IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)

REFRENCE NO: 583/06

THE STATE						Reportable

V

BHUDA JOSEPH

				JUDGMENT

JAJBHAY J:

[1]  	Section 35 (3) (d) of the Constitution of the Republic of South Africa, Act 108 of 1996 (“The Constitution”) entrenches an accused person’s right to a speedy trial, and provides: 

“Every accused person has a right to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay”.

[2]	The object of the above provision is to protect an accused person’s liberty, personal security and trial-related interests; Sanderson v Attorney –General, Eastern Cape 1998 (1) SACR 227 (CC).  The protection of these three rights is described in a judgment of the Supreme Court of Canada, R v Morin (1992) 8 CRR (2d) 193 at 202, quoted with approval in Sanderson as follows:

“The right to security of the person is protected… by seeking to minimise the anxiety, concern and stigma of exposure to criminal proceedings.  The right to liberty is protected by seeking to minimise exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions.  The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh”.

[3]	The right of an accused to a fair trial requires fairness to the accused, as well as fairness to the public as represented by the State.  It must infuse confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the trauma of the crime.

[4]	In this matter the accused was arrested on a charge of assault with intent to do grievous bodily harm, on 19 October 2005. Thereafter, he appeared in court on 20 October 2005 on the above charge.  On 2 November 2005 a referral order was issued by the court below in terms of section 77 of Act 51 of 1977 (“the Act”) in terms of which the accused had to be observed for a 30 day period, and for a report in terms of section 79 of the Act.  It appears that due to the unavailability of beds, there where several postponements.  On 10 May 2006, a final postponement was granted to 14 June 2006.  When the matter was called on the 14 June 2006 the learned magistrate struck the matter off the roll.

[5]	This matter was then referred on special review to Coetzee J.  The learned judge referred the matter to the Director of Public Prosecutions for her comment.  Coetzee J stated 

“Your comments regarding the above matter will be  appreciated.  Please see the letter addressed to me by the magistrate, Mr Magampa, dated 17 July 2006”.

[6]	The special review proceedings originated from a query from the learned magistrate directed to the learned Judge.  An extract from the query reads as follows:

“… The Honourable Reviewing Judge is requested to consider and to decide the legality or the correctness of the decision or order to remove the matter from the roll where the accused is still waiting referral for observationfollowing  an order of court”.

Further,

“Should a presiding officer faced with this situation stick to the letter of the law and just sent the accused to the relevant institution IRRESPECTIVE of the availability or otherwise of a bed?  Should a person wait for a bed to become available, and if so, for how long?   While it has crossed my mind to eventually resort to a Section 342A enquiry, the ruling of the Honourable Reviewing Judge on the point raised above will stand me in good stead where I have to make orders contemplated in Section 342A (3) (f) Act 51/1977”.

[7]	Section 342A sets out:  

(1)  	A court before which criminal proceedings a	re 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 non-availability of witnesses, the loss of evidence, problems 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.

[8]	In terms of subsection (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 delay and any prejudice arising from such delay.  In the present matter the learned Magistrate was concerned about the mental state of the accused from 20 October 2005.  The accused was not granted bail.  The matter was thereafter called on seven subsequent occasions.  The record highlights the difficulty experienced by the state to secure a bed at Sterkfontein for the accused.  On the 10 May 2006 the record indicates that “the control prosecutor has no solution to the problem.”  On the 14 June 2006 the following entry was recorded 
“The control prosecutor has phoned. Accused is number 70 on the list according to her. No definite assurance was given as to when in the next few months can the accused be admitted.”

[9]  	The question in this matter is whether a period of 8 months amounts to an unreasonable delay in the light of the reasons averred for the delay; S v Maredi 2000 (1) SACR 611 (T); Acting Premier, Western Cape v Regional Magistrate Bellville 2006 (1) SACR 351 (C).  

[10]  	In the present matter the principles set out in Sanderson v Attorney-General, Eastern Cape above are apposite.  There the Constitutional Court held that the 3 most important factors to consider in matters such as the present are:

(1)	the nature of the prejudice suffered by the accused;
(2)	the nature of the case;
(3)	the systemic delay;

[11]   For an application of these principles in an extradition case see     
         McCarthy v Additional Magistrate, Johannesburg 2000 (2) SACR   
         542 (SCA).The concept of systemic delay was dealt with by 
         Kriegler J in the Sanderson case supra at 56G-57B (para [35]) as  
         follows:

“The third and final factor I wish to mention is so-called systemic delay. Under this heading I would place resource limitations that hamper the effectiveness of police investigation or the prosecution of a case, and delay caused by court congestion. Systemic factors    are probably more excusable than cases of individual dereliction of duty. Nevertheless, there must come a time when systemic causes can no longer be regarded as exculpatory. The Bill of Rights is not a set of (aspirational) directive principles of State policy - it is intended that the State should make whatever arrangements are necessary to avoid rights violations. One has to accept that we have not yet reached that stage. Even if one does accept that systemic factors justify delay, as one must at the present, they can only do so for a certain period of time. It would be legitimate, for instance, for an accused to bring evidence   showing that the average systemic delay for a particular jurisdiction had been exceeded. In the absence of such evidence, courts may find it difficult to determine how much systemic delay to tolerate. In principle, however, they should not allow claims of systemic delay to render the right nugatory”.

[12]  	In the instant matter, there were delays caused by the number of accused persons committed for observation. The reality is that   socio-economic factors play a crucial role in determining whether   the delay was reasonable or not. The   information obtained from the Sterkfontein Hospital Forensic Unit reveals that this unit has recently imposed a ‘Dual Phase Observation Programme.’ This system entails the splitting of the waiting list into panel and single reports. Those persons requiring a joint report will be admitted for 30 days. Those requiring a single psychiatric assessment will be referred for one week committal. If   there is any doubt, the observation period will be extended to 30 days. The net result will be that the waiting periods will now be reduced. In terms of the report, the proposed date of commencement was the week of 14th August 2006.The modification of the observation process will speed the turnover of assessments.

[13] Here, the learned magistrate should have investigated the reasons for  
        the delay as envisaged in section 342A of the Act. This could have            
        been done by determining the reasons from the relevant institution. 
        This unfortunately was not attended to.Thereafter, the learned 
        magistrate could have considered granting a postponement. This is 
        specifically catered for in section 342A (3) (b) of   the Act. Perhaps  
        the learned magistrate could have considered granting 
       bail on strict and relevant conditions after having considered the 
       relevant circumstances pertaining to such an enquiry. An input from 
       the family members and close associates may have assisted in the 
       enquiry.  There was no question of dereliction of duty in the present 
       matter. The problem is really an unfortunate systemic one. The reality 
       of our predicament is  that the present resource limitations hamper the  
       effective realisation of  the administration of justice. Therefore, 
       judicial officers must design  more creative strategies to protect the 
       rights of  accused persons. This can include in appropriate 
       circumstances granting bail.

[14] Here, the systemic delay was reasonable. The matter was prematurely 
       struck off the roll by the learned magistrate. In matters such as the 
       present, and in so far as the application of the provisions of section 
       342A (3) of the Act is concerned, the learned magistrate should apply 
       his discretion after having conducted  the relevant enquiry.

[15] The views expressed in this case must be considered with the 
        principles and guidelines expressed by Nugent JA in The State v Mabena 
         [2006] SCA 132 (RSA) Unreported decision of the SCA Case NO. 373/06.

	

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		         Jajbhay J
		Judge of the High Court
                                                                 (Witwatersrand Local Division)

I Agree

                                                                 ----------------------------------------
								Mathopo J
                                       Judge of the High Court
                                                                 (Witwatersrand Local Division)