Summary of Judgment

1. Introduction

The proceedings arose in the course of an ongoing criminal trial in the High Court of South Africa (South Gauteng High Court, Johannesburg). The judgment contains reasons for a ruling made on 15 February 2022, delivered by Spilg J on 7 March 2022, concerning the consequences of Accused No. 1’s non-attendance at court on a scheduled trial date and the management of the trial going forward.

The parties were the State (represented by Advocates EM Coetzee and JM Ferreira of the National Prosecuting Authority) and the two accused, Gary Patrick Porritt (Accused No. 1) and Susan Hilary Bennett (Accused No. 2), with Porritt appearing in person for himself.

Procedurally, Porritt was an awaiting-trial detainee and had been remanded in custody for a trial hearing scheduled for 9 February 2022, but he did not attend. The court responded by issuing directives for his production and calling for explanations from relevant Correctional Services and SAPS officials. The ruling culminated in the court amending parts of an earlier order dated 26 January 2022 dealing with medical reporting deadlines and trial dates.

The general subject-matter was the intersection between (a) the court’s control over its process and the accused’s obligation to attend trial, (b) logistical and detention-related complaints about transportation and court-cell conditions, and (c) medical arrangements affecting attendance—considered against the background of the court’s powers in relation to undue delay in criminal proceedings.

2. Material Facts

It was common cause that Porritt failed to attend court on 9 February 2022 notwithstanding that he had been remanded in custody for that trial date. The information placed before the court was that Correctional Services failed to hand Porritt over to SAPS for transport to court, and that SAPS bears responsibility for transporting awaiting-trial detainees between the detention facility and court.

In response, the court issued an order directing that Porritt be brought to court on 10 February 2022, and requiring the attendance of the acting head of the facility where he was detained (Deputy Director Jonas of Johannesburg Central Correctional Services facility, or a delegate) to explain his non-availability for transport. The court also directed the attendance of Correctional Services officials from the medical section, Lieutenant Colonel Sekonyela and Captain Mia (described as qualified charge nurses), to assist in explaining the circumstances.

Captain Matsibedi, the SAPS officer responsible for transport drivers, explained that Correctional Services officials did not hand Porritt over for transport on 9 February. The reason conveyed to SAPS was that Porritt said he had a medical examination and refused to attend court. During the engagement with Captain Matsibedi, issues were also explored concerning transportation conditions and logistics, including the extent of delays associated with collecting detainees from the Magistrates’ Court, the number of detainees in vehicles and in the High Court holding cells, and cigarette smoking in transport vehicles. The captain indicated, among other things, that the wait at the Magistrates’ Court should not exceed 45 minutes, and that High Court cells could not accommodate more than nine detainees although as many as 15 or 16 might be brought to court.

Porritt raised complaints about transport conditions, including cramped conditions and that vehicles had three compartments, with overcrowding in the non-smoking section and insufficient seating. The evidence before the court indicated that seating was limited and that some occupants might have to stand, with the captain unable to inform the court of standing orders regulating transportation of detainees while standing or the absence of hand grips.

On the medical aspect, Deputy Director Jonas similarly stated that Porritt said he was going to hospital and would not take transport to court. Captain Mia informed the court that Porritt claimed to have an appointment on 9 February with Dr Mazibuko (a neurologist), but Captain Mia said this did not appear in records available to him. Porritt insisted he had an appointment; however, he confirmed he did not have a written confirmed appointment and did not in fact see Dr Mazibuko on 9 February. His explanation was that he believed an appointment was being made for him, based on what a person who had previously transported him had told him.

The material context for the medical dispute was an earlier court order of 26 January 2022, the purpose of which was to establish whether Porritt could continue being conveyed by truck to and from court given a possible neurological condition. The order contemplated the preparation of a report by Dr Tsitsi, which (as described by the court in these reasons) was dependent on Dr Mazibuko examining Porritt within a timeframe linked to the report’s due date.

The court accepted, for the purpose of resolving the issue before it, Porritt’s own explanation that he insisted on being examined by Dr Mazibuko or obtaining a new MRI before mid-February because he believed this was necessary for compliance with the 26 January order. However, it emerged that no appointment had been made with Dr Mazibuko and no MRI appointment had been arranged for 9 February.

The court recorded that the trial had already been ongoing for a substantial period (the court referred to being “already four years into the actual trial hearing”), and that Porritt’s absence on 9 February resulted in the loss of two court days (9 and 10 February) and part of 11 February.

3. Legal Issues

The central issues were concerned with the management of criminal proceedings rather than the merits of the criminal charges. The court was required to determine, on the information presented, whether Porritt’s non-attendance was attributable to him in a manner warranting judicial censure and directions for the future conduct of the case, and how to respond to the delay and disruption caused.

A further legal issue concerned the extent to which the court should initiate a formal enquiry (including sworn evidence) into competing versions from Porritt and officials about detention and transport conditions, and whether such an enquiry would be appropriate at that stage in light of the need to proceed with the trial.

The dispute primarily involved the application of legal duties and procedural control to facts: the accused’s obligation to attend court, the appropriate avenue for asserting rights affected by detention and transport conditions, and the court’s powers in relation to undue delay in terms of section 342A of the Criminal Procedure Act 51 of 1977. It also entailed an evaluative judgment about preventing unnecessary satellite disputes from delaying a long-running trial.

4. Court’s Reasoning

The court approached the matter on the footing that it first needed to understand why Porritt did not attend court and whether the cause was attributable to him, before embarking on any formal enquiry. Although the State referred the court to its powers under section 342A(3) of the Criminal Procedure Act (relating to undue delay), the court considered it more appropriate at that stage to obtain an explanation and establish a way forward, given that it did not initially have a clear understanding of whether Porritt’s non-attendance was attributable to him. The court therefore decided there would be no enquiry and no witnesses would testify under oath.

In dealing with transport and detention-condition complaints, the court recorded factual concerns raised about overcrowding, smoking, delays, and cell capacity, and indicated that relevant transcripts would be provided to the Deputy Judge President. The court also indicated that certain transport issues appeared suitable for attention by oversight structures (it stated that an issue regarding standing in vehicles without hand grips “should be brought to the attention of the Inspecting Judge of the Judicial Inspectorate for Correctional Services”).

However, the court distinguished these broader conditions from the immediate, decisive question: why Porritt refused to attend on a scheduled court date on the basis of a claimed medical appointment. The court considered the issue “crisp,” namely why Porritt insisted on a medical appointment (or MRI) on a predetermined court date, and why he insisted on seeing Dr Mazibuko before the medical report contemplated in the earlier order could be filed.

On Porritt’s own account—which the court stated it was prepared to accept for present purposes—the court found that Porritt took it upon himself to insist on being examined by Dr Mazibuko or at least to undergo a new MRI before the relevant deadline, notwithstanding that the earlier order contemplated that the medical report would be filed by a certain date provided Dr Mazibuko had examined him by then. The court reasoned that Porritt could not reasonably rely on informal information from a driver as confirmation of an appointment and then treat that as sufficient justification to refuse transport to court, particularly where it transpired that no appointment had in fact been arranged.

A significant element of the court’s reasoning was the availability of an obvious procedural remedy if there were genuine timing concerns regarding compliance with the earlier medical-report order. The court stated that if Porritt was concerned that Dr Mazibuko or Dr Tsitsi would not comply with deadlines, the appropriate course was to attend court on 9 February and seek a variation or extension of time from the court. Instead, his refusal to attend was viewed as an improper unilateral decision that disrupted the trial and wasted court time.

The court framed the matter as implicating the integrity of the judicial process and the limits of an accused’s control over proceedings. It emphasised that Porritt was an accused obliged to attend court to deal with charges, and that he had no discretion to act as “judge, jury and sheriff.” The court stated that only the court, on application, could relax the obligation to attend—and not retrospectively “after the event.”

The judgment also dealt with Porritt’s and Bennett’s complaints that the court undermined fair-trial rights by not holding a full-scale hearing into whether officials were truthful and whether Porritt was being victimised. The court considered that such an enquiry would further delay the trial and could require credibility findings, and indicated that if Porritt believed detention conditions affected his rights, he should bring a substantive application to be heard by another judge, particularly in light of ongoing allegations of partiality directed at the presiding judge.

Finally, the court signalled a firmer approach to future disruptions. It warned that it would not hesitate to order Porritt to be brought forthwith to explain any refusal to co-operate with officials responsible for his attendance, and stated that going forward Porritt would have to show good or just cause for further non-appearance (unless conceded by the State). The court also indicated it would consider investigating unreasonable delay causing substantial prejudice as envisaged by section 342A.

5. Outcome and Relief

The court’s ruling resulted in the amendment of certain parts of the order of 26 January 2022, made on 15 February 2022. The date for Dr Tsitsi’s report was changed to 21 February 2022. A date in paragraph 7.2 of the earlier order was amended to exclude 16 February 2022. Paragraph 7.4 was amended to read 14 to 16 March, and additional dates 18 July to 4 August were added.

In addition to amending the timetable, the court issued a clear warning that Porritt was obliged to attend court, that further refusal to co-operate could trigger immediate court intervention requiring him to explain himself, and that the court would consider action under section 342A if unreasonable delays causing substantial prejudice arose.

The reasons do not reflect a discrete costs order, and the matter was treated as an interlocutory ruling within criminal proceedings.

Cases Cited

No cases were cited in the text of the reasons provided.

Legislation Cited

Criminal Procedure Act 51 of 1977, section 342A(3).

Rules of Court Cited

No rules of court were cited in the text of the reasons provided.

Held

The court held, on the basis of the explanations accepted for purposes of the ruling, that Porritt’s failure to attend court on 9 February 2022 was attributable to his unilateral insistence on a supposed medical appointment or related medical processes that were not confirmed and did not, in fact, occur on that date. The court held that the appropriate remedy for concerns about compliance with medical-report deadlines was to attend court and seek an extension, rather than refusing transport and thereby disrupting the trial.

The court further held that a full-scale evidentiary enquiry under oath into contested detention and transport allegations was not appropriate at that stage, particularly where it would delay an already protracted trial, and that any rights-based complaints about detention conditions should be pursued through a substantive application, capable of being heard by another judge.

The court consequently amended the prior medical-report and trial-date order to accommodate revised deadlines and dates, and warned that further non-appearance would require good or just cause and could prompt further steps, including consideration of the court’s powers regarding undue delay under section 342A.

LEGAL PRINCIPLES

The judgment applied the principle that an accused person in custody is obliged to attend court on allocated trial dates, and cannot unilaterally decide not to attend based on informal or unconfirmed arrangements. Any relaxation of the obligation to attend must be authorised by the court, on application, and not retrospectively.

It further applied the principle that concerns about compliance with court-ordered deadlines (including medical-report timelines) should be addressed through appropriate procedural steps in court, such as seeking an extension or variation, rather than by conduct that disrupts the proceedings.

The judgment also reflected the principle that courts have a duty to balance fair-trial rights with the need to prevent undue delay, including by controlling interlocutory disputes that may generate further postponements. In this context, the court recognised the availability of statutory powers concerning undue delay under section 342A of the Criminal Procedure Act, and signalled a willingness to consider those powers where unreasonable delay causes substantial prejudice.

Finally, the judgment recognised that disputes about detention and transport conditions, insofar as they implicate rights and require factual resolution, may need to be pursued through a substantive application (particularly where allegations of bias against the presiding judge are raised), rather than being determined informally within trial management discussions.