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

• Jurisdiction: South Africa
• Judge: Hlophe ADJP et Griesel J
• Judgment Date: 07 April 1999
• Citation: 1999 (2) SACR 13 (C)
• Hearing Date: 26 March 1999
• Counsel: J R Whitehead for the applicant J Slabbert for the respondent (in the first application) and for the second respondent (in the second application No appearance for the first respondent (in the second application)
• Court: Cape Provincial Division

Hlophe ADJP et Griesel J

Introduction:

The applicant stands charged in the regional court in Wynberg on 15 counts involving alleged contravention of s 14(1)(c) of the Sexual Offences Act 23 of 1957, together with alternative D charges of indecent assault as well as one count of sodomy. On 12 November 1997 the applicant applied to the regional magistrate for an order permanently staying the criminal proceedings against him on the grounds of undue delay. The application was supported by a lengthy affidavit by the applicant, together with voluminous annexures thereto. After hearing E argument, the magistrate dismissed the application and ordered the trial to proceed.

Following an urgent application to this Court for the temporary stay of the criminal proceedings, to applications were launched by the applicant on 12 December 1997, the first one (under case No 16644/97) claiming relief identical to the relief claimed before the F magistrate, viz a permanent stay of prosecution. In the second application (under case No 16645/97) the applicant claims an order reviewing, setting aside and correcting the magistrate's decision on 12 November 1997 in which she dismissed the applicant's application for a permanent stay of the prosecution. Both applications have been enrolled to G simultaneous hearing before us. For convenience these two applications will be referred to herein as 'the review' and 'the stay application' respectively.

The review is being brought against the regional magistrate, as first respondent, as well as the Attorney - General (now the Director of Public Prosecutions - 'the DPP'), as second H respondent. The stay application is brought against the DPP as the only respondent. The magistrate does not oppose the review and has filed a notice, abiding by the decision of this Court. The DPP, however, opposes both applications and has filed opposing affidavits in which his grounds of opposition are set out.

Before dealing with the applications in more detail it is necessary to set out briefly the I historical background and chronology of the matter.

Background and Chronology:

The applicant was originally arrested on 9 March 1994. He appeared in the magistrate's court in Caledon on unspecified charges involving J

Hlophe ADJP et Griesel J

A indecent acts with young boys. The matter was postponed for further investigation and the applicant was released on bail.

The matter was thereafter postponed from time to time at the request of the State. At his third appearance, on 20 July 1994, the applicant objected to further postponement of the matter. B Subsequently, however, several further postponements were granted by agreement.

On 2 November 1994 a first set of charges were drawn and the case was postponed to 14 December 1994 for plea.

On 18 November 1994 a request for further particulars to the charges was delivered on behalf C of the applicant. This was followed, on 9 December 1994, by a notice of objection in terms of s 85(1)(a) of the Criminal Procedure Act of 1977 to the charges as they were then framed.

On 14 December 1994 the matter was postponed at the request of the State to 19 December 1994 and on the latter date a further postponement was granted at the request of State to 17 January 1995.

D On 17 January 1995 the matter was postponed to the Somerset West regional court for trial on 27-31 March 1995. At the same time the State provided the applicant with a fresh set of charge sheets, involving 14 different complainants.

On 28 February 1995 another request for further particulars to the new charges was delivered to the State on behalf of the applicant.

E On 23 March 1995 the State furnished handwritten further particulars to the charges, together with a new (third) set of charge sheets, involving the present 16 counts, together with various alternative charges, in relation to 15 complainants.

On 27 March 1995 the applicant applied for postponement of the trial by reason of the late F changes to the charge sheet as well as the failure by the State to furnish all of the requested particulars. The magistrate was told that the next available trial date after the period for which the case had been set down was 19 June 1995. In these circumstances the magistrate was not prepared to grant such a lengthy postponement. He accordingly postponed the case to 29 G March 1995 and ordered the State to furnish limited further particulars in the interim.

Not satisfied with the order which the magistrate made, the applicant applied on 29 March 1995 for a postponement of the trial so as to enable him to launch review proceedings in the High Court. The necessary application was eventually launched on behalf of the applicant on H 26 June 1995 under case No 7607/95 ('the first review'), claiming an order 'reversing those portions of (the magistrate's) judgment of 27 March 1995 whereby he (a) in terms of s 168 of Act 51 of 1977, postponed (the case) to 29 March 1995; and (b) refused to order the delivery of certain further particulars'. In the alternative the applicant claimed an order directing the magistrate to order the prosecutor to furnish certain additional particulars, which had not I previously been ordered by the magistrate.

Various further postponements were necessitated by the pending review. On 15 March 1996 the application for review was dismissed by Farlam J, with whom Friedman JP concurred. J During argument in that matter it was submitted on behalf of the applicant that the magistrate's

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decision to grant a postponement should be set aside and that a permanent stay of the A prosecution should be ordered. Alternatively, the Court was requested to 'quash the third set of charges'. These submissions were rejected by the Court on the basis that no such relief had been claimed before the magistrate.

In the course of his judgment Farlam J inter alia said the following (at p 5 of the typed B transcript):

'In regard to the question of a permanent stay, there was, as I have said, no application before the magistrate for a permanent stay of the proceedings. It may well be (and it is not necessary for me to express an opinion on the C matter) that the applicant may well be entitled to complain that certain of his rights, as set out in the Constitution in regard to a trial with reasonable expedition, have been infringed, and it may be open to him to bring proceedings for a permanent stay of proceedings, either in respect of all the charges or at least in respect of some of them. Nothing that I have said is intended in any way to indicate whether or not such an application brought by him will or will not be successful.'

On 29 March 1996 and 3 May 1996 further postponements were granted at the request of the D applicant. According to the record of proceedings of the last-mentioned date the matter was 'postponed to 4 October 1996 at request of defence to bring an application to the Supreme Court for a permanent stay of prosecution'.

In the meantime, however, the applicant's attorneys wrote to the DPP on 29 April 1996, E informing him that they had been instructed to make representations on affidavit to him (i e the DPP) to withdraw the charges. Should such representations be unsuccessful, they had been instructed 'to bring an application in the Supreme Court for a permanent stay of process as referred to in the recent judgment of case No 7607/95'. F

Some four and a half months went by before 'extremely voluminous representations' (in the words of the DPP) were served on him on 12 September 1996.

On 23 October 1996 the applicant's attorneys were informed, however, that 'the Attorney - General has considered your representations, but has directed that the prosecution be proceeded with'. G

The case had in the meantime been further postponed to 5 December 1996. On the latter date the applicant's attorney advised the magistrate that the 'application to Supreme Court was not successful' and that he is 'again to see the Attorney - General within the next few days'. The matter was accordingly postponed to 20 December 1996. (It is not clear why mention is made H in this context of an 'application to Supreme Court', as it is common cause that no such application had been brought after the first unsuccessful review.)

On 20 December 1996 the applicant's attorney applied for a further postponement, as he had not yet seen the Attorney - General. The State did not oppose the application, nor did they I oppose an application for the variation of the applicant's bail conditions.

Further representations were subsequently made, as envisaged. Senior counsel was briefed on behalf of the applicant to see the DPP personally. A further affidavit together with a memorandum was also delivered on behalf of the applicant to the DPP on 6 February 1997. J

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A During April 1997 the applicant was informed by the DPP that his representations were again unsuccessful and that the prosecution would proceed.

On 30 May 1997 the matter was transferred to the regional court in Wynberg and postponed to B 6 June 1997 so as to arrange a trial date. According to the DPP the reasons for this transfer were twofold: the magistrate's court building at Somerset West had burned down in the meantime and the facilities of the so-called 'sexual offences court' were available at Wynberg.

On 6 June 1997 the case was postponed to 10-21 November 1997 for trial in the Wynberg C regional court.

On 24 October 1997 the applicant's attorney wrote to the Senior Public Prosecutor ('SPP') at Wynberg, as follows:

'Our client has had to endure numerous postponements, delays and transfers from one court to another ever since his arrest in March, 1994. He has sustained enormous trauma, and so has his family, as a result of the...