The Director of Public Prosecutions and Minister of Justice and Constitutional Development v Andrew Lionel Phillips

Andrew Lionel Phillips was arrested on 2 February 2000 and charged with various offences including keeping a brothel, procuring females to have carnal intercourse, living off proceeds of prostitution, contraventions of the Immigration Act, and perjury. His property was attached under POCA in December 2000. The trial commenced in January 2004 in the regional court and continued until November 2006. Various prosecutors were engaged, including members of the private bar. On 24 June 2008, Phillips raised a plea under s 106(1)(h) of the CPA challenging the title of certain prosecutors to prosecute. The regional magistrate upheld this plea and acquitted Phillips on 26 November 2008. The DPP noted an appeal under s 310 of the CPA on 17 February 2009. Significant delays ensued in the preparation and filing of the appeal record. By July 2009, Phillips brought an application seeking to have the appeal struck from the roll and permanently stayed on grounds of inordinate delay and infringement of his fair trial rights. By the time of the application hearing, no appeal record had been filed and the matter could not be enrolled for appeal.

• Whether a single judge has jurisdiction to hear an application for a permanent stay of prosecution where the related s 310 appeal has not yet been properly enrolled
• Whether the inordinate delay in prosecuting the s 310 appeal warranted a permanent stay of prosecution
• Whether the delay infringed the accused's constitutional right to have his trial begin and conclude without unreasonable delay under s 35(3)(d) of the Constitution
• Whether condonation for delay in filing the appeal record should have been sought
• Whether a successful s 310 appeal would constitute double jeopardy
• Whether s 310 of the CPA is constitutional (raised but not decided)

The appeal was dismissed with costs, including costs of two counsel. Paragraph 1 of the High Court order was altered to read: 'The appeal of the first respondent ("Director of Public Prosecutions") against the judgment and order handed down by Mr S.P. Bezuidenhout in the Regional Magistrates Court for the Regional Division of Gauteng in case No 41/1899/00 on 26 November 2008 in which the Learned Magistrate acquitted the applicant ("Andrew Lionel Phillips") is permanently stayed.'

Where the Director of Public Prosecutions appeals an acquittal under s 310 of the Criminal Procedure Act but fails to prosecute that appeal with reasonable diligence, resulting in inordinate and inexcusable delay, a court may grant a permanent stay of prosecution to protect the accused's constitutional right under s 35(3)(d) to have the trial conclude without unreasonable delay. The ultimate responsibility for filing the appeal record rests with the appellant (the DPP in a s 310 appeal) under the Rules. In determining whether to grant a permanent stay, courts must weigh multiple factors including: the total elapsed time since arrest and through trial; the duration and reasons for delay in prosecuting the appeal; the nature and extent of prejudice suffered by the accused (including social stigma, financial burden, anxiety, and inability to obtain finality); whether the delay is attributable to the State or the accused; and the nature of the alleged offences. A single judge of the High Court has jurisdiction to hear an application for permanent stay of prosecution that is based on grounds distinct from the issues raised in a contemplated s 310 appeal, particularly where that appeal has not been properly enrolled due to failure to file the required record.

The Court expressed caution regarding the High Court's remarks about double jeopardy, noting it is an open question whether an irregularity resulting in acquittal or conviction that is set aside on appeal truly constitutes double jeopardy, and the answer may depend on the nature of the irregularity, evidence already heard, and prejudice to the accused. The Court indicated this question should be left for determination in an appropriate case. The Court also noted it was unnecessary to decide the constitutionality of s 310 of the CPA in this case, and criticized the High Court for addressing that issue when it was not necessary to the decision. The Court observed that the High Court's criticism of the Minister's deponent for not providing full justification under s 36 of the Constitution was not well-grounded, as the deponent had referred to an extensive international comparative study that would have been relevant had the constitutional issue required determination. Regarding the nature of s 310 appeals, the Court noted (without deciding) that arguably a more extensive record than contended for by the DPP might have been required to properly answer the questions of law posed by the magistrate, particularly concerning the extent of involvement of the private prosecutors and their impact on the trial.

This case establishes important principles regarding the prosecution of criminal appeals by the State and the protection of fair trial rights. It affirms that there are limits to how long the State may delay in prosecuting an appeal against an acquittal before an accused person's constitutional rights are infringed. The case demonstrates that systemic failures and bureaucratic inefficiency cannot indefinitely excuse delay. It clarifies the jurisdiction of a single High Court judge to hear applications relating to fair trial rights even where a s 310 appeal is contemplated but not yet properly enrolled. The judgment emphasizes that the right to a trial without unreasonable delay under s 35(3)(d) of the Constitution extends to appellate proceedings initiated by the State. It provides guidance on the factors to be weighed when considering a permanent stay of prosecution, including: elapsed time since arrest, duration of trial, nature and extent of delay in appeal, prejudice to the accused (social, financial, psychological, and property-related), reasons for delay, and responsibility for delay. The case also reinforces professional ethics by censuring improper ex parte communications between prosecuting authorities and the judiciary about pending matters.