Recent Case: Criminal procedure

• Author: du Toit, P.
• DOI: https://doi.org/10.47348/SACJ/v35/i2a6
• Published date: 03 October 2022
• Date: 03 October 2022
• Citation: (2022) 35 SACJ 234
• Pages: 234-245

Criminal procedure

PIETER DU TOIT

North-West University

1 Unreasonable delays in criminal trials

1.1 Introduction

The rst part of this contribution focuses on various cases dealing

with delays in criminal proceedings. Section 342A(1) of the Criminal

Procedure Act 51 of 1977 provides that a criminal court may conduct an

investigation into delays in criminal proceedings. The section provides

for a number of factors that a court must consider in determining

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)). In addition

to these statutory remedies, the possibility of the court ordering a

permanent stay of prosecution, thereby effectively interdicting the

future prosecution of the accused, also exists. This remedy is drastic in

nature and will not be granted lightly (Sanderson v Attorney-General,

Eastern Cape1998 (2) SA 38 (CC) at para [42]; Zanner v Director of

Public Prosecutions, Johannesburg 2006 (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 Development v Phillips

[2012] 4 All SA 513 (SCA); Rodrigues v National Director of Public

Prosecutions 2021 (2) SACR 333 (SCA) at para [31]. Also see M Reddi

‘Recent cases: Criminal procedure’ (2022) 35 SACJ 98 where Lethoko v

Minister of Defence 2021 (2) SACR 661 (FB) is discussed).

1.2 The jurisdiction of lower courts to order a permanent stay

of prosecution

There are conicting decisions on the question as to whether lower

courts may order a permanent stay of prosecution. In Broome v

Director of Public Prosecutions, Western Cape; Wiggins v Acting

Regional Magistrate Cape Town2008 (1) SACR 178 (C) the high court

seemingly assumed that a magistrate’s court may make such an order.

S v The Attorney -General of the Western Cape; S v Regional Magistrate,

Wynberg 1999 (2) SACR 13 (C) and Director of Public Prosecutions

KwaZulu-Natal v Regional Magistrate, Durban 2001 (2) SACR 463 (N)

are representative of the view that magistrates’ courts do not have

jurisdiction to order a permanent stay. In S v Naidoo 2012 (2) SACR

234 SACJ.(2022) 2

https://doi.org/10.47348/SACJ/v35/i2a6

(2022) 35 SACJ 234

© Juta and Company (Pty) Ltd