Judgment No. CCZ 9/14 8 Const. Application No. CCZ 276/12 REASONS FOR THE DELAY Section 18 (2) of the Constitution reads; “If any person is charged with a criminal offence, then, unless the charge is withdrawn, he shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.” Under the section any person facing criminal charges is afforded the following; (a) The right to a fair trial. (b) The right to be tried within a reasonable time. (c) The right to be tried by an independent and impartial court. The applicants contend that the first two of these fundamental rights have been violated. The law is now settled that it is the applicants that bear the onus to establish that the delay was unreasonable. In Re Mlambo (supra) it was held:1 “It is for the person charged to persuade the court that the delay complained of exceeds what is reasonable. See Fikilini v Attorney-General (supra) at 117D-E. The degree of persuasion required of him is to show that the delay is prima facie unreasonable, or in the words of POWELL J in Barker v Wingo (supra) at 530, “presumptively prejudicial”. It is that which triggers the enquiry into the other factors that go into the balance. It is the threshold at which the court may look to the State for an explanation. It is, of course, neither possible nor desirable to identify precisely the length of delay which will trigger an enquiry. Each case is to be viewed in the light of its own particular circumstances in order to determine whether the delay is prima facie unreasonable.” It is contended by the applicants that the length of the delay in this case is more than sufficient for this Court to find that the delay is prima facie unreasonable. The State is in agreement that the period is lengthy. It is, however, contended by the State that in the circumstances of the case the delay is not at all unreasonable. 1 At p 353A-C