Els v P.S and Others (812/2008) [2009] ZANCHC 5 (13 March 2009)

Els v P.S and Others (812/2008) [2009] ZANCHC 5 (13 March 2009)

The court found that the extraordinary delay of approximately 40 years between the alleged commission of the offence and the institution of private prosecution was entirely attributable to the first respondent, who failed to provide a persuasive explanation for the delay. The applicant demonstrated specific and material trial-related prejudice, including the loss of key witnesses and documentary evidence, and the fading of memories, which would severely hamper his ability to mount a proper defence. The court held that, in these exceptional circumstances, the applicant's right to a fair trial under section 35(3)(d) and (i) of the Constitution would be infringed if the prosecution were...

Citation
[2009] ZANCHC 5
Parties
Applicant: PA Els; Respondent: P S.; Respondent: C Bezuidenhout N.O.; Respondent: The Clerk of Court, Kimberley N.O.; Respondent: The Minister of Justice, N.O.
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
13 March 2009
Case Number
812/2008
Procedural Posture
Review Application / Application for Permanent Stay of Private Prosecution and Review of Summons
Outcome
Application granted. Permanent stay of private prosecution ordered.
Judges
Majiedt, Tlaletsi
Legal Topics
Permanent Stay of Prosecution, Unreasonable Delay, Fair Trial Rights, Private Prosecution, Section 35 Constitution, Trial Prejudice
Criminal Law Constitutional Law Civil Procedure Permanent Stay of Prosecution Unreasonable Delay Fair Trial Rights Private Prosecution Section 35 Constitution +1 more

Case Brief

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Parties

PA Els

Applicant

P S.

Respondent

C Bezuidenhout N.O.

Respondent

The Clerk of Court, Kimberley N.O.

Respondent

The Minister of Justice, N.O.

Respondent

Procedural Posture

Review Application / Application for Permanent Stay of Private Prosecution and Review of Summons

Legal Issues

  1. 1 Whether the applicant's right to a fair trial under section 35(3)(d) and (i) of the Constitution would be infringed by the private prosecution due to unreasonable delay.
  2. 2 Whether the delay of approximately 40 years between the alleged commission of the offence and the institution of private prosecution constitutes irreparable trial prejudice.
  3. 3 Whether the private prosecutor was actuated by ulterior motives in instituting the prosecution.

Ratio Decidendi

The court found that the extraordinary delay of approximately 40 years between the alleged commission of the offence and the institution of private prosecution was entirely attributable to the first respondent, who failed to provide a persuasive explanation for the delay. The applicant demonstrated specific and material trial-related prejudice, including the loss of key witnesses and documentary evidence, and the fading of memories, which would severely hamper his ability to mount a proper defence. The court held that, in these exceptional circumstances, the applicant's right to a fair trial under section 35(3)(d) and (i) of the Constitution would be infringed if the prosecution were...

Court Disposition

Application granted. Permanent stay of private prosecution ordered.

Orders

  • It is declared that the private prosecution against the applicant would lead to an unfair trial as provided in section 35(3)(d) and (i) of the Constitution of the Republic of South Africa, Act 108 of 1996.
  • The first respondent is prohibited from continuing with such private prosecution.