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

The appellant was an investment manager and director of Evercrest Capital (Pty) Ltd, a management company of a hedge fund. In 2019, he was indicted in the Specialised Commercial Crimes Court on charges of fraud and contraventions of various financial institutions protection legislation relating to a loss of approximately R146 million in 2007. He first appeared in court on 27 September 2019 and engaged in plea negotiations. In March 2021, after the matter had been on the court roll for one year and six months, the appellant was diagnosed with a pituitary adenoma (brain tumour) causing permanent brain damage. According to his psychiatrist Dr Czech, this resulted in memory loss and inability to retrieve information or deal with complex intellectual tasks, rendering him unable to participate meaningfully in his defence despite understanding the charges. In February 2022, after the case had been pending for two years and three months, the appellant applied to the Western Cape High Court for a permanent stay of prosecution on grounds of an 11-year extra-curial delay and his medical condition rendering him unable to receive a fair trial.

• Whether the appellant's right to a fair trial under s 35(3)(d) of the Constitution (trial without unreasonable delay) was infringed
• Whether the appellant's right under s 35(3)(i) of the Constitution to adduce and challenge evidence was infringed due to his medical condition
• Whether the appellant's medical condition is causally linked to the 11-year extra-curial delay to warrant a permanent stay of prosecution
• Whether the appellant suffered irreparable trial-related prejudice justifying a permanent stay
• Whether the processes outlined in ss 77 and 79 of the Criminal Procedure Act 51 of 1977 constitute an adequate alternative remedy for the appellant's medical condition and capacity to stand trial

The appeal was dismissed. No order as to costs was made.

A permanent stay of prosecution is an exceptional remedy that may only be granted where: (1) the delay is egregious; (2) there is demonstrable, irreparable trial-related prejudice that is definite and not speculative; and (3) there is a clear causal nexus between the delay and the prejudice suffered. Unreasonable delay alone, without material trial prejudice, is insufficient to justify a permanent stay. Where an accused's mental capacity to understand proceedings and make a proper defence is at issue due to mental illness or intellectual disability, the appropriate remedy lies in the enquiry processes provided by ss 77 and 79 of the Criminal Procedure Act 51 of 1977, not in civil proceedings for a stay of prosecution. Such enquiries must be conducted within the criminal trial context where all relevant psychiatric evidence can be properly considered by the trial court.

The Court made strong observations about extra-curial delays, stating they ought to concern the prosecution and must be avoided. The Court noted that unlike intra-curial delays which can be monitored by judicial officers, extra-curial delays occur before matters come before courts and therefore require constant monitoring by prosecutors. The Court stated that explaining an 11-year delay in merely ten paragraphs does not assist the cause of justice, and all criminal investigations must be timed to culminate in either criminal charges or a certificate of nolle prosequi within a reasonable time. However, the Court noted that while the delay explanation was weak, there was no evidence of abuse of state powers. The Court also emphasized that the right to a fair trial requires fairness not only to the accused but also to the public as represented by the state, and must instill public confidence in the criminal justice system. The Court rejected the appellant's contention that fraud charges not involving violence are less serious, stating that fraud and forgery are serious by their nature because they involve dishonesty.

This case provides important guidance on the exceptional nature of permanent stays of prosecution in South African criminal law. It clarifies that unreasonable delay, even when characterized as manifestly inordinate and palpably unreasonable, is insufficient on its own to warrant a permanent stay. The judgment establishes that applicants must demonstrate a clear causal link between delay and prejudice, and that trial-related prejudice must be definite and irreparable, not speculative. The case affirms the appropriateness of using the ss 77 and 79 CPA enquiry mechanisms to address issues of an accused's mental capacity to participate in trial, reinforcing that such matters should be determined within the criminal proceedings rather than civil applications. It balances the accused's fair trial rights against the public interest in prosecuting serious economic crimes and the prosecution's duty to victims of crime. The judgment reiterates that permanent stays should only be granted in the 'clearest of cases' where the integrity of the justice system would be tarnished by allowing proceedings to continue.