Republic of South Africa
REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

							CASE No:  A 172/2006
							
In the matter of

CRAIG  JACKSON								First Appellant
BERNARD DE MORNAY							Second Appellant
FRANCO  BOOYSEN							Third Appellant
and

THE  STATE									Respondent  

_______________________________________________________________________                                        
JUDGMENT  DELIVERED  :  21  NOVEMBER  2007
_______________________________________________________________________

MOOSA, J:

Introduction

1.	The three appellants were convicted in the Regional Court, sitting at Parow, on 26 July 2004 on two counts of rape, two counts of indecent assault, one count of housebreaking with the intention to commit rape, indecent assault and theft.  In terms of s 52A(1)(b) of the Criminal Law Amendment Act, 105 of 1997 (the Act), the proceedings were stopped and remitted to the High Court for sentence. When the matter came before the High Court, appellants challenged the conviction on the basis that it was not in accordance with justice as contemplated in s 52A(3)(b) of the Act.  After hearing argument, Ndita AJ (as she then was) confirmed the conviction and, having found substantial and compelling circumstances, sentenced each of the appellants to an effective term of imprisonment of 20 years.  With the leave of the court a quo, the appellants have come to this court on appeal against both their conviction and sentence.

Ground of appeal
2.	The ground of appeal in respect of the conviction is that the court a quo erred in holding that the conviction in the Regional Court was in accordance with justice as contemplated in s 52A(3)(b) of the Act in that the right of the appellants to a fair trial in terms of s 35(3)(d) of the Constitution has been violated.  The appellants, 
through their counsel, during the course of argument, conceded that they do not seek to challenge the institutional delay inherent in the split procedure arising from the provisions of s 52 of the Act.  This issue has already been settled by the Constitutional Court.  
                                                                                   
The enquiry                                                                                                 
3.	The enquiry to determine whether the proceedings were in accordance with justice and whether the appellants had a fair trial because of the alleged unreasonable delay, in my view, should be conducted in three phases.  The first phase should be the pre-trial proceedings; the second phase should be the trial proceedings up to and including conviction and the third phase should be the post conviction proceedings up to and including sentence.    In respect of each of these phases the question to be answered is: whether there has been a delay and if there has been a delay, was such delay unreasonable. The question of whether the delay has been unreasonable entails a value judgment. We then have to examine the cumulative effect of the delays in the various phases, in order to determine whether the overall delay in this matter has been unreasonable or not. If it is found that such delays have not been unreasonable, it ends the enquiry. If, however, it is found that the cumulative effect of the delays is unreasonable, the next enquiry is whether the appellants have suffered prejudice or not.  The latter enquiry will finally determine whether the appellants’ right to a fair trial had been violated or not and whether the proceedings were in accordance with justice or not.   

The factual matrix
4.	Before embarking on such enquiry, it is perhaps appropriate to set out the factual matrix.  On 19 March 2000 in the early hours of the morning, the two sisters were on their way home from the Elsies River Day Hospital, where one of the sisters had received treatment for stab wounds.  At the Edward Primary School they were accosted by the appellants and their co-accused.  They were threatened with knives and taken into the school property where the two sisters were raped and sodomised in turn by the appellants and their co-accused. They had broken into the school property to commit the said offences and steal school property.  After perpetrating the offences, they threatened to kill the victims by burning them alive,
            but decided against it after the two victims assured them that they did not know any of the appellants or their co-accused, though they knew some of them. 

5.	The appellants were arrested on 20 March 2000 and their co-accused a few days later.  They appeared in the District Court in March 2000.  After a few postponements the matter was transferred to the Regional Court for hearing on  12 April 2001. Following a series of postponements, in that court, for various reasons, the trial eventually commenced on 4 December 2002.  The trial continued intermittently and was finalised on 26 July 2004 when the appellants were convicted.  After a few further postponements in the Regional Court, the matter was transferred on 18 April 2005 to the High Court for purpose of sentencing on 6 June 2005.  The sentence was handed down in the High Court on 25 July 2005. 

6.	The pre-trial delay has been approximately two years, approximately one year in the District Court and approximately one year in the Regional Court.  The trial in the Regional Court lasted approximately two years.  The delay from conviction to sentence has been exactly a year. Postponements in criminal matters are regulated by section 168 of the Criminal Procedure Act, No 51 of 1977 (“the Criminal Procedure Act”).  The delays must be seen against the background that there were six accused who stood trial on five serious charges;  they were each represented by different legal representatives;  the State called nine witnesses and the defence called six witnesses during the stage of the trial in the Regional Court.;  

            the State called no witnesses during the sentencing stage in the High Court, but the defence called two witnesses;  the record spans 1192 pages and comprises 13 volumes.  

Case Law
7.	Before evaluating the evidence, it might be appropriate to deal with the law.  I have not been referred to or found direct authority on the points in question.  The locus classicus on the question of speedy trial is the case of Sanderson (supra).  The case was based on s 25(3)(a) of the interim Constitution, which was the precursor
            to s 35(3)(d) of the present Constitution.  The principles enunciated therein are of equal application to the existing section.  In that case the remedy sought was the permanent stay of the prosecution.  In the matter under consideration the trial has been completed and the permanent stay of prosecution is therefore not an option.   
8.	In the case of Dzukuda (supra)  a Constitutional challenge was mounted against s 52 of the Act on the basis, inter alia, that the split procedure limits or impairs the right to a fair trial due to unreasonable delay.  The court held that it was not established that the provisions of s 52 of the Act limit an accused’s right to a fair trial under s 35(3) of the Constitution.  The case law reveals that, with the exception of Dzukuda (supra), in all the other relevant cases, the remedy sought was to stay the prosecution.  

The scope of the enquiry
9.	Before discussing the pre-trial delays, I will examine the proposition of Adv Van Wyk for respondent, that the enquiry in respect of s 52A(3)(b) proceedings does not extend to the pre-trial stage.  The particular section provides that before the High Court proceeds to impose sentence, the court  must   be satisfied that  the
             proceedings in the Regional Court (my emphasis) must be in accordance with        justice.  To pass such threshold the court is enjoined by the Constitution to             determine whether the appellants had a fair trial as contemplated in s 35(3) of the  Constitution including, but not limited to the right “to have their trial begin and         conclude without unreasonable delay” (s 35(3)(d)).  In order to determine whether  the appellants had a fair trial, the scope of the enquiry extends, in my view, not only to the pre-trial proceedings in the Regional Court, but also to the pre-trial         proceedings in the District Court.  

10.	The rationale for such extended enquiry is based on the fact that pre-trial violations of the right to a fair trial, could adversely affect the actual trial proceedings.  Some of the elements of the right to a fair trial included, in s 35(3), relate to pre-trial procedures, some to trial procedures and some to post-trial procedures.  These elements of a fair trial are, however, not exhaustive.  They also include other unspecified elements of the right to a fair trial.  Section 35 requires the court to conduct criminal trials in accordance with notions of basic fairness and justice and give content to such notions.  In a dictum, the Constitutional Bench of the Supreme Court of India, stated that the right to a speedy trial encompasses, within its sweep, all stages from the time of the accusation to the time of the delivery of the final verdict.  In my view, the right to a fair trial and, accordingly, the enquiry, whether the proceedings in the Regional Court were in accordance with justice as contemplated by s 52A(3)(b), extends beyond and includes, but is not necessarily limited to the actual trial proceedings in the Regional Court.

Benchmark
11.	I now turn to deal with the delays in this matter.  The Director of Public Prosecutions has placed at my disposal certain empirical data and statistics in respect of minimum sentence cases in which the trial began in the Regional Court and concluded in the High Court. It would be useful to employ the average of such data  and  statistics   as  a  benchmark  against  which  to  measure  the  delays 
            experienced in the matter under consideration and to determine whether such delays were unreasonable or not.  I must, however, stress that each case must be considered on its own merits and in terms of its own facts and circumstances.  The representative sample of cases, in respect of which the data and statistics were collected, spans over a period of one year.  They are broken up into two periods of six months each and cover the Western Cape only.  The first period is July to December 2006 and the second period is January to June 2007.  The total number of cases covered for the year is 142. A summary of such data and statistics is tabulated below:

MINIMUM SENTENCE CASES IN THE HIGH COURT
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
FOR THE PERIOD JULY 2006 TO JUNE 2007

Crime
to First Appearance	Crime
to
Trial	First
Appearance
to Trial	Trial
to
Conviction	Conviction
to
*DPP	Conviction
to *H C Enrolment	
*198	*597	*399	*292	*85	*359	

DPP
to H C
Enrolment	Crime
to
Sentence	First
Appearance
to Sentence	First H C
Appearance
to Sentence	Conviction
to
Sentence	
*274	*1330	*1132	*81	*440	

*Average number of days taken for the period in question
*DPP : Director of Public Prosecutions
*H C :  High Court

Pre-trial delays  
12.	In this case the pre-trial delays can be divided into two sections:  the one is the pre-trial delay in the District Court and the other is the pre-trial delay in the Regional Court.  I will, firstly, deal with the pre-trial delay in the District Court.  Unfortunately the record of the proceedings in the District Court has not been placed before us. It took approximately one year from the time the appellants were charged and arraigned in the District Court to the time they appeared in the Regional Court for trial.  In the absence of the District Court record, I must, from 
            my experience, make certain assumptions as to what could have transpired in the District Court, in order to determine whether there was a delay in the District Court and, if so, whether such delay was reasonable or not.  It is usual for matters in the District Court to be postponed for further investigation, appointment of legal representatives, application for bail, the receipt of forensic and other reports and, once the investigation is completed, for the police docket to be submitted to the Director of Public Prosecutions to decide in which jurisdiction the matter will be tried and to obtain a trial date from such jurisdiction.   

13.	The first recorded entry of appellants’ appearance in the Regional Court is 12 April 2001.  At that stage, they were all legally represented.  The appellants were all in custody.  It does not appear that they were released on bail in the District Court. The appellants were all arrested on 20 March 2000 and ought to have appeared in the District Court within 48 hours of their arrest.  The proceedings in the District Court endured for approximately one year.  No empirical data and statistics have been made available to us for delays in District Courts, before matters are transferred to the Regional Court for trial.  Taking into consideration, the nature and seriousness of the charges, the number of accused and the various procedural issues, which had to be attended to prior to the trial, I do not think that the delay of approximately one year in the District Court can be regarded as excessive or unreasonable.  There is no evidence that the institutional or systemic delay in this matter exceeded the average delay in the District Court for matters of a similar nature.  

14.	I now turn to examine the pre-trial delay in the Regional Court.  The delay was approximately one year.  There are various reasons for such delay.  Some of the delays are attributable to the State, some to the defence and some due to systemic factors.  The delay occasioned by the State was minimal.  The delay has been caused essentially by the appellants.  Before the trial commenced, some of the appellants terminated the services of their legal representatives.  On the day the trial was to commence, their legal representatives withdrew because of conflict of interest. This forced an adjournment of the commencement of the trial.  It took approximately another year before they could secure new legal representation from the Legal Aid Board.  Although some blame could be apportioned to the Legal Aid Board in not appointing legal representatives timeously, the major portion of the blame must be laid at the door of the appellants.  Another factor that contributed to the delay was the fact that some of the appellants were vacillating whether to obtain legal representation or to conduct their own defence.   

15.	The primary duty to ensure that the constitutional right of an accused to have his trial begin and conclude without unreasonable delay is vested in the presiding officer.  In this regard he is empowered to employ the tools provided for by s 342A(3) of the Criminal Procedure Act.  No blame, in my view, can be apportioned to the presiding officer in this matter.  He managed the delays effectively and professionally by granting short adjournments to enable the appellants to sort out their legal representation and by granting a final postponement to put the parties to terms.  At the time when some of the appellants were vacillating between appointing legal representatives and conducting their own defence, the presiding officer and the prosecutor explained to them the nature and seriousness of the charges against them and the consequences should they be found guilty of such charges.  They were warned that if they are found guilty of the rape charges, they could be liable to a minimum sentence of life imprisonment.

16.	In this case the delay from the first appearance in the District Court to the commencement of the trial in the Regional Court, is 990 days.  The benchmark average for the same period is 399 days.  In the light of the circumstances, I conclude that the pre-trial delay before the commencement of the trial in the Regional Court was unreasonable, but such delay was essentially attributable to the appellants.  In such instance, it was suggested that accused persons should not be able to vindicate their right to a speedy trial in terms of s 25(3)(a) which is 
             the precursor to s 35(3)(d) of the final Constitution.

Trial related delays
17.	The enquiry into the trial related delay can also be divided into two phases.  The first phase is from the commencement of the trial until the conviction in the Regional Court.  The second phase is post conviction to the imposition of sentence in  the  High Court.  The  trial  in   this matter, from  its  commencement until the 
            conviction in the Regional Court, spanned 599 days.  The benchmark average for the same period is 292 days.  The top end of the scale is 1651 days and the lower end of the scale is 1 day.  The delay in this matter which is twice the average, was essentially attributable to institutional or systemic factors.  The Regional Court, unlike the High Court, does not operate on the basis of a continuous roll in terms of which, a trial, once enrolled and allocated to a judge, runs continuously, where practically possible, until it is finalised.  In the Regional Court there are a number of trials and part-heard trials set down on its rolls.  New trials and part-heard trials are then accommodated on the existing rolls.  Such rolls can only accommodate new or part-heard trials for a few days at a time.  The inevitable consequence is that trials, which are set to run for a few weeks or for that matter a few months, straddles the rolls intermittently over a lengthy period of time.  This is, unfortunately, an inherent institutional shortcoming of the particular system in the absence of a continuous roll.

18.	In this matter, besides finding openings on the roll to set the trial down for hearing or further hearing, the court also had to accommodate the State prosecutor and six defence legal representatives who had other commitments, other trial cases and part-heard matters.  From experience I know that it is a nightmare to accommodate all the parties and to find dates for the trial or continuation of the trial that will suit everyone.  Taking all the factors and circumstances into consideration, I am of the opinion that the length of the trial in the Regional Court was unduly excessive and accordingly unreasonable.

19.	The second phase of the enquiry is from conviction to sentence.  The delay in the Regional Court, before the matter was transferred to the High Court, was approximately six months.  According to the record, the time taken up was essentially to transcribe the record.  The record of the Regional Court comprised approximately 1000 pages.  On the face of it, the time taken to transcribe the record can be described as excessive.  One cannot lose sight of the likelihood that records of other existing and previous cases, still needed to be transcribed and therefore had to be given preference.  These cases most likely could have included records in respect of appeals, reviews and other cases for sentence in the High Court which preceded the present one.

20.	The delay from conviction to the referral of the matter to the Director of Public Prosecution, for purpose of enrolling it in the High Court, was calculated as 177 days.  The benchmark average is 85 days.  The delay in this matter is twice as long as the benchmark average.  The delay appears to be unreasonable.      However, the time taken to have the matter enrolled in the High Court, took a further 89 days.  The benchmark average for the same process is 274 days.  If we consolidate the figures, from conviction to enrolment, we find that the average in this matter is lower than the benchmark average.  The consolidated figure, in this matter, adds up to 266 days, while the benchmark average adds up to 359 days.  I therefore conclude that, taking into consideration the average institutional delay from conviction to enrolment in the High Court, I am of the view that the delay in this matter did not exceed the average institutional delay experienced for transferring matters from the Regional Court to the High Court for purpose of sentencing.

21.	The first recorded appearance in the High Court was 18 July 2005.  In the Regional Court the matter was transferred on 18 April 2005 to the High Court for purpose of sentence on 6 June 2005.  There is no record for the delay in the High Court from 6 June to 18 July 2005.  From the record it is clear that the mandate of the lawyers who represented the appellants in the Regional Court was terminated after their conviction.  A new set of lawyers was appointed to represent them in the High Court proceedings.  The presiding judge, in order to decide whether the proceedings in the Regional Court were in accordance with justice, had to read, at least, the judgment of the court a quo and, if necessary, the record.  After confirming the judgment in the court a quo, Ndita AJ handed down sentence on 25 July 2005.

22.	The time taken from the first appearance in the High Court to sentence,  amounted to 50 days.  The benchmark average is 81 days.  The time taken in this matter is, therefore, well below the average institutional delay. Save for a delay of approximately six weeks, which is unexplained, I am of the view that there was no unreasonable delay in concluding the trial in the High Court.  Even if we allow for the six weeks unexplained delay between 6 June and 18 July 2005, it still could not be said that it falls outside the average delay for this period.  Finally, I examine the delay occasioned from conviction to sentence.  It amounted to 364 days.  The benchmark average for the same period is 440 days.  The delay from conviction to sentence in this matter is therefore below the average benchmark figure and, in my opinion, accordingly reasonable.

Cumulative effect of delays
23.	In examining the time taken for the various phases of the proceedings, I concluded firstly, that the time taken, for the pre-trial phase in the District Court, was reasonable but the pre-trial delay in the Regional Court was unreasonable save that such delay was essentially caused by the defence; secondly, that the trial related delay in the Regional Court up to conviction was unreasonable, but was due to institutional and systemic factors such as the nature of the rolls and, thirdly, that the period from conviction to sentence was reasonable.  It is common cause that the postponements throughout the proceedings were consensual and the appellants, at no stage of the proceedings, raised any objection thereto.  The question that arises: Can it be said that the cumulative effect of the delays, during the various stages of the proceedings, from the start of the proceedings in the District Court to the conclusion of the trial in the High Court, is unreasonable?  Before answering the question, it is perhaps appropriate to make a few preliminary remarks.  In the first place, there are two interesting and contrasting sayings with regard to the administration of justice.  The one is:  “Justice delayed is justice denied”. The other is:  “Justice hurried is justice buried”.  In the proper administration of justice, I think that a balance has to be struck between delaying justice on the one hand and hurrying justice on the other hand. 

24.	In the second place it is perhaps appropriate to reflect on public perceptions and criticisms regarding the preferential treatment of certain cases.  Criticisms have been levelled against the State by members of the public,  that the cases of the rich and the prominent, receive preferential treatment;  their right to a fair trial is respected and their cases are fast tracked despite the fact that some of them are out on bail. There is also a perception that the poor and indigent are discriminated against because they are refused bail and languish in prison for many years before their trial is completed.  Equality before the law is an important constitutional imperative that needs to be vouchsafed and protected less our criminal justice system falls into disrepute.  The Constitutional Court warned against delay undermining the presumption of innocence and serving as extra-curial punishment.

25.	In the third place, what militates against the effective implementation and realisation of the right to a fair trial is the lack of resources.  In our young democracy there are competing demands for resources and the constraints placed on such resources cannot be ignored. On the other hand there is a Constitutional duty on the State to ensure that sufficient resources are placed at the disposal of those agencies that are involved in the delivery of justice, less the right to a fair trial becomes   meaningless, illusory and is condemned as a paper right.  The  
            workload and the state of the rolls of the Regional Court, because of the lack of 
            resources, are graphically illustrated in a recent appeal that came before me and  
            which does not appear to be an isolated case.  Adv van Wyk informed the court that since the Regional Court magistrates have taken over control and management of the rolls and cases, there appears to have been an improvement in the time taken to commence and conclude trials in the Regional Court.  This was reported in a recent news article that appeared in The Sunday Argus of 29 July 2007 which is headed:  “Wheels of Justice are Turning a Lot Faster”.

	The appellants’ attack was essentially concentrated on the systemic failure of the 
            criminal justice system to ensure them a speedy trial.  Adv Caiger submitted on 
            their   behalf,  that   the  delay   with  which  their  case  has  been  finalised,  is  
            unreasonable and the length of the delay in itself constitutes prejudice. He argued that the pre-trial and pre-conviction prejudice cannot be vitiated by the fact the appellants were ultimately convicted of serious offences and sentenced to long term imprisonment.  Adv Van Wyk for the State, on the other hand, contended that the delays were predominantly caused by the appellants and their legal representatives and not so much by systemic failures pointing to State action or non-action. I will examine these contentions. The proceedings from the first appearance of the appellants in the District Court to the sentence in the High court endured for 1953 days. The benchmark average for the same scenario is 1132 days and varies from case to case between a maximum of 3098 days and a minimum of 165 days. The delay in this matter gravitates at the upper end of the scale.  On the face of it, it appears that such delay was unreasonable.

27.	  I shall assume, without making a formal finding, that such period was unreasonable on the facts and circumstances of this particular case.  For a violation of appellants’ right to a speedy trial to have occurred, the appellants ought to show that they have suffered prejudice.  Kriegler J In Sanderson (supra) para [30]  postulated the following approach to establish prejudice: 
 “ …The courts will apply their experience of how the lapse of time generally affects the liberty, security and trial-related interests that concern us.  Of the three forms of prejudice, the trial- related variety is possibly hardest to establish, and here as in the case of other forms of prejudice, trial courts will have to draw sensible inferences from the evidence.  By and large, it seems a fair although tentative generalisation that the lapse of time heightens the various kinds of prejudice that s 25(3)(a) seeks to diminish.”

Remedies
28.	Before dealing with the question of prejudice, I shall first discuss the remedies available to them if their rights have been violated.  For our present purposes, these rights comprise two elements, the first is the constitutional right to a fair trial and the second is the statutory right for proceedings in the Regional Court to be conducted in accordance with justice.  These two rights can overlap.  The remedies for the violation of the constitutional rights are to be found in s 38 of the Constitution.  The remedies for the statutory violations are to be found in s 52A(3)(e) of the Act.  Section 342A(3) of the Criminal Procedure Act, provides for certain remedies but such remedies are essentially designed to complete pending proceedings rather than their termination.  These are not applicable in the present instance, as the proceedings have been completed.  It is common cause that the s 342A(3) remedies were not utilised in these proceedings.

29.	The remedies provided for in s 52A(3)(e) of the Act, are to confirm, alter or quash the conviction, set aside the conviction, remit the case to the Regional Court to deal with the matter in terms of its instructions, or convict the accused on an alternative charge, or make such order as would promote the ends of justice. The remedies provided for in s 38 of the Constitution are to grant appropriate relief.  What constitutes appropriate relief has been elaborated upon by our courts.  The Constitutional Court in expanding on “appropriate relief” in terms of s 7(4)(a) of the interim Constitution, which was the precursor to s 38 of the present Constitution,  said that it constituted such relief that would protect and enforce the Constitution. The appellants have not suggested what would be an appropriate relief or a legal redress in this matter.  They left it to the court to decide.  Although Adv Caiger was critical of the evaluation of the evidence by the Regional Magistrate, he did not challenge the conviction per se.  He conceded that the findings and conclusion of the magistrate were correct.

30.	The Constitutional Court, in leaving open the question of whether the right to a 
            speedy trial also applied to appeals, went on to say that the reversal of the 
            conviction or the reduction of the sentence properly imposed by the trial court, could not be regarded as an appropriate relief for the delay in the hearing of an appeal which proved to be unsuccessful.  The Constitutional Bench of the Supreme Court of India in a dictum said that nothing prevents a court to quash the charges or conviction or reduce the sentence, as the case might be, where it comes to the conclusion that the right of an accused to a speedy trial has been infringed. However, it admonished that the nature of the offence and other circumstances, in a given case, may be such that such relief may not be in the interest of justice and in such instance it is open to the court to make such other appropriate order.  One must at all times bear in mind that there should be proportionality between the sentence for the crime in question and the prejudice suffered by the accused.   In my view, the wide powers that are conferred on our courts by s 52A(3)(e) of the Act, s 342A(3) of the Criminal Procedure Act and s 38 of the Constitution,  make it possible for our courts to follow the approach adopted by the Constitutional Bench of the Indian Supreme Court subject to the 
            dictum of our Constitutional Court in the Pennington case referred to earlier.  

Prejudice
31.	I now return to the issue of prejudice.  Our courts, like other jurisdictions, have recognised three forms of prejudice that an accused person can potentially suffer   for the want of a speedy trial.  The first is loss of personal liberty resulting from detention or restrictive bail conditions;  the second is the impairment of personal security resulting from loss of reputation, social ostracism, loss of employment or income and the third is trial related prejudice, such as witnesses becoming unavailable, disappearing or dying, or memories of witnesses fading because of 
            the passage of time.  However, there may be instances where the delay may work for the benefit of the accused, for example, where critical witnesses for the State become unavailable for some reason or other.  

32.	The impairment of liberty and security in respect of the appellants is the inevitable consequence of being detained as an accused and charged for criminal offences.  Such impairment is potentially present, both in the pre-trial stage as well as the trial stage.  Despite the presumption of innocence, the impairment constitutes the harsh reality of the criminal justice system.  Such impairment is aggravated by the nature, gravity and complexity of the case.  However, the fact that the appellants were convicted, in my view, mitigated, to some extent, the prejudice they suffered by virtue of the unreasonable delay.  If they had been acquitted, the consequence of the prejudice they suffered during the proceedings, would have been compounded.  The appellants conceded that both the prosecution and the defence contributed to the delay and the prejudice resulting from the excessive delay is not readily quantifiable.

33.	Without demeaning the effects of non trial-related prejudice, the consequences of trial-related prejudice can assume greater significance as they impact directly on the question of a fair trial.  To minimise such prejudice, the lawgiver saw fit to arm our courts with powers set out in s 342A(3) of the Criminal Procedure Act.  In this matter, no evidence has been placed before us that the appellants suffered any trial-related prejudice arising from the delay.  From the record it does not appear that potential witnesses were unavailable, had disappeared, had died or that the memories of the witnesses had faded with the passage of time.  Nor can such inferences be drawn from the evidence appearing on the record.  The appellants have also not pointed out any trial-related prejudice. In the light of the circumstances, I conclude that the appellants have not suffered any trial-related prejudice.

34.	What remains to be decided is whether appellants suffered prejudice in respect of the impairment of their personal liberty and security because of the delay. Appellants submitted that the length of the delay itself constituted prejudice.  The presiding officer in the High Court, who confirmed the conviction and sentenced the appellants, was alive to the delay of the proceedings in the District and Regional Courts.  Ndita AJ found that the delays experienced by the appellants were unacceptable and constituted, together with other factors, substantial and compelling circumstances.  Whether the Act in the first place applied to the appellants, have not been raised either in the court a quo or on appeal.  The charge sheet does not specifically mention that the charges fall within the ambit of 
            ss 51 and 52 of the Act.  According to the record, no mention thereof is made during the plea stage in the Regional Court.  However, when they appeared in the Regional Court on 12 March 2002, first and third appellants indicated that they intended conducting their own defence. The Regional Magistrate brought to the attention of the appellants the seriousness of the charges and, if convicted, they are liable to be sentenced to life imprisonment.  On 30 July 2002 when they 
             appeared again in the Regional Court, they were again warned that the minimum sentence of life imprisonment could be imposed if they were found guilty of the rape charges.  First and third appellants changed their minds and decided to seek legal representation. 

Findings
35.	I am accordingly satisfied that the appellants were aware of the fact that the prescribed minimum sentence applied to the rape charges and their right to a fair trial has not been infringed.  Even if they were not aware of it, I am of the opinion that they have not suffered any prejudice as the High Court did not impose the minimum prescribed penalty.  Whatever prejudice first appellant may have suffered, by virtue of the fact that the court a quo had failed to exercise its discretion in terms of s 51(3)(b) of the Act, has been factored into his sentence that has been imposed anew.  This will emerge when I deal with the question of sentence.  I accordingly conclude that in the final analysis, the appellants suffered no prejudice in relation to their personal liberty and security.  In considering all  the attendant factors and circumstances, including the right of  the appellants to a speedy trial and societal interest in ensuring that persons who are guilty of crimes should be convicted and sentenced, I conclude, firstly, that there has been no breach of appellants’ right to a fair trial, including the right to have their trial begin and conclude without unreasonable delay and, secondly, that the proceedings in the Regional Court were in accordance with justice and there was no miscarriage of justice or failure of justice.
Sentence
39.	  I now consider the appeal in respect of the sentences.  The grounds, upon which the appellants relied to challenge the sentences, were that the court a quo had failed to give sufficient weight to the fact firstly, that first appellant was a child, 
            namely 16 years old and a first offender, when he committed the offences; secondly, that in respect of all the accused, the serious infringement of their right to a speedy trial resulted in them being held in custody, in excess of five years and thirdly, that the State failed to tender evidence of the effects of the offences on the complainants.  It was submitted that such failure and omission resulted in the imposition of disproportionate and/or severe sentences.

40.	 It is a trite principle of our law that an appeal court will not lightly interfere with the sentencing discretion of the trial court unless it has failed to exercise such discretion properly or misdirected itself in certain material respects.   Sections 51 
            and 52 of the Act have created three classes of accused and have differentiated between those classes insofar as the nature and extent of the application of those 
            sections are concerned.  The first class of accused is that of accused persons under the age of 16 years at the time of the commission of the offence and the said provisions are not applicable to such class.  The second class is that of accused persons between the ages of 16 and 18 years at the time of the commission of the offence and, in respect of such class, the court is given discretion in making the said provisions applicable.  Should the court decide to make them applicable, it shall endorse on the record the reasons for imposing the minimum prescribed sentence.  The third class is that of accused persons above the age of 18 years at the time of the commission of the offence and, in respect of that class, the said provisions are applicable. 

41.	 The first appellant at the time of the commission of the offences was 16 years old and fell into the second class.  There is nothing in the judgment on sentence to indicate that the court a quo had exercised its discretion in terms of ss 3(b) of s 51 of the Act.  The court treated the first appellant in the same manner as the second and third appellants and also found in his case substantial and compelling circumstances to depart from the prescribed minimum sentence of life imprisonment.  In that respect, I am of the view, the court a quo misdirected itself on the facts and the law.   We are, therefore, at large to impose sentence afresh in respect of the first appellant. 

42.	 Second and third appellants fell within the third class and as such the said provisions of the Act applied.  The court a quo found substantial and compelling circumstances present in their case, which entitled the court to depart from the imposition of the prescribed minimum sentence.  In my view there is no merit in the grounds of appeal in respect of second and third appellants.  There has been no misdirection in the imposition of sentences in respect of them, nor have they suffered any prejudice and, in the circumstances, there is no reason for us to interfere with the sentences imposed on them by the court a quo.   

43.	  I now proceed to consider an appropriate sentence for the first appellant.  Six 
            weeks prior to the incident, the appellant had turned 16 years of age.  He was only a child although he acted like an adult.  It happens not infrequently that young children, when being involved in crime, act with a degree of bravado to impress their peers.  They lack the level of maturity to play a leading role in the commission of crime. They succumb to the influence of the older co-perpetrators whom they regard as their peers and whom they try to emulate.  First appellant was a first offender.  He was the youngest of all the co-accused.  One of the co-perpetrators was 23 years old at the time of the commission of the offences.  He was a seasoned criminal with a number of serious previous convictions.  The probability that he could have influenced first appellant, cannot be excluded.

44.        First appellant comes from a dysfunctional family.  As a child he was exposed to an unstable family background and adverse social circumstances.  He grew up in a home where liquor was abused.  It appears that very little control was exercised 
            over him.  According to the pre-sentencing report, first appellant was not a member 
            of a gang before his incarceration but became a member of the gang known as the 28’s in prison.  The fact that such association could be a matter of survival within 
            the prison environment for first appellant, cannot be excluded. 

45.	 On the other hand the seriousness of the offences cannot be underplayed.  The victims were subjected to the most inhuman criminal treatment.  The court a quo made the following observation:
“It is common cause that you have been convicted of very serious offences – rape and indecent assault and housebreaking. You took turns and brutally raped the two complainants. You sodomised, terrorised and threatened them.  I find it hard to imagine how human beings can behave in such a dehumanising manner towards other fellow human beings.”
            Counsel for the appellants conceded that “the two sisters underwent a terrible ordeal by being serially raped and sodomised by five of the six accused”.

46.	 It is my considered view that a distinction should be made between the sentence of first appellant and that of the other appellants and co-accused.  Our courts have repeatedly warned that youthful offenders should not be sacrificed at the altar of deterrence.  In the light of all the circumstances, it is my opinion, that an effective sentence of 16 years imprisonment for first appellant would be an appropriate sentence.  Counts 1, 2, 3 and 4 should, accordingly, be taken as one for the purpose of sentence and 16 years imprisonment should be imposed.  The sentence in respect of count 5 should remain unchanged, namely, one year imprisonment which should run concurrently with the sentence imposed in respect of the other counts.

Conclusion
47.	In my view, the appeal of all the appellants in respect of the conviction should fail and the conviction ought to be confirmed.  The appeal on sentence in respect of second and third appellants should fail and their sentences ought to be confirmed. The appeal on sentence of first appellant in respect of counts 1, 2, 3 and 4 should succeed and the total period of 20 years imprisonment ought to be substituted by 16 years imprisonment.  The sentence in respect of count 5 should be confirmed on the same terms.  His sentence is, therefore, effectively reduced from 20 (twenty) years to 16 (sixteen) years imprisonment.

									…………………………..
									          E  MOOSA
                                                                                                   Judge of the High Court

Griesel J:
I have had the advantage of reading in draft the thorough judgment prepared by my Brother Moosa. I agree with his conclusions and the order proposed by him. Subject to two qualifications, I also agree with his reasoning. 
First, I do not find it necessary, for purposes of deciding this appeal, to examine or make any finding with regard to any further delays that occurred subsequent to the appellants’ conviction in the regional court. The issue of delay and the right to a speedy trial arose in the context of an enquiry by the court a quo in terms of s 52A(3)(b) of the Criminal Law Amendment Act, 1997. It was in that context that counsel for the appellants urged the court to make a finding that the proceedings in the regional court were not in accordance with justice by reason of undue delay. This contention was rejected by Ndita AJ and it is this finding that is being assailed before us on appeal. I respectfully disagree, therefore, that the ‘second phase’ of trial related delay (or ‘third phase’ of overall delay) referred to by my learned colleague is relevant to the present enquiry. For the same reason, I also disagree that the question posed by my colleague is the appropriate one. The true issue, as defined by the notice of appeal, is a much narrower one. With regard to that issue, however, I am in full agreement with my colleague’s analysis and his conclusions. 
Secondly, I would be loath to elevate to a ‘benchmark’ the average periods taken for criminal cases to reach finality. It is a sad indictment of our criminal justice system that it takes more than 3½ years (1 330 days) from the date of commission of the offence for an ‘average’ criminal case to reach the stage of sentence in the High Court. In my view, these averages reflect a state of affairs which we, as guardians of the Constitution, cannot quietly condone, let alone accept as the norm or ‘benchmark’ by which unreasonable delay is to be measured. 
In the instant matter, it took more than five years from the date of the arrest of the appellants to the date of sentence in the High Court. (The fact that it took a further two years from the date of sentence for this appeal to reach this court is itself further cause for concern.) Although this overall period is wholly unreasonable, I agree with my colleague that this has not, in the present instance, resulted in a breach of the appellants’ right to a fair trial.
By way of a final observation, it is reassuring to note that the systemic and institutional problems experienced by the criminal justice system are receiving attention at a high level. Thus, the recent announcement of a multi-departmental campaign to update and streamline the criminal justice system is to be welcomed. 
Order
In all the circumstances, an order is granted in the following terms:
(a)	The appeals of all three appellants against their convictions are dismissed. 
(b)	The appeals by the second and third appellants against their sentences are dismissed. 
(c)	The appeal by the first appellant against the sentences imposed in respect of counts 1, 2, 3 and 4 succeeds to the extent that the period of 20 years is substituted by a period of 16 years imprisonment. 

	B M Griesel
Judge of the High Court
Motala J: I agree. 
		
	A M Motala
Judge of the High Court