By Mzoxolo Terrance Magadla

S v Seth (GJ) (unreported case no SS33-2022, 26-9-2024) (Dosio J)

The right to a fair trial is sacrosanct in the South African criminal justice system. It is a right that is protected by the Constitution, particularly s 35. It has, however, become a norm that criminal trials take long to be finalised, and this infringes on the rights of the accused to a speedy trial. These unreasonable delays also have a negative effect on the administration of justice. As a result, when courts grant indefinite and/or long postponements in criminal trials, they must strike a balance between the rights of the accused and the administration of justice. In the S v Seth case, the court had to exercise this balancing act in an attempt to stop an unreasonable delay in the criminal trial.

Background to the case

The criminal trial was scheduled to commence on 24 October 2022. However, on the commencement day, the accused indicated to the court that he wanted to make representations to the National Prosecuting Authority (NPA) for a stay of prosecution. Accordingly, the matter was postponed to a later date. The accused’s representations were, however, unsuccessful. Despite this, he indicated to the court that further representations would be made to the National Director of Public Prosecutions (NDPP). Due to these on-going engagements with the NDPP, and a pending review application, the commencement of the criminal trial was postponed more than 20 times. Subsequent to the postponements, the trial was supposed to commence on 12 February 2024. However, due to the accused’s non-appearance in court, the matter was rolled over to 16 February 2024. The court took it on itself to place the review application on case management, in order to set fixed time frames for the filling of affidavits. The accused again applied for a further postponement. The application was argued on 17 September 2024, the state opposed the application. The legal question before the court was whether a criminal trial may commence pending a review application.

The law

The right to a fair trial is protected under s 35 the Constitution. Section 35(3)(d) states that ‘every accused person has a right to a fair trial, which includes the right … to have their trial begin and conclude without unreasonable delay.’ This means that courts are enjoined to ensure that there are no unreasonable delays in finalising criminal trials; failure to do so has the potential of infringing the rights of the accused. Section 342A of the Criminal Procedure Act 51 of 1977 (CPA) provides an important legal framework that seeks to deal with unreasonable delays in finalising criminal trials. Section 342A(1) provides that ‘a court before which criminal proceedings are pending shall investigate any delays in the completion of proceedings which appears to the court to be unreasonable.’ Section 342A(2) lists factors that the court should consider in deciding whether the delay is unreasonable, these factors include, but are not limited to, ‘the reasons advanced for the delay; … actual or potential prejudice caused to the state or the defence by the delay, including a weakening of the quality of evidence.’ Section 342(3) provides that ‘if the court finds that the completion of the proceedings is being delayed unreasonably, the court may issue any such order as it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice.’

Unreasonable delays in finalising criminal trials

An accused has every right to seek redress in terms of the law at any point during an on-going criminal trial, and ordinarily will be granted postponements to accommodate whatever they would want to pursue in terms of the law. The problem is when these postponements are frequent, and unreasonably long, which would then negatively impact on the administration of justice. As much as the rights of the accused are paramount in the criminal justice system, however, as highlighted in this case, it is important to understand that the public is also an important stakeholder and should always have confidence in the criminal justice system. The very idea of the rule law depends on this. Unreasonable delays in finalising criminal trials would inevitably erode the trust that the public has in the criminal justice system.

As noted, s 35(3)(d) of the Constitution requires courts to act in the best interests of the accused by ensuring that a criminal trial is not unduly delayed. Section 342A(1) of the CPA further requires courts to investigate any apparent unreasonable delay in the completion of a trial. A court will, therefore, have to consider the reasons provided for the delay.

The accused in this case did not provide a time frame for when the pending review applications would be finalised. He indicated to the court that there was a possibility of further litigation should the review application be unsuccessful. This meant that the criminal trial would be delayed until such time he had exhausted all his legal avenues, and there was no telling when that would be. The court also had to consider actual and/or potential prejudice which would be caused to the state due to the delay, such as the unavailability of witnesses, and the weakening of the quality of evidence. The court ultimately found that the delay was unreasonable and prejudicial to the state.

Conclusion

In this case the court ultimately decided that unreasonable delays in finalising criminal trials does not only affect the accused, but have the potential to erode trust in the criminal justice system. The court in assessing the reasonableness of the delay had to consider the rights of the accused while also considering the administration of justice, and the prejudice that would be suffered by the state. Both s 35 of the Constitution and s 342A of the CPA, enjoins the courts to ensure that criminal trials are not unreasonably delayed.

Mzoxolo Terrance Magadla BA LLB LLM (Wits) is a non-practicing legal practitioner in Johannesburg.

This article was first published in De Rebus in 2025 (March) DR 46.