CRIMINAL JUSTICE REVIEW: REPORT ON SECTION 342A OF THE CRIMINAL

PROCEDURE ACT, 1977

1. INTRODUCTION
1.1 In July 2003 Cabinet Lekgotla tasked Justice Crime Prevention and Security (JCPS)
cluster to conduct the review of the criminal justice system with a view to identifying
challenges and obstacles within the criminal justice system and make recommendations on
Reforms or changes that should be made in the practices, procedure, the law of
evidence and sentencing for the more efficient and cost effective disposal of
criminal cases;
Reforms or changes that should be made relating to human and other resources
to improve the efficiency and effectiveness of the criminal justice process;
Reforms or changes relating to coordination and cooperation between the various
role players to improve the efficiency and effectiveness of the criminal justice
system;
Reforms or changes that should be made relating to case management to
improve the efficiency and effectiveness of the criminal justice system;
Reforms or changes that should be made relating to sentencing practices to
improve the efficiency and effectiveness of the criminal justice system.

1.2 The Department of Justice and Constitutional Development (DOJ&CD) as the

coordinating department of the review process, established the Review Committee consisting
of senior officials of the JCPS departments to conduct the research and make
recommendations to the Ministerial Committee of the JCPS for submission to Cabinet. The
Review Sub Committee may also provide research on any aspect that may be referred to or
identified by the Government/Business Working Committee, which is a joint initiative at
Ministerial/Big Business level to consider recommendations that may be referred to the JCPS
Ministerial Committee relating to the review of the Criminal Justice System

1.3 The Review Committee established five sub committees each focusing on sub
themes of the review, namely the Legal and Policy Framework, Modernisation, the
Governance Framework, Resource and Performance Evaluation. The Legal and Policy
Framework Sub Committee has been tasked to analyze the effectiveness and efficiency of
the existing policies, legislation, practices and procedures and to provide composite
recommendations which can be implemented by Government to develop a more efficient,
effective and appropriate criminal justice system.

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1.4 As part of its research the Legal and Policy Framework Subcommittee
identified the need for an investigation into the provisions of section 342A of the
Criminal Procedure Act and more specifically the non promulgation of orders as to
costs in criminal cases as one of the areas which may assist in achieving the
objectives of the Criminal Justice Review.

2. BACKGROUND TO THE SECTION 342A OF THE CRIMINAL PROCEDURE

ACT

2.1 Section 342A was inserted in the Criminal Procedure Act of 1977 (Act No. 57
of 1977) (CPA) in 1997 following the investigation by the SA Law Reform Commission
(the Commission) into delays in the finalisation of criminal cases (Project 73
Simplification of criminal procedure). The background to and motivation for the
insertion of the section was based on an analysis of the causes of delays in the
disposal of criminal cases. The analysis focused on all the phases of a trial - that is
before, during and after the trial. The provisions of section 342A became of the
outcome of this investigation and analysis. The other recommendations relate to the
other provisions of the CPA which deal with different stages of the criminal procedure,
namely: Section 106(4) which relate to the pleading stage; Section 119 which relate
to the commencement of the trial; Section 87 which authorises requests for further
particulars and provides that such requests may be made at any stage before
evidence is led. Section 168 which authorises adjournment of a case where the court
deems it necessary or expedient. (The Commissions Report relating to the above
sections is attached in Annexure A1). This report relates only to Section 342A of the
CPA.

2.2 Section 342A focuses on the unreasonable delays in the finalization of criminal
trials and also attempts to empower the courts to deal effectively with conduct which
falls in the category of abuse of the process. This section provides:

342A Unreasonable delays in trials

(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
1
Interim report on the Simplification of Criminal Procedure, Project 73, (1996) chapter 4.

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prejudice to the prosecution, the accused or his or her legal adviser, 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 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 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-
(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

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 unreasonable delay caused by the accused or his
or her legal adviser, as the case may be; or

[Date of commencement of para. (e): to be proclaimed.]

(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), shall not be issued unless exceptional
circumstances exist and all other attempts to speed up the
process have failed and the defence or the State, as the case
may be, has given notice beforehand that it intends to apply for
such an order.
(b) The attorney-general and the accused may appeal against an
order contemplated in subsection (3) (d) and the provisions of
sections 310A and 316 in respect of an application or appeal
referred to in that section by an accused, shall apply mutatis
mutandis with reference to a case in which the attorney-general
appeals and, in the case of an appeal by the accused, the
provisions of section 309 and 316 shall apply mutatis mutandis.
(5) Where the court has made an order contemplated in subsection (3)
(e)-
(a) the costs shall be taxed according to the scale the court
deems fit; and
(b) the order shall have the effect of a civil judgment of that
court.

[Date of commencement of sub-s. (5): to be proclaimed.]

(6) If, on notice of motion, it appears to a superior court that the

institution or continuance of criminal proceedings is being delayed
unreasonably in a lower court which is seized with a case but does not
have jurisdiction to try the case, that superior 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.
(7) (a) The National Director of Public Prosecutions must, within 14 days
after the end of January and of July of each year, submit a report to the
Cabinet member responsible for the administration of justice, containing
the particulars indicated in the Table of Awaiting Trial Accused in respect
of each accused whose trial has not yet commenced in respect of the
leading of evidence, as contemplated in section 150 and who, by the
end of the month in question, has been in custody for a continuous
period exceeding-
(i) 18 months from date of arrest, where the trial is to be conducted
in a High Court;

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 (ii) 12 months from date of arrest, where the trial is to be conducted
in a regional court; and
(iii) six months from date of arrest, where the trial is to be conducted
in a magistrate's court.
(b) The Cabinet member responsible for the administration of
justice must, within 14 days of receipt of a report contemplated in
paragraph (a), table such report in Parliament.

2.3 The whole section came into operation except for the provisions of subsections
(3)(e) and (5) which deals with orders as to costs. These two provisions are the
subject of the current investigation.

2.4 The reasons for the non promulgation of the amendment which the legislature
at the time believed would expedite the finalization of criminal cases derive from
practical and legal challenges which are summarized as follows:

a) It will be a time consuming exercise to determine which official of the State

is responsible for the delay, since various agencies of the State are involved in
criminal trials.

b) The review procedure against decisions of the court to reward costs against
either the State or the defence will bring about an additional workload on the
Department as well as the State Attorney.

c) No provision for any expenditure has been made where the State may be
held liable for costs.

d) The time consuming procedure prescribed by Treasury Instruction W9, to

determine if a prosecutor is liable for wasted costs, will increase the workload
of the Department and the State Attorney.

e) To recover costs from an accused will overburden the State Attorney as well
as the Department who already deals with a lot of debt files.

f) There is no basis upon which the States wasted costs can be determined.

g) It is uncertain how the wasted costs will be determined according to the

wording of the section, namely the scale the court deems fit.

h) This section will not result in eliminating unreasonable delays caused by the
accused, since the accused will in many circumstances not be in a financial
position to pay such costs, and no successful actions and/or enforceable
measures can be taken against an accused as envisaged in subsection (3) (f) .

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2.5 When considering implementation of section subsections 342A (3)(e) and (5)
extensive discussions were held with representatives of the Directors of Public
Prosecutions, the State Attorney, Magistrates and Departments officials. During this
discussion, the concerns which were brought to the Ministers attention regarding
the challenges that would arise from the implementation of the provisions providing
for a cost order for wasted costs were reiterated. These concerns are:

(a) Once the State is ordered to pay the wasted costs, the question arises
which State Department is implicated, by virtue of its employee being
responsible for the unreasonable delay. It is evident from the recent (as yet
unreported) judgment in The State v Motsasi and Another that this is no trivial
matter, having regard to the co-responsibility of the State prosecutor or
advocate (Department of Justice), investigating officer (South African Police
Service), and members of the Department of Correctional Services. In the
Motsasi matter the court has already delivered three consecutive judgments
and a fourth is to follow, once further reports have been filed and certain points
argued before court.

(b) Unless the court pinpoints a specific officer as the cause of the
unreasonable delay, an administrative investigation will have to be undertaken
in order to establish which officer is to be held responsible and/or liable. This in
itself is a time-consuming exercise as various statements will have to be
obtained by client Departments and submitted to the State Attorney for
consideration in terms of Treasury Instruction W9 (Losses caused through acts
or omissions of said persons). In each and every matter a memorandum
will have to be submitted to the accounting officer (Director-General) in order
to determine whether the wasted costs should be recovered from the officer in
question.

(c) Having regard to the considerations mentioned in paragraphs (a) and (b)
above, attention is directed to relevant statistical indications. A number of Chief
Magistrates was requested to compile statistics which have a direct bearing on
section 342A, for the period 1 September 1997 to 30 September 1997. By
means of the statistics the selected courts indicated that they would have
issued 311 costs orders against the State, had section 342A(3) (e) (i) been in
operation. In 986 cases the State requested postponements due to poor or
unsatisfactory investigation. The latter instances may very well eventually lead
to investigations and costs orders as contemplated in section 342A. In only 90
cases the courts would have issued costs orders against an accused as
contemplated in subsection (3) (e) (ii). It is evident from the afore-mentioned
statistics that the administrative and financial burden which will be brought
about by the putting into operation of the sections in question, will be
tremendous.

(d) A major concern raised by all the role-players is that the new measures are
subject to the very problems it is supposed to eliminate or address. This is
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mainly brought about by the fact that the proceedings (i.e. the investigation by
the court and its subsequent findings and orders) take on the form of a trial
within a trial. Once the court starts its investigation, the State prosecutor or
State advocate will be entitled to legal representation by the State Attorney,
which involves administration and time. As is evident from the above-
mentioned Motsasi matter, such a trial within a trial may drag on for eight
months or more, depending on the facts and the courts attitude. In the
Motsasi matter, three advocates had to be briefed to represent the respective
State Departments. Much time has since been spent on consultations and the
drafting of reports and memoranda in compliance with the courts orders. An
amount of R60 000 has already been spent on legal fees by the Departments
involved, and a lot of work still has to be done. Taking into consideration that
the putting into operation of section 342A(3) (e) (i) and (ii) will, judging by
statistics and the number of criminal courts in session on any given day, result
in hundreds of similar investigations and/or court orders each month, there
simply is no way that the limited administrative, human and financial resources
will be able to deal with the additional workload.

(e) It must also be borne in mind that any findings and orders made by the
court in terms of section 342A, are open to review and/or appeal proceedings,
which will place an additional burden on the administrative and human
resources of the State.

(f) Magistrates pointed out and are concerned that many legal representatives
of accused will see the new measures as a golden opportunity to recover their
costs, at least in part, from the State. Given the already overloaded court rolls
and problems such as staff shortages and inexperience in the ranks of the
State prosecutors and advocates, which inevitably lead to delays, there can be
little doubt that many a trial lawyer will not hesitate to attempt to move the
court to issue a costs order against the State.

(g) Should the State be ordered to pay the accuseds wasted costs, the
latters costs account is subject to taxation. The decision of the taxing master
is in itself reviewable and will make even further demands on the offices of the
State Attorney, who will exercise a control function in this regard.

(h) With regard to subsection 342A(3) (e) (ii) in terms whereof the accused
may be ordered to pay the State its wasted costs, the following problems have
been pointed out:

(i) The first and main problem concerns the basis on which the States
wasted costs is to be determined. Subsection (5) (a) reads: costs shall
be taxed according to the scale the court deems fit. Scale in this
context obviously refers to party and party scale or attorney and client
scale. However, State prosecutors or advocates and other officers who
represent the State, are salaried employees. The State Attorney
specifically raised this issue, in view of the fact that no basis exists for
the determination of wasted costs on the part of the State. It will, for

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 instance, not be possible to submit bills of costs, in accordance with
fixed tariff structures, for purposes of taxation.

(ii) Apart from the aforementioned concerns and the fact that an
administrative procedure will have to be established where compliance
with a costs order against an accused can be ensured, there are at
least two other issues of a practical nature, which cast serious doubt on
the viability of costs orders against accused:

* The vast majority of legally represented accused rely on

legal aid provided by the State. The effect of an order for costs against
an accused will then be that the State (which provides the legal aid) will
be ordered to pay the State its wasted costs.

* The chances of actually recovering costs from the average

accused, who is not legally represented, are slim. It is foreseen that the
amount of time spent by the State Attorney and legal administration
officers in tracing the accused (many of whom may be serving prison
sentences and may be referred to as the proverbial persons of
straw) and actually recovering relatively small amounts, will not be
justifiable in terms of the strain placed on human resources, nor can it
be economically justified.

(iii) The Directors of Public Prosecutions who were consulted

regarded section 342A as bad in principle and unworkable in
practice. They are of the opinion that whilst the punitive effect on
the State will be tremendous, it will have little or no effect on
accused.

(j) A number of magistrates regarded section 342A as being good in principle,

but unworkable in practice. One of their major concerns was that the effect of
the said section, which provides for civil proceedings in the course of criminal
proceedings, will frustrate the very object of the newly enacted provisions, and
create more problems than solutions. A number of senior magistrates
expressed the opinion that the measures in question are well intended but
totally ignorant of everyday realities and in need of a great deal of research
concerning its practical viability. Just about all the magistrates had serious
reservations as to whether the State will be in a position to cope with the
financial burden and, especially, the additional workload that will be put on the
already strained human resources.

(k) The State Attorneys concerns regarding important practical issues which
cannot simply be cured by reason of an arrangement (e.g. the fact that no
basis exists for the determination of wasted costs on the part of the State and
the unlikelihood of successfully recovering costs from accused) and the impact
on human resources, were supported by the Sub-directorate: Legal Liability,
who also deals with these matters and liaises with the State Attorney on a daily
basis.(0)

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 (l) Although the majority of concerned parties welcomed the principle that
a cost order may be given against a party who is responsible for unreasonable
delays in criminal proceedings, most of them regard the present enactments
as totally unworkable.

2.6 It became evident that the section concerned could not be put into operation
due to various problems that have been identified above. In relation to the provisions
of this section the Legal and Policy Sub Committee is tasked to further investigate:

the desirability, or feasibility and, or practicability of implementing the stayed

provisions of section 342A relating to orders as to costs as a means of
addressing the delay in the finalization of criminal cases; and/or

whether there are other legislative or administrative measures that would

achieve the outcomes that are by section 342A of the CPA, namely to address
the delays in the finalization of criminal cases.

Methodology: The Sub Committee conducted a literature review and arranged a

consultative workshop in which representatives from the Lower Court judiciary, the
Legal Aid Board, the National Prosecuting Authority, Court Services Branch of the
Department and the Legal Liability unit of the Office of the Chief Litigating Officer
participated.

3. THE DESIRABILITY OR NON DESIRABILITY OF IMPLEMENTING COST

ORDERS TO ADRESS DELAYS

3.1 A comparative study of other jurisdictions show that orders as to costs in

criminal cases are accepted practice in many foreign jurisdictions. The extent to
which it is applied varies from country to country. It however, appears that costs in
criminal cases are used for different purposes and has been applied in other
jurisdictions in a much broader sense than the costs order contemplated by section
342A.

3.2 Hereunder is the summary of comparable jurisdictions on the subject:

In the UK cost orders that may be given fall into five categories: namely:

(a) costs payable out of Central Funds to an acquitted defendant or successful

appellant under section 16 of the 1985 Act (a Defendants Costs Order);
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 (b) prosecution costs payable out of Central Funds under section 17 of the
1985 Act;

(c) costs payable by an offender or unsuccessful appellant under section 18 of

the 1985 Act;

(d) costs payable between the parties in respect of unnecessary or improper

acts or omissions, either by the prosecutor to a defendant or by a defendant to
the prosecutor under s.19 of the 1985 Act and General Regulation 3 or by a
legal representative as wasted costs under section 19A of the 1985 Act;

(e) costs payable under a Criminal Defence Service (CDS) funded order,
section 17 Access to Justice Act 1999 and the Criminal Defence Service
(Recovery of Defence Costs Orders) Regulations 2001 as amended.

In Northern Ireland provision is made for cost orders to be paid by-

(a) the accused, where the prosecution has been instituted on behalf of the
Attorney-General and a conviction followed, the court may order the accused
to pay the whole or part of the costs of the prosecution including any costs in
connection with any matter preliminary or incidental to the trial as well as in
connection with appeal proceedings where the appeal has been dismissed;
and

(b) the Attorney-General or the prosecutor where the prosecutor has

instituted, and if the accused has been acquitted, or the charge been
dismissed, or where, in the event of a preliminary investigation, the accused
has been discharged as well as under circumstances where the accused has
been acquitted on appeal.

In New Zealand costs may be awarded against the -

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(a) defence where any defendant has been convicted the court may order
him to pay such sum as it may deem just and reasonable towards the costs of
the prosecution; and

(b) the prosecution where the defendant has been acquitted, or where the
information charging him has been dismissed or withdraw, the court may order
costs against the prosecution having du regard to the following factors, namely

(aa) Whether the prosecution acted in good faith in bringing and

continuing the proceedings.

(bb) Whether at the commencement of the proceedings the

prosecution had sufficient evidence to support the conviction of the
defendant in the absence of contrary evidence.

(cc) Whether at the commencement of the proceedings the

prosecution had sufficient evidence to support the conviction of the
defendant in the absence of contrary evidence.

(dd) Whether generally the investigation into the offence was

conducted in a reasonable and proper manner.

(ee) Whether the evidence as a whole would support a finding of guilt

but the information was dismissed on a technical point.

(ff) Whether the information was dismissed because the defendant

established (either by the evidence of witnesses called by him or by the
cross-examination of witnesses for the prosecution or otherwise) that he
was not guilty.

(gg) Whether the behaviour of the defendant in relation to the acts or

omissions on which the charge was based and to the investigation and
proceedings was such that a sum should be paid towards the costs of
his defence.

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 In New South Wales an order as to costs may be made against the
prosecution if-

(a) in summary proceedings, the prosecutor is not present and the

matter is dismissed the court is satisfied as to any one or more of the
following circumstances as set out in section 214:

(b) that the investigation into the alleged offence was conducted in an
unreasonable or improper manner
(c) that the proceedings were initiated without reasonable cause or in
bad faith or were conducted by the prosecutor in an improper manner
(d) that the prosecutor unreasonably failed to investigate (or to
investigate properly) any relevant matter of which it was aware or
ought reasonably to have been aware and which suggested either
that the accused person might not be guilty or that, for any other
reason, the proceedings should not have been brought
(e) that, because of other exceptional circumstances relating to the
conduct of the proceedings by the prosecutor, it is just and
reasonable to award costs.

In Victoria the Crimes (Criminal Trials) Act 1999 (Vic) (the 1999 Act) came
into effect on 1 September 1999 and:

Section 24 ... empowers the Court to award costs against any party for
a failure by that party to comply with a requirement of the Act. Section
25 allows a judge to award costs against a legal practitioner acting for a
party in a criminal proceeding where that legal practitioner has caused
costs to be incurred improperly, or without reasonable cause, or to be
wasted by undue delay or negligence, or by any other misconduct or
default. Practice Note 1 of 1999 suggests that the Court can make
orders of this type where it is found that a legal practitioner was not
properly prepared.

3.3 In the countries cited above, it appears that the courts would grant cost orders
where the prosecutions is found to amount to an abuse of the legal process, either
the prosecution (for example, by instituting a prosecution without reasonable cause,

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or due to exceptional circumstances relating to the conduct of the proceedings by the
prosecutor, or the investigation has been conducted in an improper manner) or the
defence, (for example, where there was a failure to comply with the legislative
requirements or where the legal practitioner has caused costs to be incurred
improperly, or without reasonable cause or to be wasted due to delay or negligence,
or by any other misconduct or default or failure to appear, the court is empowered to
sanction such conduct with an order as to costs against such party. The Victoria
experience appears closer to what the cost order in section 342A sought to achieve.
3.4 The initial recommendation of the SALRC for the inclusion of the cost order provisions
in section 342A of the CPA appears to have been relied on the doctrine abuse of the
process. The Commission highlighted this with reference the position in foreign
jurisdictions and decided case law. In its report it cited J Kovacevich who in 1989
investigated the origin of the doctrine of abuse of the process as well as its influence
on delays and the right to a speedy trial. 2 Kovacevich is his article he refers first to
the power of the courts to counteract abuses of the process and he justifies the
existence of this power by reference to a number of decided cases: 3

4
Hunter v Chief Constable of the West Midlands Police

the inherent power which any Court of justice must possess to prevent
misuse of its procedure in a way which, although not inconsistent with
the literal application of the procedural rules, would nevertheless be
manifestly unfair to a party to litigation before it, or would otherwise
bring the administration of justice into disrepute among right-thinking
people.

Connelly V Director of Police Prosecutions5

There can be no doubt that a Court which is endowed with a particular

jurisdiction has powers which are necessary to enable it to act
effectively within such jurisdiction. I would regard them as powers which
are inherent in its jurisdiction. A Court must enjoy such powers in order
to enforce its rules of practice and to suppress and to defeat any
attempted thwarting of its process.

2
The inherent power of the District Court: Abuse of Process Delay and the Right to a Speedy Trial May
1989 New Zealand Law Journal 184 (hereinafter J Kovacevich May 1989 NZIJ).
3
Kovacevich May 1989 NZLJ 184 seq.
4
[1982] AC 529, 536; [1981] 3 All ER 727 at 729.

5
[1964] AC 1254, 1301-1302; [1964] 2 All ER 401, 409-410.
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3.5 The power (which is inherent in a Courts jurisdiction) to prevent abuses of its
process and to control its own procedure must, in a criminal court, include the power
to safeguard an accused person from oppression or prejudice. A similar view was
taken in Mills v Cooper6 and in his article referred to above Kovacevich concluded
that:

(s)ince Mills v Cooper it has been accepted by the highest authority

throughout the commonwealth that inferior Courts such as the District
Court, have an inherent power to prevent abuse of their own process. .
(b) Delays in the completion of a trial as an abuse of the process

Kovacevich pointed out that the circumstances under which abuses of the
process can arise may vary:7

the circumstances in which abuse of process can arise are very

varied . . . It would in my view, be not unwise if this House were to use
this occasion to say anything that might be taken as limiting to fixed
categories the kinds of circumstances in which the Court has a duty (I
disavow the word discretion) to exercise this salutary power.

3.6 There is, however, no exhaustive list of categories of abuse of process, but in the UK
the following categories have surfaced, namely:
Delays;
Double jeopardy;
Breach of Promise;
Loss of evidence;
Investigative impropriety; and
Pre-trial publicity.

3.7 Of the above, delays are most common and the remedy applied by the courts is a
stay of prosecution, the same as provided for in section 342A of the CPA.

3.8 In the several judgments cited in the report of the Commission the cost
awarded related to the abuse of the court process than to wasted costs as
envisaged by Section 342A. The cost order envisaged in subsection (3)(e) is wasted

[1967] 2 QB 459, 467

7
He refers inter alia to Hunter v Chief Constable of the West Midlands Police [19821 AC 529, 536; [1981]
3 All ER 727, 729.
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costs incurred as a result of the unreasonable delay. The judgment in The State
versus Petroleen De Wet and Ivan Benting (CC. 194/2001) is more relevant. In this
case:

The two accused appeared several times in a magistrates court. A

magistrate threatened to strike the case from the roll. The Director of Public
Prosecutions then requested that the case be postponed to the High Court for
trial. A trial date was set for 26 November to 7 December 2001. On the date
set for trial the State requested that the matter be postponed for finalisation of
the investigation and for the Director of Public Prosecutions to make a final
decision regarding the persons to be prosecuted. Both accused were
represented. The legal representative for Ms De Wet opposed the remand on
the grounds that the accused, in light of the history of the case, is prejudiced.
The court invoked the provisions of section 342A of the Criminal Procedure
Act, 1977 (Act 51 of 1 977), and struck the case from the roll with specific
instructions that the case may not be put back on the roll unless the Director
for Public Prosecutions issues a certificate whereby it is certified that the
investigation of the case is finalised and that the case is ready for trial.
Despite the order of the court, the case was again put on the High Court roll for
trial on 9 June 2003. The trial was set down for two weeks. During this
appearance the State was in a position to proceed with the trial, but no judge
was available to hear the matter. Accused number 2, Mr Benting, employed the
services of another legal practitioner who was recently briefed and who was
not in a position to proceed with the trial. The case was also put on the roll
without the necessary certificate from the Director of Public Prosecutions
whereby it is certified that the investigation in the matter is completed and that
the case is ready for trial. The legal representative for Ms Dc Wet opposed the
remand of the case, inter alia, due to the following facts

(a) that Ms De Wet would financially be prejudiced by another

remand of the matter to such an extent that she may not be in a position
to afford legal representation or pay for expert witnesses that need to
testify in her defense;

(b) that the second accused changed legal representation shortly

before the trial with the result that his legal representative was not in a
position to proceed with the trial in the near future;

(c) the State did not furnish the accused with further particulars as
was timeously requested; and

(d) that the case was again put on the roll without the necessary
certificate that was required by the judgment of the court on 26
November 2001, and requested the court again to invoke the provisions
of section 342A of the Criminal Procedure Act, 1977.

Judge Fourie summarised the facts of the case as follows:

15
(a) The court made an order that the matter be struck from the roll
and that the case only be put back on the roll if the Director of Public
Prosecutions lodged a certificate that the investigation in the case is
completed and the case is ready for trial.

(b) The case was again put on the roll on 9 June 2003 for trial
purposes and the State requested a remand for trial to 1 December
2003, although the certificate required by the court was not filed.

(c) The legal representative for Mr Benting does not oppose the
remand due to the fact that he was not ready to proceed with trial
because he was only briefed recently in the matter.

(d) The legal representative for Ms De Wet opposed the remand on

the facts of the case as summarised above and requested that the court

(i) refuse a further remand; alternatively;

(ii) that section 342A of the Criminal Procedure Act again be

invoked in the matter; alternatively;

(iii) that the case only be remanded for a short period;

alternatively; and

(iv) that the placing of the case on the roll for trial was
irregular due to the fact that the necessary certificate was not
lodged as was ordered by the court.

(e) The legal representative for Ms De Wet argued that the remand
of the case will have serious cost implications for Ms Dc Wet and that
the State should be ordered to pay her cost. Judge Fourie then made
the following findings:

(i) It was a prerequisite that before the case was again put on
the roll, the requested certificate be lodged by the Director of
Public Prosecutions.

(ii) The direct cause of any squandering of costs is the fact

that the case was put on the roll in circumstances where it should
not have been placed on the roll due to the non-filling of the said
certificate by the Director of Public Prosecutions.

(iii) In light of the above the case should not be remanded but
should be struck from the roll.

(iv) It is also an appropriate instance where the State should

be ordered to pay the wasted costs of Ms De Wet as is intended
in section 342A(e)(i) of the Criminal Procedure Act, 1977 (the
16
 court probably referred to section 342A(3)(e)(i) of the Criminal
Procedure Act).

Judge Fourie then made the following order:

(a) That the case be struck from the roll and that it should not again
be put on the roll unless the Director of Public Prosecutions files a
certificate which indicates that the investigation in the case is finalised
and that the case is ready for trial.

(b) That the State is to pay Ms De Wet s wasted cost brought

about by the striking of the case from the roll on a High Court scale as
between party and party.

3.9 In S v Campos 2002 (1) SACR 233 (SCA) the Supreme Court of Appeal
considered an application by the appellants counsel for an order that the respondent
(the State) pay the appellants wasted costs occasioned by a postponement of the
appeal. The Court held:

Counsel for the appellant consequently applied for an order that the
respondent pay the appellants wasted costs occasioned by the
postponement. That is an unusual order though not one that this Court
cannot entertain. I think that in the exercise of its inherent jurisdiction to
ensure compliance with its own procedures and to protect litigants
before it from loss occasioned by non-compliance with them, this Court
has the competence to make such an order. In doing so, however, it
should tread carefully as the proverbial opening of the floodgates should
be avoided. Many cases are postponed daily, particularly in the lower
courts, due, for example, to the State not being ready to proceed with
the trial. The reasons for that may be legion and no blame may attach
to the State. Clearly in such cases no such costs orders should be
made. [My underlining] Practitioners are normally able to return to their
offices to continue with their daily tasks. The position in this Court is
different. Matters are set down well in advance and the parties or their
legal representatives are required to set aside that day to attend
exclusively to them. More often than not counsel comes from outside
Bloemfontein as in the present case. If a matter is postponed to the
next day additional overnight expenses are incurred. It would be
unreasonable to expect an appellant in a criminal appeal to bear such
additional costs where the postponement is due to negligence on the
part of the State. The diarizing of an incorrect date could not have
occurred without a want of due care on the part of someone in the office
of the Director of Public Prosecutions. In my view, the appellant is
entitled to recover her wasted costs occasioned by the postponement.
The following order is made

17
 The Director of Public Prosecutions, Johannesburg, in his official
capacity is ordered to pay the appellants wasted costs
occasioned by his representatives failure to appear in this Court
on 6 November 2001.

3.10 In Tinyiko Lwandhlamuni Philla and Others v Sidwell Nwamitwa and Others
heard by the Constitutional Court (Reference CC T 03/0717 May 2007 decided on:17
May 2007 Justice Van der Westhuizen had to consider an application for a
postponement by the respondent, filed the day before the matter was scheduled to be
argued in the Constitutional Court.
The matter posed fundamental questions regarding the interplay between
customary law and the Constitution and raised delicate issues regarding the
relationship between traditional community structures and courts of law. How
these matters are resolved might be of paramount importance not only to the
immediate parties, but to the community of which they are a part, as well as
the nation. The respondent made two general submissions regarding the
application for postponement. Firstly, he argued that the State Attorney is not
authorised to represent the non-governmental applicants in this matter,
because such representation would not be on behalf of the government as
required by statute. To the extent that the State Attorney is permitted to
continue representing the applicants, however, the respondent argued that he
too should receive funding from the State Attorney. Secondly, he claimed that
his lack of resources has left him ill-equipped to prepare properly for the
hearing.

The Court expressed no view on whether it would be permissible and possible

for the State Attorney to fund both sides to the litigation. Furthermore, the
Court noted that, even if meritorious, the respondents argument would not,
on its own, warrant a postponement particularly one requested at this late
date. However, the court was of the view that respondents claim about his
lack of resources, which is related to his point about State Attorney
representation, required more attention. Until 15 May 2007, the respondent
was only able to secure representation of junior counsel, Mr BLM Bokaba. Two
days before the scheduled hearing, however, the respondent was able to
secure the services of senior counsel, Mr M Motimele SC. Not only would it
have been impossible for Mr Motimele to have adequately prepared himself for
a hearing involving important and complex issues on two-days notice, but he
was otherwise engaged and could not represent the respondent at the
scheduled hearing, according to the respondent.

The Court referred to the matter of National Police Service Union and Others v
Minister of Safety and Security and Others,8 the Court was faced with an
application for postponement in a similar situation. The appellants applied for a
postponement the day before the scheduled hearing, after apparently having
reached an agreement with the respondents that a postponement would be

8
2000 (4) SA 1110 (CC); 2001 (8) BCLR 775 (CC).
18
 sought.9 Accordingly, counsel for the respondents did not appear.10 The Court
found the reasons furnished to be inadequate and denied the postponement. 11
1
According to the Court, it was made clear in National Police Service Union that
the question is whether it is in the interests of justice for a postponement to be
granted by this Court. A postponement cannot be claimed as of right. The party
applying for postponement must therefore show good cause that one should
be granted.12 The factors to be taken into account include

whether the application has been timeously made, whether the

explanation given by the applicant for postponement is full and
satisfactory, whether there is prejudice to any of the parties and whether
the application is opposed.

The Court referred to the matter of Lekolwane and Another v Minister of

Justice and Constitutional Development 13 where the Constitutional Court added
the following factors to be considered in granting a postponement: (1) the
broader public interest; and (2) the prospects of success on the merits. The
Court was of the view that the following factors could non-exhaustively be
added to the above: the reason for the lateness of the application if not
timeously made; the conduct of counsel; the costs involved in the
postponement; the potential prejudice to other interested parties; the
consequences of not granting a postponement; and the scope of the issues
that ultimately must be decided. 14 In balancing these factors it is of vital
importance to keep in mind that

[w]hat is in the interests of justice will . . . be determined not only by

what is in the interests of the parties themselves, but also by what, in
the opinion of the Court, is in the public interest. The interests of justice
may require that a litigant be granted more time, but account will also be
taken of the need to have matters before this Court finalised without
undue delay. 15

The Court noted that a standard way to mitigate prejudice to other parties is for
the party asking for the courts indulgence to postpone a hearing
particularly one requested at the last minute to offer, or to be ordered, to pay
the costs of the postponement.16

9
Id at para 1 and 2
10
Id at para 2
11
Id at para 6
12
Id at para 4
13
2007 (3) BCLR 280 (CC) at para 17.
14
Some of these factors have been recognised by other courts over time. See for example
Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 399; Ngcobo v Union & South West African Insurance
Co Ltd 1964 (1) SA 42 (D) at 44F-G; Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310
(NmS) at 315B-G. See also Van Winsen et al Herbstein and Van Winsen The Civil Practice of the
Supreme Court of South Africa 4 ed (Juta & Co, Ltd, Kenwyn 1997) at 666-668.
15
National Police Service Union above n 9 at para 5.
16
See for example id at para 2; Van Winsen et al above n 16 at 668.
19
3.11 It appears from the above judgments that courts have been persuaded to
award wasted costs against the State. It would be more difficult to award wasted
costs against the accused person. The reluctance of the courts to award costs for
unreasonable delay stems from the courts fear that this would open flood gates and
the trial within trial would surpass the main trial.

3.12 From the comparative studies and case law referred to above, it appears that
there may be a need for the contemplation of giving the courts the authority to grant
cost orders for abuse of process. Such a contemplation will, for example establish if
the existing legal remedies (at common law) do not provide adequate legal protection.

3.13 The conclusion arrived at is that the provisions of section 342A relating the
courts power to grant wasted costs for unreasonable delays are undesirable and are
not effective measures to curb the delay in the finalisation of criminal proceedings.

3.14 The contemplation for granting wasted costs for abuse of process, which may
be a viable option should common law remedies be found to be inadequate, will
require further research and extensive consultation with stakeholders, in particular the
legal profession.

4. OTHER LEGISLATIVE AND ADMINISTRATIVE MEASURES TO ADDRESS

DELAY

4.1 The second phase of the investigation by the Legal and Policy Subcommittee
related to the consideration of other legislative or administrative measures that would
achieve the outcomes that were intended by the insertion of section 342A of the CPA.

4.2 For purposes of this report it is important to note that the mischief sought to be
addressed is measures to address delays in the finalization of criminal cases. In this
regard it should be noted that it is not all delays which should be targeted but those
that can and should have been avoided. To confirm this principle the report of the
Commission cite the following words in a presentation by Mark Weinberg at a
conference on criminal law reform in Australia:17
17
The Criminal Trial Process and the problem of delay Mark Weinberg.
20
 Experienced criminal law practitioners know that some measure of delay is
necessary, and not of itself a bad thing. There are many systems of criminal
justice which move far more speedily than our own, but whose standards of
justice are not worthy of emulation. It is obviously desirable, if at all possible,
that allegations of serious wrongdoing are thoroughly investigated before any
charges are laid. The reputation of a person who is charged with a serious
criminal offence may be damaged irreparably even if that person is ultimately
acquitted. Where consideration is being given to laying charges, it will often
take considerable time to evaluate the evidence and to determine whether a
prosecution should be brought. Prosecutors require reasonable time in order
to prepare cases adequately for committal, and then for trial. The accused
must be afforded a reasonable opportunity to meet any case brought against
him.

It is not delay as such which is the problem, but rather delay which could have
been avoided. Unnecessary delay:

results in hardship for an accused who is in custody;

renders it more difficult to ensure that any trial is fair;
is likely to be prejudicial to the prosecution case;
can have a devastating effect upon both victims and key witnesses;
increases costs and places additional pressure upon scarce resources;
and
breeds cynicism, and tends to bring the administration of justice into
disrepute.

4.3 In order to address delays effectively it is important to note the different stages
where delays can occur, namely delay in investigating crimes; delay between the
laying of charges and the trial; delay in the course of the trial, and delay between trial
and appeal. For purposes of section 342A of the CPA the delay sought to be avoided
are delay in trials, that is at the stage that the court is seized with the matter.

4.4 In Australia, for example, the following areas for reform were identified in 1999:
early and complete prosecution disclosure together with statutory
recognition of the duty of disclosure that rests upon both prosecutors
and investigators;
changes in the approach to the provision of legal aid to identify pleas of
guilty at the earliest possible opportunity;
a tangible and publicly identified discount for early pleas of guilty, with
the Western Australian process known as the fast track procedure
being considered as an effective and fair way to promote this objective;
early involvement on the part of the DPP in the investigation of complex
matters, and early screening by the DPP of charges laid by police;
all committal proceedings to be conducted by the DPP;
21
 the development of procedures designed to facilitate the efficient
transfer of those wishing to plead guilty from the lower courts to the
sentencing courts;
changes to pre-trial procedures to include the provision by the
prosecution of prosecution case statements;
the provision of incentives to the accused to cooperate by the
application of a tangible and publicly identified scheme of sentencing
discounts for cooperation;
increased judicial supervision in the pre-trial and trial processes; and
the introduction of professional conduct rules designed to stress the
important role of legal practitioners in cooperating in the efficient
administration of justice so that the time of the courts is not taken up
unnecessarily.
5. VIEWS OF THE ROLE PLAYERS WITHIN THE JUSTICE SYSTEM

5.1 During the consultative workshop arranged by the Legal and Policy
Subcommittee the views of the Lower Court judiciary, the National Prosecuting
Authority, the Legal Aid Board and the Department were obtained on the
desirability of the implementation of the provisions for the granting of cost
orders for unreasonable delays and/or the consideration of other procedural
remedies to curb delays in the finalization of criminal cases. The discussion
focused on both tasks of the Legal and Policy Framework Subcommittee,
namely: 1) the desirability or non desirability to implement the cost order and
2) consideration of other measures that may be implemented to curb delay in
the finalization of cases.

5.2 With regard to the desirability for the existence of the provisions relating to
wasted costs for unreasonable delays the general view was that the
implementation of these provisions would be cumbersome and unworkable
and the following examples were reiterated:

The process of conducting an enquiry for cost orders in tedious and protracted
and had the risks of causing further delays

The focus would shift from the main case to the trial within a trial and
aspects of credibility of parties may later play themselves in the main case

Adv Roberts, form the Director of Public Prosecutions office stated the
point as follows: put it as follows: Chair, I just want to say something

22
 regarding the valuable court hours, court time. Court time is valuable.
Now what happens if these inquiries are conducted. We take out of the
system that presiding officer to look into this matter while he could have
done another matter. So that is also something we must not lose sight
of, that by having these huge inquiries as that Motsatsi matter is a good
case in point which occurred in the High Court and I was part of that
whole argument, it is a good example of to what extent the court will go
in the High Court to determine where the blame lay for the delay in
finalising the matter. And we cant afford that. I am really concerned
that we are well, with all these investigations take out of the equation
of finalising trial matters looking into, trying to shift blame and put blame
to somebody for not doing his work.

The basis for a finding that the delay was unreasonable are subjective and the
Act does not give sufficient criteria for the courts to make such a finding.

In the district and regional courts most of the accused persons are defended
by Legal Aid officers. Cost orders made against the Legal Aid officers would be
tantamount to orders against the State. The accused represented by the legal
aid offers are have been found to be indigent and therefore cost orders cannot
be made against them where they are found to be directly responsible for the
delay.

The legal representatives, especially from the private sector, are simply not
coming to court, or double booking, or dealing with their issues. Law societies
would not attend to complaints raised against these legal practitioners.
Most of the delays are not attributable to individual offices involved in the
management of the court through the value chain, but are systemic. They
range from lack of capacity and effective coordination between the various role
players in the criminal justice system. In adequate skilled personnel, lack of
adequate court infrastructure, limited capacity of the Legal Aid Board, manual
systems coupled with the introduction of new technology, strikes by public
servants (usually interpreters) are the usual causes of delays in the finalization
of cases. These factors contribute to the case backlog. This situation was
explained in the case of S v Motsasi 1998 (2) SACR 35 (W).
In this case the court ordered an investigation under section 342A of the
CPA, into the reasons for the unreasonable delay in the finalization of

23
 the case as a result of the fact that one of the accused persons, who
was in custody, was not brought to court on time. Initially the
investigation was limited to the Department of Correctional Services, but
upon receiving its report the court also requested the Department of
Justice and the South African Police Service to report to it on their role
in the matter. In total there were three judgments in what is now
referred to as the Motsasi-saga. The Court finally held in the end that
the finalization of the proceedings in the case had been unreasonably
delayed as a result of the non-availability of the State Advocate, the
over-population of the prison, the actions of members of the prison
service who were absent without leave, and the actions of the
Registrars office which failed to communicate properly with the prison
authorities. Again, the question could be raised whether in a different
court in a different area there would really have been different
conclusions to be reached, as a result of a section 342A investigation, in
the absence of the implementation of measures to address the well
known and documented short comings of the criminal justice system. In
the final instance the court did warn that courts in general should be
careful in undertaking section 342A investigations, due to the extent of
such investigations and the fact that departments blame each other,
which in turn broadens the scope of such investigations.

There is no feedback or follow-up in respect of instances where enquiries have

been conducted in terms of subsection 3(f) of section 342A where an order is
made for the appropriate investigation and possible disciplinary action to be
taken against any person responsible for the delay. As put by the Regional
Court President of Northern Cape:

I would say the most, the provision that we have used most which I
have had to identify the problems on why cases are delayed, has been
the 342(A,) subsection (3), subparagraph (f), where you refer the delay
to the identified institution that is responsible for the delay. And I have
even started even an investigation and a possible disciplinary action.
We have sent them to everybody, the Department of Justice, the
DPPs, to Law Society, to Legal Aid Board. All of them have got our
documents. But the problem as you say appears to be more
institutional than individually related. And what happened then is that
we sent it for an investigation and for possible action against somebody.
They unfortunately cannot investigate themselves and penalise
themselves. And therefore what happens is that if it is the police, they
will start standing by their men, say the prisoners arrived late, there was
no transport. They will stand by them. Is the interpreter, the one was
say sick or whatever, they stand by them.

The fact that courts have not been rationalised, for example that they are still
configured in terms of the pre 1994 apartheid order may be seen as

24
 contributing to the delay in the finalization of trials. Accused persons and
witnesses, and in some instances (for example Branch Court) have to travel to
courts outside their area of residence or office of station due to the disjunction
caused by the current spatial distribution of courts.

Some delays are the result of ineffective case flow management. The case
flow management initiative is a new concept and many judicial officers need to
be trained on effective management of the flow of cases in their courts.

Lack of a continuous roll system in the lower courts. Cases are rolled from
day-to-day in most instances cases are postponed to dates where there are
other cases on the roll, or the presiding officer or legal representative is not
available. This is a matter that may be resolved through an effective case flow
management system.

Aspects relating to the transformation of the judiciary, such as the need to

strengthen judicial accountability measures, the judicial governance structure
and judicial education are necessary for an effective and efficient judicial
system. An effective judicial governance system coupled with the need for
existence of a Code of Judicial Conduct will address fears that there are ne
mechanism to deal with judicial officers who themselves are responsible for
the delay.

The reviewability of the cost orders. Any aggrieved party, whether its the DPP
or SAPS or the accused, whatever decision the magistrate makes, may take
the matter on review or appeal. This will further clog the court rolls.

The impact orders on the roll of civil cases. Once a cost order is given, it has
the same or it becomes a civil judgment. This will put more pressure on the
civil courts.

5.4 The above submissions were considered in the recommendations discussed in

the succeeding Chapter.

6. RECOMMENDATIONS

25
6.1 As it with the structure of the report, the recommendation are categorised into
two, namely recommendations relating to the cost order and those that pertains to the
other legislative measures that may be introduces to curb delay in the finalization of
cases. In both categories it is stated if the recommendations are short term or
medium to long term solutions.

(A) Cost Orders

6.2 The following arguments are advanced for the non implementation of the
provisions in section 342A(3)(e) and (5):
(a) The administrative workload of the State agencies that participate in the
criminal process will increase considerably due to the following
(i) enforcement of cost orders;
(ii) additional personnel may have to be appointed in order to cope
with the administrative workload;
(iii) preparatory work in order to oppose cost orders; and
(iii) administrative determination of the liability of its officials who
caused delays.
(b) It will have significant financial implications for the State, namely-
(i) hundreds of cost orders may be given against the State on a
monthly basis;
(ii) the cost of legal representation in some instances to contest cost
orders or to take a decision of a court on appeal;
(iii) the cost of the appointment of additional personnel to administer
the process; and
(iv) the cost involved in collecting money due to the State and
possible additional litigation in this regard.

(c) The workload of the State Attorney will increase substantially in that the
state agencies will make use of their services on a regular basis to
(i) contest possible cost orders;
(ii) take cost orders on appeal or contest cost orders on appeal;

26
 (iii) provide legal representation to officials who may be faced with
cost orders;
(iv) render a controlling function with regard to the taxation of costs;
and
(v) collect money due as a result of cost orders.
(d) It may have a negative effect on the courts in that, in addition to criminal
trials courts, will have to have hearings regarding cost orders, which
may, in some instances, be a time-consuming process. The process
may result in full blown civil trials within criminal trials, especially if the
various State agencies blame each other for the delay and there is a
possibility of contributory liability on the side of some of these agencies.
(e) Although the State will bear the full brunt of cost orders, it will have little
or no effect on accused persons. Most accused persons are not even in
a financial position to afford legal representation and make use of legal
aid. The effect of an order for costs against an accused will then be that
the State (which provides the legal aid) will be ordered to pay the State
its wasted costs. Furthermore, it may not be economically viable to
recover cost orders in light of the strain that is placed on human
resources.
(f) An administrative procedure will have to be established to ensure
compliance with cost orders. This will add to the administrative workload
of the State.
(g) No basis exists for the determination of wasted costs on the part of the
State. It will therefore not be possible to submit bills of costs, in
accordance with fixed tariff structures, for purposes of taxation.

Specific recommendation:

(a) That section 342A be amended by deleting section 342A (3)(e) and (5) of the
CPA. This recommendation if accepted, will have an immediate effect.

Alternative option:

27
(b) Consider the amendment of the grounds for awarding cost orders to provide
for the cost orders for abuse of court process. This option, as argued elsewhere in the
report, would require further research and consultations, especially with the legal
profession. In our view this option medium to long term, and the appropriate
amendments may be considered after the completion of the envisaged research.

(B) OTHER LEGISLATIVE MEASURES

6.3 The Commission has already considered a number of procedural amendments

to address the problem of delays. These recommendations deal with the matters
identified above and includes recommendations on pre-trial conferences, increased
judicial supervision in the pre-trial and trial process, and prosecution and defence
disclosure. It will be necessary to consider the policy implication of the
recommendations before they are considered by the government. The
recommendation of he Commission cover the following aspects:

changes to pre-trial procedures to facilitate the identifying of issues in

dispute to limit the duration of trials;
increased judicial supervision in the pre-trial and trial processes;
prosecution disclosure which will facilitate early and complete
prosecution disclosure;
consideration of regulating defence disclosure;
amendments aimed at reducing the number of cases going to trial and
consideration of providing a legal framework which will allow for out of
court settlements;

6.4 During the consultation process there was a general view that certain aspects
of section 342A need to be strengthened to achieve the overall objectives of the
section.

6.5 A further aspect which has arisen in practice is that the court would subpoena
Director-General of the Department of Justice and Constitutional Development to
come and explain the cause of delay in certain specific criminal proceedings. Some of

28
the courts subpoena the administrative official responsible for court administration at
court level to explain, for example the unavailability of court equipment, court
interpreter, etc. While the appearance of the Director-General in court to explain the
delay occasioned, in most instances by officials under his or her supervision, his or
appearance provide may lead to decisive and prompt action by the administrative
Head of the Department, this may defeat the purpose for which the enquiry sought to
achieve, namely possible administrative investigation against any official responsible
for the delay. The Director-General, as the accounting officer, is the person who must
take disciplinary steps against any of his or her insubordinates for delay court
proceedings and may not do so is he or she himself was the subject of the enquiry. If
the Director-General himself or herself is found to be directly responsible for the
delay, which is inconceivable, then the matter must be reported to the executive
authority (the Minister) to consider disciplinary action against him or her. This
provision need to be worded in a manner an unambiguous manner.

6.8 To provide measures that will allow for a feedback to be given regarding the
steps taken by the appropriate authority for an administrative investigation, it is
recommended that information relating to such investigations, including information
relating to the number of enquiries received and the number of enquiries finalized or
pending must be reported on annually by the accounting officer or head of the
appropriate authority. The inclusion of such information in the Annual Report of the
relevant Department or entity will allow for scrutiny by Parliament as part of its
oversight role over the executive, or any regulatory body if the appropriate authority is
not a public entity (for example, the Law Societies). It is necessary to consult with the
National Treasury and the Department of Public Services and Administration and Law
Societies regarding the annual reporting of matters referred to the State Departments
and Law Society in terms of section 342A(3)(f) of the CPA.

Specific recommendations:

(a)To provide for an amendment to subsection 342A(3)(f) as follows:

(f) that the matter be referred to, in the case of a Government Department,
to the Director-General of that Department, in the case of any other
authority to the Head of such an authority, for an administrative

29
 investigation and possible disciplinary action against any person
responsible for the delay.

(b) By inserting the following paragraph as subparagraph (g) to subsection 342A(3)(f)

(b) the Director-General or the Head of the authority must include in the
Annual Report of the Government Department or appropriate authority
referred to in (f) above, as to the number of cases referred to such the
Government Department or appropriate authority concerned in the
particular financial year, including the number of finalised and pending
investigations.

6.7 The above proposed amendments to section 342A of the CPA have been
referred to the legal drafters to draft a proper Bill on the proposal.

6.8 The other procedural amendments to the CPA including the amendments
recommended by the Commission in respect of Pre-trial procedures to
facilitate the identifying of issues in dispute to limit the duration of trials;
increased judicial supervision in the pre-trial and trial processes; prosecution
disclosure which will facilitate early and complete prosecution disclosure; and
consideration of regulating defence disclosure; will be dealt with as separate
sub projects of the Legal and Policy Framework Subcommittee.

30