The Director of Public Prosecutions and Minister of Justice and Constitutional Development v Phillips

Andrew Lionel Phillips was arrested in February 2000 and prosecuted in the Johannesburg Regional Court on multiple charges relating to prostitution offences, immigration contraventions and perjury. His trial commenced in 2004 and concluded in November 2006. In 2008, after the State had closed its case, Phillips raised a plea under s 106(1)(h) of the Criminal Procedure Act, contending that several prosecutors were unlawfully appointed private counsel without proper authority under the National Prosecuting Authority Act. The regional magistrate upheld the plea, found the prosecution vitiated, and acquitted Phillips on all charges. The Director of Public Prosecutions (DPP) sought to appeal the acquittal under s 310 of the Criminal Procedure Act. However, the DPP failed for more than two years to prosecute the appeal diligently, particularly by failing to compile and file an appeal record. Phillips applied to the South Gauteng High Court for the appeal to be struck from the roll and permanently stayed, relying on unreasonable delay and infringement of his constitutional right to a fair trial.

The appeal was dismissed with costs, including the costs of two counsel. The order of the High Court was confirmed, with an amendment clarifying that the DPP’s appeal against Phillips’ acquittal was permanently stayed.

This case is a leading authority on permanent stays of prosecution in South African law, particularly in the context of prosecutorial appeals. It affirms that unreasonable delay by the State, even at the appeal stage, can constitute a serious violation of fair trial rights warranting a permanent stay. The judgment underscores prosecutorial accountability, reinforces the constitutional right to finality in criminal proceedings, and clarifies that courts may intervene decisively where systemic inefficiency causes grave prejudice to an accused.