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[1998] ZACC 5
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Wild and Another v Hoffert NO and Others (CCT28/97) [1998] ZACC 5; 1998 (3) SA 695; 1998 (6) BCLR 656 (12 May 1998)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                        Â
Case
CCT
28/97
JENNIFER
EMILY HUTCHINSON WILD
                                                     First
Appellant
BRIAN ALFRED CUTLER                                                          Â
Second Appellant
versus
AP
HOFFERT NO
                                                                                       Â
First
Respondent
THE STATE                                                                                     Â
     Â
Second Respondent
THE ATTORNEY-GENERAL                                                        Â
     Â
   Third Respondent
DIRK JAN DONDERS                                                                   Â
      Â
Fourth Respondent
Heard on         :   10 March 1998
Decided on     :   12 May 1998                   Â
JUDGMENT
KRIEGLER J
:
[1]
        This appeal is
directed at part of a judgment and order in the Natal High Court that refused
the appellants constitutional
relief.
[1]
Â
It raises essentially the same two issues dealt with in the recent case of
Sanderson
[2]
, namely,
alleged infringement of the constitutional right to be tried within a
reasonable time of having been charged (imprecisely
but conveniently called the
right to a speedy trial), and a consequential claim that prosecution on such
charge be permanently stayed.Â
As in
Sanderson,
the applicable
constitutional provisions are those of the interim Constitution.
[3]
[2]
        It will be
convenient, first, to indicate the provisions of the interim Constitution that
govern such cases; then to
identify the principles laid down in
Sanderson
as
being applicable; and, ultimately, to apply those principles - retooled insofar
as may be necessary - to the facts of the case
now under consideration.
[3]
        The first main
issue, that of the right to a speedy trial, is dealt with in the interim
Constitution under section
25(3), the fair trial provision, and the second
issue under section 7(4)(a), the remedies section of the interim Constitution.Â
Section 25(3)(a) 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. . .”
On the face of it the
language is quite clear.  An accused person is guaranteed “the right to a . . .
trial . . . within a reasonable
time after having been charged”, the touchstone
being the well-known criterion of reasonableness.
[4]
  Once such right is found to
have been infringed, section 7(4)(a) of the interim Constitution renders the
aggrieved person entitled
to “appropriate relief”.
[5]
[4]
       In the course of
the analysis of the speedy trial component of section 25(3)(a)
Sanderson
’s
case recognised that prejudice to an accused person resulting from unreasonable
delay could take many forms.  Benefiting from a review
of the treatment of
analogous provisions in comparable legal systems,
[6]
the judgment distinguished
between delay which could jeopardise the fairness of the trial itself (e.g. the
death or disappearance
of witnesses), on the one hand, and on the other, more
general delay-related prejudice not having a bearing on the trial itself.Â
The
latter kind of prejudice, so it was held, fell into two broad categories.Â
First there was prejudice related to an awaiting
trial person’s loss of
personal liberty, e.g. resulting from pre-trial detention or restrictive bail
conditions.  In the second
instance there was a whole range of disadvantages
inherent in the public nature of our criminal justice system, such as loss of
reputation,
social ostracism and loss of employment or income.  In both
instances speedy trial protection seeks to avoid or minimise prolongation
of
the train of events inevitably set in motion by arraignment and continuing
until completion of the trial.
[5]
       The judgment also
recognised the utility of a threefold categorisation of the kinds of interests
protected by speedy
trial provisions, namely, the right to liberty, to personal
security and to a fair trial
[7]
,
used by North American courts.  Using that division the enquiry then turned to
consider whether section 25(3)(a) was aimed at protecting
only trial-related
prejudice or whether the other two categories of interests also fell within its
protection.  The conclusion was
that although the subsection - both textually
and contextually - seemed to focus on the fairness of the supervening criminal
trial,
the protection it afforded indeed extended beyond specifically
trial-related interests and embraced liberty and security (or social)
interests
of the kind mentioned above.
[8]
[6]
       Those interests, so
it was held, had to be taken into consideration in assessing the fundamental
question whether there
had been an infringement of the protection afforded by
the constitutional imperative of a speedy trial.  Although the starting point
is to establish whether the time lapse between charge and trial is reasonable,
time is not merely a trigger to an enquiry as to prejudice.Â
It remains the
most important consideration throughout the enquiry, bearing on the other
considerations and, in turn, being coloured
by them.
[9]
  Furthermore, other than is the
case in some comparable jurisdictions, no formal line is drawn in our law
between particular time
spans regarded as acceptable and those that do not pass
muster.
[10]
Â
Our approach, rather, is to make a flexible evaluation of the time elapsed in
the context of and in conjunction with all other
relevant features of the case,
starting with the nature, gravity and extent of the prejudice suffered, or
likely to be suffered,
by the accused.  The most invasive prejudice suffered by
a person pending trial is obviously pre-trial incarceration, which entails
not
only loss of personal liberty but often loss of livelihood and the ability to
maintain dependants.  Ordinarily, therefore, this
form of prejudice will weigh
heavily in deciding how long a wait is reasonable.
[7]
       The second main
feature considered in
Sanderson
as important was the gravity, nature and
complexity of the case.
[11]
Â
The judgment explains that this is not only a consideration in its own right
but that it interacts with the time lapse, and also
with the prejudice suffered
by the accused.  Thus, to take a simple example, an awaiting trial prisoner
facing a straightforward
and trivial case should not have to wait longer than
any sentence of imprisonment that is likely to be imposed.  In such a case
a
“reasonable” time would be short, requiring the accused to be brought to trial
quickly.  On the other hand there are cases
like the one against the accused in
Sanderson
, where a difficult and long case was being investigated
against a man who continued with his life much as before.  The present case
is
also a complex one.  It illustrates the situation that inevitably arises where
a constitutional defence is raised in the magistrates'
courts before the trial
commences. Under the interim Constitution such a case could hardly come to
trial quickly.
[12]
[8]
       A further feature
mentioned in
Sanderson
’s case is the attitude of the accused towards
delays and his or her role in prolonging the pre-trial period.  Although the
conclusion
was that there need not be any assertion of the right to a speedy
trial on the part of an accused, it was nevertheless emphasised
that an accused
who had been a party to or the primary cause of delay could not be heard to
complain of such delay.
[13]
Â
In the same context the judgment makes plain that fault on the part of the
prosecution which results in delay is an important circumstance.Â
Although the
ultimate enquiry is whether the time between the charge and the trial is
unreasonable, it is obviously relevant that
the one or the other party is to
blame, in whole or in part, for the delay.
[9]
       The last aspect of
the judgment in
Sanderson
’s case to which attention should be drawn here
is the balance it requires to be struck between competing societal and
individual
interests once a finding has been made that the delay was indeed
unreasonable and the enquiry turns to remedies.  A careful value
judgement is
required whenever a court considers the kind of relief that would be
appropriate in a given case.  Because of the flexibility
allowed by section
7(4)(a) of the interim Constitution, a court can tailor a snug fit between
infringement and remedy.  More particularly
a court need not resort to relief
as drastic as a permanent stay of prosecution in order to remedy an
infringement of the right to
a speedy trial that does not entail trial
prejudice.  From that it follows, so this Court held, that in the ordinary
course and
absent irreparable trial-related prejudice, a stay would seldom be
the appropriate remedy.
[14]
[10]
     That conclusion
should not be misunderstood, however.  In
Sanderson
the relief sought
was a permanent stay of the pending prosecution.  Here, again, that is the form
of  relief being sought.  In
the result the emphasis of the discussion relating
to relief has tended to fall on the suitability or otherwise of such injunctive
relief.
[15]
Â
It should be underscored, however, that the conclusion that a stay is likely to
be appropriate in a limited range of cases only
does not mean that the
provisions of section 7(4)(a) rarely come into play.  Nor does it mean that the
question whether a stay is
appropriate in a given case is the most important
feature of the speedy trial protection of section 25(3)(a), read with section
7(4)(a).
[11]
     On the contrary, the
true effect and scope of the protection against unreasonable delay is much
wider and more significant
than - and should not be obscured by - the more
dramatic and far-reaching remedy of a stay of prosecution.  The crucial point
of
section 25(3)(a) is that the Constitution demonstrably ranks the right to a
speedy trial in the forefront of the requirements for
a fair criminal trial.Â
That means that the state is at all times and in all cases obligated to ensure
that accused persons are
not exposed to unreasonable delay in the prosecution
of the cases against them.  That, in turn, means that both state prosecutors
and presiding officers must be mindful that they are constitutionally bound to
prevent infringement of the right to a speedy trial.Â
Where such infringement
does occur, or where it appears imminent, there is a duty under section 7(4)(a)
of the interim Constitution
to devise and implement an appropriate remedy or
combination of remedies.
[12]
     What such remedy or
remedies ought to be must obviously be left to be determined in the light of
the circumstances of each
particular case.  I shall therefore reserve further discussion
of appropriate remedies until the facts of the present case have
been
outlined.  Nevertheless it should be mentioned at this point that there are
many endemic blemishes in our criminal justice
system that must be addressed
conscientiously by investigating officers, prosecutors, judicial officers and
administrators.
[16]
[13]
     The relevant history
starts nearly five years ago.  During the early evening of Saturday 19 June
1993 the second appellant
arrived at the first appellant's home in Durban.Â
Shortly thereafter he took delivery of a couriered envelope allegedly
containing
cocaine, whereupon several members of the South African Narcotics
Bureau (“SANAB”), a division of the South African Police, raided
the house.Â
The appellants were arrested there and then on charges of dealing in or
possessing cocaine, to which was added a charge
of attempted murder arising out
of a gunshot wound sustained by a policeman in the course of the raid.  Some
hours later the appellants
were admitted to bail and the following Monday they
formally appeared in the Durban Magistrates’ Court for remand on the two
charges.
[14]
     The first appellant
is an advocate, the second an attorney.  Both are in private practice in
Durban.  Understandably their
arrest, arraignment and appearance in court on
such serious charges attracted publicity in national radio news bulletins as
well
as the Sunday and daily press.  Equally understandably, such publicity
caused them a great deal of social and professional harm
and embarrassment,
both at the outset and following their subsequent appearances in court.
[15]
     After the first
formal appearance there followed a series of remands, initially to amend the
conditions of bail and thereafter
at the request of the prosecution “for
further investigation”.  In the interim a subpoena duces tecum issued at the
instance
of the first appellant (calling for production of a wide variety of
SANAB documents) was set aside in the High Court
[17]
because of its overbreadth, to
be replaced by a more modest one shortly thereafter.  The interlocutory
proceedings did not have
any discernible effect on the investigation of the
prosecution case and on 5 October 1993 the matter was by consent set down for
trial in the week of 24 to 28 May 1994.  The prosecutor intimated that only the
“cocaine-related charges” would be proceeding
and the magistrate ordered
compliance with a defence request for delivery of a formal charge sheet.  The
local commander of SANAB
was also warned to attend on the trial date in response
to a fresh subpoena duces tecum issued on behalf of the first appellant;
at the
same time the latter’s attorney placed on record a complaint that difficulties
had been experienced in obtaining a sample
of the alleged cocaine for analysis.
[16]
     The lengthy remand
meant that the trial would commence after the interim Constitution had come
into operation and the appellants
were able to avail themselves of benefits
that came into being with the advent of the constitutional dispensation.  Thus,
for instance,
the constitutional speedy trial provision now relied on did not
exist prior to 27 April 1994.
[18]
However, it is an open question whether the time elapsed in the pre-
constitution phase is to be taken into account and, if so, whether
it can be
measured on the same scale as delay after the interim Constitution came into
force.  Be that as it may, the appellants
were clearly mindful that the
constitutional era brought benefits for accused persons.
[17]
     When the trial date
came around, the case was not ripe for hearing.  A number of events during the
previous weeks rendered
a further postponement inevitable.  It is not necessary
to itemise such events; suffice it to say that the prosecution was dilatory
in
a number of respects
[19]
while the defence showed little eagerness for the trial to start.  On the
contrary, they had decided to avail themselves of the
constitutional benefits
and, to that end, had opted for a postponement.  When the case was called,
first appellant’s counsel presented
a carefully prepared argument in support of
an adjournment.  Among the grounds advanced was that the appellants wished to
apply
to the High Court in terms of the interim Constitution for a ruling on
the appellants’ right of access to the prosecution docket
and the
constitutionality of certain presumptions contained in the statute under which
the appellants were being charged.
[20]
Â
The application involving the challenge to the presumptions was governed by
section 103 of the interim Constitution.  On a proper
construction of that
section, once such an application has been granted and the proceedings have been
launched in a high court, the
control of those proceedings is vested in the
high court which has to decide whether the trial should be suspended to enable
the
matter to be referred to this Court, or whether the trial should continue
in accordance with the provisions of section 103(2).
[18]
     In the result a
postponement was granted, 4 October 1994 being fixed by consent as the new
trial date.  Although the clerk
of the court was instructed to prepare the
record forthwith and the appellants were put on terms to file their application
for constitutional
relief promptly, the time allowed for the application proved
far too short.  The application was launched promptly enough (citing
two
policemen and the State as respondents) and notice of intention to oppose was
given fairly expeditiously.  But none of the interlocutory
respondents filed
their answering papers,
[21]
nor did the applicants exercise their rights under the Uniform Rules of Court
to bring the application to a head.  Instead there
was a desultory and
inconclusive exchange of correspondence between the parties’ attorneys
relating, among other things, to a contention
by the state attorney that the
Minister of Justice should have been joined as a party.  In the result the
application was no nearer
completion by the time the criminal trial was due to
start on 4 October 1994. The trial magistrate criticised the interlocutory
respondents
for their dilatoriness and postponed the trial yet again, on this
occasion to 3 March 1995.
[19]
     Once again the time
allowed for completion of the application proved inadequate. Indeed there were
a number of independent
circumstances that made it impossible for the trial to
get under way.  First, because the respondents in the interlocutory case,
despite having been publicly criticised by the magistrate, did not file any
affidavits during the ensuing months.  Nor was any pressure
brought to bear on
them by the appellants to do so.  Instead the first appellant filed a lengthy
supplementary affidavit shortly
before Christmas 1994 in which she not only
launched a sweeping attack on SANAB but alleged an unholy alliance between the
police
in the KwaZulu-Natal province and organised crime syndicates.  The
thrust of the new allegations was that the criminal charge against
first
appellant had been maliciously fabricated.  Counsel for the appellants
suggested in argument in this Court that the supplementary
affidavit was
intended to meet the State attorney’s complaint of non-joinder.  That may be
accepted to have been the motive for
the affidavit, its immediate effect,
however, was to open a new and very much wider line of attack.  The secondary
effect was to
alarm the state attorney who then planned a comprehensive defence
to the new line.  But there was no corresponding sense of urgency
and the
interlocutory case continued on its leisurely way.  Some inconclusive
correspon- dence (relating to the first appellant’s
new allegations) was
exchanged but nothing of substance was done to facilitate the criminal case
taking its proper course.  Indeed,
when the trial date arrived, the
interlocutory application was no nearer resolution than it had been five months
before.  The magistrate
had had enough.  Apparently endorsing a defence
contention that the interlocutory respondents were defeating the administration
of justice, he declined the prosecution’s request for a further postponement of
the trial and, when it declined to withdraw the
charges, he struck the matter
from the court roll.
[20]
     The appellants
promptly withdrew the high court application as there was no longer any
criminal charge pending against them.
[22]
Â
That move proved to be precipitate, or at least over-optimistic.  The
prosecution was determined to press on with the criminal
case and informed the
first appellant’s legal representative accordingly during July 1995.  On 10
November 1995 the appellants
and the fourth respondent were summonsed to appear
in the Regional Court in Durban ten days later on essentially the same drug
trafficking
charge as before.  When the matter was called in the Regional
Court, counsel for the first appellant argued that the original case
was still
pending and that the new case could therefore not proceed.
[23]
  On 5 December 1995 the
presiding magistrate (the first respondent in this case) dismissed the defence
argument and granted the
prosecution’s application for the case to be postponed
to 1 April 1996 for trial.
[21]
     The trial did not
commence on that date, however.  On 13 March 1996, some three-and-a-half months
after the ruling by the
first respondent and about a fortnight before the criminal
case was due to start, the appellants brought an application in the Natal
High
Court claiming a stay of the prosecution on both common law and constitutional
grounds.
[24]
Â
In the event both lines of attack failed and, with the requisite leave,
[25]
the constitutional ground now
forms the subject matter of this appeal.
[22]
     In the course of
argument counsel invited the Court to divide the time elapsed from the
commencement of the criminal proceedings
(on the night of 19 June 1993) to theÂ
eventual remand ordered by the first respondent (on 5 December 1995) into
various phases
for the purpose of analysis.  Each of such phases was then
subjected by counsel to careful scrutiny.  More specifically the period
from 3
March 1995, when the matter was struck off, till mid-July of that year, when
the attorney-general first intimated his intention
to re-indict the appellants,
was said by counsel for the appellants to have constituted a period of
unreasonable delay.
[23]
     Looking at the case
as a whole, the following seem to me to be the most material features in
evaluating the reasonableness
not only of that phase but of the entire period from
beginning to end.  First, although there was no singular urgency evident in
the
progress of the case from the night of the arrest until 24 May 1994, no serious
criticism can be levelled at the prosecution
in respect of that period.  The
remand to that date was consensual and benefited rather than prejudiced the
appellants because it
brought with it the advent of the interim Constitution
and gave them additional defences.  From 24 May 1994, once the appellants
indicated that they intended applying to the high court for constitutional
relief and were granted a remand for that purpose, the
trial was barred by
operation of law and remained so barred until that application was withdrawn on
7 March 1995.
[24]
     Moreover, in terms of
the interim Constitution, this Court had exclusive jurisdiction with regard to
the question whether
the relevant provisions of the Drugs and Drug Trafficking
Act were invalid.  As long as the appellants' interlocutory application
was
pending, the criminal case simply could not be brought to trial.  The
constitutional issues raised by the appellants in that
high court application
were, at that stage and for some time thereafter, subject to uncertainty, both
as to the substantive law and
the appropriate procedure.
[26]
  Indeed, this Court had not
yet come into existence and was inaugurated only some three weeks before the
criminal case was struck
off.  Moreover, the factual basis advanced by the
appellants for their constitutional and common law demands, especially in the
first appellant’s supplementary affidavit filed on 22 December 1994, touched on
questions of great importance and impugned the
police up to the very highest
level in the province.  In the circumstances the delay on the part of the
respondents to those proceedings
in responding to the application was to some
extent excusable.  It is also a matter for comment that the appellants took no
procedural
steps, as they were entitled to do in terms of the Uniform Rules of
Court, to push the application to finality.
[25]
     Once the criminal
case had been struck off
[27]
and the high court application was withdrawn, a period of some four months
elapsed before the fresh case was mooted. Arguably the
time period that elapsed
before the attorney-general decided to resume the case was unreasonably long.Â
That is certainly what counsel
for the appellants forcefully contended in this
Court, and seems to be what was found in the court below.
[28]
  Such a conclusion is moreover
fortified by the fact that the deponent to the answering affidavit on behalf of
the attorney-general
did not see fit to take the court into his confidence
about that period from March to July 1995.  Although it appears to be a significant
period of time and although culpable delay on the part of the prosecution is
the very crux of the appellants’ case under section
25(3)(a), the answering
affidavit does not proffer any explanation.  In a case such as this, where
there is a period of ostensibly
culpable inactivity on the part of the
prosecution, an inference of unreasonableness can more readily be drawn if no
explanation
is proffered.  On the other hand it is clear from the papers that
the criminal charges against the appellants are inherently serious
and involve
two accused who are clearly determined to mount a vigorous and formidable
defence, probably necessitating a constitutional
detour to the High Court and
this Court.  However, little purpose would be served by an exhaustive analysis
of the reasonableness
of the time period in question for the case does not turn
on a determination of the question of infringement, but on the appropriateness
of the remedy sought.
[26]
     The length of the
four periods of delay identified by counsel, configured singly or jointly,
their cause or causes and, ultimately,
the question whether the one or other or
all of them can be stigmatised as unreasonable are really beside the point.Â
Those are
all considerations bearing on the question of infringement of the
appellants’ right to be tried within a reasonable time, while
their case fails
on the question of the relief they seek.  Therefore, even if one were to assume
for purposes of argument that the
time that elapsed between the charge and the
trial was unreasonable, the appellants would still not be entitled to claim a
stay of
prosecution as a remedy for such delay. The only relief sought by them
in these proceedings is a stay of prosecution. But such relief,
so it was held
in
Sanderson,
cannot be granted in the absence of trial-related
prejudice or extraordinary circumstances.
[27]
     The appellants do not
allege, nor is there any suggestion of, trial prejudice here.  Consequently
their claim for a stay
of prosecution must fail unless there are circumstances
rendering the case so extraordinary as to make the otherwise inappropriate
remedy of a stay nevertheless appropriate.  No such unusual circumstances have
been alleged in the affidavits, nor were any established
in the course of
argument.  It follows that even if it were to be held that there had been an
unreasonable delay in reinstituting
the trial against the appellants, they
could not be afforded the relief they sought in the High Court and on appeal
here.
[28]
     The court below found
that the attorney-general “is to blame for a substantial period of the delay”
but that there were
“insufficient grounds” for a stay in the absence of “trial
prejudice”.
[29]
Â
This, so the judgment suggests, meant  that the appellants had failed to prove
an infringement of their rights under section 25(3)(a).Â
I would respectfully
suggest that the finding that there had been no infringement conflates the
question of infringement under section
25(3)(a) with that of remedy under
section 7(4)(a).  Although the successive steps of the analysis should not be
performed in watertight
compartments, their separate and distinct requirements
should not be overlooked.  The first leg of the enquiry is whether the right
under section 25(3)(a) has been infringed.  If not, that is the end of the
matter.  If the right is found to have been infringed
then the enquiry turns to
potential remedies under section 7(4)(a).  A finding that the consequential
relief sought is inappropriate
must not be confused with the antecedent finding
as to infringement.
[29]
     Before this judgment
can be concluded there are some important observations to be made about the
impact of sections 25(3)(a)
and 7(4)(a) in cases where the passage of time
causes prejudice to the accused falling short of the limited category where a
permanent
stay of prosecution would be appropriate.  As already mentioned,
presiding officers are duty bound to counteract all manifestations
of
unnecessary delay in bringing criminal cases to finality.
[30]
     This case presents
two of the more egregious examples of avoidable delay: (a) district court
trials that are characterised
by a succession of routine postponements “for
further investigation”;
[30]
and (b) the curious practice of postponing cases for no other reason than to
fix a trial date later.  Indeed, multiple postponements
are endemic in our
magistrates’ courts and all major centres have for many years dedicated one or
more courts to remanding endless
streams of cases; and many successive annual
reports of the Department of Correctional Services have told of ever increasing
thousands
of awaiting trial prisoners adding to the overcrowding of
correctional facilities.  The financial cost to the country of maintaining
a
daily population of some tens of thousands of awaiting trial prisoners is
enormous; the cost in social disruption and human misery
incalculable.
[31]
     Accepting, as one
must, that there are many reasons for the current state of affairs and that its
resolution will take years
of steadfast reform, in no way derogates from the
fact that every accused charged under the interim Constitution is entitled to be
tried within a reasonable time of having been charged.
[31]
  Nor does that state of
affairs excuse magistrates and prosecutors from the duty to ensure that, within
the bounds of what is reasonable,
their courts are conducted and the accused
who appear in them are treated in accordance with the prescripts of section
25(3)a)( of
the interim Constitution.  On the contrary, although they may be
powerless to repair systemic faults, prosecutors and magistrates
can do a great
deal to ensure that the day-to-day business of their courts respects such a
fundamental requirement of fairness.Â
It should also be repeated that delay
cannot serve the wider interests of justice.  Witnesses, complainants and the
public at large
have an interest in the speedy resolution of criminal cases.
[32]
     Commendably, the
legislature has taken a major step in remedying the scourge of delays in
criminal cases by furnishing criminal
courts with practical tools that can be
used in furthering the speedy trial objectives of section 25(3)(a).  A new
section 342A
has been introduced into the
Criminal Procedure Act 51 of 1977
by
section 13
of
Criminal Procedure Amendment Act 86 of 1996
.  Although this is
neither the time nor the place to comment in detail on the section, the novel
provisions of which will have to
be interpreted and applied by courts other
than this one, it can and should be observed that proper application of such
provisions
could materially contribute to protection of an accused person’s
rights under
s 25(3)(a).Â
Subsection 342A(1) vests criminal courts with a duty
to take the initiative in investigating ostensibly unreasonable delays in the
completion of cases pending before them; subsection (2) lists a number of
factors to be considered in such investigation; the following
subsection
provides a number of remedies, including the unprecedented power to make a
costs order in a criminal case.
[32]
Â
The interpretation of the new section and its practical application in the
administration of the criminal justice system will be
worked out by the courts
over time.  In doing so they will  have to be mindful of the constitutional
context created by
section 25(3)(a)
of the interim Constitution (and its
successor in the final Constitution, section 35(3)(d)).
[33]
     The bench-mark set by
the constitutional demand for a reasonably speedy trial does not propose
anything revolutionary nor
advocate standards of perfection.  More importantly,
it is not concerned with theory but with practical justice.  Take, by way
of
example, the system of remands.  Prosecutors should know that remands should
not be applied for merely because the investigating
officer so requests.  An
application to court which involves possible impairment of a fundamental right
should not be made lightly
and prosecutors, officers of the court, should
exercise independent professional judgement before making such applications.Â
Such
judgement may not be abdicated for the sake of cordiality with the
police.  If necessary, an unconscientious investigating officer
should be
reported to a superior.
[34]
     It goes without
saying that, should an application for a remand be made by the prosecutor, the
magistrate will remain mindful
of the provisions of the Bill of Rights.  In
particular the magistrate should keep in mind the demands of section 25(3)(a)
and the
need to consider countering prejudice by using an appropriate remedy.Â
An explanation can be demanded of the investigating officer,
if necessary under
oath.  If the accused is in custody his or her release can be considered.Â
Conditions of bail can be examined
afresh and lightened.  A relatively short
period of remand can be ordered, coupled with an intimation that it will be the
last unless
there is a substantiated application for any further remand.Â
Special orders can be considered to facilitate access by an accused
who is in
custody to defence witnesses or legal advisors.  If the accused is not in
custody but suffers some prejudice in having
to attend court repeatedly, e.g.
if difficult or expensive travel arrangements have to be made, steps to assist
the accused or alleviate
the burden can be considered.
[35]
     Ultimately, of course,
a magistrate can refuse a postponement.  If the accused has by then pleaded, an
acquittal will probably
follow.  If not, the refusal of a postponement will
compel the prosecutor to consider a withdrawal of the charges, thereby
curtailing
any non-trial-related prejudice.  It should be emphasised that the
withdrawal of a charge is not a mere formality nor a device to
circumvent the
refusal of a postponement.  Where a charge has been withdrawn or correctly
struck off because the presiding officer
has refused the prosecution a further
postponement, reintroduction of the charge should be carefully considered.  The
effect of
such an involuntary withdrawal was not examined in any great detail
in this case, the focus of the debate falling rather on the time
allowed to
elapse between the withdrawal and the re-indictment.  It would consequently be
unwise to say too much on the topic.Â
Nevertheless it can and should be
observed that a withdrawal can in itself carry considerable weight in any
evaluation under section
25(3)(a) of the reasonableness of a time lapse, and
also in deciding on an appropriate remedy in terms of section 7(4)(a).
[36]
     The conclusion that a
permanent stay of prosecution is not appropriate relief to be granted to the
appellants here, by no
means puts paid to their rights under section 25(3)(a).Â
Those rights and the duty to devise appropriate remedial relief for their
infringement will continue throughout the trial.  For example, it is trite that
a judicial officer, when structuring sentence, is
obliged to have regard to
pre-trial detention and any other significant prejudice suffered as a result of
the case hanging over the
accused's head for a protracted period.  Similarly,
should it transpire that there had indeed been trial-related prejudice, this
judgment would constitute no impediment to appropriate relief then being
granted.
[37]
     In the final
analysis, the provisions of section 25(3) form part of the fair trial
provisions of a bill of rights contained
in a constitution dedicated to the
creation of a “new order in which. . .all citizens shall be able to enjoy and
exercise their
fundamental rights and freedoms”.
[33]
  Punishing the guilty is
important, but it is at least equally important that it be done in a manner
worthy of that new order.
[38]
     The court below
declined to make any order as to costs.  That was in conformity with the
practice of this Court in cases
such as this, and should be echoed.
[39]
     The appeal is
accordingly dismissed, and there is no order as to costs.
Chaskalson P, Langa DP,
Ackermann J, Goldstone J, Madala J, Mokgoro J, O’Regan J, Sachs J and Yacoob J
concur in the judgment of
Kriegler J.
For the Appellants                 Mr A Findlay SC and I Moodley,
instructed by David
                                                Dison,
Norval & Wheeldon.
For third Respondent            Mr CJ Hartzenberg SC and A de Wet,
instructed by the State
                                                Attorney,
Durban.
[1]
The judgment, per Booysen J, McCall J concurring, is reported
as
Wild and Another v Hoffert NO and Others
1997 (7) BCLR 974
(N).
[2]
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC);
1997 (12) BCLR 1675
(CC). Indeed, because of
the similarity, set
down of this appeal was held back pending judgment in
Sanderson.
[3]
The Constitution of the Republic of South Africa Act 200 of
1993, insofar as here relevant, came into operation on 27 April 1994 and
remained in force until it was replaced on 4 February 1997 by the (final)
Constitution of the Republic of South Africa, 1996.  As
explained in
Sanderson
's
case (n 2 above, paras 16 and 17), in terms of item 17
of schedule 6 to the final Constitution, cases pending upon its coming into
operation are to be disposed of as if it had not done so, unless the interests
of justice require otherwise.  No such special consideration
has been suggested
here, nor is any apparent.
[4]
See the discussion of the particular words in
Sanderson
above
n 2, paras 1 and 18 to 21.
[5]
Id para 38
and the cases there cited.
[6]
Mainly Canada and the United States.
[7]
The terminology is broadly that used by the Canadian Supreme
Court in
R v Morin
(1992) 8 CRR (2d) 193 at 202.
[8]
Sanderson
above n 2 paras 21-3.
[9]
Id paras 27-8
.
[10]
Id para 30.
[11]
Id para 34.
[12]
In terms of s 103(3) of the interim Constitution a magistrate’s
court should, where it considers it in the interests of justice,
postpone a
trial in which the constitutional validity of a law is raised so as to enable
the accused to test the point in a high
court.  If the challenged law is an Act
of Parliament, the invalidation of which ordinarily falls in the exclusive
jurisdiction
of this Court, the high court may then (subject to certain further
qualifications) in terms of subs (4) of s 103 refer the point
to this Court for
determination.  Where other laws are in issue or where the parties consensually
confer jurisdiction on the high
court to consider an Act of Parliament, the
high court can dispose of the matter, subject to possible appeal to this
Court.  Section
103(4)(b) requires the high court concerned to suspend the
trial pending determination of the constitutional challenge, whether in
the
high court or upon referral to this Court.  Even where the high court finally
disposes of the challenge, there is inevitably
some considerable lapse of time
before the matter can be heard and judgment can be delivered.  A referral or
appeal to this Court
will, of course, prolong the constitutional proceedings
and push completion of the criminal trial even further into the future.
[13]
Id paras 32-5.
[14]
Id para 39.
[15]
Indeed, the reported cases relating to the right to a speedy
trial under s 25(3)(a) indicate that the focus has consistently fallen
on the
appropriateness of a stay.  See
Coetzee and Others v Attorney-General,
KwaZulu/Natal and Others
1997 (8) BCLR 989
(D);
Moeketsi v
Attorney-General, Bophuthatswana and Another
1996 (7) BCLR 947
(B);Â
Berg
v Prokureur-General van Gauteng
1995 (11) BCLR 1441
(T);
Du Preez v
Attorney-General of the Eastern Cape
1997 (3) BCLR 329
(E).
[16]
The vast majority of criminal cases are heard in the
magistrates’ courts, where the pressure is at its greatest.  Consequently
the
thrust of what follows relates more specifically to those courts.
[17]
The superior courts of South Africa used to consist of a
number of provincial and local divisions of the Supreme Court of South Africa
and supreme courts and high courts of the homelands.  In terms of item 16(4) of
Schedule 6 to the Constitution each of them became
a high court when the
Constitution came into force on 4 February 1997.  In order to avoid confusion
the new name is used even though
the Court was at the time still known by its
former name.
[18]
The relevant parts of the interim Constitution came into
operation on that day.
[19]
For example, on 3 March 1994 two former state witnesses, one
Hirsch and Dirk Jan Donders, the fourth respondent in these proceedings,
were
joined as co-accused, apparently without notice to the defence, and on the day
before the trial was due to start an amended
charge sheet and incomplete
further particulars were produced.
[20]
The
Drugs and Drug Trafficking Act 140 of 1992
.
[21]
In the event their affidavits were filed on 2 March 1995.
[22]
They did so by notice dated 7 March 1995.
[23]
In other words, a dilatory defence of
lis alibi pendens.
[24]
The relevant prayers in the notice of motion read as follows:
“That the decision of the First Respondent (the Magistrate) on 5
December 1995 remanding Regional Court Case No. 41/4692/95 to the
1st April
1996, is hereby reviewed and set aside.
That it is declared that (the Applicants) were not tried before a
Court of Law in respect of the charge of contravening
section 5(b)
alternatively contravening
section 4(b)
of the
Drugs and Drug Trafficking Act
No 140 of 1992
, in respect of which they were arrested and charged on 19th
June, 1993, within a reasonable time as provided by section 25(3) of
the
Republic of South Africa Constitution Act, No 200 of 1993. . .”
[25]
In terms of rule 18 of the Constitutional Court Rules the
leave of this Court is required before an appeal such as this may be brought.
[26]
Thus, for example, the question of access to material in the
police docket was settled by this Court in
Shabalala and Others v
Attorney-General, Transvaal, and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12)
BCLR 1593
(CC) which was delivered on 29 November 1995.  The constitutionality
of a reverse onus was dealt with in
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA
867
(CC);
1995 (7) BCLR 793
(CC) and
S v Bhulwana
/
S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) delivered on 8 June 1995 and 29
November 1995 respectively.
[27]
The correctness of the decision on the part of the magistrate
to strike off a trial which at that stage could not proceed in the face
of the
pending Supreme Court case was not fully canvassed before us.  Suffice it to
say that it seems questionable whether the prosecution
could be faulted for not
trying to proceed.
[28]
See para 28 below.
[29]
See n 1 above at 987B-H.
[30]
Often the accused remains in custody as a matter of course and
virtually always there is no attempt to ascertain why the investigation
remains
incomplete.
[31]
The comparable provision of the 1996 Constitution, section
35(3)(d), provides that the right is to have the trial begin and conclude
without unreasonable delay.
[32]
Although the section in general was put into operation on 1
September 1997, the subparagraphs dealing with costs are still awaiting
implementation.
[33]
See the first paragraph of the preamble to the interim
Constitution.