What to do if a case takes too long to come to trial
Is someone you know waiting on remand for their case to come to court? Or perhaps they were granted bail, but can’t get on with their life until the court case is behind them? According to legislation, an accused person is entitled to have their matter heard within a reasonable period. But the period of time that is considered reasonable is not specified. It is a subjective assessment that depends on the facts of each case. However, even allowing for the elastic nature of “a reasonable period”, it is widely agreed that criminal proceedings in South Africa are subject to considerable delays. What causes court case delays and what are the consequences? Is there anything you can do if you are affected?
Prisoners on remand
At the end of 2020, those detained on remand made up one-third of SA’s prison population. A remand prisoner is someone held in custody while waiting for their trial or sentencing. As we have explained elsewhere, when a person is arrested they may be granted bail. Bail is a sum of money they pay to the court when they are arrested that allows them to be released from custody until their trial. In some instances bail is not granted, usually due to:
- the seriousness of the offence
- the risk of re-offending
- the risk the accused poses to themselves
- the need to protect the victim
If bail is refused, the accused is remanded in custody. The justice system constantly weighs up the rights of the accused (who is presumed innocent until proven guilty) and the need to protect society. A prosecutor or magistrate who refuses bail to an accused person does so in the interests of this balance. However, the accused has the expectation that their case will be heard within a reasonable period of time. And that is not always the case.
In April 2020, a report compiled during Covid-19 lockdown by the Department of Correctional Services (“Reduction of remand detention during lockdown: Briefing of Judicial Inspectorate of Correctional Services”) indicated that 4027 remand detainees had spent more than two years in detention. That is two years without trial, and potentially two years out of an innocent life. In that time, it’s possible that a family has lost its source of income, children have lost contact with a parent, etc. Our prisons are overcrowded, and backlogs in bringing cases to trial make the problem worse.
Over-burdened criminal justice system
Our criminal justice system is overwhelmed by too many matters on the court roll. In criminal proceedings, when a case remains on the court roll for an extended period, the defence may file an application to have it struck off, citing the need to afford the state ample time to conclude investigations.
Investigation of delays
Section 342A(1) of the Criminal Procedure Act 51 of 1977 mandates the court to investigate delays that are deemed unreasonable and which may cause substantial prejudice to any party involved. The court’s duty is to ensure the enforcement of the accused’s right to a trial without unreasonable delay. The court is obligated to consider such applications seriously.
A formal hearing is not always required, and a simple inquiry into the reasons for further postponements may be sufficient. Factors influencing the court’s decision in a Section 342A inquiry include the time spent on investigation, the nature of the case, and systemic delays. Prejudice suffered by the accused may include social consequences, such as reputational damage or loss of employment. The process acknowledges that certain cases, particularly financial crimes, inherently are more complex and involve more investigation time. Systemic delays, defined as resource limitations affecting police investigations and court congestion, are considered more excusable than delays caused by ordinary investigations.
When systemic delays are claimed, the accused must present evidence showing that the average systemic delay has been exceeded. After the accused has pleaded, Section 342A(3)(a) and (d) orders may be made, but Section 342A(4) qualifies them, requiring exceptional circumstances, exhausted attempts to expedite, and prior notice. The Supreme Court of Appeal has emphasised the urgent nature of these provisions, stating that a failure of justice occurs if exceptional circumstances do not exist, and proper notice is not given.
If your case is delayed
If someone you know has been waiting an unreasonable length of time on remand or on bail, Section 342A may offer a means of addressing delays in criminal proceedings. Its role is to ensure a balance between the rights of the accused and the need for justice. The court has a duty to consider all factors carefully and adhere to procedural requirements, to maintain a fair and just legal process.
Contact us
Cape Town attorneys SD Law & Associates are experts in criminal defence and bail. If you are waiting for your case to come to trial, and think you have been waiting an unreasonably long time, contact criminal defence lawyer Simon Dippenaar on 076 116 0623.