S v Thabethe and Others (15/2023) [2024] ZAFSHC 317 (7 August 2024)

Parties

Procedural Posture

Criminal Law Trial / Pre Trial; Application to Strike Matter From Roll Due to Unreasonable Delay and Incomplete Discovery

Legal Issues

1. 1 Whether the prosecution failed to comply with its duty to provide the accused with all information available to it before trial.
2. 2 Whether the delay in prosecution is unreasonable and attributable to the State.
3. 3 Whether the accused suffered incurable prejudice due to inability to access electronic evidence.

Ratio Decidendi

The court found that the prosecution failed to provide the accused with accessible electronic evidence central to the case, despite repeated undertakings and the complexity of the matter. The inability of the Defence to access the five-terabyte hard drive rendered the discovery incomplete and ineffective, amounting to a breach of the accuseds' constitutional right to a fair trial. The delay caused by the State's failure was found to be unreasonable, with the accused suffering incurable prejudice, including financial and personal hardship. The court rejected the State's argument that only relevant documents need be disclosed and that postponement would cure the prejudice, holding that the...

Court Disposition

Matter struck from the roll in respect of all accused due to incurable prejudice and unreasonable delay caused by the State's failure to provide accessible discovery.

Orders

• The matter is struck from the roll in respect of all the accused before court.
• The matter may not be resumed or instituted de novo without the written instruction and authorization of either the National Director of Public Prosecutions, the Head Investigating Directorate of the National Prosecuting Authority, or the Director of Public Prosecutions: Free State.