S v HEIDEREICH 1998 R 229 (HC) trial was due to commence.

trial was due to commence. He contended that the defence was entitled to seek further
1998 R p229 particulars and if the case was to be heard on that day, the defence would be deprived of
that opportunity. He submitted that the case should not be heard that day or at all. As the
Citation 1998 NR 229 (HC) State had provided no explanation why the charge sheet had not been supplied timeously
other than an unacceptable excuse relating to a lack of stationery, the court should release
Court High Court the accused in terms of article H 12(1)(b) of the Constitution. The court acceded to this
request and released the accused. Thereafter the magistrate had doubts about whether she
Judge Strydom JPand Hannah J had jurisdiction to make this order and referred the matter to the High Court for review.

Heard November 13, 1995 In terms of article 12(1)(b) of the Namibian Constitution, a trial 'shall take place within a
reasonable time', failing which the accused shall be released. The first question the Court
considered was whether a magistrate's court is a competent court in terms of article 25(2)
Judgment November 13, 1995
of the Constitution to take the necessary action to enforce or I protect the right of an
accused to a fair trial. According to article 25(2), 'aggrieved persons who claim that a
Counsel M Figueira for the accused at the request of the Court. fundamental right or freedom guaranteed by this Constitution has been infringed or
D F Small for the State. threatened shall be entitled to approach a competent court to enforce or protect such a
right or freedom . . .'. While the phrase 'competent court' is not defined in the
Annotations Link to Case Annotations Constitution, it clearly means a court which has jurisdiction to hear and adjudicate a
claim brought in terms of the sub-article. The High Court has J
B 1998 NR p230
[zFNz]Flynote
Constitutional law - Human rights - Right to be tried within reasonable time - Article such jurisdiction, but it is clear from the terms of chapters VI and XII of the Magistrates'
12(1)(b) of Namibian Constitution - Meaning of 'reasonable' - What is reasonable time Courts Act 32 of 1944, A that the magistrate's court does not.
depends on circumstances of each case - Factors to be taken into account - Held on facts
delay not unreasonable. C The next question the Court considered was whether it was competent to order that the
Constitutional law - Human rights - Right to be tried within reasonable time - Article accused be released and what the effect of such an order was. The foregoing conclusion
12(1)(b) of Namibian Constitution - Onus on accused to satisfy court that delay did not mean that it was not competent for the magistrate to make the order in question. A
unreasonable. magistrate's court does have the jurisdiction to ensure the observance of certain
Constitutional law - Human rights - Jurisdiction - Of magistrate's court to take necessary fundamental rights guaranteed by the Constitution in the course of proceedings before it.
action under article 25(2) of Namibian Constitution to enforce or protect rights of B Indeed, when regard is had to the provisions of article 12, it would be absurd if this
accused to fair trial - While magistrate's court not 'competent court' D under article 25(2), were not the case. That article provides, inter alia , that all persons shall be entitled to a
magistrate's court does have jurisdiction to ensure observance of certain fundamental fair and public hearing, that judgments in criminal cases shall usually be given in public
rights guaranteed by Constitution in proceedings before it. E and that all persons charged with an offence shall be presumed innocent until proven
[zHNz]Headnote guilty. Obviously a magistrate's court is obliged to ensure that these constitutional rights
are observed in proceedings before it. There is no reason in logic or law why the same
The accused appeared in the magistrate's court on 25 June 1993, on various charges, should not apply to the observance of C article 12(1)(b ), that a trial shall take place
including attempted murder. He had been arrested on the day of his first appearance in within a reasonable time, failing which the accused shall be released. It is implicit in the
court and it was also the day he had allegedly committed the offences in question. He was terms of article 12 that a trial court has the power, authority and duty to ensure that the
released on bail and the case was postponed. The case was thereafter postponed several fundamental rights entrenched in that article are observed in proceedings before it and it
times until 23 February 1994. None of the postponements was opposed by the F accused's is unnecessary to look for some express provision cloaking all trial courts with the
attorney and by agreement the accused was not put to the inconvenience of attending authority to order the release of an accused whose trial has not taken place within a
court. The last postponement was at the request of the defence attorney, although the reasonable time. However, were one to look for such an express provision, it D would be
prosecutor had been at fault in not having supplied a copy of the charges. There was no found in article 5, which refers to courts generally enforcing fundamental rights. This
suggestion that the agreed trial date of 23 February 1994 was not within a reasonable reference must embrace lower trial courts as well as the High Court. The Court therefore
time of the arrest of the accused. On 23 February 1994, the accused was represented by held that the magistrate's court had the power to order that an accused be released if his or
counsel, who complained that, despite letters to the prosecutor in November and January, her trial did not take place within a reasonable time.
a copy of the G particularised charges had only been supplied on the morning before the
 infringed the right of the accused to a trial within a reasonable time. The order releasing
As to the effect of such an order, the Court, in considering the meaning of the word the accused was therefore set aside. B
'released' in article 12(1)(b ), E pointed out that the general approach to constitutional [zCIz]Case Information
construction was that constitutional provisions had to be broadly, liberally and
purposively interpreted. In order to rely on this canon of construction, it was as well to Application for the review of a decision of a magistrate at the request of the magistrate.
identify the underlying purpose of the provision under consideration. The Court
considered the meaning given to the word in S v Strowitzki 1995 (1) BCLR 12 (Nm) at M Figueira for the accused at the request of the Court.
35-6, to the effect that it meant 'Released from incarceration' and could also include
release from onerous conditions of bail, but, prima facie , did not seem to include a D F Small for the State. C
permanent quashing or stay from prosecution. The Court disagreed with this narrow [zJDz]Judgment
interpretation, F holding that the main purpose of the sub-article was not only to
minimise the possibility of lengthy pre-trial incarceration and to curtail restrictions placed Hannah J : This review concerns the interpretation and application of art 12(1)(b) of the
on an accused who was on bail, but also to reduce the inconvenience, social stigma and Constitution which provides that:
other pressures he was likely to suffer and to advance the prospect of a fair hearing. 'A trial referred to in Sub-Article (a) hereof shall take place within a reasonable time,
These purposes required that the word be given a broader, more liberal construction, failing which the accused shall be released.' D
which meant that 'release' must mean 'released from further prosecution for the offence
with which he is charged'. G The brief facts of the case leading to the magistrate sending it for review are as follows.
On 25 June 1993 the accused appeared before the Karibib magistrate's court on charges
The Court finally considered whether the magistrate had been correct in holding that the of attempted murder, negligent use or handling of a firearm, assault with intent to do
trial of the accused had not taken place within a reasonable time. The Court held that the grievous bodily harm and resisting, obstructing or hindering a police officer in the
onus of persuading the Court that the delay complained of was unreasonable, lay with the exercise of his duties. Mrs Figueira , who appeared before us as amicus curiae and to
accused. What constituted an unreasonable delay for the purposes of article 12(1)(b ) had whom E the Court is indebted for her assistance, indicated that she had reason to believe
to be determined according to the facts of each case and the courts had to balance the that at that early stage of the proceedings no charges at all had been formulated but,
fundamental right of an accused to be tried within a reasonable time against the public looking at the record, that does not seem to me to have been the position. As I understand
interest in the H attainment of justice in the context of the prevailing economic, social the record brief statements of the charges had been formulated but without F particulars.
and cultural conditions to be found in Namibia. At the end of the day, a value judgment
was required. The Court referred with approval to the judgment of Powell J in Barker v On 25 June 1993 the case was postponed to 30 June for further investigation and on 26
Wingo (1972) 407 US 514 at 519-20, in which the following four factors were identified June the accused was released on bail. Then on 30 June the prosecution and the accused's
to be taken into account in assessing whether an accused had been deprived of his attorney informed the Court that 4 August had been agreed as the date of trial and the
constitutional right to be tried within a reasonable time: (1) the length of the delay; (2) the case was postponed to that date. On 4 August no interpreter was G available and the case
reasons given by the State to justify the delay; (3) the I responsibility of the accused for was further postponed to 9 September, the defence attorney indicating that he had no
asserting his rights and (4) prejudice to the accused. The four factors did not constitute a objection. On 9 September a further postponement was granted to 7 October because the
numerus clausus and the weight to be accorded each factor would vary according to Prosecutor-General had not yet made a decision in the matter and as the accused was
prevailing circumstances. absent a warrant was issued for his arrest. H Apparently the accused's absence was with
the consent of the State and the issue of the warrant of arrest on this occasion and the
Applying these principles to the case in question, the Court held that the trial date of 23 provisional cancellation of his bail at the next hearing were mere formalities. What is of
February 1994 was within a reasonable time of the accused's arrest. The question of some relevance is that on 7 October the magistrate, after noting on the record that bail
unreasonableness was raised for the first time on 23 February when a J was provisionally I cancelled, added 'Final order 27/10/93 as requested by Attorney' and
1998 NR p231 as the case was postponed to that date Mrs Figueira suggested that this meant that a final
postponement had been granted. However, it seems to me more likely that the words in
copy of the charges was supplied. The defence wanted further particulars, which would question referred to the date when the provisional order cancelling bail would become
have entailed a further A postponement. The accused would have suffered no real final J
prejudice had a short postponement been granted to enable further particulars to be 1998 NR p232
supplied. Balancing the fundamental right of the accused to be tried within a reasonable
time against the public interest in the attainment of justice and taking account of the HANNAH J
factors outlined, the Court was not persuaded that a further postponement would have
 '(2) Aggrieved persons who claim that a fundamental right or freedom guaranteed by this
and not to a final postponement. One sees the same words recorded on 27 October when Constitution has been A infringed or threatened shall be entitled to approach a competent
the case was once A again postponed because of the lack of an interpreter. Court to enforce or protect such a right or freedom, and may approach the Ombudsman to
provide them with such legal assistance or advice as they require, and the Ombudsman
On 1 December the case was postponed by agreement to 23 February 1994 and it is clear shall have the discretion in response thereto to provide such legal or other assistance as
from the record that that was the date when it was intended that the actual trial would he or she may consider expedient.' B
take place. Apparently the defence attorney B asked for the postponement to that date
because he had not received the Prosecutor-General's decision that the trial should take 'Competent Court' is not defined in the Constitution but it seems to me clear that what is
place in the magistrate's court timeously and because he wanted to be served with the meant by 'a competent Court' is a court which has jurisdiction to hear and adjudicate a
charges well in advance of the trial date so that he could have the opportunity to request claim brought in terms of sub-art 2. The High Court clearly has such jurisdiction (see art
further particulars. C 80(2) and s 2 of the High Court Act 16 of 1990) but in my opinion a magistrate's court
has not. Article 83(1) provides that: C
On 23 February 1994 the accused was represented by counsel and counsel complained 'Lower Courts shall be established by Act of Parliament and shall have the jurisdiction
that despite letters written by his instructing attorney to the prosecutor in November and and adopt the procedures prescribed by such Act and regulations made thereunder.'
January a copy of the charge sheet had only been provided that very morning. I take this
to mean a copy of the particularised charges to be found in the D record. He contended Lower courts are established under the Magistrates' Courts Act 32 of 1944, and it is clear
that the defence was entitled to seek further particulars and if the case were to proceed from the terms of D Chapter VI of that Act (civil jurisdiction) and Chapter XII (criminal
that day the defence would be deprived of that opportunity. He submitted that the case jurisdiction) that the jurisdiction of a magistrate's court does not extend to a claim
should not be heard that day or at all. He said that the State had provided no explanation brought in terms of art 25(2). The second question must therefore be answered in the
why the charge sheet had not been supplied E timeously and submitted that the Court negative.
should release the accused in terms of art 12(1)(b) of the Constitution. The prosecutor
responded by giving the rather lame excuse that his office had run out of stationery and However, it by no means follows from the foregoing conclusion that it was not competent
the magistrate, clearly not impressed, then held that as the accused had not been given an for the magistrate to E make the order in question. Article 25 is concerned with specific
adequate opportunity to F prepare his defence, by reason of the late service of the and independent claims made by aggrieved persons that a fundamental right or freedom
charges, and as more than a reasonable period of time had elapsed for his trial to take guaranteed by the Constitution has been infringed and while such claims must be made in
place an order should be made releasing him from his trial and such an order was made. proceedings before the High Court it does not mean that a magistrate's court has no F
jurisdiction to ensure the observance of certain fundamental rights guaranteed by the
Subsequent to 23 February the magistrate had second thoughts about this order and on 9 Constitution during the course of proceedings which take place before it. Indeed it would,
March she submitted G the record to this Court for review expressing the opinion that she in my view, be absurd if that were not the case when regard is had to the provisions of art
had had no jurisdiction to make the order. After a further unfortunate delay the matter 12. That article provides, inter alia , that all persons shall be entitled to G a fair and
was finally argued and judgment was reserved. public hearing, that judgments in criminal cases shall usually be given in public, that all
persons charged with an offence shall be presumed innocent until proven guilty and that
The points set down for argument were as follows: H all persons shall be afforded adequate time and facilities for the preparation and
1. Was the magistrate correct in holding that the trial of the accused had not taken presentation of their defence before the commencement of and during their trial.
place within a reasonable time as required by art 12(1)(b) of the Constitution? Obviously a magistrate's court, like any other trial court, must ensure that these H
2. If so, is the magistrate's court a competent court in terms of art 25(2) to take the constitutional rights are observed in proceedings conducted before it and I see no reason
necessary action to enforce or protect the right of an accused to a fair trial? I in logic or law why the same should not apply to the observance of the requirement set
3. Was it competent for the magistrate to order that the accused be released and what out in sub-art (1)(b) that a trial referred to in sub-art (1)(a) shall take place within a
is the effect of such order? reasonable time, failing which the accused shall be released. I

Article 25 of the Constitution is headed: 'Enforcement of Fundamental Rights and In my view, it is implicit in the terms of art 12 that a trial court has the power, authority
Freedom' and sub-art (2) provides: J and indeed the duty to ensure that the fundamental rights entrenched in that article are
1998 NR p233 observed in proceedings conducted before it and it is unnecessary to look for some
express provision in the J
HANNAH J 1998 NR p234
HANNAH J See: United States v MacDonald 456 US 1 (1982) at 8, adopted in United States v Loud
Hawk 474 US 302 (1986) at 311.
Constitution to that effect. However, if one does look for an express provision cloaking
all trial courts with the A authority to order the release of an accused whose trial has not These words aptly describe the main purpose of the right to be afforded a fair hearing
taken place within a reasonable time such provision is, in my opinion, to be found in art within a reasonable time under s 18(2) of the Constitution of Zimbabwe, namely, to
5. That article provides: B minimise the adverse effect on J
'Article 5 Protection of Fundamental Rights and Freedoms 1998 NR p235
The fundamental rights and freedoms enshrined in this Chapter shall be respected and
upheld by the Executive, Legislature and Judiciary and all organs of the Government and HANNAH J
its agencies and, where applicable to them, by all natural and legal persons in Namibia,
and shall be enforceable by the Courts in the manner hereinafter prescribed .' C the person charged flowing from the pending disposition of a still to be determined
criminal charge. The right, A therefore, recognises that, with the passage of time,
(My emphasis.) subjection to a criminal charge gives rise to restrictions on liberty, inconveniences, social
stigma and pressures detrimental to the mental and physical health of the individual. It is
Article 12(1)(b) provides that the manner in which the fundamental right to be tried a truism that the time awaiting trial must be agonising for accused persons and their
within a reasonable time shall be enforced is by ordering the release of the accused and as immediate B family. I believe that there can be no greater frustration for an innocent
art 5 refers to courts generally enforcing fundamental rights that must, in my opinion, charged with an offence than to be denied the opportunity of demonstrating his lack of
embrace lower trial courts as well as the High Court. The first part of D the third question guilt for an unconscionable time as a result of delay in bringing him to trial.
is therefore answered in the affirmative.
The right recognises, also, that an unreasonable delay may well impair the ability of the
It is convenient to deal with the general approach to be adopted when considering the individual to present a full C and fair defence to the charge.
second question before considering what is meant by the word 'released' in art 12(1)(b) .
The question is whether in the circumstances of E the present case the accused's right to Trials held within a reasonable time have an intrinsic value. If innocent, the accused
be tried within a reasonable time would have been infringed if his trial had taken place should be acquitted with a minimum of disruption to his social and family relationships.
any later than 23 February 1994. If guilty, he should be convicted and an appropriate D sentence imposed without
unreasonable delay. His interest is best served by having the charge disposed of within a
The general approach when construing constitutional provisions is that the provisions are reasonable time so that he may get on with his life. A trial at some distant date in the
to be 'broadly, liberally and purposively' interpreted: Government of the Republic of future, when his circumstances may have drastically altered, may work an additional
$amibia v Cultura 2000 and Another 1994 (1) SA 407 (NmS) at 418F, and if this canonF hardship upon him and adversely affect his E prospects of rehabilitation.
of construction is to be relied upon it is as well to identify expressly the underlying
purpose of the constitutional provision under consideration. In In Re Mlambo 1992 (4) Although s 18(2) is concerned with ensuring respect for the rights of the individual, its
SA 144 (ZS), Gubbay CJ set out what, in his view, was the purpose underlying the right enforcement, which may from time to time admittedly allow the guilty to go unpunished,
to be afforded a fair hearing within a G reasonable time under s 18(2) of the Constitution nevertheless benefits society as well. There is a F collective interest in making certain
of Zimbabwe and, if I may respectfully say so, the words used also aptly describe the that those who commit crimes are brought to trial quickly and dealt with fairly and justly.
underlying purpose of art 12(1)(b) of the Namibian Constitution. I can do no better than Speedy trials strengthen this aspect of the community interest. Important practical
quote what the learned Chief Justice said at 147G-148J: H advantages flow from an expeditious resolution of the charges, the nature of which can be
'In the opinion of the Supreme Court of the United States, the speedy trial guarantee in stated no more eloquently than in the words of Cory J in R v Askov (1991) 49 CRR 1
the Sixth Amendment to the Constitution is (Supreme Court of Canada) at 20: G
'There can be no doubt that memories fade with time. Witnesses are likely to be more
''designed to minimise the possibility of lengthy incarceration prior to trial, to reduce reliable testifying to events in the immediate past as opposed to events that transpired
the lesser, but nonetheless substantial, impairment of liberty imposed on an accused while many months or even years before the trial. Not only is there an erosion of the witnesses'
released on bail, and to shorten the disruption of life caused by arrest and the presence of memory with the passage of time but there is bound to be an erosion of the H witnesses
unresolved criminal charges''. I themselves. Witnesses are people; they are moved out of the country by their employers;
or for reasons related to family or work they move from the east coast to the west coast;
they become sick and unable to testify in court; they are involved in debilitating
accidents; they die and their testimony is forever lost. Witnesses, too, are concerned that overcrowded courts should be weighed less heavily but nevertheless should be
their evidence be taken as quickly as possible. Testifying is often thought to I be an considered since the ultimate responsibility for such circumstances must rest with the
ordeal. It is something that weighs in the minds of witnesses and is a source of worry and government rather than the defendant. Finally, a valid reason, such as a missing witness,
frustration for them until they have given their testimony. should serve to H justify appropriate delay.'
It can never be forgotten that the victims may be devastated by criminal acts. They have a
special interest and good reason to expect that criminal trials take place within a (At 531.)
reasonable time. From a wider point of view, it is fair to say that all crime disturbs the 3. The responsibility of the accused for asserting his rights.
community and that serious crime alarms the community. J 'Whether, and how, a defendant asserts his right is closely related to the other factors we
1998 NR p236 have mentioned. The I strength of his efforts will be affected by the length of the delay,
to some extent by the reason for the delay, and most particularly by the personal
HANNAH J prejudice, which is not always readily identifiable, that he experiences. The more serious
All members of the community are thus entitled to see that the justice system works the deprivation, the more likely a defendant is to complain.'
fairly, efficiently and with A reasonable dispatch. The very reasonable concern and alarm
of the community which naturally arises from acts of crime cannot be assuaged until the (At 531.) J
trial has taken place. The trial not only resolves the guilt or innocence of the individual, 1998 NR p237
but acts as a reassurance to the community that serious crimes are investigated and that
those implicated are brought to trial and dealt with according to the law.' B HANNAH J
4. Prejudice to the accused A
See also Barker v Wingo 407 US 514 (1972) at 519-20.' 'Prejudice, of course, should be assessed in the light of the interests of defendants which
the speedy trial was designed to protect. This court has identified three such interests: (i)
'Reasonable' is, of course, a relative term and what constitutes a reasonable time for the to prevent oppressive pretrial incarceration; (ii) to minimise anxiety and concern of the
purposes of art 12(1)(b) must be determined according to the facts of each individual accused; (iii) to limit the possibility that the defence will be impaired. Of these, the most
case. The courts must endeavour to C balance the fundamental right of the accused to be serious is the last. . . . If witnesses die or disappear during a delay, the prejudice is
tried within a reasonable time against the public interest in the attainment of justice in the obvious. B There is also prejudice if defence witnesses are unable to recall accurately
context of the prevailing economic, social and cultural conditions to be found in Namibia: events of the distant past. Loss of memory, however, is not always reflected in the record
Bell v Director of Public Prosecutions of Jamaica and Another [1985] 2 All ER (PC) 585 because what has been forgotten can rarely be shown.'
at 591-2. What is required at the end of the day is a value judgment. In both the Bell case
(supra ) and the Mlambo case D (supra ) the respective Courts looked to the judgment of (At 532.)
Powell J in Barker v Wingo (supra ) for guidance when deciding what factors the court
should take into account in assessing whether an accused has been deprived of his These four factors are not necessarily the only factors to be taken into account when
constitutional right to be tried within a reasonable time and, in my view, it is appropriate assessing whether an C accused has been deprived of his right to be tried within a
for the courts of this E country to do likewise. The four factors identified by Powell J are reasonable time but they are the most obvious factors to be taken into account when
as follows: performing the balancing exercise. And it is important to re-emphasise that the weight to
1. Length of delay be given to each factor will vary according to prevailing circumstances. When we reach
the stage when D Namibia is equipped with a modern, well-trained and efficient judicial
'Until there is some delay which is presumptively prejudicial, there is no necessity for system the courts will undoubtedly be much less tolerant of delays than they are at the
inquiry into the other factors F that go into the balance. Nevertheless, because of the present time when, for a variety of reasons, such a system has yet to be established.
imprecision of the right to speedy trial, the length of delay that will provoke such an
inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but I come now to the meaning to be given to the word 'released' as used in art 12(1)(b) . This
one example, the delay that can be tolerated for an ordinary street crime is considerably question was briefly E considered by O'Linn J in S v Strowitzki and Another 1995 (1)
less than for a serious, complex conspiracy charge.' G BCLR 12 (Nm) at 35-6. Having referred to what is called in the United States 'dismissal
with prejudice' and the fact that according to certain writers this remedy is only
(At 530-1.) permissible in the United States where the ability of the accused to defend himself is
gravely impaired, the F learned Judge continued:
'A deliberate attempt to delay the trial in order to hamper the defence should be 'The Namibian Constitution provides a specific remedy for failure to bring to trial within
weighed heavily against the government. A more neutral reason such as negligence or a reasonable time, namely:
 prejudice rested on him. Lastly, the responsibility for the further delay lay with the
''The accused shall be released.'' G prosecutor who had not supplied a copy of the charges timeously. His rather lame excuse
This appears to mean ''released from incarceration''. It may also include release from that his office had run out of stationery did not impress the magistrate but at worst this
onerous conditions of bail. Prima facie , it does not seem to include a permanent was no more than negligence on the part of the prosecutor. There was no suggestion that
quashing or stay of prosecution.' he was deliberately H attempting to delay the trial.

As Mr Small , who appeared for the State, pointed out to us by reference to certain Balancing the fundamental right of the accused to be tried within a reasonable time
dictionaries, the term 'released' can have a variety of meanings and could, as O'Linn J against the public interest in the attainment of justice and taking account of the factors
rather tentatively concluded, mean freed from H custody or relieved from certain onerous which I have just outlined, I am not persuaded that the I delay arising from a further
conditions of bail. But when regard is had to the underlying purpose of art 12(1)(b) I am postponement would have infringed the rights of the accused as set out in art 12(1)(b) . A
of the view that a broader, more liberal, construction should be given to the word. Once delay of eight months in bringing the accused to trial on a serious charge such as
the main purpose of the sub-article is identified as being not only to minimise the attempted murder is not in itself presumptively prejudicial and as the accused did not
possibility of lengthy pre-trial I incarceration and to curtail restrictions placed on an seek to show that he had suffered any serious prejudice J
accused who is on bail but also to reduce the inconvenience, social stigma and other 1998 NR p239
pressures which he is likely to suffer and to advance the prospect of a fair hearing, then it
seems to me that 'released' must mean released from further prosecution for the J HANNAH J
1998 NR p238
or would suffer any if a further postponement were to be granted and as he had not
HANNAH J previously complained of A delay I am of the opinion that the magistrate should not have
made an order in terms of art 12(1)(b) . The first question is therefore answered in the
offence with which he is charged. It is only by giving the term this wider meaning that negative.
the full purpose of the A sub-article is met. Release from custody or from onerous
conditions of bail only meets part of the purpose of the sub-article. For the foregoing reasons the order made on 23 February 1994 releasing the accused in
terms of art 12(1)(b) is set aside. B
The onus of persuading the court that the delay complained of is unreasonable clearly
rests on the accused: S vB Strowitzki (supra ) at 34-5 and the cases there cited. And with Strydom JP concurred.
this in mind I turn to the facts of the present case. The accused was arrested on 25 June
1993, the day when it was alleged he committed the offence in question, and he was D
taken before the magistrate's court that very same day. One of the charges made against
him was that of attempted murder, a most serious offence and one which can, depending
on the circumstances, C give rise to complications. The accused was released on bail and
remained on bail until 23 February 1994 when the order in terms of art 12(1)(b) was
made. There then followed a number of postponements, none of which were opposed by
the accused's attorney, and by agreement the accused was not put to the D inconvenience
of attending court. Indeed the last postponement on 1 December 1993 was at the request
of the defence attorney although the prosecutor was at fault in not yet having supplied a
copy of the charges. There was no suggestion that the agreed trial date of 23 February
1994 was not within a reasonable time of the arrest E of the accused and the question of
unreasonableness was raised for the first time on 23 February when a copy of the charges
was at last supplied. The defence wanted further particulars of the charges which would
have entailed a further postponement and what the magistrate had to decide was whether
to delay the trial further F would mean that the trial would not take place within a
reasonable time. Mrs Figueira conceded that the accused had suffered no prejudice save
perhaps for a certain amount of anxiety at having the charges hanging over him and, so
far as I can see, he would have suffered no real prejudice had a short postponement been
granted to G enable further particulars to be sought and supplied. The onus of showing