|CRIMINAL JUSTICE REVIEW: REPORT ON SECTION 342A OF THE CRIMINAL PROCEDURE ACT, 1977
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.
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 Commission’s 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 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;
(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 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;
(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 State’s 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) .
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 Department’s officials. During this discussion, the concerns which were brought to the Minister’s 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 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 court’s 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 court’s 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 accused’s wasted costs, the latter’s 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 State’s 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 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 Attorney’s 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”)
(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 ‘Defendant’s Costs Order’);
(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 -
(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.
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: