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The time frame of criminal matters and why certain cases can take years to finalize
01 July 2021  | Tumi Mokobe
 

Sometimes you as an attorney may be placed under pressure by the client to finalize a criminal matter, however what clients and lay people do not understand is that you as an attorney can only do much to a certain extent, the State does all the work prior to trial.

Criminal matters can become very complicated and time consuming. Certain criminal matters may take up to a decade to finalize. It is the duty of an attorney to inform his/her client of same when taking upon a criminal instruction, or any litigation matter to be precise.

Procedurally, in Criminal matters, the accused will get a first appearance date after getting arrested and being released, either by warning or after being granted bail. The matter will usually be postponed at the request of the State for further investigations and same has been completed. In more complex cases, essential evidence like blood samples or ballistics of weapons may delay criminal matters for a very long period as same can take years to be thoroughly evaluated and be made available to the court for the matter to be set down for trial. However, Section 342A of the Criminal Procedure Act makes provision for the defence attorney or the accused him/herself to bring forth an application to request that the matter be struck off the roll and the matter be brought back on the court roll as soon as the State has its house in order. The latter mentioned section states that:

342A(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 adviser, the State or a witness.

The State (2) In considering the question whether any delay is unreasonable, the court shall consider the following factors:

(a) The duration of the delay;

(b) the reasons advanced for the delay;

(c) whether any person can be blamed for the delay;

(d) the effect of the delay on the personal circumstances of the accused and witnesses;

(e) the seriousness, extent or complexity of the charge or charges;

(f) actual or potential prejudice caused to the State or the defense 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;

(g) the effect of the delay on the administration of justice;

(h) the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued;

(i) 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-

(a) refusing further postponement of the proceedings;

(b) granting a postponement subject to any such conditions as the court may determine;

(c) 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;

(d) where the accused has pleaded to the charge and the State or the defense, as the case may be, is unable to proceed with the case or refuses to do so, that the proceedings be continued and disposed of as if the case for the prosecution or the defense, as the case may be, has been closed.

 

The above mentioned legislation is aligned with section 35 of the Constitution, which explicitly states that every accused person has the right to a fair trial. A fair trial may be described as a trial which commences and should not be unreasonably delayed by the State.

The onus subsequently shifts to the State in order to prove to the court that their request for a requested remand is reasonable and not prejudicial towards the accused.

 

It is also possible for the defense to be the cause of the delay in criminal matters as same can happen as a result of various reasons. Witnesses may be very difficult to locate, the defense attorney may become ill, or even the accused him/herself, which could result in a very lengthy criminal matter which might take years to finalize.

 

Therefore, in light of the above, an accused involved in a criminal matter should be very patient and willing to walk the long road to freedom as these matters can become very lengthy and financially draining in all aspects.  

 

 

 

 
 
 
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Tags: Criminal