Van Veen v Director of Public Prosecutions, Western Cape and Others

The appellant, an investment manager and director of Evercrest Capital (Pty) Ltd, was charged in 2019 in the Specialised Commercial Crimes Court with fraud, alternative common-law offences involving dishonesty, and statutory contraventions under various financial regulatory statutes arising from investigations into the Evercrest Aggressive Fund and alleged losses of approximately R146 million in 2007. There was an extra-curial delay of about 11 years between the alleged offences and the institution of prosecution. While the matter was pending, the appellant was diagnosed in March 2021 with a brain tumour (pituitary adenoma), which allegedly caused permanent cognitive impairments affecting memory, information retrieval, and his ability to instruct legal representatives. Relying on these facts, the appellant applied in the High Court for a permanent stay of prosecution, contending that the delay and his medical condition caused irreparable trial prejudice and infringed his right to a fair trial.

The appeal was dismissed, and the High Court’s refusal to grant a permanent stay of prosecution was upheld. No costs order was made.

This case reaffirms the high threshold for granting a permanent stay of prosecution in South African law, emphasizing that unreasonable delay alone is insufficient without demonstrable and irreparable trial-related prejudice. It clarifies that alleged incapacity to stand trial due to medical or cognitive conditions should ordinarily be addressed through the mechanisms in ss 77 and 79 of the Criminal Procedure Act rather than through civil applications for a stay. The judgment underscores the balance between an accused’s fair trial rights and the public interest in the prosecution of serious economic crimes.