The
accused is warned to appear at Court at 08:30 and if he/she fails to appear a
warrant to arrest will be issued.
We as the defense are told not to double book ourselves; however, we wait hours
before our matter is called. There are usually 17 matters placed on the roll;
four of which are partly heard matters and the remaining are all new trial
matters. The magistrate usually arrives at 9 or 10 am. You go to Court not
knowing if your matter is ever going to proceed because it has been postponed since September 2019 and you are already in December 2019. Witnesses are called
left and right and the prosecutor excuses one after the other, informing them
that the trial is not going to proceed because the matter is still new and
therefore the matter has to be postponed. As you look at your watch it is past
eleven and you have been waiting since past 8 for your matter to proceed. You
end up sitting there from half past eight till after two in the afternoon, only
to be told that your matter is not going proceed.
Your client
is upset, you are upset too, your precious time is wasted because your day was
not productive at all and your client's time and money is gone to waste as they
had to take the entire day off from work, only for the matter not to
proceed.
What will the
court do under the above circumstances? Our answer is in section 342A of Act 51
of 1977, which states that an enquiry will be held to investigate the
unreasonable delays in trials by considering the following factors: the
duration of the delay, the reasons advanced for the delay, whether any
person can be blamed, the prejudice to accused and witnesses, the seriousness
of the crime, actual or potential prejudice caused to the state or the defence,
the effect of the delay on the administration of justice, the effect on the
interests of the public or the victims if prosecution is stopped or
discontinued, any other factor which the Court may take in consideration.
What will the
outcome be if the Court finds that the delay was unreasonable? The Court will
make any of the following orders: refuse postponement, grant a postponement
subject to certain conditions which the court deems fit, struck the matter off
the roll where the accused has not pleaded to the charge, and where the accused
has not pleaded to the charge and the prosecution or defence is unable to
proceed continue as though the state or the defence have closed its case, order
the state to pay the accused for the wasted costs incurred by the accused as a
result of an unreasonable delay caused by the state, or if the accused or
his/her legal representative caused the delay either one of the two can pay the
state for the wasted costs incurred, that the matter be referred to the
appropriate authority for administration investigation and possible
disciplinary hearing be conducted against the culprit.
I now know
that justice delay is justice denied and that no one is above the law and it is
time that we act accordingly and avoid any unnecessary delays.