The Applicant seeks a permanent stay of prosecution with respect to a charge of murder and another charge. The Applicant alleges that he has suffered a delay in respect of the prosecution which results in an infringement of his right to fair trial in terms of section 35(3) of the Constitution, 1996. The charge of murder relates to the death of Mr Ahmed Timol, an anti-apartheid activist who died on or about 27 October 1971. This case comes before the courts after the reopening of an inquest in 2017 (2017 Inquest) conducted in 1972 following Mr Timol’s death (First Inquest) which found that Mr Timol had committed suicide and no one alive was responsible for Mr Timol’s death. The 2017 Inquest however found that Mr Timol was murdered.
The court discussed the factors to consider for a permanent stay of prosecution namely the length of the delay, the reasons the government relies on to justify the delay, the accused’s assertion of a right to a speedy trial, prejudice to the accused, nature of the offence and public consideration. The court also added a new factor, namely, the interest of the family or victims of the crime.
The applicant alleged that he suffers memory loss as a result of his age and therefore will be prejudiced. The court provided that age and infirmity are considered at sentencing or prior to the trial. The court held that there is no prejudice to the accused as there is no evidence to prove that poor memory will taint the fairness of the trial as the State carries the burden of proving guilt beyond reasonable doubt.