From bail hearings to trials, there are often unavoidable delays in South Africa’s courts, experts say.
Postponements can sometimes lead to a loss of momentum in cases, causing severe damage in the process.
While court proceedings are often postponed “for further investigation”, Marius Du Toit of Du Toit Attorneys notes that there are other reasons which could cause delays, such as illness (including that of magistrate and judges) or the absence of witnesses.
Du Toit explains that because there are several matters on court rolls, delays can take weeks, months, and sometimes up to a year.
Death of accused and witnesses
According to legislation, an accused person is entitled to have his or her matter heard within a reasonable period. Du Toit said the length of time which is considered reasonable depends on the facts of each case.
He said one of the most drastic things that can happen during a postponement is the death of an accused or even that of witnesses.
“I remember I once had a case where all the state witnesses died in a car accident and the case was withdrawn against the accused. The older the case gets, the more difficult it is for witnesses to recall events and that could also affect the witnesses’ credibility,” he said.
Situations such as these may cause the State or even the defence to end up with weak cases to present to the court.
The death of a party to the State’s case can also result in the withdrawal of the case.
‘Justice delayed is justice denied’
A situation similar to this occurred in the Vlakfontein murder case when the State withdrew charges against murder accused, Fita Khupe, in the Lenasia Regional Court.
The State was unable to find a way forward after Khupe’s co-accused, Ernest Mabaso, committed suicide in his police cell in January after he was moved to the Cape Town Central police station.
Prior to this, the case was beset by postponements. In one instance, it was postponed because of a power failure and on another, Khupe’s lawyer Gerhard Langman asked for a postponement to attend to a family emergency.
Such hurdles are some, but not all, of the reasons behind the principle of “justice delayed is justice denied”, Du Toit said.
Well-known Cape Town defence lawyer, William Booth, told News24 that while delays may have an impact on the accused financially, magistrates are sometimes able to refuse delaying cases and strike them off the court roll if investigations are taking long.
“In whatever way we go, the magistrate or the presiding judge can have an investigation as to what is causing the delay and if he finds that it is caused by whatever party, he/she can make an appropriate order,” he said.
‘Too many people are being arrested quickly’
Section 342A of the Criminal Procedure Act deals with steps that can be taken when court matters take long. Booth, however, adds that this does not give any direction when it comes to costs.
He told News24 that perhaps a costs order needs to be added as a form of sanction for any party (State/defence) that delays a case.
That way, parties will know that if they are responsible for delays in matters, they will pay costs.
Booth adds that another reason for postponements is that many courts, especially lower courts, have many cases on their rolls. In some cases, the matters are not even supposed to end up in criminal courts.
“Too many people are [being] arrested quickly and there are a lot of these cases that should not be dealt with in criminal courts, and that causes clogging of the system.
“Because there are so many cases per day in a court, that causes delays going to a trial and causes postponements…,” he said.
There are other options, some that have already been implemented, Booth said.
One example is to have a diversion for matters, such as drinking or driving or common assault, and have them mediated outside of court to avoid a trial.
“The criminal justice system in South Africa is creaking under the weight of too many matters that are on the court roll and because of this, sometimes the serious matters cannot be quickly finalised,” said Booth.
“They need to look at what is serious, which are the cases that must be continued, which ones can be dealt with in an alternative [way]. They do it, but not as effectively as they should.”