It goes without saying that the South African criminal justice system has been saddled with delays for a long time. To curb these delays, the legislature, in 1997 enacted s 342A of the Criminal Procedure Act 51 of 1977 (CPA) following the investigation into delays (by the South African Law Reform Commission’s Project 73: Simplification of Criminal Procedure) in the finalisation of criminal cases so as to provide several remedies that the courts can apply in order to remedy the situation. One of these statutory remedies is the costs order provision, which in theory is quite similar to the costs order which is common in civil litigation.
Section 342A(3)(e) of the CPA states that –
‘(i) the state shall pay the accused concerned the wasted costs incurred by the accused as a result of an unreasonable delay caused by an officer employed by the state;
(ii) the accused or his or her legal adviser, as the case may be, shall pay the state the wasted costs incurred by the state as a result of an unreasonable delay caused by the accused or his or her legal adviser, as the case may be’.
At this stage, however, this provision for a costs order has not yet come into effect. Moreover, a date has not been set as to when it will come into effect. It is worth mentioning that to date, 26 years have passed since s 342A of the CPA was introduced and yet the costs order that is provided for under subs (3) still remains just that with no hope or talk of it being made official any time soon. In all fairness, with this remedy coming into effect and being applied by criminal courts, the South African criminal justice system would most likely suffer less delays and the constitutional right to an expedient trial would definitely gain protection.
More often than not, accused persons have suffered grave financial prejudice wherein they have had to constantly fund their cases even though there is no progress due to unreasonable delays occasioned by the state. Conversely, the state has also in many cases had to keep funding cases for instance by making witnesses available for trials and so forth, only for cases to continue being postponed due to unreasonable delays caused by accused persons personally or through their legal representatives. In civil procedure, such prejudice is under control as the delaying party can always be ordered to pay wasted costs occasioned by such delay. In essence, an urgent need exists for the same principles to come into effect in criminal courts so that courts can order the faulty party to pay wasted costs whenever unreasonable delays are detected.
It is significant, however, to note that several issues may arise should the cost order come into effect. For instance, it would be a time-consuming exercise to determine, which official of the state is responsible for the delay, since various agencies of the state are involved in criminal trials. It is also likely that the review procedure against decisions of the court to reward costs against either the state or the defence would bring about an additional workload on the Department of Justice, as well as the State Attorney.
Furthermore, no provision for any expenditure has been made where the state may be held liable for costs save to mention that recovering costs from an accused will overburden the State Attorney, as well as the Department of Justice, which already deals with a lot of debt files. Similarly, there is also no basis on which the state’s wasted costs can be determined and in fact, it is uncertain how the wasted costs will be determined according to the wording of the section, namely ‘the scale the court deems fit’.
Be that as it may, a proper codification of the costs order will need to be put in place to govern how the costs order should work. Attention to detail will also need to be employed to properly categorise the costs in terms of a certain tariffs structure like in civil procedure. Perhaps the delay in bringing the costs order into effect is based on the abovementioned challenges among others. In any event, the costs order in criminal proceedings is likely to eradicate delays and as such, it needs to come into effect and as any other statutory provision, it stands to be improved through case law, scholarly opinion and so forth.
It is reiterated that the aggrieved party should have a claim for unreasonable delays caused by the other party. In as much as cost orders are granted daily in civil proceedings for various reasons, the same could be applied in criminal proceedings. Ultimately, where it is clear to the court that the delays are unreasonable, the delaying party should be held accountable.
The court in the exercise of its discretion, could order that those costs be granted to the innocent party, such as wasted costs for coming to court. The court could also grant an order for misconduct. With the cost order in operation, litigants are likely to be wary of requesting superfluous postponements and in turn, this will decrease delays remarkably. In essence, not only will the costs order remedy act as a deterrent against delays but it will go on to hold the guilty party accountable while it seeks to compensate the aggrieved party in the process.
Proud Mpofu LLB (Walter Sisulu University) is a legal practitioner in Johannesburg.
This article was first published in De Rebus in 2024 (March) DR 52.
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