CHAPTER 38
GENERAL PROVISIONS
Unreasonable delays in trials
371. (1) A court before which criminal proceedings are pending must investigate any delay in the completion of proceedings that appears to the court to be unreasonable and that could cause substantial prejudice to the prosecution, the accused or his or her legal practitioner, the State or a witness.
(2) In considering the question whether any delay is unreasonable, the court must consider the following factors :
(a) The duration of the delay ;
(b) the reasons advanced for the delay ;
(c) whether any person is responsible 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 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 that 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 such order as it considers fit 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 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 anew without the written authority of the Prosecutor-General ;
(d) where the accused has pleaded to the charge and the State or the defence 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, where the State is unable to proceed or refuses to do so, or the case for the defence, where the defence is unable to proceed or refuses to do so, had been closed ;
(e) that -
(i) the State must pay the accused the wasted costs incurred by the accused as a result of the unreasonable delay caused by a person in the employment of the State ;
(ii) the accused or his or her legal practitioner must pay the State the wasted costs incurred by the State as a result of the unreasonable delay caused by the accused or his or her legal practitioner ;
(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.
(4) (a) An order contemplated in subsection (3)(a), where the accused has pleaded to the charge, and an order contemplated in subsection (3)(d), may not be issued unless exceptional circumstances exist and all other attempts to speed up the process have failed and the defence or the State has given notice beforehand that it intends to apply for such an order.
(b) The Prosecutor-General and the accused may appeal against an order contemplated in subsection (3)(d), and section 337 and section 343, to the extent that it relates to an application or appeal by an accused under that section, apply with the necessary changes in respect of a case in which the Prosecutor-General appeals and, in the case of an appeal by the accused, sections 335 and 343 apply with the necessary changes.
(5) Where the court has made an order contemplated in subsection (3)(e) -
(a) the costs must be taxed according to the scale the court considers fit ; and
(b) the order has the effect of a civil judgment of that court.
(6) If, on notice of motion, it appears to the High Court that the institution or continuance of criminal proceedings is being delayed unreasonably in a magistrate’s court that is seized with a case but does not have jurisdiction to try the case, the High Court may, with regard to such proceedings, institute the investigation contemplated in subsections (1) and (2) and issue any order contemplated in subsection (3) to the extent that it is applicable.
Fair trial standards
Rights during trial - tried without undue delay
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