during 2008 when I accompanied a Nigerian Federal Government delegation to Angola tasked in negotiating the legal grounds for applicant’s repatriation to Nigeria in order for applicant to face trial for his crimes against the Federal Republic of Nigeria.

25. I was a passenger on the same aeroplane that transported applicant from Luanda, Angola to Nigeria during 2008. In the course of that flight the applicant and I became thoroughly acquainted and applicant acknowledged that my presence was that of a prosecutor in the employ of department of state service and that I was there to ensure that due process was followed in ensuring that he faced justice in Nigeria.

26. I was a prosecuting counsel at applicant’s treason trial in Nigeria in 2008 at the Federal High Court, Jos, Plateau State, Nigeria, presided over at the time by Justice Stephen Adah.

27. I was a prosecuting counsel on the day of applicant’s arraignment for treason in April 2008. (Applicant’s defence team at the time led by Mr Femi Falana can attest to the fact I was a prosecuting counsel at his trial in 2008.)

28. I am also a senior member of the prosecuting team in the corresponding investigation and prosecution in Nigeria in the matter of the Federal Republic of Nigeria vs Charles Thombra Okah and three others (Case Number) FHC/ABJ/CR/187/2010, which relate to the bombings of 15 March 2010 at Government House Annex, Warri and the bombings of 1 October 2010 at Eagle Square, Abuja and charges of treason and crimes associated therewith. Copies of the aforementioned indictments are annexed hereto as annexure CO5.

29. Applicant is hence deliberately trying to mislead this court as to his knowledge of me. In fact he refers to me as: “a man who represented himself as a Nigerian prosecutor.”

30. Applicant is disingenuous when he states that he and his defence team did not know that I worked for the State Security Service. ”



9. It is accepted that in this application the facts as alleged by the respondent, in this case the state, together with those facts which are common cause, should be the basis upon which this case is to be adjudicated.1



10. The statement that I have just referred to, made under oath by Mr Osagie, is clearly an indication that the accused knew Mr Osagie from an early stage as far back as 2008 and thereafter. If the accused failed to instruct his legal team as to the correct or true identity of Mr Osagie then that failure cannot be laid at the door of the court and/or the prosecution in this matter.



11. The applicant disputes some of these allegations, in particular that Mr Osagie was the prosecuting counsel at his trial presided over by Justice Adar. However, in paragraph 27 the defence is invited to secure evidence from the applicant’s defence team in Nigeria to ascertain the truth that in fact Mr Osagie acted in such capacity. This invitation was not taken up and I therefore have to accept the allegations as made by Mr Osagie in paragraph 26, 27 and 28 of his affidavit.



12. That being the case, it would appear to me correct to say that the accused knew exactly who Mr Osagie was when he took his position next to Mr Abrahams in this court. If I remember correctly, Mr Osagie was introduced to this court at the time when the witness, Abubaker testified in this court and was here in court when many of the accused’s accomplices testified against him.



13. It would seem to me that in these circumstances it would be absurd, to say the least, to make a special entry with regard to the presence of Mr Osagie, to which no objection was raised, as an irregularity pursuant to the provisions of Section 317.



14.On the papers, I cannot conclude that the applicant’s statement of not knowing who Osagie was, should be upheld. In my view, the answering affidavit clearly undermines this statement made by the applicant. I am therefore of the view that the first ground for the special entry of an irregularity cannot succeed and must fail.



Failure to Apply Article 7(3)



15. I then come to the second ground for a special entry. This refers to the failure to warn the applicant of his rights pursuant to the provisions of article 7(3)(a), (b), and (c) of the International Convention for the Suppression of Terrorist Bombings.



16. It is common cause that the accused was granted a permanent residence permit to reside in South Africa with his wife and four children. At the time of his arrest on 2 October 2010, he was in South Africa, habitually resident as such in terms of the visa. He did not, however, obtain citizenship of South Africa, and as such he is still a citizen of Nigeria although habitually resident here in South Africa.



17. The provisions of the aforesaid convention that are relevant to this inquiry are the following, Article 7(3) reads as follows:



3. Any person regarding whom the measures referred to in paragraph 2 are being taken shall be entitled to:-

(a) communicate without delay with the nearest appropriate representative of the state of which that person is a national or which is otherwise entitled to protect that person’s rights or, if that person is a stateless person, the state in the territory of which that person habitually resides;

(b) be visited by a representative of that state;

(c) be informed of that person’s rights under subparagraph (a) and (b).”



18. I shall assume without deciding that the aforesaid section applies to the accused in this matter. It is common cause that the accused was not advised of his rights under subparagraph (a) and (b) of Article 73 either at his arrest or thereafter.



19. The evidence on record is to the effect that he was regarded as a persona non grata in Nigeria. It is also common cause that the accused was arrested in South Africa and could not be extradited by South African authorities to Nigeria because Nigeria still retains the death penalty as a sentencing option. It is trite law that South Africa in those circumstances cannot and will not in contravention of its own constitution extradite a person to Nigeria such as the accused where he could be charged with high treason and be subject to the death penalty as an appropriate sentence.2 That being the case, South Africa was obliged to put into place the necessary prosecutorial measures to try the accused under South African domestic law.3



20. The argument advanced by Mr Marais as to why it was important for the measures set out in article 7(3) to have been complied with, is that, had the accused been granted the consular assistance that this article contemplates then a different solution might have been arrived at and the accused may never have been tried in South Africa at all.



21. I did not understand him to argue that the mere failure to comply with the provisions of article 7(3) visited the entire trial with automatic irregularity. In my view, had he argued that I would have been inclined to disagree with such a harsh interpretation of this provision. It is still a question as to whether or not an injustice has been perpetrated in failing to comply with the provisions of Article 7(3). The precepts for a fair trial under our constitution allow, for example, evidence obtained unconstitutionally to be tendered in a court of law without necessarily undermining the fairness or legality of the particular trial. It is, therefore, trite that an irregularity is not viewed in vacuo, but must be seen in the light of all the relevant surrounding circumstances.



22. The circumstances under which the accused was arrested and the circumstances under which the failure to comply with Article 7(3) occurred as sketched above, are, in my view, indicative of the fact that no injustice had in fact occurred. The failure to have afforded the accused the necessary warning in terms of Article 7 did not render this trial unfair nor did it cause an irregularity worthy of being the subject of a special entry.



23. I say this by reason of the following extant facts: The consular representative from Nigeria was in court most of the time. If any desire on the part of the accused was expressed to be approached or visited by such a consular representative then he needed merely to have raised his hand and stretched out his arm towards the consular representative (a very well dressed lady) who sat in court, just a few rows behind him.4 The fact that he never did so is more consistent with the conduct of a person who realises that he is persona non grata and did not expect or require any consular assistance to be afforded him. This fact standing alone would, of course, not be sufficient to justify a refusal to comply with the provisions of Article 7. However, it does constitute circumstances which are to be viewed in conjunction with others facters related hereunder.



24. Furthermore, the facts of this case also indicate that not only did I, as the presiding officer but also Mr Abrahams as the state advocate and Mr Osagie, assist the accused’s previous legal team to the utmost in their attempt to obtain evidence from Nigerian witnesses. In this regard there was on the papers before me letters addressed by his former legal team to the consular offices of Nigeria and also to the authorities in Nigeria itself. To that extent assistance was in fact sought from the consular office of Nigeria in South Africa and other authorities in Nigeria in correspondence written on the accused’s behalf. It would be strange indeed if in these circumstances the failure to have informed the accused of the fact that he is entitled to make contact with such consular offices would have caused any unfairness or illegality in this trial. It would amount to an absurdity to hold otherwise, because although the provisions of Article 7(3) had not specifically been complied with by the arresting authorities, subsequent events proved that in fact the accused did have the benefit of assistance from the Nigerian consular offices and other authorities in Nigeria in his defence.



25. That being the case it would seem to me to be frivolous and absurd to enter a special entry of any irregularity in this regard on the record pursuant to the provisions of Section 317 of the Criminal Procedure Act. I therefore refuse also the second ground for such a special entry.



Letter of Request



26. I then come to the last ground for a special entry. That refers to the fact that I, as the presiding officer, failed in the interest of justice to issue a letter of request to obtain the defence’s evidence from witnesses in Nigeria.



27. Let me say at the outset, I find this the most absurd of all three the requests for a special entry. I have already in passing referred to the attempts by myself as well as Mr Abrahams to assist the accused in obtaining the benefit of this court being transferred to Nigeria for hearing evidence of his witnesses. It is common cause that some of them were in detention and had already been refused bail, whereas some of them were not necessarily in detention.



28. Section 2(1) of the International Co-operation in Criminal Matters Act, 75 of 1996, this Act provides as follows:



If it appears to a court or to the officer presiding at proceedings that the examination at such proceedings of a person who is in a foreign State, is necessary in the interests of justice and that the attendance of such person cannot be obtained without undue delay, expense or inconvenience, the court or such presiding officer may issue a letter of request in which assistance from that foreign State is sought to obtain such evidence as is stated in the letter of request for use at such proceedings.” (Emphasis added)



29. In S v Basson 2001 (1) SACR 235, Hartzenberg J held at 236E-J as follows:



Suffice it to say that a court will only issue a request if it is in the interests of justice that it does. To determine what the interests of justice require, various factors must be taken into account weighed up against one another. Factors which in my view in this particular application are relevant, are the following:

1. . . .

2. The evidence which the witness in question can give must be:

(a) necessary;

(b) relevant; and

(c) admissible.

3. The court may look at the reasons for the witness’ inability or refusal to testify at the trial and may draw inferences therefrom.

4. …it will be not wrong to compare the probable weight of such evidence to the prospective expenses. Unless the expenses are clearly justified, the court can regard the expenses as a factor negative to the applicant.

5. The court must weigh up the prejudice which the applicant will suffer, if the request is not granted, against the prejudice which the respondent will suffer if the request is granted.”



30. The record in this case refers to several discussions which were held in my chambers with Mr Abrahams, Advocate Maunatlala and his attorney present to discuss how we were to go forward in obtaining the witnesses’ evidence that the accused required. Several obstacles appeared which undermined the facility with which such evidence could be obtained.



31. I do not think it necessary to dwell on this aspect because the argument was not that this court did not try and assist the accused in obtaining that evidence. The argument by Mr Marais was that the whole idea of transferring this court to Nigeria with all its inherent obstacles was unnecessary. All that was necessary was for this court mero motu to issue a letter of request to obtain the witnesses’ evidence from Nigeria.



32. With due respect to Mr Marais, I find that argument a simplification of the facts. This court is given a discretion to order the evidence of foreigners to be obtained. At no stage was this court ever requested to embark upon such a mero motu course of action in seeking such evidence by a letter of request.



33. The obvious obstacles seemed quite evident. The value of such evidence taken by a foreign court in a foreign country will have little value if the witnesses were not properly cross-examined by Mr Abrahams, in the light of the evidence presented by the state thus far. If my memory serves me correctly, the state called some 34 witnesses over a period of two months, the documentation ended up with the last exhibit, being “CCCC” located in some 7 arch lever files. It was clear that not only was the oral testimony but also the documentary evidence of a substantial and voluminous nature. The record and this documentation would have had to be transported to Nigeria for purposes of referring to it when cross-examining the witnesses. Such examination without access to the past oral testimony and documentary evidence would have been futile and a wasteful expenditure.



34. Another obstacle making such evidence valueless, is the fact that the presiding officer in Nigeria would not be able to say whether certain evidence is relevant or irrelevant without a full knowledge of the evidence that had already been placed before this court. Hence, as was done in Basson, all parties agreed that the appropriate commissioner to take down such evidence would be myself.



35. As far back as at the pre-trial meeting, another option was proffered that evidence be taken down and video graphed in Nigeria. It was proposed that such video then be presented as evidence in court here so that this court could see how the witnesses performed under examination in-chief and under cross-examination. This option was, however, rejected by the accused.



36. Ultimately the accused himself decided that he was no longer going to make use of the evidence of those witnesses from Nigeria in his defence. In this regard, I refer to a letter dated 27 November 2012 written by the accused’s former attorneys of record and addressed to the High Commissioner of the Federal Republic of Nigeria. In paragraph 3 thereof, the following is stated:



We record that our client has decided not to use the testimony of Mr Obi Nwabueze, Charles Okah and Alexander Davour in his trial going forward.”



37. That, to my mind, is a clear and unqualified election by the accused not to avail himself of their testimony for whatever reason. In light of such an express disavowal by an accused of calling foreign witnesses, it would in fact be very strange for a court to disregard the accused’s election and superimpose upon the accused its own election by issuing a letter of request mero motu calling for the evidence of such witnesses.



38. In light of this clear and unequivocal election by the accused and his legal representatives not to call for foreign witnesses to testify for the defence, no irregularity occurred which warranted the recordal of aspecial entry. In such circumstances it would be absurd and frivolous to expect the court to overrule the accused’s clear election. It would be particularly absurd for the court to mero motu issue a letter of request calling for the testimony of witnesses who are in detention, who have been refused bail and who may be prejudiced in their own defence on similar charges in their trials to be conducted in Nigeria. The special entry on this third ground is also refused.



Conclusion



39. For the reasons set out above the application for special entries pursuant to the provisions of Section 317 of the Criminal Procedure Act, is refused.



DATED THE 20th DAY OF MARCH 2013 AT JOHANNESBURG





___________________

C. J. CLAASSEN

JUDGE OF THE HIGH COURT



Counsel for the State: Adv S. K. Abrahams instructed by the Director of Public Prosecutions



Counsel for the Accused: Adv J. P. Marais instructed by McMenamin, Van Huyssteen & Botes Attorneys



Argument on the Application in terms of Section 317 of Act 51 of 1977 took place on 20 March 2013



1See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (AD)

2See Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC) at paragraph [68], page 489.

3Prior to the date of commencement on 20 May 2005 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act No 33 of 2004, it was not possible to try a foreigner in South Africa for misdeeds committed beyond its borders. See Tsebe supra at paragraph [62], page 487

4We know that she was present because of the letters that she had written to me and to the state in regard to a statement I had made in my judgment during the course of granting the accused a final post postponement on 21 November 2012.