Van Heerden & another v National Director of Public Prosecutions & others

The appellants, Mr and Ms Van Heerden, former employees of British American Tobacco South Africa (BATSA), were arrested in August 2011 on charges of large-scale theft of cigarettes and related offences. Anticipating prosecution, the NDPP obtained restraint orders under the Prevention of Organised Crime Act 121 of 1998 (POCA), freezing virtually all of the appellants’ assets. Over a period exceeding four years, the prosecution was beset by repeated postponements, incomplete investigations, defective and repeatedly amended charge sheets, delays in obtaining NDPP authorisation for racketeering charges, and failures to provide requested particulars and documentation. Much of the delay was attributable to the State. The criminal matter was twice struck from the roll in the regional court without finality, while the restraint orders remained in force. In December 2015 the appellants approached the High Court seeking a permanent stay of prosecution and the setting aside of the restraint orders, alleging infringement of their constitutional right to a trial without unreasonable delay.

The appeal was upheld. The High Court’s order was set aside and replaced with an order permanently staying the prosecution against the appellants, setting aside all restraint orders over their assets, directing the release of all restrained assets with accrued interest, and ordering the NDPP to pay the appellants’ costs, including the costs of two counsel.

The case is a leading authority on unreasonable delay in criminal prosecutions and the circumstances under which South African courts may grant the exceptional remedy of a permanent stay of prosecution. It underscores prosecutorial accountability, affirms the centrality of s 35(3) fair-trial rights, and clarifies that restraint orders under POCA cannot be allowed to operate indefinitely where the State fails to prosecute diligently.