GEORGE NEWS - The family of Nicky van Heerden (54), who was murdered in January, is concerned by the delays in finalising the investigation into her death, fearing that the case could ultimately be jeopardised if it continues to drag on. The accused, Bevan van Druten (53) is due back in the Plettenberg Bay Magistrate’s Court again on 17 August.

The matter was postponed on 24 June to next Monday for further investigation as cellphone data was still outstanding. At that time the court directed that it is to be a final postponement for further investigation.

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

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

What the law says about lengthy delays

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, the responsibility for it, its effect on the accused and the witnesses, the complexity of the matter, possible prejudice to evidence, and the interests of the public and victims if the prosecution were stopped.

Section 342A does not automatically end a case

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.

A family photo. Front, left to right: Gert, Lottie and Jaco van Heerden. Back, left to right: Nicky van Heerden and Marlisa Bruwer (Nicky van Heerden’s sister). Photo: Supplied

Family seeks better communication

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

However, the change in court date occurred against the backdrop of the severe storms that resulted in the Garden Route courts being closed and the matters having to be postponed in the absence of the parties. The matter had subsequently been incorrectly set down for a Sunday, 5 July, and was called on the earlier date of 24 June 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 they are notified of every future remand date and of any application that could affect the progress of the case. They said this is not intended as criticism of any individual or of the court, but as a request for a more consistent communication arrangement.

NPA asked to respond

Right of reply: George Herald sought comment from the National Prosecuting Authority on the progress of the case and the communication with the family, including whether a standing arrangement for future court dates and significant developments could be facilitated. Any responses received after the press deadline will be considered for the online version.

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