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South Africa (SA) has a widely admired Constitution with a Bill of Rights that embeds human dignity and sets out minutely detailed protections for those arrested on criminal charges (s 35(1)), for those detained and sentenced (s 35(2)) and for criminal accused (s 35(3)).
These provisions came into force at the very time that the administration of justice was beset by considerable challenges in the wake of Apartheid. On the one hand, the new democratic government faced significant challenges to its legitimacy. Though backed by overwhelming democratic support, it had yet to establish its authority. On the other, it faced a crisis of personnel and effective functioning.
In the first years of democracy, a large cadre of skilled detectives left the police force (A Altbeker The Dirty Work of Democracy: A Year on the Streets with the SAPS (Johannesburg: Jonathan Ball 2005) at 261). This enervated the service’s response, detection and arraignment capacities. That proved to be just one of the problems besetting the new South African Police Service (SAPS), whose dysfunction and inefficiency was, thereafter, exacerbated by a series of disastrous top appointments. Many see this dysfunction culminating in the mass killings at Marikana on 16 August 2012 – the deadliest security force incident in SA since 1976.
A further problem was the enervation of the prosecution service, which started under former President Thabo Mbeki, who suspended the National Director of Public Prosecutions, advocate Vusi Pikoli. Worse followed, in a series of catastrophically malign or inept appointments by former President Jacob Zuma.
With a powerful Bill of Rights on one side, protecting the rights of accused, and insufficient, or insufficiently trained, skilled, or motivated, police and prosecutors on the other, SA became enmeshed in what appeared to be a trap: Process and rights over output, process and rights over product, and process and rights over efficiency.
The allegations of corruption against former President Zuma seem to illuminate the problem. In December 2007, Mr Zuma was arraigned on charges relating to fraud, corruption, money laundering and racketeering arising from multi-billion Rand arms procurement contracts in the late 1990s. Shortly before the general election of April 2009, then Acting National Director of Public Prosecutions, Mokotedi Mpshe, withdrew the charges, but seven years later a Full Bench of the Gauteng Division of the High Court in Pretoria overruled his decision in Democratic Alliance v Acting National Director of Public Prosecutions and Others (Society for the Protection of our Constitution as Amicus Curiae) [2016] 3 All SA 78 (GP), because Mpshe had ‘ignored the importance of the oath of office which demanded of him to act independently and without fear or favour’ (para 92). Dismissing the appeal, the Supreme Court of Appeal (SCA) ruled in Zuma v Democratic Alliance and Others; Acting National Director of Public Prosecutions and Another v Democratic Alliance and Another [2017] 4 All SA 726 (SCA) at para 84 that discontinuing the prosecution was ‘inimical to the preservation of the integrity of the NPA’. The charges were eventually reinstated on 16 March 2018.
Since then, Mr Zuma’s defence has requested, and been granted, a number of postponements, on various bases, and has brought a number of interlocutory applications to defer the trial. In May 2019, his defence contended that he had been unfairly prejudiced by repeated delays and approached the KwaZulu-Natal Division of the High Court for a permanent stay of his prosecution.
Commentators have characterised this defence strategy as a ‘Stalingrad strategy’. This involves a well-resourced accused, over a protracted period, postponing or frustrating the trial process. This is done by deploying every possible legal argument and stratagem to thwart the prosecution. Once enough time has passed, it may become possible to contend that delay itself has violated the accused’s right to a fair trial, and that a permanent stay should be granted.
Like the military strategy, which seeks victory in the destruction of everything, to the last standing brick, ‘Stalingrad’ litigation attacks every aspect of the criminal justice system, regardless of collateral damage, with the intention or hope that the prosecution will ultimately surrender. But even without surrender, the attack on rationality, justice and basic fairness leaves the system weaker.
When an accused engineers the delay as primary agent, the right to a fair trial is exploited as a form of ‘lawfare’, which fundamentally erodes the criminal justice system.
This not a general accusation as to the defence process in South African criminal courts. Most legal practitioners perform their duty conscientiously and to the best of their ability.
The system depends, for its efficient operation, on the active cooperation of all – police, prosecutors, defence and the Bench. It is the duty of the prosecutor as commander of the process (dominus litis) to promote this cooperation. Doing this should continue to be part of training.
At the same time, it is the duty of the presiding judicial officer to assist the prosecutor in this – while also promoting efficiency by adhering conscientiously to all available court hours. This, too, should be part of training.
The Criminal Procedure Act 51 of 1977 (CPA) makes provision for the careful identification of issues at the outset, but few prosecutors or judicial officers engage this power properly.
Presiding officers in trial courts should apply the procedural rules justly and fairly, yet firmly – and appellate courts should in their turn encourage this fair but firm conduct. Though presiding judicial officers can achieve much through firm management of trials and parties, in some cases legislative amendments may be essential.
For the criminal justice system to perform its educative, palliative and conflict resolution functions, the public must be able to rely on it to act swiftly. That is the message that must be ingrained in all who serve it. From every perspective, justice delayed is justice denied.
The principle is clear. Expeditious conclusion of criminal proceedings is central to a fair trial. In Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC), the Constitutional Court (CC) set out the principles establishing when delay may warrant permanent stay of prosecution.
Kriegler J stressed that the right to a trial within a reasonable time is designed to protect the accused (who bears the burden of repeated postponements and adjournments) from delayed-prejudice. That need not relate only to the trial itself. It extends to the fact that, while the charges are undetermined, the presumption of innocence may be threadbare protection against the fact that the accused’s name and reputation are sullied by the very fact of the charges.
The right to a trial within a reasonable time, the court explained, seeks to mitigate ‘the tension between the presumption of innocence and the publicity of trial’ by acknowledging that the accused – although presumed innocent – is nevertheless ‘punished’ – and, when remanded in prison, that punishment is severe (Sanderson at para 24).
What is ‘a reasonable time’? This is a value judgment by the court. It considers the kind of prejudice suffered, the nature and complexity of the case and the lack of state resources that might have hampered the investigation or prosecution.
Mr Zuma’s own case elicited second exposition, when he sought a permanent stay of prosecution on the grounds of unreasonable delay in the start of his trial (S v Zuma and Another and a related matter 2020 (2) BCLR 153 (KZD) at para 114). A Full Bench of the High Court dismissed the application. It ruled that the seriousness of the charges outweighed the potential prejudice that Mr Zuma claimed he would suffer if the trial proceeded.
Constant and prejudicial delays can, themselves, thus become grounds of defeasibility of a criminal prosecution. Though protection from unreasonable delays is key to respecting the accused’s right to procedural fairness, when a defence lawyer seeks tactical postponements this may pose an insidious threat to justice.
Sanderson (at para 33) warned that an accused who has either sought numerous postponements, or delayed the prosecution in less formal ways, cannot later invoke those very delays. Equally, an accused who has constantly consented to postponements, even if not initiating them, could find it hard to establish delay-prejudice.
Wild and Another v Hoffert NO and Others 1998 (3) SA 695 (CC) echoed this. There, repeated postponements resulted in three years’ delay between arrest and trial. Scrutinising each delay, the court concluded that the accused themselves were in part responsible. Permanent stay was refused.
When the defence invokes important rights with the intention – oblique or direct – of thwarting the criminal justice system, abuse of the judicial process supervenes.
Tactics include meritless applications, failing to appear and applying for unnecessary postponements. Sometimes, ‘stunt’ withdrawals by defence lawyers, or the accused’s ‘stunt’ dismissal of a defence team, feature. To expose these tactics may be difficult, but suspicion often exists that some criminal legal practitioners collude with clients to use supposed unavailability to get postponements.
Weaponisation of the criminal justice process is becoming less unfamiliar. Radovan Krejcir has used various tactics to delay his trials. In November 2013, he was arrested and charged with attempted murder, kidnapping and drug dealing. Following a protracted two-year trial, during which he lodged repeated applications for postponement, he was convicted on all counts.
However, repeated changes in Mr Krejcir’s legal team protracted the sentencing process, resulting in a seven-month delay. Finally, Lamont J drew the line (S v Krejcir and Others (GJ) (unreported case no SS26/2014, 24-8-2015) (Lamont J)). He refused to allow Mr Krejcir more time to ‘consult with his lawyers’ after he claimed that his legal practitioner had failed to appear before the court because he was busy with another case.
Eventually, Mr Krejcir was sentenced to 35 years’ imprisonment. His attempts to appeal to both the SCA and the CC failed.
Mr Krejcir is, again, on trial in the High Court for murder. Typically, the trial has been in progress since 2015, delayed by bail applications, changes of legal representation, the accused’s claims of poor health, conflicts in his legal teams’ diaries and various other roadblocks.
Msimeki J has chastised Mr Krejcir for his role in this, and has set strict time limits in dealing with his counsel, recognising the tendency to remove them frequently. Five years later, the murder trial has yet to be concluded.
More recently Gary Porritt and his spouse, Susan Bennett, appear to have invested huge effort and expenditure in preliminary tactics to delay their trial (S v Porritt and Another (GJ) (unreported case no SS40/2006, 23-5-2019) (Spilg J)). They face more than 3 000 charges of fraud, racketeering and contravention of the Income Tax Act 58 of 1962, the Companies Act 61 of 1973 and the Stock Exchanges Control Act 1 of 1985. Though they were arrested in 2002 and 2003 respectively, their criminal trial commenced only in September 2016.
Since then the prosecution has proceeded agonisingly slowly. Both accused appear to have intentionally delayed proceedings with applications and appeals that appear to have had little chance of success.
The case has twice reached the SCA. It is now being managed by a third judge, Spilg J, who in response to what he considered stalling tactics withdrew Mr Porritt’s bail.
At present, remand detainees constitute a third of SA’s prison population. In April 2020, it was recorded in the Department of Correctional Services report titled ‘Reduction of remand detention during lockdown: Briefing of Judicial Inspectorate of Correctional Services’ that 4 027 remand detainees had spent more than two years in detention. Backlogs exacerbate an already overcrowded prison system. An over-burdened criminal justice system threatens the rights of every accused, imposing systemic delay on all.
In Zanner v Director of Public Prosecutions, Johannesburg 2006 (2) SACR 45 (SCA) 2006 (2) SACR 45 (SCA) at para 21 the court stressed that:
‘[T]he right of an accused to a fair trial requires fairness not only to him, but fairness to the public as represented by the State as well. It must also instil public confidence in the criminal justice system, including those close to the accused, as well as those distressed by the horror of the crime’.
Dysfunction in the criminal justice process thus damages, and undermines the rule of law, by appearing to cast ridicule on the entire legal system.
In part 2, we consider what to do.
Edwin Cameron is Chancellor of the University of Stellenbosch and Inspecting Judge of Prisons at the Judicial Inspectorate for Correctional Services in Pretoria. Johan du Toit BIur LLB (UFS) is an advocate, retired Deputy Director of Public Prosecutions at the National Prosecuting Authority and former team leader and trial attorney at the International Criminal Tribunal for the former Yugoslavia in The Hague, Netherlands. Alexia Katsiginis BCom Law (UP) LLB (UP) LLM (London School of Economics and Political Sciences) is a PhD candidate (Sciences Po Law School) and Law Clerk to the Inspecting Judge of Prisons at the Judicial Inspectorate for Correctional Services in Pretoria.
This article was first published in De Rebus in 2020 (Dec) DR 6.
