The family of Nicky van Heerden (54), who was killed in January, fears ongoing delays in finalising the investigation could affect the progress of the case.

The accused, Bevan van Druten (53), is due back in the Plettenberg Bay Magistrate’s Court on Monday, August 17, reports George Herald.

The matter was postponed on June 24 for further investigation because cellphone data was still outstanding. At the time, the court directed that the postponement was to be the final one.

Van Druten’s attorney, Peter Daubermann, previously said that, by agreement between the parties, the court ordered the state to provide the defence with a copy of the police docket on August 17.

Legal framework on delays

The court has previously questioned why the investigation is taking so long, bringing the issue of lengthy delays in criminal cases into the spotlight and highlighting an important but often misunderstood aspect of South Africa’s criminal justice procedure: what happens when a criminal case appears to be taking too long to progress?

Section 342A explained

Attorney Werner Smit of Mosdell, Pama and Cox Attorneys is advising the family as the court proceedings unfold.

Smit notes that the magistrate’s questioning of the delay could potentially relate to Section 342A of the Criminal Procedure Act 51 of 1977, which deals with unreasonable delays in criminal trials. However, he cautions that referring specifically to Section 342A at this stage might be premature.

Section 342A requires a court to investigate a delay that appears unreasonable and could cause substantial prejudice. The enquiry can be initiated by the court itself and does not require an application from either the state or the defence.

In determining whether a delay is unreasonable, the court must consider factors such as the length and reasons for the delay, responsibility for it, its effect on the accused and witnesses, the complexity of the matter, possible prejudice to evidence, and the interests of the public and victims if the prosecution were stopped.

Impact of unreasonable delay

Importantly, a finding of unreasonable delay does not automatically mean that a criminal case is terminated.

Depending on the circumstances, the court may refuse a further postponement, impose conditions or, under certain circumstances, strike the matter from the roll.

Striking a matter from the roll is not an acquittal and does not permanently prevent the prosecution from being revived.

“At this stage, the magistrate’s questioning of the delay should therefore not be interpreted as a finding that the proceedings have been unreasonably delayed under Section 342A. Rather, it highlights the court’s ability to scrutinise delays as the matter progresses,” says Smit.

Communication concerns

Van Heerden’s family has also raised concerns about the length of the investigation and about not being informed that an appearance initially set for July 5 had been brought forward to June 24.

However, the change in court date occurred against the backdrop of severe storms that resulted in the closure of courts in the Garden Route, with matters having to be postponed in the absence of the parties.

The matter was subsequently incorrectly set down for Sunday, July 5, and was called on the earlier date of June 24 to correct the scheduling issue.

“Court dates can change, sometimes at short notice and for reasons outside anyone’s control. Once a date is changed in circumstances such as these, however, there is not necessarily an automatic mechanism to ensure that a family who has attended previous appearances is notified of the revised date,” says Smit.

The family said it would welcome a standing arrangement with the prosecution under which it is notified of every future remand date and any application that could affect the progress of the case.

The family said this was not intended as criticism of any individual or the court, but rather as a request for a more consistent communication arrangement.

Response pending

The George Herald sought comment from the National Prosecuting Authority on the progress of the case and communication with the family, including whether a standing arrangement for future court dates and significant developments could be facilitated.

The report will be updated as soon as comment is received.

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