Once, twice, three times delayed: considering a permanent stay of prosecution in Rodrigues v The National Director of Public Prosecutions

Abstract

The National Prosecuting Authority is vested with the power, as dominus litus, to institute and discontinue charges whereas high courts are empowered to order a permanent stay of the prosecution prohibiting the continuation of the trial. However, such an order is considered to be a "drastic remedy" and is not empowered in terms of statute such as the Criminal Procedure Act 51 of 1977 but rather vested in the right of an accused to have their trial begin and conclude without unreasonable delay under section 35(3)(d) of the Constitution of the Republic of South Africa, 1996. A permanent stay of the prosecution is an order made on a case-by-case basis, balancing various factors such as the prejudice faced by the accused, systemic factors as well as the reason for the delay. The ultimate question however remains whether the lapse of time in a particular case is unreasonable. The Supreme Court of Appeal in Rodrigues v The National Director of Public Prosecutions had to evaluate whether the 47-year-delay and eventual prosecution between the death of anti-apartheid activist, Ahmed Timol, was unreasonable. Both the majority and minority of the Supreme Court of Appeal, although for different reasons, concluded that the delay was not unreasonable. This contribution discusses the recent judgment in Rodrigues v The National Director of Public Prosecutions against the backdrop of the principles relating to permanent stays as established by South African courts. Both the majority and minority judgments are discussed and evaluated to discern important themes and considerations. It is argued that the judgment is a strong reminder of the significance of the right to a speedy trial.