Sanderson v Attorney-General, Eastern Cape

• Jurisdiction: South Africa
• Judge: Kriegler J, Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 02 December 1997
• Citation: 1998 (2) SA 38 (CC)
• Docket Number: CCT 10/97
• Hearing Date: 02 September 1997
• Counsel: A Beyleveld for the appellant MJ Lowe for the respondent
• Court: Constitutional Court

Kriegler J:

[1] This appeal concerns s 25(3)(a) of the interim Constitution, [1] which provides: C

'Every accused person shall have the right to a fair trial, which shall include the right -

(a)

to a public trial before an ordinary court of law within a reasonable time after having been charged.' D

More specifically it relates to the meaning of the two phrases 'within a reasonable time' and 'after having been charged' at the end of that paragraph, and their effect in the light of the facts of the case.

[2] Those facts, briefly stated, are as follows. Towards the end of October 1994 the Child E Protection Unit of the SA Police Service in Port Elizabeth received information that the appellant, the deputy head of a primary school in Port Elizabeth and a well-known singer in local church and musical entertainment circles, had sexually interfered with two girls who, at the time, had been standard five pupils at his school. Investigations commenced and on 1 F December 1994 the appellant, at the invitation of the investigating officer, attended at the latter's office. There he was informed by the detective that he was suspected of having contravened s 14(1)(b) of the Sexual Offences Act 23 of 1957, that is, the commission of an indecent act with a girl under the age of 16 years, at his home during 1991 and 1993. Having been cautioned in accordance with the Judges' Rules the appellant denied the accusation and G declined to make a statement.

[3] The appellant was thereupon informally arrested and released on warning to appear in the magistrate's court the next day. That he duly did and was remanded on his own recognisances until early in the new year without being charged or being called upon to plead. After a H succession of remands the Deputy Attorney-General of the Eastern Cape decided on 7 August 1995 to prosecute the appellant in the Port Elizabeth Regional Court on two charges under the said Act. Whether or not that decision was conveyed to the appellant and, if so, on what date and in which terms, does not appear from the record. What is clear though is that no specific I charges had yet been formulated. The matter was set down for trial for five days during the December 1995 school holidays. This was done to suit the convenience of the appellant and both the complainants who were still at school.

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[4] One of the incidents forming the subject-matter of the envisaged charges had allegedly A taken place in Kimberley and it was necessary to apply to the Minister of Justice for an order under s 111 of the Criminal Procedure Act 51 of 1977 to enable all the charges to be heard in the Port Elizabeth Regional Court. The ministerial directive was delayed and in consequence it was not possible to proceed with the case on the dates that had been arranged. The case was B thereupon remanded to 1 July 1996, that is, to the next long school holidays.

[5] Although the appellant's attorneys had been pressing for several months for a charge-sheet and various other documents, a charge-sheet was served on the appellant for the first time on C 10 May 1996. It alleged two contraventions of s 14(1)(b) of Act 23 of 1957 in respect of each of the complainants and specified the places and dates of their alleged commission. The following month the prosecution furnished a reply to a request for further particulars to the charge-sheet and supplied the defence with copies of the investigation diary and of certain witnesses' statements. D

[6] However, the trial did not commence on the date arranged, namely 1 July 1996. During June 1996 the prosecution added an additional charge (subsequently withdrawn) relating to another complainant and the defence successfully anticipated the trial date and applied for a E postponement. In doing so, the appellant reserved his right to rely on a violation of his rights in terms of s 25 of the interim Constitution. The new dates arranged were from 7 to 18 October 1996 during the October school holidays. It transpired that one of the complainants had moved to the Western Cape, and had different school holidays, and another essential State F witness was due to have a baby at that time. The prosecution therefore applied during August 1996 for a further remand. The application was granted and the period from 9 to 20 December 1996 was fixed for the hearing.

[7] Once again supervening events prevented the trial from starting. On 12 November 1996, G some three months after the latest trial dates had been fixed, the appellant launched an urgent application in the South Eastern Cape Local Division of the Supreme Court (as it was then still called) seeking, in the main, an order permanently 'staying' the proceedings pending against H him in the Regional Court and '(p)ermanently prohibiting the respondent . . . from reinstituting any prosecution against (him) in respect of the charges set out in the indictment' (sic).

[8] The nub of the case made out by the appellant in his founding affidavit is that 'an unreasonable and inexcusable delay in the prosecution of this matter has resulted in a serious I infringement of my rights to a speedy trial as contained in' s 25(3)(a) of the interim Constitution. In amplification he alleges that he 'was first charged on 1 December 1994 in relation to the charges arising out of the complaints made by the two complainants' and that he 'was eventually served with a formal charge- sheet on 10 May 1996'. He stresses that from the time he became aware of the allegations against him in December 1994 he had J constantly

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exerted pressure on the respondent to conclude the investigation and made clear that he A reserved his constitutional right to a speedy trial.

[9] The appellant alleges two broad categories of prejudice suffered by him as a result of what he describes as 'the unreasonably long time period which has passed since the allegations were B made against myself on 1 December 1994 up until the date set for my trial'. The first is what I shall call social prejudice, that is, harm that has befallen him other than in relation to the actual court proceedings against him. Under this head he mentions, first, the very substantial embarrassment and pain he has suffered as a result of the negative publicity engendered by the C nature of the charges, coupled with his occupation and his prominent position in society. His active participation in the affairs of his church has been curtailed and he has had to forego opportunities to supplement his income by stage performances. At the same time his wife's business has been harmed by the adverse publicity. D

[10] In the second instance he describes his own emotional and personal reactions of anxiety and stress of such severity as to necessitate the use of medically prescribed tranquillisers and sleeping tablets. He further makes the point that the drawn-out proceedings have put great strain on his limited financial resources. None of these allegations has been challenged and there is no reason not to accept them at face value. E

[11] With regard to forensic prejudice, however, the appellant's case is not that clear cut. This is what he alleges:

'I will suffer prejudice if the defence witnesses are unable to recall accurately events of the past. An F inordinately long delay negates the concept of a fair trial, since memory is a flimsy and wayward faculty. The credibility of the State witnesses is of cardinal importance in this matter and, therefore, the longer the delay the greater the prejudice to myself. The most material and crucial evidence would by the very nature of the complaints, be the version of the complainants as opposed to my version in denial. The quality of justice deteriorates the longer it is delayed. G

Furthermore, the long delay also impairs my ability to defend myself as my memory may be affected, bearing in mind that it is difficult to find corroborating evidence of where I was and what I did all those years ago.'

Not only are those allegations rather general and argumentative but, once they had been H specifically denied by the principal deponent on behalf of the respondent, the appellant changed tack in his replying affidavit, stating that the essence of his prejudice was the possibility that the complainants, with the passage of time, 'may be more susceptible to suggestions by the variety of persons who have interviewed them'.

[12] The respondent filed extensive affidavits deposed to by the various persons who were I involved in the prosecution, from the investigating officer to the Deputy Attorney-General. Between them they give a detailed account of the numerous steps that were taken from October 1994, when the complaints were first brought to the attention of the police, through to October 1996, shortly before the application was launched. Without at this stage evaluating the cogency of the explanations J

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given for the time that elapsed, it should be mentioned that the respondent's affidavits seek to A explain each step taken and the time it took to complete.

[13] In the event the application failed in the High Court and the appellant, having obtained the requisite certificate in terms of Rule 18(e) of this Court's Rules from the Judge of first instance, B Ludorf J, was granted leave to appeal to this Court. The basis upon which the learned Judge dealt with one aspect of the case occasioned the respondent to lodge an application to cross-appeal. The application was not pressed, the respondent having decided that his complaint could be ventilated and remedied in the course of the appeal. The point was that the C learned Judge had erred in accepting that it was common cause, and as a result had erred in finding, [2]

'that the two-year delay in bringing (the appellant) to trial is inordinately long so as to...