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[2019] ZAFSHC 256
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S v Ledwaba (R180/2019) [2019] ZAFSHC 256 (14 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION. BLOEMFONTEIN
REVIEW
NUMBER: R180/2019
In the matter between:
THE
STATE
and
LESIBA
JACKSON LEDWABA
CORAM:
LOUBSER J
et
RAMLAL,
AJ
JUDGMENT
BY: RAMLAL, AJ
DELIVERED
ON: 14 NOVEMBER 2019
[1]
This matter was referred to us for Special Review in terms of section
304(4) of the Criminal Procedure Act, Act 51 of 1977,
with a request
to set aside an order made by the Regional
Magistrate at
Theunissen,
on
19
September 2019.
[2]
The trial of the accused, who pleaded not guilty to three counts of
breaching the provisions of the Prevention of Corrupt Activities
Act,
Act 12 of 2004, began on 10 September 2015.
[3]
On 1 August 2018, when the trial was scheduled for continuation, the
accused informed the court that he had employed new legal
representation. The case was then postponed to the 17th August 2018,
for the new legal representative to obtain a transcript of
the
proceedings so as to enable him to properly represent the accused.
[4]
During the period 17
th
August 2018 to 26
th
April 2019 the case was postponed on eight different instances to
obtain the transcript of the proceedings.
[5]
On 26 April 2019 the Regional Magistrate conducted an enquiry in
terms of section 342A of the Criminal Procedure Act, to determine
whether there were any unreasonable delays in the completion of the
trial and, if so, to determine who was responsible for the
unreasonable delay. Three Department of Justice and Constitutional
Development officials were called to explain the delays that
were
being experienced in obtaining the
transcripts
of
the
proceedings. The
Accused
then testified to
explain
the
financial prejudice that
he suffers as a result of paying his legal representatives to be
present at court, even though no progress
has
been made
since
17
August
2018.
[5]
The Regional Magistrate then proceeded to rule that the delays were
unreasonable, to the prejudice of the accused and that the
unreasonable delays could be attributed to the inability of the
officials to make available the transcript of the proceedings,
as
requested. The relief thus granted was an order in terms of section
342A(3)(e)(i) of the Criminal Procedure Act, in the following
terms:
"In terms of
Section 342A(3)(e)(i)
of
Act
51
of
1977
as
amended the Court orders that the state(DOJ)
shall pay the accused in this matter the wasted costs incurred by the
accused
as a
result of
the unreasonable delay caused by the officers employed by the state
(DOJ)".
[6]
I am mindful of the frustrations and the dissatisfaction that is
experienced by diligent judicial officers who want to uphold
the
rights of the accused and that of the general public by bringing
matters to finality within the shortest possible time, especially
in
instances where the delays seem to be interminable. It is plausible
that such judicial officers would seek to find relief to
promote the
proper administration of justice.
[7]
However, as the date of the commencement of section 342A(e)(i) of the
Criminal Procedure Act has not yet been proclaimed, the
order of the
Regional Magistrate is irregular.
[8]
The order made in terms of section 342A(3)(e)(i) of Act 51 of 1977,
by the Regional Magistrate on 19 September 2019, is accordingly
set
aside.
________________
A.K.
RAMLAL, AJ
I
concur
_________________
P.J.
LOUBSER, J