Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Citation: (2017) 30 SACJ 396
• Author: Pieter du Toit
• Date: 24 May 2019
• Published date: 24 May 2019
• Pages: 396-410

Criminal procedure

PIETER DU TOIT

North-West University, Potchefstroom

1 Delays in criminal proceedings

Section 342A(1) of the Criminal Procedure Act 51 of 1977 provides that

a criminal cour t may conduct an investigation into delays in criminal

proceedings. The section fur ther provides for a number of factors

that a court must consider in determ ining whether such delays are

unreasonable (s 342A(2)), as well as a number of orders that a court

may issue should it nd that the completion of the proceedings is being

unreasonably delayed (s 342A(3)). The provision does not empower

courts to order a permanent st ay of a prosecution. However, our courts

(including the Constitutional Court) have held that such an order may

indeed be appropriate to protect the fair tria l rights of an accused

person. Still, such an order should not be granted light ly, as it is a

drastic measure (Sanderson v Attorney-General, Eastern Cape 199 8

(2) SA 38 (CC) at para [42]; Zanner v Director of Public Prosecutions,

Johannesburg 20 06 (2) SACR 45 (SCA) at para [9]; Bothma v Els 2010

(1) SACR 184 (CC); Director of Public Prosecutions and Minister of

Justice and Constitutional Developm ent v Phillips [2012] 4 All SA 513

(SCA). There are conicting judgments on the question as to whether

or not a magistrate’s court has the power to order the perma nent

stay of a prosecution. In Broome v Director of Public P rosecutions,

Western Cape; Wiggins v Acting Regional Magistrate Cape Town 200 8

(1) SACR 178 (C) the high court apparently assumed that a magist rate’s

court may make such an order. In S v The Attorney -General of the

Western Cape; S v Regional Magistrate, Wynber g 1999 (2) SACR 13

(C) and Director of Public Prosecutions KwaZulu-Natal v Regional

Magistrate, Durban20 01 (2) SACR 463 (N) it was expressly held that

magistrates’ court s have the jurisdiction to order the permanent stay

of a prosecution. In S v Naidoo 2012 (2) SACR 126 (WCC), on the other

hand, it was held that no such power was bestowed upon magistrates’

courts. This cour t held (at para [18]) that an accused person who seeks

a permanent stay of prosecution by reason of unre asonable delay

before commencement of criminal proceed ings (in other words in

circumstances not provided for in s 342A of t he Criminal Procedure Act)

must bring such application before the high court having juris diction.

On the other hand, delays occurri ng after the commencement of

criminal proceed ings have to be dealt with exclusively by the court

seized with the crim inal proceedings.

396 SACJ . (2017) 3

(2017) 30 SACJ 396

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