Van Heerden and Another v National Director of Public Prosecutions and Others (145/2017) [2017] ZASCA 105; [2017] 4 All SA 322 (SCA); 2017 (2) SACR 696 (SCA) (11 September 2017)

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Van Heerden and Another v National Director of Public Prosecutions and Others (145/2017) [2017] ZASCA 105; [2017] 4 All SA 322 (SCA); 2017 (2) SACR 696 (SCA) (11 September 2017)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 145/2017
In
the matter between:
PIENAAR
VAN
HEERDEN

FIRST APPELLANT
ANTHEA
LYNETTE VAN
HEERDEN                                               SECOND

APPELLANT
and
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS

FIRST RESPONDENT
ANDRE
CHARL VAN HEERDEN

SECOND RESPONDENT
BRITISH
AMERICAN TOBACCO PLC

THIRD RESPONDENT
BRITISH
AMERICAN TOBACCO RETIREMENT FUND
FOURTH RESPONDENT
Neutral
Citation:
Van
Heerden & another v NDPP & others
(145/2017)
[2017] ZASCA 105
(11 September 2017)
Coram:
Navsa
ADP, Bosielo JA, Lamont, Molemela and Fourie AJJA
Heard:
15
August 2017
Delivered:
11
September 2017
Summary:
Application
for permanent stay of prosecution – extraordinary remedy –
complaint that the right to have trial begin
and conclude without
reasonable delay infringed – many years of postponements and
delays – material and substantial
part of delays due to the
State – dishonest conduct by the State – appropriate
remedy for infringement of Constitutional
right.
ORDER
On
appeal from
:
Western Cape Division of the High Court, Cape Town (Weinkove AJ
sitting as court of first instance):
1
The appeal is upheld and the first respondent is ordered to pay the
appellants’ costs including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following:
‘
1
The prosecution against the first and second applicants instituted
under the office of the Western Cape Director of Public Prosecutions

with reference no. 9/2/17(1)-139/12 and encompassing the dockets
under or together with the police reference Milnerton CAS 820/02/2010

is permanently stayed.
2
All the restraint orders (under case no. 16910/2011) related to the
applicants’ assets are set aside.
3
The second respondent is ordered to release to the applicants all the
assets of the applicants in his control together with any
interest
accrued thereto.
4
The first respondent is ordered to pay the applicants’ costs
including the costs of two counsel.’
JUDGMENT
Navsa
ADP (Bosielo JA, Lamont, Molemela and Fourie AJJA concurring)
[1]
This appeal is directed against a judgment of the Western Cape
Division of the High Court, dismissing with costs, an application
by
the appellants, Mr Pienaar Van Heerden and his wife Ms Anthea Lynette
Van Heerden, for orders, inter alia, in the following
terms:
(a)
setting aside earlier restraint orders granted against them by that
court on 18 August 2011 and 5 October 2011,under The Prevention
of
Organised Crime Act 121 of 1998 (POCA );
(b)
directing the second respondent, Mr Andre Charl Van Heerden,
appointed as a curator bonis in terms of the provisions of POCA,
to
release all their assets under his control together with any interest
accrued thereto;
(c)
permanently staying the prosecution against them, instituted under
direction of the Office of the Western Cape Director of Public

Prosecutions under case no  9/2/17(1)-139/12 and encompassing
the dockets under or together with police reference Milnerton
CAS
820/02/2010.
[2]
The primary question in this appeal, which is before us with the
leave of the court below, is whether the appellants are entitled
to
what they themselves acknowledge is the ‘extraordinary relief
of an order permanently staying a criminal prosecution’,

instituted against them by the first respondent, the National
Director of Public Prosecutions (the NDPP). The associated question

relates to their assets as foreshadowed in the order set out in (a)
and (b) above.
[3]
The detailed background against which the present appeal is to be
adjudicated is set out hereafter. The timeline and the reasons
for
delays and postponements are of particular importance.
[4]
Until their dismissal in March 2010, the period relevant to the
present appeal, the appellants were both employed by the third

respondent, British American Tobacco South Africa (Pty) Ltd (BATSA),
a company that manufactures and sells cigarettes. They were
both
initially employed during the 1980s by BATSA at its Paarl factory,
with Mr Van Heerden working in the quality control section
and Ms Van
Heerden as a secretary. They were subsequently transferred to BATSA’s
Heidelberg factory during 2007/8, which
is where they were employed
at the time of the events that are central to their prosecution.
[5]
In 2008 Mr Van Heerden was appointed as head of quality control at
the company’s Heidelberg factory. His duties included,
inter
alia, dealing with and resolving market complaints, despatching
cigarettes to be tested at the BATSA laboratory in Stellenbosch,
the
distribution and control of sampling runs of new cigarettes,
including the forwarding of new branded products to the said
laboratory. Ms Van Heerden worked in the Human Resources department.
[6]
After the appellants returned from holiday in January 2010, Mr Van
Heerden was accused by BATSA of the theft of cigarettes.
He was
summarily suspended and subjected to disciplinary proceedings by
BATSA after which his services were terminated. During
March 2010 the
second appellant’s services were also terminated.
[7]
On 18 August 2011 the NDPP, in anticipation of criminal charges to be
preferred against the appellants, applied for and obtained
a
provisional restraint order in terms of the provisions of s 25(1)(b)
of POCA.
[1]
The provisional
restraint order was made final on 5 October 2011. The restraint order
prevented the appellants from dealing in
any manner with virtually
all their property. The property under attachment consisted of cash
in an amount of R2 106 922.86
as at 11 May 2015.
[8]
The appellants appeared in the Magistrates’ Court, Cape Town on
29 August 2011, where they were charged with the theft
of hundreds of
boxes of cigarettes which the State alleged were valued at R5
million. In its answering affidavit in the court below,
the State had
reduced that value to R3 470 000. On the same day the
appellants applied for and obtained bail. Prior to
obtaining bail,
they had been incarcerated for three days.
[9]
In September 2011 five more accused were charged together with the
appellants. On 25 November 2011, the magistrates’ court
was
informed that the investigation was incomplete and that the State
required a postponement for three months. It appears from
the brief
notes made by the magistrate that the State intended to obtain an
instruction from the NDPP.
[2]
This was probably in relation to charges to be preferred in terms of
the provisions of POCA, which would include the racketeering
[3]
and money laundering
[4]
charges
which the appellants were ultimately presented with. The matter was
postponed until 2 March 2012 with a note indicating
that the
postponement was ‘final’.
[10]
On 2 March 2012, six months after the appellants’ first
appearance in court, the court noted that the matter had been

postponed to enable a decision by the NDPP and to finalise
investigations. The investigations had not been finalised and there

was no decision by the NDPP in relation to the POCA charges, which
the State intended to include in the charge sheet. The magistrate’s

notes recorded the following:
‘
it
seems that the State did not do much more since the last appearance.
. .’
The
court recorded that it was an ‘unacceptable situation’.
The magistrate’s handwritten notes state the following:
‘
It
is unheard of that the court must make an order . . . to compel
[defence] to assist state in their investigation. Matter on roll

finally for [further investigation] [and] NDPP decision. State is not
finished with their investigation [and] no decision is available.
Court
is of opinion that State had enough time to finalize their
investigation [and] [request] for remand is denied.’
The
State required a further postponement. Shortly thereafter the
prosecutor informed the court that the State was not in a position
to
complete the charge sheet and after enquiry he was instructed by his
seniors to proceed only with the theft charge. He would
not require
the approval of the NDPP to proceed on the POCA charges and on that
basis requested the matter to be transferred to
the Khayelitsha
Regional Court (Priority Court)
[5]
.
Counsel for the accused noted no objection and all appeared to have
been of the view that a charge sheet on the more restricted
basis
would be provided. The matter was transferred with the court stating
the following:
‘
State
is instructed to provide defence with a charge sheet on or before the
end of the court day (16h00) on 19/03/2012.’
[11]
The appellants appeared for the first time on 23 March 2012 with
their co-accused in the Khayelitsha Regional Court, to which
the
matter had been transferred, before magistrate Venter, ostensibly to
enable the State to proceed with the prosecution on the
theft charge
as a matter of priority. On that day and immediately, the court was
informed that the State intended to include racketeering
charges in
terms of s 2 of POCA. To that end the matter was postponed to 4 May
2012. The events and the State’s conduct referred
to in this
and the preceding paragraph are significant and are aspects to which
I shall revert in due course.
[12]
On 4 May 2012 magistrate Venter recorded that the matter was being
postponed to 6 July 2012 for racketeering charges to be
added. On
that day the magistrate was informed that authorisation had been
obtained from the NDPP for the inclusion of racketeering
charges. The
matter was then postponed to 27 September 2012. One of the
appellants’ co-accused (accused 4) had engaged a
new legal
representative who sought time to acquaint himself with the matter
which required a postponement to 19 November 2012.
[13]
Accused 6’s legal representative informed the court on 19
November 2012 that he had made representations pertaining to
a
possible Plea and Sentence agreement and was awaiting the outcome.
The matter was postponed by magistrate Venter to 8 and 9 April
2013.
On the first of the scheduled trial dates, the prosecutor was
indisposed and the trial could not proceed. The case was then

postponed to 19 and 20 August 2013 for trial. On 19 August 2013 the
matter did not proceed. No reason is indicated in the magistrate’s

notes. A further postponement ensued until 11 September 2013. On that
day the court was informed that accused 3 had switched legal

practitioners. The matter was once again postponed for trial which
was scheduled to run from 10 to 14 February 2014.
[14]
In the interim, on 6 February 2014, accused 6 concluded a Plea and
Sentence agreement with the State, in terms of s 105A of
the Criminal
Procedure Act 51 of 1977 (CPA)
[6]
in relation to a charge of a contravention of s 2(1)
(e)
of
POCA, 21 counts in relation to s 4 of POCA and one count of theft and
undertook to testify against his co-accused, including
the
appellants.
[15]
During February 2014, shortly before the trial was due to commence,
the appellants served a lengthy and comprehensive document
requesting
further particulars and documentary evidence and gave written notice
of an intention to object to the charge sheet,
relying on a judgment
delivered in the KwaZulu Natal Division of the High Court, Durban,
namely,
Savoi
& others v National Director of Public Prosecutions & another
(8006/12)
[2013] ZAKZPHC 19;
[2013] 3 All SA 548
(KZP). In the notice the
appellant indicated that the judgment was on appeal to the
Constitutional Court and that judgment by the
Constitutional Court
was pending.
[16]
It was thus inevitable that the trial would not commence as
scheduled. On 10 February 2014 the matter was postponed to 14 April

2014, awaiting the judgment in the Constitutional Court. On 20 March
2014 the Constitutional Court delivered judgment in
Savoi
& others v National Director of Public Prosecutions & another
2014
(1) SACR 545
(CC), confirming the constitutionality of the provisions
of s 2(1) of POCA.
[17]
The State responded to the appellants’ request for further
particulars on 11 April 2014. On 14 April 2014 the appellants

requested a postponement to consider the State’s reply to their
request for particulars and documentation. The matter was
postponed
to 4 November 2014 with trial dates set during that month. On 17
October 2014, three weeks before the scheduled trial
date, the
appellants served a notice in terms of s 85 of the CPA
[7]
objecting to the charges.
[18]
On the day on which the trial was scheduled to start, the appellants
submitted written submissions concerning the State’s
response
to the request for further particulars, which it was alleged was
wholly unsatisfactory and formed the basis for the contention
that
the charges against the appellants should be quashed. I pause to
record that in the response to the appellant’s request
for
further particulars dated 11 April 2014, the following appears:
‘
The
State has requested BATSA to indicate if they are able to supply the
defence with the documents requested. BATSA has provided
the
documentation as attached.’
It
is common cause that no documentation was in fact attached to the
response. Nothing appears to have come of the State’s
request
to BATSA to provide the required documentation. The State required a
postponement in order to reply to the appellants’
written
submissions. The matter was postponed to 17 November 2014. On that
day the parties presented their arguments, with the
State submitting
that the objections were not valid and, in the alternative, that
should the court hold to the contrary, the State
should be afforded
an opportunity in terms of s 84(2)(a) and/or s 87(1)(a) of the CPA to
deal with identified defects in the charge
sheet.
[19]
Without adjudicating on the objection to the charge sheet and dealing
with the respective submissions of the parties, magistrate
Venter
refused a ‘postponement’ and struck the matter from the
roll without indicating why. At this stage, as is evident
from what
is set out above, magistrate Venter’s involvement in the matter
had stretched beyond a period of two-and-a-half
years, to which
should be added a further period of seven months before the matter
was transferred to the Khayelitsha Regional
Court.
[20]
The appellants’ attorney addressed a letter to the State on 13
March 2015, seeking the release of their assets from the
restraint
order and wrongly declaring that the charges against them had been
quashed. The State’s response was that the charges
had not been
quashed. Paragraphs 4-6 of the State’s letter dated 18 March
2015 bear repeating:
‘
4.
The prosecution team of the Organised Crime Unit regrets the delay in
re-instituting the charges against your client and assures
you that
no malice is intended on their part. The prosecution team has advised
that the charges are indeed going to be re-instituted.
At present the
charge sheet is being re-drafted, specifically as to who and what
formed the enterprise in this particular matter.
You will recall it
was the issue of the formulation of who the enterprise was, namely
BATSA, that magistrate Venter had a problem
with on 17 November 2014.
5.
The prosecution team has undertaken to have an amended charge sheet
drafted and that your clients are brought before court for
the
absolute latest by,
Friday 17 April 2015
.
6.
Advocate Q B Appels is now dealing with this matter and will inform
you when the charge sheet is completed and forwarded to the
National
Director of Public Prosecutions office for authorisation. He has
further advised that his offices are eager to finalise
this matter.’
I
pause to note that more than three and a half years after the arrest
of the appellants the State was still attempting to finalise
a charge
sheet. Furthermore, a period of five months had by now elapsed since
the matter was struck from the roll. That, however,
was not the end
of the State’s tardiness.
[21]
The deadline of 17 April 2015 was not met by the State. The
authorisation by the NDPP to amend the charge sheet was only issued

on 30 July 2015. This is close to four years from the time of the
appellants’ first appearance in the Cape Town Magistrates’

Court. Advocate Appels, referred to in the letter set out above,
arranged with the clerk of the court for a date on which the State

would proceed with the prosecution, namely 4 September 2015. An
‘amended’ charge sheet was presented to the appellants

before that date, to which they once again objected. According to the
appellants the charge sheet was virtually the same as the
one that
had previously been objected to. It appears to be common cause that
the changes were minimal. On 4 September 2015 magistrate
Harmse was
incorrectly informed on behalf of the appellants that the matter had
been removed from the roll by magistrate Venter
in terms of s 342A of
the CPA and that the matter could only be re-enrolled with the
authorisation of the NDPP in terms of s 342A(3)
[8]
thereof. The State contended before magistrate Harmse that no enquiry
in terms of s 342A of the CPA had been conducted. The magistrate

disagreed and struck the matter from the roll.
[22]
I interpose to state that counsel on behalf of the appellants
vigorously attempted to persuade us that what in fact had occurred

before magistrate Venter, when he struck the matter from the roll,
was an enquiry in terms of s 342A(3). That contention is utterly

unsustainable. It is quite clear that argument was presented only on
the objection to the charge sheet and that adjudication on
that
aspect was awaited. That did not materialise. The options provided
for in s 342A(3) were not considered or dealt with in argument
by the
appellants or the State nor were they reflected in the order by the
magistrate. There was no basis for what the defence
submitted before
magistrate Harmse. The contention is also belied by the letter of the
appellants’ attorney to the State,
referred to in para 20
above, indicating that magistrate Venter had quashed the charges, for
which also there was no justification.
The manner in which the
defence was conducted on these aspects is unsettling.
[23]
Simply put, the order of magistrate Venter striking the matter from
the roll is inexplicable. Magistrate Harmse, apparently
under the
misapprehension that there had been an enquiry in terms of s 342A(3),
struck the matter from the roll a second time.
Confusion worse
confounded. By this time, more than four years had passed since the
appellants first appeared in court. All the
while their assets were
under restraint.
[24]
During September 2015 and October 2015 correspondence was exchanged
between the appellants’ legal representatives and
the State
concerning the constitutional validity of the restraint order. During
that period advocate Appels, who had been tasked
with the
prosecution, was overburdened with other complex prosecutions and was
unable to give his attention to the case involving
the appellants.
During argument before us, we were informed that this was due to
severe prosecution understaffing.
[25]
In December 2015 the appellants launched the application which is the
subject of this appeal in the Western Cape Division of
the High
Court, Cape Town. The matter was argued during March 2016 and
judgment delivered on 16 March 2016.
[26]
From the limited documentation provided by the State and their
assertions in the answering affidavits, the charges appear,
at least
in part, to be related to consignments of cigarettes delivered under
the authority and/or directions of the appellants
in co-operation
with their co-accused. According to the affidavit attested to by
accused 6, who, it will be recalled agreed to
testify against his
co-accused including the appellants, he worked with Mr Van Heerden
when damaged or defective cigarettes were
returned to BATSA by retail
clients. According to accused 6, Mr Van Heerden who received the
retuned cigarettes would then despatch
twice the number being
returned so that he and accused 6 could benefit from the surplus.
Accused 6 also stated that cigarettes
were sent to his home by Mr Van
Heerden. This, of course, one can safely assume will be at least part
of the State’s version
of events.
[27]
At this stage it is necessary to consider, in some detail, the
material parts of the appellants’ case gleaned from the

founding affidavit.
[28]
At the outset the appellants contended that no ‘negligence or
wrongful actions’ on their part led to the trial
delays set out
above. They allege that they requested further information as and
when it became available. As an example they state
that BATSA
submitted an insurance claim in relation to the loss of the
cigarettes in question and when they became aware of it
they
requested the information. They also assert that they had sought
vital information from BATSA which was not forthcoming and
that the
State was unhelpful in that regard. The appellants were adamant that
vital information had been withheld by the State
which hampered them
in their defence. The appellants insist that documentation on Mr Van
Heerden’s work computer and the
BATSA system was essential to
their defence and that, far from engaging in unlawful activity, Mr
van Heerden was merely acting
on instructions contained in emails and
that these documents were denied them.
[29]
It was contended on behalf of the appellants that magistrate Venter’s
refusal of the State’s request for a postponement
in November
2014, and the consequent striking from the roll implied that a fair
trial was impossible. At the heart of the appellants’
case are
the contentions that due to the very many delays and the paucity of
information supplied by the State, including a defective
charge
sheet, they have in effect been denied a fair trial. In this regard,
they rely on their constitutional right to a fair trial
entrenched in
s 35(3) of the Constitution, which includes the right to have their
trial begin and conclude without unreasonable
delay.
[30]
One of the complaints that the appellants raises is that the
‘criminal enterprise’,
[9]
which according to the State, the appellants are accused of being
engaged in as part of a pattern of racketeering activity, within
the
provisions of POCA, is alleged to be BATSA itself and that this is
absurd. It appears from the limited information made available
by the
State, that its case in this regard is that the appellants and their
co-accused used BATSA’s processes and premises
to engage in the
criminal conduct with which they were charged. They held out that
they were acting as BATSA and that therefore
the criminal enterprise
that the appellants were engaged in was BATSA.
[31]
The NDPP, in resisting the application, denied that the State failed
to ensure that the appellants will have a fair trial.
In respect of
count 4, namely the theft of 160 boxes of cigarettes, the State
insisted that all the information in its possession
had been
provided. According to the NDPP the State’s case in relation to
the theft charges is based on direct evidence, either
oral or
documentary and that the e-mail correspondence which Mr Van Heerden
contends is vital does not form part of its evidentiary
material.
[32]
The NDPP responded to Mr Van Heerden’s allegations that whilst
at BATSA he worked on instructions that were delivered
by e-mail and
that the unlawful actions he was accused of were not so but were
rather pursuant to instructions from BATSA via e-mail
and that access
to his emails, which he was being denied, was vital to his case. The
response also encompassed his assertions that
he was denied company
registers or documents in relation to cigarettes that had been
despatched from the factory that proved that
no theft had occurred.
Mr Van Heerden also referred to BATSA’s standard procedures in
respect of damaged or defective cigarettes,
which he insisted proved
that they are then considered
res nullius
with the consequence
that BATSA’s ownership had ceased and that there could thus be
no theft. Mr Van Heerden was adamant
that accounting and other
records kept by BATSA, access to which he was denied, would prove his
innocence. It was pointed out on
behalf of the NDPP that Mr van
Heerden’s work computer had been seized by BATSA and not by the
police. The NDPP stated emphatically
that the State supplied all of
the information and documentation within its possession to the
appellants. The following part of
the NDPP’s answering
affidavit bears repeating:
‘
The
contents of this paragraph are denied. The respondent has supplied
the applicants with all the information and documents which
are in
its possession and which it intends to use during the trial. The
documents were supplied as they became available. It is
submitted
that the matters raised . . . are matters which can be raised during
cross-examination of the relevant witnesses during
the trial. It is
submitted in addition that only the trial court will be in a proper
position to consider whether the alleged lack
of any documents or
other information will have resulted in an unfair trial for the
applicants or failure to prove the State’s
case beyond
responsible doubt.’
[33]
In relation to the uplifting of the restraint order, the appellants
explained that as a result of their loss of employment
and the
extended duration of the proceedings referred to above, they have
been severely prejudiced and that their finances are
in a parlous
state. They were forced to leave Heidelberg and settle in Oudtshoorn
where their attempt at running a business resulted
in failure. Ms Van
Heerden presently conducts a modest business of her own which
supplies her with an income of approximately R5000
per month. They
were also burdened with supporting an adult child presently incapable
of caring for herself and have had the care
of a granddaughter
entrusted to them by an order of court. This, they say, places an
intolerable financial burden on them due to
their assets being placed
beyond their reach in the hands of the curator referred to above.
[34]
Furthermore, the appellants complained that although the NDPP, in
obtaining the restraint order, alleged that the known benefits

derived from the crimes allegedly committed by them was R2,72
million, the subsequent charges properly analysed indicates that
they
benefited no more than an amount of R434 500. They contended
that the restraint order is therefore disproportionate in
the
extreme.
[35]
The NDPP responded to the complaints concerning the restraint order
and the appellants’ alleged parlous financial circumstances.

The NDPP stated that the charge sheet contains specific charges of
theft by the appellants, involving a total number of 347 boxes
of
cigarettes worth approximately R3 470 000 and that the
amount involved in the money-laundering charges against them
involve
a value of R393 500. The NDPP asserts that the appellants are
clearly in error in this regard.
In
relation to the appellants’ complaint that the restraint order
has rendered them destitute, the NDPP’s response is
that they
did not provide monthly affidavits to the curator as required in
respect of their financial position. The NDPP contended
that the
appellants have been economical with the truth.
[36]
The application in the court below was heard by Weinkove AJ who wrote
a three-and-a-half page judgment, culminating in the
order dismissing
the application with costs. The court in deciding the matter referred
to an earlier application by the appellants
in that division for an
order varying the restraint order, which it considered to be crucial.
In that application the appellants
had sought to be paid an amount of
R23 579 per month for living expenses as well as R25 000
per month for legal expenses.
The application for the release of
funds, brought in terms of s 26(6) of POCA,
[10]
was heard by Rogers J, who dismissed the application, essentially on
the basis that it was clear that the appellants had not made
full
disclosure of all their assets. Rogers J noted that the appellants
had also not provided, as required by the restraint order,
monthly
income and expenditure statements. Rogers J had regard to two prior
release from restraint applications that had been brought
by the
appellants in which they had made sworn disclosures of their assets.
He had regard to inconsistencies in relation to their
version of how
Ms Van Heerden funded her business initially when she set it up in
partnership with someone else. He also questioned
how the substantial
loan accounts in that business had been repaid with the alleged
meagre income. Rogers J considered how the
business the appellants
had set up, which failed, could have been set up with the capital
required without the provision of suretyships,
about which nothing
was said by them. No financial accounts had been provided. He
questioned the lack of explanation in the papers
filed by the
appellants in the initial restraint application concerning the
proceeds of immovable property they had owned in Paarl
and which had
been sold by them. Rogers J expressed surprise at how rapidly the
appellants had paid off their bond on property
they had purchased in
Heidelberg. He held it against the appellants that they had failed to
provide bank statements for a reasonable
period prior to the
application he was adjudicating. In the result Rogers J dismissed the
application with costs.
[37]
In the view of Weinkove AJ the application before him, in the face of
the refusal by Rogers J for a variation of the restraint
order, was
‘ill-conceived and opportunistic’. He took the view that
part of the delay in finalising the prosecution
of the appellants was
because it suited them to await the judgment of the Constitutional
Court in
Savoi
. Weinkove AJ had regard to the fact that the
authorisation by the NDPP in relation to the amendment of the charge
sheet, referred
to above, had now been granted by the NDPP and
allowing the matter to be re-enrolled for finalisation. The following
are the last
three paragraphs of the judgment which includes the
order referred to at the beginning of this judgment:
’
14.
In any event, granting a permanent stay of prosecution is a draconian
step to take and should only be done under compelling
circumstances.
These circumstances have not been demonstrated.
15.
I find that the applicants have failed to justify an order either
rescinding the Restraint Order or granting a permanent stay
of the
prosecution in this matter.
16.
In the result, the applications to rescind the Restraint Order and to
permanently stay the prosecution of the applicants are
dismissed with
costs.’
[38]
Before us the appellants contended that the court below had failed to
consider relevant factors in relation to the application
for a
permanent stay of prosecution and treated it as if it was an
application for the release of funds in terms of s 26(6) of
POCA.
They complained that a period of six years had elapsed since the
opening of the police docket and a period of 5 and a half
years after
the arrest of the appellants and the seizure of all their property.
This, as alluded to above, they submitted is in
conflict with their
rights to a trial within a reasonable time guaranteed in terms of s
35(3) of the Constitution. That section
of the Constitution also
entrenches the rights of arrested and accused persons to be informed
with sufficient detail of charges
so as to answer them. They
contended that the restraint order ‘which has deprived the
appellants of virtually all their assets
(including the first
appellant’s pension), has the effect of materially exacerbating
the prejudice suffered by [them]’.
They pointed to their
advanced age, their difficulty in earning an income, their having to
look after and support their grandchild
and ‘the creeping delay
that has eroded any money they may have possessed and forced them to
take food hand-outs from the
church’. The appellants contended
that the inadequate information supplied by BATSA and the State
offended against their
right to a fair trial. In support of their
contention that their constitutional rights have been infringed, the
appellants relied
on
Sanderson
v Attorney General Eastern Cape
[1997] ZACC 18
;
1998 (2) SA 38
(CC)
[40]
In granting leave to appeal Weinkove AJ candidly stated that he might
have misunderstood the issues he had been called upon
to adjudicate.
The parties were in agreement that the judgement was unhelpful, with
the State submitting that the order dismissing
the application was
nevertheless sound.
[41]
It is necessary to record that on 11 October 2016 the appellants
applied to the high court (Gamble J) for an order for the
release of
living and legal expenses in order to prosecute the present appeal.
The order was granted and the second respondent,
the curator, was
ordered to release a lump sum of R469 120.00 for legal expenses
and a monthly amount of R20 000.00 from
October 2016 for
household and living expenses. This has to be seen against the second
report of the curator dated 11 May 2015
confirming the assets under
his control. I consider it necessary to reproduce it in full:
‘
I,
the undersigned, Andre Carl van Heerden, of Bedford Trust, confirm
that I was appointed Curator Bonis in these proceedings in
terms of
an Order handed down by this Honourable Court on the 18
th
August 2011.
The
purpose of this report, which is to be read in conjunction with my
first curator’s report dated the 20
th
September
2011, is to confirm the extent of the assets currently in my
possession and/or under my control.
1.
R270 000.00 IN TRUST – INVENTORY ITEM 001
These
funds were receipted on the 23
rd
August 2011 and have been
invested in a call deposit account.
2.
BMW X3 – CG 6461 – INVENTORY ITEM 003
This
motor vehicle was sold at public auction pursuant to the Court Order
of 12 March 2012, which was granted by agreement between
the parties,
and the net proceeds in the amount of R142 954.82 have also been
placed on fixed deposit.
3.
CAPITEC BANK (DISCLOSED BY RESPONDENTS)
The
amounts of R114 934.00 and R426 55 were receipted from Capitec
Bank on 16th February 2012, and these funds are likewise
on fixed
deposit.
4.
SANLAM PRESNION FUND (DISCLOSED BY RESPONDENTS)
An
amount of R1 396 386.33 was receipted to the estate account
on the 30
th
March 2012, in respect of the First
Defendant’s pension, and placed on fixed deposit.
5.
ACCRUED INTEREST & CURRENT NET POSITION
Interest
income to date amounts to R182 221.16 and there is thus a total
of R2 106 922.86 currently under the control
of the Curator
Bonis.’
[42]
We were informed by counsel during the hearing of the present appeal
that an amount of approximately R400 000.00 is all
that remains
of the assets under the curator’s control. It should be borne
in mind that in the ex parte application to obtain
the provisional
restraint order the benefit the appellants were said to have obtained
as a result of their alleged criminal conduct
was approximately
R2 720 000
[43]
In the present case the appellants explained how they paid off the
bond on their house and said that they would have provided
the
explanation to Rogers J if they had been called upon to do so. It is
uncontested, however, that the monthly reports were not
supplied to
the curator.
[44]
It is also necessary to record that from the charge sheet presented
in the regional court it appears that the events on which
the charges
were based covered a period stretching back to January 2009, which
means that a period of more than eight and half
years has passed
since the first offence is said to have been committed. For
completeness I note from the affidavit supplied by
accused 6 that he
was convicted in terms of the Sentence and Plea agreement as follows:
1.
One count of Racketeering
2.
One count of theft
3.
21 counts of money laundering
He
was sentenced to various terms of imprisonment, conditionally wholly
suspended and ordered to pay an amount of R750 000,
being the
benefit that accrued to him as a result of his admitted criminal
conduct. He was also sentenced to correctional supervision
in that he
was required for two years to perform community service of no less
than 24 hours per month, the conditions of which
were to be
determined by the Commissioner of Correctional Services. As can be
seen, he was, in effect not required to serve any
term of
imprisonment.
[45]
I now turn to deal with whether the appellants are entitled to the
preferred relief sought by them. In
Wild
& another v Hoffert NO & others
[1998] ZACC 5
;
1998 (2) SACR 1
(CC) the Constitutional Court
described an application for a permanent stay of prosecution as an
extraordinary remedy.
[11]
That
does not mean this relief cannot be granted in appropriate
circumstances. The first step in considering whether a permanent
stay
of the prosecution is appropriate relief in terms of s 38 of the
Constitution
[12]
, is to
determine whether there has indeed been an infringement of the
appellants’ right to a trial within the reasonable
time
provided for in s 35(3)
(d)
as a component of the right to a fair trial.
[46]
In
Wild
the
Constitutional Court found that a considerable period of the delay
complained of was due to the appellants themselves. It also
had
regard to the fact that no trial prejudice had been alleged and held
that a stay of prosecution could not be granted in the
absence of
trial related prejudice or extraordinary circumstances.
[13]
[47]
In
Sanderson
,
the Constitutional Court was faced with an accused person complaining
about a breach of his constitutional right to a public trial
within a
reasonable time after having been charged. In that regard he relied
on s 25(3)(a) of the interim Constitution. The Constitutional
Court
took care to consider why the right to a trial within a reasonable
time was included in the Constitution and what kind of
interests it
intended to protect. In para 21 the Constitutional Court noted that
the right to a trial within a reasonable time
is expressly cast as an
incident of the right to a fair trial.
[14]
The court stated that the presumption of innocence is a relevant
consideration but that has to be seen against an accused person
being
subject to various forms of prejudice and penalty by virtue of being
an accused. Socially, doubt is cast on an accused person’s

integrity and conduct. Being subject to arrest and trial is
disruptive and has an impact on one’s personal life. The
invasion
of liberty brought about by incarceration and bail
conditions is a very real form of prejudice to which an accused
person is susceptible.
The prejudice referred to in this paragraph is
non-trial related.
[15]
[48]
The court in
Sanderson
noted that the right to a trial within a reasonable time is
fundamental to the fairness of a trial. It went on to consider how
a
determination is to be made of whether a particular lapse of time is
reasonable. In arriving at a conclusion the court warned
that regard
should be had to the imperfections in the administration of criminal
justice in our country, including those of law
enforcement and
correctional agencies. It acknowledged that they were all under
severe stress.
[49]
In
Sanderson
it was stated that the amount of elapsed time was
central to the enquiry. The following part of the judgment is
important:
‘
[T]ime
has a pervasive significance that bears on all the factors and should
not be considered at the threshold or, subsequently,
in
isolation.’
[16]
[50]
Kriegler J, in
Sanderson
, stated that the relevant
considerations are not only conditioned by time, but that time is
conditioned by them. He referred to
the factors generally relied upon
by the State to diminish the effect of elapsed time. Generally these
are waiver of time periods,
time requirements inherent in the case
and systemic reasons for the delay. As to how courts should approach
the lapse of time the
following is said at para 30:
‘
The
courts will apply their experience of how the lapse of time generally
affects the liberty, security and trial-related interests
that
concern us. Of the three forms of prejudice, the trial-related
variety is possibly hardest to establish, and here as in the
case of
other forms of prejudice, trial courts will have to draw sensible
inferences from the evidence. By and large, it seems
a fair although
tentative generalisation that the lapse of time heightens the various
kinds of prejudice that s 25(3)
(a)
seeks to diminish.’
[51]
The court in
Sanderson
thought that the nature of the
prejudice suffered by an accused is the first of the most important
features bearing on the enquiry
presently under discussion. This,
said the court, would be considered on a continuum from incarceration
through restrictive bail
conditions and trial prejudice and mild
forms of anxiety. In the balancing act the more serious the
prejudice, the shorter the
period within which the accused is to be
tried. The following appears at para 31:
‘
Those
cases involving pre-trial incarceration, or serious occupational
disruption or social stigma, or the likelihood of prejudice
to the
accused’s defence, or – in general – cases that are
already delayed or involve serious prejudice, should
be expedited by
the State. If it fails to do this it runs the risk of infringing s
25(3)
(a)
.’
[52]
Kriegler J stated that if an accused has been the primary agent of
delay he should not be able to rely on it in vindicating
his rights
to a trial within a reasonable time. An accused, so the court said,
should not be allowed to complain about periods
of time for which he
has sought a postponement or delayed the prosecution in ways that are
less formal.
[17]
[53]
The second factor, according to
Sanderson
, is the nature of
the case. In that regard the following appears:
‘
Judges
must bring their own experiences to bear in determining whether a
delay seems over-lengthy. This is not simply a matter of
contrasting
intrinsically simple and complex cases. Certainly, a case requiring
the testimony of witnesses or experts, or requiring
the detailed
analysis of documents is likely to take longer than one which does
not. But the prosecution should also be aware of
these inherent
delays and factor them into the decision of when to charge a suspect.
If a person has been charged very early in
a complex case that has
been inadequately prepared, and there is no compelling reason for
this, a court should not allow the complexity
of the case to justify
an over-lengthy delay.’
[18]
[54]
The third and final factor set out in
Sanderson
is ‘so-called
systemic delay’. Under this heading the following was listed:
‘
[R]esource
limitations that hamper the effectiveness of police investigation or
the prosecution of a case, and delay caused by court
congestion.’
[19]
The
court also issued a warning in the following terms:
‘
Systemic
factors are probably more excusable than cases of individual
dereliction of duty. Nevertheless, there must come a time
when
systemic cause can no longer be regarded as exculpatory.’
[55]
We are instructed in
Sanderson
that reasonableness requires a value judgment. In making that
judgment courts have to be mindful of the ‘profound social

interest’ in bringing a person charged with a criminal offence
to trial and resolving the liability of the accused, particularly

when a permanent stay of prosecution is being considered. The
question in each case, we are told, is ‘whether the burdens

borne by the accused as a result of delay are unreasonable’.
[20]
We are also told as judges to be mindful that it is not only the
accused’s interests that we are concerned with, but that
the
public interest is also served by bringing litigation to
finality.
[21]
Of course in
having regard to all of these factors and considering that the remedy
sought by the appellants is extraordinary, what
has to be borne in
mind as well is the interest of society in bringing suspected
criminals to book.
[22]
[56]
At this stage it is necessary to have regard to the lapse of time,
the cause thereof and all the other factors referred to
in the
preceding paragraphs. As stated earlier, more than seven-and-a-half
years have passed since the first of the events alleged
by the State,
to form part of the charges brought against the appellants. Close to
five-and-a-half years have passed since the
appellants first appeared
in the Magistrates’ Court in Cape Town. It is true as appears
from the detailed history set out
in paras 8 to 25 above that delays
were occasioned by what might rightly be termed as systemic delays
and that periods of time
were lost due to the needs of a number of
the appellants’ co-accused, the request for further
particulars, the State’s
response thereto as well as the time
that passed whilst the parties awaited the decision in
Savoi
(a period of slightly more than two-and-a-half months). A further
five months were lost when the matter was postponed to enable
the
appellants to respond to the further particulars supplied by the
State. However, a careful consideration of that history also
reveals
that the State was irresponsibly lax in investigating the case,
finalising the charge sheet and moving forward with the
prosecution.
It is clear that substantial and material parts of the delays were
occasioned by the inertia and vacillation of the
prosecutors involved
on behalf of the NDPP. Three months after the appellants’ first
appearance in the magistrates’
court, the State required a
postponement on the basis that the investigation was incomplete and
because authorisation was required
from the NDPP for the inclusion of
racketeering charges. On 2 March 2012, approximately six months after
the appellants’
first appearance in court a further
postponement was sought by the State, once again on the basis that
the investigation was incomplete
and the authorisation by the NDPP
was not yet forthcoming. The magistrate rightly recorded that nothing
appeared to have been done
by the State in the interim. It also
appeared as if the magistrate was displeased with what he considered
to be the attitude of
the State in seeking to invoke the assistance
of the appellants with regard to their prosecution. At that stage the
presiding magistrate
was inclined to refuse the State a further
postponement. The prosecutor then asked for the matter to be
transferred to the Khayelitsha
Regional Court for the matter to be
proceeded with only on the theft charge. If regard is had to the
affidavit of accused 6 and
the State’s insistence that it had
at its disposal witnesses to testify in that regard and did not
require any documentation,
particularly those documents that the
appellants were calling for, the envisaged prosecution and trial held
out no complexity and
ought to have been dealt with expeditiously. In
addition, the State had been instructed to provide a charge sheet to
the appellants
and their co-accused by the end of the day on which
the matter had been transferred to the regional court.
[57]
Distressingly, the State was disingenuous. It had no intention to
proceed on the restricted basis of the theft charge as indicated
to
the magistrate when it sought a transfer to the Khayelitsha court on
a priority basis. It gave that assurance to the court to
prevent the
matter from being struck from the roll. This admittedly was done
after discussion with the office of the DPP in the
Province. I shall
have more to say on this aspect later in this judgment. Furthermore,
the charge sheet it had been instructed
by the court to provide was
not forthcoming.
[58]
No sooner had the matter been transferred to Khayelitsha when
magistrate Venter was informed by the prosecutor, contrary to
what
the magistrate in Cape Town had been told, that the State intended to
proceed to include racketeering charges against the
appellants and
required authorisation in that regard from the NDPP. This
necessitated a further delay and a postponement to 4 May
2012. By
that time the racketeering charges had not yet been finalised, which
necessitated yet another postponement to 6 July 2012.
Thereafter
systemic delays intruded which included the needs of co-accused and
the appellants own request for further particular,
the wait for the
Savoi
judgment,
the objection to the charge sheet and the rulings by magistrates
Venter and Harmse. It will be recalled that they had
each struck the
matter from the roll.
[59]
More than four months after the matter was first struck off the roll
charges had not yet been re-instituted. The blame was
laid at the
door of advocate Appels and his workload. A contemplated amended
charge sheet was still not finalised. Given the State’s
prior
experience in this matter and the courts of the magistrates referred
to above one would have expected greater urgency and
care. During
March 2015, as set out in para 20 above, a written undertaking was
given by the State that the matter would proceed
by not later than 17
April 2015 and that the appellants would be presented with an amended
charge sheet. Yet again the State failed
to meet a deadline.
Authorisation by the NDPP for an amended charge sheet was now
awaited. That was only forthcoming on 30 July
2015, almost four years
after the appellants’ first appearance in court. The
reinstitution of charges only proceeded on the
4 September 2015. On
that day magistrate Harmse struck the matter from the roll a second
time.
[60]
From that time until the launch of the application in the court below
in December 2015, the State remained inert refusing to
release the
appellants’ property under restraint.
[61]
It is quite clear from what is set out above that inadequate
consideration, if any, was given by the State to the appellants’

rights to a trial within a reasonable time and that a material and
substantial part of the delay was due to the State’s tardiness

and lack of application and concern.
[62]
I turn to deal with the prejudice occasioned to the appellants. It is
true that they were incarcerated for only three days.
However, in the
present case their assets, including pension benefits have been under
severe restraint since August 2011 until
it was relaxed by Gamble J
in 2016. The greater parts of the assets have now been dissipated.
The remaining, though diminished
parts of their assets, remain under
restraint. The personal prejudice is set out earlier in this
judgement. It is quite clear that
their social standing has
diminished and that their finances have been greatly reduced. At the
time of the application in the court
below they appear to have been
living from hand-to-mouth, burdened with the care of their daughter
and an infant granddaughter.
The lapse of time also has to be
considered in relation to their mature years.
[23]
[63]
Insofar as trial prejudice is concerned, it does not appear as if the
State made any serious attempt to obtain the documents
they had
undertaken to request from BATSA. Having given the undertaking, they
adopted a rigid position that their case was not
founded on
documentation and that whatever information was sought was in BATSA’s
possession. If the State made no contemporaneous
attempt or was
unsuccessful in soliciting and obtaining documentation from BATSA,
the passage of a considerable period of time
will exacerbate rather
than ameliorate the position in relation to the availability of the
documentation.
[64]
It should also be borne in mind that the appellants, having waited
for a long time for the charge sheet to be finalised, were
at the
very least entitled to have their objection to the charge sheet
adjudicated upon. A decision in that regard would have ensured
at
least a degree of finality in relation to the validity of the charge
sheet and would have either expedited the further conduct
of the case
or caused the State to consider its position afresh.
[65]
Furthermore, the State had sought a transfer to the regional court on
the basis that it would proceed only on the charge of
theft. On the
strength of the NDPP’s answering affidavit in respect of the
charge of theft and having regard to the eye witnesses
it averred it
had at its disposal an expeditious disposal of the case could rightly
have been in contemplation. The undertaking
to the court, in seeking
and obtaining the transfer, that the State would proceed on the more
restricted basis did not materialise.
No sooner had the transfer
occurred, when the State changed its position and sought a
postponement to include the POCA charges.
How, one might rightly ask,
is an accused to deal with such vacillating conduct on the part of
the State. The undertaking to the
court, as will be discussed later,
was dishonestly made.
[66]
The nature of the case, the second factor referred to in
Sanderson
,
has already to some degree been set out above. Having regard to the
version of the State in relation to at least a substantial
part of
the case, no complexity appears to have arisen. The State appears to
have been set on proceeding under the provisions of
POCA, perhaps
because it was concerned to recover the proceeds of what it alleged
was the unlawful conduct of the appellants. In
simple terms, it
appears that the State’s case was that the appellants and their
co-accused had acted in concert in stealing
cigarettes from BATSA. To
prove this aspect of the case, they had eye witnesses available to
them and do not appear to place any
reliance on documentation which
might necessitate complex analysis. It does appear that the many
delays due to the State were because
there had been inadequate
preparation, particularly in relation to the POCA charges. The
difficulty it appears to have encountered
in relation to its
description of the criminal enterprise, an aspect not calling for
adjudication by us, seems to flow from the
fact that the theft in
question, on the State’s version of its case, does not fall
classically within the provisions of POCA,
even though technically it
might. The charge sheets have undergone a mutation over time and
appear recently to have undergone yet
another change which is minimal
and will no doubt be open to the same challenges as had been brought
by the appellants in the past
and on which there has as yet been no
decision. One might rightly ask how many years are required by the
State to finalise a charge
sheet.
[67]
As appears from the detailed history, some of the delays were due to
systemic failures. A number of years after the first appearance
of
the appellants in the Cape Town Magistrates’ Court, those
systemic failures do not seem to have abated, including the
staff
pressures faced by the NDPP.
[68]
I return to an aspect foreshadowed above, namely, the conduct of the
prosecutor and a senior in the DPP’s office in giving
the
undertaking to the court to proceed on the restricted basis of theft
to forestall the matter being struck from the roll. Ms
Booysen, who
was one of the counsel representing the NDPP before us and who has
been a prosecutor for almost four decades, commendably,
as an officer
of the court, agreed that such behaviour was unacceptable. She
described this as a ruse and/or stratagem to avoid
the matter being
struck from the roll. When it was put to her that it was dishonest,
she conceded that it was not the way in which
she would have
conducted herself. To her credit, she conceded that in the event that
it was held to be a significant factor in
deciding the matter in
favour of the appellants, the NDPP could not justifiably be
dissatisfied.
[69]
Having regard to the applicable factors on which
Sanderson
is
instructive and considering the totality of the circumstances set out
above, in my view, the passage of time in this case relative
to its
facts, was unreasonable. Importantly, the dishonest and unacceptable
conduct of the State in facie curiae cannot go unnoticed
and must be
taken into account in favour of the appellants and against the NDPP,
as rightly conceded by counsel. I have taken into
account that the
relief sought is an extraordinary remedy.  In my view and for
all the stated reasons, the conclusion is ineluctable
that the
appellants’ right to a trial to begin and conclude without
unreasonable delay has been infringed and that the appropriate
relief
in terms of s 38 of the Constitution is the principal relief sought
by them. That conclusion makes it unnecessary to deal
with any of the
other questions raised on behalf of the appellants and the necessary
result is that the assets under restraint
are released therefrom.
[70]
I cannot stress enough that decisions in matters of this kind are
fact specific. It follows that this judgment should not be
resorted
to as a ready guide in determining the reasonableness or otherwise of
delays in the finalisation of trials. Whether a
breach of a right to
an expeditious trial has occurred and relief is justified, is to be
determined by a court after having been
apprised of all of the facts
on a case by case basis.
[71]
The following order is made:
1
The appeal is upheld and the first respondent is ordered to pay the
appellants’ costs including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following:
‘
1
The prosecution against the first and second applicants instituted
under the office of the Western Cape Director of Public Prosecutions

with reference no. 9/2/17(1)-139/12 and encompassing the dockets
under or together with the police reference Milnerton CAS 820/02/2010

is permanently stayed.
2
All the restraint orders (under case no. 16910/2011) related to the
applicants’ assets are set aside.
3
The second respondent is ordered to release to the applicants all the
assets of the applicants in his control together with any
interest
accrued thereto.
4
The first respondent is ordered to pay the applicants’ costs
including the costs of two counsel.’
______________________
M
S Navsa
Acting
Deputy President
Appearances:
Counsel
for Appellant:
W King
SC (with him J Engelbrecht)
Instructed by:
Abrahams & Gross Inc., Cape Town
Lovius Block Attorneys, Bloemfontein
Counsel
for Respondent:
M Titus (with him H Booysen
and Q Appels)
Instructed by:
The National Director of Public
Prosecutions, Cape
Town
The National Director of Public
Prosecutions, Bloemfontein
[1]
Section 25(1)
(b)
provides that a high court
may exercise the powers conferred on it by s 26(1) of POCA, namely,
prohibiting a person specified
in the order from dealing in any
manner with any property to which the order relates. Such an order
may be granted when the court
is satisfied that a person is to be
charged with an offence and it appears to the court that there are
reasonable ground for
believing that a confiscation order may be
made against such person.
[2]
Section 2(4) of POCA states that a
person shall only be charged with offences relating to racketeering
charges as contemplated
in subsection 2(1)
(f)
if such a prosecution is authorised by the National Director.
[3]
‘
Pattern of racketeering
activity’
in terms
of s 1 of POCA ‘means the planned, ongoing, continuous or
repeated participation or involvement in any offence
referred to in
Schedule 1 and includes at least two offences referred to in
Schedule 1, of which one of the offences occurred
after the
commencement of this Act and the last offence occurred within 10
years (excluding any period of imprisonment) after
the commission of
such prior offence referred to in Schedule 1’. Section 2 of
POCA sets out offences relating to racketeering
activities. It
provides, amongst others, that any person who receives or retains
any property derived, directly or indirectly
from a pattern of
racketeering activity, and knows or reasonably ought to have known
that such property is so derived, shall
be guilty of an offence.
[4]
Section 4 of POCA bears the title
‘Money laundering’. It provides, inter alia:
‘
Any
person who know or ought reasonably to have known that property is
or forms part of the proceeds of unlawful activities and
–
(a)
enters into any agreement
or engages in any arrangement or transaction with anyone in
connection with that property, whether such
agreement, arrangement
or transaction is legally enforceable or not; or
(b)
performs any other act in
connection with such property, whether it is performed independently
or in concert with any other person.
. .’
[5]
Given the delays and the conduct that
followed the reference to a ‘priority court’ is ironic.
[6]
Section 105A(1)
(a)
(i)
reads as follows:
‘
(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.
. .’
[7]
Section 85 of the CPA provides that
an accused may, before pleading to charges, object to the charges on
the grounds set out therein
which includes that the charges do not
comply with the provisions of the Act relating to the essentials of
a charge, that they
do not disclose offences and that they do not
contain sufficient particulars.
[8]
Section 342A(3) reads as follows:
‘
If
the court finds that the completing 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 from 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;
(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 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 subsection (e) not yet proclaimed.)
[9]
Enterprise is defined in s 1 of POCA
as follows:
‘
any
individual, partnership, corporation, association, or other juristic
person or legal entity, and any union or group of individuals

associated in fact, although not a juristic person or legal entity.’
[10]
Section 26(6) of POCA provides:
‘
Without
derogating from the generality of the powers conferred by subsection
(1), a restraint order may make such provisions as
the High Court
may think fit –
(a)
for the reasonable living
expenses of a person against whom the restraint order is being made
and his or her family or household;
and
(b)
for the reasonable legal
expenses of such person in connection with any proceedings
instituted against him or her in terms of
this Chapter or any
criminal proceedings to which such proceedings may relate,
If
the court is satisfied that the person whose expenses must be
provided for has disclosed under oath all his or her interests
in
property subject to a restraint order and that the person cannot
meet the expenses concerned out of his or her unrestrained

property.’
[11]
See para 11.
[12]
The material part of s 38 of the
Constitution provides:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.’ The list includes
persons, like the
appellants, acting in their own interest.
[13]
Paras 26 and 27.
[14]
The same applies to s 35(3)
(d)
of the Constitution which provides:
‘
(3)
Every accused person has a right to a fair trial, which includes the
right –
a.
b.
c.
d. to have their right begin and
conclude without unreasonable delay.’
[15]
See
Sanderson
at para 23.
[16]
Para 28.
[17]
Para 33.
[18]
Para 34.
[19]
Para 35.
[20]
Para 36.
[21]
Para 37.
[22]
See para 14 of
Sanderson
and para 52 of
Broome v
Director of Public Prosecutions, Western Cape & others, Wiggins
& another v Acting Regional Magistrate, Cape
Town & others
[2007] ZAWCHC 61; 2008 (1)
SACR 178 (CPD).
[23]
The charge sheet presented in the
district court in Cape Town, which has a 2011 case number, which is
the year during which the
appellants first appeared in court,
indicates that their age at that time was 53. In his founding
affidavit signed during December
2015, Mr van Heerden states that he
and his wife are 57 years old. Thus they appear presently to be
approximately 60-years of
age.