Els v P.S and Others (812/2008) [2009] ZANCHC 5 (13 March 2009)

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[2009] ZANCHC 5
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Els v P.S and Others (812/2008) [2009] ZANCHC 5 (13 March 2009)

Reportable: Yes / No
Circulate to Judges: Yes
/ No
Circulate to Magistrates:
Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 812/2008
Date heard: 2009-02-20
Date delivered:
In
the matter of
:
PA ELS APPLICANT
versus
P
S. FIRST
RESPONDENT
C BEZUIDENHOUT N.O. SECOND
RESPONDENT
THE CLERK OF COURT, KIMBERLEY N.O. THIRD RESPONDENT
THE MINISTER OF JUSTICE,
N.O. FOURTH RESPONDENT
Coram:
MAJIEDT
J et TLALETSI J
JUDGMENT
MAJIEDT J:
1.1 The
Applicant, an accused in a private prosecution on a charge of rape,
seeks a declaratory order and injunctive relief in the
form of a
permanent stay of prosecution against the First Respondent, who is
the private prosecutor and complainant on the rape
charge. The
Applicant also seeks a review and setting aside of the issuing of the
summons in the private prosecution by the Third
Respondent on the
grounds that no proper procedure had been followed in respect of the
determination of security as provided for
in s9(1)(b) of the Criminal
Procedure Act, 51 of 1977 (“
the
Criminal Procedure Act”
).
A challenge against the constitutionality of
sec 7
of the
Criminal Procedure Act in
general, or in the alternative, of
sec 7
in relation to this particular case, was, by agreement between the
parties, not proceeded with and will only be set down for
adjudication
in the event that the Applicant is unsuccessful in the
present matter.
1.2 The Applicant is a
Kimberley businessman, presently 78 years of age.
1.3 The First Respondent
is presently 51 years of age – she is a self-employed lady resident
in Pretoria.
1.4 The Second Respondent
is a senior Magistrate in Kimberley who had presided in the
sec 9(1)(b)
proceedings referred to above.
1.5 The Third Respondent
is the Clerk of the Court, Kimberly Magistrate’s Court, who had
issued the summons initiating the private
prosecution against the
Applicant.
1.6 The Fourth Respondent
is the Minister of Justice and Constitutional Development
(incorrectly cited by the Applicant as “the
Minister of Justice”)
who has been cited in his official capacity by reason of the
constitutional challenge against
sec. 7
of the
Criminal
Procedure Act (which
, as I have pointed out, is not before us at this
juncture).
1.7 No costs order is
sought against the Second to Fourth Respondents, who have been cited
only due to their potential interest
in the matter.
The gravamen of the
Applicant’s case in seeking to obtain a permanent stay of the
private prosecution as aforementioned, is
twofold, namely:
a) That he will have an
unfair trial and will suffer irreparable trial prejudice due to the
extremely long delay between the alleged
commission of the offence
and the private prosecution being instituted; and
b) The Applicant alleges
that the private prosecutor (the First Respondent) was actuated by
ulterior motives in instituting the
private prosecution. He contends
that, on this ground too, a permanent stay thereof should
consequently be ordered.
3.1 The
Applicant seeks the review and setting aside of the issuing of the
summons as aforementioned, on the grounds that the First
Respondent
had failed to make full disclosure of all relevant facts in her
ex
parte
application
before the Second Respondent for the determination of security in
terms of
sec. 9(1)(b)
of the
Criminal Procedure Act.
3.2 Given
the ultimate
conclusion in this judgment, it is not necessary to deal with this
aspect any further.
Most of the salient
facts are either common cause or not seriously disputed and can be
succinctly summarized as follows:
4.1 The First Respondent
alleges that the rapes were perpetrated on her by the Applicant from
1968 to 1970 on various occasions.
When this had commenced in 1968,
she was only 13 years old. She alleges further that the Applicant
was a family friend of her
parents. The Applicant denies the rape
allegations, but admits that he had befriended the First
Respondent’s parents at that
time.
4.2 During 26 June 2006 a
brief letter of demand was sent on behalf of the First Respondent by
attorneys in Pretoria to the Applicant,
advising him that their
client alleged that she had been raped by the Applicant and that they
were contemplating legal proceedings.
4.3 On 11 October 2006 a
second letter of demand was sent to the Applicant by another firm of
attorneys acting for the First Respondent.
This letter of demand was
much more detailed and indicated that the First Respondent was
contemplating civil proceedings for damages
and also a criminal
prosecution.
4.4 It appears that just
prior to 11 October 2006, when the aforementioned second letter of
demand had been sent, the Director of
Public Prosecutions had
declined to prosecute the Applicant after a charge of rape had been
laid by the First Respondent.
4.5 On 6 June 2007 a
summons for damages in the amount of R3.7 million was issued against
the Applicant by the First Respondent
in this Court. The Applicant
is defending the action and the matter is still pending.
4.6 On
27 September 2007, the Director of Public Prosecutions issued a
certificate
nolle
prosequi
at the request of the First Respondent after the Director of Public
Prosecutions had again declined to prosecute the Applicant.
This
occurred after the First Respondent had apparently threatened to
refer the matter to the SAPS Head office after she became
aware of
the decision not to prosecute the Applicant. The matter was then
investigated afresh by the SAPS and the second decision
not to
prosecute was taken thereafter.
4.7 On
21 December 2007 the First Respondent,
qua
private
prosecutor, issued summons against the Applicant in a private
prosecution. The matter was postponed in the Magistrate’s
Court on
two occasions and is now being held in abeyance until the issues in
this application are determined.
5.1 To the abovementioned
common cause facts must be added the First Respondent’s version as
to why she had delayed for approximately
40 years in instituting
action against the Applicant for the alleged incidents of rape. Her
explanation is that she had been haunted
by feelings of guilt
throughout and that it was only in the course of 2002, while serving
a two year sentence for fraud and upon
receiving counselling in
prison, that she had taken a decision to make full disclosure and to
take action against the Applicant.
I shall revert to this very
important aspect later herein.
5.2 I must also make
mention of the fact that the Applicant avers that the First
Respondent paid him an unexpected visit during
early 2006. He had
not been in contact with her at all for many years prior to this
visit. The Applicant alleges further that,
during this visit, the
First Respondent borrowed the sum of R300 000,00 from him. He
turned down this request and she then
left. The Applicant suggests
in his papers that this rebuff led to the aforementioned letters of
demand and that they, together
with the civil claim for damages and
the private prosecution, are all indicative of a concerted effort on
the part of the First
Respondent to extort money from him. The
Applicant relies on these aspects aforementioned for his contention
that the First Respondent
has been actuated by ulterior motives in
instituting the private prosecution. The First Respondent flatly
denies the alleged visit
during early 2006, the alleged request for a
loan and the allegation that she is attempting to extort money from
the Applicant.
Injunctive
relief in the form of a permanent stay of prosecution is a drastic
remedy. Kriegler J referred to it in
Sanderson
v Attorney General, Eastern Cape
1
as
follows:
“…
the relief
the appellant seeks is radical, both philosophically and
socio-politically. Barring the prosecution before the trial
begins –
and consequently without any opportunity to ascertain the real effect
of the delay on the outcome of the case – is
far reaching
.”
See
also:
Zanner
v Director of Public Prosecutions, Johannes-burg
2
.
Kriegler J pointed
out that this sort of relief would only be warranted where, for
example, there exists irreparable prejudice
to the accused in the
prosecution to be instituted.
It is
well-established in our law that a superior Court is empowered to
intervene in a private prosecution in a lower Court by,
for example
interdicting the private prosecutor from proceeding with the
prosecution
3
.
A preliminary aspect
raised by the Applicant is an application in terms of
Rule 23
for the striking out of a report of one Dr. Eon Frederik Sonnekus, a
forensic criminologist. At the hearing we dealt with this
issue
first, ordered the striking out of the entire report with costs and
indicated that our reasons would be incorporated in
this judgment on
the merits. This is a convenient juncture to furnish the reasons.
7.1 The
said report deals briefly with the author’s conclusions based on
various interviews and documents which he had perused.
The heading
of the report is: “
VICTOMOLOGICAL
ALLEGED VICTIM IMPACT REPORT: IN THE CASE PTRUE BOTHMA v PETRUS
ARNOLDUS ELS
”.
7.2 Dr. Sonnekus states
in the report that he had insight into various documents and he also
had a consultation and interview with
First Respondent and her son.
He also had a telephonic consultation with the First Respondent’s
attorney, Mr. Groenewald, who
represented her in these proceedings
and also represents her in the private prosecution. He had then
conducted a study of various
works on victomology and expressed what
he refers to as an expert opinion on the possible veracity of the
allegations of rape made
by the First Respondent.
7.3 It is important to
set out fully the conclusions drawn by Dr. Sonnekus based on his
aforementioned methodology. He makes the
following submissions:
“
11. SUBMISSIONS
11.1 I respectfully submit to the
Honourable Court that –
11.1.1 A prima facie case of
alleged rape(s) against the accused could exist, subject the Court’s
finding;
11.1.2 There are indications of
severe trauma in the bodily sexual existence of Mrs Bothma;
11.1.3 There are indications of
contact between Mr. Els and Mrs Bothma during her puberty that may
need to be properly explained
by the accused;
11.1.4 The matter should be
adjudicated in the interests of justice;
11.1.5 It may be in the interests
of both Mrs Bothma and Mr Els to consider a possible settlement of
the matter, as it pleases the
Court.”
Mr. Cilliers SC, who
appeared for the Applicant before us, quite understandably attacked
the aforementioned report as irrelevant
and its conclusions on the
following grounds:
a) That it is based in
its entirety on hearsay; and
b) That it seeks to usurp
the functions of a trial court which has to determine the credibility
of the First Respondent as complainant
in the rape matter.
In
Golding
v Torch Printing and Publishing Co (Pty) Ltd and others
4
Ogilvy-Thompson
AJ, as he then was, held as follows regarding the striking out of a
pleading on the grounds of irrelevance:
“
The decisive
test is whether evidence could at the trial be led on the allegations
now challenged in the plea. If evidence on certain
facts would be
admissible at the trial, those facts cannot be regarded as irrelevant
when pleaded
.”
5
See
also in this regard:
Rail
Commuters’ Action Group v Transnet Limited
6
I am in agreement with
Mr. Cilliers’ contentions that the evidence sought to be presented
through Dr. Sonnekus’ report would
be inadmissible at the trial, by
reason of the fact firstly that it consists of hearsay allegations
and secondly that there is
no basis in law for Dr. Sonnekus’
so-called expert opinion as to the veracity of the allegations by the
First Respondent. It
is in fact the function of the trial court in
the private prosecution to make a finding on the complainant’s
credibility. The
report is therefore irrelevant to the issues which
require determination. Consequently we had struck out the entire
report as
indicated above.
The
Applicant relies on the provisions contained in s35(3)(d) and (i) of
the Constitution, Act 108 of 1996 (“
the
Constitution”
),
for his attack on the private prosecution due to the alleged
unfairness of the proceedings
7
.
On behalf of the
Applicant, Mr. Cilliers’ primary attack has been focused on the
lengthy delay between the alleged commission
of the offence and the
institution of the private prosecution proceedings by the Third
Respondent. He has submitted, with reference
to the averments made
by the Applicant in his founding and replying affidavits, that the
lengthy delay has caused the following
irreparable trial-related
prejudice to the Applicant:
10.1 Important witnesses
on whose evidence the Applicant could have relied in substantiating
his defence, have passed away in the
meantime and in this regard
mention was made of three particular witnesses, namely the
Applicant’s brother, his sister-in-law
and his domestic assistant
at the time.
10.2 Certain
documentation which could have assisted the Applicant in his defence
can no longer be accessed, for example the motor
vehicle registration
papers, since it was alleged that the Applicant had on various
occasions picked up the First Respondent in
his motor vehicle over
weekends to take her to his residence where the rapes were allegedly
perpetrated. It was further alleged
by the First Respondent that the
Applicant had at that time owned a Mercedes Benz and an E-type Jaguar
motor vehicle which he used
to pick her up. The Applicant denies
that he had owned these vehicles during 1968 and indicated that the
records from the motor
vehicle registration authorities would have
been of great assistance in this regard, but it is no longer
available.
On behalf of the First
Respondent, Mr. Groenewald has submitted that the Applicant’s
averments with regard to the alleged trial-related
prejudice he
would suffer are vague and unsubstantiated. He has also forcefully
argued that there has been no unreasonable delay
in this matter,
since the period of time which has elapsed must be calculated from
the time that the Applicant was first charged,
i.e. when he was
first formally notified of the rape charge against him.
It is
necessary to consider first whether Mr. Groenewald is correct in his
latter submission, i.e. to determine whether an accused
in a private
prosecution can be said to be charged only at the time when he
receives formal notification of the charge or charges
against him.
Mr. Groenewald’s contention is that the rights entrenched in
inter
alia
sec 35(3)(d)
and
(i),
only accrue to an accused person, i.e. one that has been formally
charged.
In
Sanderson
v Attorney General Eastern Cape,
supra
,
Kriegler J stated that the cases illustrate:
“…
.. that
‘charged’ can be interpreted very narrowly, so as to refer to
formal arraignment or something tantamount thereto, or
broadly and
imprecisely to signify no more than some or other intimation to the
accused of the crime(s) alleged to have been committed.
”
8
The
learned Judge pertinently declined to decide which of the two
interpretations with regard to the word “charged” in sec 25(3)(a)

of the Interim Constitution, Act 200 of 1993 (“
the
interim Constitution”
),
is to be preferred. It is of considerable importance to set forth in
full the
dictum
of
the learned judge in this regard:
“
It is neither
necessary nor desirable to decide where the word `charged' in s
25(3)(a) falls along the continuum of possible meanings
of the word.
That is so for a number of reasons. First, because it makes no
significant difference in this particular case, as
will be shown in
due course. Second, because the corresponding provision in the final
Constitution does not repeat the word and
consequently any
interpretation will be of transitory importance only. Thirdly and
dispositively, it is not useful to attempt a
universally valid
interpretation of a word so vague and which therefore derives much of
its content and meaning from the particular
context in which it may
be used. When assessing the anxiety, stress and social embarrassment
suffered by a public figure accused
of a morally reprehensible
crime, it is of little consequence whether nicely worded imputations
have been formulated, reduced to
writing or put to the person. In the
context of s 25(3)(a) and the preservation of the individual's
protection against unfair criminal
proceedings it can safely be
accepted that `having been charged' includes appearing in the dock
for the formal remand of a criminal
case.”
.
9
Mr. Cilliers has laid
much emphasis on the fact that the Legislature had deemed it
necessary to change the wording of this particular
provision in the
Constitution. I have already set out the provisions of s35(3)(d)
above. Section 25(3)(a) of the Interim Constitution
reads as
follows:
“
Every accused person shall have
the right to a fair trial, which shall include the right –
(a) To
a public trial before an ordinary court of law within a reasonable
time
after
having been charged
”
(emphasis supplied).
Mr. Cilliers has
submitted that this is a significant change and that it means that
the period to be calculated in terms of s35(3)(d)
with regard to the
question of delay should start running from the time of the alleged
commission of the offence.
In
Du
Preez v Attorney General Eastern Cape
10
Zietsman
J found that “charged” in s25(3)(a) of the Interim Constitution
means that a person has been advised by a competent
authority of a
decision to prosecute him.
11
In
Moeketsi
v Attorney General Bophuthatswana and Another
Friedman JP
held that:
“
In South African
law therefore, the time period would commence when an accused person
is served either with an indictment or summons.
That means from the
time when an accused person had knowledge of the charge
.”
12
In foreign
jurisdictions, a similar interpretation is attached to the word
“charged”.
a) Article 6(1) of the
European Convention for the Protection of Human Rights and
Fundamental Freedom provides as follows:
“
In the
determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and
public hearing
within a reasonable time ….
”
In
Eckle
v Germany (Federal Republic)
13
it was held that:
“
In criminal
matters, the ‘reasonable time’ referred to in article 6(1) (of
the European Convention on Human Rights) begins to
run as soon as a
person is ‘charged’, this may occur at a date prior to the case
coming before the trial court, such as the
date of arrest, the date
when the person concerned was officially notified that he will be
prosecuted or the date when preliminary
investigations were opened.”
b) In
Foti
v Italy
14
the
European Court held as follows:
“
Whilst ‘charge’
for the purposes of article 6(1) may in general be defined as ‘the
official notification given to an individual
by the competent
authority of an allegation that he has committed a criminal offence’,
it may in some instance take the form
of other measures which carry
the implication of such allegation and which likewise substantially
affect the situation of the suspect
.”
c) The
6
th
Amendment of the Constitution of the United States of America
provides that:
“
In all criminal
prosecutions the accused shall enjoy the right to a speedy … trial
…”
The
United States Supreme Court adopted a similar approach in holding
that a person is “accused” only for purposes of the 6
th
Amendment once he/she is indicted.
15
d) The position appears
to be the same in Canada. Section 11(b) of the Canadian Charter
provides that:
“
any person
charged
with an offence
has
the right …. (b) to be tried within a reasonable time.”
(emphasis supplied)
In
R
v Carter,
Lamer
J (as he then was) held that:
“
The timeframe to
be considered in computing trial within a reasonable time generally
runs only from the moment the person is charged.
I might add that I
say ‘generally’ because there might be exceptional circumstances
under which the time might run prior to
the actual charge on which
the accused will be tried. As an example, if the Crown withdraws the
charge to substitute a different
one but for the same transaction,
the computation of time might well commence as of the first charge
.”
16
In sec 1 (the
definitions clause) of the
Criminal Procedure Act, “charge
” is
defined as:
“
Includes an
indictment and a summons
”.
In general therefore it
would appear to me that the weight of the authority, both here and
abroad, seems to favour a narrow interpretation
of the word “charge”
when considered in the context of the right to speedy trial and as
regards the question of what constitutes
unreasonable delay. For
the reasons that follow, however, I am of the view that, given the
circumstances of the present matter,
a broader definition should be
adopted.
18.1 In
Coetzee
and Others v Attorney General, Kwa-Zulu Natal and Others
17
Thirion
J rejected an argument that the time period should be reckoned from
the time of an accused person’s arrest until the commencement
of
the trial. The learned judge held that such a literal interpretation
of the subsection (35(3)(d) of the Constitution) would
narrow down,
rather than broaden the ambit of the right to a fair trial. The
learned Judge states that:
“
Delay which
occurs before an accused is arrested or served with a summons may be
more prejudicial to the accused than the delay
which occurs
thereafter
.”
18
18.2 In
Smyth
v Ushewokunze and Another
19
,
Gubbay CJ appears somewhat ambivalent with regard to this
question. First the learned Chief Justice seems to take the view

that the mere fact that a person is under suspicion of having
committed an offence, does not set in motion the calculation of the

time period of delay, whereas he later seems to agree with Thirion J
in the
Coetzee
matter,
supra,
that
unreasonable delay prior to official notification of the charge may
also be taken into account.
20
The
learned authors of
Constitutional
Law of South Africa
also hold the view that Gubbay CJ seems to contradict himself in the
two passages quoted hereinbefore.
21
18.3 Gubbay
CJ held in
In
re Mlambo
22
that the time period is to be calculated from the “
start
of the impairment of the individual’s interests in the liberty and
security of his person”
.
18.4 Admittedly
as I have said, most of the decisions seem to favour a narrow
interpretation, i.e. that the period of delay is to
be calculated
only from the time when a person has been formally notified of the
preferring of charges against him/her or at the
very least from the
time when that person acquires knowledge that a prosecution is to be
instuted against him/her. My difficulty
with such an approach is
that it offends one’s sense of justice in the circumstances of a
case such as the present one, where
the private prosecutor has
delayed for 40 years to institute prosecution against the
perpetrator. Woolman and Others,
Constitutional
Law of South Africa
,
Vol 3,
supra,
furnishes
the following instructive comment in this regard:
“
In order to
allow for a distinction between arrested and accused persons, and to
enable the courts to make appropriate use of comparative

jurisprudence in this area, it would make sense to interpret
‘accused’ in s35(3) to refer to someone who has been formally

charged.
This
bright line rule is always subject to the fact that pre-charge
occurrences may affect the right of the accused person to a
fair
trial.”
(emphasis
supplied)
23
I am
also mindful of the dictum of Kriegler J in the
Sanderson
matter quoted above
24
that, since sec. 35(3)(d), which corresponds with sec 25(3)(a) of the
interim Constitution, does not repeat the word “charged”,
any
interpretation of that word “
will
be of transitory importance only
”.
18.5 In this matter, the
Applicant has made specific reference of and has illustrated the
potential prejudice which he may suffer
due to the pre-charge delays
herein. The Applicant has referred to the fact that he could not
have committed the rape offences
in 1968 at his present residence, as
the First Respondent alleges, since he was not occupying that
residence at the time. He also
alluded to the fact that both his
brother and his sister-in-law (i.e. his brother’s wife) were now
deceased. They could have
attested to the fact that he had not been
staying there, since his brother was busy renovating and refurbishing
that residence
for the Applicant. He furthermore alludes to the fact
that his erstwhile domestic assistant, who would have been able to
attest
to the fact that the Applicant did not rape the First
Respondent over the weekends when the latter had spent time there
according
to her, is also now deceased. These are pertinent and
specific instances of trial-related prejudice which the Applicant may
face.
Similarly, the lack of access to motor vehicle records dating
back 40 years, to show that he did not possess a Mercedes or an
E-type Jaguar at the time, as alleged by the First Respondent, may
also prejudice the Applicant in his trial. These pre-charge

occurrences are therefore direcly relevant in the context of this
case. In addition to those aspects there is of course the very
real
likelihood of fading memory, not only of the Applicant, but also of
any witnesses who may still be alive.
See:
Zanner
v Director of Public Prosecutions, Johannesburg
25
.
To
aggravate matters further, the First Respondent’s rape complaint is
characterised by a paucity of detail. As an example –
she does
not furnish any specific dates of the alleged rapes, she merely
states that the first rape was allegedly perpetrated “
during
March in 1968 … on a Saturday evening”
.
With regard to the rest of the incidents she simply states that:
“
The Applicant
repeatedly raped me at each and every occasion when he took met to
his farm Carter’s Ridge during the course of
1968, 1969 and 1970.
The exact dates … which I cannot recall
.”
18.6 In
my view, given the exceptional circumstances of this case, the
pre-charge occurrences are directly relevant to the determination
of
whether the Applicant will have a fair trial and should consequently
be taken into account in this determination. In
Dickey
v Florida
26
Chief Justice Burger, delivering the opinion of the Court, held that:
“
These
disabilities, singly or in league, can impair the accused’s ability
to mount a defence. The passage of time by itself,
moreover, may
dangerously reduce his capacity to counter the prosecution’s
charges. Witnesses and physical evidence may be lost;
the defendant
may be unable to obtain witnesses and physical evidence yet
available. His own memory and the memories of his witnesses
may
fade.”
These remarks are
particularly apposite to the circumstances of this case before us.
18.7 Mr.
Groenewald has drawn our attention to the minority judgment of Nugent
JA in
Zanner
27
,
where the learned Judge stated that:
“
It is not necessary to decide in
this case precisely when a person can be said to be an 'accused
person' for purposes of s 35(3)(d)
and I do not suggest that that
requires that he must have been formally charged. But on even the
widest construction of that term,
I do not think the appellant was an
'accused person' at any time throughout the period that is now in
issue. The formal accusation
that had been made against him had been
withdrawn without any intimation to him that it might be renewed nor
any intention that
it would be. There is also no suggestion that the
withdrawal of the charge was in some way improper or merely a device.
On the
contrary, the matter remained altogether forgotten in the
office of the DPP until the case came to be reinvestigated ten years
later. Far from accusing the appellant of having committed an offence
the DPP did not even suspect the appellant of having done
so.
Indeed, even the appellant did not consider himself to be standing
accused of the commission of an offence. I do not think
that the
appellant can be said to have been an 'accused person', even on the
widest construction of the term, if nobody, including
the appellant
himself, considered that he was standing accused of the commission of
an offence. “
This
dictum is plainly made
obiter
dictum
as is evident from the learned Judge’s opening sentence in that
paragraph.
19.1 A further aspect to
be considered here is the question of culpability, if any, on the
part of the First Respondent for the
vast delay in proceedings. I
agree with Mr. Cilliers that, on a conspectus of all the sources
consulted, a delay of 40 years as
is the case here, is quite
exceptional. I have already set out the First Respondent’s
explanation for the enormous delay. I
find the First Respondent’s
explanation, i.e. that she had been haunted by feelings of guilt
until 2002 about what had happened
to her as a teenager, rather
unpersuasive. Furthermore and in any event, there is no explanation
for the further unreasonable
delay between 2002 (when on her version
she decided, after counselling in prison, that she should take action
against the Applicant
for the wrongs which she had suffered) and the
eventual institution of the private prosecution in December 2007.
That constituted
a further delay of approximately 5 years.
19.2 In
United
States v Lovasco
28
,
Marshall
J held that:
“…
proof of
prejudice is generally a necessary but not sufficient element of a
due process claim, and that the due process inquiry
must consider
the
reasons for the delay as well as the prejudice to the accused
”
(emphasis
supplied).
29
19.3 I consequently find
that full culpability can be ascribed to the First Respondent for the
enormous delay in this case. There
has not been any suggestion of any
other extraneous factors which had contributed to the delay, nor has
it been suggested that
the Applicant had done anything to contribute
to it.
20.1 As
has been pointed out in various authorities, no hard and fast rules
should be adopted in laying down specific time periods
to determine
what would constitute an unreasonable delay.
30
20.2 As
Kriegler J pointed out in the
Sanderson
matter,
the practice in certain jurisdictions to presume prejudice after a
lapse of specified time periods, ought not to be adopted
by our
courts
31
.
In
Moeketsi
,
Friedman JP set out, with reference to various Canadian decisions,
the periods of time which were regarded in those cases as reasonable

or unreasonable. The learned Judge, correctly with respect, then
points out that there is no discernible pattern that can be drawn

from these cases and concludes that
“…
indeed it is
highly unlikely that any catalogue of periods can be compiled
.”
32
The
fact of a long delay does not
per
se
amount
to an infringement of the right to a fair trial. It has to be
considered in the context of all the circumstances unique
to each
case and taking into account factors such as the length of the delay,
the reason for the delay, whether the accused has
suffered or is
likely to suffer prejudice by reason of the delay and also the
accused’s assertion of his right to a speedy trial.
See:
Zanner
v Director of Public Prosecutions, Johannesburg
33
;
Sanderson
v Attorney General, Eastern Cape
34
.
20.3 In
determining what would constitute a reasonable time, the Courts
exercise a so-called “
balancing
test”,
whereby the conduct of the Prosecution and of the Accused is weighed
up and evaluated with reference to the following considerations:
a) The length of delay;
b) The reasons advanced
by the Prosecution for the delay;
c) Any waiver of the
right to a speedy trial by an accused person;
d) Prejudice to the
accused;
e) Generally, the
interests of justice.
See:
Sanderson,
supra
35
Barker
v Wingo
36
R v
Askov
37
I
have already discussed these aspects mentioned above in some detail.
With regard to the question of waiver, there can be no
doubt
whatsoever that the Applicant,
qua
Accused
in the private prosecution, is unequivocally and decisively
asserting his right to a speedy trial herein.
The
determination of whether a delay has been unreasonable, involves a
value judgment and a balancing of these competing interests

mentioned above. In
Sanderson
,
Kriegler J put it thus:
“
The question in
each case is whether the burdens borne by the accused as a result of
delay are unreasonable.”
38
In
R
v Morin
39
,
supra,
the
Court held that prejudice may be inferred from the length of the
delay. The longer the delay, the more likely such an inference
of
prejudice would be drawn. Similarly, in
R
v Askov
40
the
Full Court held that:
“
There is a
general and, in the case of very long delays, an often virtually
irrebuttable presumption of prejudice to the accused
resulting from
the passage of time.”
With regard to the length
of the delay, that Court held that
“
the longer the
delay, the more difficult it should be for a Court to excuse it.
Very lengthy delays may be such that they cannot
be justified for any
reason. “
41
The right to a speedy
trial, entrenched by sec 35(3)(d) of the Constitution, is aimed at
protecting three important interests
of an accused person, namely:
a) The right to security
of a person is protected by attempting to minimize the anxiety and
stigma that accompanies criminal prosecutions;
b) The right to liberty;
c) The right to a fair
trial is protected by ensuring that the prosecution occurs while
witnesses are available and while events
are still fresh in their
memories.
See in
this regard:
Sanderson
supra
42
;
R v
Morin
43
;
R v
Askov
44
;
Zanner
v Director of Public Prosecutions Johannesburg
45
.
The
protection against unreasonable delay ranks in the forefront of fair
trial rights in the Constitution
46
.
In the present matter
issues regarding the Applicant’s right to liberty do not arise and
his right to security arises to a limited
extent only. What is of
crucial importance, however, is the question of trial-related
prejudice which the Applicant relies on.
Despite Mr. Groenewald’s
valiant attempts to persuade this Court to the contrary, I think
there can be little doubt that the
Applicant will be severely
prejudiced at his trial, to answer charges (framed in its detail, as
I have indicated above, in only
the flimsiest of detail) of events
that occurred 40 years ago. He would be severely hampered by:
a) The unavailability of
material witnesses who have since passed away; and
b) The dearth of
documentation which may be materially relevant to his defence, e.g.
motor vehicle registration documents; and
c) His and his potential
witnesses’ faded memories concerning events that occurred four
decades ago.
Given the extent of the
delay, the First Respondent’s rather unpersuasive explanation
therefor and the Applicant’s invidious
position with regard to
material witnesses and documentary evidence, in my view the
trial-related prejudice should be almost
self-evident herein. Of
course, the grounds above also establish that the Applicant’s
right to adduce and challenge evidence
(section 35(3)(i))has also
been violated.
In
Sanderson
Kriegler
J pointed out that a stay of prosecution as injunctive relief will
only be warranted in the cases where for example irreparable

prejudice to an accused can be proved
47
.
In
S
v Zuma and Others
48
Kentridge
AJ stated as follows:
“
The right to a
fair trial conferred by that provision (sec 25(3) of the interim
Constitution) is broader thnt the list of specific
rights set out in
paragraphs (a) to (j) of the subsection. It embraces a concept of
substantive fairness which is not to be equated
with what might have
passed muster in our criminal courts before the Constitution came
into force.”
The learned Judge
emphasized that criminal trials should henceforth be conducted in
accordance with open-ended notions of basic
fairness and justice.
See
also:
Sanderson
v Attorney General Eastern Cape
49
.
In
Director
of Public Prosecutions and Another v Lebona
50
,
the
Appeal Court of Lesotho upheld the lower Court’s permanent stay of
prosecution in circumstances where there had been a delay
of three
years in commencing the trial, while the accused in that matter had
been suspended from her post. The Court held that
there had been a
vast unreasonable delay in respect of the criminal proceedings and
that, given the serious prejudice suffered
by the accused, there
should be a permanent stay of prosecution. The learned President of
the Court, Steyn P, stated that:
“
However, apart
from the general – often inevitable – prejudicial consequences of
delay for those involved, in this case there
is a very specific trial
prejudice allegedly suffered by respondent which is not denied by the
appellants …. Respondent would
have been well advised to have
furnished the Court with greater detail of this prejudice and should
have particularised these averments
so as to establish demonstrably
that relevant evidence required for her defence may well be
irretrievably lost as a result of the
delays. But in the absence of
challenge, the Court below in our view was entitled to give due
weight to this aspect of respondent’s
trial prejudice.”
51
In all the circumstances
and having given careful consideration to the competing
constitutional rights of the Applicant, who is
not only entitled to
the right to a fair trial, but also to the constitutional right of
dignity, and that of the First Respondent,
who is entitled to the
constitutional rights of dignity, access to court and to equality
before the law, I am of the view that
the Applicant will undoubtedly
be prejudiced and would not have a fair trial, given the
considerable difficulties he faces in
mounting a proper defence. In
my view these obstacles are virtually insurmountable, given the
irretrievable loss of documents
and of witnesses who have since
passed away.
In
Canada and in the United States of America, the choice of remedy in
cases where unreasonable delay is found is stark – there
is only a
permanent stay of prosecution available in those jurisdictions.
Kriegler J in
Sanderson
refers
to this as: “
remedial
inflexibility”
and points out that where the prejudice alleged is not
trial-related, a range of appropriate remedies less radical than a
stay
of prosecution is available in our law. A stay of prosecution
would be available only in very limited instances..
52
In my view this is a
case where the Applicant has amply demonstrated irreparable trial
prejudice as a consequence of the unreasonable
delay, which is
entirely the fault of the First Respondent. In the circumstances
therefore, it seems to me that this is one
of those exceptional
cases where a permanent stay of prosecution should be ordered, so as
to protect the Applicant’s fair trial
rights, in particular, the
right to a speedy trial. I come to this conclusion after careful
and anxious consideration, since
I am mindful that this decision
effectively shuts the doors of the courts as regards criminal
prosecution, to the First Respondent.
I do so, further cognisant of
the fact that the true effect of the delay on the outcome of the
case will never be determined,
since it could appropriately only be
determined at the trial. Nevertheless, I am satisfied that the
evidence before us overwhelmingly
demonstrates that the Applicant
would suffer irreparable trial-related prejudice due to the delay
and that he would therefore
not receive a fair trial.
Having come to this
conclusion, it is not necessary to consider further the balance of
the relief sought in the Applicant’s
Notice of Motion, namely the
review and setting aside of the issuing of the summons, due to the
alleged non-compliance of the
provisions contained in
sec 9(1)(b)
of the
Criminal Procedure Act and
also the question of ulterior
motives on the part of the First Respondent in issuing the summons
for the private prosecution.
Lastly
there is the question of costs. During the course of the hearing
we made an
ex
tempore
ruling
regarding the striking out of Dr. Sonnekus’ report and also
ordered the First Respondent to pay the costs of that application.

Mr. Cilliers for the Applicant has pertinently abandoned the order
for costs sought in the Notice of Motion. He has indicated
that the
Applicant would not seek any costs in respect of this application.
The Constitutional Court has the very salutary rule
(which is not
inflexible) that, ordinarily, where substantial constituional issues
are raised, an unsuccessful party ought not
to be ordered to pay the
successful party’s costs.
See:
Zuma
v National Director of Public Prosecutions
53
.
The following order is
issued:
It is declared that
the private prosecution against the Applicant would lead to an unfair
trial as provided in section 35(3)(d)
and (i) of the Constitution of
the Republic of South Africa, Act 108 of 1996 and the First
Respondent is prohibited from continuing
with such private
prosecution.
_________________
SA MAJIEDT
JUDGE
I CONCUR:
_______________
PL TLALETSI
JUDGE
FOR THE APPLICANT:
ADV JG CILLIERS SC INSTRUCTED BY
ENGELSMAN MAGABANE
FOR THE FIRST RESPONDENT:
MR. SJ GROENEWALD INSTRUCTED BY TOWELL
AND GROENEWALD
1
1998(2) SA 38 (CC) at para [38], 58 D – E
2
2006(2) SACR 45 (SCA) at para [10], 50 b-d.
3
This holds
true for both the pre-constitutional and constitutional eras;
See: Solomon v Magistrate, Pretoria and Another 1950(3) SA 603
(T) at 607 F – H;
Phillips v Botha 1999(1) SACR 1 (SCA) at 11 b.
4
1948(3) SA 1067 (C)
5
at 1090
6
2006(6) SA 68 (C) at 83 H – J.
7
The
relevant section provides as follows:
“35(3) Every accoused
person has a right to a fair trial, which includes the right –
(a) …
(b) …
(c) …
(d) To have their trial begin
and conclude without unreasonable delay;
(e) …
(f) …
(g)
…
(h) …
(i) to adduce and challenge avidence;”
8
At par. [18], 49 A-B.
See also: McCarthy v Additional
Magistrate, Johannesburg 2000(2) SACR 542 (SCA) at par [28] –
[30], 551, a – g.
Cheadle
et
al:
SA Constitutional Law,
The Bill of Rights at 29-20 to 29-23.
9
Par [19] at 49 B – E
10
1997(3)
BCLR 329 (E) at 337
11
“In my
opnion a person is not ‘charged’ with an offence until he is
advised by a competent authority that the decision has
been taken to
prosecute him. This does not necessarily mean that he must actually
be furnished with a summons or a charge sheet.
To make this a
specific requirement could lead to abuse by the police if, for
example, the police over a number of years repeatedly
tell a person
that he is to be prosecuted for a serious offence and thereby reduce
him to a state of anxiety and stress while
at the same time
declining to serve him with a summons or a charge sheet.”
12
1996(1)
SACR 675 (B) at 691 i - j.
13
(1983)
[1982] ECHR 4
;
5
EHRR 1
14
(
1983)
[1982] ECHR 11
;
5
EHRR 313
at 326
15
US v Marion
[1971] USSC 195
;
404 US 307
(1971) at 313-314.
16
R v Carter
(1986) 21 CCR 170 at 173.
17
1997(1)
SACR 546 (D&CLD) at 556 d-h.
18
At 560 i
19
1998(2)
BCLR 170 (ZS)
20
At 179 H
the learned Judge states that: “The fact that the applicant must
have realised that he was under suspicion in relation
to allegations
of crimen injuria and culpable homicide and that investigations were
being undertaken on behalf of the second
respondent, did not start
the clock ticking against the State.” At 180 B on the other hand,
the learned Judge states that:
“I agree with the submission that
the reach of s18(2) of the Constitution (of Zimbabwe) will permit of
redress where an unreasonable
delay on the part of the State in
commencing the trial, preceded the date upon which the accused
person was officially notified
that he had committed a criminal
offence (see Coetzee and Others v Attorney General Kwa-Zulu Natal
and Others
1997 (8) BCLR 989
D at 999 G – 1000 A.)”
21
Woolman and Others,
Constitutional
Law of South Africa, Vol 3, at 51-130, footnote 4.
22
1992(4)
SA 144 (ZSC) at 149 H – J.
23
At 51-40
24
See par. 13
and footnote 9, above
25
supra
at
para [12], 51 a – b.
26
398 US 30
,
90 S.Ct 1564
27
Supra
,
at par. [30], 55 f – i.
28
[1977] USSC 172
;
431 US 783
(1977)
29
At 786
30
See
inter
alia
:
Sanderson v Attorney General Eastern Cape,
supra
at
par. [28], 54 B-C.
Moeketsi
v Atorney General Bophuthatswana and Another,
supra
at 693 h – i.
31
Supra
at
par. [30], 54 E.
32
S
upra
at 693 c – f.
33
Supra
at
par. [14], 51 f – h.
34
At para [25], [26] and [32].
35
At para
[25]
36
[1972] USSC 144
;
407 US 514
(1972) at 532.
37
[1990] 2
SCR 1199
38
Supra
at para [36],
57 F.
39
[1992] 1 SCR 771
40
At 1209
41
Ibid.
42
At par.
[20] – [22]
43
[1992] 1 SCR 771
44
[1990] 2 SCR 1191
45
Supra
at
para[12], 5 i - j
46
Wild and
Others v Hoffert NO and Others 1998(6) BCLR 656 (CC) at par. 11, 661
D.
47
At par [39], 58 H.
48
1995(2) SA 642 (CC), para [16].
49
Supra
at
para [22], 51 A - C
50
1998(5) BCLR 618 (LesCA)
51
At 363 E – G.
52
Supra
at
para [38] and [39], 58 D – H.
53
2009(1) SA
141 (CC) at par [67], 161 E.