CONSTITUTIONAL COURT OF SOUTH AFRICA
Cases CCT 232/17 and CCT 207/18
Case CCT 232/17
In the matter between:
TSHIDISO RAMABELE Applicant
and
THE STATE Respondent
Case CCT 207/18
In the matter between:
MCDONALD MSIMANGO First Applicant
SIBUSISO MSIMANGO Second Applicant
MESCHACK SITHOLE Third Applicant
MZALA SITHOLE Fourth Applicant
CHARLES SITHOLE Fifth Applicant
RISE MSIMANGO Sixth Applicant
CHRISTIAAN LUNGA Seventh Applicant
CLEMENT NKHI Eighth Applicant
and
THE STATE First Respondent
2
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Second Respondent
Neutral citation: Ramabele v The State; Msimango v The State [2020] ZACC 22
Coram: Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majie dt J,
Mhlantla J, Tshiqi J and Victor AJ
Judgments: Mhlantla J (unanimous)
Decided on: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the
Constitutional Court website and release d to SAFLII. The date
and time for hand -down is deemed to be 10h00 on 16 September
2020
Summary: Fair trial rights — postponement for legal representation of choice
— judicial bias — unreasonable delays — section 342A of the
Criminal Procedure Act 51 of 1977
ORDER
On appeal from the High Court of South Africa, Free State Division, Bloemfontein .
The following order is made:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is dismissed.
JUDGMENT
MHLANTLA J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majiedt J, Tshiqi J
and Victor AJ concurring):
Introduction
[1] Two applications were lodged in this Court, comprising an application by Mr
Tshidiso Ramabele (Mr Ramabele) and another one by Mr McDonald Msimango (Mr
Msimango), as well as Messrs Sibusiso Msimango, Meshack Sithole, Mzala Sithole,
Charles Sithole, Rise Msimango, Christiaan Lunga and Clement Nkhi (collectively
referred to as the applicants or accused and , where necessary , the latter are the
Msimango applicants) . The applicants were tried together with others in a lengthy
criminal trial 1 held at the High Court of South Africa , Free Sta te Division ,
Bloemfontein.2 The applicants now seek leave to appeal against the judgment and order
of the High Court, in terms of which the High Court convicted them of various charges
of racketeering, theft and the acquisition, possession or disposal of unwrought gold.
The applicants are presently serving various sentences of imprisonment ranging from
10 to 15 years. They have approached this Court to seek an order set ting aside their
convictions in respect of these offences.
[2] Although the two applications in this Court were lodged separately, the
applicants were co-accused and tried together in the trial Court. The grounds of appeal
1 In the trial, the accused were Sibusiso Msimango (accused 1); Rise Msimango (accused 3); McDonald Msimango
(accused 4); Meshack Sithole (accused 7); Mzala Sithole (accused 8); Christiaan Lunga (accused 11); Clement
Nkhi (accused 12); Tshidiso Ramabele (accused 13); and Charles Sithole (accused 14).
2 Director: Public Pros ecutions Free State v Msimango, unreported judgment of the Free State High Court,
Bloemfontein, Case No 100/2008 (15 October 2014) (High Court judgment).
MHLANTLA J
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are similar. Therefore, the applications were consolidated and considered at the same
time.3 This matter was determined without oral argument.
Background
[3] In February 2002, a South African Police Service directive established the
National Investigating Task Team. The task team executed a project dubbed “Project
Fat Cats”. Four teams were established across South Africa in Welkom, Klerksdorp,
Johannesburg, and Rustenburg. The main focus of the project was to identify the most
prominent gold and platinum smugglers in mining areas. The ap plicants and their co-
accused were identified by the Klerksdorp team led by the investigating officer,
Officer Flynn, as having been part of a gold smuggling enterprise. It was alleged that
some of them were in charge of operations and activities and were involved in the
refining and selling of unwrought gold.
[4] The first applicant, Mr Msimango, was alleged to have been one of the prominent
participants in the syndicate and to have concealed the true ownership of some assets.
The others were alleged to have assisted the syndicate as smelters of unwrought gold
that was alleged to have been stolen from a mine by mineworker s and transported by
some of the accused to secret locations for sale. Another allegation concerned money
laundering activities by this group. The gold refining and money laundering activities
were conducted from 1998 to 2008. The applicants and their associates were eventually
arrested on different dates between 2006 and 20 10. Some were found at smelt houses
and in possession of large amounts of cash and others had purchased immovable
properties and motor vehicles in excess of R 3 million.
[5] The applicants, together with their co-accused, were charged with 133 counts, in
particular, for contravening sections 2, 4, 5 and 6 of the Prevention of Organised Crime
3 According to the directions issued by this Court, dated 22 October 2018, “the applications are to be treated as if
consolidated”.
MHLANTLA J
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Act (POCA),4 sections 143 and 145 of the Mining Rights Act ,5 as well as section 4 of
the Precious Metals Act.6 The charges related to procuring, refining and disposing of
unwrought precious metals (gold) for the benefit of the enterprise and its associates and
laundering the benefits or profits into the financial system by purchasing motor vehicles,
luxury items and immovable property through an enterprise. The charges also included
predicate offences such as theft.
Litigation history
High Court
[6] At the commencement of the trial, all the accused pleaded not guilty and elected
not to disclose the basis of their defence. The criminal proceedings, including the actual
trial, spanned for a period of six years, from 2008 to 2014, and 82 state witnesses
testified. The trial, which com menced in June 2012 was postponed numerous times,
mostly at the instance of the accused. They repeatedly requested that the trial be
postponed to enable them to obtain a legal representative of their choice or due to
financial constraints . The accused were initially represented by Advocate Nel. In
February 2014, Adv ocate Nel withdrew as their legal representative due to the
applicants' failure to pay for his services. The High Court, per Daffue J , then made
arrangements with the Bloemfonte in Justice Centre to provide legal assistance to the
accused.
[7] An advocate confusingly also called Advocate Nel, then began to act for the
accused in March 2014. To avoid confusion, the High Court referred to the second
Advocate Nel as Mr Pieter Nel and I will do the same. The accused, however,
terminated Mr Pieter Nel’s mandate in early June 2014 while he was cross -examining
the last witness for the State, Officer Flynn. The accused stated that they were in the
process of raising funds and wished to re-engage their previous legal counsel. The High
4 121 of 1998.
5 20 of 1967.
6 37 of 2005.
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Court granted another postponement but when the applicants again appeared
unrepresented, the High Court allowed evidence to be led and the State closed its case
on 25 June 2014.
[8] The accused did not cross-examine the state witness and refused to testify in their
defence. Instead, they sought a postponement for a period of eight months until
February 2015 to allow them to raise funds to obtain a legal representative of their
choice. This was refused. On 28 July 2014, the State requested the Court to invoke the
provisions of section 342(A)(3)(d) of the Criminal Procedure Act7 (CPA), and close the
accused’s cases on their behalf. The trial Court refused but postponed the trial for two
weeks to allow the accused to consider their position. On 11 August 2014, and when
the accused persisted with their application for a postponement of the trial, the trial
Court held that the unreaso nable delays constituted exceptional circumstances as
required by section 342(A)(3)(d) and (4)(a) and accordingly, it issued an order that the
accused’s cases were deemed closed.
[9] As a result, the evidence adduced on behalf of the State was the only evidence
that was before the High Court as the accused failed to testify . The High Court held
that the accused’s defence amounted to a bare denial. It evaluated evidence from the
State witnesses, who for the most part were members of the task team, in relation to the
following aspects, among others:
(a) eye-witness accounts of some of the accused being seen with packages
containing pieces of unwrought gold on farms near the mine;
(b) eye-witness accounts and arrests following observations of illegal gold
refining by the task team;
(c) notebooks belonging to the accused containing notes about the gold
syndicate;
(d) the accused being in possession of large amounts of cash;
7 51 of 1977.
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(e) large amounts of money deposited in the banking accounts of the accused, in
spite of the fact that many of the accused were unemployed or employed in
low-income jobs;
(f) the value and time of purchase of assets held by the accused; and
(g) the tax records of the accused.
[10] After evaluating the evidence, the High Court held that the applicants were
involved in illegal activities at certain smelt houses where gold refining had been
conducted, and in money laundering activities, in the course of which certain
immovable properties and vehicles had been acquired. The High Court found the
applicants guilty in respect of some of the charges. Mr Ramabele was found guilty on
various counts including : racketeering; and unlawful acquisition, possession, or
disposal of unwrought gold. On 17 October 2014, he was sentenced to an effective term
of 10 years’ impriso nment. Mr Msimango was found guilty on numerous counts
including: racketeering; managing and participating in an enterprise ; 15 counts of
money laundering; various counts of theft ; and unlawful acquisition, possession, and
disposal of unwrought gold. A sentence of 15 years was imposed in respect of the
conviction relating to racketeering . The sentences in respect of the other convictions
were ordered to run concurrently with the 15-year term.
[11] The applicants and some of their co -accused, lodged an application for leave to
appeal to a Full Court of the High Court. This was refused.8 They then petitioned the
Supreme Court of Appeal for leave to appeal.
[12] On 31 October 2014, the State applied to t he High Court for leave to appeal
against sentence . The High Court granted leave to appeal to the Supreme Court of
Appeal.
8 Director: Public Prosecutions Free State v Msimango unreported jud gment of the Free State High Court
Bloemfontein, Case No (100/2008) [2015] (27 March 2015) (High Court leave to appeal judgment).
MHLANTLA J
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Supreme Court of Appeal
[13] The applicants’ petition for leave to appeal was dismissed. Mr Ramabele then
lodged an application for the reconsideration of the order in terms of section 17(2)(f) of
the Superior Courts Act.9 That application was dismissed on 12 September 2016 on the
basis that there were no exceptional circumst ances that would justify leave to appeal
being granted. Notably, t he Supreme Court of Appeal did not have the benefit of
perusing the record.
[14] On 3 November 2017, the Supreme Court of Appeal dismissed the State’s
appeal. The Minister of Justice and Correctional Services , the second respondent ,
applied to the S upreme Court of Appeal for leave to appeal and that application was
similarly dismissed on 3 May 2016.
In this Court
[15] Initially in 2017, in CCT 232/17, when Mr Ramabele filed an application for
direct access to this Court, he was unrepresented.10 Consequently, this Court requested
pro bono representation for him from the Free State Bar. Advocate Wright and
Advocate Nkhahle were appointed. This Court is grateful for their assistance.
Mr Ramabele’s legal representatives were furnished with a copy of the record with the
assistance of this Court. On 2 May 2018, we also issued directions inviting the parties
to file supplementary affidavits and submissions should they so wish. Pursuant t o the
directions, the applicant filed a supplementary affidavit and written submissions. The
respondent filed an answering affidavit and written submissions. The applicant’s
submissions echoed his founding affidavit in that they reiterated alleged problems
regarding the trial proceedings in the High Court and reinforced the arguments made in
the applications he had filed as an individual, and together with his co-accused.
9 10 of 2013.
10 The application was couched as an application for direct access to this Court but was actually an application for
leave to appeal.
MHLANTLA J
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[16] In CCT 207/18 , when the Msimango applicants learnt that Mr Ramabele had
already fil ed a similar application, they wrote to the Registrar of this Court on
27 February 2018 seeking the Court’s direction on how to proceed with this matter.
They sought to mitigate the cost and resources of providing a voluminous record for ,
and adjudicating, the two similar matters separately. They were advised by this Court
that their application would be considered together with CCT 232/17 (the Ramabele
application). The Msimango applicants had a legal advisor, Mr André Steenkamp, who
agreed to assist them with their application to this Court on a pro bono basis. We thank
him for his assistance.
Applicants’ submissions
[17] Mr Ramabele submits that his right to a fair trial, in particular section 35(3) of
the Constitution, has been infringed in various ways . First, he submits that there was
insufficient evidence against him to warrant a conviction as there was no camera footage
of him stealing the gold. Second, he submits that the trial Judge did not properly analyse
or evaluate the evidence of several state witnesses who testified during the trial, and
whose testimony supported his innocence. Third, the trial Judge was biased and this is
demonstrated by his refusal to grant the applicant a postponement to allow him to
prepare his defence, in spite of the fact that the High Court had granted numerous
postponements to the State between 2008 and 2014. In this regard, the applicant also
asserts that the trial Judge failed to explain the implications of section 342A of the CPA
to him.
[18] Furthermore, Mr Ramabele submits that: (a) he was not allowed an opportunity
to gather finances to pay a legal representative of his choice and to ensure continued
representation to assist him in cross-examining the investigating officer, to guide him
in his own testimony or to argue the merits of his case; (b) section 342A(3)(d) of the
CPA was not explained to him so that he could properly oppose the State’s case; and
(c) he was denied an o pportunity to appropriately present his case through leading
evidence and to challenge the weight accorded to circumstantial evidence, the elements
of various crimes, the burden of proof in terms of section 155 of the Precious Metals
MHLANTLA J
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Act and the intricacie s of POCA. The applicant and his co -accused terminated their
legal aid representative’s mandate before cross-examining the witnesses. They were
therefore unrepresented when the time came for th em to cross-examine the witnesses
and were thus unable to cro ss-examine those witnesses due to their lack of
representation and understanding of legal principles. Finally, the applicants submit that
the trial Judge was unhelpful in this regard which, in turn, was detrimental to their case.
[19] The Msimango applicants submit that that their right to a fair trial, including their
right to appeal to a higher court , was compromised. Their argument is similar to the
one raised by Mr Ramabele. The y argue that the manner in which the provisions of
section 342A(3)(d) of the CPA were applied was unfair and unjust. The y also submit
that the trial Judge did not properly explain the provisions of section 342A(3)(d) and
the subsequent implications to the applicants. And that to this end, t he trial Judge did
not assist the unrepresented, indigent and lay accused persons, who did not understand
the application and its implications of legal principles when they were required to
address the High Court on section 342A. The State therefore gained an unfair advantage
against the applicants that is contrary to the constitutional principle of “equality of
arms”.
[20] Moreover, the Msimango applicants submit that the High Court’s refusal to
allow them to consult and obtain the services of the legal representatives of their choice
was not judicious and that the services of Mr Pieter Nel were forced on them in a bid to
ensure that “the trial matter be finalised”. The trial Judge did not consider the reasons
why the applicants terminated Mr Pieter Nel’s services. They contend that the tria l
Judge erred in finding that they had employed delaying tactics and were unconcerned
with finalising the matter. The trial record was voluminous and the trial Judge was in
a rush to finalise the matter which did not allow the applicants an opportunity to be
properly represented. The applicants were unable to cross-examine the state witnesses
in circumstances where the trial Judge knew that they were untrained, unschooled,
unsophisticated people who could not defend themselves considering the complexity of
the trial. As a result, they allege that they were deprived of an opportunity to put up an
MHLANTLA J
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effective defence, as envisaged by the Constitution which guarantees fair and just trial
procedures.
[21] Together, the applicants submit that these instances reveal that their section 35
rights to a fair trial were infringed insofar as they did not have adequate time and
facilities to prepare a defence; to choose and be represented by a legal practitioner of
their choice , and to be informed of this right promptly; to adduce and challenge
evidence; to be tried in a language they understood or if that was not practicable, to have
the proceedings interpreted in their language; their right of appeal to, or review by, a
higher court was compromised as per sections 35(3)(b), (f), (k), (i) and (o) respectively
as well as section 35(4). Lastly, the applicants contend that their section 9(1) right to
equality and equal benefit and protection of the law was infringed.
Respondent’s submissions
[22] The respondent submits that the application should be dismissed as no
constitutional issue was raised in the High Court and Supreme Court of Appeal, and the
requirements for the grant of direct a ccess in this Court have not been met.
Alternatively, the respondent submits that, if this Court finds that a constitutional issue
has been raised by the applicant, the following factors are relevant: (a) the same grounds
of appeal were c onsidered by the High Court and the Supreme Court of Appeal and
leave to appeal was denied; (b) the applicants had a fair trial and were not prejudiced
by the absence of a legal representative at the later stage of the trial, bearing in mind
that they were granted several opportunities to obtain a legal representative; (c) they
suffered no prejudice and their defence throughout the trial was merely one of
denial; and (d) the High Court did not err on the law or facts by convicting the
applicants.
[23] The respondent submits tha t the delay was entirely due to the fault of the
applicants. Their first appearance was on 28 November 2008 and the trial was set to
begin in March 2009. The applicants brought a separate application in the High Court
for legal fees to be made available following an order of restraint against realisable
MHLANTLA J
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property. This application resulted in the trial only beginning in June 2012. The
respondent contends that the applicants had sufficient time during this period to raise
funds for litigation. Furthermor e, the suggestion to conduct the trial in a “piecemeal
fashion” was balanced against the rights of the erstwhile accused 5 and 9 who had been
in custody for six years since 2008. The respondent claims that the right to a fair trial
must be considered in l ight of the circumstances of the trial. It was in the interests of
justice for the matter to be finalised, especially considering the long delays which had
already occurred.
[24] Finally, the respondent submits that the applicants refused to make admissions
in order to shorten the trial and lengthy cross -examinations on facts that later became
common cause, and that this in effect lengthened the trial. The prosecutor served a
notice in terms of section 212B of the CPA on the defence in relation to undisputed
facts.11 This was ignored by Advocate Nel but later accepted by Mr Pieter Nel after
11 Section 212B provides:
“Proof of undisputed facts:
(1) If an accused has appointed a legal adviser and, at any stage during the proceedings, it appears
to a public prosecutor that a particular fact or facts which must be proved in a charge against an
accused is or are not in issue or will not be placed in issue in criminal proceedings against the
accused, he or she may, notwithstanding section 220, forward or hand a notice to the accused
or his or her legal adviser setting out that fact o r those facts and stating that such fact or facts
shall be deemed to have been proved at the proceedings unless notice is given that any such fact
will be placed in issue.
(2) The first -mentioned notice contemplated in subsection (1) shall be sent by certified mail or
handed to the accused or his or her legal adviser personally at least 14 days before the
commencement of the criminal proceedings or the date set for the continuation of the
proceedings or within such shorter period as may be condoned by the court or agreed upon by
the accused or his or her legal adviser and the prosecutor.
(3) If any fact mentioned in such notice is intended to be placed in issue at the proceedings, the
accused or his or her legal representative shall at least five days before the com mencement or
the date set for the continuation of the proceedings or within such shorter period as may be
condoned by the court or agreed upon with the prosecutor deliver a notice in writing to that
effect to the registrar or the clerk of the court, as the case may be, or orally notify the registrar
or the clerk of the court to that effect in which case the registrar or the clerk of the court shall
record such notice.
(4) If, after receipt of the first-mentioned notice contemplated in subsection (1), any fact mentioned
in that notice is not placed in issue as contemplated in subsection (3), the court may deem such
fact or facts, subject to the provisions of subsections (5) and (6), to have been sufficiently proved
at the proceedings concerned.
(5) If a notice was forwarded or handed over by a prosecutor as contemplated in subsection (1), the
prosecutor shall notify the court at the commencement of the proceedings of such fact and of
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consulting with the applicants and their associates. The respondent contends that the
charges were straightforward and not technical and the High Court applied the
principles of law in considering the evidence as a whole. The matter has a six-year
history and the record should be considered in this context.
Issues
[25] This Court must determine the following issues:
(a) Condonation.
(b) Leave to appeal.
(c) Fair trial: Refusal to grant further postponement for legal representation of
choice.
(d) Bias.
(e) The implementation of section 342A of the CPA.
Condonation
[26] Mr Ramabele’s application was filed in this Court in September 2017. It is out
of time by approximately 14 months. Mr Ramabele states that, after his application for
reconsideration was refused, he tried to raise funds with the assistance of his family to
instruct an attorney, but to no avail. He was subsequently advised to approach the
Bloemfontein Justice Centre. The Bloemfontein Justice Centre initially agreed to help,
but later informed him that it did not fund applications to the Constitutional Court.
Furthermore, the delays are occasioned by the fact that he is incarcerated.
[27] The application for the Msimango applicants was lod ged in July 2018. Due to
financial constraints, the Msimango applicants submit that they struggled to obtain the
the reaction thereto, if any, and the court shall thereupon institute an investigat ion into such of
the facts which are not disputed and enquire from the accused whether he or she confirms the
information given by the prosecutor and whether he or she understands his or her rights and the
implications of the procedure and where the legal adviser of the accused replies to any question
by the court under this section, the accused shall be required by the court to declare whether he
or she confirms such reply or not.
(6) The court may on its own initiative or at the request of the accused order o ral evidence to be
adduced regarding any fact contemplated in subsection (4).”
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full record and appoint legal representatives. Eventually, their legal advisor agreed to
assist them with their application to this Court where possible, despite the fact that
applicants lacked sufficient funds. Their incarceration in different correctional centres
around the country made outside communication and consultations difficult and they
were assisted by family and friends to brief their current counsel. As mentioned above,
when they became aware that Mr Ramabele had already filed a similar application, the
Msimango applicants wrote to the Registrar of this Court on 27 February 2018 seeking
a directive on how to proceed with this matter.
[28] On the other hand, the respondent opposes the condonation application. It argues
that the applicants have flouted the rules of the High Court, the Supreme Court of
Appeal, and this Court, and it is not in the interests of justice to grant condonation.
[29] In my view, the explanation for the delay is satisfactory. The applicants are
incarcerated in various correctional centres across the country and the logistical
problems would indeed prove very difficult for them to consult with their legal team.
Furthermore, they experienced financial constraints due to the fact that they are
sentenced prisoners.
Jurisdiction and leave to appeal
[30] It is trite that for leave to appeal to be granted, an appli cant must show that the
matter falls within the jurisdiction of this Court and that the interests of justice warrant
the granting of leave. 12 This Court’s jurisdiction is engaged when a matter raises a
constitutional issue or an arguable point of law of general public importance that ought
to be considered by this Court.13
[31] The applicants have approached this Court, on a variety of fronts, to v indicate
their rights to a fair trial in terms of section 35 of the Constitution coupled with the right
12 General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 JDR 1194 (CC); 2019 (8) BCLR 919
(CC) at para 35.
13 Section 167(3)(b)(i) and (ii) of the Constitution.
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to equality, in particular equal protection and benefit of the law pursuant to section 9(1)
of the Constitution.
[32] The right to a fair trial has been described by this Court as a “comprehensive and
integrated right”14 and is “not to be equated with what might have passed muster in our
criminal courts before the Constitution came into force”. 15 This Court has indicated
that a matter engages this Court’s juri sdiction when it implicates the rights to equality
before the law and to a fair trial, as these are fundamental rights entrenched in the
Bill of Rights.16
[33] However, the issues relating to whether there was sufficient evidence , and
whether the trial Judge pr operly analysed the evidence of several state witnesses, falls
outside the scope of this Court’s jurisdiction. This is because mere factual disputes do
not amount to “constitutional matters” as envisaged by section 167(3)(b)(i). 17
Disagreements with other courts as to the assessment of facts are not sufficient to
constitute a breach of rights in the Bill of Rights, and no constitutional right is engaged
when applicants dispute the findings of fact made by lower courts.18
[34] But, an issue concerning judicial bias constitute s a constitutional matter since
“the impartial adjudication of disputes in both criminal and civil cases is a ‘cornerstone
of any fair and just legal system”19 and “an impartial judge is a fundamental prerequisite
14 S v Dzukuda; S v Tshilo [2000] ZACC 16; 2000 (4) SA 1078; 2000 (11) BCLR 1252 (CC) at para 9.
15 S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at para 16.
16 S v Mhlongo; S v Nkosi [2015] ZACC 19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC) at para 17 and
affirmed in S v Molaudzi [2015] ZACC 20; 2015 (2) SACR 341 (CC); 2015 (8) BCLR 904 (CC) at para 13.
Although these cases were raised in the context of extra -curial statements by an accused against a co -accused in
a criminal trial, they are equally apposite in this context.
17 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR (CC) 36 at paras 15 and 39.
18 Id at para 15 where this Court noted that “whether evidence is sufficient to justify a finding of guilt beyond
reasonable doubt cannot in itself be a constitutional matter . . . disagreement with the [High Court’s] assessment
of the facts is not sufficient to constitute a breach of the right to a fair trial”.
19 S v Basson [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC) at para 21. See further, in the
context of recusals, South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd
(Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC); 2000 (8) BCLR 886 (CC) at para 2
and President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4)
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for a f air trial”.20 Furthermore, when it comes to the issue of unreasonable delays in
criminal proceedings, this Court has accepted that “[t]he right to a trial within a
reasonable time is expressly cast as an incident of the right to a fair trial”.21 Therefore,
given these specific issues, this Court’s jurisdiction is engaged as this matter raises
constitutional issues.
[35] I turn to the interests of justice enquiry, which involves the weighing up of
various factors where reasonable prospects of success are not determinative but carry
more weight than other factors. 22 The other factors include the nature of the dispute,
the importance of the issue and whether a decision by this Court is desirable. 23 While
this Court has pronounced on the importance of unreasonable d elays in criminal
proceedings in terms of section 25(3)(a) of the interim Constitution and section 35(3)(d)
of the Constitution, 24 it is yet to properly engage with section 342A of the CPA. In
Wild25 this Court said:
“Commendably, the Legislature has take n a major step in remedying the scourge of
delays in criminal cases by furnishing criminal courts with practical tools that can be
SA 147 (CC); 1999 (7) BCLR 725 (CC) at para 30 where this Court held that the application for recusal raised a
constitutional matter. See further S v Basson [2005] ZACC 10; 2007 (3) SA 582 (CC); 2005 (12) BCLR 1192
(CC) (Basson 2) at para 26 which states that:
“As far as criminal trials are concerned, the requirement of impartiality is also closely linked to
the right of an accused person to a fair trial, which is guaranteed in section 35(3) of the
Constitution.”
20 S v Le Grange [2008] ZASCA 102; 2009 (2) SA 434 (SCA) at para 21.
21 Sanderson v Attorney-General, Eastern Cape [1997] ZACC 18; 1998 (2) S A 38 (CC); 1997 (12) BCLR 1675
(CC) at paras 21 and 28. Reiterated in Van Heerden v National Director of Public Prosecutions [2017] ZASCA
105; 2017 (2) SACR 696 (SCA) at para 47.
22 General Council of the Bar of South Africa above n 12 at para 36.
23 De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) [2003] ZACC 19; 2004 (1) SA
406 (CC); 2003 (12) BCLR 1333 (CC) at para 3; Ingledew v Financial Services Board: In Re Financial Services
Board v Van Der Merwe [2003] ZACC 8; 2003 (4) SA 584 (CC); 2003 (8) BCLR 825 (CC) at para 31; National
Education Health and Allied Workers Union v University of Cape Town [2002] ZACC 27 ; 2003 (3) SA
1 (CC); 2003 (2) BCLR 154 (CC) at para 28; Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002
(8) BCLR 771 (CC) at para 14; Islamic Unity Convention v Independent Broadcasting Authority [2002] ZACC 3;
2002 (4) SA 294 (CC); 2002 (5) BCLR 433 (CC) at paras 15-6.
24 Sanderson above n 21 and Wild v Hoffert NO [1998] ZACC 5; 1998 (3) SA 695 (CC); 1998 (6) BCLR 656
(CC) at paras 31 - 32.
25 Wild above n 24.
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used in furthering the speedy trial objectives of section 25(3)(a). A new section 342A
has been introduced. . . . 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 section 25(3)(a) . . . . 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))”.26
[36] It may, therefore, be worthwhile for this Court to engage with this novel
provision, examine how other courts have grappled with it thus far, and consider its
impact on criminal proceedings and the criminal justice system more broadly. 27 Thus,
it is in the interests of justice to grant leave to appeal.
Merits of appeal
[37] Following a thorough reading of the record, I am of the view that the applicants’
allegations, that they did not have a fair trial , have no merit for the reasons provided
below.
Application for postponement for legal representation of choice
[38] Insofar as the application for the postponement is concerned, the record revealed
the following: The matter, and eventually the trial itself, was postponed on numerous
occasions – either at the instance of the defence or that of the State. The parties agreed
that the first trial dates be from 2 to 31 March 2009 and 2 to 29 May 2009. However,
it was brought to the attention of the trial Court that the legal representatives had not
been properly placed with the requisite funds to enable them to proceed to act for the
26 Wild above n 24 at para 32.
27 Sanderson above n 21 at para 24 states that:
“The right to a trial within a reasonable time also seeks to render the criminal justice system
more coherent and fair by mitigating the tension between the presumption of innocence and the
publicity of trial.”
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applicants and their co-accused. This led to the trial being postponed for a year and the
parties agreed that the trial would be heard from 27 July 2010 to 30 September 2010.
The defence wanted to apply for funds to be made available for t heir legal expenses
from those funds that had been part of the preservation order. This resulted in the trial
being postponed again. The application for funds to be made available was heard in
2011. A new trial date was arranged from 11 June 2012 to 3 August 2012.
[39] The trial eventually commenced on 11 June 2012. Due to the complexity and
magnitude of the case, it became apparent that the trial would not be concluded within
the allocated period. On 3 August 2012, it was agreed that the continuation of the trial
would be conducted from April to August 2013. Initially, the applicants had engaged
their own legal team consisting of an attorney Mr Schoeman and Advocate Nel. The
State called 82 witnesses, and most of these were cross -examined by Advocate Nel.
During May 2013, it appeared that the applicants would not be able to retain the legal
services of Advocate Nel due to lack of funds. This crisis was averted when the defence
team managed to secure funds and the trial continued until its postponeme nt on 23
August 2013. The trial Court declared that the matter should be finalised and that the
trial would proceed in 2014 until its conclusion. Advocate Nel reported that his clients
would not have sufficient funds to cover his expenses for the entire period. The trial
was postponed to January 2014 to ascertain whether the defence had funds to enable
their counsel to carry on acting for them.
[40] On 27 January 2014, there was no clear indication of the financial circumstances
of the accused and as a result, the High Court postponed the matter to 26 February 2014.
On that day, Advocate Nel indicated his unwillingness to carry on with the case where
he was not assured that he would be paid for the duration of the trial. He thus withdrew
his legal services.
[41] As mentioned above, the trial Judge had approached the Bloemfontein Justice
Centre to consider providing legal assistance in the event that the legal team withdrew
its services. When this became a reality, Mr Pieter Nel was instructed by the
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19
Bloemfontein Justice Centre to represent the accused. He too carried on with the
defence case and the cross -examination of the remaining witnesses. On 6 June 2014,
the applicants indicated that they were not happy with the services of Mr Pieter Nel as
they thought he was not up for the task and did not properly execute their instructions.
Mr Ramabele further noted that Mr Pieter Nel was not properly prepared to conduct
their defence as he had very little time to peruse the voluminous record. The accused
said that they would instruct their own counsel as they had raised enough funds to pay
the original legal team. This occurred wh ile Mr Pieter Nel was busy with the cross -
examination of the last state witness, Officer Flynn. Mr Pieter Nel thus withdrew. The
trial was postponed for two weeks to 17 June 2014 to allow the applicants the
opportunity to arrange legal representation.
[42] On that day, no legal representative appeared on behalf of the defence. Instead,
the applicants made a rather strange request. They appl ied to have the trial postponed
for a period of five months to enable them to return to their respective employment or
businesses. This would enable them to earn an income and raise funds to engage another
legal representative. They proposed that the Hig h Court sits intermittently – for
example, the trial would run for three weeks and thereafter be postponed for another
five months. This would go on until the required funds were secured and until the
conclusion of the trial.
[43] However, there was no indica tion that the applicants had approached any
attorney or counsel who would be prepared to help them. There was also no certainty
whether they would be able to raise funds , which were estimated to be in excess of
R1 million.
[44] The High Court dismissed the application and postponed the trial for a week until
23 June 2014. On resumption of the trial, the applicants were still unrepresented. They
informed the High Court that they were not able to raise the funds within the short
period of time. Their previous attorney, Mr Schoeman, indicated he would not risk
coming to court without any proof that he would be paid. The trial continued and the
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State closed its case on 25 June 2014. Thereafter, the matter was postponed for a month
until 28 July 2014 for the defence case.
[45] On that day, the applicants indicated that they were not prepared to testify and
sought a postponement until February 2015 – in effect, they persisted with their request
that the trial Court sits for three weeks, adjourns for five months and then returns for
another sitting. Still, there was no hope that a legal representative would be available.
This application was dismissed.
[46] The right to legal representation during a trial is a fu ndamental right of an
accused and is inherent in the right to a fair trial.28 Section 35(3)(f) provides––
“a right to a fair trial, which includes the right . . . to choose, and be represented by, a
legal practitioner, and to be informed of this right promptly”.
[47] Generally, when legal assistance is appointed for the accused by the State, they
ought to accept the legal representation. They do not necessarily have the right to select
the legal representative appointed for them.29
[48] Furthermore, there is al so a duty placed upon Judicial officers to afford the
accused an opportunity to obtain legal representation as well as a duty to inform the
accused that if their legal representative withdraws, they have a right to apply for a
postponement to enable anothe r legal representative to be appointed. 30 This
constitutional guarantee requires that an accused is given a fair and reasonable
opportunity to obtain legal representation. In order to consider what constitutes a fair
28 Joubert Criminal Procedure Handbook 12 ed (Juta, Cape Town 2017) at 97-8.
29 In the context of section 25(3)(e) of the Interim Constitution see this Court’s judgment in S v Vermaas, S v Du
Plessis [1995] ZACC 5; 1995 (3) SA 292; 1995 (7) BCLR 851 (CC) at para 15. The right to have legal
representation at State expense does not include the right to have a legal representative of choice. See S v Halgryn
[2002] ZASCA 59; 2002 (2) SACR 211 (SCA) at para 12.
30 See Currie and De Waal Bill of Rights Handbook 6 ed (Juta, Cape Town 2018) at 771-2 and Mafongosi v
Regional Magistrate, Mdantsane 2008 (1) SACR 366 (Ck) at para 24.
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and reasonable opportunity, there are a myriad of factors to take into account. 31 This
should be considered on a case by case basis, and failure to do so in certain
circumstances may very well result in irregularities. 32 However, the right to be
represented by a legal representative of the acc used’s own choice does not include: a
right to have an ongoing trial postponed for a lengthy period in order to allow an accused
an opportunity to earn and save sufficient income to secure the services of a particular
legal representative of their choice, since this may go beyond the bounds of
reasonableness.33
[49] In my view, the trial Court was correct in refusing a further postponement of the
trial. It had afforded the applicants ample time to arrange their finances. When it
became apparent that they had financial constraints, the High Court referred the accused
to the Bloemfontein Justice Centre to apply for legal aid. This was provided to them.
The High Court still granted them some latitude when they expressed their displeasure
at being represented by Mr Pieter Nel. The trial was postponed to enable them to engage
their own legal team and when that failed to materialise, the High Court correctly
proceeded with the trial.
[50] It is clear from the record that the trial Judge explained the rights of the applicants
and their co-accused and the purpose of cross-examination. They elected not to cross -
examine the witnesses. It is clear that this was most likely a ploy on their part to delay
the trial. They sought to dictate the pace of litigation and this was untenable. Their
actions had an adverse impact on their co -accused, who remained in custody for six
years, during the entire period of these postponements until the trial was finalised. It
31 Factors include: the gravity of the charges; the availability of sufficiently experienced practitioners; the amount
of preparation required and the complexity of the case; the interests of the complainants, the witnesses and the co-
accused as well as the desirability of disrupting court rolls and delaying the disposal of criminal cases. See further
K v Regional Court Magistrate N.O. 1996 (1) SACR 434 (E); S v Stefaans 1999 (1) SACR 182 (C); S v M [2004]
2 All SA 74 (D); S v Tsotetsi 2003 (2) SACR 623 (W); and Pretorius v Minister of Correctional Services 2004
(2) SA 658 (T).
32 See for instance S v Van Wyk 1972 (1) SA 787 (A) and S v Seheri 1964 (1) SA 29 (A).
33 In S v Swanepoel 2000 (7) BCLR 818 (O) that Court considered a request for postponement of sever al months
(at least seven months) in order to enable the accused to earn and save sufficient funds to secure the services of a
particular advocate to defend the accused. This was in the context of a trial that had been set down for hearing.
MHLANTLA J
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was unreasonable for the applicants and their co -accused to expec t the trial Court to
grant the postponement on their terms , which would have entailed the trial being
conducted for three weeks and postponed for a period of five months. This was a
peculiar request and if granted, the delay would have been inordinate.
Bias
[51] Turning to the judicial bias challenge, impartiality is essential to the proper
discharge of the duties of the judicial office and is central to the administration of
justice. It applies not only to the decision itself but also to the process by which the
decision is made. The word “impartial” connotes absence of bias, actual or perceived.
Impartiality must exist as a matter of fact and as a matter of reasonable perception.34 If
a judicial officer is perceived to be partial, that perception is likely to aggrieve some
persons and leave a sense of injustice to the affected parties and society at large, thereby
diminishing confidence in the judicial system.35 The test to determine whether a judicial
officer should be excluded from hearing a case by reason of a reasonable apprehension
of bias was articulated by this Court in SARFU:36
“The question is whether a reasonable, objective and informed person would on the correct facts
reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the evidence and the submissions
of counsel.”37
34 Van Rooyen v The State (General Council of the Bar of South Africa Intervening) [2002] ZACC 8; 2002 (5) SA
246 (CC); 2002 (8) BCLR 810 (CC) at paras 32-5.
35 See Basson 2 above n 19 at para 27 and Van Rooyen id at para 32 which cites with approval the Canadian
Supreme Court case Valente v The Queen [1985] 2 SCR 673 at 689d-f which states:
“Both independence and impartiality are fundamental not only to the capacity to do justice in a
particular case but also to in dividual and public confidence in the administration of justice.
Without that confidence the system cannot command the respect and acceptance that are
essential to its effective operation. It is, therefore, important that a tribunal should be perceived
as independent, as well as impartial, and that the test for independence should include that
perception.”
36 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA
147 (CC); 1999 (7) BCLR 725 (CC) (SARFU).
37 Id at para 48.
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[52] In this matter, the trial Judge was inclined to make comments to the accused such
as “I’m not interested in getting you somebody else to attend to your matter you will
carry on in person”; and “I don’t care what you do. . . this matter is not postponed for
you to get legal representation”. The applicants described the remarks as an indication
of being unfair or of bias in favour of the State. The trial Judge did indeed make use of
inappropriate language , particularly when expressing his frustration at the delays
occasioned by the applicants and their co-accused. That, however, does not amount to
bias or the perception of bias when regard is had to what transpired.38
[53] In fairness to the trial Judge, he was pushed to the limit by the accused, who kept
requesting postponements and insisting on having a legal representative of their choice
despite the fact that they lacked funds and had been provided with State appointed
counsel. I am satisfied that the trial Judge was not biased against the ac cused nor was
his conduct of the proceedings such as to provoke a suspicion of bias. The High Court
demonstrated an ability to conduct an objective analysis based on the facts. The High
Court did not readily accept the evidence of the State at face value but evaluated it. This
is evident from the judgment, and at the end the trial Judge acquitted the applicants on
some of the charges.
Section 342A application
[54] The applicants submit that the trial Judge misdirected himself when he applied
the provisions of section 342A of the CPA and that in the process: he failed to assist the
applicants, who were unrepresented at the time; he failed to explain the provisions to
them; and incorrectly found that exceptional circumstances existed as contemplated in
section 342A(4).
[55] The relevant part of section 342A, which is titled “unreasonable delays in trials”
reads:
38 See [38] to [45].
MHLANTLA J
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“(1) A court before which criminal proceedings are pending shall investigate any delay in
the completion of proceedings which appears to the court to be unreasonable and which
could cause substantial prejudice to the prosecution, the accused or his or her legal
adviser, the State or a witness.
(2) In considering the question whether any delay is unreasonable, the court shall
consider the following factors:
(a) the duration of the delay;
(b) the reasons advanced for the delay;
(c) whether any person can be blamed for the delay;
(d) the effect of the delay on the personal circumstances of the accused
and witnesses;
(e) the seriousness, extent or complexity of the charge or charges;
(f) actual or potential prejudice caused to the State or the defence by the
delay, including a weakening of the quality of evidence, the possible
death or disappearance or nonavailability of witnesses, the loss of
evidence, problem s regarding the gathering of evidence and
considerations of cost;
(g) the effect of the delay on the administration of justice;
(h) the adverse effect on the interests of the public or the victims in the
event of the prosecution being stopped or discontinued;
(i) any other factor which in the opinion of the court ought to be taken
into account.
(3) If the court finds that the completion 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–
. . .
(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.”
[56] The overarching aim of section 342A is to “provide courts with a statutory
mechanism to avoid unreasonable delays in the finalisation of criminal proceedings”.39
Section 342A empowers a court to examine the reasons for the delay. 40 In order to
39 Du Toit Commentary on the Criminal Procedure Act (Juta & Co Ltd, Cape Town 2020) at 29.
40 Id at 30.
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ascertain whether the delay is reasonable or not, courts consider an array of factors as
stipulated in section 342A(2). In the event the court finds that the delay is unreasonable,
section 342A(3) provides an open list of potential remedies.
[57] It has been said that section 342A is “the vehicle for giving practical application
to the section 35(3)(d) right to h ave a trial begin and conclude without unreasonable
delay”.41 Therefore, when considering section 342A , one must be mindful of
section 35(3)(d) of the Constitution which entrenches an accused’s constitutional right
to an expeditious trial. This section provides:
“Every accused person has a right to a fair trial, which includes the right—
. . .
(d) to have their trial begin and conclude without unreasonable delay”.
[58] The seminal case on unreasonable delays in criminal proceedings, before
section 342A came into operation, is Sanderson.42 In that matter, this Court recognised
that prejudice to an accused resulting from an unreasonable delay could take many
forms; delays which could jeopardise the fairness of the trial itself and the more general
delay-related prejudice not having a bearing on the trial itself. 43 This Court further
recognised the 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.44
[59] This Court has proffered guidance to determine whether a particular lapse of time
is reasonable.45 With reference to foreign law including American jurisprudence, such
41 Currie and De Waal above n 30 at 798.
42 Sanderson above n 21.
43 See Wild above n 24 at para 4 for a summary of Sanderson id. The latter type of prejudice can be considered
in two broad categories: first, prejudice related to an awaiting trial person’s loss of personality liberty (e.g.
resulting from pre -trial detention or restrictive bail conditions), and second, a whole range of disadvantages
inherent in the public nature of our criminal justice system, such as loss of reputation, ostracism and loss of
employment.
44 Sanderson above n 21 at para 25 -27 relying on the Canadian case of R v Morin (1992) 8 CRR (2D) 193 at 202.
45 Wild above n 24 at para 6: reiterated Sanderson id which stated that:
MHLANTLA J
26
as Barker v Wingo,46 this Court in Sanderson stated that the inquiry requires a flexible
balancing test.47 However, the Court accepted that the specific South African context
requires its own home-baked approach.48 Therefore, the approach is as follows: courts
ought to consider whether a lapse of time is reasonable by considering an arr ay of
factors including: (a) the nature of the prejudice suffered by the accused; (b) the nature
of the case; and (c) systemic delay. Courts have developed further factors such as the
nature of the offence 49 as well as the interests of the family and / or the victims of the
alleged crime.50 A proper consideration of these factors requires a value judgment with
reasonableness as the qualifier.51 Furthermore, it is a fact specific inquiry.52
[60] Therefore, the fact of a delay cannot automatically constitute an infringement of
the right to a fair trial. 53 Whether there has been an “unreasonable delay” requires a
value judgment by applying the factors to the specific circumstances of each case.
[61] A proper reading of section 342A as a whole reveals that the section requires an
investigation into the reasonableness of the delay. Courts have grappled with this
provision and held that an enquiry is necessary in order to sufficiently consider the
reasonableness of the delay. For instance, in Ndibe54 it was held:
“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 . . . 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”.
46 407 US 514, 538 (1972) at 529 and 530.
47 Id at para 25. Kriegler J also accepts that South African courts have utilised the Barker v Wingo balancing test
to interpret and apply section 25(3)(a) see fn 21.
48 Id at para 6.
49 Bothma v Els [2009] ZACC 27; 2010 (2) SA 622 (CC); 2010 (1) BCLR 1 (CC) at para 38.
50 Rodrigues v National Director of Public Prosecution 2019 (2) SACR 251 (GJ) at para 39.
51 Sanderson above n 21 at paras 27 and 36.
52 In Van Heerden above n 21 at para 69 Navsa JA states that: “I cannot stress enough that decisions in matters of
this kind are fact specific.”
53 See for instance Zanner v Director of Public Prosecutions, Johannesburg [2006] ZASCA 56; 2006 (2) SACR
45 (SCA); at para 14.
54 [2012] ZAWCHC 245.
MHLANTLA J
27
“A holistic reading of the provisions of section 342A leaves me with the impression
that what is intended is first the investigation into whether the delay is unreasonable,
this as a matter of course necessitates an enquiry. The investigation includes tak ing
into account the factors listed in section 2. Those factors are not limited to the prejudice
suffered by an accused person and also include the impact an unreasonable delay may
have in the administration of justice, the victim, and the State’s case.”55
[62] That Court went on to remark on the nature of the enquiry as follows:
“Even though section 342 (3) does not specifically state that a ‘formal’ enquiry be held,
it does call at the very least for an enquiry, on the basis of which a finding must be
made. Such an enquiry must have regard to the full conspectus of the factors in
section 3(2). In the absence of an enquiry, a court may find it difficult to assess whether
a delay is unreasonable or how much systemic delay to tolerate. That can only be
determined when there has been an enquiry albeit informal, in which the conspectuses
of the factors listed have been considered. This I say mindful of the fact that the bulk
of the criminal cases are heard before the magistrate’s court, and to insist on a forma l
enquiry is likely to be burdensome to the already overstretched court rolls. The finding
should be followed by a remedy the court considers appropriate, depending on whether
the accused person had already pleaded or evidence led. It seems to me that, once the
provisions of section 342 are invoked, the following three stages must be followed:
(1) investigation of the cause of the delay in the finalisation of the
case, taking into account the listed factors;
(2) making of a finding whether the delay is reasonable or
unreasonable;
(3) depending on the stage of the proceedings, the application of
the remedies provided.”56
55 Id at para 6.
56 Id at para 6. Also in Director of Public Prosecutions North Gauteng v Makhubela [2014] ZAGPPHC 535 the
Court underscored the importance of the enquiry where it was held that the court below misdirected itself for
failure to conside r the appropriate aspects provided in section 342A(2) to determine the suitability of an order
refusing the postponement and to follow or comply with the prescripts of section 342A(4)(a) that are prescriptive
in nature and thus resulted in a gross irregularity.
MHLANTLA J
28
[63] It is worth noting what this Court has said regarding delays that are primarily a
result of the conduct of the accused:
“I would suggest that if an accused has been the primary agent of delay, [they]
should not be able to rely on it in vindicating [their] rights under section 25(3)(a).
The accused should not be allowed to complain about periods of time for which
[they] sought a postponement or delayed the prosecution in ways that are less
formal.”57
[64] And this Court further stated in Wild:
“A further feature mentioned in Sanderson is the attitude of the accused towards delays
and [their] role in prolonging the pre -trial period. Altho ugh 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 suc h delay. In the same context the
judgment makes plain that fault on the part of the prosecution which results in delay is
an important circumstance. 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.”58
[65] More recently in Dalindyebo,59 the Supreme Court of Appeal reiterated that
given the circumstances of that case, since the delay in the appellant’s prosecution was
caused largely by the appellant’s own problematic behaviour, there was no trial delay
impeding on fair trial rights. 60 However, it is critical to note that a delay, even an
aggravated delay, caused by an accused person, does not deprive the acc used of the
right to challenge the fairness of the trial.61 It is clear from Dalindyebo that an accused
57 Id at para 33.
58 Wild above n 24 at para 8.
59 S v Dalindyebo [2015] ZASCA 144; 2016 (1) SACR 329 (SCA).
60 Id at paras 20-1.
61 Du Toit above n 39 at 31.
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29
will not be able to abuse such delay in the process in order to construct a platform from
which to attack the fairness of the process, including the trial itself.62
[66] Therefore, what can be derived from this is that: where the delay was caused by
the conduct of the accused, the delay cannot per se serve as a basis for the court to
decide that the subsequent behaviour was unfair.63
[67] In the matter before us, after the dismissal of the defence application for the
postponement of the trial, on 28 July 2014, the State requested the High Court to invoke
the provisions of section 342A(3) of the CPA and close the defence case if they still
refused to testify. The High Court refused to close the defence case on the basis that
the State had failed to give the accused p roper notice in terms of section 342A of the
CPA. The State proceeded to inform the accused who were present in court 64 of its
intention to apply for an order in terms of section 342A of the CPA by way of oral
notice. The High Court explained the request by the State to the accused and stated that
if they did not make use of their right to testify , an order that their cases were deemed
closed in accordance with section 342A of the CPA could be granted. This would mean
that they would not be able to testif y at a later stage should they so wish. The High
Court asked the accused whether they understood the consequences of a section 342A
order as explained to them . The accused responded that they understood the
consequences. The High Court further explained to the accused that the trial would be
postponed for two weeks to enable them to consider their position in light of the State’s
request. The trial was thereafter postponed until 11 August 2014.
[68] On 11 August 2014, the State requested that the High Court utilise the provisions
of section 342A. The applicants still elected not to testify and insisted on their request
for a postponement. The trial Judge noted that there was still no indication that suitable
62 Id at p 32.
63 Id.
64 Only accused 18 was not present in court on the day and a notice was emailed to him. He is not participating
in the appeal before this Court.
MHLANTLA J
30
financial arrangements had been made and that all attempts to speed up the tr ial had
failed and the accused were not concerned with the finality of the matter. T he High
Court after considering the factors set out in section 342A, found that there were
exceptional circumstances to warrant the application of the provisions of
section 342A(3)(d). Accordingly, the trial Judge declared that the cases of the
applicants were deemed closed.
[69] Having regard to what transpired, I am satisfied that the State notified the
applicants of its intention to invoke the provisions of section 342A. T he trial Judge
properly explained the said provision and the consequences thereof to the applicants
that were unrepresented at the time . When the applicants elected not to testify and
insisted on a further postponement for a period of six months without any indication
that they would be able to secure funding to appoint a legal representative of their
choice, the trial Judge stated that the applicants “were fully aware of their obligations,
the consequences of their actions or inaction and that there were indeed exceptional
circumstances”.65 He underscored what this Court said in Shaik:66
“The right to a fair trial requires a substantive, rather than a formal or textual approach.
It is clear also that fairness is not a one-way street conferring an unlimited right on an
accused to demand the most favourable possible treatment. A fair trial also requires
fairness to the public as represented by the State. It has to instil confidence in the
criminal justice system”.67
[70] Having considered the record, I am satisfied that the High Court followed the
correct procedure, that it sufficiently informed and explained the implications of the
section to the unrepresented applicants, and that there were indeed excep tional
circumstances for the High Court to apply the provisions of section 342A(3)(d) of
the CPA.
65 High Court leave to appeal judgment above n 8 at para 15. See further High Court judgment at pages 160-182.
66 S v Shaik [2007] ZACC 19; 2008 (2) SA 208 (CC); 2007 (12) BCLR 1360 (CC).
67 Id at para 43 and fns 52-3.
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31
[71] Lastly, on 11 August 2014, the State addressed the High Court and the
applicants were afforded an opportunity to address the court on the merits of the case .
The applicants still adopted the stance that they should have been granted a
postponement and some refused to respond to the allegations by the State. Some
indicated that they knew nothing about the allegations and were not involved in the
commission of the offences. This is another indication that the applicants’ rights to a
fair trial were not infringed.
[72] It follows that the trial Judge ensured that the proper procedure required by
section 342(A)(3)(d) was followed and that exceptional circumstances warranted an
order to close the accused’s case in terms of section 342(A). The appeal therefore falls
to be dismissed.
Order
[73] In the result, the following order is made:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is dismissed.