Many times, the words ‘justice delayed is justice denied’ have echoed throughout history, at some point even by icons, such as William Ewart Gladstone, Martin Luther King Jr and even former President Nelson Mandela among others. The words no doubt sound like a cliché when uttered, but if you have at any point been faced with a criminal case (be it in your capacity as an accused, a complainant, a presiding officer, a legal practitioner or even merely as a spectator) you immediately resonate and are reminded of just how unreasonable delays have led to the decay in the criminal justice system as we know it.

It is of principal essence to credit the fact that s 35 of the Constitution provides for the overall right to a fair trial. Section 35(3)(d) was subsequently enacted in 1997 to specifically cater for the right to have all trials begin and conclude without any unreasonable delays. It goes without saying that these unreasonable delays emanate from postponements, which can be granted or denied by courts in terms of s 168 of the Criminal Procedure Act 51 of 1977 (CPA), as amended. In 2003, the legislature further enacted s 342A of the CPA, which in turn places discretionary powers on courts so as to enable them to grant remedies against any such unreasonable delays.

When looking at all the above mentioned statutory provisions, one would conclude or assume that the criminal justice system is in good hands and that it is well on its way to achieve a proper functioning administration of criminal justice. A closer and more critical look would, however, result in a crushingly sad realisation that in fact, the system is flawed and a very long way from achieving the requisite expeditious status. One might wonder why most criminal cases go on for years with absolutely no hope of finalisation and it does not take a genius to observe that this is all due to a disturbing tradition of unreasonable delays.

It would, therefore, seem that indeed the legislature’s intentions were pure in putting in place all these provisions that promote the right to a speedy trial. However, it is quite unfortunate that the law as it is right now is not effective in encouraging the preservation of this right, as it keeps falling victim to unreasonable delays. It would further seem that there is an urgent need for change and improvement of the existing remedies if the South African criminal justice system is to really achieve the efficiency it sorely desires and needs.

One observation is that one of the remedies available is that of granting of a costs order against the delaying party. Courts have for the longest time, however, been reluctant to grant this remedy as it poses a variety of challenges, such as what tariffs to apply and so forth. On this note, enactment of a specific regulation of the costs order remedy with regulated tariffs as in civil procedure, might just be the answer we seek in eradicating these delays.

Furthermore, courts are empowered to withdraw charges in cases of unreasonable delays. However, this remedy is only temporary in nature as the state still holds the right to reinstate the same charges in future. Perhaps improvement of this remedy to permanent withdrawal of charges might also aid in the quest to eradicate these delays.

Another disturbing observation is that as it stands, most criminal courts are saddled with trivial cases that unnecessarily consume the court’s time and in turn cause unreasonable delays. The law provides for the option of mediation of certain cases between parties, as well as diversion of some cases for instance for evaluation of young and first offenders by social workers. In practice, however, mediation and diversions are not as common as it should be. One would, therefore, recommend that certain trivial cases be removed from the trial roll and referred for mediation and diversion so as to ease the overburdened criminal justice system.

It is to be further noted that prior to the enactment of s 342A of the CPA, courts would apply the common law principle of a permanent stay of prosecution, which still remains in force, but can only be exercised by higher courts. One would, therefore, recommend enactment of a statutory provision that extends the power to grant a permanent stay of prosecution to lower courts especially bearing in mind that most delays occur in lower courts than in higher courts.

The abovementioned problems and the recommended solutions are merely a non-exhaustive drop in the ocean and are an indication that indeed there is an urgent need for a swift criminal justice system in South Africa (SA). As a nation that takes pride in constitutionalism, democracy and the recognition of fundamental human rights, SA desperately needs to take steps towards deterrence of unreasonable delays in the criminal justice system, which will ultimately protect the right to a speedy trial as enshrined in the Constitution.

Proud Mpofu LLB (Walter Sisulu University) is a legal practitioner in Johannesburg.

This article was first published in De Rebus in 2022 (Nov) DR 40.