Zanner v Director of Public Prosecutions, Johannesburg

On 12 March 1992, the appellant Frank Peter Zanner inflicted a fatal head wound on Samuel Tumisang Segaetso with a vernier (measuring instrument) at SA Linishers factory in Krugersdorp. The incident occurred following a verbal exchange between the appellant and a fellow employee, Mr Anthony Picota. The vernier struck the deceased on the left temple and lodged in his skull, causing his death. Police investigated and took statements. An informal inquest was held on 8 March 1993, but the magistrate was unable to make a finding. The Attorney-General ordered prosecution on a charge of culpable homicide in April 1993. The appellant was summoned to appear on 5 August 1993, with trial set for 26 January 1994. However, the charge was withdrawn in January 1994 following representations by the appellant. In April 2004, more than ten years later, the appellant was indicted on two counts of murder: one for the death of his wife in 2002, and another relating to the 1992 incident. The second indictment followed re-investigation of the 1992 case during the investigation into his wife's death. The appellant applied for a permanent stay of prosecution on the 1992 charge, arguing that the lengthy delay violated his right to a fair trial under s 35(3)(d) of the Constitution.

• Whether a lengthy delay of approximately ten years in commencing criminal prosecution of a murder charge violated the appellant's right to a fair trial under s 35(3)(d) of the Constitution
• Whether the appellant suffered or would likely suffer trial-related prejudice warranting a permanent stay of prosecution
• Whether the circumstances of the case were sufficiently extraordinary to justify a permanent stay of prosecution in the absence of significant trial-related prejudice
• When does the right to a speedy trial under s 35(3)(d) apply and does it continue after a charge has been withdrawn
• What constitutes an 'accused person' for purposes of s 35(3)(d) of the Constitution

The appeal was dismissed with no order as to costs. The application for a permanent stay of prosecution was refused, and the prosecution on the murder charge was allowed to proceed.

To obtain a permanent stay of prosecution based on delay in violation of s 35(3)(d) of the Constitution, an accused must establish either: (1) significant trial-related prejudice that is definite rather than speculative, demonstrating specifically how the delay has prejudiced the defense (not merely that witnesses are unavailable or memories have faded in general terms); or (2) extraordinary circumstances that make a stay appropriate even in the absence of proven prejudice. A permanent stay is a drastic remedy granted sparingly. Vague and conclusory allegations of prejudice are insufficient. The accused must show definite prejudice and specifically how missing witnesses or other factors would aid the defense. Factors that may assist the prosecution may also hinder the defense, and vice versa - if memories have dimmed, this may work to the accused's advantage by making it harder for the prosecution to discharge its burden of proof beyond reasonable doubt. The seriousness of the offense and the societal interest in bringing serious crimes to trial are relevant factors weighing against granting a stay. (Minority view: The right to a trial without unreasonable delay under s 35(3)(d) applies only while a person stands accused of an offence; once a charge is withdrawn without intimation of renewal, a person is no longer an 'accused person' and the right does not apply during the period until re-indictment.)

Maya AJA observed that it may be inappropriate to calculate delay from the date of first indictment in circumstances where the prosecuting authority decides not to prosecute because it is unable to or does not believe a case can be successfully prosecuted, for any number of valid reasons. However, this was not decided as the parties agreed on the starting point. The court also noted that it is not entitled to interfere with the exercise of the DPP's discretion by enquiring into the correctness of a decision not to prosecute. The court observed that withdrawal of a charge does not carry a guarantee that an accused will not be recharged on reconsideration at a later date. Maya AJA 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 noted the Constitutional guarantee of the sanctity of life as the most fundamental right. Nugent JA (minority) made important observations about the meaning of 'accused person' for purposes of s 35(3)(d), noting that on even the widest construction, a person is not an 'accused person' if nobody, including the person himself, considers that he stands accused of an offense. He also observed that s 35(3)(d) does not confer a right to be accused of an offence (which would introduce a new ground of prescription) nor a right not to be accused again of an offence once previously charged (which would make inroads on limitations on double jeopardy). He noted that the balanced decision required by Sanderson cannot be made unless all relevant factors (length of delay, reasons for delay, assertion of right, and prejudice) are brought to account, as each can only be accorded due weight relative to the others.

This case is significant in South African jurisprudence for clarifying the application of s 35(3)(d) of the Constitution (right to a trial without unreasonable delay) and the circumstances in which a permanent stay of prosecution may be granted. It confirms that: (1) a permanent stay is a drastic remedy granted sparingly and only for compelling reasons; (2) an applicant must show definite and not speculative prejudice; (3) vague and conclusory allegations are insufficient; (4) the remedy requires either proof of irreparable trial-related prejudice or extraordinary circumstances; (5) the seriousness of the offense and societal interest in prosecution are relevant factors; (6) delays may work to an accused's advantage by making it harder for the prosecution to prove its case beyond reasonable doubt. The minority judgment also contributes important reasoning on when a person constitutes an 'accused person' for constitutional purposes, suggesting the right to a speedy trial does not continue after a charge has been withdrawn without any intimation it might be renewed. The case applies and develops principles from Sanderson v Attorney-General, Eastern Cape and other leading Constitutional Court decisions on fair trial rights.