In the case of Zanner v Director of Public Prosecutions, Johannesburg (107/05)  ZASCA 56, 2002 (2) SACR 45 (SCA);  2 All SA 588 (SCA), the factory worker threw a tool at a colleague, which ended fatally. In the statement of the accused he alleged that the tool had slipped from his oily hands when he slung his shoulders in a gesture of irritation. The matter could at first not proceed with trial as the witness was missing. Once she had been found, the trial was set down to be heard. However, the charge was withdrawn as representations had been made on behalf of the accused.
After ten years the case had been reopened as the accused had been charged for killing his wife, which was a direct relation to his previous conviction. The accused relied on Section 35 (3) (d) of the Constitution which states that “every accused person has the right to a fair trial, which include the right to have their trial begin without unreasonable delay”.
In this matter the accused believed that his case would suffer prejudice due to the previous murder trial of ten years ago. Furthermore, Section 38 of the Constitution grants a relevant party the right to approach a competent court on the ground that a right in the Bill of Rights has been infringed or threatened and, depending on the circumstances of each particular case, the court may grant appropriate relief, including a declaration of rights. Trial related prejudice refers to prejudice suffered by an accused mainly because of witnesses becoming unavailable and memories fading as a result of the delay, in consequence whereof such accused may be prejudiced in the conduct of his or her trial.
Counsel agreed that the delay in prosecution had to be calculated from the date when the accused was first charged with the offence. The judge did not find in favour of the accused; however, he noted that each case is different and the lengthy delay cannot always be seen as an infringement on a right. The circumstances of the unreasonable delay needed to be investigated.
In this matter the accused’s previous conviction trial had been delayed because the witness was missing, the original docket papers were missing and the representations had been made on behalf of the accused. No issues of restricted freedom, stress, anxiety or social ostracism arose. The judge therefore found that the accused was not denied a right and the appeal was dismissed with costs.
 S v Dzukudu and others; S v Tshilo 2000 (2) SACR 443 (CC)
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