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[2016] ZASCA 137
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Van Heerden v Regional Court Magistrate, Paarl and Others (883/2015) [2016] ZASCA 137 (29 September 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 883/2015
In
the matter between:
ANDRIES
VAN HEERDEN
APPELLANT
And
THE
REGIONAL COURT MAGISTRATE, PAARL
FIRST RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS, WESTERN
CAPE SECOND
RESPONDENT
THE
REGIONAL COURT PROSECUTOR, PAARL
THIRD RESPONDENT
Neutral
citation:
Van
Heerden v Regional Court Magistrate, Paarl
(883/2015)
[2016] ZASCA
137
(29 September 2016)
Coram:
Lewis,
Tshiqi, Zondi and Van Der Merwe JJA and Makgoka AJA
Heard:
6
September 2016
Delivered:
29
September 2016
Summary:
Criminal Law and
Procedure – Review – whether there was an informal plea
agreement between the appellant and the State
– Disputes of
fact arising from the respective versions not capable of resolution
on the papers – State’s version
not far-fetched.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Salie-Hlophe and Goliath
JJ sitting as court of first instance):
The
appeal is dismissed with no order as to costs.
JUDGMENT
Tshiqi
JA (Lewis, Zondi and Van der Merwe JJA and Makgoka AJA concurring):
[1]
The
appellant, Mr Andries van Heerden, was charged in the Paarl Regional
Court, under the Criminal Law Amendment (Sexual Offences
and Related
Matters) Act 32 of 2007, read with the provisions of s 51(1) of
Criminal Law Amendment (Minimum Sentences) Act 105
of 1997 with the
following: (a) one count of indecent assault; (b) five counts of
sexual assault; and (c) one count of rape. In
relation to the counts
of indecent assault and sexual assault, it was alleged that he, on
several occasions rubbed, massaged, kissed
and pressed the
complainants’ penises towards his body without their consent.
Concerning the count of rape, it was alleged
that the appellant
performed an act of sexual penetration on a 16 year old male, by
sucking his penis. The provisions of ss 51
and 52 of Schedule 2 of
the Minimum Sentences Act were applicable to the rape count in view
of the fact that the complainant was
16 years old at the time.
[2]
The
appellant, who at all material times had legal representation,
pleaded guilty to all the charges and his plea explanation in
terms
of s 112(2) of the Criminal Procedure Act 51 of 1977 (the Act) was
accepted by the State and he was convicted by the magistrate.
The
five counts of sexual assault were taken together for purposes of
sentence and he was sentenced to a wholly suspended sentence
of five
years’ imprisonment. For the indecent assault conviction, he
was sentenced to three years’ imprisonment wholly
suspended,
and for the rape conviction, he was sentenced to five years’
direct imprisonment. It was further ordered that
his personal
particulars be added onto the national register for sexual offenders
(in terms of s 114 read with s 120(4) of the
Children’s Act 38
of 2005) as well as the national child protection register. He was
further declared unfit to possess a
firearm (in terms of
s 103(1)
of
the
Firearms Control Act 60 of 2000
).
[3]
With
the leave of the trial court, the appellant appealed to the Western
Cape Division, Cape Town against the sentence imposed by
the regional
court for the rape conviction and he concurrently lodged an
application for the review of the criminal proceedings
in terms of
Uniform
Rule 53.
The plea of guilty tendered by the appellant was at
the centre of the review application. The appellant contended that he
pleaded
guilty because his legal team had reached an agreement with
the prosecutor, Ms Van Wyk, to the effect that if he pleaded guilty,
Ms Van Wyk would not seek a custodial sentence and would actively
support a non-custodial sentence; and that in breach of the terms
of
this agreement, Ms Van Wyk argued for a custodial sentence, thereby
compromising his right to a fair trial.
[4]
The
Western Cape Division, Cape Town (to which I will refer, for
convenience as the High Court), (Salie-Hlophe and Goliath
JJ),
dismissed the application for review but upheld the appeal against
sentence and substituted it with a sentence of five years’
imprisonment in terms of
s 276(1)(
i
)
of the Act. This appeal is against the dismissal of the application
for review and is with the special leave of this court. It
is opposed
by both the prosecutor, Ms Van Wyk, and the Director of Public
Prosecutions, Western Cape (DPP). They will, for the
sake of
convenience and except where the context requires otherwise, both be
referred to as the State.
[5]
It
is not in dispute that before the s 112(2) statement was made and
tendered to court, the appellant’s legal team approached
Ms Van
Wyk with a view to reaching a plea agreement. It is also not in
dispute that on 23 July 2013, a date on which the trial
had been set
down for plea and trial, negotiations with a view to reaching such an
agreement took place between the parties. Their
respective versions
differ, however, on the critical issue: whether, during these
negotiations, Ms Van Wyk did in fact make any
offer in exchange for
his plea of guilty, or whether she had fostered a reasonable belief
on the part of the appellant, that his
plea would be reciprocated by
Ms Van Wyk, and by virtue of which belief, the appellant tendered the
plea of guilty to all the charges.
[6]
The
appellant’s version on what transpired during the negotiations
is set out in an affidavit attested to by Ms Steenkamp,
his attorney
at the time of the trial. Ms Steenkamp’s version is that the
discussions took place at Ms Van Wyk’s office
in the presence
of her then candidate attorney, Mr Gonzales and Mr Van der Berg, the
appellant’s counsel. Mr Van der Berg
proposed that the
appellant would plead guilty to all the charges, in exchange for an
agreed non-custodial sentence, and more specifically
a sentence in
terms of s 276(1)
(h)
of
the Act, and requested that a plea agreement between the State and
the defence be reached on such terms. Ms Van Wyk stated that
she
would be amenable to such an agreement, but raised two issues: first,
that any agreement would be subject to the approval of
the parents of
the minor complainants (the parents); and second, that she doubted
that the appellant’s wish for a speedy
resolution would be met
if the plea proposal were to be submitted to the DPP, because of
delays and counter-proposals. Instead,
so Ms Steenkamp alleges, Ms
Van Wyk proposed a plea agreement on an informal basis, stating that
such was not unusual in her court,
and that the magistrate had in the
past accepted what the respective parties proposed as an appropriate
sentence.
[7]
The
so-called ‘informal plea agreement’ proposed by Ms Van
Wyk would, according to Ms Steenkamp, merely require that
she refrain
from seeking a custodial sentence, but support a non-custodial
sentence. She said that because the appellant’s
legal team was
not comfortable with the fact that such an informal agreement would
not be binding on the magistrate, they insisted
that Ms Van Wyk
should give a more tangible assurance, on record, of the State’s
acquiescence to the proposed sentence, to
which she agreed.
[8]
Following
these negotiations, according to Ms Steenkamp, a plea agreement was
reached between the appellant’s team and Ms
Van Wyk on the
following terms:
(a)
The appellant would plead guilty to all the charges and thus
relinquish his constitutional
rights to go to trial;
(b)
In exchange for the appellant’s plea of guilty, but subject to
the approval of the
parents, the State undertook, when going on
record;
(i)
Not to seek a custodial sentence;
(ii)
Not to oppose the appellant’s request for a sentence in terms
of s 276(1)(
h
) of the Act; and
(iii)
To support the aforesaid non-custodial sentence, including that she
would place on record that the sentence met with the approval
of the
parents.
[9]
After
the agreement was reached, Ms Van Wyk left her office to take up the
matter with the parents, who were present within the
court’s
precinct, while the appellant’s legal team remained behind.
Sometime thereafter she returned and announced
that the parents were
agreeable to the terms of the plea agreement. Thereafter the
prosecutor and the defence team went to the
magistrate in chambers
and informed her that an informal plea agreement had been reached
between the appellant and the State.
[10]
In
order to bolster the appellant’s version that there was an
agreement and that even the magistrate was aware of it, Ms Steenkamp
makes reference to an entry made by the magistrate on the record of
the trial proceedings on 23 June 2013 which reads: ‘Pleit
ooreenkoms tussen Staat en verd’
[1]
–
which she says was written by the magistrate after they had spoken to
her. This entry, according to Ms Steenkamp would not
have been
entered on the record by the magistrate if she was not told by the
State and the defence that an agreement had been reached.
She says
that although the matter was set down for plea and trial on the day
of the alleged agreement, it was postponed in order
for the plea to
be prepared and finally tendered in court.
[11]
The
State’s version on what occurred during the negotiations
differs materially from the appellant’s version and is
contained in an affidavit attested to by Ms Van Wyk. She denies that
the discussions pertained to an informal agreement, and that
the
alleged agreement was concluded. She further disputes the terms
alleged. She states that she was approached to consider a formal
agreement in terms of s 105A of the Act for a non-custodial sentence
in terms of s 276(1)
(h)
of the Act. She dismissed the proposal immediately due to its
inappropriateness and also pointed out that where an accused is
charged with rape, she was not authorised to conclude an agreement in
terms of s 105A, without the authorisation of the DPP.
[12]
She
admits that she went to speak to the parents of the complainants but
states that it was at the request of the appellant’s
counsel
who requested her to approach them and hear their views on the
proposed non-custodial sentence. The parents, so states
Ms Van Wyk,
indicated that they were not really concerned about the sentence the
court imposed as long as the appellant acknowledged
that he performed
the indecent acts on their children. After she relayed the parents’
stance to appellant’s counsel,
the defence counsel again tried
to persuade her to enter into a formal plea and sentence agreement to
which she again stated that
she was not authorised to do so and that
the appellant should plead. Counsel then asked what guarantee was
there that the magistrate
would impose a non-custodial sentence. In
response she informed him that they could not decide the issue of
sentence on behalf
of the magistrate and she suggested that they
should approach her in chambers and inform her of counsel’s
proposal as well
as the attitude of the parents.
[13]
They,
according to Ms Van Wyk, then approached the magistrate in chambers
and appellant’s counsel informed the magistrate
of the kind of
sentence they were seeking and the fact that she had spoken to the
parents who had also informed her of their attitude
to the proposal.
Ms Van Wyk then confirmed during the discussions with the magistrate
that she had had a discussion with the parents,
but the magistrate in
response informed them that she did not want to be involved in their
discussions, but had noted what counsel
has told her. Ms Van Wyk
denies that she supported a non-custodial sentence during their
discussions or that she agreed to not
ask for a non-custodial
sentence or that she had been asked by the defence to support a
non-custodial sentence in open court. She
also denies that they
informed the magistrate that an agreement had been reached, and
states that the magistrate’s annotation
on the record (para 10
above), was wrong.
[14]
The
parties’ respective versions on what transpired on the day the
appellant tendered his plea of guilty also differ. Ms Steenkamp’s
version, on the one hand, is that the appellant’s counsel had
prepared a formal plea explanation which she showed to Ms Van
Wyk.
She informed counsel that the magistrate usually required detailed
factual admissions to accompany the plea and the plea explanation
was
then redrafted on counsel’s laptop, to Ms Van Wyk’s
satisfaction, printed out and duly signed. The appellant then
pleaded
guilty to all the charges and his plea explanation was formally
handed into court and he was duly convicted of all the
charges, after
which, the matter was postponed for sentencing.
[15]
On
the date of the sentencing, counsel addressed the court on sentence
and requested a sentence in terms of s 276(1)
(h)
of
the Act. However, when Ms Van Wyk addressed the court, she did not
support the sentence requested by appellant’s counsel
and did
not inform the court that she had discussed the issue of an
appropriate sentence with the parents. She instead made submissions
in aggravation of sentence. Ms Steenkamp states that directly after
the adjournment, counsel confronted Ms Van Wyk about her alleged
breach of her undertaking, to which she stated that there was nothing
to be concerned about as she had merely addressed the magistrate
in
the manner she did to appease the parents, who were present in court.
[16]
Ms
Van Wyk, on the other hand, admits that a plea was tendered by the
appellant but denies that it was consequent to a plea agreement.
She
also denies that counsel for the appellant confronted her about the
alleged breach after the court had adjourned on that day.
[17]
Plea
bargaining is well recognised in South African criminal procedure and
its efficacy in appropriate cases has long been accepted.
(See
North
Western Dense Concrete CC & another v Director of Public
Prosecutions (Western Cape)
1999
(2) SACR 669
(C);
Van
Eeden v The Director of Public Prosecutions, Cape of Good Hope
2005 (2) SACR 22
(C) para 19;
and
S
v DJ
[2015]
ZASCA 151
;
2016 (1) SACR 377
(SCA) para 17.)
It
is a complementary procedure that is not meant to supplant the
standard procedure for pleas of guilty under s 112 of the Act,
and
the established practice of accepting pleas of guilty on the basis of
bona fide consensus reached, remains applicable. (See
Steyl
v National Director of Public Prosecutions & another
(unreported, GP case no 27307/2013 (9 June 2015) paras 50-51.) The
procedure is a fundamental departure from our adversarial system
and
it helps ease the considerable pressure on the courts by making it
possible for cases to be negotiated and settled by the parties
‘outside the court’ (see A Kruger
Hiemstra’s
Criminal Procedure
(Service 6, (2013) at 15-6). Nonetheless, there are two independent
systems of negotiation within the South African criminal justice
system (
Steyl
v NDPP
(above) para 51), namely: (a) under statute (
S
v Esterhuizen & others
2005
(1) SACR 490
(T);
S
v Armugga & others
2005 (2) SACR 259
(N) at 265b) and (b) informally (
S
v EA
2014
(1) SACR 183
(NCK). Great importance is placed on the independence of
prosecutors in either system (see M E Bennun ‘The Mushwana
Report
and prosecuting policy’ 3
SACJ
(2005) 279, and the authorities and sources referred to therein).
Statutorily negotiated agreements are regulated under s 105A
[2]
of the Act. Their advantage is that once a plea has been accepted on
a certain factual basis, the prosecutor is bound by the facts
upon
which the agreement has been reached and so is the court also bound
to convict and sentence the accused on that factual basis.
(See
North
Western Dense Concrete CC & another v Director of Public
Prosecutions
(above);
and Megan B Rogers ‘The development and operation of negotiated
justice in the South African criminal justice system’
(2010) 2
SACJ
at 239).) Conversely, the disadvantage of entering into an informal
plea agreement is that the prosecutor and accused cannot reach
a
binding agreement with regard to the facts and sentence to be imposed
without the co-operation of the presiding officer. At most,
the
parties can reach an informal agreement in terms of which the
prosecutor undertakes to
recommend
that a reduced sentence be imposed or undertakes not to motivate for
a harsher sentence.
[18]
The
appellant alleges that the latter is the kind of agreement that was
reached in this matter. The State on the other hand denies
that the
negotiations pertained to an informal agreement, and it also denies
that pursuant to the negotiations, an agreement was
ever reached. It
further disputes the alleged terms of the agreement. There are thus
factual disputes arising from the respective
versions of the
appellant on the one hand, and the State on the other. Counsel for
the appellant confirmed, in response to a question
posed by this
court, that the appellant did not, in the high court request that the
matter should be referred for oral evidence.
He submitted that this
was not necessary as the disputes could be resolved on the papers as
they stand. He sought to persuade us
to accept the appellant’s
version on the basis that it was more probable. When confronted with
the trite principles applicable
to the resolution of disputes of fact
in motion proceedings, he was constrained to concede that motion
proceedings are not designed
to determine probabilities. In
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (1) SACR 361
(SCA), this court once more
emphasised the approach thus (para 26):
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant’s affidavits . . . which have been admitted by
the respondent . . . together with the facts alleged
by the latter,
justify such order. It may be different if the respondent’s
version consists of bald or un-creditworthy denials,
raises
fictitious disputes of fact, is palpably implausible, far-fetched or
so clearly untenable that the court is justified in
rejecting them
merely on the papers.’ (Footnote omitted.)
(See
also
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-635
;
Fakie NO v CCII Systems (Pty) Ltd
[2006]
SCA 54
[2006] ZASCA 52
; ;
2006 (4) SA 326
(SCA) paras 55 and 56;
Thint
(Pty) Ltd v National Director of Public Prosecutions & others;
Zuma & another v National Director of Public Prosecutions
&
others
[2008]
ZACC 13
;
2009 (1) SA 1
;
2008 (2) SACR 421
(CC) para 8-10.)
[19]
The
version of the State does not amount to a bare denial and is not
palpably implausible, far-fetched or clearly untenable. Ms
Van Wyk
filed a comprehensive affidavit which outlines her version of what
happened. She states that she was approached to consider
a formal
agreement in terms of s 105A of the Act in terms of which the parties
would agree to a non-custodial sentence in terms
of s 276(1)(
h
)
of the Act. This proposal, according to her, she immediately
dismissed out of hand due to the inappropriateness of the proposed
sentence. She states that she pointed out that she was, in any event
not authorised to conclude an agreement in terms of s 105A
without
the authorisation of the DPP.
[20]
On
the other hand, in support of his version that the agreement was
indeed reached, the appellant sought to place reliance on the
fact
that Ms Van Wyk consulted the parents of the complainants. Ms Van
Wyk’s explanation for this (para 12 above) cannot
simply be
dismissed as palpably implausible, far-fetched or clearly untenable.
As counsel for the State submitted, it is not unusual
in criminal
proceedings for a prosecutor to consult a complainant to appraise him
or her of what is happening in a criminal matter.
This, to my mind
was a sensible precaution in this matter, particularly since the
complainants had been minors when the offences
where committed. This,
however, as counsel for the State argued, does not necessarily
support, as the only reasonable inference,
a conclusion that any
agreement had been reached.
[21]
The
contention by the appellant that his version finds corroboration from
the entry made by the magistrate on the record of the
proceedings is
not without its problems. Counsel for the appellant submitted that Ms
Van Wyk in her affidavit, gave no explanation
for this entry but
simply made a bald denial and stated that it was ‘wrong’.
Counsel for the State submitted in that
regard that the response was
not a bald denial in the sense that Ms Van Wyk specifically states
that the entry is wrong. I agree
with the State that it is not
possible to draw an adverse inference from Ms Van Wyk’s
response in this regard because she
was not the author of the entry
and there was no evidence that she was aware that the magistrate had
made this entry until she
was confronted with it through the
appellant’s affidavit during the review proceedings. The entry
by the magistrate, as counsel
for the State submitted, does not
necessarily mean that the parties had concluded an agreement or that
the parties had reached
consensus on the terms thereof, but is open
to other interpretations.
[22]
For
all those reasons, the appellant has not made out a case on the
papers that there was an agreement between the State and the
defence
in this matter and what its terms were. Further support for this view
is found in the manner in which the appellant’s
counsel
conducted the matter when he addressed the court in mitigation of
sentence. He simply addressed the court on the personal
circumstances
of the appellant and motivated for a non-custodial sentence in terms
of s 276(1)(
h
)
of the Act, but did not inform the magistrate that there was an
agreement between the State and the defence. Thereafter, following
the State’s address in aggravation of sentence, but not in
support of a non-custodial sentence as alleged, counsel for the
appellant did not object nor did he in reply place on record, before
the magistrate who had allegedly been informed of the terms
of the
agreement, that the State was reneging on the agreement. There is no
satisfactory explanation by appellant’s counsel
for this
material omission.
[23]
Another
avenue that was available to the appellant’s counsel was that
he could have requested the court to invoke the provisions
of s 113
by informing the court that in light of the change of stance by the
State, the appellant wished to change his plea of
guilty to that of
not guilty. A plea of not guilty can be recorded at any stage during
the trial before sentence has been imposed.
(See
S
v Du Plessis
1978
(2) SA 496
(C) at 548
;
Etienne
du Toit et al
Du
Toit: Commentary on the
Criminal Procedure Act
(Revision
Service 54, 2015) at 17-36.) The appellant’s explanation on why
his counsel did not invoke the provisions of s 113 of the
Act is not
that this option was not available to him but that he could not bear,
physically, emotionally and financially, the tribulations
of a
protracted trial. This to my mind suggests that the appellant and his
legal team weighed all of these options available to
him and took a
chance and pleaded guilty with the hope that he could get a
non-custodial sentence. He cannot now allege unfairness
of the trial
simply on the basis of his own informed choice on how to conduct his
trial.
[24]
For
all these reasons, the appellant did not make out a case on the
papers that there was an agreement between the State and the
defence.
Regarding the argument based on quasi-mutual assent, the appellant
has failed to show on the papers that the conduct of
Ms Van Wyk led
him reasonably to believe that there was an agreement. The appeal
must accordingly fail.
[25]
Although
the Western Cape Division’s order dismissing the application
for review still stands, such an order was, with respect
to that
court, based on a misconstruction of the issues that it had to
determine. When it sought to identify the basis for the
review, it
stated that (para 2):
‘
The
application for review is solely based on an averment that as a
result of negotiations between the prosecutor and the defence
an
agreement was reached to have imposed a non-custodial sentence upon
pleading guilty.’
That
was not the issue. The appellant did not state that such a sentence
was guaranteed by the prosecutor. He specifically disavowed
any
suggestion that the alleged agreement was a formal agreement as
envisaged in s 105A. The issue was simply whether Ms Van Wyk
agreed
not to seek a custodial sentence, which alleged agreement would have
sufficiently enhanced the appellant’s prospects
of receiving a
non-custodial sentence. The court below also failed to have regard to
the fact that the review was based on an alleged
infringement of the
right to a fair trial, and as a result failed to deal with that
issue. Another error made by the court below
was that it expressed a
view that ‘the law does not recognise the concept of a
conditional plea of guilt.’ Such a proposition
not only flies
in the face of s 105A, but also shows a lack of appreciation that
such agreements envisage that an accused would
plead guilty in lieu
of some form of compromise made by the State. (See
North
Western Dense Concrete CC & another v Director of Public
Prosecutions
(above).)
[26]
I
accordingly make the following order:
The
appeal is dismissed with no order as to costs.
___________________
Z
L L Tshiqi
Judge
of Appeal
APPEARANCES
For
the Appellant:
J
van der Berg
Instructed by:
Terblanche Slabber
Pieters Inc., Malbesbury
Hill, McHardy &
Herbst Inc., Bloemfontein
For
the Second Respondent:
C
van der Vijver
Instructed by:
Director of Public
Prosecutions, Cape Town
Director of Public
Prosecutions, Bloemfontein
[1]
Which may be
directly translated: ‘Plea agreement between State and def’.
[2]
Section 105A of
the Act, which came into effect on 14 December 2001, provides in
great detail how plea and sentence negotiations
should take place
and agreements reached. Subsection (1) provides:
‘
105A
Plea and sentence agreements
(1)
(a)
A prosecutor authorised thereto in writing by the
National Director of Public Prosecutions and an accused who is
legally represented
may, before the accused pleads to the charge
brought against him or her, negotiate and enter into an agreement in
respect of—
(i)
a plea of guilty by the accused to the offence charged or to an
offence of which he or she may be convicted on the charge;
and
(ii)
if the accused is convicted of the offence to which he or she has
agreed to plead guilty—
(aa)
a
just sentence to be imposed by the court; or
(bb)
the
postponement of the passing of sentence in terms of section 297
(1)
(a)
;
or
(cc)
a
just sentence to be imposed by the court, of which the operation of
the whole or any part thereof is to be suspended in terms
of section
297 (1)
(b)
;
and
(dd)
if
applicable, an award for compensation as contemplated in section
300.
(b)
The prosecutor may enter into an agreement contemplated in paragraph
(a)
—
after
consultation with the person charged with the investigation of the
case;
(ii)
with due regard to, at least, the—
(aa)
nature
of and circumstances relating to the offence;
(bb)
personal
circumstances of the accused;
(cc)
previous
convictions of the accused, if any; and
(dd)
interests
of the community, and
(iii)
after affording the complainant or his or her representative, where
it is reasonable to do so and taking into account the
nature of and
circumstances relating to the offence and the interests of the
complainant, the opportunity to make representations
to the
prosecutor regarding—
(aa)
the
contents of the agreement; and
(bb)
the
inclusion in the agreement of a condition relating to compensation
or the rendering to the complainant of some specific benefit
or
service in lieu of compensation for damage or pecuniary loss.
(c)
The
requirements of paragraph
(b)
(i)
may be dispensed with if the prosecutor is satisfied that
consultation with the person charged with the investigation of the
case will delay the proceedings to such an extent that it could—
(i)
cause substantial prejudice to the prosecution, the accused, the
complainant or his or her representative; and
(ii)
affect the administration of justice adversely.’