STAY OF PROSECUTION PENDING DECISION ON CONSTITUTIONALITY

AUSTIN v MINISTER OF JUSTICE AND OTHERS 2018 (2) SACR 49 (ECG)

 

Trial — Stay of prosecution — Temporary stay — Application for — Pending decision of Constitutional Court on constitutionality of various provisions of statutes impacting on present cases — In interests of justice to grant stay.

 

The applicants, who had been charged in separate cases in a magistrates’ court with dealing in cannabis, applied for orders staying the proceedings against them, pending their institution of applications challenging the constitutionality of certain provisions of the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965, relating to the use, possession and dealing in cannabis, and the various presumptions in respect thereof. The application was made on the basis of another case in another division in which certain provisions of the same Acts had been declared unconstitutional and that the final outcome of that case, which was on appeal to the Constitutional Court, would have an impact on their cases. It appeared that other divisions of the High Court had made similar orders, pending the decision in the Constitutional Court.

Held, that the granting of a stay in any court proceedings was not a right, but a matter of discretion exercised by the court, based on individual circumstances and the merits of a case. The granting of a stay by a single judge in one division could not and did not establish a precedent binding on all other divisions. Such stays were, however, persuasive on similar facts to the present matters. It would be wasteful of costs affecting the public purse, and contrary to the interests of justice, were the prosecution to proceed in the present matters, pending the outcome of the Constitutional Court matter. In the circumstances a stay was justified. (See [15] – [17].) The court accordingly granted an order in the terms sought.

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