Director of Public Prosecutions, Northern Cape v Ashley Mark Brooks and Others

Between February 2012 and February 2014, the Director for Priority Crimes Investigation Unit (DPCI) in the Northern Cape conducted a covert operation ("Project Darling") investigating alleged contraventions of the Diamonds Act, involving entrapment operations authorised under s 252A of the CPA. Twenty-two persons were eventually arrested and charged in August 2014, with thirteen respondents being separated for trial on charges including racketeering, corruption, and illegal dealing in uncut diamonds. The trial commenced in August 2016 but experienced numerous delays due to interlocutory applications for disclosure and further particulars, illness of witnesses and counsel, and other factors. On 31 July 2018, information came to light regarding an alleged attempt to bribe the trial judge (Pakati J) in August 2016, which had been the subject of a police investigation, and late disclosure of statements by a key witness (Jephta) regarding attempts to bribe him not to testify. Some respondents then sought the recusal of Pakati J, which she granted on 1 August 2018, rendering all prior proceedings a nullity. Two weeks later, the respondents applied for a permanent stay of prosecution, arguing their constitutional right to a fair trial within a reasonable time had been infringed.

• Whether the delay in prosecution was unreasonable and infringed the accused's constitutional right under s 35(3)(d) to have their trial begin and conclude without unreasonable delay
• Whether the circumstances warranted the extraordinary remedy of a permanent stay of prosecution
• What factors should be considered in determining the reasonableness of delay in criminal proceedings
• Whether trial-related prejudice had been established by the respondents
• What duty of disclosure rested on the State regarding investigations into alleged attempts to bribe the trial judge and a key witness
• Whether the costs order should follow the result in constitutional litigation involving criminal procedure

Appeal upheld. The order of the high court granting a permanent stay of prosecution was set aside and replaced with an order dismissing the application. By majority (3-2), the respondents were ordered to pay the costs of the appeal, including costs of two counsel.

A permanent stay of prosecution will only be granted where there is both unreasonable delay in prosecution and definite (not speculative) trial-related prejudice to the accused. In determining whether delay is unreasonable, courts must perform a balancing exercise considering: (i) the seriousness of the offences charged; (ii) the length of the delay; (iii) the reasons for the delay and which party is responsible; (iv) the complexity of the case; (v) the conduct of both prosecution and defence; and (vi) the nature and extent of prejudice to the accused. Delays attributable to the accused (including applications brought, unavailability of counsel, or consultation needs), systemic delays (court availability, judicial leave), unforeseen circumstances (illness of witnesses or counsel), and time required for proper preparation of complex cases do not constitute unreasonable delay. The State has no duty to disclose ongoing investigations into matters extraneous to the criminal trial (such as alleged attempts to bribe the judge or witnesses) where the accused are potential suspects and disclosure could prejudice those investigations; disclosure must occur when appropriate and before it could cause trial prejudice. Where a trial is rendered a nullity by judicial recusal, the DPP retains full discretion to determine whether to proceed de novo and on what charges, and an application for permanent stay launched shortly after recusal is premature where the DPP has not had adequate opportunity to make that determination. Trial-related prejudice must be established by showing how the accused's ability to present their defence will be actually impaired, not merely by pointing to factors that may affect witness credibility or the strength of the State's case, which are matters for the trial judge to assess.

The majority (per Eksteen AJA) made several obiter observations: (1) Courts should be cautious of accused persons in serious cases who seek to obstruct and delay proceedings rather than confront the charges, and should draw on judicial experience in assessing whether delays are reasonable. (2) The State should have been ready to proceed from the outset given this was a planned entrapment operation, though this does not mean every subsequent delay is attributable to the State. (3) Where a recusal renders proceedings a nullity after substantial trial time, the State should proceed without delay if it chooses to proceed de novo. (4) Discovery in criminal cases must always be a compromise between the accused's fair trial rights and the public interest in effective prosecution; there is no right to "perfect justice" requiring disclosure of every scintilla of potentially useful information. (5) Attacks on the integrity of officers of the court require a firm factual basis; unsubstantiated allegations are inappropriate. (6) The high court's criticism of the racketeering charges was premature and created an unfortunate perception of bias where the evidence had not been heard. Molemela JA in the minority judgment observed: (1) Where the State is dominus litis in an entrapment operation, it should have all necessary evidence ready when arrests are made and charges laid. (2) The failure to disclose the CD recordings for two years was inexcusable dereliction of duty by the investigating officer for which the State should be accountable. (3) Late disclosure by the State, even if ultimately justified, is a relevant factor in considering whether to award costs against accused persons raising constitutional issues. (4) Some respondents did not participate in interlocutory applications causing delay and this should be considered in costs orders. (5) In constitutional litigation, costs should only be awarded against an unsuccessful party where the litigation was frivolous, vexatious, or the litigant's conduct worthy of censure.

This case provides important guidance on the approach to applications for permanent stay of prosecution based on alleged infringement of the right to trial without unreasonable delay under s 35(3)(d) of the Constitution. It confirms that: (1) a permanent stay is an extraordinary remedy requiring proof of unreasonable delay and definite (not speculative) trial-related prejudice; (2) in assessing reasonableness of delay, courts must consider the nature of offences, length of delay, reasons for delay, conduct of both prosecution and defence, and prejudice to the accused; (3) delays attributable to the accused, systemic factors, or unforeseen circumstances (such as witness illness) are relevant considerations; (4) the State has no duty to disclose ongoing investigations into matters extraneous to the trial where disclosure could prejudice those investigations, even where accused persons may be potential suspects; (5) late disclosure does not automatically establish trial prejudice where the accused can still prepare adequately; (6) where a trial becomes a nullity due to recusal, the DPP retains discretion to decide whether to proceed de novo and on what charges; and (7) the remedy must be assessed in light of the public interest in prosecuting serious crimes. The case also illustrates the divided approach to costs in constitutional litigation where proceedings are not frivolous but involve criticism of State conduct.