S v Zuma and Another (CCD30/2018P) [2022] ZAKZPHC 5; [2022] 2 All SA 499 (KZP); 2022 (2) SACR 378 (KZP) (16 February 2022)

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[2022] ZAKZPHC 5
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S v Zuma and Another (CCD30/2018P) [2022] ZAKZPHC 5; [2022] 2 All SA 499 (KZP); 2022 (2) SACR 378 (KZP) (16 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: CCD30/2018P
In
the matter between:
THE
STATE
and
JACOB
GEDLEYIHLEKISA
ZUMA

FIRST ACCUSED
THALES
SOUTH AFRICA (PTY) LIMITED

SECOND ACCUSED
Coram:
Koen J
Heard:
31 January 2022
Delivered:
16 February 2022
ORDER
1.
T
he
application for leave to appeal and all related applications, which
include the application to adduce further evidence on appeal
in terms
of
section 316(5)(a)
of the
Criminal Procedure Act 1977
, the
application for leave to appeal to the Supreme Court of Appeal on the
grounds of
section 317
of the
Criminal Procedure Act 1977
and/or for
a special entry of an irregularity or illegality to be made on the
record, and the application for leave to appeal to
the Supreme Court
of Appeal on the grounds of
section 319
of the
Criminal Procedure Act
1977
and/or for the reservation of questions of law for consideration
by the SCA, are all dismissed.
2.
The
criminal trial shall proceed during the second and third terms of the
2022 court calendar of this court, where it has been set
down, as
previously agreed by all the parties, commencing at 10h00 on 11 April
2022, being the date to which the trial was adjourned
on 26 October
2021.
JUDGMENT
Koen
J
Introduction
[1]
The
proceedings giving rise to this judgment commenced with an
application for leave to appeal against my judgment of 26 October

2021 (the main judgment),
[1]
dismissing the plea in
terms of
section 106(1)
(h)
(the
special plea), read with section 106(4) of the Criminal Procedure Act
51 of 1977 (the CPA), which had been entered by the first
accused, Mr
Zuma.
[2]
Sub-joined
to the end of the written application for leave to appeal, and
incorporated therein, was also an application ‘for
further
evidence in terms of section 316(5)’ of the CPA (the
application for further evidence). Annexed to this composite
document
was an affidavit, termed ‘Founding affidavit’ deposed to
by Mr Zuma’s attorney, Mr Thusini, ‘in
support as per
Section 316(5)(b).’
[3]
The State
filed an answering affidavit by Mr Downer, titled ‘The State’s
Answering affidavit: The First Accused’s
application for leave
to appeal & Application to adduce further evidence on appeal’,
on 10 December 2021. In response
thereto, two replying affidavits,
both deposed to on 12 January 2022 were filed on 13 January 2022. One
is by Mr Zuma’s attorney,
Mr Thusini, titled ‘Separate
Replying affidavit in the Application to Adduce Further evidence on
appeal’.  The
second replying affidavit is by Mr Zuma and
is titled ‘Mr Zuma’s Replying affidavit in the
application for leave to
appeal (as directed by the presiding
judge)’. The latter replying affidavit incorporates, from
paragraphs 22 to 32, a ‘Conditional
Counter Application’
claiming, at the end thereof, that ‘in addition and/or
alternatively to the section 316 grounds,
leave to appeal to the
Supreme Court of Appeal ought to be granted on the grounds of section
319 and/or section 317 of the CPA’.
[4]
In
considering the issues arising for determination in this judgment, I
shall follow the categorization below as the most convenient:
(a)
The alleged irregular procedure I had adopted in fixing dates for the
exchange of affidavits;
(b)
The alleged conflict of interest on the part of Mr Downer, as
deponent to the answering
affidavit;
(c)
The appealability of the main judgment at this stage of the
proceedings;
(d)
The merits of the application for leave to appeal;
(e)
Whether the adjudication of the special plea should have taken the
form of a trial;
(f)
The application in terms of s 316(5) of the CPA for further evidence
to be led in the prospective
appeal;
(g)
The relief sought on the grounds of s 317 of the CPA; and
(h)
The relief sought on the grounds of s 319 of the CPA.
Before dealing with the
aforesaid
seriatim
,
it is necessary, very briefly, to re-state the fundamental findings
and basis of the main judgment, particularly as they are decisive
of
a number of the issues arising in this judgment, and set the tone for
this judgment.
Fundamental
findings in the main judgment
[5]
These are
recounted in the briefest terms by way of introduction. They have
been explained in detail in the main judgment.
[6]
What was
before this court to decide was only the special plea raised by Mr
Zuma, nothing else, and in particular, not an application
to have Mr
Downer removed as the prosecutor. That was unequivocally clear from
the terms of the written plea, and the heading to
the affidavit filed
in support thereof. It was also confirmed upon specific enquiry by me
with both senior counsel for Mr Zuma,
that is Mr Masuku SC, initially
when the matter first came before me on 17 May 2021, and by Mr Mpofu
SC, when he first appeared
on 26 May 2021.
[7]
The trial
before this court formally commenced when the pleas by Mr Zuma and
accused two, Thales South Africa (Pty) Limited (Thales),
were entered
on 26 May 2021. Both accused are entitled in terms of s 35(3)
(d)
of the Constitution to have their trial begin and conclude without
unreasonable delay. The State, representing the general public,
also
has the right, in the greater interest of the administration of
justice, that criminal trials begin and conclude without unreasonable

delay.
[8]
I
am enjoined, inter alia by the decision of the SCA in
NDPP
v Zuma (Mbeki and another intervening),
[2]
to which I am bound, to
confine my judgment to the issues before the court, that is the
special plea only, and ‘no other issues
or . . . matters that
were not germane or relevant; by creating new factual issues; by
making gratuitous findings against persons
who were not called upon
to defend themselves; [and] by failing to distinguish between
allegation, fact and suspicion . . .’,
[3]
regardless of how
attractive it might be to Mr Zuma to want to deal with any other
possible causes of action that are not before
this court. The main
judgment was accordingly confined to the adjudication of the special
plea.
[9]
The
primary issue, more specifically, was not whether Mr Zuma’s
complaints might possibly require or justify the removal of
Mr Downer
as prosecutor, but whether they, assuming that they were established,
would result in Mr Downer lacking the ‘title
to prosecute’
as contemplated in s 106(1)
(h)
of the
CPA.
[10]
That
enquiry depended on the meaning to be assigned to the words, ‘that
the prosecutor has no title to prosecute’ in
s 106(1)
(h)
of the CPA.
[11]
That
‘prosecutor’ refers to the person prosecuting, and not
the State, has been the law binding on this court
[4]
since at least
Ndluli
v Wilken NO.
[5]
No doubt arises in that
regard.
[12]
As to what
is meant by ‘title’, was decided authoritatively in
Porritt
and another v NDPP and others
.
[6]
The
ratio
decidendi
in
Porritt
is clear. Complaints of an alleged lack of impartiality, or of bias
on the part of a prosecutor, as in
Porritt,
might, allowing that prosecutors have to advance the State’s
case and can therefore never be totally impartial, might in

exceptional instances possibly impair the fair trial rights of an
accused. But they do not affect the prosecutor’s title
to
prosecute. That does not mean that a prosecutor can never be removed,
but such relief is to be claimed in a separate substantive

application;
[7]
not pursuant to s
106(1)
(h)
of the CPA.
[8]
A number of alternative
satisfactory remedies exist in our law for an accused if his fair
trial rights are infringed. But they do
not include success with a
special plea under the rubric of s 106(1)
(h)
of the CPA
[13]
Both
Ndluli
and
Porritt
are
decisions of the SCA and accordingly binding on this court, even if
wrongly decided, which I am not persuaded they were. Accordingly,

those decisions were dispositive of the special plea. They are also
dispositive of the prospects of success of the application
for leave
to appeal, and also some of the other applications pursued in
conjunction with, and some conditionally in the alternative,
to Mr
Zuma’s application for leave to appeal.
Alleged irregular
procedure in fixing dates for the exchange of affidavits
[14]
In
paragraphs 5 to 9 of his replying affidavit, Mr Zuma contends that I
directed that the State was to deliver an answering affidavit,
and he
a replying affidavit, in the application for leave to appeal, and
that by doing so, this court adopted, in his words, a
‘very
problematic and potentially irregular procedure’, because no
law or procedural rule entitles the parties to deliver
such
affidavits.
[15]
This
allegation is factually incorrect for reasons which I shall set out
below. It is also legally irrelevant, as the fixing of
dates for the
exchange of affidavits had no impact on whether the main judgment was
correct or wrong. It only arose after the main
judgment had been
delivered and cannot conceivably, even if it amounted to an
irregularity, taint the main judgment.
[16]
As regards
the factual incorrectness of what is alleged, Mr Zuma failed to deal
with the correspondence that was exchanged between
myself, the state,
his attorney and the attorney for Thales, to establish a date for the
hearing of the application for leave to
appeal and the application
for further evidence, and to fix dates for the exchange of affidavits
in the application for further
evidence, to ensure the expeditious
disposal of that application. It is unfortunate that the allegation
of an irregularity is made
in the replying affidavit of Mr Zuma, and
not in the evenly dated replying affidavit of Mr Thusini. Mr Thusini
was the recipient
of all the correspondence, and my directive
relating to the exchange of answering and replying affidavits, which
Mr Zuma complains
of. He would then have addressed the context, being
the chronology of correspondence, in which the fixing of the dates
for the
filing of the affidavits occurred. That, with respect, is
what is required before an allegation of an irregularity is made
against
a judicial officer. It would then have been apparent
immediately that the accusation of an irregularity was unsustainable.
Regrettably,
that was not done. Accordingly, a substantial part of
this judgment will have to be devoted to setting out the contents of
the
correspondence that was exchanged, in some detail, adding
unfortunately to the length of this judgment.
[17]
The factual
position is as follows. After the application for leave to appeal was
filed on 10 November 2021, mindful of avoiding
any unreasonable
delays, I addressed a letter per email to all the parties
[9]
on that very same date,
referring to the application for leave to appeal and stating in the
second paragraph thereof:
‘
The
parties are invited please to nominate two alternative and earliest
dates (preferably not in the same calendar week) suitable
to lead
counsel who will appear in the application, for the determination
thereof. I shall endeavour to make myself available for
one of the
dates.
Please
could I hear from you by return.’
[18]
Mr Downer,
for the State, responded by email on 11 November 2021 indicating that
he would ‘revert as soon as possible once
counsel have agreed
on the dates . . .’’ He included the following message
which he had addressed to Mr Thusini on
the same date which stated:
‘
Counsel
for the State and counsel for Accused 2, Thales, are available for
the hearing of the application for leave to appeal on
any date
between 15 November and 3 December 2021, except 24 November.
May
I suggest that you provide Ms Griffin
[10]
with two dates on which your counsel are available between 15
November and 3 December,
[11]
except 24 November, on copy to me.’
[19]
The email
reply from Mr Thusini on 14 November 2021, as subsequently corrected
for a typographical error,
[12]
was:
‘
I
have consulted with our lead Counsels in the matter.
They
are only available to argue the application for leave to appeal as
from the 1
st
week of February [2022].’
[20]
Mr Downer
responded per email on 14 November 2021 at 8.10 pm recording the
attitude of the State that Mr Zuma need not be present
for the
hearing of the application for leave to appeal; that the hearing be
held on an online platform; that as is customary in
applications of
this nature, two hours would be more than sufficient for the hearing,
suggesting 40 minutes each for the main addresses
on behalf of Mr
Zuma and the State, 20 minutes for the reply on behalf of Mr Zuma and
20 minutes for contingencies; that as regards
the proposed hearing
date, the State believed that, ‘if practically possible, the
application should be heard before the
end of this term’, and
enquiring whether counsel for Mr Zuma would be available for a two
hour online hearing any day except
24 November 2021, between Monday,
22 November and Friday, 3 December 2021. His email importantly
concluded:
‘
If
so, the State will deliver its
answering
papers
in Mr Zuma’s
application in terms of
section 316(5)
of the
Criminal Procedure Act
and
its
heads of argument
on that application and the application for leave to appeal
by
close of business this coming Friday
,
19 November 2021
or close of
business five court days before the hearing date
,
whichever is the later.
We
look forward to your urgent response.’
(emphasis
added)
[21]
I replied
to the correspondence from the parties on Monday, 15 November 2021
expressing my concern at a two and a half month delay
if the
application for leave to appeal was only to be heard ‘as from
the first week of February 2022’, enquiring whether
the hearing
could be held on an online platform, and suggesting time limits for
argument, and urging counsel ‘please to find
a date for the
application to be heard before the end of the year’.
[22]
Mr Thusini
responded by letter six days later on 21 November 2021 reaffirming
that ‘both our Senior Counsel are unavailable
to argue the
application for leave to appeal this year as they are in different
matters requiring virtual and physical hearings
until the end of the
term’; that Mr Zuma required ‘a physical appearance and
hearing is his preferred mode, depending
of course on the date and
his health condition’, and that he wished ‘his current
Senior Counsel to continue representing
him in his trial of the plea
and would be seriously prejudiced should hearing be insisted upon in
his Counsel’s absence’.
He concluded with a ‘request
for a direction to the effect that the parties should agree on any
date from 31 January 2022
onwards, always subject to the approval
thereof by the court’.
[23]
In his
reply, Mr Downer shared the concern about the further delay if the
application for leave to appeal was only to be heard on
or after 31
January 2022; that ‘given Mr Zuma’s very full application
for leave to appeal, there would be no need for
his counsel to
prepare and deliver full heads of argument as well’, and that
’
[t]he
State submits that a fair pre-hearing procedure would be for it to
deliver its answering papers in Mr Zuma’s application
in terms
of
section 316(5)
of the
Criminal Procedure Act and
its heads of
argument on that application and the application for leave to appeal,
and for Mr Zuma then to deliver his replying
affidavit in the
application in terms of
section 316(5)
and his counsel’s heads
of argument in reply in both applications.’
It
continued:
‘
if
that is done, the oral hearing of the application will assume less
importance than would be the case if there were no answering
and
replying heads of argument.’
And
further:
‘
The
State further believes that if neither of Mr Zuma’s senior
counsel is available for a two hour virtual hearing this term,
one of
his junior counsel can and should present his side’s oral
argument on the application.’
And
finally concluded:
‘
The
State undertakes to deliver its answering papers in Mr Zuma’s
application in terms of
section 316(5)
and its heads of argument on
that application and the application for leave to appeal by close of
business
five court days
before the hearing date
.
If,
in the circumstances, the Court decides against directing the hearing
of Mr Zuma’s application for leave to appeal this
term, and
that it be heard on or after Monday, 31 January 2022 instead, then
the State request that the hearing date be any of
Monday 31 January,
Tuesday 1 February, Wednesday 2 February or Friday, 4 February 2022.’
(emphasis added)
[24]
My reply
dated 22 November 2021 is set out in full below:
‘
Mr
Thusini’s reply
[13]
to my letter of 15 November 2021 and Mr Downer’s response dated
22 November 2021 refer.
In
view of the further delays that have ensued, it regrettably has now
become impossible for me to accommodate the hearing of the

application for leave to appeal in the remainder of this term. That
is unfortunate.
The
application for leave to appeal shall be heard on Monday, 31 January
2022. It shall be heard in open court, whether with Mr
Zuma is
present or absent.
I
also fix the following dates:
(a)
The State must file its answering papers to Mr Zuma’s
application on or before
15 December 2021, and Mr Zuma’s
replying affidavit, if any, on or before 03 January 2022.
(b)
Mr Zuma must deliver his heads of argument on or before 17 January
2022 and the State
its heads on or before 26 January 2022.
In
their heads of argument counsel must please also address the issue
whether the order sought to be appealed, is appealable at
this stage
of the proceedings.’
[25]
The date
for the filing of the replying affidavit was subsequently, on the
written request of Mr Thusini on 2 December 2021 seeking
a further
indulgence, altered from 3 January 2022 to 12 January 2022, and the
date for the filing of his heads of argument altered
from 17 January
2022 to 19 January 2022. The other dates remained unaltered. In a
subsequent letter dated 20 January 2022, Mr Thusini
advised me that
Mr Zuma’s  heads of argument would not be filed on 19
January 2022, but only on Monday morning, 24 January
2022.
[26]
It will be
apparent from the above chronology, that the complaint of an
‘irregularity’ is factually flawed, unfounded,
and
possibly opportunistic. Patently, the fixing of the dates for the
exchange of an answering affidavit and a replying affidavit,
if
necessary, related to the exchange of affidavits to the founding
affidavit by Mr Thusini in the application for further evidence.
Mr
Downer had previously made the proposal in respect of that
application, being the application for further evidence, based on
it
and the application for leave to appeal still being heard during
2021, that the State would deliver ‘its answering papers
in Mr
Zuma’s application in terms of
section 316(5)
and its heads of
argument on that application and the application for leave to appeal
by close of business five court days before
the hearing date.’
When agreement on the date for the hearing during 2021 was not
forthcoming and I determined the date for
the hearing of the
application for leave to appeal and the application for further
evidence, by acceding to the request of Mr Thusini,
that both would
be heard on 31 January 2022, it was simply prudent for me to fix not
only the date by which the State should file
its answering affidavit
in the application for further evidence (previously suggested to be
five days before the hearing) to be
15 December 2021, but also to
provide for the filing of a replying affidavit, if any, just over two
weeks later by 3 January 2022
(which was later changed, as requested
by Mr Thusini, to 12 January 2022). That is what I did.
[27]
There was
no ‘founding affidavit’ in the papers, other than the
founding affidavit by Mr Thusini in support of the application
for
further evidence in terms of
s 316(5)
, to which an answering
affidavit could have been filed in the application for leave to
appeal. In the context of the correspondence,
the only application in
respect of which affidavits were required to be exchanged, was the
application to lead further evidence
on appeal. The only dates being
mooted for the filing and exchange of affidavits, were in relation to
the application to lead further
evidence on appeal.
[28]
The
directives in my letter of 22 November 2021 could only have related
to the dates for filing of answering papers and Mr Zuma’s

replying affidavit in ‘Mr Zuma’s application’ to
lead further evidence on appeal. My letter specifically referred
to
the ‘application’ (in the singular), in respect of which
such an exchange of affidavits was required. No dates for
the
exchange of affidavits were fixed in respect of the ‘application
s
’
(plural) i.e. to refer not only the application for further evidence
but also
to
include the application for leave to appeal. As already indicated,
there was no founding affidavit in the application for leave
to
appeal to which an answering affidavit, and a replying affidavit, if
any was required, could be filed. There could have been
no doubt to
any reasonable reader, in the context of that correspondence, that
the fixing of the dates for exchanging affidavits
related to the
application (singular noun) for further evidence only.
[29]
Mr Thusini
furthermore had unrestricted access to contact me to have the
directive clarified, if it required any clarification.
As indicated
above, he subsequently wrote to me to request extensions of the dates
fixed for the filing of a replying affidavit,
and for filing Mr
Zuma’s heads of argument, which indulgences were granted. The
fourth court term for 2021 ended on 3 December
2021, but I was on
recess duty thereafter from 6 December 2021 until 19 December 2021.
Mr Thusini has not shied away from addressing
correspondence to me
requesting indulgences in the past, and more recently, advising me
that agreement had been reached with the
State that Mr Zuma’s
heads of argument would be filed late on 24 January 2022. On 2
December 2021, I had received a request
from him for the dates for
filing of the replying affidavit and the heads of argument to be
altered to later dates, to suit Mr
Zuma. No enquiry was made or
objection raised regarding the affidavits to be filed in respect of
the ‘application’
(singular), because the application to
which the affidavits related, was clear in the context. Applications
for leave to appeal
are not determined on the contents and an
exchange of affidavits. If there was any doubt about what the dates
fixed for the exchange
of affidavits related to, or whether contrary
to established practice, it should possibly be construed as
affidavits being required
also in respect of the application for
leave to appeal, then that could easily have been confirmed by a
simple enquiry being directed
to me. I was available even after 19
December 2021 for such an enquiry to be made. No such enquiry was
made.
[30]
It is so
that the State in its answering affidavit in part dealt with the
merits of the application for leave to appeal. But that
was not at
the direction of this court. And obviously what a party might wish to
include in an affidavit, even if possibly irrelevant,
but if
considered necessary to answer the allegations in a founding
affidavit, is not within the control of any court. At best,
if
allegations are included in the State’s answering affidavit in
the application for further evidence that are scandalous,
vexatious,
or more importantly for present purposes, irrelevant, then
application could be made for such allegations to be struck
out. No
such application was made.
[31]
Further,
even if a construction was justified that this court had fixed dates
in both application
s
(plural) for the filing of affidavits, that is including the
application for leave to appeal as well, this is not an
‘irregularity’,
or even if it is, one of any consequence
which affects the proceedings. It certainly does not taint the
proceedings which culminated
in the main judgment, as ‘the
irregularity’ only arose after the main judgment had been
delivered. Mr Zuma has not
demonstrated any prejudice occasioned by
the direction. Nor could he, given that the State’s answering
affidavit gave him
and his legal representatives early notice of the
State’s defences to his application for leave to appeal, and to
his application
for further evidence on appeal. That granted him
ample time, from 15 December 2021 until 12 January 2022, and an
opportunity to
respond by means of a replying affidavit. Indeed, it
allowed him to introduce a ‘conditional counter application’
to
his own applications, albeit only in reply, raising additional
issues in reply. No legally cognizable prejudice was occasioned to

him.
[32]
Further, if
Mr Zuma is to pursue any petition to the Supreme Court of Appeal
(SCA),
rule 6
of the SCA rules provides for the delivery of answering
and replying papers in petitions for leave to appeal where a high
court
has refused leave.
Rule 19
of the Constitutional Court rules
also makes provision for the delivery of a written response to
applications to that court for
leave to appeal.
[33]
The State
in its heads of argument also advanced a further alternative argument
on this issue.
[14]
I do not consider it
necessary to deal with this argument in this judgment. My directive
was never intended to require, and properly
construed in its context,
never required the exchange of affidavits in the application for
leave to appeal. The objection by Mr
Zuma, which is advanced simply
as an additional ground of appeal, falls to be dismissed.
Mr Downer’s
alleged conflict of interest
[34]
In
paragraphs 10 to 12 of his replying affidavit Mr Zuma alleges that Mr
Downer should not have deposed to the State’s answering

affidavit in these proceedings, because the special plea in terms of
s 106(1)
(h)
CPA concerned him, Mr Downer.
[35]
Mr Downer
had deposed to the State’s main answering affidavit in response
to the special plea, without any objection from
Mr Zuma, and
correctly so, because Mr Downer was the person best equipped to
answer the allegations against him. In the present
proceedings, Mr
Downer has no conflict of interest with the State; on the contrary,
they make common cause in opposing the grant
of the application for
leave to appeal and the other applications. Mr Downer has been
designated and is authorised by the Director
of Public Prosecutions
for the KwaZulu-Natal Division of the High Court of South Africa to
exercise, in all courts within her area
of jurisdiction, the powers
to prosecute Mr Zuma and Thales until the finalisation of the
trial.
[15]
[36]
There is no
substance to this objection and it falls to be dismissed.
The
appealability of the order dismissing the plea in terms of
s
106(1)
(h)
of the CPA
[37]
A
decision in a criminal case before a single judge may be submitted to
the SCA in four ways: as an appeal against the conviction
or sentence
with the leave of the trial court
(s 316
of the CPA); as a
special entry of an irregularity or illegality
(s 317
of
the CPA); where a question of law has been reserved for consideration
by the SCA
(s 319
of the CPA); and the instances in
s 323
of the
CPA (which do not arise in this judgement). Generally in regard to
appeals,
s 316
of the
CPA
provides for appeals only after conviction. It reads:
‘
Subject
to
section 84
of the
Child Justice Act 75 of 2008
[16]
any accused
convicted
of any offence by a High Court may apply to that court for leave to
appeal against such
conviction
or against any resultant sentence or order.’
[17]
(emphasis
added).
[38]
It
has accordingly been stated, inter alia by Marais J in
S
v Rosslee
[18]
that:
‘
The
general rule is plain. What are alleged to be wrong decisions made in
the course of a criminal trial, and which are capable
of correction
by way of appeal or review
after
the trial has ended
, should
not be permitted to be challenged before the trial has run its course
unless there is a compelling reason justifying it.’
(emphasis
added)
This
is also consistent with the remark by Ogilvie Thompson JA in
Wahlhaus
and others v Additional Magistrate, Johannesburg and another
[19]
that ‘each case falls to be decided on its own facts and with
due regard to the salutary general rule that appeals are not

entertained piecemeal’. Since the advent of the Constitution,
Cachalia JA, in
S
v Delport
,
[20]
also said:
‘
To
conclude this discussion on the appealability of legal questions —
which include constitutional questions — arising
from
uncompleted criminal proceedings, the general rule, underpinned by
s 35(3)
(d)
of the Constitution, is against permitting piecemeal appeals. It is
therefore in the interests of justice that criminal trials
should
commence and be completed without unreasonable delay and that appeals
should not be entertained before the trial is completed.’
The
above statements recognized that the hearing of appeals in stages
could thwart the speedy and final disposal of criminal
proceedings
.
[21]
[39]
Although
leave to appeal before sentencing was therefore not readily granted
because of the strong opposition to the hearing of
appeals in a
piecemeal fashion, in exceptional circumstances the Supreme Court of
Appeal however did grant leave to appeal prior
to sentence, or was
prepared to hear an appeal in stages. It held in
Universal
City Studios Incorporated and others v Network Video (Pty) Ltd
[22]
that it could direct a piecemeal hearing of an appeal, in terms of
its inherent powers to regulate its procedures in the interests
of
the proper administration of justice.
[23]
[40]
The
question of appealability before conviction has however become one of
some controversy and complexity
[24]
due to a change in legislation in 2013. In
Director
of Public Prosecutions, Gauteng v KM
,
[25]
the SCA
[26]
rightly observed
that:
‘
The
introduction of the definition of an appeal in s 1 of the
Superior Courts Act has given rise to a new situation. This must

prompt fresh enquiries on matters settled under the previous
legislation. Certain appeals are now excluded from the operation of

ch 5 of the Superior Courts Act. This was not the position under the
Supreme Court Act.’
That
was why, in my letter of 22 November 2021, quoted above, I requested
the parties to ‘also address the issue whether the
order sought
to be appealed, [that is the dismissal of the special plea that Mr
Downer lacks the title to prosecute], is appealable
at this stage of
the proceedings.’
[27]
[41]
The State
has submitted that an appeal against the dismissal of the special
plea is not available to Mr Zuma at this stage, having
regard to the
wording of s 316(1)
(a)
of the CPA providing for appeals after
conviction
,
alternatively that if available prior to conviction in the discretion
of this court, that such an appeal should not be entertained
in
respect of the main judgment. The issue whether the main judgment is
appealable at this stage of the proceedings, which includes
the legal
basis for such an appeal, accordingly needs to be addressed. If the
main judgment is not appealable at this stage, then
the merits of the
application for leave to appeal would be unnecessary to decide.
[42]
Since the
advent of our Constitution, the rule of law and the principle of
legality, being at the foundation of our Constitution,
pertinently
require that all rights and powers must be founded on the
Constitution. In as much as
Universal
City Studios Incorporated and others v Network Video (Pty) Ltd
[28]
suggested that piecemeal appeals could be entertained based on a
court’s ‘inherent powers’ to regulate its
procedure,
neither the SCA, nor a full court has inherent
jurisdiction to hear appeals in criminal matters. In the absence of a
statutory
basis for such appeal, and the statutory requirements being
met, a court of appeal cannot hear an appeal on the assumption of an

inherent jurisdiction to that effect.
[29]
In
S
v Fourie
[30]
the SCA held that its inherent power to regulate its procedure did
not include the power to hear a matter which was not the proper

subject of an appeal, the reason being that the court’s
appellate jurisdiction was not an inherent jurisdiction.
[31]
[43]
The enquiry
accordingly is on what legislative basis Mr Zuma is prosecuting his
appeal at this stage. His application for leave
to appeal did not
identify the legal basis on which the appeal is being prosecuted. In
his replying affidavit,
[32]
Mr
Zuma seemingly relied on the provisions of s 316(1) of the CPA. He
said in his replying affidavit that:
‘
I
am advised that it will be argued that in addition and/or
alternatively to
the section
316 grounds
, leave to
appeal to the Supreme Court of Appeal ought to be granted on the
grounds of section 319 and/or 317 of the CPA
.’
(emphasis added)
An
appeal in terms of s 316(1)
(a), ex facie
the wording thereof,
however only arises after
conviction
.
In
the alternative, and further, Mr Zuma invoked the provisions of s
35(3)
(o)
of the Constitution. I accordingly turn to consider the provisions of
s 35(3)
(o)
.
[44]
Section
35(3)
(o)
of the Constitution provides that
:
‘
Every
accused person has a right to a fair trial, which includes the right
… of appeal to, or review by, a higher court.’
[45]
The right
in s 35(3)
(o)
is not an absolute right
[33]
and its purpose is aimed at reversing an incorrect conviction. There
are
limitations
on that right and the scope of its application.
In
Mbambo v
Minister of Defence
[34]
it was said that:
‘
The
right enshrined in s 35(3)
(o)
contributes to the minimisation of the risk of a wrong
conviction
.
To that end it does not enshrine a right of appeal or review in a
technical sense, but the right to the meaningful reconsideration
by a
higher court of a
conviction
and sentence
.’
(emphasis added)
P
roceedings
of high courts, as opposed to magistrate’s courts, are
furthermore not subject to review,
[35]
notwithstanding
the provisions of s 35(3)
(o)
granting a right of review, demonstrating that the right is limited.
And in many
appeals,
leave to appeal must first be obtained. These limitations on the
rights in s 35(3)
(o)
have
been accepted as constitutionally justifiable.
[36]
The provision must furthermore be read in conjunction with other
provisions of the Constitution, notably s 171 thereof which

provides that:
‘
All
courts function in terms of national legislation, and their rules and
procedures must be provided for in terms of national legislation.’
[46]
The CC in
S
v Twala (South African Human Rights Commission Intervening)
[37]
made the following findings about the purpose and meaning of s
35(3)
(o)
:
‘
The
purpose of s 35(3) read as a whole is to minimise the risk of
wrong
convictions
and the
consequent failure of justice, and section 35(3)
(o)
is intended to contribute towards achieving this object by ensuring
that any decision of a court of first instance
convicting
and sentencing
any person
of a criminal offence would be subject to reconsideration by a higher
court.’
[38]
(emphasis added)
and
‘…
s 35(3)(o) requires that provision be
made for an appropriate reassessment of the issues by a court higher
than that in which the
accused was
convicted
,
provided that the prescribed procedure is fair as demanded by s 35(3)
…’
[39]
(emphasis added)
and
‘
This
conclusion is compatible with art 14(5) of the International Covenant
on Civil and Political Rights which South Africa has
ratified.
The article says:
“
Everyone
convicted
of a crime shall have the right to his
conviction
and sentence
being reviewed
by a higher tribunal according to law”
’
.
[40]
(emphasis added)
[47]
It
follows that
s
35(3)
(o)
of the Constitution, as interpreted, does not provide a right to
appeal by an accused person at a stage prior to conviction. It

applies to appeals against a conviction, or resultant sentence, and
then ‘as provided in terms of national legislation.’
A
right to appeal after conviction is provided in national legislation,
specifically in s 316(1)
(a)
of the CPA.
[48]
As s
35(3)
(o)
of the
Constitution does not assist Mr Zuma’s argument, the question
arises whether any other provision of the Constitution,
not
identified by him, might find application. The application for leave
to appeal in these proceedings being specifically concerned
with a
prospective appeal to the SCA,
[41]
the only other provisions that might conceivably be relevant, might
be the provisions in the Constitution dealing specifically
with the
SCA. Section 168 of the Constitution deals with the SCA and its
powers. It provides:
‘
Supreme
Court of Appeal. —
(1)
The Supreme Court of Appeal consists of a President, a Deputy
President and the number of judges of
appeal determined in terms of an Act of Parliament.
(2)
A matter before the Supreme Court of Appeal must be decided by the
number of judges determined in terms of an Act of Parliament.
(3)
(a)
The Supreme Court of Appeal may decide appeals in any
matter arising from the High Court of South Africa or a court of a
status
similar to the High Court of South Africa, except in respect
of labour or competition matters to such extent as may be determined

by an Act of Parliament.
(b)
The
Supreme Court of Appeal may decide only—
(i)
appeals;
(ii)
issues connected with appeals;
and
(iii)
any other matter that may be referred
to it in circumstances defined by an Act of   Parliament.’
[49]
Section
168(3) does not however prescribe what orders are appealable.
The SCA confirmed in
S
v Western Areas Ltd and others
[42]
that:
‘
.
.
.nothing
in [s 168(3)
[43]
]
suggests the conferment of jurisdiction to hear as an appeal that
which, by established statutory construction and practice is
not
appealable
.’
[44]
The
SCA also commented that:
‘
.
. . no reason suggests itself why the framers of the Constitution
would have wanted to render decisions such as rulings on evidence
or
interlocutory procedure appealable. More importantly, if the argument
under consideration were right, the prosecution could
appeal against
any acquittal. Understandably that has never been regarded as the
correct legal position.
’
[45]
The
judgment continued and confirmed that
w
hen
an appeal lies, ‘as
the Constitution shows, is a question for legislative interpretation
and application, not for s 168(3)’.
[46]
When an appeal referred to in s 168 of the Constitution will be
available, is dependant on national legislation. In the words of

Howie P:
[47]
‘
An
appeal court becomes seized of an appeal when it has been duly
prosecuted in terms of the rules of that court, and
in
accordance with any applicable statutory provision
.’
(emphasis added)
[50]
Specifically,
as was said by the SCA in
Minister
of Safety and Security v Hamilton
:
[48]
‘
Though
s 168(3) of the Constitution provides without qualification that this
Court may decide “appeals in any matter”,
this must
obviously be read in the light of the Supreme Court Act 59 of
1959.’
[49]
In
other words, in accordance with national legislation. That conclusion
is also in accordance with the dictates of s 171 of the
Constitution
quoted earlier,
[50]
that all
courts function in terms of national legislation.
[51]
Turning
to the national legislation which governs appealability, apart from
the provisions of the Supreme Court Act referred to
in
Hamilton
,
regard must be had to the provisions of the CPA which regulates
appeals in criminal matters. Reference has already been made earlier

to the provisions of sections 316, 317, and 319 of the CPA.
[51]
Section 315(4) of the CPA provides that:
‘
An
appeal in terms of this Chapter
[52]
shall lie
only
as provided in sections 316 to 319 inclusive, and not as of right.’
(emphasis added).
[52]
Appeals
against ‘interlocutory’ orders were generally never
entertained. The test in
Zweni
v Minister of Law and Order
[53]
came to be applied to determine which orders were final in effect,
and hence appealable, and which interlocutory. Many of these

instances however related to the era before our constitutional
democracy with its strong emphasis on the principle of legality
and
the rule of law. Appeals against decisions made during a criminal
trial before the trial had run its full course and concluded
in a
‘conviction’, contrary to what is provided in s
316(1)
(a)
,
came to be and were recognised also in the constitutional era by the
SCA in
S
v Western Areas Ltd and others.
[54]
In
S v
Western Areas Ltd and others
the requirements of the
Zweni
test
[55]
were not satisfied,
but it was nevertheless said, that an accused should be allowed to
exercise a right of appeal against the findings
of a trial court
prior to conviction, where the ‘the interests of justice’
so required.
[53]
As
the statutory basis for such an appeal in the ‘interests of
justice’, the SCA in
S
v Western Areas Ltd and others
[56]
invoked and gave a wide meaning to the word ‘decision’ in
s 21(1) of the former Supreme Court Act,
[57]
to include ‘criminal pronouncements’ where these should
be reviewed or appealed, where no other procedure is available,
but
‘the interests of justice’ demand such an appeal.
[58]
Howie P held:
‘
I
am accordingly of the view that it would accord with the obligation
imposed by s 39(2) of the Constitution to construe the word

“decision” in s 21(1) of the Supreme Court Act to include
a judicial pronouncement in criminal proceedings that is
not
appealable on the
Zweni
test but one which the interests of justice require should
nevertheless be subject to an appeal before termination of such
proceedings.’
[59]
What
the interests of justice require will depend on the facts of each
particular case.
[60]
But
the statutory foundation in national legislation for such an appeal
was to be found in the provisions of s 21(1) of the
Supreme Court
Act.
[54]
Section
21(1) of the Supreme Court Act,  provided:
‘
In
addition to any jurisdiction conferred upon it by this Act or any
other law, the appellate division shall, subject to the provisions
of
this section and any other law, have jurisdiction to hear and
determine an appeal from
any
decision
of the court of a
provincial or local division.’
(emphasis
added).
[55]
The
piecemeal disposal of issues in criminal trials prior to conviction,
and resultant unreasonable delays, and potential for abuse,
however
remained a matter of concern commented on by various courts and
commentators, post the decision in
S
v Western Areas Ltd
.
In
Thint
(Pty) Ltd v National Director of Public Prosecutions and others;
Zuma and another v National Director of Public Prosecutions
and
others
[61]
Langa CJ re-iterated that appeals are not to be dealt with in a
piecemeal fashion, stating:
‘
I
nevertheless do agree with the prosecution that this court should
discourage preliminary litigation that appears to have no purpose

other than to circumvent the application of s 35(5). Allowing such
litigation will often place prosecutors between a rock and a
hard
place. They must, on the one hand, resist preliminary challenges to
their investigations and to the institution of proceedings
against
accused persons; on the other hand, they are simultaneously obliged
to ensure the prompt commencement of trials. Generally
disallowing
such litigation would ensure that the trial court decides the
pertinent issues, which it is best placed to do, and
would ensure
that trials start sooner rather than later. There can be no absolute
rule in this regard, however. The courts' doors
should never be
completely closed to litigants. If, for instance, a warrant is
clearly unlawful, the victim should be able to have
it set aside
promptly. If the trial is only likely to commence far in the future,
the victim should be able to engage in preliminary
litigation to
enforce his or her fundamental rights. But in the ordinary course of
events, and where the purpose of the litigation
appears merely to be
the avoidance of the application of s 35(5) or the delay of criminal
proceedings, all courts should not entertain
it. The trial court
would then step in and consider together the pertinent interests of
all concerned. If that approach is generally
followed the State would
be sufficiently constrained from acting unlawfully by the application
of s 35(5) and by the possibility
of civil and criminal liability.
The nature and degree of unlawfulness of the search warrant are
important factors to be borne
in mind for the purposes of a decision
under s 35(5). It is for this reason that the same court should
consider the unlawfulness
of the warrant and its impact.’
[56]
The
CC has reiterated this principle fairly recently and in more specific
terms as follows:
[62]
‘
In
any event, this court has held that in considering whether to grant
leave to appeal, it is necessary to consider whether “allowing

the appeal would lead to piecemeal adjudication and prolong the
litigation or lead to the wasteful use of judicial resources or

costs”. Similarly, in
TAC
I
this court stated that
“it is undesirable to fragment a case by bringing appeals on
individual aspects of the case prior
to the proper resolution of the
matter in the court of first instance”. This is one of the main
reasons why interlocutory
orders are generally not appealable while
final orders are.’
[57]
Other
courts, including the SCA, have also criticized and discouraged
piecemeal litigation:
‘
The
same considerations must apply in this case. It was well-established
before the present constitutional era that a criminal trial
is not to
be conducted piecemeal, and that continues to apply today. An accused
is not entitled to have the trial interrupted –
or to have it
not even begin – so as to have alleged irregularities reviewed
by another court in the course of the trial.
It is important to bear
in mind that while the Constitution guarantees to an accused a fair
trial that does not mean that the prosecution
must satisfy the
accused in advance that the trial will indeed be fair. It is the duty
of the trial court to try a charge, and
to ensure that the trial is
fair, and if it turns out that it was not, then any conviction that
followed might be set aside. It
might even turn out that the accused
is acquitted, in which case the alleged irregularities will be
irrelevant. Litigation of the
kind that is before us falls squarely
into the category of preliminary litigation that ought to be avoided
and discouraged.’
[63]
and
‘
It
is therefore my considered view that this court, at this stage, not
being the court before which the trial had commenced, would
not be
the appropriate forum to decide whether an application for separation
should be granted to the applicants.  In my view,
such an
application should be dealt with by the court before which the trial
has commenced.  Our courts have through the years
expressed our
displeasure with this type of procedure followed in criminal matters,
and have been averse to dealing with such applications
in this
manner, because it would lead to piecemeal adjudication of disputes
and would cause undue delays, and our courts have ruled
that such
applications are best left to the trial court dealing with the
criminal matter.  It has also been used by unscrupulous
accused
to unduly delay the proceedings, because it would usually be followed
by an appeal to the Supreme Court of Appeal, and
thereafter to the
Constitutional Court.’
[64]
and
‘
Lastly,
the applicants submit that they intend to prevent the criminal trial
from being heard, hence the application to have their
trial
permanently stayed. What is evident from this interlocutory
application is that they want the court hearing the application
for
the permanent stay to decide on the admissibility of documents not
yet presented to the trial court. In my view, it will lead
to a
piecemeal trial process. I echo the sound advice of the
Constitutional Court in
Savoi
v NDPP
, where the court
emphasised that it is pre-eminently the duty of the trial court to
decide on the admissibility of evidence, including
deciding on
whether the admission of evidence of a particular type would render
the trial unfair. The applicants will indeed be
able to challenge
evidence illegally obtained during the criminal trial. If there had
been any abuse of obtaining evidence, then
the trial court would be
the best forum to decide on allegations of abuse.’
[65]
(footnotes omitted).
and
‘
Generally
an accused person’s remedy in the case of a wrong conclusion
would be to appeal after the case has been concluded.
In
principle, High Courts are reluctant to interfere with unterminated
proceedings since it leads to piecemeal finalisation of

cases. In
Lawrance
v Assistant Resident Magistrate of Johannesburg
Innes
J said:
“
This
is really an appeal from the magistrate’s decision upon the
objection, and we are not prepared to entertain appeals piecemeal.

If the magistrate finds the applicant guilty, then let him appeal,
and we shall decide the whole matter.”’
[66]
(footnotes omitted).
[58]
Section
21(1) of the Supreme Court Act, being the statutory basis for an
appeal prior to conviction on the basis that it was ‘in
the
interests of justice’ to do so, was removed when
s 55(1)
(a)
of the
Superior Courts Act 10 of 2013
read with Schedule 1 thereto
repealed the whole of the Supreme Court Act, with effect from 23
August 2013.
[59]
In
the light of, inter alia, comments such as those by Langa CJ in
Thint
(Pty) Ltd v NDPP
,
[67]
the omission of a similar provision to s 21(1) from the text of the
Superior Courts Act, should
perhaps come as no surprise. Not is there
only no equivalent provision to s 21(1) of the Supreme Courts
Act in the
Superior Courts Act, but
s
1
of the
Superior Courts Act introduces
a definition of ‘appeal’
which reads as follows:
‘“
appeal”
in Chapter
5, does not include an appeal in a matter regulated in terms of the
Criminal Procedure Act, 1977 (Act No. 51 of
1977), or in terms of any
other criminal procedural law.’
[68]
There
was no definition of ‘appeal’ in the Supreme Court Act 59
of 1959.
Du
Toit
[69]
opines that s 21(1) of the Supreme Court Act was repealed completely
due to the addition of the definition of appeal that
excludes appeals
in a matter regulated in terms of the CPA, or any other relevant
criminal procedural law.
[60]
As already
pointed out above, in
Director
of Public Prosecutions, Gauteng v KM
,
[70]
the SCA rightly observed that the introduction of the definition of
‘appeal’ in
s 1
of the
Superior Courts Act gave
rise
to a new dispensation, requiring fresh enquiries on matters settled
under the Supreme Court Act, as appeals regulated in terms
of the
CPA, or in terms of any other criminal procedural law, were now
excluded from the operation of chapter 5 of the
Superior Courts
Act. That
had not been the position under the Supreme Court Act, or
at the time when
S
v Western Areas Ltd and others
was
decided.
[61]
Chapter
5
(sections 15
to
20
) of the
Superior Courts Act regulates
amongst
others appeals from a high court.
Section 16(1)
(a)
provides that:
‘
Subject
to
section 15
(1), the Constitution and any other law—
(a)
an
appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted—
(i)
if the court consisted of a single judge, either to the Supreme Court
of Appeal or
to a full court of that Division, depending on the
direction issued in terms of section 17 (6); or
(ii)
if the court consisted of more than one judge, to the Supreme Court
of Appeal;
(b)
an
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special leave having been
granted by
the Supreme Court of Appeal; and
(c)
an
appeal against any decision of a court of a status similar to the
High Court, lies to the Supreme Court of Appeal upon leave
having
been granted by that court or the Supreme Court of Appeal, and the
provisions of section 17 apply with the changes required
by the
context.‘
Section
17 regulates the granting of leave to appeal, and directions
regarding the court which will hear the appeal. It provides:
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of
the
opinion that—
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including
conflicting judgments on the matter under consideration;
(b)
the
decision sought on appeal does not fall within the ambit of section
16 (2)
(a)
;
and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties.
(2)
(a)
. . .’
Section
18 regulates that under exceptional circumstances a court may order
the suspension of the operation and execution of the
decision which
is the subject of an application for leave to appeal, or of an
appeal. Section 19 regulates the powers on the hearing
of appeals.
[62]
Both
the Constitutional Court and the Supreme Court of Appeal have dealt
with the interpretation and the effect of the definition
of ‘appeal’
in the
Superior Courts Act, but
confined to the facts specific to the
instances arising for decision before them.
[63]
In
S
v Van Wyk and another
[71]
the SCA held that
sections 16
and
17
of the
Superior Courts Act did
not find application in appeals from a Magistrate’s Court.
Du
Toit
concludes
that this is generally not the case when the trial took place in a
high court, as
s 316
provides for more appeal remedies,
including petitions to the SCA.
[72]
[64]
In
S
v Liesching and others
,
[73]
Musi AJ held:
‘
[33]
“Appeal” is defined in s 1 of the SC Act. Where a word is
defined in a statute, the meaning
ascribed to it by the legislature
must prevail over its ordinary meaning. The definition makes plain
that the word “appeal”
would only bear the meaning
ascribed by the legislature if the context so requires. If, however,
there are compelling reasons,
based on the context, to disregard the
ascribed meaning, then the ordinary meaning of the word must be used.
If a defined word
or phrase is used more than once in the same
statute must be given the same meaning, unless the statutory
definition result of
such injustice or incongruity or absurdity as to
lead to the conclusion that the legislature could never have intended
the statutory
definition to apply.
[34]
Where the definition section provides that the definition should be
applied, “unless the
context otherwise indicates”,
“context” should be given a wide and not a narrow
meaning. In
Hoban
it was said that-
“
(c)ontext
includes the entire enactment in which the word or words in
contention appear . . . In its widest sense would include
enactments
in pari materia
[on
the same subject], sought to be remedied . . . The moment one has to
analyse context in order to determine whether a meaning
is to be
given which differs from the defined meaning one is immediately
engaged in ascertaining legislative intention. One remains
so engaged
until the interpretation process is concluded.”
[35]
A definition in an Act therefore applies to the entire Act, unless
its meaning is specifically
confined to particular section or
chapter. The definition of appeal in s 1 of the SC Act is confined to
its use in ch 5. Where
it is used in other chapters of the SC Act it
would have its ordinary grammatical meaning.
[36]
The reason for the exclusion of appeals regulated in terms of the CPA
or any other criminal procedural
law from the purview of ch 5 is to
avoid duplication. It would be senseless to have two statues regulate
the same subject matter.
The legislature recognised that, although
the CPA deals comprehensively with appeals and criminal matters, it
does not do so exhaustively.
Chapter 5 of the SC Act, insofar as it
deals with appeals, complements and supplements the CPA. The purpose
of the definition is
therefore not only to harmonise the provisions
of the CPA and the SC Act, but also to supplement the provisions of
the CPA.
[37]   “Appeal”
for purposes of ch 5 does not include an appeal in a matter regulated
in terms of the
CPA or any other criminal procedural law. The
converse is also true; if it is not a matter regulated by the CPA or
any other criminal
procedural law it would be an appeal for the
purposes of ch 5.
[38]
The CPA regulates appeals in criminal proceedings, in respect of
Superior Courts, in ss 315 – 324. These provisions regulate

various matters, including applications for leave to appeal,
petitions, applications to adduce further evidence and special

entries.’
[65]
In
Director
of Public Prosecutions, Gauteng v KM
,
[74]
the SCA
[75]
held that:
‘
[34] . . . The enquiry which
must be made prior to concluding that s 16(1)
(b)
,
which requires special leave to appeal, applies, is whether the
appeal in question is subject to the provisions of ch 5. I now
turn
to that enquiry.
[35]
Section 1
of the
Superior Courts
Act provides
that an appeal in ch 5 “does not include an appeal
in a matter regulated in terms of the
Criminal Procedure Act
, . . .
or in terms of any other criminal procedural law”. Chapter 5 of
the
Superior Courts Act comprises
ss 15
–
20
. This means
that, if an appeal is “regulated in terms of” the CPA,
the provisions of
s 16(1)
(b)
requiring
special leave to appeal do not apply. The crisp issue in this regard
is whether an appeal under
s 311
is one “regulated in terms of
the Criminal Procedure Act”.’
(Footnotes
omitted.)
‘
[40]
. . . Most other sections of the CPA which allow for an appeal
require applications for leave to appeal. These include s 309(1
)(a)
,
s 309B(1)
(a)
,
s 310A(1), s 316(1)
(a)
and s
316B(1) of the CPA. It is clear that these are appeals 'regulated in
terms of' the CPA. They give the right of
appeal and deal with the
procedure for the exercise of that right. In all cases the procedure
requires an application for leave
to appeal.’
The
majority judgment of the SCA concluded that as the s 311 proceedings
(appeals by the State in certain circumstances) was ‘
a
matter regulated in terms of the [CPA]
. . ., or in terms of any other criminal procedural law’, thus
excluded from the operation of chapter 5 of the
Superior Courts
Act, that
the provisions of the
Superior Courts Act did
not apply,
and accordingly, that leave to appeal required by
s 16(1)
(b)
of the
Superior Courts Act, was
not necessary.
[76]
[66]
The
conclusion to be drawn from the above decision is this. If appeals
arise in respect of decisions and orders ‘in a matter
regulated
in terms of the
Criminal Procedure Act
. . . or in terms of any other
criminal procedural law’, then they are excluded from the
definition of ‘appeal’
in the
Superior Courts Act, and
the provisions of chapter 5
(sections 15
to
20
) of the
Superior
Courts Act do
not apply, and do not afford a basis for an appeal. The
definition of ‘appeal’ does not however provide that the
appeal
must not be an appeal provided for in the CPA, for the
provisions of chapter 5 of the
Superior Courts Act to
apply, but that
it must be ‘an appeal in a matter’, where the ‘matter
[is one] regulated in terms of the [CPA].’
Special pleas are
matters regulated in terms of the CPA. Hence an appeal in respect of
a special plea is an ‘appeal in a
matter regulated in terms of
the [CPA]’.
[67]
The
provisions of
s 316(1)
(a),
thus construed in its context, include decisions made during a
criminal trial, and they may be appealed, but only after conviction.

Hence, no appeal against any decision, including the dismissal of a
special plea in terms of
s 106(1)
(h)
of the CPA, would generally, on the aforesaid interpretation, be
possible prior to conviction, and for good reason, namely to prevent

the piecemeal disposal of criminal trials. It does not mean that
there is no appeal against the dismissal of the special plea,
or that
an appeal against the dismissal of a special plea is an appeal
against something not ‘regulated in terms of the [CPA]’.
Section 316(1)
(a)
provides for such an appeal. It remains an appeal in respect of ‘a
matter regulated in terms of the [CPA]’. All it
means is that
such appeal cannot be prosecuted when the special plea is dismissed,
but that the prosecution of any appeal in respect
of such ‘matter’
is held over until the accused is convicted, that is if the accused
is convicted at all. If the accused
is acquitted, then the merits of
a possible incorrect decision regarding the special plea become
irrelevant. But it does not become
an appeal not regulated in terms
of the CPA simply because there is no provision for its immediate
prosecution. Accordingly, there
is no scope for the provisions in
chapter 5
(sections 15
to
20
) of the
Superior Courts Act to
apply to
allow an immediate appeal before the criminal trial is completed.
[77]
[68]
A
number of considerations, apart from the wording of the applicable
provisions which I endeavoured to deal with briefly above,
favour
such a construction. Firstly,
s 315(4)
states in unequivocal
terms, that an appeal in a criminal matter ‘shall lie
only
as provided in
sections 316
to
319
’, that is, in no other
manner. If the present appeal is not one in terms of
s 316(1)
(a)
then, if properly presented, it might afford a remedy under
s 317
or
319
, but regardless, it remains an appeal in respect of a matter
‘regulated in terms of the Criminal Procedure Act, 1977 (Act
51
of 1977), or in terms of any other criminal procedural law’, as
provided in the definition of ‘appeal’ in
the
Superior
Courts Act
- hence not an appeal in terms of chapter 5 of the
Superior Courts Act, and
therefore not available at this stage.
[69]
An
appeal against the dismissal of a special plea prior to conviction
will, on this construction, only be possible, if the provisions
of
s
316(1)
(a)
of the CPA can be interpreted, notwithstanding its clear wording, to
include such an appeal being prosecuted prior to conviction,
or if it
is concluded that such an appeal is not an appeal in ‘a matter
regulated in terms of the [CPA] or in terms of any
other criminal
procedural law’, hence that the provisions of the
Superior
Courts Act are
not excluded in respect of such an appeal, which might
then make such an appeal competent in terms of some provision of
chapter
5 of the
Superior Courts Act.
[70
]
An
interpretation of
s 316(1)
(a)
of the CPA to allow an appeal against an order dismissing a special
plea, prior to conviction, would be in conflict with the wording
of
the CPA. Mr Zuma’s contention in his replying affidavit
[78]
that the word ‘convicted’ in this provision must be
interpreted purposively and widely ‘so as to include a refusal

to acquit’ under
sections 106(1)
(h)
and (4), is unsustainable.  Where the special plea is dismissed
and an accused has pleaded not guilty in terms of
s 106(1)
(b)
of the CPA, as Mr Zuma has done, then the accused is not convicted
but the matter will proceed to trial on the accused’s
plea of
not guilty, and at the end of the trial he or she will either be
acquitted or be convicted. The dismissal of the special
plea alone
would not have resulted in a conviction.
[71]
That
leaves in the alternative then the remaining argument, namely that an
appeal against the refusal of a special plea, if not
an appeal
concerning a ‘
matter
regulated in terms of the [CPA] . . ., or in terms of any other
criminal procedural law’, hence that it would not be
excluded
from the definition of ‘appeal’ in the
Superior Courts
Act, has
a statutory basis permitting its prosecution at this stage
of the criminal trial, in terms of the provisions of chapter 5 of
that
Act.
That
raises the issue whether there is an empowering provision in the
Superior Courts Act or
any other national legislation, akin to the
repealed s 21(1) of the Supreme Court Act, which would permit such an
appeal prior
to conviction.
[72]
Nothing
in the text or context or purpose of s 16(1)
(a)
(i),
or elsewhere in chapter 5 of the
Superior Courts Act, indicates
in
unqualified terms that the word ‘appeal’ in that chapter
includes an appeal
against
the dismissal of a plea in terms of
s 106(1)
(h)
of the CPA at a stage prior to the accused person’s conviction
by the high court.
There
is no equivalent in the
Superior Courts Act to
the former s 21(1) of
the Supreme Court Act.
If
the legislature’s intention was to preserve the possibility of
an
appeal to the SCA against a decision by a high court in a criminal
matter, prior to the conviction and sentencing of the accused,
on the
basis of it being in the ‘interests of justice’ to do so,
then the
Superior Courts Act would
have contained a provision with
wording similar to that of section 21(1) of the Supreme Court Act, or
another provision providing
expressly for that eventuality, and/or
would not have excluded criminal appeals in respect of matters
regulated in terms of the
CPA from chapter 5 of the
Superior Courts
Act.
[73
]
Instances,
allowing appeals in criminal matters, but in terms of the provisions
of chapter 5 of the
Superior Courts Act have
been recognized.
In
S v
Liesching and others
[79]
the CC held in regard to
a refusal of an application to adduce further evidence after
conviction in the high court and during the
petition stage before the
SCA, that the CPA regulates applications for further evidence only in
two instances, namely in
s 316(5)
and in
sections 316(13)
(d)
and
(e)
.
It was concluded
[80]
that the
CPA or any other criminal procedural law does not regulate an
application by an accused who has been convicted, to adduce
further
evidence on appeal, after a petition had been refused. The SCA held
that the proviso to
s 17(2)
(f)
[81]
in chapter 5 of the
Superior Courts Act, which
is broadly
phrased,
[82]
was applicable
and regulated such an application, but subject to the limitation in
that provision that ‘exceptional circumstances’
must be
present. But on the facts in
Liesching
the
accused had already been convicted, as contemplated in
s 316
of the
CPA, and ordinarily would have been entitled to an appeal pursuant to
s 316(1)
(a)
,
with the necessary leave being granted. All that occurred
subsequently was that such leave was refused also on petition, which

meant that the matter had achieved finality. No considerations of
delay, or other adverse consequences which would arise in allowing
an
appeal prior to conviction, arose. The provisions of
s 17(2)
(f)
of the
Superior Courts Act were
specifically suitable for that situation.
[74]
The
question remaining is whether there are alternative statutory bases
in the
Superior Courts Act which
might permit an appeal of the main
judgment at this stage.
[75]
Mr
Mpofu submitted that
s 16
of the
Superior Courts Act also
refers to a
‘decision’, like the former s 21 of the Supreme Court
Act. Section 16 does not however afford a statutory
basis for the
recognition of an appeal prior to conviction. It does not provide a
general right of appeal against any decision,
even prior to
conviction, of a high court, but deals with to which court and with
what leave appeals lie. The provisions of s 16
presuppose that an
appeal lies. But at what stage of a criminal trial an appeal lies,
must and can only be determined in accordance
with national
legislation.
[76]
Hiemstra’s
discussion of the
decision in
Western
Areas Ltd
,
[83]
proceeds on the basis that the word ‘decision’ in
s
17(1)
(c)
of the
Superior Courts Act, like
the word ‘decision’ in s
21(1) of the Supreme Court Act, would include ‘criminal
pronouncements.’
[84]
The
relevant provisions of s 17(1) of the Superior Courts Act
provide:
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion
that –
.
. .
(c)
where the decision sought to be appealed does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.’
[77]
If
s 17(1)
(c)
of the
Superior Courts Act affords
the required statutory basis for
an appeal prior to conviction, then, as with the requirement of
‘exceptional circumstances’
in
s 17(2)(
f
)
in
Liesching
,
the subsection must be read subject to its own built in limitations,
namely that the decision sought to be appealed, although
it ‘does
not dispose of all the issues in the case’ must be an appeal
which ‘would lead to a
just
and prompt resolution
of the
real
issues
between the parties’ (emphasis added). Plainly, an appeal
against the incorrect dismissal of an objection to a court’s

jurisdiction in terms of
s 106(1)
(f),
where
it is clear that the court dismissing the plea had no jurisdiction
and, in addition, where it is clearly in the interests
of justice to
permit an appeal against the ruling without an appellant first having
to be exposed to the prejudice of an irregular
trial,
[85]
would be such an appeal and an exception to the general rule.
[78]
On
the peculiar facts relating to this matter however, an appeal against
the dismissal of the special plea, if successful, would
not lead to a
‘just and prompt resolution of the real issues between the
parties’ before this court, in this instance
Mr Zuma’s
guilt or innocence. In the absence of a prompt resolution of that
real issue between the parties, there is no scope
for an appeal prior
to conviction, based on
s 17(1)
(c)
of
the
Superior Courts Act.
Significantly
,
the SCA in
Zweni
had remarked that ‘[t]he fact that a decision may cause a party
an inconvenience or place him at a disadvantage in the litigation

which nothing but an appeal can correct, is not taken into account in
determining its appealability.’
[86]
[79]
It
is also significant that even when there was a statutory basis for an
appeal to be entertained prior to conviction, reliance
having been
placed on the provisions of s 21(1) of the Supreme Court Act, the SCA
in
S
v Western Areas (Pty) Ltd
required that any appeal prior to conviction had to be in the
‘interests of justice.’
[80]
Insofar
as an appeal against the main judgment would be competent at this
stage, even if the requirements and inherent limitations
in s
17(1)
(c)
of
the
Superior Courts Act are
not satisfied, but on some unspecified
statutory basis, provided it is in the ‘interests of justice’,
the following
is apposite.
[81]
Recognising
such an appeal will offend against the principle of legality, if it
is without a statutory basis.
[82]
If
such an appeal is to be entertained then it will require a weighing
up of interests.
In
S
v Western Areas (Pty) Ltd
Howie P cautioned that:
[87]
‘
[25]
. . .  in general it is in the interests of justice that an
appeal await the completion of a case whether civil or criminal.

Resort to a higher Court during proceedings can result in delay,
fragmentation of the process, determination of issues based on
an
inadequate record and the expenditure of time and effort on issues
which may not have arisen had the process been left to run
its
ordinary course.
[26]
It is clear, however, that the general rule against piecemeal appeals
in criminal proceedings could conflict with the interests
of justice
in a particular case . . .  As an instance when such conflict
might arise, this Court referred to in that matter
to the position
where a law point is involved which, if decided on the accused
favour
, would dispose of the criminal charge against him or a
substantial portion of it.
By that example I understand it to be
implied that there would be no trial or a substantially shortened
trial.
[27]
. . . Those considerations by themselves do not warrant giving
“decision” a more extended meaning than before.
What does
do so, however, is the possibility of conflict between the general
rule against piecemeal appeals in the interests of
justice in a
particular case, even if the
Zweni
requirements are not met.
It is surely not in the interests of justice to submit an accused
person to the strain, expense and restrictions
of a lengthy criminal
trial
if that can be avoided
, in appropriate circumstances, by
allowing on appeal to be pursued out of the ordinary sequence and
so
obviating the trial or substantially shortening it
.’
(footnotes omitted, emphasis added)
Similarly,
Cachalia
JA, in
S
v Delport
,
[88]
after remarking that regarding the appealability of legal questions
arising from uncompleted criminal proceedings, the general
rule,
underpinned by s 35(3)
(d)
of the Constitution, is against permitting piecemeal appeals, said:
‘
[27]
. . .However, the interests of justice may also require — in
unusual circumstances — a departure from the general
rule. The
general rule therefore requires a remittal order not to be
appealable, unless unusual circumstances warrant this.
[28]
What amounts to unusual circumstances obviously depends on the facts.
In this regard
considerations
of convenience, delay and prejudice
must all be weighed to decide whether the advantages of entertaining
the appeal outweigh the disadvantages. This analysis does
not require
the court to give a decision on the merits. But it must consider the
efficacy of the points raised to assess
whether
there is a reasonable likelihood that the advantages will
materialise
.’
(footnote omitted, emphasis added)
[89]
[83]
An
appeal against the dismissal of Mr Zuma’s special plea at this
stage will not achieve these objectives or advantages: it
will not
dispose of the criminal charge against him or a substantial part
thereof; it will not avoid a lengthy criminal trial;
and it will not
obviate the trial or substantially shorten it.
[84]
Denying
an appeal at this stage of the proceedings, would accord with the
legislative intent having regard to the context in which
and the
purpose for which the
Superior Courts Act was
enacted, the general
undesirability of piecemeal appeals, the delays that will be avoided
in pending or incomplete criminal trials,
and introduce a sound
jurisprudential policy which the legislature intended to apply, and
which should apply in criminal trials.
Allowing appeals on interim
orders, where an acquittal might follow is, at best, of academic
value only, irrelevant, and will amount
to a waste of time and
limited judicial resources.
[85]
The
competing rights of an accused
[90]
would also not be ignored by such an approach. It is trite law that
in an appeal on fact, ‘the presumption is that the decision
of
the court below on the facts was right, unless it can be shown that
the court misdirected itself. Courts of appeal should not
seek
anxiously to discover reasons adverse to the conclusions of the trial
court.’
[91]
Appeals on
fact are normally best left to the end of a trial. And in deserving
instances, such as ‘where a law point is involved
which, if
decided in the accused’s favour, would dispose of the criminal
charge against him or a substantial portion of it’,
[92]
an accused would always still also have remedies in terms of
s 317
or
s 319
of the CPA, if the requirements of either of those is
satisfied. Mr Zuma has already pursued those in his conditional
counter application.
Sections 317
and
319
are discussed later in this
judgment.
[86]
In
summary:
(a)
The grant of Mr Zuma’s special plea would not have the effect
of disposing of at least
a substantial portion of the relief claimed
in the criminal trial. The relief sought by the State in the criminal
trial would be
his conviction. The special plea had no bearing on
that relief. Mr Zuma has pleaded not guilty to all the charges and he
remains
to be tried.
(b)
The appeal will delay the
criminal trial unreasonably, specifically as concerns Thales.
(c)
The special plea was based on the proposition that Mr Downer lacks
the independence
and impartiality necessary for a lawful prosecution,
more specifically to ensure that Mr Zuma’s trial is
constitutionally
fair, and that he is an essential witness on the
issue whether there was political interference in the prosecution
which allegedly
violated his right to a fair trial as provided in s
35 of the Constitution.
[93]
The infringement of Mr Zuma’s fair trial rights, is the true
basis of Mr Zuma’s complaints. But, as the main judgment
held:
‘
[a]ny
infringement of fair trial rights, is an ongoing interlocutory issue,
best determined when the evidence in the criminal trial
has been
heard, digested in the light of conflicting evidence, and the
credibility to be attached to the evidence has been properly

assessed.’
[94]
(d)
If
‘
the
alleged lack of objectivity or independence, whether due to alleged
political interference, or influence by outside intelligence

agencies, or any other cause, is such that he might not receive a
constitutionally fair trial, then a variety of remedies might
be
available, in the discretion of the court, in terms of s 172(1)
(b)
of the Constitution, as the circumstances may demand…’.
[95]
But
until determined, usually but not necessarily invariably on a
conspectus of all the evidence at the end of the trial, an appeal

should not be entertained. No determination has been made in the
trial to date regarding Mr Zuma’s fair trial rights, because

the issue has not been properly raised.
(e)
Any finding whether Mr Zuma would have received a fair trial as
provided by s 35(3)
of the Constitution, when properly raised as
an issue, should be determined at the end of the trial after the
evidence on both
sides has been heard, unless this court, in the
exercise of its discretion, decides that it would be appropriate to
determine any
such question earlier during the trial. Such a
discretionary determination has not yet been made.
(f)
Should Mr Zuma be convicted and sentenced at the end of the trial, he
could apply
for leave to appeal against any adverse determination,
and he may also then appeal against the dismissal of the plea in
terms of
s 106(1)
(h)
of the CPA. Should he be acquitted, then
the enquiry into fair trial rights would be academic and will fall
away.
(g)
Resorting to appeals prior to finalisation of a trial
can result in delay,
fragmentation of the process, determination of issues based on an
inadequate record, and the expenditure of
time and effort on issues
which may not have arisen had the process been left to run its
ordinary course.
[96]
(h)
Accordingly, what could be a piecemeal appeal, was allowed in the
past only in those ‘
rare
cases where grave injustice might otherwise result or where justice
might not by other means be attained
’.
[97]
An appeal at the end of the trial against the dismissal of the
special plea, should Mr Zuma be convicted, would be a means by which

justice will be assured to him and attained.
(i)
It is inimical to the interests of justice to permit an appeal, if
the applicant
for leave to appeal has poor prospects of success in
the intended appeal. Mr Zuma’s prospects of success in respect
of the
special plea are poor, for reasons already briefly alluded to
in the introduction above and which will be amplified below.
(j)
The prosecution and resultant trial have already been delayed
considerably and
unreasonably, which makes an intermediate appeal,
which will cause even further delay, contrary to the interests of
justice, as
it will prejudice the interests of the general public
represented by the State, and the interests of Thales, impairing its
rights
in s 35(3) of the Constitution. A speedy trial and finality in
litigation, are vital constitutional imperatives.
[98]
(k)
Allowing an appeal
at this stage would be contrary to this court’s duty to
actively discourage preliminary and piecemeal litigation,
but
obviously always within the confines of fairness.
[99]
[87]
I
accordingly conclude that an appeal, and hence an application for
leave to appeal in respect thereof, should not be entertained
at this
stage of the criminal trial against Mr Zuma. If that was the only
issue in the application for leave to appeal, I might
have been
disposed to granting leave to appeal to the SCA on the basis that the
law might be uncertain on this issue. However,
I consider the lack of
any prospects of success in the appeal to be dispositive of the
application for leave to appeal, even assuming
an appeal in respect
of the main judgment is available at this stage. I turn then to deal
with the prospects of success of the
appeal.
The
merits of the application for leave to appeal
[88]
This
part of the judgment proceeds on the basis that it is accepted
for
the purposes of argument, that a dismissal of a plea in terms of s
106(1)
(h)
is appealable at this stage of the proceedings. I am satisfied that
the appeal has no reasonable prospects of success. I refer
for that
conclusion to what was set out at the commencement of this judgment.
Briefly restated, Mr Zuma raises various factual
complaints which he
maintains point to an alleged lack of independence and objectivity on
the part of Mr Downer, and which he contends
will result in him not
receiving a fair trial. That was the basis also advanced by the
accused in
Porritt
in support of their plea in terms of s 106(1)
(h)
.
[100]
Their special plea was dismissed by the SCA.
[89]
Mr
Zuma’s special plea in terms of s 106(1)
(h)
was the sole issue before me for decision.
[101]
My
primary finding in the main judgment was that the word ‘title’
in s 106(1)
(h)
should be assigned the narrow meaning of a prosecutor’s
standing or authority to prosecute, and not the wider meaning for

which the first accused contended.
That
primary
finding was based firstly on the findings in
Ndluli
v Wilken NO en andere
[102]
that in the case of a prosecution at the instance of the State, the
word ‘prosecutor’ in s 106(1)
(h)
refers not to the State, but to the person who acts as prosecutor in
the court,
[103]
and that the
objection in a plea in terms of s 106(1)
(h)
is an objection, not to the right or power of the State to prosecute
the accused, but the right of that person to act as prosecutor
in the
case.
[104]
Secondly, the
primary finding was based on the
ratio
decidendi
in
Porritt
and another v National Director of Public Prosecutions and
others
[105]
that a special plea under s 106(1)
(h)
does not avail an accused who believes the retention of a person as
prosecutor would infringe his right to a fair trial provided
in
s 35(3) of the Constitution. That is the
ratio,
regardless of the factual basis on which it is believed that the fair
trial rights might be infringed. The impairment of fair trial
rights,
on the authority of
Porritt,
does not affect a prosecutor’s title to prosecute.
[106]
[90]
That
unanimous finding by the SCA disposed of the word ‘title’
having a wider meaning to include a lack of impartiality
or a lack of
independence, for whatever reason and specifically those complained
of by Mr Zuma. The SCA in effect approved of the
narrow meaning of
the phrase ‘title to prosecute’.
[91]
The
judgment in
Porritt
is not
only dispositive of the special plea which served before me, but, in
addition, is binding on me. Similarly, the ratio in
Porritt
is also dispositive of this application for leave to appeal. Indeed
the interpretation of ‘
title
’
in
Porritt
,
would be equally binding on a full court of this division, and will
be binding on the SCA unless that court is satisfied that
its
interpretation in
Porritt
was clearly wrong.
[107]
I am
not persuaded that the SCA in
Porritt
was
clearly wrong. I have no discretion in the matter. It is not
incumbent on me to second-guess the SCA and whether it might want
to
conclude that it was clearly wrong in
Porritt
,
and wishes to revisit that decision. That is not how our system of
judicial precedent operates. If Mr Zuma is advised that the
SCA
should and will revisit its decision, then the appropriate procedure
is for him to petition the SCA, assuming, of course, that
the main
judgment is appealable at this stage.
[92]
In
the alternative to my primary finding,
[108]
and on the assumption that the word
‘
title
’
in s 106(1)
(h)
bears the wider meaning for which Mr Zuma contended and/or that the
issue before me extended to a separate independent application
for Mr
Downer’s removal as the prosecutor, I also found against Mr
Zuma. I do not intend repeating that argument in this
judgment but
simply refer to the main judgment, as the primary finding which I
made is conclusive regarding the merits of the application
for leave
to appeal.
[93]
The
application for leave to appeal accordingly falls to be dismissed on
its merits.
Section
108 of the CPA and having the special plea ‘tried’
[94]
The
argument was advanced, seemingly as a further ground for the grant of
leave to appeal, that the special plea should have been
referred to a
viva
voce
trial, with witnesses to be subpoenaed, testifying, being cross
examined, re-examined, and so forth, because of the wording of
s 108
of the CPA.
[95]
Section
108 of the CPA provides:
‘
108.   Issues
raised by plea to be tried.—If an accused pleads a plea other
than a plea of guilty, he shall,
subject to the provisions of
sections 115, 122 and 141 (3), by such plea be deemed to demand that
the issues raised by the plea
be tried.’
Emphasis
was placed by Mr Zuma’s counsel on the word ‘tried’.
[96]
Section
173 of the Constitution provides:
‘
Inherent
power – The Constitutional Court, the Supreme Court of Appeal
and the High Court of South Africa each has the inherent
power to
protect and regulate their own process, and to develop the common
law, taking into account the interests of justice.’
[97]
Section
108 of the CPA read with s 173 of the Constitution entrust a court
with a discretion to decide how special pleas should
be ‘tried’.
It was decided, that being the basis also on which Mr Zuma presented
his special plea, that the special
plea would be tried on affidavits,
for reasons advanced in the main judgment at paragraphs 46 to 60.
These include, that the special
plea was raised, in the first place,
by Mr Zuma by way of an affidavit; Mr Zuma chose to substantiate his
special plea by means
of a lengthy plea explanation in the form of a
founding affidavit, and that he thereafter agreed with the State that
his plea would
be tried on the exchange of affidavits, without demur.
It clearly was appropriate to decide the special plea in this manner.
Consequently,
it was ordered by this court when the special plea was
entered on 26 May 2021, that further affidavits would be exchanged to
define
the contentions of the parties. Resolving the plea on
affidavits was in the best interests of justice, because, as it
turned out,
Mr Zuma’s special plea was excipiable. It was
unsustainable in law on his own version, because the word ‘title’

in s 106(1)
(h)
has been held in case authority, which is binding on this court, to
bear the meaning of a prosecutor’s standing or authority
to
prosecute, for which the State contended, and not  the wider
meaning for which Mr Zuma contended.
[98]
No
basis has been advanced to contend that my discretion to have the
special plea tried on the affidavits was not exercised judicially,
or
falls to be set aside. Mr Zuma has not pointed to any legally
cognizable prejudice.
[99]
Insofar as
this argument constitutes a separate and additional ground of appeal,
it too lacks merit.
The
application to adduce further evidence on appeal
[100]
Mr
Zuma has applied, in terms of s 316(5) of the CPA, for leave to
adduce further evidence in respect of the prospective appeal.
The
further evidence relates to his affidavit dated 21 October 2021 in
support of a criminal complaint against Mr Downer which
he lodged
with the South African Police Service in Pietermaritzburg on that
day.
[101]
Section
316(5) of the CPA provides as follows:
‘
(5)
(a)
An application for leave to
appeal
under
subsection (1)
may be
accompanied by an application to adduce further evidence (hereafter
in this section referred to as an application for further
evidence)
relating to the prospective appeal.
(b)
An
application for further evidence must be supported by an affidavit
stating that—
(i)
further evidence which
would presumably be accepted as true, is available;
(ii)
if accepted the evidence could
reasonably lead to a different verdict or sentence;
and
(iii)
there is a reasonably acceptable
explanation for the failure to produce the evidence before
the close
of the trial.
(c)
The
court granting an application for further evidence must—
(i)
receive that evidence and
further evidence rendered necessary thereby, including
evidence in
rebuttal called by the prosecutor and evidence called by the court;
and
(ii)
record its findings or views
with regard to that evidence, including the cogency and the

sufficiency of the evidence, and the demeanour and credibility of any
witness.
’
(emphasis
added.)
[102]
The CPA
regulates applications to adduce further evidence, after conviction
in the High Court, in two instances. First, in s 316(5)
and, second,
in ss 316(13)
(d)
and
(e)
.
[109]
The
application for leave to appeal ‘under subsection (1)’ is
one
after
conviction
.
As
Mr Zuma has not been convicted and sentenced, his application for
leave to appeal is not brought under s 316(1) of the CPA, and
his
application for further evidence is consequently not permitted by s
316(5). That disposes of the application for further evidence.
[103]
Alternatively,
as the application for leave to appeal falls to be dismissed on its
merits, the application to adduce further evidence
should meet a
similar fate for that reason alone, as there is no prospective appeal
in respect of which such evidence could be
adduced.
[104]
Furthermore,
the application for further evidence is ill-founded.
The
affidavit sought to be introduced seeks to deal with Mr Downer
allegedly ‘unlawfully providing information about the trial
to
persons who are not authorised to be in possession of that
information’. This is alleged to be ‘material to the

consideration of the s 106(1)
(h)
plea as it adds “further grounds” that were not
considered by the court at the time when the matter was adjudicated.

. .’.
[105]
N
one
of the evidence in Mr Zuma’s affidavit of 21 October 2021
however relates to the issue of whether or not Mr Downer lacks
the
title to prosecute the accused in this matter based on the test as
set out in
Porritt.
[110]
[106]
The
three requirements in s 316(5)
(b)
of the CPA have also not been met. Much of what is contained in Mr
Zuma’s affidavit of 21 October 2021 is not ‘further

evidence’ but a repetition of matters raised in his affidavits
in support of the special plea. In view of my earlier conclusions

regarding the prospects of success of the appeal in respect of the
main judgment, I do not deal further with these requirements
in this
judgment, save for the following brief comments:
(a)
As regards the requirement in s 316(5)
(b)
(i),
as appears from Mr Downer’s main answering affidavit in
response to the special plea, he denied the allegation and the
main
judgment rejected the allegation.
[111]
Further, regarding the intended evidence concerning Mr Downer’s
alleged leaks to Mr Sole, it is among the allegations
which Mr Zuma,
through his counsel, at the hearing of the permanent stay
application, expressly disavowed and accordingly waived.
[112]
The alleged leaks to Mr Sole are accordingly no longer an issue on
which reliance can be placed in this matter.
(b)
Regarding the requirements in s 316(5)
(b)
(ii), even if they
were accepted, none of the three allegations in Mr Zuma’s
affidavit of 21 October 2021 concerning
Mr Downer –
namely, the allegations referred to above, and the further allegation
in para 15 of that affidavit that the prosecution
team authorised
Prof Sarkin to send his life partner to handle sensitive medical
information without the necessary authorization,
would justify a
finding in Mr Zuma’s favour on the special plea, or his
acquittal in terms of s 106(4). At best for Mr Zuma,
if these
allegations were accepted, they might constitute irregularities, but
not irregularities affecting the merits of the prosecution
or, on the
evidence presently before this court, the fairness of the trial. The
laying of the criminal charge against Mr Downer
is not a fact which
could reasonably lead to a different verdict or sentence in Mr Zuma’s
criminal trial, and would not lead
to a different outcome in relation
to his special plea under s 106(1)
(h)
, as it is irrelevant to
both.
(c)
Regarding
the requirement in s 316(5)
(b)
(iii),
insofar as Mr Zuma’s affidavit of 21 October 2021 contains
evidence about matters not already canvassed in his affidavits
in
support of the special plea, there is no acceptable explanation for
it not having been produced previously or at least before
the main
judgment was delivered on 26 October 2021. There is also no
explanation why Mr Zuma did not adduce evidence in support
of his
allegation concerning Prof Sarkin’s life partner. If Mr Zuma
was not available to raise these in an affidavit, then
Mr Thusini
could have made an affidavit on his behalf explaining the
circumstances. Mr Thusini has previously made numerous affidavits
on
Mr Zuma’s behalf, including detailed supplementary founding and
supplementary replying affidavits concerning events after
the special
plea was first raised in May 2021.
[107]
The
application to adduce further evidence accordingly is dismissed. The
refusal of that application does not require an application
for leave
to appeal. Mr Zuma has his remedies in terms of s 316(8) of the
CPA.
[113]
The
relief sought on the grounds of s 317 of the CPA
[108]
In
paragraph 30 of his ‘conditional counter-application’ Mr
Zuma states:
‘
I
am advised that it will be argued that in addition and/or
alternatively to the 316 grounds,
leave
to appeal to the Supreme Court of Appeal ought to be granted on the
grounds of
section 319
and/or
section 317
of the CPA.’
(emphasis
added)
[109]
The
relevant provisions of s 317 of the CPA provide:
‘
(1)
If an accused is of the view that any of the proceedings in
connection with or during his or her trial before a High Court are

irregular or not according to law, he or she may, either during his
or her trial or within a period of 14 days after his or her

conviction or within such extended period as may upon application (in
this section referred to as an application for condonation)
on good
cause be allowed, apply for a special entry to be made on the record
(in this section referred to as an application for
a special entry)
stating in what respect the proceedings are alleged to be irregular
or not according to law, and such a special
entry shall, upon such
application for a special entry, be made unless the court to which or
the judge to whom the application
for a special entry is made is of
the opinion that the application is not made
bona
fide
or
that it is frivolous or absurd or that the granting of the
application would be an abuse of the process of the court; and
(2)  Save
as hereinafter provided, an application for condonation or for a
special entry shall be made to the judge who
presided at the trial
or, if he is not available, or, if in the case of a conviction before
a circuit court the said court is not
sitting, to any other judge of
the provincial or local division of which that judge was a member
when he so presided.
(3) .
. .
(4) .
. .
(5)  If
an application for condonation or for a special entry is refused, the
accused may, within a period of 21 days
of such refusal or within
such extended period as may on good cause shown, be allowed, by
petition addressed to the President of
the Supreme Court of Appeal,
apply to the Supreme Court of Appeal for condonation or for a special
entry to be made on the record
stating in what respect the
proceedings are alleged to be irregular or not according to law, as
the case may be, and thereupon
the provisions of subsections (11),
(12), (13), (14) and (15) of section 316 shall
mutatis
mutandis
apply.’
[110]
Section
318 of the CPA provides that:
‘
(1)
If
a special
entry
is made on the record,
the
person convicted may appeal to the Appellate Division against his
conviction
on
the ground of the irregularity stated in the special entry if, within
a period of twenty-one days after entry is so made or within
such
extended period as may on good cause be allowed, notice of appeal has
been given to the registrar of the Appellate Division
and to the
registrar of the provincial or local division, other than a circuit
court, within whose area of jurisdiction the trial
took place, and of
which the judge who presided at the trial was a member when he so
presided.
(2)
The
registrar
of such provincial or local division shall forthwith after receiving
such notice give notice thereof to the attorney-general and
shall
transmit to the registrar of the Appellate Division
a certified copy of the record, including copies of the evidence,
whether oral or documentary, taken or admitted at the trial and
of
the special entry: Provided that with the consent of the accused and
the attorney-general, the registrar concerned may, instead
of
transmitting the whole record, transmit copies, one of which shall be
certified, of such parts of the record as may be agreed
upon by the
attorney-general and the accused to be sufficient, in which event the
Appellate Division may nevertheless call for
the production of the
whole record.
’
(emphasis
added)
[111]
The
involvement of the trial judge in the appeal process contemplated in
s 318 in respect of an entry in terms of s 317,
or the
reservation of a question of law in terms of s 319, is limited.
The registrar of the court has specific duties. As
regards the
involvement of the trial judge, s 320 simply requires that:
‘
The
judge or judges, as the case may be, of any court before whom a
person is convicted shall, in the case of an appeal under section
316
or 316B or of an application for a special entry under section 317 or
the reservation of a question of law under section 319
or an
application to the court of appeal for leave to appeal or for a
special entry under this Act, furnish to the registrar a
report
giving his, her or their opinion upon the case or upon any point
arising in the case, and such report, which shall form
part of the
record, shall without delay be forwarded by the registrar to the
registrar of the court of appeal.’
[114]
[112]
The
wording of s 318 makes it clear that it is only a ‘person
convicted
who may appeal to the Appellate Division’, now the SCA
[115]
in respect of an entry pursuant to s 317 of an irregularity or
illegality. Mr Zuma has not been convicted, accordingly he may not

now appeal to the SCA. Entries of an irregularity are not appealable
in the absence of conviction, as findings on appeal on whether
there
was an irregularity, would be irrelevant in the event of an
acquittal. There can be no appeal at this stage prior to conviction,

and accordingly also no application seeking leave to appeal ‘on
the grounds of section . . . 317 of the CPA’, as has
been
sought in paragraph 30 of Mr Zuma’s replying affidavit.
That
disposes of the application for leave to appeal being granted in
respect of any alleged irregularity at this stage of the proceedings.
[113]
Any
approach to the SCA in respect of an alleged irregularity or
illegality in terms of s 317, furthermore does not require that
leave
to appeal be granted.
[116]
[114]
Mr
Zuma does not however only seek leave to appeal ‘on the grounds
of section . . .317 of the CPA’. In paragraph 22
of his
replying affidavit he states:
‘
I
hereby separately lodge an application in terms of . . .section 317
of the CPA for . . .the making of a special entry.
[115]
Apart
from the allegations of the alleged ‘irregularity’ caused
by me regarding the fixing of dates for the exchange
of affidavits,
referred to in paragraph 14 above, and it being contended that Mr
Downer should not have been the deponent to the
answering affidavit
because of a conflict of interest, the basis for Mr Zuma claiming
that any further irregularity or illegality
has occurred, is not
clear. The irregularity is not described in certain terms. To avoid
any possible misunderstanding of the contentions
advanced in this
regard, I can do no better than to quote the paragraphs from Mr
Zuma’s conditional counter-application on
which reliance is
placed by him:
’
22.
In the event that this Honourable Court, nevertheless and in spite of
what has already been submitted
above, uphold the objection of the
NPA, I hereby separately lodged an application in terms of section
319 and/or section 317 of
the CPA for the reservation of several
questions of law for adjudication and determination by the SCA and/or
the making of a special
entry.
The
legal issues
23.
This I do by placing reliance on some of the purely legal grounds of
appeal contained in
the notice of application for leave to appeal,
which must be read as if specifically incorporated herein, as well as
spelling out
the factual bases, as spelt out below.
24.
In any event, the entire special plea proceedings are, by definition,
based on a point of
law. A special plea or exception always raises a
point of law.
25.
I am advised that in respect of the section 106(1)(h) proceedings,
there is precedence (sic)
for this approach, as exemplified in the
Porritt
case and supported by other binding authorities which
will be relied upon during legal argument. Academic authorities also
sufficiently
support this approach.
26.
There are no specific timelines within which such an application may
be brought and it is
now being brought within a reasonable time,
alternatively, at the right time.
27.
Additional issues which justify referral to the SCA in terms of
section 319 and/or section
317 of the CPA are the irregularities
identified in my two objections raised above about the irregular
procedure and/or the inappropriate
deponent.
The
factual bases
28.
The factual bases for the special plea are largely common cause. The
main application was
primarily based on a set of admitted facts
extracted from the answering affidavit.
29.
Regarding the preliminary objections, the factual bases therefor are
spelt out in the earlier
part of this affidavit.
30.
I am advised that it will be argued that in addition and/or
alternatively to the section
316 grounds,
leave
to appeal to the Supreme Court of Appeal ought to be granted on the
grounds of section 319 and/or section 317 of the CPA
.’
(emphasis
added)
[116]
Insofar
as the conditional counter-application is not just only for leave to
appeal in respect of an irregularity to be pursued
in terms of s 317
at this stage, but is also an application for a special entry to be
made,  I comment as follows:
(a)
Firstly, this is not the relief which Mr Zuma concludes with in his
conditional counter-application,
as is evident from the content of
paragraph 30 of his replying affidavit quoted above.
(b)
Secondly, in his replying affidavit, Mr Zuma does not say in what
respects he alleges that
the proceedings of this court, culminating
in its dismissal of his special plea in terms of s 106(1)
(h)
of the CPA, are irregular and not according to law. The State has
pointed out that his heads of argument do not refer to s 317
at all.
(c)
Thirdly, the wording of the entry has not been suggested, and I, with
respect, find
it extremely difficult, if not impossible, to formulate
any entry or entries based on the vague allegations made. The legal
principles
are clear. The entry must not be put in the form of a
question, but in the form of a factual finding accompanied by an
allegation
that the irregularity amounted to a failure of
justice.
[117]
It must be
couched as a positive factual statement accompanied by an allegation
by the accused that the irregularity was such that
justice was in
fact not done. Insofar as the two ‘irregularities’
arising from the fixing of dates for the exchange
of affidavits and
Mr Downer’s alleged conflict of interest are concerned,
although these are identifiable, they are not irregularities.
They
have been dealt with earlier in this judgment. Even if they are
irregularities, they would not require that a special entry
be made,
as the facts in support thereof appear from the record.
[118]
The
s 317 procedure must not be followed where the alleged irregularity
or illegality appears from the record.
[119]
As
regards the remainder of the allegations,
I
have read and re-read the allegations in the replying affidavit, but
am, with respect, unable to formulate any possible irregularity
as
required by s 317 for consideration by the SCA.
(d)
Fourthly,
insofar as Mr Zuma in paragraph 27 of his replying affidavit relies
on this court’s alleged directive that the State
deliver an
answering affidavit to his application for leave to appeal, and on Mr
Downer’s alleged conflict of interest, as
irregularities, if
indeed as a matter of law they were irregularities, they occurred
subsequent to the dismissal of his special
plea and therefore had no
bearing on the main judgment. Neither Mr Zuma’s objection to
this court’s alleged directive
that the State deliver an
affidavit in answer to his application for leave to appeal, nor his
objection to Mr Downer deposing to
the affidavit on behalf of the
State, is relevant to the issues whether he should be convicted or
acquitted of the criminal charges
which he faces.
(e)
Fifthly,
s 317(1) provides that a special entry shall not be made if ‘the
judge to whom the application . . . is made
is
of the opinion that the application is not made
bona
fide
or that it is frivolous or absurd or that the granting of the
application would be an abuse of the process of the court’.
As
to what the meaning of ‘frivolous’ and ‘absurd’
is,
‘”Frivolous”
means characterised by a lack of seriousness, as would be a point
which is obviously insufficient.
“Absurd” applies to an
application which is inconsistent with reason or common sense and
thus unworthy of serious consideration.
. .’, being so devoid
of merit that no reasonable person would expect it to succeed as a
matter of certainty.
[120]
The objections raised are frivolous and absurd.
I
t
is further curious that the allegation that the determination of
dates for the filing of affidavits was irregular, was made in
a
replying affidavit by Mr Zuma, and that a ‘second’
replying affidavit was also filed by Mr Zuma’s attorney.
Mr
Thusini could as easily have deposed to a single replying affidavit
dealing with the contents of the two replying affidavits.
He would
then have to have made the allegation of irregularity with full
knowledge of the context and the contents of what had
been conveyed
in the exchange of correspondence set out earlier. It would suggest
that the separate replying affidavit by Mr Zuma
was prepared by
design to impute an ‘irregularity’ without the full
context being explained. That raises questions
as to whether the
raising of this ‘irregularity’ by Mr Zuma, and him now
seeking a ‘special entry’ in respect
thereof, was done in
good faith.
(f)
Sixthly, an application for a special entry should also not be made
if the granting
of the application would be an abuse of the process
of the court.
[121]
Having regard to the lack of prospects of success, an application for
such an entry would amount to an abuse of the process
of this
court
[122]
and should not be
made.
[117]
Even
where an irregularity or illegality has occurred, the question
remains whether the irregularity or illegality caused a failure
of
justice, as provided in the proviso to s 322 of the CPA.
[123]
[118]
Further,
if the application for a special entry is wrongly refused, Mr Zuma’s
remedies would lie in terms of s 317(5) of the
CPA. That provision
does not require leave to appeal, as Mr Zuma seeks in paragraph 30 of
his conditional counter-application.
[119]
In
conclusion, in an application for leave to appeal against the refusal
to note a special entry, it is necessary for an applicant
to show a
reasonable prospect of success before the court deciding the special
entry on appeal.
[124]
Thus
even if the conditional counter-application is construed as an appeal
against a refusal to make a special entry, Mr Zuma has
failed to show
that his appeal has prospects of success.
[120]
The
application for a special entry of an irregularity or illegality, or
for leave to appeal to be granted on the grounds of s 317
in respect
thereof, both fall to be dismissed.
The
relief sought on the grounds of s 319 of the CPA
[121]
Mr
Zuma, with reliance on the same basis quoted above from his replying
affidavit in his application for leave to appeal,
[125]
in his conditional counter-application in support of his application
for a special entry in terms of s 317 of the CPA,  also
applies
that ‘
leave
to appeal
to the Supreme Court of Appeal ought to be granted on the grounds of
section 319  . . .of the CPA’ for the reservation
of
questions of law.
[122]
The
response to that relief is similar to that raised in respect of the
relief sought on the grounds of s 317 of the CPA.
[123]
Section
319 of the CPA provides:
‘
(1)
If
any question of law arises on the trial in a superior court of any
person for any offence, that court may of its own motion or
at the
request either of the prosecutor or the accused reserve that question
for the consideration of the Appellate Division, and
thereupon the
first-mentioned court shall state the question reserved and shall
direct that it be specially entered in the record
and that a copy
thereof be transmitted to the registrar of the Appellate Division.
(2)  The
grounds upon which any objection to an indictment is taken shall, for
the purposes of this section, be deemed
to be questions of law.
(3)  The
provisions of sections 317 (2), (4) and (5) and 318 (2) shall apply
mutatis mutandis
with
reference to all proceedings under this section
.’
[124]
As
regards when the reservation of a legal issue should be raised, it
has been said that  ‘[t]he application is not made
[or are
not normally made
[126]
]
during the trial, but at the end of it’,
[127]
but no time limit is prescribed and questions of law have ‘been
reserved more than a month after the trial’.
[128]
But
in
S
v Khoza en andere
[129]
the Appellate Division
held that:
‘
'n
Regsvraag kan alleenlik voorbehou word op aandrang van 'n
beskuldigde
indien hy
skuldig bevind is
.’
[130]
(emphasis added)
Mr
Zuma has not been convicted
.
[125]
Insofar
as Mr Zuma in paragraph 22 of his replying affidavit has ‘lodged
an application in terms of section 319 . . .of the
CPA for the
reservation of several questions of law for adjudication and
determination by the SCA . . .’ and that it is refused,
I
respond briefly as follows:
[126]
It
is not clear which questions Mr Zuma wishes to have reserved.
Whatever they may be, if refused, Mr Zuma would have the remedies
in
s 319(3) read with s 317(5) and s 318(2) of the CPA. These do
not require an application for leave to appeal, but an approach
to
the President of the SCA.
Hiemstra
confirms that:
‘
There
is a possibility of appeal against a refusal because subsection (3)
makes the provisions of sections 317(2), (3), (4) and
(5) and 318(2)
applicable to this procedure, with the result that
the
President of the Appeal Court can be approached
in terms of section 317(5) to reserve the question of law if the
trial court refused to reserve it
.’
[131]
(emphasis
added)
If
a trial court refuses a request to reserve a question of law, then
the next step is to petition the President of the Supreme
Court of
Appeal.
[132]
[127]
Whether
a question of law should be reserved, ‘is a matter of
discretion’ and ‘if the discretion was properly

exercised, it is unlikely that [an appeal court] will
interfere’.
[133]
In
casu,
no case is made out for a discretion to be exercised in favour of the
reservation of any question of law.
[128]
As
regards the merits of a request for the reservation of a question of
law, I comment briefly as follows. In the past, s 319 has
at times
been ‘used as a device enabling appeals on facts by clothing a
question of fact as one of law, for example “whether
there was
legal evidence to support a conviction”’.
[134]
It came to be accepted that if a ‘judge found facts proven but
did not conclude guilt from those proven facts, the alleged
faulty
conclusion based on the proven facts is a question of law. The
question of law is then whether the proven facts constitute
the
commission of the crime’.
[135]
But the procedure under s 319 could not be used when the factual
basis is uncertain. And where a question of law is formulated,
it
must be done clearly and comprehensively.
[136]
[129]
In
Director
of Public Prosecutions, Western Cape v Schoeman and another
[137]
the
SCA listed the three requirements for section 319 as follows:
‘
Before
a question of law may be reserved under s 319 three requisites must
be met. First, it is essential that the question is framed

accurately, leaving no doubt what the legal point is. Secondly, the
facts upon which the point hinges must be clear. Thirdly, they
should
be set out fully in the record, together with the question of law.’
[130]
Mr Zuma has
not identified the questions of law to be considered beyond referring
to ‘
some
of the purely legal grounds of appeal contained in the notice of
application [for leave to appeal]’
[138]
but then adds,  ‘[i]n any event, the
entire
special plea proceedings are, by definition, based on a point of
law’;
[139]
and,
finally, he contends that ‘[a]dditional issues which justify
referral to the SCA in terms of section 319 and/or section
317 of the
CPA are the irregularities identified in my two objections raised
above about the irregular procedure and/or the inappropriate

deponent’.
[140]
[131]
The
aforesaid description by Mr Zuma, insofar as it may refer to other
questions of law, is too vague to satisfy the legal requirement
of
certainty which is required for the proper reservation of questions
of law.
[132]
Insofar
as Mr Zuma relies on ‘the entire special plea proceedings’,
the question whether there is evidence which support
his grounds of
complaint, is a question of fact, and not a question of law. This is
evident from the distinction which the Constitutional
Court drew
between questions of fact and questions of law in
S
v Basson.
[141]
That will not qualify for reservation as questions of law.
[133]
It
might be, as appears from paragraph 11 of Mr Zuma’s heads of
argument, that the application in terms of s 319(1) may now
be
confined to the first of those objections, namely his contention that
this court could not validly direct that answering and
replying
affidavits be filed in the application for leave to appeal. This
issue has however been dealt with earlier in this judgment
as being
without any substance. Similarly in regard to the point regarding Mr
Downer’s alleged conflict of interest.
[134]
Even
where a question of law is involved, a
court
will not exercise its  discretion to reserve a question of law
for consideration by the SCA if there is no reasonable
prospect of a
finding by the SCA that a mistake of law was made.
[142]
Not one of Mr Zuma’s grounds in his application for leave to
appeal bears a reasonable prospect of success, for reasons set
out
earlier. The primary issue in the main judgment has been decided
authoritatively by the SCA.
[135]
The
application to reserve question(s) of law, or for leave to appeal in
respect of the refusal to reserve questions of law, accordingly
fall
to be dismissed.
Any
possible additional grounds of appeal not dealt with in this judgment
[136]
Any
further ‘grounds’ advanced in the application for leave
to appeal, are not dealt with as it is, respectfully, unnecessary
to
do so. The argument addressed in court had raised only the issues
dealt with in this judgment. The reader of this judgment is

respectfully referred to the reasons and conclusions contained in the
main judgment in answer to any grounds of appeal which I
might have
not dealt with in this judgment.
Conclusion
[137]
To
summarize, t
he
application for leave to appeal and related applications which
include the application to adduce further evidence on appeal,
the
application to enter a special entry on the record or for leave to
appeal in respect thereof, and the application for the reservation
of
questions of law for the consideration by the SCA or for leave to
appeal in respect of the refusal thereof, are all dismissed.
[138]
The
interests of justice require that the matter now proceeds to trial in
respect of the not guilty pleas of the two accused.
Order
[139]
I
issue the following orders:
1.
T
he
application for leave to appeal and all related applications, which
include the application to adduce further evidence on appeal
in terms
of section 316(5)(a) of the
Criminal Procedure Act 1977
, the
application for leave to appeal to the Supreme Court of Appeal on the
grounds of
section 317
of the
Criminal Procedure Act 1977
and/or for
a special entry of an irregularity or illegality to be made on the
record, and the application for leave to appeal to
the Supreme Court
of Appeal on the grounds of
section 319
of the
Criminal Procedure Act
1977
and/or for the reservation of questions of law for consideration
by the SCA, are all dismissed.
2.
The
criminal trial shall proceed during the second and third terms of the
2022 court calendar of this court, where it has been set
down, as
previously agreed by all the parties, commencing at 10h00 on 11 April
2022, being the date to which the trial was adjourned
on 26 October
2021.
________________________
KOEN
J
APPEARANCES
For
the State:
A
M Breitenbach SC
N
Mayosi
H
Rajah
Instructed
by:
The
National Prosecuting Authority
Pietermaritzburg
For
the first accused:
D
Mpofu SC
T
Masuku SC
M
Qofa
N
Buthelezi
N
Xulu
Instructed
by:
BM
Thusini Inc
For
the second accused:
S
Jackson
Instructed
by:
Herbert
Smith Freehills
[1]
Reported as
S
v Zuma and another
[2021]
ZAKZPHC 89;
[2022] 1 All SA 533
(KZP).
[2]
National
Director of
Public Prosecutions v Zuma (Mbeki and another intervening)
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
paras
15 -19.
[3]
National
Director of Public Prosecutions v Zuma (Mbeki and another
intervening)
[2009]
ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para 15.
[4]
Although the
ratio
in
Ndluli
v Wilken NO en andere
[1990] ZASCA 107
;
1991 (1) SA 297
(A);
[1991] 1 All SA 256
(A) was accepted in the
argument leading to the main judgment, in the application for leave
to appeal, Mr Masuku SC disputed
the correctness thereof
.
Ndluli v Wilken NO
is
binding on me. I am furthermore satisfied that it was correctly
decided, and that Mr Masuku’s submission is wrong.
[5]
Ndluli v Wilken
NO en andere
1991 (1) SA 297 (A); [1991] 1 All SA 256 (A).
[6]
Porritt and another v National
Director of Public Prosecutions and others
[2014]
ZASCA 168; 2015 (1) SACR 533 (SCA); [2015] 1 All SA 169 (SCA).
[7]
Whether
fair trial rights are infringed is an issue for determination by the
trial court when in its discretion considered appropriate,
and when
the need to address such alleged infringement rights arises. The
stage where it will be best considered, is in the discretion
of the
trial court. Often that might only be after ‘
the
materiality of any such allegations in respect of issues and
evidence revealed to be relevant, are established’ (see
main
judgment para 77, with reference to
Zuma
v Democratic Alliance and others; Acting National Director of Public
Prosecutions and another v Democratic Alliance and another
[2017] ZASCA 146
,
2018 (1) SA 200
(SCA),
[2017] 4 All SA 726
(SCA)
para 17).
It
might however happen that no evidence arising from a specific event
complained of, is adduced in the trial, in which event
the question
of a possible infringement of fair trial rights will not arise. It
is the quality and probative value of evidence
that a trial court
has to have regards to. I am bound by authority that the motive with
which it is adduced, is irrelevant: ‘The
motive behind the
prosecution is irrelevant.’(
National
Director of Public Prosecutions v Zuma (Mbeki and another
intervening)
[2009]
ZASCA 1
,
2009 (2) SA 277
(SCA),
[2009] 2 All SA 243
(SCA)
para
37).
[8]
Such an
application was, by the express agreement of counsel in
Porritt,
in addition to the plea in terms of
s 106(1)
(h)
,
before the court, but was dismissed on the facts. There is no such
agreement or application before this court
in
casu
.
[9]
The State, and the
attorneys of Mr Zuma and the second accused.
[10]
Ms Griffin is the
judge’s registrar.
[11]
3 December 2021
was the last day of the court term. I would be on recess duty from 4
to 19 December 2021.
[12]
‘
February
2022’ was substituted for ‘February 2020’.
[13]
That is Mr
Thusini’s letter dated 21 November 2021.
[14]
The
submissions advanced, quoting the heads, was that:
‘
While
the first accused is right in saying no law or rule of court
provides for the delivery of answering and replying affidavits
in an
application in the High Court for leave to appeal – our law
and rules of court are silent as to the manner in which
an
application for leave to appeal in the High Court is to be answered
– no law or rule of court prevents the Court, in
the exercise
of its inherent power to regulate its own process conferred by
section 173 of the Constitution of the Republic of
South Africa,
1996 (“the Constitution”), from requiring the delivery
of answering papers and permitting the delivery
of a replying
affidavit in such an application.
In
Phillips and
Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA
505
(CC) (“
Phillips
”) para 49 the Constitutional
Court (“CC”) said:
“
It
may be that the High Court could legitimately claim inherent power
of holding the scales of justice where no specific law directly

provides for a given situation or
where
there is a need to supplement an otherwise limited statutory
procedure
…. This can wait for a decision in the future when such a
case presents itself” (underlining added).
In
South African
Broadcasting Corp Ltd v National Director of Public Prosecutions and
Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) paras 35-36, the CC added:
“
The
power recognised in s 173 is a key tool for Courts to ensure their
own independence and impartiality. It recognises that Courts
have
the inherent power to regulate and protect their own process. A
primary purpose for the exercise of that power must be to
ensure
that proceedings before Courts are fair. It is therefore fitting
that the only qualification on the exercise of that power
contained
in section 173 is that Courts in exercising this power
must
take into account
the interests of justice” (underlining in the original).
In
PFE International
and Others v Industrial Development Corporation of South Africa
Ltd
2013 (1) SA 1
(CC) para 30, the CC, citing section 173, went
further than what it had envisaged in
Phillips
may validly be
done, saying:
“
Since
the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their

processes, taking into account the interests of justice. It is this
power that makes every superior court the master of its own
process.
It
enables a superior court to lay down a process to be followed in
particular cases, even if that process deviates from what
its rules
prescribe
.
Consistent with that power, this Court may in the interests of
justice depart from its own rules” (underlining added).’

(Formatting as per the heads of argument.)
It was also pointed out
in the State’s heads that Mr Zuma’s attorney, in his
replying affidavit to the application
in terms of section 316(5) of
the CPA, at para 5, conceded that the State is entitled to file an
answering affidavit in such
an application. It was further submitted
that ‘[n]owhere in the CPA or any rule of court is provision
made for the State
to do so, or for the applicant to reply’.
It is further pointed out that this is what happens in practice
where the State
is permitted to file answering affidavits in
applications ‘under section 316(5) of the CPA (
S v
Ngavonduueza
1997 (1) SACR 203
(NmH) at 205i-209h), just as it
may be permitted by the Court to do so in an application under
section 316(1)’.
The State accordingly
submitted that the issuing of the direction was a proper exercise of
this court’s inherent power to
regulate its own process.
[15]
This includes the powers
to
institute
and conduct such criminal proceedings on behalf of the State
(section 20(1)
(a)
of the NPA Act) and to carry out any necessary functions incidental
to instituting and conducting such criminal proceedings (section

20(1)
(b)
of the NPA Act).  Deposing to the State’s answering
affidavit in the present application would be incidental to such

criminal proceedings.
[16]
Which is not relevant to the present
discussion.
[17]
The phrase ‘resultant order’
was discussed in
S v
Mkhonza
2010 (1) SACR 602
(KZP) paras 26 – 33 in the context of s 309 of the CPA dealing
with appeals from lower courts, which, apart from the provisos
is
substantially similar to s 316. It was concluded at para 28,
referring to the decision of the Appellate Division in
S
v Marais
1982 (3) SA 988
(A), that ‘a resultant order is an order that follows upon the
conviction of the accused, either in lieu of or in addition
to the
sentence of the court, and that it should be penal in nature .’
[18]
S v Rosslee
1994 (2) SACR 441
(C) at 445F-H.
Rosslee
involved an issue regarding jurisdiction (see at 443A-D, as well as
the headnote for a summary of the facts). Orders regarding

jurisdiction in criminal matters are regarded as final order - see
S
v Mamase and others
2010
(1) SACR 121
(SCA) para 16 and
S
v De Beer and another
2006
(2) SACR 554
(SCA) para 5. See also
S
v Acting Regional Magistrate, Boksburg, and another
2011 (1) SACR 256
(GSJ) – held that the upholding of an
objection on a charge sheet is a final order and thus appealable
(para 23).
[19]
Wahlhaus and others v Additional
Magistrate, Johannesburg and another
1959 (3) SA 113
(A) at 120E. See also
S
v Western Areas Ltd and others
2005 (5) SA 214
(SCA) para 20.
[20]
S v Delport and others
[2014] ZASCA 197
,
2015 (1) SACR 620
(SCA) para 27.
[21]
S v Majola
1982
(1) SA 125
(A) t 132F-G.
[22]
Universal
City Studios Incorporated and others v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2)
SA 734
(A) at 754G.
[23]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p11. But see para 42
below.
[24]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p8 calls
s 316
‘an
involved piece of legislation’.
[25]
Director of Public Prosecutions,
Gauteng v KM
[2017] ZASCA
78
;
2017 (2) SACR 177
(SCA) para 34.
[26]
In the majority judgment.
[27]
The issue is not that
there is no right to appeal against the dismissal of the special
plea. The question is when an appeal is
permitted prior to
finalization of a trial.
[28]
Universal City
Studios Incorporated and others v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986
(2) SA 734
(A) at 754G.
[29]
S v Fourie
2001
(2) SACR 118
(SCA);
S
Terblanche (ed)
Du Toit:
Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p3 and ch31-p25.
[30]
S v Fourie
2001
(2) SACR 118
(SCA);
S
Terblanche (ed)
Du Toit:
Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p25.
[31]
That
position was not changed by s 168 of the Constitution.
[32]
Mr Zuma’s replying affidavit
paras 15 and 16.1.
[33]
Section 35 is
subject to s 36 of the Constitution which explicitly provides for
reasonable and necessary limitations on the right
entrenched in s
35. See also
S
Terblanche (ed)
Du Toit:
Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p102.
[34]
Mbambo v Minister of Defence
2005 (2) SA 226
(T) at 229E-G.
[35]
Chapter 31 of the
Criminal Procedure
Act 51 of 1977
generally. See also
Pretoria
Portland Cement Co Ltd and another v Competition Commission and
others
2003 (2) SA 385
(SCA) para 35, see also S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch30-p2.
[36]
S v Rens
[1995] ZACC 15
;
1996 (1) SA 1218
(CC);
1996 (2) BCLR 155
(CC),
although under the Interim Constitution, held that qualification of
the right of appeal through the leave to appeal process
was
constitutionally justifiable. See also
Mshudulu
v The State
[2014] ZAWCHC
198
para 17 for a comment under the Final Constitution.
S
v Rens
,
S
v Twala (South African Human Rights Commission Intervening)
[1999] ZACC 18
,
2000 (1) SA 879
(CC),
2000 (1) BCLR 106
(CC) paras 9
– 10 and
Shinga v The
State and another (Society of Advocates, Pietermaritzburg Bar, as
amicus curiae); O'Connell and others v The State
[2007] ZACC 3
;
2007 (4) SA 611
(CC) all held that the procedures as set out in the
Criminal Procedure Act 51 of 1977
, specifically
s 316
(ie appeals
from high courts) to be in line with the provisions of the
Constitution.
[37]
S v Twala (South African Human
Rights Commission Intervening)
[1999] ZACC 18
,
2000 (1) SA 879
(CC),
2000 (1) BCLR 106
(CC) paras 9
and 10. See also
S v Thebus
and another
2003 (6) SA
505 (CC).
[38]
S v Twala (South African Human
Rights Commission Intervening)
[1999] ZACC 18
,
2000 (1) SA 879
(CC),
2000 (1) BCLR 106
(CC) para 9.
[39]
S v Twala (South African Human
Rights Commission Intervening)
[1999] ZACC 18
,
2000 (1) SA 879
(CC),
2000 (1) BCLR 106
(CC) para
10.
[40]
S v Twala (South African Human
Rights Commission Intervening)
[1999] ZACC 18
,
2000 (1) SA 879
(CC),
2000 (1) BCLR 106
(CC) para
11.
[41]
Although the application for leave to
appeal also refers to leave to appeal being sought to the full court
of this division, that
would be futile exercise in view of the
relevant case authorities to which reference will be made below, all
being legally binding
on any full court, as much as they are binding
on this court.
[42]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) (SCA).
[43]
Albeit prior to
its substitution, which substitution does not affect the conclusion
expressed by the SCA, by s 4 of the Constitution
Seventeenth
Amendment Act of 2012. Prior to its amendment subsection (3) read as
follows:
‘
(3)
The Supreme Court of Appeal may decide appeals in any matter. It is
the highest court of appeal except in constitutional
matters, and
may decide only—
(a)
appeals;
(b)
issues
connected with appeals; and
(c)
any
other matter that may be referred to it in circumstances defined by
an Act of Parliament.’
[44]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 10.
[45]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 12.
[46]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 13.
[47]
Director of Public Prosecutions
and another v Phillips
[2012] ZASCA 140
,
[2012] 4 All SA 513
(SCA) para 30.
[48]
Minister of Safety and Security v
Hamilton
2001 (3) SA 50
(SCA) para 4 relied upon by the SCA in
S
v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 14.
[49]
In
S
v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) Howie JP at para 16
held:
‘
Not
only am I not persuaded that the statement in
Hamilton
is wrong, I am satisfied it is right. The reasons for my view have
really been stated already. What the quoted statement in
Hamilton
clearly meant was that one cannot look at s 168(3) alone because it
does not bear on appealability. One has to look at s 171
of the
Constitution and that leads one, inter alia, to the Supreme Court
Act. That approach does not involve using statutory
interpretation
to aid constitutional interpretation; it is based solely on
construction of the Constitution itself.’
[50]
See end of para 45
above.
[51]
See para 37 above.
[52]
That is chapter 31 of the CPA.
Chapter 31 is titled ‘Appeals in cases of criminal proceedings
in the superior courts’.
[53]
Zweni v Minister of Law and Order
1993 (1) SA 523 (A).
[54]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) paras 19-28.
[55]
Zweni v Minister of Law and Order
1993 (1) SA 523
(A).
Zweni
dealt with a decision refusing an application for an order
compelling the respondent to disclose the contents of a police
docket
for the purposes of the applicant’s damages. The
Zweni
test determined which decisions, traditionally referred to as
‘simply interlocutory orders’, would or would not amount

to a ‘judgment or order’ for the purposes of s 20(1)
of the Supreme Court Act. In
Phillips
v NDPP
2003 (6) SA 447
(SCA) paras 18 – 23 Howie P used the
Zweni
test in coming to the conclusion that a restraint order, made in
terms of the Prevention of Organised Crime Act 121 of 1998 (POCA),

was only of interim operation, and similar to interim interdicts and
attachment orders, was not definitive of and did not dispose
of the
matter. See also
NDPP v
Braun
2007 (4) SA 72
(C)
paras 11 – 12 which dealt with a search and seizure
application in terms of POCA. In
NDPP
v King
National
Director of Public Prosecutions v King
2010 (2) SACR 146
(SCA), paras 41 – 47, the respondent had
successfully obtained an order in the court a quo, in which he would
receive an
index of all the documents contained in section B and C
of the police docket. On appeal, at the instance of the NDPP, Harms
DP
held that this order is appealable as it is ‘final in
substance’ because the trial can only continue once there has

been compliance therewith. These were instances relating to pending
criminal trials, and not findings during the criminal trials

themselves.
[56]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) paras 19-28.
[57]
Act No
59
of 1959.
[58]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) paras 25 –
28. Although not (some are related to) criminal proceedings, the
approach has been applied, alternatively
referred to in
Philani-Ma-Afrika and
others v Mailula and others
[2009] ZASCA 115
,
2010 (2) SA 573
(SCA),
[2010] 1 All SA 459
(SCA);
International Trade
Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
,
2012 (4) SA 618
(CC),
2010 (5) BCLR 457
(CC),
Nova
Property Group Holdings Ltd and others v Cobbett and another
[2016] ZASCA 63
,
2016 (4) SA 317
(SCA),
[2016] 3 All SA 32
(SCA);
Cipla Agrimed (Pty) Ltd v
Merck Sharp Dohme Corporation and others
[2017] ZASCA 134
,
2018 (6) SA 440
(SCA),
[2017] 4 All SA 605
(SCA);
Jojwana v Regional Court
Magistrate and another
[2018] ZAECMHC 54,
2019 (6) SA 524
(ECM);
National
Commissioner of Police and another v Gun Owners South Africa
[2020] ZASCA 88, 2020 (6) SA 69 (SCA).
[59]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 28.
[60]
S v Western Areas Ltd
and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 28.
Notwithstanding the aforesaid statement, the SCA nevertheless
concluded, on the facts of that matter, dealing
with the dismissal
of objections to charges in the indictment that it was not in the
interests of justice to grant leave to appeal
in that case.
[61]
Thint (Pty) Ltd v National
Director of Public Prosecutions and others; Zuma and another v
National Director of Public Prosecutions
and others
[2008] ZACC 13
,
2009 (1) SA 1
(CC),
2008 (12) BCLR 1197
(CC),
2008
(2) SACR 421
(CC) para 65.
[62]
Cloete and
another v S; Sekgala v Nedbank Limited
[2019] ZACC 6
;
2019 (4) SA 268
(CC);
2019 (5) BCLR 544
(CC) para 57,
see also
South
African Commercial Catering and Allied Workers Union and others v
Irvin & Johnson Ltd (Seafoods Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC) para 5;
Ex
Parte Minister of Safety and Security and others: In Re S v Walters
and another
[2002] ZACC 6
;
2002 (4) SA 613
(CC) paras 63 – 64;
Minister
of Health and others v Treatment Action Campaign and others (No 1)
[2002] ZACC 16
;
2002 (5) SA 703
(CC) para 10;
Campus
Law Clinic, University of KwaZulu-Natal v Standard Bank of South
Africa Ltd and another
[2006] ZACC 5
;
2006 (6) SA 103
(CC) para 23;
Economic
Freedom Fighters v Gordhan and others; Public Protector and another
v Gordhan and others
[2020] ZACC 10
;
2020 (6) SA 325
(CC);
2020 (8) BCLR 916
(CC) para
49.
[63]
Van der Merwe v National Director
of Public Prosecutions and others
[2010] ZASCA 129
;
2011 (1) SACR 94
(SCA);
[2011] 1 All SA 600
(SCA)
para 32.
[64]
Williams and others v Director of
Public Prosecutions: Western Cape
[2021] ZAWCHC 187
;
[2022] 1 All SA 269
(WCC) para 53.
[65]
Savoi and others v National
Prosecuting Authority and another
[2021] ZAKZPHC 7;
2021 (2) SACR 278
(KZP);
[2021] 2 All SA 578
(KZP)
para 58.
[66]
Naidoo v Regional Magistrate,
Durban and another
[2017]
ZAKZPHC 19;
2017 (2) SACR 244
(KZP) para 9.
[67]
Thint (Pty) Ltd v National
Director of Public Prosecutions and others; Zuma and another v
National Director of Public Prosecutions
and others
[2008] ZACC 13
,
2009 (1) SA 1
(CC),
2008 (12) BCLR 1197
(CC),
2008 (2) SACR 421
(CC) para 65.
[68]
This definition was also
not contained in the original Superior Courts Bill 7 of 2010, but
was seemingly introduced by the Portfolio
Committee on Justice and
Constitutional Development during the legislative process.
[69]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p9 – ch31-p11.
[70]
Director of Public Prosecutions,
Gauteng v KM
[2017] ZASCA
78
;
2017 (2) SACR 177
(SCA) para 34.
[71]
S v Van Wyk
and another
2015
(1) SACR 584
(SCA) para 18.
[72]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p8 – ch31-p9.
[73]
S v Liesching and others
[2016] ZACC 41
;
2017 (2) SACR 193
(CC) from para 33 (
Leisching
I
).
[74]
Director of Public Prosecutions,
Gauteng v KM
[2017] ZASCA
78; 2017 (2) SACR 177 (SCA).
[75]
In the majority judgment. The
minority judgment did not differ on this issue.
[76]
Director of Public Prosecutions,
Gauteng v KM
[2017] ZASCA
78
;
2017 (2) SACR 177
(SCA) para 35. (emphasis added).
[77]
This position is not affected by the
decision in
S v
Liesching and others
[2018]
ZACC 25
;
2019 (4) SA 219
(CC);
2018 (11) BCLR 1349
(CC) (
Leisching
II
) which dealt with an
appeal to the CC against the refusal by the President of the SCA of
a request for reconsideration of a decision
of that court in terms
of
s 17(2)
(f)
of the
Superior Courts Act, on
the basis that there were exceptional
circumstances present.
[78]
Mr Zuma’s replying affidavit
para 15.
[79]
S v Liesching and others
[2016] ZACC 41
;
2017 (2) SACR 193
(CC) (
Leisching
I
) para 36 to 38.
[80]
S v Liesching and others
[2016] ZACC 41
;
2017 (2) SACR 193
(CC) para 44.
[81]
Section 17(2)
(f)
provides that the President of the SCA may in exceptional
circumstances, whether of his or her own accord or on application
filed within one month of the decision of the judges refusing a
petition, refer the decision refusing a petition to the court
(SCA)
for reconsideration and, if necessary, variation. It reads:
‘
The
decision of the majority of the judges considering an application
referred to in paragraph (b), or the decision of the court,
as the
case may be, to grant or refuse the application shall be final:
Provided that the President of the Supreme Court of Appeal
may in
exceptional circumstances, whether of his or her own accord or on
application filed within one month of the decision,
refer the
decision to the court for reconsideration and, if necessary,
variation.’
[82]
S v Liesching and others
[2016] ZACC 41
;
2017 (2) SACR 193
(CC) para 54.
[83]
S v Western Areas Ltd and others
2005 (5) SA 214 (SCA), [2005] 3 All
SA 541 (SCA).
[84]
A Kruger
Hiemstra's
Criminal Procedure
(May
2021 – Service Issue 14) at 31-3 – 31-4.
[85]
S v De Beer &
another
2006
(2) SA 554
(SCA) para 5
.
[86]
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at
533B-C. The SCA relied as authority for that proposition on the
decision in
South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A) at
550D-H.
[87]
S v Western Areas Ltd and others
2005 (5) SA 214 (SCA), [2005] 3 All
SA 541 (SCA).
[88]
S v Delport and others
[2014] ZASCA 197, 2015 (1) SACR 620 (SCA).
[89]
This appeal was heard by the SCA on
26 November 2014, but originated from the court a quo prior to 23
August 2013, the order appealed
being dated 20 March 2012.
[90]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 27.
[91]
R v Dhlumayo
and another
1948 (2) SA 677
(A) at 700ff.
[92]
Per Howie P in
S v Western Areas
Ltd and others
2005 (5) SA
214
(SCA),
[2005] 3 All SA 541
(SCA)
para 26.
[93]
Both the special plea
and Mr Zuma’s affidavits in support of it, make it clear that
the issue arising from the questions
of prosecutorial misconduct
raised by the special plea is ‘
whether
Mr Zuma will receive a fair trial
’.
[94]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA
533
(KZP) para 77.
[95]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA 533
(KZP) para 108, para 119 and
see para 135(f) where I concluded:
‘
Ultimately,
the enquiry at the end of every criminal trial must be whether the
accused had received a constitutionally fair trial.
That imperative
remains even if on the evidence adduced in the affidavits to date,
it is concluded that it has not been established
that Mr Zuma has or
will suffer trial related prejudice which might result in him not
receiving a constitutionally fair trial.
This judgment cannot stand
in the way of possible fresh evidence emerging later. The enquiry is
one most best answered by the
trial court at the end of the trial,
when the materiality of all the evidence adduced can be assessed
properly . . .’
[96]
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA),
[2005] 3 All SA 541
(SCA) para 25.
[97]
Ismail and others v
Additional Magistrate, Wynberg and another
1963 (1) SA 1
(A) at 5H-6A, quoting
Walhaus
and others v Additional Magistrate, Johannesburg and another
1959 (3) SA 113
(A) at 120A-B.
[98]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA 533
(KZP) para 128.
[99]
National Director of
Public Prosecutions v King
2010 (2) SACR 146
(SCA) para 5. Compare
Thint
(Pty) Ltd v National Director of Public Prosecution and others; Zuma
and Another v National Director of Public Prosecution
and others
2009 (1) SA 1
(CC) para 65.
[100]
Porritt and
another v National Director of Public Prosecutions and others
[2014] ZASCA 168, 2015 (1) SACR 533 (SCA), [2015] 1 All SA 169
(SCA).
[101]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA 533
(KZP) para 69. Mr Zuma’s
plea specifically designated his plea as a ‘plea in terms of
section 106(1)(h)
and
106
(4) of the
Criminal Procedure Act 51 of
1977
’. It was followed by what was termed his ‘plea
explanation in terms of
sections 106(1)(h)
and
106
(4) of the
Criminal Procedure Act 51 of 1977
’.
[102]
Ndluli v Wilken NO en andere
1991 (1) SA 297 (A).
[103]
Ndluli v Wilken NO en andere
[1990] ZASCA 107
;
1991 (1) SA 297
(A) at 305H-306C.
[104]
Ndluli v Wilken NO en andere
[1990] ZASCA 107
;
1991 (1) SA 297
(A) at 306F-H and
S
v Zuma and another
[2021]
ZAKZPHC 89;
[2022] 1 All SA 533
(KZP) paras 72 – 73.
[105]
Porritt and
another v National Director of Public Prosecutions and others
[2014] ZASCA 168
,
2015 (1) SACR 533
(SCA),
[2015] 1 All SA 169
(SCA)
paras 7 – 8.
[106]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA 533
(KZP) paras 99-103, 109 and
113.
[107]
Camps Bay Ratepayers' and
Residents’ Association and another v Harrison and another
2011 (4) SA 42
(CC) paras 28 – 30.
[108]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA 533
(KZP) para 133.
[109]
S
v
Liesching
and others
[2016] ZACC 41
;
2017 (2) SACR 193
(CC);
2017 (4) BCLR 454
(CC) para
38.
[110]
Porritt and another v National
Director of Public Prosecutions and others
[2014]
ZASCA 168; [2015] 1 All SA 169 (SCA); 2015 (1) SACR 533 (SCA).
[111]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA
533
(KZP)
para
235.
[112]
S v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA
533
(KZP)
para
234.
[113]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p23.
[114]
Section 320
has
become largely redundant because judgements provide not only the
findings of the court but also the reasons for the findings
made by
a court –
S
Terblanche (ed)
Du Toit:
Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p40.
[115]
S v
Nkabinde
and others
[2017]
ZASCA 75
;
2017 (2) SACR 431
(SCA) para 27 were the following was
said:
‘
The
purpose of a special entry is to raise an irregularity in connection
with or during the trial as a ground of appeal against
conviction
under s 318(1) of the Act. The latter section provides, inter  alia,
that if a special entry is made on
the record
,
the person convicted
may appeal to this court against his conviction on the basis of the
irregularity stated in the special entry.’ (emphasis
added)
[116]
Section 317(5)
and/or s 318(2) of the CPA.
[117]
S v Kroon
1997
(1) SACR 525 (SCA); [1997] 2 All SA 330 (A).
[118]
In
S
v Staggie
2012
(2) SACR 311
(SCA) para 16 it was held in respect of s 317 that ‘the
only purpose it serves today as to record irregularities that affect

the trial that do not appear from the record.’ This was also
confirmed in
S
v Nkabinde and others
2017
(2) SACR 431
(SCA) para 27. These alleged irregularities do appear
from the record.
[119]
S
v De Vries
2012
(1) SACR 186
(SCA) para 29.
[120]
A Kruger
Hiemstra’s
Criminal Procedure
(May
2021 – Service Issue 14) at 31-31, discussing and applying
S
v Cooper
1977 (3) SA 475 (T).
[121]
S v Botha
2006
(1) SACR 105
(SCA) para 3.
[122]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p32F.
[123]
S v Botha
2006
(1) SACR 105
(SCA) para 4.
S
Terblanche (ed)
Du Toit:
Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p31 which applies this
principle also to entries in terms of
s 317.
[124]
S
v Nkata and others
1990 (4) SA 250
(A) at 256I-257C,
S
v Xaba
1983 (3) SA 717
(A) at 733D.
[125]
Mr Zuma’s
replying affidavit paras 22 to 30, which have been quoted in para 50
above.
[126]
R v Adams and
others
1959 (3) SA 753
(A) 758E-F
;
S Terblanche (ed)
Du Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p35.
[127]
A Kruger
Hiemstra’s
Criminal Procedure
(May 2021 – Service Issue 14) at 31-37.
[128]
A Kruger
Hiemstra’s
Criminal Procedure
(May 2021 – Service Issue 14) at 31-37. See also
R
v Willem and others
1924 TPD 517.
[129]
S v Khoza en andere
[1990] ZASCA 142
;
1991
(1) SA 793
(A) at 795J-796A.
[130]
My own translation
of this statement is: ‘A question of law may only be reserved
at the insistence of an accused if he is
convicted.’
[131]
A Kruger
Hiemstra’s
Criminal Procedure
(May 2021 – Service Issue 14) at 31-38. That happened in
Magmoed
v Janse van Rensburg and others
[1992] ZASCA 208
;
1993 (1) SACR 67
(A) at 88f-g.
[132]
S Terblanche (ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2021
– Revision Service 66) at ch31-p39.
[133]
A Kruger
Hiemstra’s
Criminal Procedure
(May 2021 – Service Issue 14) at 31-38.
[134]
A Kruger
Hiemstra’s
Criminal Procedure
(May
2021 – Service Issue 14) at 31-33.
[135]
Magmoed
v Janse van Rensburg and others
[1992] ZASCA 208
;
1993 (1) SACR 67
(A) at 94a-d.
[136]
S
v Khoza en andere
[1990] ZASCA 142
;
1991 (1) SA 793
(A);
[1991] 3 All SA 971
(A).
S
v Boekhoud
[2011] ZASCA 48
;
2011 (2) SACR 124
(SCA) paras 34 and 62.
[137]
Director of
Public Prosecutions, Western Cape v Schoeman and another
2020
(1) SACR 449
(SCA) para 39.
[138]
Mr Zuma’s
replying affidavit para 23 (emphasis added).
[139]
Mr Zuma’s
replying affidavit para 24 (emphasis added).
[140]
Mr Zuma’s
replying affidavit para 27.
[141]
S v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004
(6) BCLR 620
(CC)
paras 46-49.
[142]
S
v Basson
2004 (1) SA 246
(SCA);
[2003] 3 All SA 51
(SCA) para 10, a finding
which was not overruled in the State’s partially successful
appeal to the Constitutional Court
in
S
v Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC). The
English translation of
S
v Basson
2004 (1) SA 246
(SCA);
[2003] 3 All SA 51
(SCA) para 10 appears in
Director
of Public Prosecution: Gauteng Division, Pretoria v Pooe
[2021] ZASCA 55
;
[2021] 3 All SA 23
(SCA);
2021 (2) SACR 115
(SCA)
para 38.