Johannes Tomana v The State

Johannes Tomana was indicted to trial in the High Court on 14 November 2016 on 6 counts of criminal abuse as a public officer as defined in s 174(1)(a) of the Criminal Law (Codification and Reform Act), alternatively defeating or obstructing the course of justice as defined in s 184(1)(b). His trial was scheduled to commence on 13 February 2017 but did not proceed because his lawyers wanted to make a constitutional application. The trial was further delayed by an application by the Prosecutor General for the judge's recusal. The judge handed down his decision on the recusal matter on 18 August 2017. Since that date, the State took no steps to prosecute the case. More than six months elapsed from the date of committal without the applicant being brought to trial. On 7 February 2018, the applicant brought a chamber application for dismissal of charges in terms of s 160(2) of the Criminal Procedure and Evidence Act on the grounds that the indictment had lapsed.

• Whether the indictment had lapsed under s 160(2) of the Criminal Procedure and Evidence Act where more than six months had passed since committal without the accused being brought to trial
• Whether the delay was attributable to circumstances beyond the control of the Prosecutor-General such that the proviso to s 160(2) applied
• Whether the accused's unavailability to stand trial caused the delay
• Whether dismissal under s 160(2) for a lapsed indictment prevents the issuance of a new indictment

The court granted an order dismissing the criminal charges against Johannes Tomana in terms of s 160(2) of the Criminal Procedure and Evidence Act due to lapse of the indictment. The order was amended to specifically reflect that the dismissal was on account of the lapsed indictment rather than on the merits. The applicant's bail recognizance was ordered to be released.

Where an accused person has been committed for trial in the High Court and more than six months have elapsed without the accused being brought to trial, the indictment lapses and the case must be dismissed in terms of s 160(2) of the Criminal Procedure and Evidence Act. The proviso to s 160(2), which excludes from the six-month period any time during which the accused is unavailable to stand trial due to circumstances beyond the control of the Prosecutor-General, does not apply where the delay is caused by the State's own actions, such as an application for the judge's recusal. Delays attributable to the State's conduct cannot be characterized as circumstances beyond the State's control or as the accused being unavailable for trial. A dismissal under s 160(2) is a dismissal on account of a lapsed indictment and does not, on the face of the statute, preclude the issuance of a new indictment.

The court observed that there is nothing in s 160(2) of the Criminal Procedure and Evidence Act that suggests that if a case is dismissed on account of a lapsed indictment, a new indictment cannot thereafter be issued. The judge emphasized the importance of ensuring that any dismissal order clearly reflects whether it is based on lapse of the indictment or on the merits of the case, as this distinction has significant implications for whether the accused can be re-indicted. The court also noted that even if the State's argument that the indictment had been suspended whilst awaiting the recusal judgment was accepted, the State's failure to take any prosecutorial steps for three months after the judgment was delivered on 18 August 2017 would still result in the six-month period being exceeded by November 2017.

This case clarifies the application of s 160(2) of the Criminal Procedure and Evidence Act regarding the six-month time limit for bringing an accused to trial after committal. It establishes that delays caused by the State's own actions (such as applications for recusal) do not fall within the proviso protecting the State where the accused is unavailable due to circumstances beyond the Prosecutor-General's control. The case also importantly distinguishes between dismissal of charges due to a lapsed indictment and dismissal on the merits, clarifying that the former does not necessarily preclude the issuance of a new indictment. This is significant for ensuring that the constitutional right to a speedy trial is protected while also preserving prosecutorial discretion to re-indict where appropriate.