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Mashele v Regional Court Magistrate Nelspruit and Others (4389/04) [2005] ZAGPHC 43 (12 April 2005)

IN THE MATTER BETWEEN

MASHELE, SHADRACK FRANS                                      Applicant
IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
                                    CASE NO: 4389/04
                                    DATE: 12/4/05
REPORTABLE
and

THE REGIONAL COURT MAGISTRATE NELSPRUIT THE NATIONAL DIRECTOR: PUBLIC PROSECUTION
MASEKO, SELLEON MAKHINA
First Respondent
Second Respondent Third Respondent
JUDGMENT
SOUTHWOOD J
         [1]      The applicant applies on notice of motion for the following relief-
         (1)      an order that the judgment of the Nelspruit regional court
magistrate, Mr A.J. Ie Roux, the first respondent, of 13 June
2003 under Nelspruit regional court case number SH1143/02 be
reviewed and set aside;


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         (2)      an order that the applicant's application in terms of section 342A

of the Criminal Procedure Act, 51 of 1977, dismissed by the first respondent on 13 June 2003 under Nelspruit regional court case number SH1143/02 be reviewed, reconsidered and corrected, alternatively be heard de novo by this court sitting as court of
first instance;
         (3)      an order that the judgment of the first respondent referred to in
(1) be substituted with an order in the following terms:
         (i)      that, in terms of section 342A(3) of Act 51 of 1977 -
         (a)      the proceedings against the applicant under
Nelspruit regional court case number SH1143/02 be stayed indefinitely; and
         (b)      the state be prohibited indefinitely from reinstituting
any form of prosecution against the applicant on the same charges and/or facts;
         (4)      an order that the first and second respondents, jointly and
severally, pay the applicant's costs of this application, the one paying the other to be absolved.


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         [2]      The applicant seeks this relief by way of review in terms of section
24(1)(d) of the Supreme Court Act, 59 of 1959, alternatively, in terms of
section 38 of the Constitution. In the further alternative, the applicant seeks relief, directly, in terms of section 38 of the Constitution.
         [3]      In terms of section 24(1)(d) of the Supreme Court Act the proceedings
of an inferior court may be brought under review on the grounds that
inadmissible or incompetent evidence was admitted or admissible or
competent evidence was rejected by that inferior court.
         [4]      Section 38 of the Constitution gives a competent court the power to
remedy an infringement or threatened infringement of a right in the Bill
of Rights. According to the section:

'Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are:
         (a)      anyone acting in their own interest;
         (b)      anyone acting on behalf of another person who cannot
act in their own name;
         (c)      anyone acting as a member of, or in the interest of, a
group or class of persons;
         (d)      anyone acting in the public interest; and
         (e)      an association acting in the interest of its members.'


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The applicant alleges that his right to a fair trial in terms of section

35(3)(d) (ie to have his trial begin and conclude without unreasonable delay) has been infringed or is threatened by the delay which has
occurred.
         [5]      A review based on section 24(1) of the Supreme Court Act falls within
the first category of review referred to in Johannesburg Consolidated
Investments Company v Johannesburg Town Council 1903 TS 111
at 114; Mogano and another v District Magistrate, Johannesburg
and others (2) 1994 (4) SA 172 (W) at 175H - whereas a review
based on section 38 of the Constitution falls within the third category
referred to in the Johannesburg Consolidated Investments
Company case: Mogano's case at 1751-176B; and 177A-C. It is a
much wider remedy.
'So employed the expression "review" seems to mean "examine" or "take into consideration". And when a Court of law is charged with the duty of examining or considering a matter already dealt with by an inferior court, and no restrictions are placed upon it in doing so, it would appear to me that the powers intended to be conferred upon it are unlimited. In other words it may enter upon and decide the matter de novo. It possesses not only the powers of a Court of review in the legal sense, but it has the functions of a Court of Appeal with the additional privileges of being able, without setting aside the decision arrived at by the lower tribunal, to deal with the whole matter upon fresh evidence as a court of first instance.'


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The applicant and the second respondent have dealt extensively with the relevant facts in their affidavits. Neither side argued that this was not permissible. Where the court is called upon to carry out the third category of review it seems clear that the court is entitled to decide the matter on fresh evidence, particularly where the infringement of a right in the Bill of Rights is at issue - Mogano's case at 177A-C; Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC) at 834E-835B; 836C-D and 837B-C; Gerber v Voorsitter: Komitee oor Amnestie van die Kommissie vir Waarheid en Versoening 1998 (2) SA 559 (T) at 569D-H and 571F-H; Van Rooyen and Others v State and others 2001 (4) SA 396 (T) at 423G-1. In any event, where the same relief is sought in a substantive application, as is the case in this application, the court cannot be limited to the record of the proceedings in the lower court and must receive fresh evidence.
         [6]      In the review based on section 24(1)(d) of the Supreme Court Act, the
applicant contends that the first respondent rejected crucially important, materially relevant and undisputed evidence going to the root of the applicant's application in terms of section 342A and that such evidence was admissible and competent in terms of section 24(1)(d). In the applicant's review based on section 38 of the Constitution the applicant contends that his constitutional right to a fair trial has been violated permanently and materially through unreasonable delay on the part of the state. The applicant makes out the same case in his substantive application for relief based on section 38 of the Constitution.


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         [7]      These proceedings arise out of the first respondent's dismissal, on 13

June 2003, of an application brought by the applicant in terms of section 342A of Act 51 of 1977 for an order inter alia that the
proceedings against the applicant be stayed indefinitely and that the respondent be prohibited indefinitely from reinstituting any prosecution against the applicant on the same charges. The relevant provisions of
section 342A read as follows -
         '(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 advisor, the State or a witness.
         (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
defence by the delay, including the weakening of the quality of evidence, the possible death or


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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 defence, 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 defence, as the case may be, has been closed;
         (e)      that-


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         (i)      the State shall pay the accused concerned the

wasted costs incurred by the accused as a result of an unreasonable delay caused by an officer employed by the State;
         (ii)     the accused or his or her legal adviser, as the
case may be, shall pay the State the wasted costs incurred by the State as a result of an unreasonable delay by the accused or his or her legal adviser, as the case may be; or
         (f)      that the matter be referred to the appropriate authority
for an administrative investigation and possible disciplinary action against any person responsible for the delay.'
         [8J      The background, in very brief summary, is as follows: On about 16
September 1999 a representative of the Auditor General, who was
investigating financial irregularities in the Department of Finance of the Mpumalanga Government, furnished the Nelspruit SAPS with an affidavit in which it was alleged that the applicant, who was then Chief Director of the Mpumalanga Government Department of Finance, had
authorised an irregular transfer of government funds on 15 July 1997. The investigating officer, inspector Nkosi, investigated the matter and
obtained affidavits to the effect that the applicant, in his capacity as Chief Director of the Department of Finance, had authorised the transfer of R120 000 from the Mpumalanga Government's bank
account to the bank account of TNT Provisions. This transfer was
irregular because the Mpumalanga government did not owe TNT


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Provisions the money and there were no supporting documents to justify the transfer. Inspector Nkosi completed his investigation by the 30th of September 1999. On 19 November 1999 a summons was served on the applicant calling upon him to appear in court on 13 December 1999.
         [9]      On 13 December 1999 the case was postponed, as it was on eleven
other occasions, until finally on 28 November 2001 the regional court refused to postpone the matter again to a fixed date and postponed it sine die.
[10] On 2 October 2002 Inspector Nkosi served a new summons on the applicant. This summons called upon the applicant to appear in court on 29 November 2002. When the applicant appeared on 29 November 2002 the case was postponed to 13 January 2003 and on that date it was postponed to 28 February 2003. Finally, on 28 February 2003, it was postponed for trial to 13 June 2003.
[11] On 30 May 2003 the applicant's attorneys, Stan Fanaroff & Associates ('Fanaroff'), faxed to the senior public prosecutor, Nelspruit, a letter notifying the public prosecutor that on 13 June 2003 the applicant would apply for relief in terms of section 342A of Act 51 of 1977 and on 13 June 2003 the applicant's counsel handed to the public prosecutor and the first respondent the applicant's application in terms of section 342A. This application consisted of a notice of motion supported by a


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51 page affidavit signed by the applicant on 12 June 2003, affidavits by Stanley Fanaroff and his secretary, Mathilda Kemp, and a number of letters.
[12]     Despite this short notice the public prosecutor decided to oppose the application without filing an answering affidavit or having a proper opportunity to consider the application. After hearing argument the first respondent dismissed the application. The first respondent noted that he did not have the record of proceedings up to the stage when the case against the applicant was withdrawn (ie 28 November 2001); that there was no onus on either party and that the court must consider all the facts to decide whether there was an unreasonable delay. He concluded that on the evidence before him he could not find that there had been an unreasonable delay.
[13]     Before this court it is contended that the first respondent erred because he rejected the evidence in the applicant's application and that it had been shown that there was an unreasonable delay in prosecuting the case against the applicant - particularly the period 28 November 2001 to 29 November 2002 - and that the applicant's right to a fair trial has been violated. On behalf of the second respondent it is contended that the first respondent was rightly concerned about the fact that he did not have a full record of the proceedings before the court; that the application before the first respondent contained a number of untruths, blatant lies and misrepresentations and that despite having an


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incomplete and inaccurate record the first respondent came to the right conclusion. The second respondent's counsel also argued that this court should not hear the matter de novo as it is res judicata - see S v The Attorney-General of the Western Cape: S v The Regional Magistrate Wynberg and Another 1999 (2) SACR 13 (C) at 19-20 and that the applicant had failed to lay a proper basis for deviating from the general rule that in criminal proceedings it is undesirable to entertain appeals and reviews before the case has been finalised - see Wahlhaus and others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A) at 119D-120A; Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A). Since the applicant is really seeking relief in terms of section 38 of the Constitution these arguments cannot be upheld. Once raised this issue must be decided by the court. It is also appropriate to deal with it before the trial proceeds - see Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); Wild and Another v Hoffert NO and others [1998] ZACC 5; 1998 (3) SA 695 (CC); unreported judgment of the Botswana Court of Appeal in Eusabia Dineo Sejammitlwa and others v The State Civil Appeal 9/2002; unreported judgment of the Botswana High Court in Tlhabologang Phetsolo Maauwe and Gwara Brown Motswela v The State delivered on 21 March 2005.
[14] Since the applicant alleges that his right to a fair trial has been infringed by the unreasonable delay in beginning and concluding his


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trial it is incumbent on this court to determine whether there has been such an unreasonable delay and, if so, who caused this delay.
[15] The applicant seeks final relief on notice of motion. Where there are disputes of fact the principles set out in Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Limited [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634F-635C must be applied. In determining the facts in the present case the court is assisted by two aspects of the contemporaneous record and the way in which the applicant has chosen to deal with the facts. The first is the regional court's record of the proceedings from 13 December 1999 to 13 June 2003. The notes made by the presiding magistrate are obviously reliable and therefore of crucial importance in determining the reasons for the postponements and the basis upon which they were granted. The second is the letters addressed by Fanaroff to the Nelspruit public prosecutor. What was said or not said in these letters is also of crucial importance. With regard to the facts the second respondent filed affidavits by the investigating officer, inspector Nkosi, the public prosecutor who first acted, Ms Illana Erasmus, and the prosecutor who took over the case when Ms Erasmus resigned, Mr Tobias George Steyn. These witnesses have produced a complete record of the proceedings. In his replying affidavit the applicant did not deal in detail with these affidavits. Instead the applicant sought to reduce the case to what he considered, its essence. According to the applicant, this was that the offence was allegedly committed on 15 July 1997; that he was brought before court


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for the first time on 13 December 1999; that from 13 December 1999 he expressly and continuously insisted on being provided with copies of the charge sheet and docket to enable him to assess the state's case; that copies of the charge sheet and docket were handed to him for the first time on 28 February 2003, which was five years and seven months after the event and it was only then that he could ascertain the full ambit of the state's case and what irreparable trial-related prejudice this delay caused to his ability to properly conduct a defence.
[16] The applicant concedes that there are some discrepancies between his chronology and that of the second respondent but describes these as insignificant. He submits that there is only one dispute of significance: whether he received the docket and charge sheet in March 2000, as alleged by Ms Erasmus, or on 28 February 2003, as he alleges. According to the applicant, this is the only issue of significance, because placing the applicant in possession of the docket and charge sheet was essential to the conduct of the proceedings. Without these documents the applicant did not know what the state's case was, could not prepare a defence and the trial could not proceed. The applicant argues that for that reason the various postponements and the reasons therefor are irrelevant. He then deals with Erasmus' allegation that she handed the docket and charge sheet to him in March 2000, a statement that he calls untrue. The applicant concludes his reply on the merits by stating that insofar as he did not deal with any specific allegation in the second respondent's answer, such allegations remain


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in dispute. This does not properly place the substantive allegations in the second respondent's answering affidavits in dispute. Unless they can be shown to be so far-fetched or clearly untenable on the papers they must be accepted as correct - see Plascon-Evans Paints at 635A-C.
[17] At the outset it must be noted that the applicant has overstated his case in his affidavits and there are the following factual inaccuracies -
         (1)      In his application to the regional court and in this application the
applicant alleges that on 28 November 2000 the case against him was withdrawn because of the first respondent's 'strongly expressed disapproval with the unreasonable delay in my prosecution'.
The record of proceedings shows that the case did not come before court on 28 November 2000. It shows that on 16 or 17 October 2000 the matter was postponed by agreement to 12 February 2001 for trial. The record of proceedings also shows that on 28 November 2001 neither the applicant nor his legal representative was present at court and that when the prosecutor requested a postponement of the trial this was opposed by the third respondent's (the third respondent was the second accused) legal representative and the court postponed the case sine die. This is supported by Steyn's undisputed


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evidence that the state was ready to proceed with the trial on 28 November 2001, but was obliged to request a postponement because the applicant and his legal representative were not present. Steyn confirms that the court postponed the matter sine die when the third respondent's legal representative opposed the postponement because the matter was supposed to proceed on trial.
It is fair to say that the applicant's allegation of what happened on 28 November 2000 and that the case against him was
withdrawn is not true.
         (2)      In his application to the regional court and to this court the
applicant alleges that two years after the case against him was withdrawn the matter was unexpectedly reinstated.
Again, the record of proceedings and the undisputed evidence of Steyn shows that this allegation of a two year delay is incorrect and not true.
         (3)      In his application to the regional court the applicant alleges that
on or about 13 January 2003 his legal team advised him to seek the relief set out in his application in terms of section 342A; that on 28 February 2003 his advocate advised the prosecutor that the applicant intended to bring an application in terms of section


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342A at the applicant's next appearance and that, although he was not obliged to do so, he gave notice through his attorney, Fanaroff, on 30 May 2003 that he would bring the application on 13 June 2003.
While it is correct that Fanaroff faxed a letter to the prosecutor on 30 May 2003 notifying the prosecutor of the application to be brought on 13 June 2003 the other allegations are not consistent with Fanaroff's letters of 13 January 2003, 20 January 2003, 24 February 2003 and 27 February 2003 and the record of the proceedings of 28 February 2003. Fanaroff's letters do not refer to an application in terms of section 342A and show that the applicant and his legal representatives were preparing for trial on 13 June 2003. The record of proceedings also show that on 28 February 2003 the case was, by agreement with the applicant and the third respondent's legal representative, postponed to 13 June 2003 for trial. The applicant's advocate was not present and there is no suggestion that the applicant intended to bring an application in terms of section 342A.
Once again the applicant's allegations are not true.
These findings are of importance in the final determination of the facts.


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         [18]     On all the evidence the chronology is as follows (findings will be dealt
with where appropriate) -
         (1)      On 16 September 1999 the Auditor General handed to Nelspruit

SAPS an affidavit in which it was alleged that the applicant had irregularly transferred an amount of R120 000 from the Mpumalanga Government's bank account to the bank account of TNT Provisions;
         (2)      Between 16 September 1999 and 30 September 1999 the police
investigated the allegations and obtained all the necessary affidavits and documents from witnesses;
         (3)      On 19 November 1999 the applicant was served with a
summons to appear in the Nelspruit regional court on 13 December 1999;
         (4)      On 13 December 1999 the applicant appeared in the Nelspruit
regional court without legal representation. The case was postponed to 17 January 2000 so that the state could provide the applicant with a charge sheet and the docket and the applicant could arrange for legal representation. On 16 December 1999 Fanaroff faxed a letter to the prosecutor confirming that the matter would be postponed to 17 January


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2000 and requesting a copy of the docket and of all exhibits to be used at the trial;
         (5)      On 17 January 2000 the case was postponed by agreement to

14 February 2000 to enable the state to draw up a charge sheet and furnish the applicant with copies of the docket and the exhibits. On 17 January 2000 Fanaroff faxed a letter to the prosecutor confirming the postponement and the arrangement that if the copies of the documents requested were made available before 14 February 2000 a final trial date would be arranged on 14 February 2000;
         (6)      On 14 February 2000 the case was postponed by agreement to
6 March 2000 to enable the state to furnish copies of the docket and exhibits. The court ordered that this was the final postponement for the furnishing of the docket;
         (7)      On 6 March 2000 the case was postponed to 10 March 2000.
On 6 March 2000 Fanaroff faxed a letter to the prosecutor pointing out that they had still not received a charge sheet or copies of the docket and exhibits and that it would be impossible to proceed with the trial on 10 March 2000. Fanaroff also requested confirmation that on 10 March 2000 the matter would be postponed to an agreed date for trial, taking into account that the applicant required a reasonable opportunity to prepare a


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defence. Fanaroff also asked when the charge sheet and docket and exhibits would be available to be collected;
         (8)      On 10 March 2000 the case was postponed by agreement to 17

and 19 July 2000 for trial. The record of proceedings reflects that the trial date had been arranged with Fanaroff (Ms Kemp) and that Fanaroff would appoint an advocate. The record also reflects that the applicant would confirm the date on 17 April 2000. On 17 April 2000 Fanaroff faxed a letter to the prosecutor confirming that the matter would be set down for trial on 17 and 19 July 2000 and that the applicant's counsel, Mr A.P. Bezuidenhout, had been reserved for these dates. In contrast to Fanaroff's previous letters, Fanaroff did not request a charge sheet or copies of the docket and exhibits. It is also not disputed that on 10 March 2000 the case was postponed for trial on 17 and 19 July 2000. Erasmus' undisputed evidence is that it was a rule in the first respondent's court that no trial date was to be arranged with an accused before a charge sheet had been drawn up and a copy of the docket furnished to the defence. In the light of the history, and particularly these facts, Erasmus' evidence that she personally handed to the applicant's legal representative a charge sheet and copy of the docket before 10 March 2000 must be accepted;


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         (9)      On 17 July 2000, according to the record of proceedings, the

case was postponed by agreement to 16 to 18 October 2000 for trial. Adv Bezuidenhout was not present but according to the record of proceedings the third respondent's attorney had arranged the date with Adv Bezuidenhout. On 17 July 2000 Fanaroff faxed a letter to the prosecutor confirming that Adv Bezuidenhout and the prosecutor had arranged that the matter would not proceed on trial on 17 and 19 July 2000 'but in the light of recent developments would be postponed to a date to be arranged between the legal representatives of both the accused and the prosecutor'. This letter does not support the applicant's allegation that the fax confirmed that the state would not be ready for trial on 17 and 19 July 2000 and that he was not required to appear. Once again Fanaroff did not request the charge sheet or copies of the docket and exhibits.
The applicant does not explain what the 'recent developments' referred to by Fanaroff were but the content of the letter does not suggest that the state was not ready to proceed. Erasmus' undisputed evidence is that she had received certain information which had to be investigated and which could have been to the advantage of both the applicant and the third respondent.
In his application in terms of section 342A the applicant alleged that on 17 July 2000 and in breach of the agreement between


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the state and Fanaroff that he need not appear in court and that a date would be arranged with Fanaroff, the prosecutor requested that the court authorise a warrant of arrest and requested a postponement of the matter, without reference to Fanaroff, to 16, 17 and 18 October 2000. The applicant further alleged that on hearing that a warrant of arrest had been issued, 'and not held over as agreed between my counsel and the prosecutor' he voluntarily attended at court. He alleged that he cannot remember when he did this but stated that the warrant of arrest was cancelled and he was warned to appear on 23 August 2000, which he did. On that date, according to the applicant, the matter was postponed to 16, 17 and 18 October 2000. The applicant also alleged that the court placed on record that this postponement on 23 August 2000 to 16, 17 and 18 October 2000 was a final postponement.
These allegations are contradicted by the record of proceedings. On 17 July 2000 it reflects a simple postponement by agreement to 16-18 October 2000 for trial, no reference to a warrant of arrest and no reference to the absence of the applicant. It is also not consistent with Fanaroff's fax of that date. The record of proceedings also contains no reference to a hearing when the warrant of arrest was cancelled and the applicant warned to appear on 23 August 2000 and there is no entry for 23 August


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2000. The next entry after 17 July 2000 is the entry for 16 October 2000.

In the light of the objective evidence in the record of proceedings, the failure of Fanaroff to request a charge sheet or copies of the docket and exhibits and the absence of any letter from Fanaroff to protest about the treatment meted out to the applicant this evidence about the 17th of July 2000 and the 23rd of August 2000 appears to be untrue.

(10)     0n 16 0ctober 2000 the state was not ready to proceed with the trial because an important witness had been admitted to hospital. However, neither the applicant nor his advocate was present and the court authorised the issue of a warrant of arrest for the applicant and ordered that it be held over. 0n 16 0ctober 2000, according to the record of proceedings, both the applicant and Adv Bezuidenhout attended court and by agreement the matter was postponed for trial to 12-16 February 2001. The court also cancelled the warrant of arrest and recorded that the state witness was in hospital.

The applicant alleged that the matter was postponed for trial to 28, 29 and 30 November 2000 and that the court recorded that this was a final postponement for trial. He also alleged that the state still had not handed him a charge sheet or copies of the


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documents or furnished any reasons for the delay in furnishing these documents or for the state's inability to proceed with the trial. These allegations are contradicted by the record of proceedings, in particular that no request for the charge sheet and docket was noted in the record, and the absence of a request for these documents in a letter from Fanaroff. It is clear that the matter was not postponed for trial on 28, 29 and 30 November 2000.
Once again the applicant's allegations of what happened on 16 October 2000 appear to be untrue;
(11) On 28 November 2000 the matter did not come before the court.
As already mentioned the applicant's allegations about what happened on that date are untrue;
(12) On 12 February 2001 the applicant and Adv Bezuidenhout were not present at court and the matter was postponed by agreement to 26 March 2001. According to the record of proceedings and Erasmus' undisputed evidence the matter was postponed because the applicant wished to make representations to the state. The applicant did not deal with this date in his affidavits obviously because he alleged that the case was withdrawn on 28 November 2000;


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(13)     On 26 March 2001, according to the record of proceedings and Erasmus' undisputed evidence, both the applicant and Adv Bezuidenhout and the third respondent were not present. By agreement warrants of arrest were authorised in respect of both the applicant and the third respondent but were held over to 26 April 2001. The matter was postponed to 26 April 2001 for a date for trial to be arranged;

(14) On 4 May 2001 by agreement with Adv Bezuidenhout and the third respondent's attorney the court ordered that the warrants of arrest be held in abeyance until 4 June 2001. The record of proceedings does not reflect what happened on 26 April 2001;
(15) On 4 June 2001, by agreement with Adv Bezuidenhout and the third respondent's attorney, the matter was postponed to 23/24 August 2001 and the warrants of arrest were further held in abeyance;
(16) On 23 August 2001, by agreement, the matter was postponed to 3 September 2001 and the warrants were further held in abeyance;
(17) On 3 September 2001 only the third respondent was present.
The matter was postponed to 28, 29 and 30 November 2001. By agreement with Adv Bezuidenhout the warrant of arrest in


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respect of the applicant was further held in abeyance and Adv Bezuidenhout undertook to confirm his availability by 17 September 2001 ;
(18) There was no appearance on 17 September 2001 and it is not clear what happened on that date. It does not appear that Adv Bezuidenhout confirmed his availability for 28-30 November
2001;
(19) On 28 November 2001, according to the record of proceedings, the charge sheet was missing. This is confirmed by the undisputed evidence of Steyn, who had taken over from Erasmus as the prosecutor. The third respondent and his attorney were present at court but neither the applicant nor Adv Bezuidenhout was present. Steyn decided to request a postponement of the trial for three reasons. First, he wanted to trace the charge sheet to ascertain what the applicant's position was. Second, he wanted to postpone to have the applicant at the hearing. Third, he wanted an opportunity to determine whether the third respondent would testify for the state. He therefore asked the court to postpone the matter despite the fact that he was ready to proceed with the trial. As already mentioned the attorney for the third respondent objected to a postponement to a fixed date and the court postponed the matter sine die;


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(20) Erasmus returned from leave on 5 December 2001 and apparently took over the matter. After she resigned on 24 June 2002 Steyn succeeded her as prosecutor. Early in July 2002 Inspector Nkosi brought the docket to Steyn for summons to be issued for the applicant and the third respondent. Because he could not find the original charge sheet Steyn decided to issue a new summons under case number 1143/02. On 2 October 2002 Inspector Nkosi served the new summons on the applicant requiring him to appear in court on 29 November 2002;
(21) On 29 November 2002 the applicant appeared in court and the matter was postponed to 13 January 2003 to enable the applicant to obtain legal representation. The applicant had to make new arrangements with his attorney and advocate;
(22) On 13 January 2003 the matter was postponed by agreement to 28 February 2003. The applicant informed the court that he had appointed Fanaroff to represent him and that Adv Bezuidenhout would appear on his behalf. The postponement was arranged by Kemp of Fanaroff's office. On 13 January 2003 Fanaroff faxed a letter to the control prosecutor, Nelspruit, requesting a copy of the court record from the date of commencement of the case until 13 January 2003 as well as a copy of the charge


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sheet. Neither the record of proceedings nor Fanaroff's letter referred to the case docket.

The applicant alleges that the state had still not provided him with a copy of the docket but this is contradicted by the record of proceedings, the repeated postponements to fixed dates for trial and Fanaroff's failure to request copies of the docket and exhibits to prepare for trial. Fanaroff last requested a copy of the docket on 6 March 2000 and trial dates had been arranged on a number of occasions without objection from Fanaroff or Adv Bezuidenhout.
This allegation of the applicant also appears to be untrue;
(23) On 20 January 2003 Fanaroff faxed a letter to the control prosecutor, Nelspruit, requesting a copy of the docket and copies of all exhibits and witness statements to enable the applicant's legal representatives to prepare for trial;
(24) On 28 January 2003 Steyn replied to this request of 20 January 2003 enclosing a copy of the charge sheet and a copy of the docket;
(25) On 24 February 2003 Fanaroff faxed two letters to the control prosecutor, Nelspruit. Fanaroff sought confirmation that the


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matter was to be postponed on 28 February 2003 as there was not sufficient time to prepare for the trial and Fanaroff again requested the charge sheet and docket;
(26) On 27 February 2003 Kemp of Fanaroff's office confirmed with the prosecutor that the matter would be postponed on 28 February 2003 and agreed that the matter would be postponed to 13 June 2003 for trial. The record of proceedings reflects that this date was arranged with the legal representatives of the applicant and the third respondent;
(27) On 30 May 2003 Fanaroff faxed a letter to the control prosecutor to notify him that the applicant intended to apply for relief in terms of section 342A. On 12 June 2003 the applicant signed the affidavit in support of this application and on 13 June 2003 the applicant's legal representatives handed copies of the application to the prosecutor and the regional magistrate. The first respondent dismissed the application on the same date;
(28) On 17 February 2004 the applicant launched the present application. There is no explanation for the delay of eight months before the application was launched. The second respondent filed his answering affidavit on 25 May 2004 and the applicant filed his reply on 30 September 2004. Both sought condonation for their failure to file their affidavits timeously.


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Whatever the reason the applicant's delay in filing his replying affidavit delayed the matter by almost four months;
(29) This application was enrolled for hearing on 28 February 2005 when judgment was reserved.
[19] The applicant's review will be considered first and then the relief sought by the applicant in terms of section 38 of the Constitution.

[20] As far as the review in terms of section 24(1)(d) of the Supreme Court Act is concerned the first respondent did not exclude or reject admissible or competent evidence. He took this evidence into account but was not persuaded by it in the absence of the official court record of proceedings. In view of the significant discrepancies between the applicant's chronology and the chronology recorded in the record of proceedings the first respondent's approach was correct. The application based on section 24(1)(d) must therefore be refused.
[21] In the light of the true chronology the question is whether there has been an unreasonable delay in beginning and concluding the trial. The first question is what period must be included in this delay. The applicant contends that the delay commenced on 15 July 1997 when the offence was allegedly committed. If so the period would include two years and two months before the crime was reported and investigated. I do not agree. The period which elapsed from 15 July


30
1997 until the applicant first received a summons on 19 November 1999 (ie two years and four months) is irrelevant to the question of whether there has been an unreasonable delay in beginning and concluding the trial. Before the crime was discovered and reported to the police and the police had concluded their investigation and the decision was taken to prosecute there was no prosecution. The period which elapsed after the first respondent dismissed the application on 13 June 2003 must also be excluded. There was a delay of approximately eight months before the applicant launched this application and the applicant further delayed the matter by approximately four months by filing his replying affidavit late. The period to be considered therefore runs from 19 November 1999 to 13 June 2003: a period of three years and seven months. On the face of it this is an unreasonably long period particularly because the applicant has not yet pleaded to the charge.

[22] As already mentioned, the applicant's case is based squarely on the state's failure to furnish the applicant and his legal representatives with a charge sheet and a copy of the docket for a period of about six years, According to the applicant he was not able to start the trial until he had received these documents and they were furnished to his legal representative for the first time on 28 February 2003 despite the fact that from 13 December 1999 he 'expressly and continuously insisted on being provided with copies of the charge sheet and docket' to enable him to assess the state's case against him. The applicant's


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case also depends on a finding that the delay in beginning the prosecution commenced on the date on which the crime was allegedly committed, ie 15 July 1997. The period of two years and four months before the applicant received the first summons in the matter has already been found to be irrelevant to any delay.
[23]     On analysis, the chronology and the objective evidence of the court's record of proceedings and Fanaroff's letters to the public prosecutor do not support the applicant. While it is true that the state did not immediately furnish the applicant with a charge sheet and copies of the docket and exhibits the rest of the evidence shows that it is overwhelmingly probable that the state furnished the applicant with the charge sheet and a copy of the docket in March 2000 as Erasmus testified. First, there are the letters written by Fanaroff. On 16 December 1999, 17 January 2000 and 6 March 2000 Fanaroff faxed letters to the prosecutor of the regional court and requested a charge sheet and copies of the docket and exhibits to be used at the trial. However in his later letters addressed to the prosecutor on 17 April 2000 and 17 July 2000 Fanaroff did not repeat the request and made arrangements for a date for the trial. Fanaroff's letter dated 17 April 2000 is particularly important. It confirms that it had been agreed that the matter would be set down for trial on 17 and 19 July 2000 and that Adv Bezuidenhout had been reserved for those days. In view of the importance which the applicant and Fanaroff attached to the charge sheet and docket it is inconceivable that a trial date would have been


32
agreed if the documents have not been furnished. This accords with Erasmus' undisputed evidence that she was not permitted to arrange a trial date until the charge sheet and docket had been furnished to the accused. The record of proceedings reflects that on 17 January 2000 the matter was postponed to 14 February 2000 for the docket and charge sheet; that on 14 February 2000 the matter was postponed to 6 March 2000 for the furnishing of the docket and that on 10 March 2000 the matter was postponed to 17 and 19 July 2000 for trial by agreement with the legal representatives and that there was no mention of the docket and charge sheet. Thereafter the record of proceedings reflects postponement by agreement without reference to the furnishing of the charge sheet and docket. Once again it is inconceivable that there would be no reference to the furnishing of the charge sheet and docket if the applicant and his legal representatives expressly and continuously insisted on being furnished with copies of these documents.

[24] Since the applicant contends that there has been an unreasonable delay, even if Erasmus did furnish the charge sheet and docket in March 2000, it is necessary to assess the delay and its causes.
[25] There was obviously a delay from 13 December 1999 until 10 March 2000 (ie approximately three months) before the charge sheet and docket were made available to the applicant. Thereafter the case was postponed by agreement to 17 and 19 July 2000 for trial, which date


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was confirmed by Fanaroff on 17 April 2000. Once again on 17 July 2000 the matter was postponed by agreement to 16-18 October 2000 for trial. And on 16 or 17 October 2000 the matter was again postponed by agreement to 12-16 February 2001 for trial. However on 12 February 2001 the matter was postponed by agreement to 26 March 2001 to enable the applicant to make representations. On 26 March 2001, 4 May 2001, 4 June 2001, 23 August 2001 and 3 September 2001 the matter was postponed by agreement. Nowhere does it appear that this was because the state was unable to proceed. On one occasion the postponement was agreed so that the parties could discuss the matter. Finally the matter was postponed sine die on 28 November 2001.
[26] From 28 November 2001 to 2 October 2002 there was no progress in the matter. Inspector Nkosi took the docket to the new prosecutor, Steyn, early in July 2002 and requested that he issue a summons. This was done and Inspector Nkosi served the summons on the applicant on 2 October 2002. The applicant was required to appear in court on 29 November 2002 which he did. The matter was then postponed to enable the applicant to arrange for legal representation which he did by the next appearance on 13 January 2003. On that date the matter was postponed to 28 February 2003 and on that date the parties agreed to postpone the matter to 13 June 2003 for trial. By the 28th of February 2003 the state had furnished the applicant with a charge sheet and a copy of the docket.


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[27] The only period which can be characterised as unreasonable delay is that from 28 November 2001 to 2 October 2002. During that time the state took no steps to advance the prosecution until early July 2002. The question is whether this is unreasonable in the context of this case. This requires a value judgment to be made in light of the relevant considerations - see Sanderson v Attorney-General, Eastern Cape supra and Wild and Another v Hoffert NO and others supra.
[28] By the time the crime was discovered in September 1999 the applicant was no longer in the service of the Department of Finance of the Mpumalanga Government. He was then the chief director of the Department of Public Works. When it became known that he was to be charged in this matter he lost that position. The applicant was not arrested or incarcerated pending the trial. He was also not required to put up bail. He clearly suffered social stigma and eventually relocated to Johannesburg to avoid this. He describes himself as a businessman. But he also refers to the adverse consequences that this charge has had on his business career. Nevertheless, despite this stigma and the adverse consequences the applicant has consistently agreed to postponements of this matter when it would have been expected that he vigorously oppose the postponements so that he could clear his name. The inference is inescapable that it suited the applicant for this matter not be brought to a head. At no stage did his


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legal representatives object to the postponements and place on record the applicant's dissatisfaction with the slow progress of the matter. It is also striking how infrequently the applicant appeared in court and how often the applicant and his legal representative were absent when the matter was postponed.
[29] The applicant agrees that the case against him is not complex. It relates simply to the transfer of a single amount of money on one occasion. It is alleged to be unlawful because the money was not owed to the recipient and there were no supporting documents to justify the transfer of the funds. The applicant claims that he has suffered irreparable trial prejudice because three witnesses have died and documents are missing. It is striking that this was not used to oppose the postponements that were granted. It is also significant how little information the applicant gives to show how he has been prejudiced. He has not attempted to say what the witnesses would have testified on his behalf or how the missing documents would have supported them. He has also failed to identify the missing documents.
[30] It is notorious that the criminal justice system in South Africa is under stress and that policemen and prosecutors have heavy workloads that sometimes become intolerable. It is regrettable that there are delays in our criminal justice system but it is important to bear in mind that crimes committed by senior officials in government be prosecuted and


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that they not be permitted to escape justice by opportunistic reliance on
delays which have not caused real prejudice.
[31] In all the circumstances I find that there has not been an infringement
of the applicant's right to a fair trial because of the failure to begin the
trial within a reasonable time.
[32] The following order is made:
         (1)      The application for review in terms of section 24(1)(d) of the
Supreme Court Act is dismissed;
         (2)      The application for relief In terms of section 38 of the
Constitution is dismissed;
         (3)      The applicant is ordered to pay the costs of the application.

B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree


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J.C.W. VAN ROOYEN
ACTING JUDGE OF THE HIGH COURT


CASE NO: 4389/2004
HEARD ON: 28 February 2005
FOR THE APPLICANT: ADV. T. VAN DER WALT
INSTRUCTED BY: Mr. S. Fanaroff of Stan Fanaroff and Associates
FOR THE RESPONDENT: ADV. A.P. WILSENACH INSTRUCTED BY: State Attorney
DATE OF JUDGMENT: 12 April 2005