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When a matter has been on a court roll for a considerable amount of time, the defence will usually bring an application for the matter to be struck off the roll in order to give the state ‘ample time’ to conclude their investigations. The main reasons advanced for such an application would be the time spent investigating the matter and the prejudice suffered by their client.
Section 342A(1) of the Criminal Procedure Act 51 of 1977: ‘A court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness.’ The use of the word ‘shall’ makes it peremptory. The court in S v Ndibe (WCC) (unreported case no 14/544/2010, 14-12-2012) (Ndita J) at para 5 held that it is the court’s duty to ensure that ‘the rights in terms of s 35(3) to have trials commencing and being completed without unreasonable delay are enforced.’ The court in Ndibe at para 6 held that where a court is faced with an application to strike a matter off the role, such a court is ‘“compelled” to give effect to the provisions of the section.’ The court in Director of Public Prosecutions v Tsupa and Others (FB) (unreported case no 65/2019, 31-3-2021) (Daniso J) at para 22, referred to the case of S v Van Huysteen 2004 (2) SACR 478 (C), where it was held that an inquiry in terms of s 342A(3) ‘does not require a formal hearing or even a formal finding … to grant or refuse a postponement. “If the presiding officer enquires as to the reasons for … further postponements and concludes that a further postponement would lead to an injustice, that is sufficient.’ This inquiry to refuse a postponement is only valid before an accused has pleaded, after he or she has pleaded other qualifications comes into effect.
One of the first indicators to the defence will be the time spend investigating the matter. The defence would at times alert the presiding officer of the length of period the matter is on the roll. The court in Wild and Another v Hoffert NO and Others 1998 (3) SA 695 (CC) at para 6, held that time is the starting point but should be viewed in conjunction with all relevant factors. The relevant factors might include the obstacles the investigator faces when investigating the matter, he might not be able to trace certain witnesses due to the fact that they moved or that some information is harder to obtain than others. The court at para 25 held that where a period of ‘ostensibly culpable inactivity’ can be blamed on the prosecution, the inference can be drawn that the period is unreasonable if no explanation is offered for it. The court indicated that although a lengthy period has passed, the state must account for that period with an explanation that will stand up to scrutiny. In Sanderson v Attorney-General, Eastern Cape 1997 (12) BCLR 1675 (CC) at para 28, the court held that ‘time has a pervasive significance that … should not be considered … in isolation’ when an unreasonable delay is at issue.
In McCarthy v Additional Magistrate Johannesburg and Others [2000] 4 All SA 561 (A) the court had to consider whether a matter involving an extradition request by the United States to SA had taken too long to complete. Counsel for the appellant contended that the period from 22 November 1990 until 8 November 1991 has been marked as an ‘unexplained delay’. In dismissing the appellant’s contention, the court at para 34 noted an affidavit filed by the Acting Attorney-General, Mr KM Attwell, where he explained the diplomatic process. The court held that the period is not unreasonable due to the fact that the diplomatic process is itself a time consuming one. The court in McCarthy merged the findings of the Constitutional Court (CC) in the Wild and Sanderson cases; by not viewing the lapse of time in isolation, taking into consideration all relevant factors that brought about the delay and that the state gave a reasonable explanation for the delay that stood up to scrutiny.
The CC in Sanderson identified three factors that have a bearing on a s 342A inquiry. The factors were identified as the ‘prejudice suffered by the accused’, ‘the nature of the case’ and ‘systemic delay’ (paras 31, 34 and 35).
The first factor. The appellant in the Sanderson case was a deputy-principle at a primary school and was charged under the Sexual Offences Act 23 of 1957. He contended that he suffered social prejudice, serious social embarrassment and loss of income due to some of his engagements being cancelled as a part-time music performer. The court noted the appellant was not in custody, continued working and was not expected to attend court frequently. The prejudice that he alleged was not as invasive and that the charges were such that it was impossible to escape scrutiny when facing such charges.
In McCarthy the court accepted that the nature of an investigation into an extradition request would take longer to complete than an ordinary investigation. The court in Wynne-Jones and Another v S: In re S v Wynne-Jones and Another [2012] 2 All SA 311 (GSJ) was faced with a matter involving fraud, theft, contravention of the Inspection of Financial Institutions Act 80 of 1998 to name but a few. The court held that ‘fraud cases are always very complex and serious’ (para 85). The delays are ‘naturaliae of any prosecution.’ Again, the court recognised that the nature of financial crimes would cause more of a delay than in other less serious crimes and an investigation into such crimes would take longer to complete than crime of a less technical nature.
The third and final factor the court in Sanderson recognised that has bearing on a s 342A inquiry is systemic delays. The court at para 35 defines systemic delays as ‘resource limitations’ that hamper the police investigations and delays caused by court congestion. Resource limitations can be delays caused as a result of backlogs experienced by laboratories which would lead to laboratory results not being timeously available. Such details are often experienced in drug related investigations and investigations involving DNA results. Resource limitations can mean multiple investigating officers sharing one vehicle that may result in incomplete investigations and information not going before court timeously. The court in Sanderson at para 35 held that systemic delays cannot always be accepted but admitted that within the South African context we are not there yet. The court held that systemic delays are ‘more excusable’ than delays caused by ordinary investigations. The court also held that when systemic delays are advanced as the reason for the delay it would serve the accused and his legal representative well to bring evidence showing that the ‘average systemic delay’ ‘had been exceeded’ in this matter. The court held that if an accused cannot do that, a court will find it difficult to determine how much systemic delays are enough.
In S v Mokoena 2019 (2) SACR 355 (SCA) after numerous postponements for the applicant to secure the attendance of a witness to present video evidence that might assisted him in his case, the applicant failed to secure the attendance of the witness. The applicant applied for a remand to secure the attendance of the witness and his application for a remand was declined in terms of s 342A(3)(a). In refusing a further remand the magistrate stated that the accused knew that the matter was marked final. The court made an order in terms of s 342A(3)(d) and disposed of the matter as if the defense closed its case. Section 342A is divided into s 342A(1), the provision, s 342A(2), the factors that the court must take into account, and s 342A(3), the orders the court may make when it deems it necessary to rectify any mistake. Section 342A(4) also qualifies certain provisions. After the accused has already pleaded and the court found that a delay is unreasonable, the court may make an order in terms of s 342A(3)(a), refusing any further postponements. The court can also make an order in terms of s 342(3)(d), where the accused has pleaded to the charge, as was the case in Mokoena, where the state or the defence is unable or refuses to proceed with the case. The court can make an order that the proceedings proceed as if the case for the state or the defence has been closed. After the accused has pleaded, s 342A(3)(a) and (d), have a qualification attached to them in terms of s 342A(4)(a). Section 342A(4) states that after the accused has pleaded, such an order shall not be granted unless exceptional circumstances exist, all other attempts to speed up the process have been made and the state or the defence have given notice beforehand that they intend to apply for such an order to deem the case of the party who is unable or refuses to proceed, to deem their case closed. In Mokoena, the Supreme Court of Appeal (SCA) held that the provisions of s 342A(4)(a) are peremptory and exceptional circumstances must exist, while ‘all other attempts to speed up the process have failed’ (para 6). The trial court only indicated that the matter has been marked final, no notice was received from the state that they intended to apply for an order in terms of s 342A(3)(d). The SCA held at para 8 that notice from the opposing party is required by the Act and that only the other party can give such notice, not the magistrate. The SCA held that: ‘The grant[ing] of the order in terms of s 342A(3)(d) was clearly a technical irregularity’ (para 9). A technical irregularity can only be said to reverse a decision if it results in a failure of justice and the SCA at para 9 held that in this case a failure of justice occurred. The decision by the SCA was prompted by the state not giving proper notice of their intention to apply for an order deeming the case of the defence closed, as required in terms of s 342A(4).
When an application in terms of s 342A was successful and an order was made that it can only be re-institute with the written consent of the Attorney-General as was the case in Naidoo and Others v National Director of Public Prosecutions and Another 2011 (12) BCLR 1239 (CC). The appellant submitted that such a reinstitution can only be made by the National Director of Public Prosecutions. The court in dismissing the application held that such powers are vested with the Director of Public Prosecutions who can rely on the recommendations by two senior members of their office before deciding to reinstitute or not.
Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.
This article was first published in De Rebus in 2024 (Jan/Feb) DR 12.
