Once, Twice, Three Times Delayed: Considering a Permanent Stay of Prosecution in Rodrigues v The National Director of Public Prosecutions

The National Prosecuting Authority is vested with the power, as dominus litus , to institute and discontinue charges whereas high courts are empowered to order a permanent stay of the prosecution prohibiting the continuation of the trial. However, such an order is considered to be a "drastic remedy" and is not empowered in terms of statute such as the Criminal Procedure Act 51 of 1977 but rather vested in the right of an accused to have their trial begin and conclude without unreasonable delay under section 35(3)( d ) of the Constitution of the Republic of South Africa , 1996. A permanent stay of the prosecution is an order made on a case-by-case basis, balancing various factors such as the prejudice faced by the accused, systemic factors as well as the reason for the delay. The ultimate question however remains whether the lapse of time in a particular case is unreasonable. The Supreme Court of Appeal in Rodrigues v The National Director of Public Prosecutions had to evaluate whether the 47-year-delay and eventual prosecution between the death of anti-apartheid activist, Ahmed Timol, was unreasonable. Both the majority and minority of the Supreme Court of Appeal, although for different reasons, concluded that the delay was not unreasonable. This contribution discusses the recent judgment in Rodrigues v The National Director of Public Prosecutions against the backdrop of the principles relating to permanent stays as established by South African courts. Both the majority and minority judgments are discussed and evaluated to discern important themes and considerations. It is argued that the judgment is a strong reminder of the significance of the right to a speedy trial.


Section 35(3)(d) of the Constitution of the Republic of South
guarantees an accused the right to a fair trial which includes having their trial begin and conclude without unreasonable delay. This right "is a recognised norm and touchtone for a fair trial" in the South African criminal justice system. 1 However, and especially considering the backlogged South African criminal justice system, 2 "systemic factors" such as financial constraints 3 and forensic backlogs often inhibit the right of an accused to receive a speedy trial. Concerning the former, it was reported in March 2021 that South Africa was facing a severe backlog of DNA tests involving approximately 172 787 cases 4 and by August this number reportedly "exceeded 210,000 cases" which will probably only be cleared by 2023. 5 One of the reasons for the backlog has also been attributed to the loss of experienced police officers at the start of the democratisation of South Africa. 6 This loss translated into an ineffectual and frustrated National * Delano Cole van der Linde. LLB LLM LLD (Stell). Senior Lecturer, Faculty of Law, Stellenbosch University, South Africa. Email: dcvanderlinde@sun.ac.za. ORCiD: https://orcid.org/0000-0003-3347-3077. 1 Broome v Director of Public Prosecutions, Western Cape; Wiggins v Acting Regional Magistrate, Cape Town 2008 1 SACR 178 (C) (hereafter the Broome case) para 45. In Berg v Prokureur-Generaal, Gauteng 1995 2 SACR 623 (T) 627, the Transvaal Provincial Division, relying on Kabe v Attorney-General 1958 1 SA 300 (W), asserts that this right was already implicit in South African criminal procedure. 2 See generally Jeffery 2021 https://www.justice.gov.za/m_speeches/ 2021/20210525-BudgetVoteSpeech-DMin.pdf where it was stated that there was a 53% backlog in the regional courts and 48% backlog in the district courts before the hard lockdown in March 2020. This backlog was of course exacerbated by the hard lockdown. This backlog however decreased to 48,87% for regional courts and 14,14% for district courts by the end of March 2021. Matters involving incidents of gender-based violence, accused persons awaiting trial, children and corruption were prioritised while audio-visual technologies were also implemented. Also see Portfolio Committee on Justice and Correctional Service 2020 https://pmg.org.za/page/Lockdowncasebacklogsovercrowding&releaseofinmates Ministersbriefing; Cele 2020 https://www.sowetanlive.co.za/news/south-africa/2020-05-13-mp-flags-court-backlogs-compounded-by-trivial-cases-under-covid-19-rules/.  4 Rall 2021 https://www.iol.co.za/news/south-africa/kwazulu-natal/concerns-raisedover-dna-backlog-172-787-cases-still-to-be-processed-89393f94-425f-43df-a0fe-7137fb8499d1; Hlati 2021 https://www.iol.co.za/capetimes/news/forensics-gbvbacklog-a-travesty-0bdfe58e-0133-4896-9321-28ef54f6438d. 5 Daniel 2021 https://www.businessinsider.co.za/south-africa-dna-backlog-wont-becleared-by-2023-2021-8. See generally Portfolio Committee on Police 2021 https://pmg.org.za/committee-meeting/32411/. 6 Albeker refers to the fear of and actual change within the police structures which eventually led to unsustainable salary increases to "buy enough support from the rank-and-file" to assist the transition into the transformed police service. The salary DC VAN DER LINDE PER / PELJ 2022 (25) 3 Prosecuting Authority (NPA) which was further exacerbated by "catastrophically malign or inept appointments by former President Jacob Zuma". 7 It also had the collateral issue of placing further strain on the already overcrowded prison system. 8 It has been reported that about one third of the South African prison population are persons who are remanded and not formally sentenced. 9 In S v Jackson, 10 it was held that South African courts recognise three forms of prejudice resultant "for the want of a speedy trial". 11 These forms are the loss of personal liberty, "the impairment of personal security" due to reputational harm, ostracism and unemployment as well as trial-related prejudice such as the degradation of evidence and witness memory, death or unavailability. 12 Section 342A(1) of the Criminal Procedure Act 51 of 1977 (CPA) empowers courts to investigate delays in the proceedings that appear to be unreasonable and potentially "cause substantial prejudice to the prosecution" or other parties such as the state, the accused, the legal practitioner of the accused or witnesses. 13 Section 342A(2) 14 enumerates certain factors a court must consider in determining whether a delay is unreasonable, such as the duration of the delay, 15 the reasons advanced for the delay, 16 the extent, seriousness and complexity of the vexed charges, 17 any potential or actual prejudice by the accused or the state by the delay, including, but not limited to the weakening of the evidence, unavailability, death or disappearance of witnesses, and issues relating to the loss and gathering of the evidence 18 and any other factor the court increase was however unsustainable and resulted in encouraging existing staff to leave the police service. deems relevant to take into account. 19 If a court indeed finds that the delay was unreasonable, it has wide powers under section 342A(3) 20 to make an order including refusing further postponement 21 and granting a postponement subject to conditions set out by the court. 22 Judicial officers should maintain a firm, yet fair approach when confronted with unnecessary postponements and unjustified delaying tactics. 23 In this regard, the court in S v Steward correctly pointed out that "[s]uch an approach would obviate uncalled for applications for permanent stays of prosecution". 24 The powers under section 342A do not, however, directly empower a court to order a permanent stay of the prosecution. 25 Although similar considerations apply under the process in terms of section 342A and an application for a permanent stay of the prosecution, the former is only available once a trial has commenced. 26 Nevertheless, a High Court is empowered to make an order for the permanent stay of the prosecution due to a violation in terms of section 35 (3) whether to discontinue a prosecution. 31 The NPA is vested with the constitutional mandate to prosecute crime. 32 As pointed out in Broome v Director of Public Prosecutions, Western Cape; Wiggins v Acting Regional Magistrate, Cape Town 33 (where a permanent stay was granted), a permanent stay of the prosecution indeed prevents the prosecution from presenting society's complaint against an alleged transgressor of society's rules of conduct. Orders of this nature may also undermine public confidence in the criminal justice system and may adversely impact on the functions of democratic institutions in this country. I am acutely aware of the serious nature of the charges against the accused in this case and the alleged impact it had on the ordinary citizen in civil society. A permanent stay of prosecution will result in alleged perpetrators, that allegedly amassed their wealth in defrauding ordinary citizens of millions of rand, walking free. 34 This contribution discusses the recent judgment in Rodrigues v The National Director of Public Prosecutions 35 against the backdrop of the principles relating to permanent stays as established by South African courts. This case considered whether a 47-year delay between the death of political activist, Mr Ahmed Essop Timol (Mr Timol) and the subsequent charging of the now-deceased appellant, Mr João Rodrigues, constituted an unreasonable delay warranting a permanent stay of the prosecution. Both the majority and minority judgments will be discussed and evaluated to discern important themes and considerations. This contribution argues that although Mr Rodrigues passed away in September 2021, 36 the judgment is a strong reminder of the significance of the right to a speedy trial.

Factors considered
There is no strict test or formula that courts employ to ascertain whether the delay complained of should result in a permanent stay of the prosecution. Seminal judgments have however elucidated certain factors that courts may consider in granting this order such as the "balancing test" alluded to in the 31 See s 6(a) and ( introduction. In Sanderson v Attorney General, Eastern Cape, the Constitutional Court (hearing the matter under the Constitution of the Republic of South Africa 200 of 1993 (interim Constitution)) 37 held that the "critical question" is to ascertain "whether the particular lapse of time is reasonable". 38 The Constitutional Court here relies on a foreign law approach, namely a balancing test, 39 weighing up the different factors associated with the delay including the prejudice that the accused might have suffered, the duration of the delay and the reasons advanced by the state for the delay. 40 Although the amount of time that has elapsed is the "critical question", it may be tempered by other factors such as systemic reasons associated with the trial, the accused's waiver of certain time periods, or inherent time requirements associated with the case. 41 Consequently, courts must consider how the lapse of time has impacted the three interrelated interests of the accused, namely "liberty, security and trialbased interests" with trial-based interests arguably being the most difficult to ascertain. 42 Kriegler J warned against imposing draconian timeframes on the prosecuting authority and asserted that it would be inappropriate to dictate timeframes. 43 The court here implies that it would constitute a violation of the separation of powers to do so. 44 Furthermore, the nature of the prejudice suffered by the accused, including where the accused is incarcerated pending the start of the trial, must be given due consideration. Other factors include the social stigma that the accused may face, the disruption to the practice of their occupation, or 37 The predecessor of s 35 (3) Sanderson case para 25. The Constitutional Court also references reliance of the accused on their right to a speedy trial. The Constitutional Court however points out as the "vast majority", at least at that time, of South Africans are unrepresented and have no conception of the right to speedy trial. It would therefore be unjust to require them to expressly rely on this right in the balancing exercise. Kriegler J makes these comments especially in the context of considering the appropriateness of relying on foreign jurisdictions. In this instance, Krieger J noted that it would be "[t]o deny them relief under section 25(3)(a) because they did not assert their rights would be to strike a pen through the right as far as the most vulnerable members of our society are concerned". where the defence of the accused may be endangered. 45 Where these factors have a more serious impact, in theory at least, the shorter the trial period for the accused should be. 46 An accused who has consented to postponement may further have difficulty in proving their case but they also do not have to establish that they have a genuine desire to have their case tried. 47 Equally, an accused may find it difficult to successfully rely on their right to a speedy trial where they have been "the primary agent of delay". 48 The Constitutional Court points to the second important factor namely, the nature of the specific case. 49 Certain cases are of course intrinsically more complex and would therefore necessitate a longer preparation time for the state. In addition, the availability and willingness of witnesses to cooperate can further exacerbate this. Third is systemic factors that inhibit the right to a speedy trial, especially "resource limitations" that hamper the proper functioning of the justice system. This may include, in particular, the resource constraints of police stations 50 and backlogged courts. 51 The ultimate issue remains, namely the "reasonableness" of the delay.
Evaluating the reasonableness of a delay ultimately involves a value judgment. 52 Courts must bear in mind two arguably competing interests. First, the interest of society to bring those to book who have (potentially) committed an offence. 53 Granting a permanent stay of the prosecution disallows the NPA to carry out its constitutional mandate and may exacerbate society's distrust of the justice system. Unreasonable delays, on the other hand, may "debase" the presumption of innocence as an everlooming trial may "in itself [be] a form of extra-curial punishment". 54 Society in general, and the parties to the prosecution, in particular the accused, therefore have vested interests in bringing a case to finality. 55  An order for the permanent stay of the prosecution is also a "radical" remedy both from a socio-political and philosophical paradigm. 57 It prevents the state "from presenting society's complaint against" the accused. 58 Therefore, the remedy is only available where an "accused has probably suffered irreparable trial prejudice as a result of the delay". 59 In Van Heerden v National Director of Public Prosecutions (a case concerning a rare instance of where a permanent stay was granted), Navsa ADP (on behalf of the uniramous Supreme Court of Appeal) warned against an overzealous resort to this remedy: It must be emphasised that decisions in matters of this kind are fact specific.
It follows that this judgment should not be resorted to as a ready guide in determining the reasonableness or otherwise of delays in the finalisation of trials. Whether a breach of a right to an expeditious trial has occurred and relief is justified, are to be determined by a court after having been apprised of all the facts on a case-by-case basis. 60

The issues in Rodrigues
The appellant argued that the court a quo erred in finding that the delay did not infringe his fair trial rights. 61 It was further alleged that then-president and Minister of Justice interfered by halting the prosecution cases flowing from the Truth and Reconciliation Commission (TRC) and that there would be a substantial amount of others who face similar prejudice. 62 The Supreme Court of Appeal found these reasons, in particular the potential interference by the president and Minister of Justice, compelling enough to hear the appeal. 63 The appellant relied on section 35(3) (the right to a fair trial), bolstered with section 12 of the Constitution (freedom and security of the person). 64 The grounds of appeal were expanded upon and it was submitted that the planned prosecution will infringe the appellant's right to 57 Sanderson case para 38. It is however not stated which subsection of s 12 of the Constitution is specifically relied upon, but it is likely s 12(1)(a) which guarantees the right to "not to be deprived of freedom arbitrarily or without just cause". have a procedurally fair trial and to not be prosecuted with unlawful or improper motives; the right to (i) "have the trial begin and be concluded without unreasonable delay"; (ii) also to be informed of the charge with sufficient detail in order to answer to it; (iii) be able to challenge and effectively adduce evidence and lastly, the right to not incriminate himself and the right to silence. 65 Added to these interrelated grounds, was also the submission that the appellant was granted amnesty, that there was an agreement that he would not be prosecuted and also that there was political interference to not prosecute together with an agreement that no prosecution would take place. 66

Factual background
Mr Timol was arrested at a roadblock on 22 October 1971. He was found in possession of leaflets of the South African Communist Party (SACP), a banned organisation at the time. 67 Mr Timol died while being held in detention and the inquest into his death "determined" that he had committed suicide by jumping from the tenth floor of John Vorster Square. 68 This was however followed by a second inquest in 2017, 69 47 years later where Mothle J found that Mr Timol had not committed suicide but had in fact been pushed from the tenth floor with the intention to kill him. 70 It was also found that the police tortured Mr Timol before falling to his death. This finding was supported by the presence of serious injuries found on Mr Timol's body, 71 presumably other than those associated with the fall. Importantly, it was found that Mr Rodrigues had assisted in the cover-up of the murder, and he should be investigated to determine whether he should be prosecuted. This investigation did in fact result in a charge of murder on 30 July 2018 with his first appearance being on 18 September. The trial proceedings were paused pending the outcome of the application for a permanent stay. 73 It is also worth noting that, as a result of an application under the Promotion of Access to Information Act 2 of 2000, it was discovered that around R3,6 million in tax monies has been spent on Mr Rodrigues's defence. 74 This is because he was acting in his official capacity as a member of the former Security Branch of the South African Police Service at the time of the alleged crime. 75

The relevant time periods and outcome
There are three periods of time relevant to this case. As already mentioned, approximately 47 years had passed between the death of the deceased and the arrest of the appellant. In this regard, the Supreme Court of Appeal correctly pointed out that between 1971 and 1994, while the apartheid government was still in power, there was no political will to investigate the incident further or to challenge the findings of the original inquest. 76 The appellant was never formally charged during this period. Although the Supreme Court of Appeal found that the period before charging should not be ignored as a matter of course, it found that in this instance it is irrelevant for determining whether an unreasonable delay had occurred. 77 The majority of the Supreme Court of Appeal, per Ledwaba AJA (with Maya P, Dlodlo JA and Poyo-Dlwati AJA concurring), describes the second period as between 1994 and 2002. During this time, South Africa underwent its democratic transition, and a feature of this period was the TRC hearings. 78 Persons who had committed political crimes during this period could apply for amnesty. 79 Where an applicant was successful, they would not face criminal prosecution in the future. Those who elected not to apply for amnesty or who were unsuccessful in their applications would not be 73 Rodrigues case para 11. 74 Foundation for Human Rights and Webber Wentzel 2021 https://unfinishedtrc.co.za/press-release-joao-rodrigues-files-an-appeal-with-theconstitutional-court/; Anon 2019 https://www.ahmedtimol.co.za/doj-cd-forced-todisclose-nearly-r36m-paid-for-rodrigues-legal-costs-at-taxpayers-expense/. insulated from possible prosecution. 80 The third period, according to the Supreme Court of Appeal, is between 2003 and 2017 were amnesty was allegedly granted by the president and an "alleged agreement between Government and other interested parties". 81 Former National Director of Public Prosecutions, Advocate Vusi Pikoli, had "complained about the interference of the Government" in matters concerning those who were denied amnesty or who did not apply for it. The Supreme Court of Appeal subsequently accepted that there was indeed political interference with the prosecutorial decisions of the NPA. 82 However, the Supreme Court of Appeal found that this period was also not relevant in calculating whether an unreasonable delay had occurred due to the operation of the Promotion of National Unity and Reconciliation Act 34 of 1995 and the TRC hearings. 83 The appellant however did not make use of these proceedings and therefore knew that he could face criminal prosecution in the future. During the TRC period, the NPA was therefore not able to carry out the prosecution and the delay here could therefore not be ascribed to the NPA. 84 The vexed period can be narrowed down to 2003 to 2017. The Supreme Court of Appeal here pointed to the "perplexing and inexplicable" policy by the state that the relevant TRC cases would not be prosecuted during that time. Further, that it is an "ineluctable conclusion" that some degree of political interference took place. 85 This is particularly puzzling in light of the "TRC advocating [for] a bold prosecutions policy" and the independence of the prosecuting authority as well as "its constitutional obligation to prosecute crimes" and act in the best interests of the victims of the associated crimes. 86 Ledwaba AJA reminded of the independence of the NPA 87 that this body has the exclusive power to institute proceedings on behalf of the state 88 and to "exercise its functions without fear, favour and prejudice". 89 The Supreme Court of Appeal echoes the sentiments of the court a quo in that there should be an investigation into the alleged interference. 90 The somewhat concomitant issue of whether the political decisions amounted to a pardon was not raised in the Full Court, but the Supreme Court of Appeal held that the issue could still be addressed there. However, despite the Supreme Court of Appeal essentially censuring the political figures involved in the non-prosecution of apartheid-era suspects, the court found that this did not impact the substantive fairness of the trial. 91 Ledwaba AJA here referred to Bothma v Els, 92 without further elaboration, 93 where the Constitutional Court also considered an application for a permanent stay of the prosecution. Sachs J held that the question is whether the right to a fair trial right was violated "in a broader sense" (and not so much the right 86 Rodrigues case para 26. The "constitutional obligation to prosecute crimes" must be tempered against the fact that the prosecution of crime in South Africa is discretionary. The Prosecution Policy of the National Prosecution Authority (NPA 2013 https://static.pmg.org.za/docs/1999/990301policy.htm) para 3.A states that there must be a sufficient and admissible evidentiary basis "to provide a reasonable prospect of a successful conviction" (original emphasis). Joubert et al therefore correctly points out that South Africa does not employ "a system of compulsory prosecution" and that prosecutions should only follow in instances where there is a prima facie case and in the absence of "reasons" to not prosecutesee Joubert et al Criminal Procedure Handbook 4.14. This is echoed in the Prosecution Policy para 4.C where it is stated that prosecutions should take place "unless public interest demands otherwise". In fact, one of the factors mentioned under the Prosecution Policy, is whether there has been an unreasonable delay between the commission of the crime and the date the prosecution was instituted. Para 3.C specifically states that a prosecutor should consider the complexity of the case as well as the role of the accused in causing the delay.

87
Rodrigues case paras 28-29. 88 Section 179(2) of the Constitution. 89 Section 179 (2)  under section 35(3)(d)) in that it was irreparably violated "as a consequence of the extreme belatedness of the prosecution". 94 Sachs J, in turn, relied on S v Zuma, 95 where it was held that the right to a fair trial under the Constitution 96 is not limited to the rights enumerated thereunder. It rather "embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the [interim] Constitution came into force". 97 Sachs J in Bothma ultimately held that "the delay … must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irremediably taint the overall substantive fairness of the trial if it were to commence". 98

Majority decision
The majority of the Supreme Court of Appeal (per Ledwaba AJA, with Maya P, Dlodlo JA and Poyo-Dlwati AJA concurring) stressed the socio-political consequences of a permanent stay, as highlighted in Sanderson. 99 The Supreme Court of Appeal supports the Constitutional Court's former jurisprudence in Sanderson and Bothma where it was decided that it remains a "value judgment" of the evidence "relating to the relevant factors" such as the length of and reasons for the delay and the prejudice to the accused. 100 These often interrelated factors, however, do not constitute a closed list of considerations and "public policy considerations" as well as the nature of the offence may be taken into account when evaluating such an application. 101 Regarding the nature of the offence, the Supreme Court of Appeal referred to Zanner v Director of Public Prosecutions, Johannesburg, 102 where it was held that [t]he sanctity of life is guaranteed under the Constitution as the most fundamental right. The right of an accused to a fair trial requires fairness not only to him, but fairness to the public as represented by the State as well. It must also instill public confidence in the criminal justice system, including those close to the accused, as well as those distressed by the horror of the crime. (See S v Jaipal 2005 (4) SA 581 (CC) para 29.) It is also not an insignificant fact that the right to institute prosecution in respect of murder Clearly, in a case involving a serious offence such as the present one, the societal demand to bring the accused to trial is that much greater and the court should be that much slower to grant a permanent stay. 103 [sic] No evidence was adduced to the effect that the NPA was unreasonably tardy in actually charging the appellant after the finding of the second inquest. The appellant also did not submit that there was a period of unreasonable delay after his first court appearance in 2018. Consequently, the provisions under section 342A (1) and (2) could not be relied upon. 104 The Supreme Court of Appeal then predictably concludes that, although there was a 47-year delay between the events at John Vorster Square and the prosecution, it did not render the trial unfair. 105 The Supreme Court of Appeal held further that the present hearing was the appropriate forum for the appellant to challenge evidence led at the inquest and also not to raise his old age (and failing memory)the latter could be brought up at sentencing. 106 Taking account of the matrix of factors discussed above, the Supreme Court of Appeal held that there had not been an unreasonable delay and no "trialrelated prejudice" had been suffered and consequently dismissed the appeal. 107

Minority decision
The minority judgment (per Cachalia JA) agreed with the conclusion of the majority but disagreed with how this conclusion was reached. 108 Cachalia JA criticised the appellant's apparent incongruent merger of appeal grounds in that the remedy the appellant wanted a permanent stay of the prosecution but based this on a supposed presidential pardon 109 as well as the alleged agreement between the NPA, the Minister of Justice and the president. 110 The argument relating to the presidential pardon was not further substantiated in the appellant's heads of argument and the president (as the 103 Zanner case para 21; Rodrigues case para 34. The term "prescription" refers to the South African equivalent of the statute of limitations. Also see Broome case para 81 (quoted above in Part 1) where Le Grange J points out the acute awareness that granting a permanent stay (which was done it that case) will result in the exoneration of an accused who has defrauded people of millions of rand. sole functionary responsible for presential pardons) was also not joined to the matter. 111 The minority held that the alleged pardon and agreement (the additional grounds) were merely raised "to add colour to the stay application" and the appellant did not buttress the additional grounds with any form of evidence. 112 In fact, as Cachalia JA quite accurately pointed out, there would be no need for a stay application if these additional grounds were actually and lawfully granted 113 and they do not serve as evidence for a stay application.
Dealing with the application for permanent stay, the court pointed out that this drastic remedy may only be granted in instances "where the delay is egregious and has resulted in irreparable trial-related prejudice", in other words, in instances where such prejudice has been "demonstrably clear". 114 For this reason, the remedy has rarely been granted. 115 One such exception is Broome, where, although not as significant as in Rodrigues, the timedelay of a "mere" seven years proved to be prejudicial enough in light of the other contextual factors, especially due to the loss of evidence and the fact that some of the charges also included events from 18 years prior. 116 Cachalia JA was critical of the assertions of political interference and stated that this type of assertion (as a shield against prosecution) has gained prominence in recent years and refers to former President Jacob Zuma. The minority points to the matter in National Director of Public Prosecutions v Zuma 117 and quotes the following dictum: A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent … which in any event can only be determined once criminal proceedings are concluded. The minority therefore held that, in light of the dictum in Zuma, even if there was political interference, the decision eventually to prosecute the appellant was not unlawful. 119 A prosecution will therefore only be unlawful where, in addition to the wrongful motive, there is also no basis for such a prosecution. 120 Therefore, the interference could not have caused trialrelated prejudice and the permanent stay of the prosecution would furthermore not have been a competent remedy in that scenario, even if there was such interference. 121 Cachalia JA similarly rejected the appellant's contention that the former's right to adduce and challenge evidence 122 has been infringed upon due to the state's refusal to provide further particulars. 123 It is correctly held, once again, that a permanent stay is not the appropriate remedy where there is a wanting for further particulars. This issue can be raised at trial through a request for further particulars. 124 Where there is a failure to provide satisfactory particulars, the appellant could have applied to have the charges quashed, and as Cachalia JA pointed out, that would have had the same effect as a permanent stay. 125 The family of the deceased is characterised by the minority (rightfully so) as the other victims of the delay and describes their struggle to bring the perpetrators to trial as "heroic" and further that the societal interests demand that their struggle not be in vain. 126 Unfortunately, since the passing of Mr Rodrigues, Mr Timol's family will never have finality or full closure to the matter.
Despite the degree of censure expressed towards the appellant's application, the minority still warned that the trial judge must be cognisant of the prejudice the appellant might face in formulating a proper defence 119 This can therefore be seen as a general "exception" to the requirement that the exercise of prosecutorial discretion may not be mala fides, due to substandard evidence owing to the passage of time. 127 Cachalia JA alluded to the fact that the burden of proof remains with the state and that the former will face a similar difficulty in proving its case. The trial court must similarly consider the difficulties that the appellant faces in preparing a defence and if that is not the case, the appellant still retains his right to appeal. 128 However, regarding the present appeal, the minority ultimately dismissed the appellant's case. 129

Discussion and evaluation
One cannot fault the overall conclusion of the majority in Rodrigues. The majority carefully considered all the relevant factors and came to the correct conclusion that although there has been a substantial separation in time between the events in question and the decision to prosecute the appellant, the only relevant period is the period between 2003 and 2017. Essentially as soon as the moratorium against the prosecution TRC was lifted, and after the second inquest was performed in 2017 fingering Rodrigues, the former was charged in July 2018, with his first appearance occurring in July 2018. Unlike Broome, these factors were beyond the control of the NPA and not due to ineffectual or improper management of the case.
It is submitted that the minority decision is more doctrinally sound as it separates the conflated grounds of appeal which were amalgamated into one application for a permanent stay of the prosecution. Nevertheless, the permanent stay of the prosecution is not a super-remedy to be requested where an applicant feels aggrieved due to several alleged procedural or contextual issues. Only where such issues have caused an unreasonable delay, and that is mainly or solely attributable to the state, can a court consider granting a permanent stay. As the minority has pointed out, there are other remedies available, such as the request for further particulars. Over and above the apparently baseless assertion by the appellant that he 127 Rodrigues case para 61; Bothma case para 24. Cachalia JA in the Rodrigues case relies on authority by the Canadian Supreme Court in R v Carosella [1997] 1 SCR 80 para 105 (as approvingly relied on in the Bothma case para 81) where L'Heureux-Dubé J held that: "Difficulty may well be experienced by an accused in gathering rebuttal evidence.
[Yet] the potential for such difficulty is likely one of the reasons why the prosecution bears the heavy onus of proving all aspects of guilt beyond a reasonable doubt. In that regard the criminal system has always taken into consideration that it will occasionally be difficult for an accused to demonstrate innocence, and has removed the need to do this, by putting a high onus of proof upon the Crown" (original emphasis).
DC VAN DER LINDE PER / PELJ 2022 (25) 18 has received a presidential pardon, the provisions under the CPA 130 and the Constitution 131 seem to imply a person must be convicted first before a pardon can be granted.
It is now firmly established in South African law that an application for the permanent stay of the prosecution is a drastic remedy and will not be readily granted by a court. This application is one of the few procedural requests not directly regulated by the CPA and the discretion lies with a court to make the relevant determination, considering a host of relevant factors. These factors are considered considering the conduct of the accused and the prosecution during the pre-trial process and against an overall backdrop of reasonableness. The factors do not constitute a closed list but ordinarily include the duration of time passed, the prejudice potentially suffered by the accused, the nature of the offence and the reasons the state assert for the delay. The court in Sanderson especially has warned against the application of draconian timeframes. Furthermore, the rejection of the application in cases spanning decades, in particular, Rodrigues (47 years) and Bothma (39 years), have proven to be indecisive, while in Broome, 7 years, contextually, proved to be sufficient. Although the facts in these cases differ vastly and involve societal scourges in their own right (murder, rape, and fraud respectively), the courts were always mindful of the societal interest and expectation in holding potential offenders responsible for the alleged transgressions. If this societal interest and expectation is disappointed, belief in the criminal justice system is impacted negatively.
Societal expectations regarding the nature of the crime are also important to consider. An order for the permanent stay of the prosecution is already a "drastic remedy" in itself but it appears that it will even less likely be ordered in a case involving murder. 132 The logic has, however, been applied to cases involving sexual violence such as rape. 133 Prescription periods, especially in relation to crimes that do not prescribe such as murder and rape, would be rendered pointless if there is a significant passage in time between the events in question and the charging of the accused.