S v Zulu

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Greyling-Coetzer AJ
• Judgment Date: 26 January 2023
• Docket Number: CC41/2019
• Hearing Date: 24 October 2022

Greyling-Coetzer AJ:

[1]

Delays within the criminal justice system raise significant concerns pertaining to the rights of an accused, the victims' and access to justice. But most predominantly, the eroding effect it has on the proper administration of justice. Although some delays are unavoidable, others call for fitting action to be taken in order to curb further prejudice of setting in.

[2]

The prosecuting authority is easily branded to be the culprit in causing delays.

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But one is left with a perplexing sense of concern when the delays appear to be the product of an accused or even worse an officer of court such as an attorney or advocate, whose very persons who took an oath on their admission to the profession. An oath that seems to be long been forgotten by those who make themselves guilty of such eroding conduct.

[3]

The Accused stands arraigned on twenty charges emanating from seven dockets, including:-

(a)

Seven counts relate to Rape in circumstances where the victim was raped more than once and/or in the execution of another crime and/or at gunpoint. [1]

(b)

Six counts of Kidnapping. [2]

(c)

Four counts of Contravention of the Firearms Control Act 60 of 2000.

(d)

Three counts of Robbery with Aggravated Circumstances.

[4]

The offences were all allegedly perpetrated between 13 January 2011 and 15 November 2014.

[5]

The Accused was arrested on 1 May 2011, but failed to attend court. He was only re-arrested 7 years later on 23 November 2018. The matter was transferred to the High Court on 14 October 2019. It's not approximately three years later and the trial has yet to commence.

[6]

The matter came before this court on 17 October 2022, when it was enrolled for trial for the sixth time. On said day and notwithstanding being certified trial-ready, it could not proceed. The reason:- the Accused's private legal representative, Advocate Mandla Mamba ("Mr Mamba") failed to attend court.

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The accused professed to be unaware why his legal representative failed to appear. The instructing attorney Mr Labe was also not in court. Contact was made with Mr Labe who later appeared and explained that Mr Mamba [3] was brief to attend to the matter, and the whereabouts of said was unknown to him too. From the court file it was not the first time that Mr Mamba failed to appear on days allocated to this matter.

[7]

The matter was kept on the roll, and rolled over to 19 October 2022, together with a directive calling for the appearance of Mr Mamba.

[8]

On 19 October 2022 Mr Mamba attended court as directed. He explained from the bar that he failed to appear on the trial date of 17 October 2022, as his car was torched on 16 October 2022. According to him he was unable to inform or relay the message of the incident to either the State, the court or his instructing attorney. Mr Mamba was directed to file an affidavit by 24 October 2022, explaining his failure to appear at court on the trial date in detail, together with contemporaneous documents. He was specifically directed to explaining why his failure to appear does not constitute unprofessional conduct and should not be referred to the Legal Practice Council for investigation.

[9]

Having lost two allocated trial dates due to Mr Mamba's non-attendance, the court reassured by Mr Mamba that the matter will commence immediately and will be finalise within the remaining allocated days. The state had already provided Mr Mamba with a proposed Section 220 admissions bundle weeks before, in order to curtail the issues. The court was further advised that there would be an intended plea by the Accused. For this purpose, Mr Mamba requested the court to allow him time to finalise the written plea explanation statement. Mr Mamba and the Accused was allowed this time at the expense of the State who was of the view that these issues should have been sorted out prior to the trial date. It took 3 hours, in which time the State attended to

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re-organising its case bundles taking cognizance of the intended plea.

[10]

The court reconvened shortly before the end of the day. Mr Mamba indicated that he was instructed by the Accused that he no longer intended to plead and was not willing to make the Section 220 admissions previously agreed to. This Accused position was accepted by all and the matter rolled over to the following day for the trial to commence and the Accused to plead as he wished.

[11]

On 20 October 2022, Mr Mamba indicated that the Accused wanted to say something. The Accused simultaneously raised his hand and indicated that he no longer wished to retain the services of Mr Mamba. The Accused explained that he had lost faith in Mr Mamba, who never properly advised him, but merely indicated to him that he needs to plead guilty. Consequentially, the Accused sought a postponement of the matter for purposes of obtaining new legal representation. Attempts by the court to explain to the accused that Mr Mamba has already indicated that a guilty plea would not ensue and that the matter was to proceed with a "full trial", was fruitless and he insisted on new legal representation.

[12]

It is against the aforementioned background that Section 342A was invoked. Section 342A of the Criminal Procedure Act 51 of 1977 (as amended) provides as follows:-

"342A Unreasonable delays in trials

(1)

A court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness.

(2)

In considering the question whether any delay is unreasonable, the court shall consider the following factors:

(a)

The duration of the delay;

(b)

the reasons advanced for the delay;

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(c)

whether any person can be blamed for the delay;

(d)

the effect of the delay on the personal circumstances of the accused and witnesses;

(e)

the seriousness, extent or complexity of the charge or charges;

(f)

actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost;

(g)

the effect of the delay on the administration of justice;

(h)

the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued;

(i)

any other factor which in the opinion of the court ought to be taken into account.

(3)

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, including an order-

(a)

refusing further postponement of the proceedings;

(b)

granting a postponement subject to any such conditions as the court may determine;

(c)

where the accused has not yet pleaded to the charge, that the case be struck off the roll and the prosecution not be resumed or instituted de novo without the written instruction of the attorney-general;

(d)

where the accused has pleaded to the charge and the State or the defence, as the case may be, is unable to proceed with the case or refuses to do so, that the proceedings be continued and disposed of as if the case for the prosecution or the defence, as the case may be, has been closed;

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(e)

that-

(i)

the State shall pay the accused concerned the wasted costs incurred by the accused as a result of an unreasonable delay caused by an officer employed by the State;

(ii)

the accused or his or her legal adviser, as the case may be, shall pay the State the wasted costs incurred by the State as a result of an unreasonable delay caused by the accused or his or her legal adviser, as the case may be; or

(f)

that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.

[Date of commencement of para. (e): to be proclaimed.]

(4)

(a)

An order contemplated in subsection (3) (a), where the accused has pleaded to the charge, and an order contemplated in subsection (3) (d), shall not be issued unless exceptional circumstances exist and all other attempts to speed up the process have failed and the defence or the State, as the case may be, has given notice beforehand that it intends to apply for such an order.

. . ."

[13]

The common law principle that a criminal trial should be commenced and completed expeditiously, was given constitutional protection through the right to a fair trial entrenched in Section 35(3)of the Constitution, which reads as follows:-

"(3)

Every accused person has a right to a fair trial, which includes the right-

(a)

to be informed of the charge with sufficient detail to answer it;

(b)

to have adequate time and facilities to prepare a defence;

(c)

to a public trial before an ordinary court;

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(d)

to have their trial begin and conclude without unreasonable delay;

(e)

to be present when being tried;

(f)

to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

(g)

to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

. . ."

[14]

Ignoring for the moment all the...