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REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: SS 130/2007

DATE:02/12/2011

In the matter between:

AUBREY HANLEY WYNNE-JONES..........................................First Applicant

WYNNE-JONES & COMPANY EMPLOYEE

BENEFITS CONSULTANTS (PTY) LTD …...................Second Applicant

and

THE STATE.....................................................................................Respondent

In re:

THE STATE

and

AUBREY HANLEY WYNNE-JONES...........................................Accused 1

WYNNE-JONES & COMPANY EMPLOYEE

BENEFITS CONSULTANTS (PTY) LTD ….....................Accused 2

J U D G M E N T

KGOMO, J:

INTRODUCTION

[1] This is an application by the first and second applicants for an order:

1. That the criminal case against accused 1 and 2 be struck from the roll and the prosecution not be resumed or instituted de novo without the written instruction of the National Director of Public Prosecutions pursuant to the provisions of section 342A(3)(c) of the Criminal Procedure Act 51 of 1977;

Alternatively to prayer 1.1 supra,

2. In the event that the order prayed for under paragraph 1.1 above is not granted, that the following order be issued:

1.2.1 That the criminal trial against accused 1 and 2 be postponed to a date to be determined by the Deputy Judge President of the South Gauteng High Court, subject to the following conditions:

1.2.1.1 That the State be ordered to provide accused 1 and 2 by no later than 11 May 2011 with the following:

1. A complete and final indictment to the charges brought against them; and

2. A complete and final docket to the charges brought against them, properly indexed and referenced.

1.2.2 That, in the event of the State failing to comply with the order set out in paragraph 1.2.1.1 above, the fist and second accused be entitled to approach this Honourable Court, on the existing papers, on a date to be determined by the Deputy Judge President of this Division, for an order as prayed for under paragraph 1.1 above;

1.2.3 That all travel documents pertaining to the first accused who is the first applicant and presently in the possession of the State, be returned to him pending the final determination of this application;

1.2.4 That the bail condition, namely, that the first accused is precluded from entering the international departure section of any airport or point of exit from the Republic of South Africa, be suspended pending the final determination of this application ; and

5. Further and/or alternative relief.

[2] The application is opposed by the State.

[3] At the end of arguments in this application, after having made not a single reference to the alternative prayer, i.e. prayer 1.2 above, counsel for the applicants intimated to this Court that the latter were no longer pursuing or persisting with the alternative prayers.

[4] For ease of reference and for considerans of convenience I will hereinafter refer to the first and second applicants respectively as accused 1 and 2. The respondent will be referred to as the State.

THE PARTIES

[5] The first accused is an adult male person and businessman currently residing at 3 Lawley Road, Westcliff, Johannesburg and the first accused in a criminal case which this application seeks to suspend.

[6] The second accused, Wynne-Jones & Company Employee Benefits Consultants (Pty) Ltd is a private company duly incorporated in terms of the company laws of South Africa with its registered office or address been Ground Floor, Randpark Building, 20 Dover Street, Randburg, 2194. The second applicant is accused 2 in the abovementioned criminal case and is being represented by the first accused for purposes of this application in terms of section 332(2)of Act 51 of 1977.

[7] I will also hereinafter refer to Act 51 of 1977 as “The Criminal Procedure Act” or “the Act” or “CPA” interchangeably. The applicants will be referred to individually as set out above or simply as “the applicants”, depending on the circumstances.

PURPOSE OF THIS APPLICATION

[8] The purpose of this application according to the applicants is to request this Court to conduct an investigation into the delay in the start or completion of the criminal proceedings instituted by the State against both applicants, which investigation should be in terms of the provisions of section 342A of the Criminal Procedure Act. The applicants are asking this Court to find that the completion of the aforesaid criminal proceedings is indeed being delayed unreasonably by the State. They thus pray that the criminal case against them be struck off the roll and that the prosecution not be resumed or instituted de novo without the written instruction of the National Director of Public Prosecutions. Although initially the applicants included the alternative prayers in the purpose of the application, it goes without saying that such alternative prayer now falls by the way-side.

[9] By virtue of the inherent powers this Court possesses and also in keeping with the last prayer sought, being, for “Further and/or alternative relief”, this Court may, should the need therefor arise or it be regarded as being in the interests of justice, grant any further and/or alternative relief as it may deem meet in the circumstances, which would be informed by the peculiar facts and circumstances coming out of or from the arguments and/or submissions advanced.

CURSORY OVERVIEW OF SECTION 342A AND REQUIREMENTS

[10] The relevant parts of section 342A of the Act having a material bearing for the application before us read as follows:

“342A Unreasonable delays in trials

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 advisor, the state or a witness.

2. In considering the question whether any delay is unreasonable, the court shall consider the following factors:

1. the duration of the delay;

2. the reasons advanced for the delay;

3. whether any person can be blamed for the delay;

4. the effect of the delay on the personal circumstances of the accused and witnesses;

5. the seriousness, extent or complexity of the charge or charges;

6. 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;

7. the effect of the delay on the administration of justice;

8. the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued;

9. 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 –

1. refusing further postponement of the proceedings;

2. granting a postponement subject to such conditions as the court may determine;

3. where the accused has not yet pleaded to the charge, that the case be struck off the roll and the prosecution not be resumed or instituted de novo without the written instruction of the [attorney-general] National Director of Public Prosecutions;

4. …

5. …

6. …”

[11] This section was introduced as a result of the recommendation of the South African Law Commission contained in the Interim Report on the Simplification of Criminal Procedure, Project 73, August 1995.

[12] In this case or application the applicants are not asking for a permanent stay of prosecution. Several decisions of our court dealt with this aspect in full, notably, Du Preez v Attorney-General, Eastern Cape 1997 (3) SACR 375 (E); Wild and Another v Hoffert NO and Others 1997 (7) BCLR 974 (N); its appeal decision in the Constitutional Court cited as [1998] ZACC 5; 1998 (2) SACR 1 (CC); 1998 (6) BCLR 656 (CC); Sanderson v Attorney-General, Eastern Cape 1997 (1) SACR 462 (SEC); Bate v Regional Magistrate, Randburg and Another 1996 (6) BCLR 974 (W); and In re Mlambo 1992 (2) SACR 245 (Z); to name but a few.

[13] Most of the above cases followed a United States of America case of Barker v Wingo 407 US s 14 (1972) which also dealt with the issue of a permanent stay of prosecution on the grounds that the constitutional right to a fair trial within a reasonable time had been violated. This decision laid down the following factors as being decisive in arriving at a decision on this aspect : (1) the length of the delay before the institution of the prosecution; (2) the reasons for the delay; (3) the assertion by the accused of his rights; and (4) the prejudice to the accused.

[14] In Sanderson v Attorney-General, Eastern Cape [1997] ZACC 18; 1998 (1) SACR 227 (CC); 1997 (12) BCLR 1075 (CC) our Constitutional Court held that the three most important factors to consider are: (1) the nature of the prejudice suffered by the accused; (2) the nature of the case; and (3) the systemic delay.

[15] Our matter herein is based on section 342A(3)(c) that deal with the striking off of the matter and it only being reinstituted, if need be, with the prior permission of the National Director of Public Prosecutions.

[16] The primary question to be answered where subsection (3) of section 342A is under review is: when can it be said that a delay has become unreasonable, justifying a decision to strike the case off the roll? As an introduction, the case of S v Joseph 2007 (1) SACR 496 (W) may be used. In this case, a magistrate had struck a case off the roll after numerous postponements over a seven-month period due to lack of space or sufficient beds at a psychiatric hospital to which the accused had been referred for observation in terms of section 77 and ultimately, a report as envisaged in section 79 of the Act. Needing more clarity or confirmation of or on “the legality or … correctness” of his decision, the magistrate sent the matter to the High Court for review. Jajbhay J ruled that the matter was “prematurely” struck off the roll as the “systemic delay” responsible was reasonable. He further held that the delay in the case was due to the unavailability of beds at the hospital and that there was no question of dereliction of duty by the prosecution. He further ruled that the problem was really “… an unfortunate systemic one due to resource limitations”. What is more important and relevant to our application herein is the honourable judge’s comments that in matters such as the present (i.e. in that case), insofar as the application of the provisions of section 342A(3) of the Act are concerned, the presiding officer should have applied his discretion after conducting the enquiry required in terms of the Act.

[17] A proper reading and interpretation of section 342A(3) in my view means that the provisions thereof should not apply to the events which precede the institution of criminal proceedings.

See: Du Toit et al : Commentary on the Criminal Procedure Act : 33-16C

[18] However, in S v Van Huysteen 2004 (2) SACR 478 (C), Traverso J was of the view that section 342A(3) does not require that a formal enquiry be held or a formal finding be made. At para [8], page 480c-e the honourable judge held that:

“Na my mening hoef daar geen formele ondersoek gehou te word of geen formele bevinding gemaak te word ingevolge hierdie artikel nie. Indien die voorsittende beampte navrae doen oor die redes vir die versoek om 'n verdere uitstel, en die mening huldig dat 'n verdere uitstel tot 'n onreg sal lei is dit na my mening voldoende. Na my mening lê art 342A slegs riglyne neer oor die faktore wat 'n hof in aanmerking moet neem by die oorweging van die vraag of 'n uitstel geweier moet word al dan nie.”

[19] The learned judge also invoked or recognised the importance and indispensability of section 35 of the Constitution, i.e. Constitution of the Republic of South Africa Act 108 of 1996 (“Constitution”) when she stated the following at para [9] on 480e-f:

“[9] Hierdie artikel moet voorts ook gelees word teen die agtergrond van die bepalings van die Grondwet van die Republiek van Suid-Afrika 108 van 1996 en meer bepaald die bepalings van art 35 daarvan, waarvolgens 'n beskuldigde se reg op 'n regverdige verhoor (met inbegrepe sy reg om sy verhoor sonder 'n onredelike vertraging te begin, en af te handel) aangestip word.”

[20] The grounds set out by the applicants as seen in the light of or qualified by the respondent’s responses thereto and the resultant common cause status quo or state of affairs will go a long way in assisting this Court decide this issues raised in this application one way or another.

GENERAL BACKGROUND AND FACTUAL MATRIX

[21] The criminal case against the accused, who are the applicants herein forms part of a larger conglomerate of cases which for convenience and as suggested by the respondents herein, I will also refer to as the “Ghavalas complex or conglomerate of cases”. The crimes in this Ghavalas conglomerate of cases were committed during the period 1992 to 2001 and involve thirteen (13) pension funds by names:

1. Mitchell Cotts Management Services Pension Fund, Registrar’s Ref 12/8/9063;

2. Mitchell Cotts Pension Fund (formerly Mitchell Cotts Management Services Pension Fund);

3. Jacaranda Pension Fund, Registrar’s Ref 12/8/21645;

4. Lucas South Africa Pension Fund, Registrar’s Ref 12/8/10121;

5. Lucas Automotive Pension Fund, Registrar’s Ref 12/8/27521;

6. Sable Industrial Pension Fund, Registrar’s Ref 12/8/20317;

7. Picbel Groepvoorsorgfonds, Registrar’s Ref 12/8/9087;

8. Datakor Group Pension Fund, Registrar’s Ref 12/8/8849;

9. Datakor Group Retirement Fund, Registrar’s Ref 18/8/19919;

10. Cortech Pension Fund, Registrar’s Ref 12/8/7696;

11. Power Pack Fund, Registrar’s Ref 12/8/32056;

12. Lifecare Fund, Registrar’s Ref 12/8/3672.

[22] The crimes included fraud, theft, contraventions of the Financial Institutions (Investment of Funds) Act, 39 of 1984 (“the FI Act”), the Prevention of Organised Crime Act 121 of 1998, as well as the Corruption Act 94 of 1992.

[23] The charges of fraud related to misrepresentations made to the Registrar of Pension Funds (“the Registrar”) who is also the Chief Executive Officer of the Financial Services Board (“FSB”). The Ghavalas conglomerate of cases involved a scheme devised by Mr Peter Ghavalas whereby the actuarial surpluses of a number of different pension funds were misappropriated. A total of R212 412 404,00 was allegedly misappropriated. I will refer to the said scheme henceforth as “the Ghavalas scheme”.

[24] The criminal activities regarding the pension funds were only discovered a number of years after being committed. The criminal activities regarding the Mitchell Cotts Management Services Pension Fund, which were committed during 1992, were only discovered around the year 2000 and the first perpetrator to be arrested was Mr Peter Ghavalas, who was arrested during August 2005. I will refer to the latter hereinafter as “Ghavalas”. They were discovered or detected when the Registrar received a complaint from one Mr J H Knight regarding Mitchell Cotts Management Services Pension Fund and its management through its trustees during 2000. In terms of the Inspection of Financial Institutions Act 80 of 1998 (“Inspection Act”) the Registrar instructed Mr C J Potgieter (“Potgieter”) to inspect the books of Mitchell Cotts Management Services Pension Fund. I will hereinafter refer to this pension fund as “Mitchell Cots 1” and Mitchell Cotts Pension Fund as “Mitchell Cotts 2” and where necessary, both will be comulatively reffered to as “ Mitchell Cotts 2” and where necessary, both will be cumulatively referred to as “Mitchell Cots”.

[25] During the inspection various irregularities were detected, in particular, a transaction whereby the actuarial surplus of approximately R23 million in Mitchell Cotts 2 was transferred to Lifecare Fund in March 2002. Further inspections, among others, by one of Potgieter’s fellow inspectors, Ms Greyvenstein into the irregularities which were detected, were then instituted by the FSB. It emerged from the investigations that Lifecare Pension Fund was in most of the pension funds inspected, a common denominator. The principal employer of the Lifecare Fund was Lifecare Group Holdings Ltd.

[26] During November 2002 the Lifecare Fund approached the Registrar and requested an investigation into all the transactions in which the Lifecare Fund was involved. This came about after the Pension Fund Adjudicator in 1999 received a complaint from a pensioner, Mrs Doyle, about her being transferred from the Cortech Fund to the Lifecare Fund in 1997 without her knowledge.

[27] Lifecare Fund thereafter disclosed details of what is called “asset stripping transactions” to the Registrar. The said transactions all formed part of the Ghavalas scheme. The explanation given for the late discovery of the chenanigans was explained to the Registrar as being that after African Oxygen Ltd took over control of the Lifecare company in May 1999, new trustees were appointed to the Lifecare Fund and the latter were unaware of these transactions as they had not been disclosed in the Lifecare Fund’s statutory returns.

[28] The above discoveries prompted the Registrar to instruct Potgieter and Ms K van Heerden (“Van Heerden”) to inspect various other pension funds. The above two inspectors completed their inspections and issued inspection reports between 2005 and 2007.

REPORTING OF THE CRIMES TO THE POLICE AND NPA

[29] The Registrar referred the Mitchell Cotts 1’s reports to the South African Police Services (“SAPS”) during May 2002 and a police docket was opened under Rosebank CAS 289/05/2002. The FSB was recorded therein as the complainant. All subsequent reports in respect of the investigations regarding the pension funds affected by the Ghavalas scheme were filed in this docket.

[30] During their investigations FSB inspectors Greyvenstein, Potgieter and Van Heerden obtained an enormous volume of documentary evidence in respect of transactions in which the various pension funds were stripped of their surpluses. The reports alone consists of more than 6 000 pages from at least 2 600 relevant documents. Search and seizure operations were conducted both in South Africa and overseas or abroad by the investigating officers and the police who were working in close co-operation with the FSB inspectors and a further huge number of documents were seized and incorporated into the existing docket. It is alleged that Part A of the docket as at the institution or launching of this application ran from documents or Annexures A1-A588, all in all running up to approximately one million pages.

[31] The police docket was initially investigated by Inspector Niewoudt until 30 August 2004 when he handed it over to the current investigating officer, Captain J H Judeel. Upon realising that the docket in hard copy form was too voluminous and unwieldy to deal with Capt Judeel proceeded to scan each and every document therein to a PDF electronic format. The original hard copy version is kept in a safe place. The first docket was handed over to the NPA in Johannesburg during May 2002.

[32] A retired director of public prosecutions and currently a practising advocate, Adv dr Jan d’Oliveira SC was also contracted to lead the prosecution, assisted by Adv Kriel. When the latter resigned, he was replaced by Adv Bessinger who joined his colleague from the Specialised Commercial Crime Unit (“SCCU”) in Pretoria. They were State Advocates. Immediately after Adv Bessinger joined the prosecutions team Adv Chauke resigned from the services of the NPA and he was replaced by Adv Tshabalala, also a State Advocate at the SCCU, Johannesburg.

[33] When Adv dr d’Oliveira SC realised that they were snowed under by work in this case he requested further assistance and Adv J Henning SC, also a practitioner in private practice, was contracted to help. According to the respondent, Adv Henning SC’s role in this regard was limited to assisting with the drafting of indictments and research, especially with regards to a subsequent application brought by one of the other accused in the Ghavalas complex of cases, Alexander Forbes, to have section 332 of the Criminal Procedure Act (CPA) declared unconstitutional. Two other advocates attached to the SCCU in Pretoria were also enlisted to help.

[34] Section 332 of the CPA dealt with the prosecutions of corporations and members of associations.

[35] According to the respondent it was never envisaged that Adv Henning SC was to actively take party in the prosecutions.

[36] At some stage Adv Tshabalala requested to be relieved of his participation in the matter due to logistical difficulties. As the workload continued to increase, Adv Nxumalo attached to the SCCU in Pretoria was assigned to assist them in 2009. During November of that same year another advocate in private practice, Adv Pretorius, was contracted to assist with the prosecution.

[37] Due to the fact that the subject matter of the case involved various aspects of pension funds administration, which is a specialised and complex field, especially criminal law, Potgieter, who was the inspector in all but one of the inspections regarding the Ghabalas scheme, was contracted to advice and assist the prosecutors as well as the investigating officer. The FSB also made Potgieter’s co-inspector, Van Heerden, available to the State to assist the prosecutors and the investigating team.

ARRESTS OF PERPETRATORS

[38] At some stage a total of 23 perpetrators were arraigned before court after having been arrested at different stages of the investigations. On their appearance in the Regional Court 11 of them were referred to be tried in the High Court. The remainder were to stand trial in the Regional Court.

[39] The alleged main perpetrator and architect of the Ghavalas scheme of criminal activities was Peter Ghavalas (Ghavalas) who had emigrated to Australia during 1999 before the crimes were discovered. He was arrested on 26 August 2005 while on a family visit to South Africa. Subsequent to this Ghavalas arrest, 15 other individuals were also arrested over a period of time. They were arraigned, some of them together with their companies before the Regional Court in Johannesburg under Case No. 181/2005. The accused in this application were arrested in March 2006 and joined as accused 10 and 11 in the Johannesburg Regional Court.

[40] Several of the arrested perpetrators appearing as accused in the Regional Court offered pleas of guilty, which pleas were accepted by the prosecution. The following are the accused who pleaded guilty and were accordingly sentenced:

1. Ghavalas pleaded guilty on 16 February 2009 in terms of a plea and sentence agreement in terms of section 105A of the CPA to various charges of fraud, money laundering and contravention of section 2 of the Financial Institution (Investment of Funds) Act (the “FI Act”), which plea covered or involved all seven sets of Funds. Part of the plea agreement was that the charges against accused numbers 2, 3 and 4, being Soundprops 178 (Pty) Ltd and P J Spouse (Pty) Ltd (both of which were Ghavalas’ companies) as well as June Noreen Ghavalas (his wife) respectively, be withdrawn. He was sentenced in terms of the plea and sentencing agreement.

2. Alexander Forbes Consultants and Actuaries (Pty) Ltd (presently known as Alexander Forbes Group & Technology Services (Pty) Ltd also pleaded guilty in terms of section 105A of the CPA on 17 March 2011 to contraventions of section 2 of the Financial Institutions (FI) Act 39 of 1984 and sentenced as per the agreement.

3. Rowland Edward Bailey and Shirley Ann Bailey pleaded guilty to the charges relating to the Mitchell Cotts Funds and accordingly sentenced.

4. Jan Albertus Pickard pleaded guilty of contravening section 2 of the FI Act in relation to the Picbell Pension Fund and was sentenced accordingly.

5. M McEvoy and Derrick Pettitt pleaded guilty on charges of contravening section 2 of the FI Act relating to the Cortech and Datakor Pension Fund and was sentenced.

[41] There are separate cases that are scheduled to go on trial or wherein trials are under way in various Regional Courts around the country. They are:

1. The case involving S J Nash and his company, Midmacor Industries. The trial thereof started in the Regional Court, Johannesburg on 8 November 2010 and ran that whole month, whereafter it was postponed to 26 January 2011 from which date it ran until 4 Febraury 2011 on which date it was postponed for further evidence to 30 May 2011 – 10 June 2011 and then from 27 June 2011 to 30 June 3011. It still has to run for a considerable time more and the State’s submission is that it may not be completed during 2011.

2. In a case involving one J A Roets in relation to the Cortech and Datakor Funds, it is pending in the Regional Court, Johannesburg, awaiting a date when the actual trial should begin.

3. The case involving one J D Malan and his company relating to the Picbell Fund is pending in the Regional Court, Cape Town. It is awaiting the determination of a trial date.

4. The case against one of the original accused, Mr Nightingale, against whom charges were provisionally withdrawn earlier, is allegedly in the process of being re-instated.

[42] As at this stage, two cases are outstanding in this Court : They are (1) the case against the two accused who instituted this application, and (2) a separate trial in which WVG Somerville and P N Martin are the accused. Alexander Forbes was a co-accused in the later case before it tendered a plea of guilty and was sentenced on 17 March 2011. The trial of Somerville and Martin was set down for trial for 25 July 2011 as at the time answering affidavits were filed in this application on 12 May 2011.

[43] It is my considered view that the sequence, consecutiveness and understanding of issues in this application will also be made easy if the names of the accused who were arraigned in the original indictment are set out herein. They were:

1. Peter Ghavalas – Accused 1.

2. Soundprops 178 (Pty) Ltd – Accused 2.

3. P J Spouse (Pty) Ltd – Accused 3.

4. June Noreen Ghavalas – Accused 4.

5. William V G Somerville – Accused 5.

6. Alexander Forbes Group (Pty) Ltd – Accused 6.

7. Gerald Nightingale – Accused 7.

8. Peter N Martin – Accused 8.

9. Brian H Berry – Accused 9.

10. Aubrey Wynne-Jones – Accused 10.

11. Wynne-Jones & Company Employees Benefits Consultants (Pty) Ltd – Accused 11.

APPLICANT’S MOTIVATION FOR STRIKING OFF IN TERMS OF SECTION 342A(3)(c) OF CPA

[44] According to the applicant the criminal case involving the accused was in the High Court, South Gauteng on 12 April 2010 and it was postponed to 11 April 2011 for the entire second term for purposes of a full trial. On 21 February 2011 the applicants launched the present application and set it down for argument the day before the set trial date, i.e. on 11 April 2011. The respondent was to file its notice of intention to oppose, if any, on or before 28 February 2011 and if need be, file their answering affidavit within 15 days of having filed such notice.

[45] On 22 February 2011 a meeting was held between the legal representatives of both the applicant and the respondent at the offices of the Specialised Commercial Crime Unit (SCCU) in Pretoria on which day the application was served on the respondent.

[46] According to the applicants further, during this meeting the State, i.e. the respondent, made certain formal and solemn undertakings, mostly, that the supplementary affidavits of Ghavalas and that of their forensic auditor, Mr Papadakis will be furnished to the applicants by 11 April 2011. This purported formal and solemn undertaking was confirmed in writing dated 23 February 2011, which written confirmation is annexed to the paginated record of proceedings herein as Annexure AW J33. This letter was replied by the applicants’ attorneys of record on 25 February 2011, which reply is marked Annexure AW J34 of the paginated record. Because the abovementioned communications are very material to the issues germane to the decision in this application, I reproduce them verbatim hereunder.

[46] The respondent’s letter read as follows:

“RE: THE STATE VERSUS AH-WYNNE-JONES AND ANOTHER

1. I refer to the meeting between the prosecution and defence teams held on 22 February 2011 at the offices of the SCCU in Pretoria and also to the Notice of Application on behalf of the above-mentioned accused which was served on even date on the offices of the SCCU in Johannesburg. The main and alternative prayers featured in the meeting.

2. It is confirmed that the prosecution tabled and is prepared to undertake the following:

2.1 The final police docket will be furnished to you by 15 March 2011. This will however exclude the affidavits of Peter Ghavalas and the forensic auditor, Mr Papadakis, which affidavits will be furnished to you by 11 April 2011.

2.2 An electronic linking of allegations in the indictment to specific documents and affidavits in the police docket will also be furnished to you by 25 March 2011. For this purpose you will have to provide the investigating officer with an external computer hard drive in order to copy the information. It is confirmed that you did not require a download of the linking as at present date and that you would prefer to wait for the more complete product. As pointed out to you, the purpose of providing you with the linking is to focus on the evidential material which relates to the charges in the Indictment. Obviously, neither the State nor the Defence is limited to that material which is part of the larger docket.

3. An updated index to the documents in the police docket will be furnished to you by 25 March 2011. In this regard it will be appreciated if you bring any errors you may have come upon in the existing index to the attention of the investigating officer to enable him to correct it.

3. The indictment served upon you/your clients is the final indictment. It never was ‘provisional’. The only provisional aspect was the list of witnesses which was conveyed to you as such and which is apparent from the list itself.

3. The prosecution was unaware that you had not received the annexures to Potgieter’s specific statement and regrets the inconvenience. You will receive an electronic copy on 23 February 2011.

3. The State was at no time ‘unconcerned’ about the Winchester Trust: on the contrary it remains relevant to the Money-laundering charges. The State’s consistent concern even appears in your Annexure AWJ 31. It is confirmed that the NPA does not want to prejudice innocent beneficiaries but the onus is on you to demonstrate what portions of the Trust do not constitute proceeds of crime.

3. You have, in view of the aforementioned proffered undertakings by the prosecution, agreed – in principle but subject to the instructions of your clients – to consider a postponement of the trial on the basis set out in prayer 2 (alternative prayer) of your aforementioned application.

4. You have indicated to us that you should be in a position to inform us of your clients’ instruction by Friday, 25 February 2011. Please revert to us in this regard as soon as possible as we have indicated to you that, in the event of your client not being amenable to a postponement of the trial on the basis as set out above, we will have to oppose the application of which you have given notice.”

[47] The applicants’ reply reads as follows:

“THE STATE/WYNNE-JONES & ANOTHER

1. We refer to your correspondence dated 23 February 2011.

2. With full reservation of our clients’ rights and for the sole purpose of assisting the State in curing the extant shortcomings in respect of its readiness to proceed to trial, we propose the following:

1. that the First and Second Applicant’s application in terms of Section 342(A) of the Criminal Procedure Act be held over until 11 April 2011 on condition:

1. that the State provide the final docket unto the applicants on or before 15 March 2011;

2. that the State provide an electronic linking of the allegations in the indictment to specific documents and affidavits featured in the police docket on or before 25 March 2011;

3. that the State provide an updated index to the docket on or before 25 March 2011; and

4. that the State provide the affidavits of Mr Ghavalas and Mr Papadakis on or before 11 April 2011;

3. In the event that the State fails to comply in any respect with the above undertakings, that the accused parties shall seek an order on 11 April 2011 in the following terms:

1. the application and trial be postponed to 25 May 2011 for final determination;

2. that the State deliver its notice of opposition, if any on or before 14 April 2011;

3. that the State file its answering papers, if any on or before 11 May 2011;

4. that all travel documents pertaining to the First Applicant/Accused presently in the possession of the State, be returned to him pending the final determination of the application and trial aforesaid; and

5. that the bail condition, namely that the First Applicant/Accused is precluded from entering the international departure section of any airport or point of exit from the Republic of South Africa, be suspended pending the final determination of this application and trial aforesaid.

[48] The respondent’s letter was written with prejudice whereas the applicants’ reply was without prejudice. The gist of the above correspondence was that the applicants were willing to stand the application in terms of section 342A down until 11 April 2011 subject to specific conditions, among which was:

• receipt from the respondents by 15 March 2011 of “a final” docket in the criminal case;

• receipt from the respondents of an electronic linking of the allegations in the indictment to specific documents and affidavits featured in the police docket on or before 25 March 2011;

• receipt from the State of an updated index to the docket on or before 25 March 2011; and

• receipt of the affidavits of Ghavalas and Mr Papadakis on or before 11 May 2011.

[49] The applicants’ reply also contained threats to the effect that should the requested information or the respondent fail to comply with any of its undertakings as per their Annexure AWJ 33, they would move, on 11 April 2011 that both the main case and this application be postponed to 25 May 2011 for final determination and further that certain time frames be observed in the exchange of affidavits in connection with this application. The last two paragraphs of the reply demanded that the first applicant’s travel documents that were confiscated as part of his release on bail as well as the other condition accompanying his bail grant, namely, that he be precluded from entering any international departure section of any airport or point of exit from the Republic of South Africa be suspended pending the finalisation of this application in terms of section 342A(3)(c) of the CPA.

[50] It is so that the respondents did not fully act in accordance with their above stated undertakings by 11 April 2011, resulting in my brother Hattingh AJ postponing both the main criminal case and this application to 25 May 2011.

[51] The respondents only filed their opposing papers, especially their answering affidavit to this application on 12 May 2011 – i.e. one day later than their undertaking promised. When they realised that the applicants were likely to oppose the admission of the answering affidavit, they filed, on 13 May 2011, a formal and substantive application for condonation for the late filing of their answering affidavit, to be argued on the date the matter was postponed to, i.e. 25 May 2011. The applicants did not oppose the application for condonation. However, they put a peculiar spin to their allegations in the answering affidavit to this application which goes like this:

“… In the answering affidavit (to the application for condonation) the First Applicant records that the Applicants do not oppose the application for condonation but asserts that the answering affidavit is filed purely to lay bare the factual circumstances underlying the State’s application for the benefit of this Honourable Court.”

[52] The applicants went further to state that:

“It is submitted that the Applicants’ stance in not acceding to the Respondent’s request for an indulgence cannot be deprecated. The Respondent was allowed a period of no less than a month to file its answering affidavit. The Applicants allowed themselves only a period of 9 (nine) days to file their replying affidavit.”

[53] The applicants then went on and attacked the respondent’s reasons for failure to serve and file their answering affidavit timeously as being not convincing.

[54] The respondent’s counter or response to the above allegations were short and sweet as can be seen in their answering affidavit : They stated that:

“The draft indictment referred to was the original indictment against all 23 accused. This indictment contained all the essential allegations against the two accused in this matter. The indictment was later revised and subsequent to requests for further particulars most of the further particulars furnished to the various defence teams were incorporated in the indictment. The honourable court is referred to paragraph 21.3 above.”

(Vide paragraph 34 of respondent’s answering affidavit.)

[55] The respondent’s further response is contained in their paragraph 35 of the answering affidavit which reads as follows:

“The investigating officer explained to the legal representatives of the various accused at that stage that due to the immense volume of documents forming part of the docket and the fact that 13 copies would have to be prepared (one copy for each set of attorneys) it will be impracticable to furnish hard copies of the docket to each of the accused’s attorneys. It was further explained to them that the investigations officer was at that stage busy scanning all the documents in order to be able to provide electronic copies to the accused. Scanning of the documents took considerable time and the investigating officer was only able to furnish each of the defence attorneys with a set of three DVD’s containing the docket from A 1 to A 432 on 26 July 2007. The investigating officer further informed the various attorneys that in a case like this there will always be further documents to be added to the docket.”

ALLEGED PROCRASTINATION AND/OR DELAY

[56] The long and short of it all is that the applicants want this Court to strike the matter off because there is, according to them, an inordinate delay in the prosecution of the accused from the date they were arrested in March 2006. They aver further that the State (respondent) is solely to blame for the delay and such delay is unreasonable and highly prejudicial to the accused and by necessary implication, to the criminal justice system in particular and the general administration of justice overall.

[57] As stated above, the respondent is disputing and challenging the applicant’s facts and the prayers they seek.

[58] On 5 May 2008 the accused applied for their case to be separated from the rest of the accused’s case. That occurred after the respondents refused to withdraw four (4) counts in an indictment in which the accused were jointly charged with others, their motivation being that should the joint trial proceed they would have had to endure and sit in court for days or weeks or months on end while the evidence being led did not affect the accused at all and this fact was known to the State right from the beginning.

[59] The application for separation was ultimately granted after a full application, resplendent with founding affidavits and answering affidavits.

[60] It is common cause that the main trial has had to be held in abeyance for all these applications which included several other interlocutory applications for further particulars on the indictment to be completed. The investigators and the prosecution, which was handled by the same teams, had to put all attention on these interlocutory applications. In the meantime, time was ticking on, sure as the sun shines on a cloudless day.

[61] The applicants submit and argue that Ghavalas is the State’s most important witness without whom the State case cannot proceed. When I asked counsel for the applicants how they come to such a conclusion in the light of the fact that the State is dominis litis and has the prerogative to call or not call a witness, his response was that this was an obvious fact which can be deduced from the circumstances.

[62] It is so that the respondents during argument also confirmed that Ghavalas is going to be called as a witness. The question is, what business is it of the applicants if Ghavalas is available or not available because their primary complaint is that this case should start. Surely the applicants are not thinking of dictating to the respondent what witnesses it should call in the eventual trial, if any, or in what sequence.

[63] The respondents pointed to the fact that the evidence Ghavalas would be rendering in the trial would be in line with the more than five statements he has already made and which are all forming part of the docket as well as the section 105A plea and sentencing agreement which forms part of the paginated papers filed of record herein. The applicants insisted that Ghavalas must submit a supplementary statement and the respondent must then make cross-references for them of that statement against the indictment and the rest of the affidavit filed in the docket. In short, the applicants demand that despite the fact that there are statements and other documentary evidence in the police docket supplied to them by the prosecution, the State must point out to them which parts of those statements support the specific allegations involving the applicants in the indictment.

[64] The applicants also took exception to the respondent’s averments that the applicants’ involvement in the crimes set out in the indictment is also clearly set out in the affidavit(s) Ghavalas deposed to in a civil case that has as its genesis, the facts and circumstances prevailing in this case. They averred that the applicants were only mentioned three times in the section 105A plea and sentencing agreement and none at all in the affidavits relating to the civil case.

[65] The respondent convincingly refuted the above allegations. Counsel for the respondent pointed out that the applicants are mentioned no less than 31 (thirty one) times in the affidavits in the docket and the section 105A agreement. It was also argued and submitted on behalf of the respondent that the applicants knew that the affidavits that affected them in the case docket were in relation to the Sable Industrial Pension Fund, Power Pack Fund and Cortech Pension Fund. Furthermore, so went the respondent’s submissions, in the affidavit Ghavalas deposed to in respect of the civil case – a long and rambling affidavit with a lot of detail about own participation and participation and complicity by other co-perpetrators – the applicant’s involvement in the alleged wrong doing relating to and by Alexander Forbes is clearly set out and in a clear and uncomplicated language. Furthermore, the above affidavit read with the indictment and the electronic linkage system that serves as key and direction pointer to such participation and/or complicity adequately simplify the applicants’ way in going about and understanding what they are up against.

[66] On the issue of requests for further particulars the respondent submitted that they made it clear to the applicants that they were free to request same at any time they felt like they had hit a rock or wanted clarification on any aspect relating to the prosecution or case. They (respondents) consequently argued and submitted that the applicants have been furnished with all the evidence or tools of the trade to enable them to understand the case against them and also adequately prepare their defence. They still reiterated that should they feel there was a justifiable need for it, they may still ask for further particulars which would be furnished, deo volente and/or de lege ferenda.

[67] On the aspect of a “final docket” as demanded by the applicants the respondent contended that there was no such thing as a final docket : A docket is a docket and it is ready and complete at the stage the trial should begin. The respondent submitted that the docket was complete for purposes of this trial but there was a possibility that once the applicants tendered their plea(s), further investigations may be required, which may result in additions being made to the documentation in the docket. However, those additional documentation ought not to affect the running of the trial.

[68] The applicants are adamant that despite the respondent demonstrating to this Court that there are several affidavits from Ghavalas including those deposed to in respect of the civil case, there was no prosecution directed statement form him that is, according to them, necessary for the applicants to consult meaningfully with their counsel and thus adequately prepare for their trial.

[69] From all of the above, it is my considered view and finding that inspite of the fact of the applicants apportioning and arrogating all blame and guilt on the respondent for delays in the start of or in this prosecution, both parties have played a part in the delays. The question is, to what extent did each contribute and whether the respondent’s contribution was such that it would move this Court to strike the matter off the roll in terms of section 342A of the Act.

SATISFACTION OF THE REQUIREMENTS OF SECTION 342A

[70] The applicants aver and submit that this trial has been delayed for almost five (5) years between the laying of the charges at Rosebank Police Station and his arrest.

[71] It is my view and finding that this ground by the applicants is too far-fetched and irrelevant to affect a ruling that should be made in this case. It is common cause that when the case was opened in May 2002, the applicants were not yet suspects therein. Only the shenanigans involving Mitchell Cotts Pension Fund were discovered by then and the applicants are not linked to any criminal activity relating to those Funds. It was only after November 2003, after the shareholder register of Soundprops (Pty) Ltd Fund, a company used by Ghavalas to launder money derived from the Ghavalas scheme – revealed that the first applicant received R720 000,00 from the criminal scheme or enterprise, did the latter become a suspect. Investigations followed which led to his arrest in March 2006. This ground can be discounted.

[72] The applicants go further to state that since their arrest in March 2006 and their appearance at court in September 2006 the State was tardy and procrastinated, unreasonably, to use the tautology, with the result that they were not placed in a position to plead.

[73] It is common cause that, as demonstrated in the papers herein and conceded by the applicants, this was and still is a very complicated investigation involving different pension funds and different suspects. Enormous volumes of documentation have to be shifted and sifted. Experts like auditors and other financial experts have to be brought in.

[74] What should be kept in mind is that a trial is a dynamic process and a criminal investigation has a peculiar life of its own. New developments during the trial such as new evidence coming out during plea stages may necessitate further investigations.

[75] The applicants have not gainsaid the respondent’s averment that by 4 November 2010 they (applicants) were already in possession of 90% of the police investigations docket as well as a comprehensive indictment spanning over 200 pages.

[76] In the peculiar circumstances of this case it is my considered view and finding that although a long time has elapsed since the arrest of the applicants, the delay cannot be laid solely at the door of the respondent. The processes instituted by the applicants also contributed to the delay.

REASONS ADVANCED FOR THE DELAY AND BLAMEWORTHINESS

[77] The applicants apportion blame onto the respondents here-on in the fact that the latter have failed to produce a sub-docket or substrate of the charges against them, notably from at least 27 October 2009 to date. It is so that the applicants applied for and were granted a separation of their case from the other co-accused. They then demanded that a separate docket relating only to themselves be compiled up from the over a million pages making up the main and only docket existing in this investigation. Equally, they demanded, correctly in my view, a separate indictment.

[78] As already stated elsewhere in this judgment, the complexity of the case, the number of perpetrators involved in the crimes coupled with the fact that the crimes were discovered at different periods will of necessity and naturally contribute to delays in the start of trials. The different and independent prosecutions of the perpetrators which were demanded by the different sets of perpetrators including these applicants in my view put an enormous burden on the one prosecution team that was tasked to prosecute the perpetrators. If I take it as a starting point, rightly or wrongly, that the State initially intended to prosecute all the perpetrators in one trial, then the applicants’ decision to have their case separated from the rest also contributed to the delay. Sight should not be lost of the fact that other perpetrators also have been and are still being prosecuted separately in the Regional Courts.

[78] The plea and sentencing agreements entered into with Ghavalas and Alexander Forbes will also contribute to delays. Such delays in my view cannot be said to have been caused by tardiness or indolence on the part of the prosecution.

[79] This very application is causing a further delay to the start of the case, as it must first be finalised. The parties’ way forward may be dependent on its outcome.

[80] Although I agree that there is delay in the prosecution of this case, I cannot agree that the reasons advanced by the respondent are unreasonable. Equally, it is my considered view and finding that the applicants were selective in laying bare their grounds for the case to be struck off the roll based on this ground. They started from a pedestal where they wanted to be regarded as holy cows and untouched by any of the reasons that have caused the delay.

[81] I thus find that, based on this requirement, one cannot say a striking off of the matter would be wholly justified. Maybe other requirements, when read holistically with it, may point otherwise.

COMPLEXITY OF THE CASE, ACTUAL AND POTENTIAL PREJUDICE TO THE DEFENCE AND THE STATE INCLUDING THE LOSS OF EVIDENCE

[82] The first applicant complains that when he was arrested he was 62 years old. He is presently 67 years old and will be 68 years old in March 2012. The result hereof is that the events pertinent in the case are likely to diminish gradually from his memory due to advancing years and/or ageing. Furthermore, witnesses are likely to die or emigrate, resulting in serious prejudice for them as the accused as well as the administration of justice. He further avers that due to the negative publicity generated by their arrest and this trial, potential witnesses are likely to stay clear of them lest they are also tainted or painted by its stigma. Furthermore, they have already expended substantial amounts to conduct their defence and further delays will aggravate the financial prejudice.

[83] As submitted by the respondent, correctly in my view, most of the evidence herein consists of documents. As such any witness is in a position to refresh his/her memory before testifying. The respondent also accused the applicants of embarking on an operation to destroy documentation that related to the Sable, Datacor/Cortech and Power Pack Pension Funds.

[84] It is so that any prosecution is by its nature wont to entail finances by the accused. In my view, it is unavoidable that in a complex and protracted prosecution as in the main case involving the parties herein, expenses and fees are a natural corollary thereof. Only when the delay becomes or is viewed as being inordinate and/or unreasonable must an accused person be relieved of his/her burden of having to pay counsel or his/her legal representatives by either permanently stopping the prosecution or striking the case off the roll in terms of section 342A(3)(c) of the Act.

[85] It is my finding here-on that the issues the parties are complaining about are naturaliae of any prosecution. Fraud cases are always very complex and serious. Equally the defence thereto would be expensive. Sight should not be lost of the fact that the legal aid system financed by the State can always be utilised. Accused persons make conscious and informed choices and the applicants have made their own choices that must be respected. However, in the peculiar circumstances of this case at this stage, this Court can only sympathise with them.

[86] The first applicant also made mention of the fact of the existence of a family trust in the United Kingdom wherein resources including his are paid in for the use and wellbeing of the trustees and its beneficiaries. He avers that as a result of this case, the British authorities have embargoed the utilisation of the proceeds or resources in that trust detrimentally affecting other members of his extended family in the United Kingdom.

[87] The respondents explained or responded by stating to the effect that what happened to that family trust had nothing to do with the prosecution in this case. That it was embargoed by the authorities in the United Kingdom for reasons known to them.

COMPLEXITY OF THE CASE

[88] As already stated above, this case is very complex. The applicants however have a different view. At paragraphs 67 of their founding affidavit they deposed among others as follows:

“Although it cannot be argued that the charges presently faced by WJC (Accused 2) and I (Applicant 1) are not by their very nature serious and complex, it is respectfully submitted that same are not of a more serious nature or more complex than most fraud and theft related cases. In this regard, WJC and I are unable to discern why the matter cannot be brought to finality on an expedited basis.”

[89] I have gone through the papers filed of record herein and am satisfied that the charges herein are complex. It is the reason why the applicants even want to be spoon-fed by being pointed to every allegation in the indictment as to how it is substantiated. Their above statement is in direct conflict with their own assertions that they are unable to make head or tail as to what is happening in this case, hence they wanted to be guided by the respondent.

[90] The complexity of these issues to be decided in this case cannot be denied.

FURNISHING OF INFORMATION TO THE ACCUSED

[91] After perusing both the applicants’ and the respondent’s versions herein the following is discernable:

91.1 The first indictment setting out the charges against the accused were furnished to the accused’s attorneys during early 2007. A revised general indictment was served on the accuseds’ attorneys before October 2007. In this indictment the applicants/accused were still cited as accused 10 and 11 respectively.

2. After the separation of trials which was ordered on 5 May 2008, an updated indictment in which the accused are cited as accused 1 and 2 respectively was furnished to their attorneys during October 2009, particularly, on 27 October 2009.

2. Allegations were made by the respondents, which allegations were not contradicted squarely or with any conviction, that the updated indictment in essence differed very little from the indictments previously furnished to the accused. The results of this is that by October 2009 the accused ought to have known very well or with sufficient particularity what the allegations are against them.

2. Based on the final indictment furnished to the suspects or the indictments given to them, the accused made the following requests for further particulars:

91.4.1 On 7 December 2007, Peter Ghavalas and three others, i.e. accused 1 to 4, filed a request for further particulars on the indictment. On 10 December 2007 Alexander Forbes (accused 6) filed a request consisting of 120 pages. The accused herein filed a request on 6 December 2007 consisting of 67 pages.

2. All the above requests for further particulars were dealt with by the respondent at the same time. The answers thereto consisting of a total of 704 pages were furnished to the requests on 18 February 2008.

[92] It is also noteworthy that the accuseds’ attorneys acknowledge the complexities herein when they stated in paragraph 9 of Annexure AWJ 8 attached to the papers herein that preparation for the initial interlocutory hearing can be effectively concluded if the nucleus of the docket has been furnished to the defence. The parties are agreed that the nucleus of the docket is the inspection reports which were provided to the accused on 19 November 2007.

[93] According to the investigating officer, Captain Judeel, he handed over the contents of the case docket to the accuseds’ attorneys as follows:

1. A1-A432 on 27 July 2007;

2. A433-A435 on 17 September 2007;

3. A436-A441 on 19 November 2007;

4. A442-A500 on 14 November 2010; and

5. A501-A583 on 15 March 2011.

[94] This confirmation is contained in Annexure “GB 9” to the paginated papers herein. From the above it is clear that most of the affidavits and evidential material was supplied to the accused by 4 November 2010. Most of the documents on which the State case is founded form part of the various inspection reports which formed part of the docket furnished to the accused on 19 November 2007.

FURTHER EVALUATION OF THE FACTS

[95] A closer scrutiny of the applicants’ case reveals a picture in which the applicants seem as if they are the only two accused to be dealt with by the State. The impression one gets at a glance is that the applicants are trying to create the impression that the representatives of the State are simply sitting idle while they (the applicants) are suffering all the prejudice.

[96] It is my considered view and finding that the applicant, at the very least, ought to have been aware of the enormous proportions or of the complexity of this case.

[97] There is also evidence by the respondent that on 2 December 2009 as well as during March 2011, at meetings between the defence counsels and attorneys on the one side and the State’s representatives on the other, the applicants’ legal representatives are said to have told the prosecutors that they are not going to read all the documents supplied to them and requested the State to point out to them those documents as well as those portions in those documents that constitute the State’s evidential material.

[98] I am not convinced that the above was what was envisaged when the law was amended to allow accused persons to be supplied with copies of indictments and dockets.

[99] The above regardless, the prosecution still volunteered to give the applicants and their legal representatives access to the electronic linkage system of allegations in the indictment to documents in the docket as set out herein before.

[100] In Bothma v Els 2010 (1) SA 184 (CC) the Constitutional Court had to consider the relevance of pre-trial delays and what protection, if any, the Constitution gives in relation to such delay. The court held among others that major pre-trial abuses by the State are now firmly prohibited by the Constitution. The court further confirmed that once someone becomes an accused, such a person has the right to have the trial begin and conclude without unreasonable delay.

See also: Crookes v Sibisi and Others 2011 (1) SACR 23 (KZP) at para [31] page 196h-197b.

[101] The court further held that sections 12 and 35 of the Constitution should be viewed in seamless conjunction, providing carefully throughout or through procedural protections designed to prevent a repetition of the grievous abuses of people’s rights and dignity experienced in the past.

[102] At paragraph [75], page 215c the court further held that it is simply not fair for the State to prosecute someone and then deliberately or through an unacceptable degree of negligence deprive that person of the wherewithal to make a defence.

[103] In S v Jackson & Others 2008 (2) SACR 274 (C) the court reiterated that the primary duty to ensure that the constitutional rights of accused persons to have trials begin and being concluded without unreasonable delay is vested in the presiding officers, and section 342A(3) of the Act is one of the tools to be used.

[104] Courts are also enjoined to ensure that systemic factors such as staff shortages and unmanageable workload within the DPP’s office are not endangering the course of justice and prejudicing accused persons.

[105] In Broome v Director of Public Prosecutions, Western Cape & Others; Wiggins & Another v Acting Regional Magistrate, Cape Town & Others 2008 (1) SACR 178 (CPD) the court had to deal with a case that had been delayed for 7 years. The court held among others that on a conspectus of all the facts, the prosecuting authority had been responsible for an undue and excessive delay and that the fundamental rights of the accused to a speedy trial had been infringed. It also found that the undue delay of seven (7) years and the consequential loss of evidentiary material is sufficient to make a finding that the accused will suffer irreparable trial prejudice in preparing a proper defence.

[106] In this case we are dealing with no evidentiary material has been lost and the period in issue does not come near the 7 year period in issue in the Broome case. Furthermore, the applicant’s submission of witnesses or the accused forgetting some of the evidence was speculative and in any event, in my view, adequately countered by the respondent.

[107] On the other hand, in order to determine the reasonableness of the delay, this Court must consider those factors listed in section 342A in order to make a value judgment. In Sanderson v Attorney-General, Eastern Cape (supra) the court put it as follows at paragraph [36]:

“The qualifier ‘reasonableness’ requires a value judgment. In making that judgment, courts must be constantly mindful of the profound social interest in bringing a person charged with a criminal offence to trial, and resolving the liability of the accused … The entire enquiry must be conditioned by the recognition that we are not atomised individuals whose interests are divorced from those of society. We all benefit by our belonging to a society with a structured legal system; a system which requires the prosecution to prove its case in a public forum. We also have to be prepared to pay a price for our membership of a society, and accept that a criminal justice system such as ours inevitably imposes burdens on the accused. But we have to acknowledge that these burdens are profoundly troubling and incidental. The question in each case is whether the burdens borne by the accused as a result of delay are unreasonable. Delay cannot be allowed to debase the presumption of innocence, and become in itself a form of extra-curial punishment.”

[108] In casu, as stated previously, in addition to the other allegations of delay and impropriety alleged by the applicants, they also principally complain that the “evidence” or supplementary affidavits of Ghavalas, the main State witness and that of Papadakis, the financial expert, are not forthcoming. The respondents alleged without being gainsaid during argument and in the heads of argument that the affidavit of Papadakis, the forensic auditor, have been handed to the applicants, meaning that only Ghavalas’ affidavit is still outstanding. It is on this basis, that they do not have Ghavalas’ supplementary affidavit, that they aver they are not able to discern the case against them and that they suffer severe prejudice in that they are unable to properly prepare for trial.

[109] It is my considered view that the fact that the outstanding affidavit is a supplementary one presupposes that the applicants in fact have other affidavits allegedly made by Ghavalas and filed in the docket. The main factor in my further view is that since all parties are agreed that the nucleus of this case is the reports compiled in respect of the various pension funds, it is unlikely that there would be any such prejudice as professed by the applicants, the prevailing circumstances being taken into account.

[110] The applicants demand that they be placed in possession of a condensed docket containing only the affidavits and documents relating to their specific part of the case is in my view unreasonable. It is not a requirement that whenever an accused’s case is separated from the main body of a case, a separate docket should be compiled for that purpose on pains of that separated case being struck off if the separate docket is not forthcoming. In my view, it may only be a camaraderie gesture between the protagonists if the prosecution does so. It is not, in my view, obliged to do so. The generally accepted practice is for the separated case to be run from the main docket.

[111] Another aspect is the so-called “completed and final docket”. As stated above, there cannot be a complete and final docket in a prosecution as investigations are on-going.

[112] My understanding of the applicants’ demands and complaints is that in essence they are not prepared for and ready to proceed to trial solely or mainly because the State did not provide them with all the necessary information (according to them) to do so.

[113] It is my considered view and finding that to agree to and authorise such a request is tantamount to starting a dangerous precedent that will not stand the proper administration of justice in good stead. Cases will also be delayed unnecessarily while all the indulgences like application for separation and further particulars are attended to and there would be a flood of otherwise unjustifiable applications in terms of section 342A which would have been premised on a wrongly sanctioned or recommended rule of practice.

[114] The Ghavalas plea and sentencing agreement makes very interesting reading when regard is had to the allegation made by the applicants:

1. It is specifically stated in paragraph 21 thereof that accused 2, as administrator, knew that the Registrar of Pension Funds when asked to grant section 14 certificates, was not placed in a position to be fully aware of that which was being asked of him. This can be deduced from Annexure GB 2 of the paginated page 310.

2. In paragraph 32 of the agreement it is stated that Ghavalas and the administrators who placed the material before the Registrar, which includes the accused herein, were aware that the latter would be mislead and they also knew that the section 14 certificate would be granted in circumstances where the Registrar would not otherwise have granted it; and

3. In paragraph 45 of the agreement dealing with the two counts of money laundering which are part of the charges the accused/applicants herein are facing, Ghavalas specify the amounts paid to first applicant herein as well as the pension funds in regard of which the amounts were paid.

[115] This in my view clearly illustrates the paucity of credibility on the part of the applicants which casts a dark shadow over the purpose and intentions behind this application.

[116] I consequently agree with the respondent’s assertion that there cannot be in existence a principle in criminal law and procedure that an accused must be furnished with affidavits of witnesses containing each and every detail in their evidence. It is so that the purpose of discovering the affidavits is to appraise the accused of the case he has to meet and to prevent trial by ambush.

[117] I am satisfied that from the papers filed herein that the applicants/accused are well appraised of what Ghavalas will be testifying about. There is correspondence exchanged between them and the respondent, especially during February 2011, as well as numerous documents in the docket from the contents of which it is apparent that Ghavalas will identify and authenticate them when he testifies. These documents include correspondence between Ghavalas and other role players, inclusive of those agreements that were drafted by him and which the applicants are or at the least ought to be aware of.

[118] It can be so that case dockets at times become too bulgy. That would be unavoidable as it would have been precipitated by the nature of the investigations. What should not happen is that the defence be taken by surprise at the trial with affidavits and/or documents that were not previously discovered. It is my view and finding that if it happens that the prosecution be obliged to come up with a further statement of a witness during the trial, such a state of affairs can be addressed by just standing the matter down for the defence to consult on it and if need be the defence may ask for a postponement for a period commensurate with the nature of the new evidence emerging.

[119] As regards the indictment, it is my considered view and finding that it does not require Ghavalas’ supplementary affidavit to obtain proper instructions from the applicants there-on. On top of that, there is a remedy provided by section 87 of the CPA – they can ask for particulars and even go for further and better particulars if not satisfied with what they received.

[120] From what was said above, this is the course the applicants followed, not once, but several times. Consequently this ground cannot avail the applicants.

[121] Nowhere in the affidavits do the applicants point out a single allegation in the indictment which they could not understand. It is thus not understandable why they did not make use of section 87 of the CPA to request further particulars since October 2009. The respondents have in available correspondence challenged them to ask for further particulars but they did not do so.

[122] Their reposté that they are not in a position to request further particulars because they cannot identify documents relating to allegations they have problems with is lacking of merits. They could have circumvented that difficulty by making use of section 87.

[123] The applicants could have also objected to the indictment in terms of section 85(1)(c) of the CPA on the ground that it does not disclose an offence or in terms of section 85(1)(d) that the charge does not contain sufficient particulars of any matter alleged in the indictment. That could found or justify a court to order that those particulars be furnished if the objection is well-founded. The court can even quash the charges should the State fail or refuse to furnish such particulars.

[124] The prejudice alluded to in section 342A is qualified as “substantial prejudice”. Before the applicants can complain to court that they are suffering substantial prejudice as a result of the respondent’s conduct, they should have first availed themselves of the remedies contained in sections 85 and 87 of the CPA.

[125] The applicants also complain of very minute and seemingly insignificant aspects to bolster this application. For e.g. in paragraphs 17 and 18 of the further supplementary affidavit deposed to by their own attorney, Mr D’Oliveira, the latter complains about the number of manuscript additions to an affidavit without same being attested to or authenticated by the deponent; the fact that the deponent of another affidavit has failed to confirm her oath, thereby rendering the contents thereof valueless from a probative perspective.

[126] It is not clear how prejudicial the above aspects would be and the affidavit does not set out in what respect this would be so. Unfortunately, instead of confronting real issues that must be eliminated to carve a way for this case to run, it is my view that the parties herein are engaged in point-scoring and splitting of hairs. That, in my further view, was not what the legislature had in mind when section 342A was promulgated.

[127] In Du Toit en Andere v Direkteur van Openbare Vervolgings, Transvaal: In re S v Du Toit en Andere 2004 (2) SA 584 (T) it was among others the view of the court that the investigation in a criminal case does not end with the arrest of the accused or even after the trial has started to run. This, in my view scuppers the idea of there at some stage being a “completely completed and/or finalised docket” (my emphasis).

[128] The applicants herein, although armed with a docket or dockets in relation to investigations herein seem to have decided to just sit back and sulk until they, unilaterally, are satisfied that they have received a “final docket” from the prosecution. This presupposes that even if the respondents could set the matter down for trial in February 2012, they would not be ready to proceed. They are therefore equally to blame for the delays herein.

[129] It is important that something be said herein about the postponements that took place in this Court, i.e. High Court and who was to blame or responsible therefore.

[130] After his arrest on 14 March 2006 the first applicant appeared in court the very following day and was released on bail subject to specific conditions. He appeared in the Regional Court on several occasions while investigations were under way and until a trial date was fixed in the High Court. His first appearance in the High Court was on 1 October 2007 and the matter was postponed to 17 to 28 March 2008 so that preliminary issues could be determined. However, before that scheduled date could arrive the applicants proceeded with a substantive application for the separation of trials on 12 March 2008. What was scheduled to happen on 17 to 28 March 2008 had of necessity to stand down or be held in abeyance until this application was finalised. It was only finalised on 5 May 2008 when the application was granted. The main case was postponed to 28 July 2009. On 28 July 2009 the case was postponed to 12 April 2010 on which subsequent date it was again postponed to 11 April 2011.

[131] At no stage during all these postponements did the applicants object to any of them. In fact the respondent alleged in the papers and in argument that the postponements were by mutual agreement between both the prosecution and the defence. When responding hereto during argument, counsel for the applicants stated that it is true that the defence never opposed the applications for postponements because they reckoned it would have been an exercise in futility as the respondents came up therewith as fait accompli and opposition thereto would have been futile

[132] It is worth noting that on each of the last three postponements mentioned above the postponements were for between 8 to 15 months at a time. It is my view that these lengthy intervals in between appearances were indicative of the complexity of issues involved.

[133] Practically therefore this case was postponed in the High Court three (3) or four (4) times. Viewed in that light therefore, the delay should in my view not be seen as being inordinate. If one looks at the lapse of time, one can be tempted to say five (5) years before the trial begins to run is an unreasonably long time. However, to do so would be to ignore material circumstances that led to the seemingly lengthy period. It would also discount and ignore the interlocutory applications and the other prosecutions under way under the same docket.

[134] As regards the effects of delay, if any, on the personal circumstances of the first applicant and possible witnesses, I have already dealt with it earlier on. To add to what I have already said, the first applicant is truly out on a hefty bail. I will not go into the reasons advanced why such a hefty amount was fixed save to reiterate that it is agreed that this amount was commensurate with the seriousness of the offences in question when it was fixed. The amount and the bail conditions were agreed upon. It is so that the first applicant alluded in the correspondence quoted elsewhere in this judgment that his bail money should be returned to him and the travel documents in the hands of the investigating officer also be returned to him. He went further to demand that the condition that he not enter any international departure section of any airport or port of entry also be done away with. Why he demanded the above is not the subject of this enquiry today. What is material is there are procedures laid down for any accused who wants his bail conditions done away with or amended. There is evidence by the respondent that the applicants never availed themselves of the available avenues or procedures.

[135] Why the applicants are now trying to down-play the seriousness, extent or complexities of the charges herein is not clear. This is despite they also acknowledging earlier that the indictment was complicated, hence they were also finding it difficult to understand it.

[136] Justice delayed is justice denied. It is in the interest of justice and the protagonists that this case be started and completed as soon as possible. Both sides are enjoined to ensure this very important tenet of the criminal justice system is respected and given effect to. After thoroughly perusing the papers and authorities referred to by both parties, it is my considered view that the ruling I intend to hand down would address this aspect, balancing the equation between the applicants’ point of view on the one hand and ensuring justice is not only done but also be seen to be done on the other hand.

[137] The case against the applicants revolves around fraud being perpetrated against defenceless pensioners who invested their pension nest-eggs in the schemes defrauded. Those are the biggest losers in this whole mess and they deserve to know what happened to whoever they were told was responsible for their impending poverty or lack of sufficient means. If this matter is struck off the roll, albeit for the time being, their confidence in the criminal justice system will definitely go down to zero. Assurances that it may be reinstated one day will not console them. As such their lot will be impacted negatively if the matter is struck off the roll. It is so that if the circumstances justify such a striking off, then such a route must be followed as the interests of the defence i.e. the applicants are equally important. What should be guarded against seriously is the possibility and consequently the danger of the striking off impacting negatively against the administration of justice in general.

[138] The fraud and money laundering in the pension funds in issue herein have been widely reported on in the mass media. As such the myriad of employees contributing to the pension funds as well as the retirees are waiting with bated breaths, some with real fear and trepidation to hear what has happened to their moneys. The Ghavalas specific case has accounted to more than R212 million of pension surpluses being misappropriated.

[139] The prosecution of these cases have potentially profound consequences for a lot of people. The man in the street wants to see justice being done. It is true that the course of a trial should not be made subservient to the whims and/or sentiments of people in the street but they cannot be ignored.

[140] The amount mooted in the case involving the applicants herein is approximately R150 million. It is in the public interest as well as in the interest of justice that where possible without infringing on the fundamental rights of the accused persons the State be afforded a fair chance or opportunity to do the necessary.

THE GHAVALAS SUPPLEMENTARY AFFIDAVIT

[141] As stated above, the golden thread going through the application herein is the role to be played by Ghavalas and/or the availability of his supplementary affidavit.

[142] After this aspect dragged left, right and centre, at the end of the day the respondent conceded that Ghavalas is going to be called as a witness in this case and has been lined up as a witness also in the pending trial of Mr Nash and Others in the Johannesburg Regional Court.

[143] It is so that there are other affidavits and section 105A agreements ascribable to him. Yet the fact remains he has been busy writing a supplementary affidavit from as far back as the day he concluded this plea and sentencing agreement.

[144] The respondent’s explanation for the non-availability of this affidavit is in my view unacceptable : It is alleged that the draft thereof has been sent to him in Australia to peruse and sign under the guidance and supervision of his attorneys there. When I asked counsel for the respondent why the investigations officer could not just fly out to Australia and finalise this affidavit there their response was that the State did not have the resources – read money – for that purpose. In my view, this is a very flimsy reason indeed. It is common cause that enormous amount of money is being utilised in Government Departments to cater for luxury vehicle purchases, “bos berades” and/or functions. How money would thus not be available for purposes of finalising a very important trial within the same departmental structures is very difficult to fathom. After all, this very witness was supposed to testify in the Nash trial in the Johannesburg Regional Court, and that case is standing down presently for one or other reason. The applicants surmised that that case was stood down because Ghavalas was not available to testify but the respondents deny those suppositions and aver the postponement of that case was occasioned by other reasons. It is also a known fact that Mr Nash has launched an application in terms of section 342A in that court. The jury is still out on this. I will not make a specific finding on these allegations. What is material here is that the unavailability of Ghavalas’ supplementary affidavit is contributing to the factors that cause the delay in this case.

[145] The respondents have undertaken to have the affidavit attested to by the South African High Commission in Australia in time for a full trial by 4 February 2011 if a postponement of this matter is granted, which is what they are praying for vis-à-vis the applicants’ application.

[146] The above is part of what is termed systemic delays to a trial. In Sanderson v Attorney-General, Eastern Cape (supra), Kriegler J said the following on this aspect at 243h-244a-b at paragraph [35]:

“[35] The third and final factor I wish to mention is [the] so-called systemic delay. Under this heading I would place resource limitations that hamper the effectiveness of police investigation(s) 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 such a stage. Even if one does accept that systemic factors justify delay, as one must at 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.”

See: R v Morin (1992) 8 CRR (2d) 193 at 202.

Mills v The Queen (1986) 21 CRR 76 at 144.

Barker v Wingo [1972] USSC 144; 407 US 514 532 (1972).

[147] In our case, no viva voce evidence was led to indicate to this Court any idea of what the average systemic delays occur in this Court’s jurisdiction. As such, as the learned judge of the SCA observed, I find it difficult to determine how systemic delays in this matter measure up to the average systemic delays in this Court in general for same to be regarded as being proof or clearly indicative of inordinate delay in the prosecution of this case.

[148] In Wild and Another v Hoffert NO and Others 1998 (2) SACR 1 (SCA), Kriegler J again held that inferences of inordinate delay may at times be made from the available facts. At paragraph [25] the learned judge held as follows:

“Once the criminal case has been struck off 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. That is certainly what counsel for the appellants forcefully contended in this Court, and seems to be what was found in the Court below. Such a conclusion is more-over 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 appellant’s case under s. 25(3)(a), the answering affidavit does not proffer any explanation. In such a case as this, where there is a period of ostensible culpable inactivity on the part of the prosecution, an inference of unreasonableness can more readily be drawn if no explanation is proffered.”

[149] The section 25(3)(a) mentioned in the above quotation refers to the Interim Constitution of the Republic of South Africa that has been superseded by the current applicable and active Constitution of 1996. The corresponding section in the current Constitution is section 35(3)(a).

[150] The applicable expression in the above quotation is:

“… where there is a period of ostensible culpable inactivity …”

In our present case there was no ostensible period wherein the respondents can be said that to have sat idle. There can therefore not be said there was a period of ostensible culpable inactivity on the part of the respondents. They were kept busy by interlocutory applications by the applicants herein as well as others from other co-perpetrators in the Ghavalas schemes. The principles in the above case can thus be distinguished from the principles borne out by the facts in our present case.

[151] As confirmed in Bothma v Els (supra), although section 35(3) does not deal expressly with pre-trial delay, it must be construed and understood in the light of the value accorded to human dignity and freedom in our Constitution. Freedom is protected by s 12 of the Constitution. It provides that everyone has the right to freedom and security of the person, and expressly excludes both the right not to be deprived of freedom arbitrarily or without just cause, and the right not to be detained without trial. It also provides that no one should be tortured in any way or treated or punished in a cruel, inhuman or degrading way. This section also protects freedom in the context of criminal law.

[152] Thankfully in our case, the applicants, especially the human one, the first applicant, is out on bail. The treatments alluded to may be read in to refer to the delay in the trial. I have already found that both the applicants and the respondent are to blame for the delays that occurred in this case.

[153] I subscribed to the view expounded by the learned judge Sachs J in this Bothma v Els case where he stated as follows at page 199b-c:

“In this context, then, the delay in the present matter must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irremediably taint the overall substantive fairness of the trial.”

[154] The Sanderson case deals with the consequences of delay after a person has become an accused, and not with the effects of pre-trial delay. Nevertheless, there should always be a balancing process in which the conduct of both the prosecution and the accused are weighed and the requirements mentioned at the beginning of this judgment examined; those considerations or requirements being –

• the length of the delay;

• the reason the state institution assigns to justify the delay;

• the accused’s assertion of a right to a speedy trial; and

• prejudice to the accused.

[155] The said balancing process is the basis for deciding whether a stay should be granted as a result of trial prejudice flowing also from pre-trial delay. To this milieu should be added the nature of the offence and its complexity.

[156] Regard being had to all of the applicants’ concerns, submissions and complaints, what this investigation boils down to is that it is up to this Court to ensure that the applicants have a fair trial. It will be ill-advised at this stage to recite the requirements divorced from the factual situation actually prevailing in this application and the criminal case itself or rehearse scenarios. Taking into account the interests of the beneficiaries of the pension funds allegedly defrauded as seen also in the light of the guilty pleas already tendered and the facts emanating from such pleas, and after the witnesses, if this application is not granted, have presented their evidence, an application may be made for a discharge on the ground that no prima facie case has been made out. However, it is not desirable to speculate on the different forensic permutations possible. What is certain is that if the trial proceeds to its conclusion and all the available witnesses whom the parties wish to call are led, the trial court would be obliged to give due weight to all the difficulties that the parties would or had encountered, taking into account also, the principles set out for the fairness of a trial.

[157] The other balancing act in an investigation such as ours presently is that between the delay in the trial and the consequences of hurrying a trial unduly. Moosa J dealt with this aspect in S v Jackson and Others 2008 (2) SACR 274 (CPD) where he held as follows, which obiter dictum in my view rhymes with the facts and situation prevailing in this application:

“It is common cause that the postponements throughout the proceedings were consensual and the appellants, at no stage of the proceedings, raised any objections thereto. The question that arises : can it be said that the cumulative effect of the delays, during the various stages of the proceedings, from the start of the proceedings in the district court to the conclusion of the trial in the High Court, is unreasonable? Before answering the question it is perhaps appropriate to make a few preliminary remarks. In the first place, there are two interesting and contrasting sayings with regard to the administration of justice. The one is : ‘Justice delayed is justice denied’. The other is : ‘Justice hurried is justice buried’. In the proper administration of justice, I think that a balance has to be struck between delaying justice on the one hand and hurrying justice on the other hand.”

[158] In the peculiar circumstances of this case, it is appropriate to reflect on public perceptions and criticisms regarding the preferential treatment of certain cases. Criticisms have been levelled against the State, by members of the public, that the case involving the rich, famous and/or prominent receive preferential treatment; their right to a fair trial is respected and their cases are fast-tracked, despite the fact that some of them are out on bail. There is also a perception that the poor and the indigent are discriminated against because they are refused bail and languish in prison for many years before their trial is completed. Equality before the law is an important constitutional imperative that needs to be vouchsafed and protected, lest our criminal justice system fall into disrepute.

See: S v Jackson and Others (supra) at 287.

[159] I also fully agree with Moosa J in the above case that what militates against the effective implementation and realisation of the right to a fair trial is the lack of resources. In our young democracy there are competing demands for resources and constraints placed on such resources cannot be ignored. On the other hand, there is a constitutional duty on the State to ensure that sufficient resources are placed at the disposal of those agencies, like the prosecution wing of the Department of Justice, that are involved in the delivery of justice, lest the right to a fair trial become meaningless, illusory and condemned to a paper right.

See also: S v Jaipal [2005] ZACC 1; 2005 (1) SACR 215 (CC)

(2005 (4) 581[2005] ZACC 1; ; 2005 (5) BCLR 423) at paragraph 38.

[160] The workload and the state of the rolls of the Regional Courts and our High Courts, because of the lack of resources, are graphically illustrated in S v Tielman, Case No. RSH 5/99 : Appeal No. 7/04 wherein the regional magistrate stated the following among others:

“Ek wil net meld dat hierdie saak kom al oor tydperk. Dit is broksgewys voor hierdie hof geplaas soos telke sake wat voor hierdie hof geplaas word. Hierdie hof op hierdie stadium staan gebuk met 40 deelsverhore wat gehanteer moet word ten spyte van oorvol hof rolle. Vandag se hofrol sien sodanig daarna uit. Daar is ‘n deelsverhoorde verkragtingsaak op die rol. Dan is daar drie voorlopige sake wat op die rol geplaas was en dan is daar een, twee, drie, vier verhore geplaas vir vandag plus nog die deelsverhoorde saak waarmee ons tans besig is. Dit is die werskdruk waaronder ‘n daaglikse hofrol gehanteer word.”

[161] To reiterate and emphasise, our courts, like all progressive jurisdictions, have all along recognised three types of prejudice that an accused person can potentially suffer for want of a speedy trial. The first is loss of personal liberty resulting from detention or restrictive bail conditions; the second is the impairment of personal security resulting from loss of reputation, social ostracism, loss of employment or income, and the third is trial related prejudice, such as witnesses becoming unavailable, disappearing or dying, or memories of witnesses fading because of passage of time. However, there may be instances where the delay may work for the benefit and advantage of the accused, for instance, where critical witnesses for the State become unavailable and the State may thus find it an up-hill to prove its case.

[162] As already stated above, trial related prejudice may also seriously impact on the question of whether there was a fair trial or not. To deal with that eventuality, the law-makers promulgated section 342A of the CPA.

[163] In this case, there is no clear-cut evidence that the applicants suffered trial related prejudice as a direct consequence of the sole instrumentality of the prosecution. It is my considered view that this trial is in a position to start. As such, it is my finding that there was no trial related prejudice to the applicants which was such that it would render the eventual trial unfair.

[164] As regards the other species of prejudice, it is my considered view that I have already adequately dealt with them elsewhere in this case.

CONCLUSION

[165] As a concluding remark, it is my considered view and finding that this Court should be loath to elevate to a bench mark the average periods taken for criminal cases to reach finality. It is indeed a sad indictment of our criminal justice system that it takes more than four to five years from date of arrest for an average criminal case to reach the stage where it should start running. In this case, the applicants also contributed to the state of affairs by their attitude and conduct towards what should happen as well as the interlocutory applications they engaged themselves in, which contributed to the delay.

[166] The abovementioned “averages” reflect a state of affairs which we, as guardians of the Constitution, cannot and should not quietly condone, let alone accept as the norm or benchmark by which unreasonable delay is to be measured.

[167] In this instant matter, it took those five years from date of arrest of the applicants to date where a date of hearing is still being a bone of contention. Although in general this overall period is wholly unreasonable when viewed on its own, it is my considered view and finding that the overall circumstances as informed by the various interventions by both parties have resulted in a situation where this period cannot at present be said to have resulted in a breach of the applicants’ right to a fair trial.

[168] As a consequence, this Court must ensure that the order it is about to issue addresses the concerns of the applicants and also safeguards the interests of the greater populace as it also ensures that the criminal justice system and the general administration of justice are enhanced.

ORDER

[169] The following order is thus made:

169.1 The application to have the criminal case herein struck off the roll in terms of section 342A(3)(c) of the Criminal Procedure Act, 1977 (Act 51 of 1977), as amended is not successful;

2. The above case is postponed for trial in the sense of evidence being led, to 10 April 2012;

2. The respondents are ordered to ensure that the applicants are placed in possession of the supplementary affidavit of Peter Ghavalas on or before 10 February 2012;

2. Should the matter not proceed on trial on 10 April 2012 except where it is by mutual consent or as a consequence of a request for a postponement by the applicants, then the provisions of section 342A(3)(c) of Act 51 of 1977 shall kick in and the matter shall be regarded as being struck off the roll until reinstated with the written consent of the National Director of Public Prosecutions on that date;

2. Because the applicants are not entirely unsuccessful, the respondent is ordered to pay the costs of this application.

_____________________________

N F KGOMO

JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

FOR THE APPLICANTS ADV A C FERREIRA

ASSISTED BY ADV I ELLIS

INSTRUCTED BY RUDOLPH, BERNSTEIN AND

ASSOCIATES, SANDHURST

TEL NO: 011 669 7600

FOR THE RESPONDENT ADV JAN PRETORIUS

ASSISTED BY H NXUMALO

INSTRUCTED BY STATE ATTORNEY

c/o SPECIALISED COMMERCIAL

CRIME UNIT, PRETORIA

TEL NO: 012 401 0425

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