The right to a speedy trial in criminal matters are entrenched within the parameters of the South African Constitution, more specifically in section 35(3) (d). The relevant section reads as follows:
“Every person has the right to a fair trial, which includes the right- (d) to have their trial begin and conclude without unreasonable delay”
Read the Constitution here: www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf
An overburdened criminal justice system, slow state administration, uncooperative police officials and negligence from the state to prosecute are some of the factors to be considered when assessing whether your constitutional rights are being violated or not. When conducting this assessment, you need to employ a good criminal law attorney to guide you through the process.
There are often situations where criminal matters could be postponed for up to 12 times due to the negligence of the state in finalising the investigations, obtaining witness statements or the police docket that is not in front of the court. If there is an unreasonable delay in the process, your criminal law attorney must object to further postponements to ensure your rights are protected. Failure of your criminal law attorney to object to this misuse of the system, could lead to unprofessional conduct from your legal practitioner.
Unreasonable delay by the state to prosecute could lead to:
- The violation of your human rights;
- Prejudice of your pre-trial and trial rights;
- You suffering financial damages or loss;
- An increase in the legal bill from your attorney;
- Problems caused for you at your work, due to absence for constant court appearances; and
- Financial loss due to your absence from your business, if applicable.
It is particularly important to keep a “paper trail” on the history of the proceedings. Your attorney will keep proper records and notes on the negligence of the state, the failure to prosecute and the reasons advanced by the state. At the same instance, it is also important to ensure that you as an accused are not partially or wholly the reason for postponement in the matter. Always keep your side in order before accusing the state of foul play. Attend each court appearance as ordered by the court, do not be late for your court appearance and ensure that you are prepared should you need to testify.
When your criminal law attorney objects to further postponement in the court during your appearance, it could lead to a situation where the matter can be “struck” off the court roll and you can leave as a free person. However, the state can place the matter back on the court roll in the future, once it has finalised the investigations, subject to an order made in terms of section 342(A) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). The state could also be forced to withdraw the case against you or to close the state’s case in a matter where the trial already started. The court has the discretion to allow the further postponement, or to refuse the further postponement of the matter, ensuring that your rights are being protected.
The court has the authority to issue an order for permanent stay of prosecution in matters where there are unreasonable delays in prosecution. This order will be given after your attorney brings a formal court application before the presiding officer. Factors to be considered during this application includes, but is not limited to, the reasons afforded for the delay by the state, the length of the delay and the prejudice which you as an accused will suffer due to the unreasonable delay. If the court orders a permanent stay of prosecution, it means that the state can never again institute criminal prosecutions against you on those specific matters.
In instances where the state violates your constitutional rights due to negligence, you as an accused can institute legal action against the state for any damages suffered by you.
It is always important to ensure that you have an excellent attorney in criminal law matters to ensure that your constitutional rights are not violated. If you have any enquiries, send an email to firstname.lastname@example.org or visit our website at www.hfglaw.co.za.
(This article is an information piece and not a formal legal opinion. HFG Attorneys accepts no liability for damages caused by errors and omissions)
Sources: Criminal Court practice, 2017 (LEAD)
HFG Attorneys / Prokureurs in die Paarl
Criminal Law / Family Law / Civil Litigation / Fire Arms Control Act Specialist