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

The appellants, Mr Pienaar van Heerden and Ms Anthea Lynette van Heerden, were employed by British American Tobacco South Africa (BATSA) until their dismissal in March 2010. In August 2011, they were charged with theft of cigarettes allegedly valued at R3.47 million, along with five co-accused. The NDPP obtained provisional and then final restraint orders over virtually all their assets (approximately R2.1 million including pension benefits) under POCA. They appeared in court on 29 August 2011 after three days incarceration and were granted bail. Over the next four years, the matter was repeatedly postponed for numerous reasons including: incomplete investigations, awaiting NDPP authorization for racketeering charges, requests for further particulars, objections to charge sheets, co-accused changing legal representatives, the State awaiting the Savoi judgment in the Constitutional Court, prosecutors being unavailable or overburdened, and multiple unsuccessful attempts to finalize the charge sheet. The State initially indicated it would proceed only on theft charges when transferring to the Regional Court, but immediately sought to include POCA charges once transferred. On two occasions (November 2014 and September 2015) magistrates struck the matter from the roll. By March 2015, the appellants' assets had been substantially dissipated by legal costs and living expenses. In December 2015, they launched an application for permanent stay of prosecution and release of assets.

• Whether the appellants' constitutional right to have their trial begin and conclude without unreasonable delay (section 35(3)(d) of the Constitution) was infringed
• Whether a permanent stay of prosecution is an appropriate remedy for the infringement of the right to trial within a reasonable time
• What factors must be considered in determining whether a delay in criminal proceedings is unreasonable
• Whether the restraint orders under POCA should be set aside when prosecution is permanently stayed
• The relevance of dishonest conduct by the State in postponement applications

Appeal upheld with costs including two counsel. The order of the High Court was set aside and replaced with: (1) permanent stay of prosecution; (2) all restraint orders set aside; (3) the curator ordered to release all assets with accrued interest to the appellants; (4) the NDPP ordered to pay costs including two counsel.

A permanent stay of prosecution, though an extraordinary remedy, is appropriate relief under section 38 of the Constitution where: (1) there has been an unreasonable delay in bringing the accused to trial that infringes the constitutional right to trial without unreasonable delay under section 35(3)(d); (2) material and substantial portions of the delay are attributable to the State rather than systemic factors or the accused's conduct; (3) the accused has suffered significant prejudice (whether trial-related or personal/social prejudice) as a result of the delay; and (4) particularly where the State has engaged in dishonest conduct in facie curiae in relation to the prosecution. In assessing whether delay is unreasonable, courts must consider: the total elapsed time; the nature and extent of prejudice to the accused (including social stigma, financial hardship, and trial prejudice); the complexity of the case; responsibility for various delays; and systemic limitations, while being mindful that systemic factors cannot indefinitely excuse delays. The dishonest conduct of prosecutors, including giving false undertakings to courts to avoid matters being struck from the roll, is a significant factor that must weigh in favor of the accused.

The court made several important non-binding observations: (1) Decisions on permanent stays are highly fact-specific and this judgment should not be used as a ready guide - each case must be assessed on its own facts. (2) While the public and societal interest in prosecuting crime is important and must be considered, it cannot override clear constitutional violations. (3) The court noted with approval the candor of senior State counsel in conceding the impropriety of the prosecutor's dishonest conduct, describing it as conduct becoming of an officer of the court. (4) The court observed that where the State undertakes to request documentation from third parties and fails to do so, the passage of time exacerbates rather than ameliorates difficulties in obtaining such documentation. (5) The court questioned whether the POCA charges were technically appropriate for what appeared to be a straightforward theft case, suggesting the State may have been pursuing POCA charges primarily for asset recovery purposes. (6) The judgment emphasized the importance of finalizing objections to charge sheets rather than leaving such matters in limbo, as adjudication would promote finality and enable parties to assess their positions.

This case provides important guidance on when a permanent stay of prosecution - an extraordinary remedy - may be granted for infringement of the right to trial without unreasonable delay under section 35(3)(d) of the Constitution. It affirms and applies the principles from Sanderson regarding factors to consider: extent of delay, nature of prejudice (trial-related and non-trial related), complexity of the case, responsibility for delays, and systemic factors. Importantly, it establishes that dishonest conduct by prosecutors (giving false undertakings to courts) is a significant factor weighing in favor of granting a stay. The judgment emphasizes that the right to speedy trial protects multiple interests: the presumption of innocence, personal liberty and dignity, and trial fairness. It demonstrates that prolonged asset restraint under POCA, combined with State-caused delays, can constitute severe prejudice warranting a stay. The case serves as a warning to prosecutors about their duties to progress matters expeditiously and honestly. The court stressed that each case is fact-specific and this judgment should not be used as a ready guide, but rather courts must consider all circumstances in each individual matter.