832
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED
DATE
DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG DIVISION
and
KA BELO JOHN MA TSE PE
MAMPHE DANIEL MSIZA
ANDILE MALUSI ATTWEL RAMAVHUNGA CASE NUMBER: CC11/2021
DATE: 6 January 2025.
APPLICANT
1 ST RESPONDENT
2"d RESPONDENT
3RD RESPONDENT
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PHOPHILONDOLANIMAKHOBODWANE
MULIMISI SOLOMON MAPOSA
NHLANHLA KELVIN SIPHO MALABA
PHALAPHALA AVASHONI RAMIKOSI
THIFHELIMBILU ERNEST NESANE
PAUL MAGULA
MMBULAHENI ROBERT MADZONGA
RALLIOM RAZWINANE
TAKUNDA EDGAR MUCHEKE
TSHIANEO MADADZE
THE STATE
VERSUS
ANDILE MALUSI ATTWELL RAMAVHUNGA
PHOPHILONDOLANIMUKHODOBWANE
MULIMISI SOLOMON MAPOSA
NHLANHLA KELVIN SIPHO MALABA
PHALAPHALA AVASHONI RAMIKOSI
THIFHELIMBILU ERNEST NESANE
PAULMAGULA 4TH RESPONDENT
5TH RESPONDENT
&TH RESPONDENT
7TH RESPONDENT
srH RESPONDENT
1 QTH RESPONDENT
12TH RESPONDENT
13TH RESPONDENT
ACCUSED 1
ACCUSED2
ACCUSED 3
ACCUSED4
ACCUSEDS
ACCUSED6
ACCUSED 7
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MMBULAHENI ROBERT MADZONGA
KABELO JOHN MATSEPE
MAMPHE DANIEL MSIZA
RALLIOM RAZWINANE
TAKUNDA EDGAR MUCHEKE
TSHIANELO MADADZHE
MABUSEJ JUDGMENT ACCUSED 8
ACCUSED9
ACCUSED10
ACCUSED 11
ACCUSED12
ACCUSED13
[1] This matter came before me in terms of section 319(1) of the Criminal Procedure
Act 51 Of 1977(the CPA), as a request for reservation of questions of law (a Request)
for consideration by the Supreme Court of Appeal of South Africa. The request is
opposed by the First, Second, Sixth and Nineth Respondents on grounds to which I
will turn during this judgment.
[2] S 319 of the CPA provides that:
(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".
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(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 the 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."
[3] According to the Applicant , the questions of law arose on the trial of the First and
Second Respondents in the Gauteng High Court, Pretoria, in the matter of Kabelo
John Matsepe and Mamphe Daniel Msiza v The State and Eleven Others (Case
Number CC11/2021) in terms of which the court ordered that:
"The relief that the Applicants seek in prayer 2 of the notice of motion, namely that the
criminal trials of Kabelo John Matsepe and Mamphe Daniel Msiza as per the
respective charges delineated in the indictment in S v Andile Attwell Ramavhunga and
12 Others, Gauteng High Court, Case Number CC11/2021 , be separated from that of
their co-accused (i. e. accused 1 to 8 and 11 to 13).
[4] The above order has its origin in the judgment of the court following an application
by the First and Second Respondents , in other words, accused 9 and 10 as they were
initially in the main criminal case, in an application in which they sought the following
relief:
"[1 J That the criminal trial in S v Andile Malusi Attwell Ramavhunga and 12 others,
Gauteng High Court, high Court Case Number CC21/2021 , be stayed or held in
abeyance temporarily, pending the determination of the final outcome of the
prosecution of the appeal by Kabelo John Matsepe and Mampe Daniel Msiza, against
the whole of the judgment of justice PM Mabuse, delivered on 26 April 2024 and 27
June 2024 in S v Tshifhiwa Calvin Matodzi and 13 Others, Gauteng High Court Case
Number CC21/2021.
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[[2] That the criminal trials of Kabelo John Matsepe and Mampe Daniel Msiza, as per
the respective charges delineated in the indictment in S v Andile Attwell Ramavhunga
and 12 Others, Gauteng High Court Case Number CC21/2024 be separated from that
of the co-accused or the Respondents. "
[5} The aforesaid applications were heard on 14 August 2024. The court made the
above order on 16 August 2024. Immediately after the order was made the Applicant ,
then the First Respondent , asked the court to furnish it with reasons for the order as it
intended to launch an application for leave to appeal. Written reasons were delivered
on 6 September 2024.
[6] The First Respondent then, now the current Applicant, delivered an application for
leave to appeal on 18 September 2024. On 9 November 2024, all the parties were
given timelines to file their papers in response to the Applicant's application for leave
to appeal. Despite all the counsel having been afforded an opportunity to file their
responses to the Applicant's application for leave to appeal, only the First, Second,
Sixth and Nineth Respondents filed their further papers. The aforementioned
Respondents indicated that they would oppose the application for leave to appeal.
Then on 4 October 2024 the Applicant filed its Request A question of law is a question
that must be answered by the application of relevant legal principles to the
interpretation of the law.
[7] On 9 October 2024, the date on which it was agreed that the court would proceed
to hear the Applicant 's application for leave to appeal, the court could not do so
because some counsel objected to hearing the Request. They expressed their
dissatisfaction that the court had not heard their voices on the Request. Timelines were
then set and agreed upon that those who wanted to file their papers, whether to
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oppose or to abide, the said Request, should file their affidavits or further papers on
or before 18 October 2024; and that those who oppose the Request, together with the
Applicant , should file their heads of argument by 25 October 2024 and that both the
application for leave to appeal and Request would be heard on 11 November 2024.
[8.1] On 11 November 2024, at the beginning of his submissions, Mr. Van Der Merwe,
counsel for the Applicant, informed the court that the Applicant was abandoning its
application for leave to appeal and that it would only proceed with its Request. He
informed the court furthermore that the grounds for the Request will however be found
in the application for leave to appeal and that the Applicant relied on those grounds as
set out in the original application for leave appeal for its Request. This was so, even
though paragraphs 4.3 to 4.13 of the Request contained reasons or the grounds upon
which the Request was made.
[9] But first, the Applicant had a hurdle to jump before dealing with its Request. That
hurdle was an application for condonation for the late filing of the Request. According
to the affidavit of Mr. Johannes Hendrik Van Der Merwe (Van Der Merwe), used in
support of an application for condonation for the late filing of the Request, the Applicant
had subsequently reconsidered its application for leave to appeal and was of the view
that a Request is a more appropriate mechanism to deal with the application to appeal
the court order set out in the application .
[1 O] In his affidavit in support of the condonation application , Mr. Van der Merwe stated
that the grounds upon which the Applicant makes its Request are the same as set out
in the application for leave to appeal filed in terms of s 17(1 )(a) (i) and (ii) of the
Superior Courts Act 10 of 2013 (the Superior Act), filed on 18 September 2024.
According to the said affidavit, there are no new grounds in the Request. In his view,
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the amendment of the application , or the conversion of the application for leave to
appeal to the Request, will not delay the prosecution of the appeal by the Applicant.
Moreover , as there are no new grounds upon which the Request is made, Mr Van der
Merwe submits that, based on the aforegoing reasons, there would be no prejudice to
any of the Respondents .
(11.1] The First and Second Respondents opposed the Applicant's application for
condonation on the basis that the said Request was not filed within a reasonable time.
Counsel for the First and Second Respondents , Mr. Shaun Abrahams, relied on S v
Legote en Andere 1999(1) SACR 269 (0) at 275G-276G, where the court held that
reasonableness is determined from the time of the finalization of the matter to the time
of the filing of the application following relief.
(11.2] On 14 August 2024, the application for certain relief brought by the First and
Second Respondents was heard by this court. In this application the First and Second
Respondents had sought the following relief:
"[1] That the Criminal Trial in State vs Andile Malusi Attwell Ramavhunga and 12
Others, Gauteng High Court, Case Nr. CC21/2021 , be stayed or held in abeyance
temporarily, pending the determination of the final outcome of the prosecution of the
appeal by Kabelo John Matsepe and Mamphe Daniel Msiza, against the whole of
judgments of Justice PM Mabuse delivered on 26 April 2024 and 27 June 2024 in
State versus Tshifhiwa Calvin Matodzi and 13 Others, Gauteng High Court, Case Nr.
cc 21/2021.
(2] that the criminal trial of Kabelo John Matsepe and Mamphe Daniel Msiza, as per
the respective charges delineated in the indictment in State vs. Andi/e Malusi Attwell
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Ramavhunga and 12 Others, Gauteng High Court, Case Nr. CC21/2024 , be separated
from that of the rest of the co-accused or Respondents. "
On 16 August 2024 the court dismissed the first prayer but granted the second prayer
without giving reasons. Immediately thereafter, counsel for the First Respondent
requested the court verbally to furnish written reasons for its order. The parties were
provided with written reasons on 6 September 2024.
[11.3} On 18 September 2024, the Applicant delivered its application for leave to
appeal in terms of s 17(1 )(a)(1) of the Superior Courts Act 10 of 2013 (the Superior
Courts Act). It will be noted that no rule in, or section of, the CPA provides that an
application for leave to appeal against an interlocutory order, such as the current one,
should be lodged in terms of the Superior Courts Act. Furthermore , it will also be noted
that no period within which such an application for leave to appeal against an
interlocutory order has been prescribed, either in the Superior Courts Act or the CPA.
In this circumstance, this court may not quarrel with the Applicant for using the
provisions of the Superior Courts Act. The court is satisfied though that the application
for leave to appeal was delivered within a reasonable time of 6 September 2024.
[11.4] The Applicant received notices of opposition to the application for leave to
appeal for the from the First, Second, Sixth and Ninth Respondents only. The Applicant
then changed course entirely by delivering a new application in terms of s. 319(1) of
the CPA on 4 October 2024. This application in terms of s 319(1) was accompanied
by the Applicant's application for condonation for the late filing of s 319(1) application .
The rule or section of the law under which the Applicant brought the application for
condonation was unknown. When the Applicant delivered the application for
condonation it was under an erroneous belief that the provisions of the Superior Courts
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were applicable in this case. I have already found that no rule under the CPA or
Superior Courts Act provides for the delivery of an application for leave to appeal and
consequently, for the application for condonation for the late delivery of the application
in terms of s 319(1) of the CPA. No rule of law regulates the bringing of an application
in terms of route 319( 1 ) of the CPA.
[11.5] Mr Abrahams complained to the skies that:
"the applicant changed course entirely and substantially, without notice or application
to amend and or substitute its earlier application, by filing an entirely new application
in terms of s 319 one of the CPA" on 4 October 2024 together with an application for
condonation for late filing of the of its application. ".
[11.6] There are no rules in either the CPA or Superior Courts Act that govern:
[11.6.1] the launching of an application for leave to appeal against an interlocutory
order, such as the current one.
[11.6.1] the launching of an application in terms of section 319(1) of the CPA.
[11.6.2] the bringing of an application for condonation.
[11.6.3] the periods in which to bring all the above applications
[11.6.4] if there is no allegation that the applicant has failed to comply with certain rules
in bringing any one of those applications .
[11.6.5] If there is no complaint that the bringing of anyone of the above applications
by the Applicant has prejudiced the Respondents, I see no valid reason to be angry
the Applicant for any step it took, whether in the bringing of an application for leave to
appeal and/ or in bringing of an application in terms of s 319) 1) of the CPA.
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Accordingly , I have made no order in this regard.
The Sixth and Ninth Respondents do not oppose the application for condonation for
the late filing of the Request.
[12] The Applicant requests the court to reserve the following questions of law:
I 12 .1 ]" Whether the court had exercised its discretion judicially or had been influenced
by wrong principles of law or a misdirection on the facts or whether its decision had
been unreasonable in granting the separation of trials.
[12.2] Whether the court duly considered the prosecutorial prerogative as to how the
accused should be charged as provided for in section 179(2) of the Constitution .
(12.3] Whether the court erred in not considering the provisions of Prevention of
Organised Crime Act 21 of 1998(POCA) and the authorities in relation thereto when it
interfered in the directive by the National Director of Public Prosecutions in terms of
section 2(4) of POCA that the Respondents must be prosecuted together.
[12.4] Whether the court erred mero motu in applying its inherent powers in terms of
section 173 of the Constitution instead of correctly conducting an inquiry in terms of
section 342A of the CPA.
[12.5] Whether the court erred in relying on section 342A of the CPA where it did not
properly apply the provisions of the section and failed to hold an inquiry providing all
parties the opportunity to respond and provide due recognition to the impact of all the
parties including the victim's interest."
The applicant believes that the above-mentioned questions of law have reasonable
prospects of success and that there are compelling reasons why the appeal should be
heard, before the trial resumes.
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[13] The First and Second Respondents oppose the Request on seven grounds,
namely, that:
[13.1] S 319(1) is not applicable in this case because the questions formulated by the
Applicant and which it requests the court to reserve did not arise "on the trial" of the
First and Second Respondents.
[13.2] The Applicant has not fully complied with the peremptory requirements of s
319(1) of the CPA, which requires strict compliance, in that the questions of law are
not properly and or intelligently and or accurately framed by the Applicant. S v Pooe
2021(2) SACR 115 (SCA)
[13.3] The requirements of law framed by the Applicant do not have the practical effect
on the outcome of the trial of the First and Second Respondents.
[13.4] S 319(1) does not apply in interlocutory applications , such as separation orders
in terms of section 157 of the CPA.
[13.5] The order is not appealable .
[13.6] The Applicant's questions are purely factual and cannot be reserved as
questions of law.
[13.7] The Applicant does not enjoy any reasonable prospects of success.
[13.8] The applicant has failed to have regard to the policy considerations underlying
the spirit and purports 319(1)e of the CPA.
[13.1 O] The Tenth Respondent initially filed an affidavit deposed to by his counsel in
which he opposed the Applicant's application for leave to appeal, only to withdraw it
later. Like the rest of the Respondents , the Tenth Respondent has not filed any papers
in connection with the Request.
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[14] I now turn to dealing with the grounds, singly, upon which the First and Second
Respondents oppose the Applicant 's Request.
14.1] Section 319 of the CPA is not applicable in this matter in that the questions
formulated and which the Applicant requests the court to reserve for consideration by
the Appeal Court did not arise "on the triaf' of the matter of the First and Second
Respondents.
With regards to the reservation of questions of law in terms of s 319(1) of the CPA, the
position in our law is that only questions of law which arise in the trial of a person in
Superior Court may be reserved under s 319(1) of the CPA. A question of law cannot
be said to arise from the trial if the record of the trial completely fails to disclose it. See
S v Mulayo 1962(2) SA 522 AD. The issue in this appeal was whether the questions
of law reserved by the trial Judge arose on the trial of the appellant in a Superior Court.
The circumstances that led to the impugned reservation of questions of law by the trial
are set out in the judgment of Hoexter J.A. on page 526 of the judgment. I do not think
it necessary to repeat them in this judgment.
[14.2] Having listened to the argument on whether the questions of law reserved by
the trial Court arose "on the trial" of the appellant's case, the Appellate Division held
that in terms of section 366(1) of the Criminal Procedure Act 56 of 1955, the questions
of law which may be reserved are those which arise from the trial of the person in a
Superior Court. According to the judgment , a question of law can only arise on a trial
if the record of the proceedings discloses it. The court accepted the argument that as
to whether the question of law reserved arose on the trial of the appellant in terms of
sec 366(1) of Act 56 of 1955, a trial has been held to take place when there is an issue
raised between the accused and the State by a plea of not guilty. It means that when
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an accused person has pleaded to the charges or indictment on being called to do so,
anything that happens thereafter happens "on the triaf' of the accused.
[14.3 Counsel for the First and Second Respondents argued that section 319(1) is not
applicable where the charges have not been put to the accused. He found support in
the judgment of S v Mene 1978(1) SA 832 (A A) paragraph 838c-d. According to
his argument , s 319(1) requires questions of law to arise during the trial. S 319(1)
permits a trial court to reserve questions of law which arise "on the triaf' of an accused.
In this case of S v Mene, although the issue regarding "on the trial" was raised, it was
not decided.
[14.4] The issue in the Mene case was whether a question of law would arise "on the
trial" of the accused in a Superior Court where the court a quo quashed the indictment
without the accused being called upon to plead. The indictment was quashed by the
trial court under the following circumstances:
"Met verwysing na sekere beslissings van ons Howe, het die Hof a quo die klagstaat
nietig verklaar omdat daar nie voldoende besonderhede verskaf sou gewees het nie.
Na die nietigverklaring van die klagstaat is die vo/gende regsvraag voorbehou :
"did the Court err in law in holding that the indictment , as read with the particulars
requested by the defence and supplied by the State, was calculated to prejudice or
embarrass the accused in his defence, more particularly having regard to the onus
resting on the accused in terms of sec. 2(1)(b) of Act 83 of 1967, and sec. 12(1) Act
44 of 1950."
[14.5] A point in limine was raised against the appeal that because the (a) order
quashing the indictment and was not made "on the triaf' of the accused and (b) there
had been no acquittal of the accused, the court a quo had no jurisdiction under sec.
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366 of Act 55 of 1956 to reserve the questions of law. The court found that, under the
circumstances, the trial court could not, on application by the prosecutor , reserve a
question of law. The appeal court accepted this point in limine and for that reason
struck the appeal from the roll. It stated that:
"Die beswaar in limine moet gehandhaaf word en dit is nie nodig verder te oorweeg
of die bevel tot nietigverklaring "on the trial" plaasgevind het nie." page 838c.
According to Mr. Abrahams' interpretation of the judgment of S v Mene, a trial starts
only when the charge is put to the accused and the accused pleads thereto. According
to him, the question of law in terms of s 319(1) cannot arise in this case because:
14.5.1] no one has objected to the indictment.
[14.5.2] no one has raised any exception against the indictment ; and,
[14.5.3] no one has pleaded.
Therefore , the questions of law raised by the Applicant in terms of s 319(1) did not
arise during the trial of the First and Second Respondents, and by implication , of the
Sixth and Ninth Respondents .
[15] I have not been told that the law as set out in the Mulayo and Mene judgments
has changed materially or that the two judgments have been overruled .
. [16] R v Tucker 1953 3 SA 150 [A.DJ at page 159H, the court held that the words
"on the trial" denote the proceedings after arraignment whether upon a plea of not
guilty or guilty.
"But in my opinion the word "trial" in sec. 372, as in sec. 370, is used to denote the
proceedings after arraignment , whether upon a plea of guilty or not guilty It follows
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that the question whether an indictment discloses an offence is one which arises "on
the trial" of an accused, even if he pleads guilty"
According to the law then, a prosecutor was only entitled to have a question of law
reserved under section 366 in the case of an acquittal and in no other circumstance .
See R v Gani and Others 1957(2) SA212 (A) and R v Solomon 1959(2) SA page 359e-
360A.
"Artikel 366 maak voorsiening vir die voorbehoud van 'n regsvraag indien daardie
vraag by die verhoor onstaan "arises on the trial." Die gekursieveerde woorde is deur
die gewysdes geintepriteer as synde op die stadium nadat die klagte aan die
beskuldigde gestel is. See R v Tucker 1953(3) SA 150 AD at p. 159h ...... Die Klagte
is nie aan die beskulgde gestel nie en hy het daarom ook nie op die klagte gepleit nie."
This position has however changed since 1948.
[17] In R v Mene supra, the court relied on the case of R v Adams and Others 1959(3)
SA 753 (A.D). In R v Adams the matter came before court, the Appellate Division, by
way of a reservation of questions of law for its consideration . Two questions of law
were reserved, one related to an exception against the indictment while the other was
an application to quash the indictment. The exception was raised and the application
to quash the indictment was made before the accused could plead. The Special
Criminal Court decided not to allow the exception and not to grant the application to
quash the indictment. Instead, the Special Criminal Court reserved the two questions
of law and postponed the trial. The appellants approached the appellate division to
reverse the decision of the Special Criminal Court. The respondent raised a point in
limine that the appellate division did not have jurisdiction at that stage of the
proceedings against the appellant to decide the questions of law reserved. The
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appellant division took the point that the point in limine was well taken. It accordingly
struck the appeal from the roll.
In the R v Mene, the point in limine raised was that the order that nullified the
indictment was not made "on the triaf' of the respondents and that there was also no
acquittal of the respondent. Those were the days when an acquittal of the accused
was still a requirement before a point of law by the State could be reserved. The court
held in R v Adams and Others that in enacting s 366(1) of Act 56 of 1955, the
Legislature did not contemplate applications for reservations of questions law during
the trial: the inference is therefore that the making of the request must abide the
conclusion of the trial. It is of paramount importance to point out that, at the time of the
judgment of Adams and Others, the court was dealing with section 372 of the Criminal
Procedure and Evidence Act 31 of 1917, the predecessor of section 366 of the Act 56
of 1955, which is now section 319 of the CPA. That section 372 at the time read as
follows:
( 1) if any question of Jaw 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 court of appeal.
2. When the Superior Court reserves any such question and the accused is convicted,
the court shall state the question, or the questions reserved and shall direct such case
to be specially entered in the record and a copy thereof to be transmitted to the register
of the court of appeal.
(3) The grounds upon which any exception or objection to an indictment is taken shall,
for the purposes of this section, be deemed to be a question of law.
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(18] In interpreting s 366, regard will be had not only to the literal meaning of the words
used, but also to other considerations, such as the previous policy of the law in
connection with appeals, reviews, the aim, scope and object of the Criminal Procedure
Act as a whole, the cause and necessity of the amendment and effect and
consequences of the possible construction of this section or questions. It is a
fundamental principle of our law in criminal procedure that save, for exceptional cases
or circumstances, the Court of Appeal will not interfere in criminal proceedings until
conclusion thereof and will not entertain appeals piecemeal.
[19] In R v Adams and Others counsel for the respondent had argued that there was
nothing in s 366(1) which prevented a Superior Court from reserving a question of law
as and when it arose, or which required it to defer such reservation until the conclusion
of the case nor was there any such provision to be implied. The court rejected this
argument. Counsel were, however, unable to refer the court to a single reported case
showing that a special entry or questions of law reserved has, in the legal history of
this country, ever been considered on appeal before conviction or before the
conclusion of the proceedings or before the matter was finalized. That policy accorded
with the attitude consistently adopted by the courts. The courts have acted upon the
general principle that it would be inconvenient and undesirable to hear appeals
piecemeal and have declined to do so, except where unusual circumstances called for
such a procedure. Reliance or support was found in McComb v Assistance Resident
Magistrate, Johannesburg, and the Attorney-General 1917 TPD 717 page 719,
where the court, per Gregorski J, had the following to say:
"The idea of a trial is that it should be as much as possible continuous , and that it
should not be stopped. If this kind of procedure were to be allowed, it would mean that
a trial may become protracted and may extend over a number of months. The
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magistrate would sit on one day and hear part of the evidence of a witness; then the
hearing would have to be postponed till the opinion of the Supreme Court could be
taken, perhaps a month or two later. Thereafter the trial would again be continued ,
after some months and immediately it is resumed objections might again be raised in
connection with some evidence, with an application again to the Supreme Court, and
again back to the magistrate . I think that we produced an intolerable condition of
things.
[20] Equally, in enacting s 319(1) of the CPA, the Legislature did not contemplate
reservation of a question or questions of law, where there has never been a trial of the
accused or respondent. A question of law can only be reserved 'on the trial' of a matter
of the accused in that matter and even then, according to the authorities cited above,
at the conclusion of such a trial. Therefore , reservation of questions of law must abide
the conclusion of trial. This, of course, is to avoid hearing piecemeal appeals.
[21] The Sixth and Ninth Respondents oppose the grounds upon which the Applicant
seeks the Request. Their position is that s 319(1) of the CPA is only applicable after a
matter has been finalized. This is in keeping with R v Adams and Others supra.
[22] Mr Van der Merwe, for the Applicant , has a different view. Despite the law as
authoritatively established by the pre-Constitutional authorities , the Applicant submits
that the Constitutional Court and the Supreme Court of Appeal have interpreted s
319(1) of the CPA in the light of the Constitution to be also available to the State in
circumstances where the matter has not been finalized. In support of such
interpretation , the Applicant relied on several authorities , the first of which is S v
Basson 2007(1) SACR 566 (CC) at paragraphs [149] to [152], where the court
stated that:
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"[149] In holding that a question of law can only be reserved at the conclusion of the
trial, the court in Adams relied among others, upon the long established legislative and
judicial policy which precluded piecemeal appeals to the Appellate Division. The
problem of midstream appeals does not arise where the only charge against the
accused is quashed by the High Court. The quashing of such a charge brings the
proceedings to an end. Yet the Adams rule remains that there is no right of appeal in
such situations because an order upholding an exception is neither an acquittal nor a
conviction . Even in those cases where there are multiple charges, the quashed charge
or charges may have no relation to the remaining charges. In such a case, there is no
reason why the trial should not proceed in relation to the remaining charges while the
question of law arising from the quashing of the charges is taken on appeal. Where
the exception is dismissed, fairness may require that the accused not be subjected to
a full-blown trial where in fact the exception is well founded found
[150] The effect of the Adams rule is to take away the right of the state to appeal an
order of the High Court upholding an to objection that a charge does not disclose an
offence in law. The court suggested that if an objection to an indictment is upheld, the
state can amend the indictment document or present a new one. But this does not
overcome the situation where, as here, the order upholding the objection has the effect
of barring the state from prosecuting the accused on charges which were quashed.
[151 There effect of the Adams rule is not only to prevent the state from instituting
criminal proceedings where the court quashes an indictment on the ground that it does
not disclose an offence, but it also takes away the right of the state to appeal against
the decision upholding an exception to its indictment for another reason. Such an
interpretation of Section 319 is inconsistent with the right of the state to institute
criminal proceedings and thus with the Constitution . In addition, such an interpretation
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is inconsistent with both the purpose and language of section 319, namely, to allow
the state to appeal the question of law arising from an order upholding an exception
to an indictment. We agree with the observations made by the court in Mene and in
the court below that section 319 is capable of another construction
[152) In our view, section 319 should not be construed so as to prevent an appeal
against an order dismissing or upholding an exception. The section should be
construed so as to allow the state or accused to appeal an order upholding or
dismissing an exception. Such a construction of section 319 brings it within the
Constitutional bounds by recognizing the right of the state to institute criminal
proceedings and, if need be, to appeal an adverse finding on a question of law. It is
this construction section 319 which must be adopted. It follows therefore that section
319 did not prevent SCA from considering an appeal against the order of the high
Court quashing the charges relating to the conspiracy . The SCA therefore erred in
concluding that the Adams rule constituted a bar to the reservation of the question of
law relating to the quashing of the charges"
Based on the foregoing paragraphs , the state contends that the state may request the
court to reserve questions of law where the matter has not been finalized. I disagree
with the state's interpretation of the said paragraphs . The relevant part of paragraph
[ 151] of the Sasson case states that:
"The section should be construed so as to allow the state or the accused to appeal
against an order upholding or dismissing an exception."
An examination of the said judgment fails to reveal any such ruling of the reservation
of a question of law before the conclusion of a matter. It only deals with the power of
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832
the state to apply for a reservation of a question of law to appeal an adverse finding
on a question of law.
Since 1948 following the amendments introduced by the 1948 Criminal Procedure
Amendment Act 37 of 1948, the State always had a right to appeal against any adverse
ruling against it provided such a ruling had a final effect.
In my view, the interpretation that the Applicant puts on the paragraph does not
commend itself to the Applicant's case that a request for a reservation of question of
law can be made at any stage before the conclusion of the trial.
[23] The Applicant relies on three other authorities , namely, S v Boekhoud 2011(2)
SACR 214 (SCA) at par. )33): Porrit and Another v National Director of Public
Prosecutions and Others 2015(1) SACR 533 (SCA) at par. [23) to demonstrate that,
in the light of the Constitutional Court's interpretations , 319(1) is available to the State
in circumstances where the matter has not been finalized.
[24] In the Porrit and Another v NDPP, the Applicant finds support in paragraph [23]
which states that:
"[23] The first question of law having been answered in favour of the NOP, the next
question for consideration is the appropriate order that should issue. In S v Basson
the Constitutional Court remarked as follows: [20] 'It is plain from the legislative history
of s 319 that its purpose was, among others, to allow the State to appeal on a point by
requesting the reservation of a question of law .... This legislative history of section 319
makes it clear that it was intended to afford the State the right to appeal a question of
Jaw to the SCA ...... Section 319(2) indeed strongly suggests that the Legislature
intended to permit an appeal against any order upholding or dismissing an objection
by way of a reservation of a question of law'
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Section 322 of the CPA reads:
(1) In the case of an appeal against a conviction orof any question of law reserved,
the court of appeal may-
(a) allow the appeal if it thinks that the judgment of the trial court should be set
aside on the ground of a wrong decision of any question of law or that on any
ground there was a failure of justice; or
(b) give such judgment as ought to have been given at the trial or
(c) make such order as justice may require ...
Ms Nkosi-Thomas submitted that an appropriate order would be for this court to
set aside the order of the court below, substitute it with an order dismissing the
applicant's application for the removal of the two prosecutors and remit matter to
the high court to proceed with the criminal trial. That is the order that I propose
making."
The fundamental question still is: do the questions of law, if they may be so-called,
arise "on the triaf' of the First, Second, Sixth and Ninth Respondents? Section 319
of the CPA requires any question of law to arise "on the trial" of any person for any
offence in a superior court. The words 'arise on the trial' have been interpreted to
denote the proceedings after arraignment when the charges are put and upon the
tendering of the plea to the charge: see R v Tucker at page 159h supra; R v
Solomon supra; S v Mene supra. The paragraph quoted above by the Applicant
does not support the interpretation contended for by the Applicant that the
Constitutional and Supreme Court of Appeal have interpreted s 319(1) of the CPA
to mean that the State may request a reservation of a question of law even before
the finalization of a matter.
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832
The Porrit matter can be distinguished from the current matter. In that matter the
question of law was based on an order of the High Court. At the inception of the
accused's trial, the High Court ordered the removal of the prosecutors from the trial
following the accused's plea in terms of section 106(1 )(h) of the CPA The accused
had successfully challenged the title of the prosecutors to prosecute them. The
prosecutors were removed from their case or their trial which order had a final
effect, and the accused then demanded an acquittal. A question of law, in
circumstances where the accused demanded an acquittal, quite clearly arose 'on
the trial' of accused.
S v Boekhoud 2011(2) SACR 124 (SCA), paragraph [33) is one of the judgments
on which the Applicant relies for the contention that section 319(1) of the CPA is
applicable to interlocutory applications which are not final or definitive or with a final
effect, particularly the separation of trial orders in terms of section 157 of the CPA.
[26] It is Mr. Abrahams ' view that none of the authorities on which the Applicant has
placed reliance that the Constitutional Court and the Supreme Court of Appeal
interpreted s 319( 1) in the light of the Constitution to also be available to the State
in circumstances where the matter has not been finalised, find application in this
case.
None of those paragraphs cited in those judgments is any authority for the view
contended by the Applicant. I agree with Mr Abrahams . Moreover , it was so argued
further by Mr. Abrahams that the Applicant is unable to refer this court to a single
judgment in the history of our law in which section 319(1) of the CPA was held to
be applicable in circumstances where an order, interlocutory or otherwise, was not
23
832
final or definitive or of final-effect or where, in the light of the Constitution , s 319
was available to the state in circumstances where a matter has not been finalized.
[27) Director of Public Prosecutions v Magidela and Another 2000(1) SACR
458 (SCA) is no authority for the proposition that the SCA's interpretation of s 319
is also available to the state in circumstances where a matter has not been finalized
nor is an authority on the expression "on the trial" of the offence. It only deals, in
paragraph [9] with the requirements for a reservation of a question or questions of
law.
[28] In Magidela, the trial court reserved the following question of law:
"1. Whether the respondent had the right to remain silent after they had pleaded
guilty during the proceedings conducted in terms of section 119 of Act 51 of 1977;
and whether there was a duty to inform the respondent of such right after that they
had pleaded guilty; and, whether the Magistrate 's failure to do so will necessarily
rendered the record with its contents of the sad proceedings inadmissible at the
subsequent trial of the respondent ."
These questions of law were reserved at the conclusion of the trials of the
respondents. The first respondent had been acquitted after he had closed his case
without tendering any evidence and the second respondent was acquitted at the
close of the state case. Quite clearly, the questions of law had arisen on the trial of
the respondents in a superior Court. The SCA found that the questions of law can
only be reserved provided they arose 'on the trial' of the accused before the
superior court. To give a quintessential of a trial, it has normally without any
exception that a case is postponed several times before court before it is finally
postponed to a specific day for "trial'. This is the day on which the State puts the
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832
charge or indictment to an accused person, who will then plead guilty or not guilty.
This is the day on which the trail starts. Therefore , trial only starts the day the
charge is put to the accused, and he pleads to it.
According to Mr Stroh, the judgment of Sasson does not support Mr Van Der
Merwe's argument that both the Constitutional Court and Supreme Court of Appeal
have interpreted s 319(1) of the CPA to mean that the state may apply for the
reservation of a question of law before the finalization of criminal matter. He relies
in this regard on paragraph [263) of the judgment in which the court stated as
follows:
"The accused did not plead to these charges and the trial proceedings did not
directly involve them .... "
Accordingly , I find that the questions formulated by the Applicant as the questions of
law did not arise "on the trial" of the First, Second, Sixth and Ninth Respondents.
[29) The Applicant has not fully complied with the peremptory requirements of section
319(1) of the CPA.
[29.1] For a Request to be successful , there are certain requirements that must be
satisfied. These requirements are set out in some judgments. There is a long list
of authorities which hold the view that it is imperative first to determine whether an
applicant for a section 319(1) request for a reservation of questions of law has
complied with the peremptory requirements of that section of the CPA. For
instance, in Director of Public Prosecutions, Limpopo v Molope and Another
2020(2) SACR 343 (SCA), the Court held as follows in paragraph [39] to [41]:
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832
"[39] The provisions of s 319 of the CPA are peremptory and require strict
compliance , as its purpose is to limit appeals by the State. It should be mentioned
that s 319 has been subjected to a detailed analysis in a number of judgments ,
both by this Court and the Constitutional court. Its principles have accordingly been
firmly established in our Jaw.
[40] Two decades ago, in Director of Public Prosecutions , Natal v Magidela and
Others this Court eloquently and commendably set out the position of the relevant
law stating that:
'The provisions of section 319 and its predecessors have been the subject of
judicial interpretation over the years and in order to see whether the requirements
of the section were complied with in this case it is important to consider how the
section has been construed . The first requirement is not complied with simply by
stating a question of Jaw. At least two other requisites must be met. The first is that
the question must be framed by the judge "so as accurately to express the legal
point which he had in mind" (R v Kewelram 1922 AD 1 at 3]. Secondly, there must
be certainty concerning the facts on which the legal point is intended to hinge. This
requires the court to record the factual findings on which the point of law is
dependent (S v Nkwenja en 'n Andere 1985 (2) SA 560 (A) at 5678-G). What is
more, the relevant facts should be set out fully in the record as part of the question
of Jaw (S v Goliath 1972 (3) SA 1 (A) at 9H-10A). These requirements have been
repeatedly emphasized in this Court and are firmly established (see, for example,
S v Khoza en 'n Andere 1991 (1) SA 793 (A) at 796E-I). The point of law, moreover,
should be readily apparent from the record for if it is not, the question cannot be
said to arise "on the trial" of the person (S v Mulayo 1962 (2) SA 522 (A) at 526 -
527). Non constat that the problem should be formally raised at the trial: it is
26
832
sufficient if it "comes into existence " during the hearing, (R v Laubscher 1926 AD
276 at 280; R v Tucker 1953(3) SA 150 (A) at 158H-159H). It follows from these
requirements that there should be certainty not only on the factual issues on which
the point of law is based but also regarding the law point that was the issue at the
trial.'
[41] Furthermore the authors Du Toit et all in the Commentary on the Criminal
Procedure Act state:
'The trial court must refer to those facts in its judgments as part of the reserved
questions of law (S v Nkwenja en 'n Andere 1985 (2) SA 560 (A) 5678).
Furthermore , whenever the State has a question of Jaw reserved which rests on
particular facts, the State must have those facts fully placed on the record and in
particular as part of the out of the question of Jaw."
[30] In paragraph [18] the court emphasized the fact that the provisions of s 319(1)
of the CPA are compulsory and furthermore that they must be strictly followed. The
purpose of the provisions of s 319 were also set out in paragraph [18]. Their
purpose was to limit the appeals by the state. Any question of law raised by the
state must be supported by the facts of the matter. The guidelines set out in the
Magidela judgment must therefore be followed.
See also S v Pooe 2021(2) SACR 115 (SCA), paras [18) to [21]. In paragraph
[20] thereof, the Court stated that:
"[20} .... Jn my view, the s 319 application that the state brought before the trial
court, the first mentioned court motion', was of the utmost importance , as it would
serve to indicate the grounds upon which the state had sought to reserve the points
of law.
27
832
[21] An examination of the s 319 application .... revealed that the grounds upon
which the questions of law were sought to be reserved by the State were set out in
a summary form of the evidence of the trial court, but the factual basis upon which
they supposedly pivot were not. The State did not set out the factual findings on
which the reserve questions of law ought to have been considered . Thus, the facts
upon which the point hinged were not clear, nor were they fully set out by the state.
It is also not certain from the trial court's judgment on the merits which facts it
accepted to be the facts proved in the case. In these circumstances the state ought
to have requested the trial court to clarify its findings of fact. This the state
regrettably failed to do ... There are thus serious shortcomings in the s 319
application brought by the state."
[31] The First and Second Respondents complain that the Applicant has not
complied with the peremptory requirements of s 319(1) of the CPA. In this regard
they placed reliance on S v Pooe supra and Director of Public, Western Cape v
Schoeman and Another 2020(1) SACR 449 (SCA) at [46] and [49], also paras
[39] to [42]. According to Mr. Abrahams , s 319 of the CPA requires strict
compliance . Questions of law must be properly or intelligently and accurately
framed by the Applicant. Such should leave no doubt as to precisely what the legal
questions are. The Applicant must delineate proper factual foundation in respect of
each question formulated . The facts upon which the point of law hinges must be
clear, and these facts must be fully set out in the record together with the questions
of law. I find that the Applicant has not complied with this requirement. It has failed
to delineate proper factual foundation in respect of each question of law formulated.
According to Du Toit:
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832
" ... whenever the State has a question of law reserved which rests on particular
facts, the State must have those facts fully placed on record and in particular as
part of the setting out of the question of law."
Quite clearly, the authorities do not require the reasons for the request for the
reservation of law. Instead, they require the facts which underpin the request for
the reservation of the question of law.
[32] According to the judgment of OPP, Western Cape v Schoeman and Another
supra the requirements of s 319(1) of the CPA are as follows:
[32.1] Firstly, the question of the law reserved must be framed accurately leaving
no doubt what the legal point is.
[32.2] Secondly, the facts upon which the point hinges must be clear.
[32.3] Thirdly, these facts should be set out fully in the record together with the
questions of law.
[33] The Applicant must request a court hearing the s 319(1) request to return a
special finding on the facts upon which the ostensible questions of law, as
formulated by the Applicant, are founded. See in this regard, S v Pooe supra
paragraph [21]; Director of Public Prosecutions , Western Cape v Schoeman supra
paragraph [46]; Director of Public Prosecutions , Limpopo v Molope and Another
supra paragraph [11].
[34] I now turn to the Applicant's Request to establish whether it has complied with
the requirements of section 319(1) of the CPA in accordance with the guidelines
set out in Magidela or Molope and Another. The Applicant's Request, dated 4
October 2024, states as follows:
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832
"Now therefore please take further notice that the applicant respectfully requests
the court to resolve the following questions of law and stipulate the trial Court's
factual findings and the basis of each question:
[34. 1 J Whether the Honourable Court exercised this discretion judicially or had
been influenced by a wrong principle of law or a misdirection on the facts or
whether its decision had been unreasonable in granting the separation of trials.
The Finding of the Court on this point
The issue of separation of trial is discretionary . The discretion had to be exercised judicially by a court having
regard to the interests of justice. Section 157 makes no distinction between cases.
[34.2] Whether the Honourable Court duly considered the prosecutorial prerogative
as to how the accused should be charged as provided for in terms of section 179(2)
of the Constitution.
The court's findings on this point
The provisions of section 35(3)(d) of the Constitution do not prevent the State from exercising its authority in
terms of s 179(2) of the Constitution . The exercise of the State powers in terms of s 179(2) of the Constitution
is subject to the Bill of Rights.
[34.3] Whether the Honourable Court erred in not considering the provisions of
POCA and the authorities in relation thereto when it interfered in the directive by
the National Director of Public Prosecutions in terms of section 2 (4) of the POCA
that the respondents must be prosecuted together.
The Findings of the Court on this Point
It is utterly incorrect for the State to regard a Judge's exercise of his discretionary powers as an 'interference ".
In my view, such unsavory language should be avoided.
I find that the provisions of POCA are read and applied subject to the Bill of Rights. I also find that the provisions
of POCA do not prevent the Court from invoking the provisions of s 157 of the CPA where it comes to the
interests of justice.
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832
[34.4] Whether the Honourable Court erred in mero motu applying its inherent
powers in terms of section 173 of the Constitution instead of correctly conducting
an inquiry in terms of section 342(A) of the CPA.
The Court's Findings on This Point.
Nothing in this section states that the court may not exercise its powers unless it is so asked by someone.
The court was never asked to exercise its powers in terms of s 342(A) of the CPA. I also found that section
342(A) is trumped by the Bill of Rights.
[34. 5] Whether the Honourable Court erred in relying on section 342(A) of the CPA
where it did not properly apply the provisions of the section and failed to hold an
inquiry providing all the parties with the opportunity to respond and provide due
recognition to the impact on all the parties including the victim interest.
Findings on this Point.
This point is not clear. But as I pointed out somewhere above, no one raised the provisions of s 342(A) of the
CPA.
[35] It will be recalled that the Applicant informed the court that, in addition, he relies
on the grounds set out in the application for leave to appeal for its Request. The
question is, do those grounds set out the facts upon which the questions of law are
based? The answer is, NO. The facts upon which the points in law were said to
hinge were not set out in the Applicant's application in terms of s 319(1) of the CPA.
In Molope and Another, the Court's ratio decidendi appears in paragraph [45]. The
said paragraph states as follows:
':.4n examination of the s 319 application by the State pertinently illustrates that the
facts upon which the point of law were said to hinge on were not set out in its
application . The State merely summarized the evidence of the witnesses without
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832
analyzing the facts. It failed to set out the trial court's findings on which the reserved
question ought to have been considered ."
Similarly, in this case, the State has failed to set out the facts upon which it reserved
the points of law. As shown above, in the Molope and Another case, the State
application for leave to appeal or the State's application in terms of s 319(1) failed
because the State had failed to state the facts upon which the points of law were
said to hinge. In the circumstances , the Applicant's application on this point is
doomed to failure.
Lastly, the last point of the law has been inelegantly framed. It must be recalled
that it is a requirement of Schoeman that the question must be framed accurately
leaving no doubt what the legal point is.
[36] Whether section 319(1) of the CPA is applicable to interlocutory applications
which are not final, definitive or of final effect, more specifically to separation of trial
orders in terms of section 157 of the CPA.
[36.1] Counsel for the First and Second Respondents submitted that an order
separating an accused's trial from his co-accused is interlocutory , not of final effect
and not appealable . In this regard counsel for the First and Second Respondents
relied on the remarks of Hofmeyer J. in S v Libaya en 'n Andere 1965(4) SA 249
(0) 252 at 252C-D, which has been copiously cited in paragraph [40] of the
judgment which the Applicant seeks to appeal against. In addition, counsel for the
First and Second Respondents relies on the submissions made by counsel for the
Applicant in an earlier application for separation of trials. In a subsequent
application for leave to the court's refusal to order a separation of trial, counsel for
32
832
the Applicant submitted , in that application and as one of the reasons why the then
Applicant 's application for leave to appeal should not be granted, an order for the
refusal of an order of separation of trials is interlocutory and not appealable. A
quote from the said judgment:
"3. At the commencement of the proceedings , I invited the parties' submissions as to
whether the order refusing the separation of trials sought by the applicant from the trial
of the rest of the accused in the main trial is in fact appealable .
4. Advocates Cel/iers SC, on behalf of the applicant, contended that the order is
appealable , as it is final in effect and disposes of the issue of separation of trials the
applicant intended. Further, that the current application is brought in terms of sections
16 and 17 of the Superior Court Act of 2023 (the SC Act)
5. Advocate van der Merwe, on behalf of the respondent, contended that the order is
not appealable as it is an interlocutory order in a criminal trial without a final effect.
Further, that the application is brought under the provisions of section 157(2) of the
CPA and as such, leave to appeal ought to be brought in terms of the provisions of
section 316 of the CPA, which remedy is available to the applicant only after his
conviction and sentence ".
Based on the foregoing , it is Mr Abraham's view that the order that this court made in
terms of section 157 of the CPA is interlocutory ; it does not have a final effect and is
therefore not appealable . According to S v Boekhoud 2011(2) SACR 124 (SCA)
paras [33] and [66], the fact remains that the charges against the First and Second
Respondents remain extant and thus fall outside the scope of s 319( 1) of the CPA.
[36.2] According to Mr Abrahams , separation orders in terms of section 157 do not
have a final or definite effect; are not definitive of the rights of the parties; do not have
33
832
the effect of disposing of a substantial portion of the criminal case of the First and
Second Respondents; do not terminate the charges preferred against the First and
Second Respondents as outlined in the indictment ; do not bring the criminal trial of the
First and Second Respondents to an end; and do not bring finality to the /is between
the State, on one hand and First and Second Respondents , on the other hand, as the
charges preferred against the First and Second Respondents remain extant and will
amount to impermissible piecemeal appeals. See in this regard S v Boekhoud
2011(2) SACR 124(SCA) ,33, and 66; S v Sasson 2007(1) SACR 566 (CC) ,149 to
152; R v Adams and Others 1953(3) SA 753,762H-763
It will be recalled that in Daniel Mamphe Msiza v The State Case No. CC11/2021
Mosopa J refused the application for leave to appeal because:
"The interlocutory order I made does not dispose of the criminal trial of the applicanf'.
See paragraph 13, lines 4 to 5 of the said judgment.
[36.3] In this notice of opposition to the reservation of questions of law Mr. Stroh, for
the Sixth and Ninth Respondents, states that the Sixth and Ninth Respondents deny
that the interlocutory order in terms of s 157 of the CPA is final. He argued furthermore
that the order is not final in nature as it is subject to reconsideration at the request of
the parties in this matter. He concedes though that once the matter proceeds based
on the separation order the accused 9 and 10, in other words the First and Second
Respondents , cannot be charged together with the rest of the Respondents again as
directed by the National Director of Public Prosecutions . The reason the order is not
final, according to Mr Stroh, is that there has been no conviction and no sentencing .
So, according to Mr Stroh, the procedure set out ins 319(1) of the CPA can only be
resorted to at the conclusion of a criminal trial and not before it or not even where a
34
832
criminal trial has not taken place. Mr Stroh does not refer the court to any authority in
which the s 157 interlocutory order was reconsidered at the instance of the parties in
the matter while he accepts that if the matter proceeds according to the separation
order, some of the Respondents will not be prosecuted with the others.
[36.4] On the other hand counsel for the Applicant argued that the effect of the
separation of trials order that the court granted in terms of s 157 of the CPA has a final
or definitive effect on the criminal trial. According to him, this order needs to be
distinguished from other interlocutory orders that the court can revisit or reconsider
during the trial. Once the trials are separated in terms of s 157 of the CPA, it would
mean that the trial can no longer continue in terms of the indictment of which all the
Respondents were arraigned by the Applicant during the execution of their powers. In
terms of the court order, the indictment would need to be reviewed to exclude the First
and Second Respondents .
[36.6] It is of paramount importance at this stage to point out that the question is not
whether a separation order in terms of s 157 of the CAP is justified but whether
separation order made in terms of s 157 of the CPA is appealable . The authorities
quoted by counsel for the Applicant in this regard are of little help. Whether or not such
an order is appealable depends on whether it is permanent or a definite or final
judgment. And interlocutory order is an order granted by a court at an intermediate
stage during litigation, settling or giving directions relating to some preliminary or
procedural question which has arisen in the dispute between the parties. Such an
order may be either purely interlocutory or it may be an interlocutory order having a
final or definite effect. The principle to be applied in determining whether a procedural
order is purely interlocutory is the leading case of Pretoria Garrison Institutes v
Danish Variety Products (Pty) Ltd 1948(1) SA 839 (A.O.), 870. Such an order is
35
832
purely interlocutory unless it disposes of any issue or any portion of the issue in the
main trial or unless it irreparably anticipates or precludes some of the relief which
would or might have been given at a hearing. Though an interlocutory order may cause
great, indeed irreparable, prejudice to the Respondent , it clearly does not dispose of
any issue or any portion of an issue in the main trial.
[36.8] It is of paramount importance to point out that when counsel for the Applicant
argues that the order in terms of s 157 of the CPA has a final or definitive effect it
means that, if the matter proceeds as ordered by the court, the First and Second
Respondents cannot be charged together again as directed by the National Director
of Public Prosecutions. Although this order may cause great, indeed irreparable ,
prejudice to the Applicant , it clearly does not dispose of any issue or any portion of an
issue in the main criminal trial. But this argument by Mr Van der Merwe does not mean
that the order in terms s 157 brings any finality to the /is between the State, on the one
hand, and the First and Second Respondents , on the other hand. Here I agree with
the argument raised by Mr Abrahams that, despite the court's order in terms of s 157
of the CPA, the charges against the First and Second Respondents remain extant.
See S v Boekhoud paragraph [33] where the court had the following to say:
'[33] Whilst appreciating that there was a well-established legislative and judicial policy
which precluded piecemeal appeals to the SCA, the Constitutional Court noted there
was no such problem where the only charge against an accused is squashed . That
effectively brings the proceedings to an end. The same would apply in the event that
all the charges in an indictment were to fall away because of the ruling on jurisdiction.
It went to hold that there is no bar to a question being reserved in this regard."
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832
In the current matter, no indictment has been quashed. There has not been any
objection to the jurisdiction of the Court, as it was in the Magidela matter. There is no
order dismissing or upholding an exception to the charges. It is for that reason that Mr
Abrahams has argued that the charges against the First and Second Respondents ,
and by implication against the Sixth and Ninth Respondents remain extant.
[36.9] The order in terms of section 157 of the CPA does not bring the criminal trial of
the First, Second, Sixth and Ninth Respondents to an end. See S v Boekhoud 2011 (2)
SACR 124 (SCA) paras [33], [34], and [66]; S v Sasson 2007(1) SACR 566 (CC) from
paras [149] to [152]; R v Adams and Others 1959(3) [A.D] 753 at 763.
[36.1 0] Based on the above authorities , including the Porrit and Magidela judgments ,
I am satisfied that the position has now been firmly established by the Constitutional
Court and the Supreme Court. that section 319( 1) of the CPA is not applicable in this
matter. Both Mr. Abrahams and Mr. Stroh have submitted that the Applicant's
application in terms of s 319(1) of the CPA be dismissed. According to Mr Stroh, the
Applicant did not set out the requirements in this application for questions of law to be
reserved by this court.
[371 The questions of law framed by the Applicant do not have any practical effect on
the outcome of the trial of the First and Second Respondents .
[37.1] Relying on the judgment of Director of Public Prosecutions , Western Cape,
v Bongo 2024(2) SACR 180 (SCA) at paragraph [36], at paragraph [36], Mr.
Abrahams argued that the questions of law framed by the Applicant have no practical
effect on the outcome of the trial of the First and Second Respondents . In the said
paragraph the court stated that:
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832
'[36] The following requirements must be met before a question of law may be
reserved: (a) the question must be framed accurately so that there is no doubt as to
what the legal point is; (b) the facts upon which the point is based must be clearly set
out; (c) all of this must be clearly set out in the record. In addition. questions of law
should not be reserved while they will have no practical effect on the acquittal of the
accused. (My own underlining)
[37.21 There must be at least a reasonable prospect that if a mistake of law had not
been made, the First and Second Respondents would have been charged with the
rest of the Respondents and that there are reasonable prospects that they would be
convicted. I am of the view that some of these questions of law, although not framed
in conformity with the requirements of S v Molope and Another and S v Pooe, raise
questions of law.
(37.3} Nothing in the proceedings suggests that, if the First and Second Respondents
are charged separately in terms of this court's order made in terms of s 157 of the
CPA, they will not be convicted? Again, to put it otherwise , there is no suggestion that
the First and Second Respondents will only be convicted if they appear or are charged
with the rest of the Respondents .
[37.4) Accordingly , questions of law should not be reserved while they will not have
any practical effect. The charges against the First and Second Respondents remain
extant. The order by the court in terms of section 157 of the CPA does not terminate
the charges preferred against the First and Second Respondents , whether they are
charged separately or with the rest of the Respondents .
[38] I have not been persuaded that the Applicant enjoys any prospect of success if
the Applicant's application in terms of s 319(1) of the CPA is granted nor have, I been
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832
persuaded that there are any compelling reasons why the appeal should be heard.
Both Mr Abrahams and Mr Stroh are of the strong view that the factual foundation in
respect of the questions formulated by the Applicant does not enjoy any prospects of
success.
Accordingly, I make the following order:
1. The application in terms of section 319(1) of the Criminal Procedure Act NO.
51 of 1977 to reserve five (5) questions of law for the consideration of the
Supreme Court of Appeal is hereby dismissed.
Appearances :
Counsel for the Applicant
Instructed by PM MABUSE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv JH Van Der Merwe
Assisted by S Veenemens
Director of Public Prosecutions.
Counsel for the First & Second Respondents: Adv Shaun Abrahams ;
Assisted by Connie Mokhare
Instructed by:
Counsel for the Second Respondent :
Instructed by: Mai µ/eke Incorporated tla Mafuks Attorneys
Adv. Werner Smit
Legal-Aid South Africa
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832
Counsel for the Third & Sixth Respondents : Adv. Mike Netshiavha
Instructed by: Nwandzule Attorneys
Counsel for the Fourth Respondent:
Instructed by: Adv. David Ramagalela
Shemeya Vengesa Attorneys
Counsel for the Sixth & Ninth Respondents : Mr. Johan Stroh/Ms Ross.
Instructed by: Legal-Aid South Africa
Counsel for the Seventh Respondent:
Instructed by:
Counsel for the Tenth Respondent:
Instructed by:
Counsel for the Eleventh Respondents :
Instructed by: Mr. Ledile Mphela
Mphela Mngadi & Associates
Adv. Marianna Mampuru
Legal-Aid South Africa
Mr. Lwazi Guzana
Lwazi Guzana Attorneys
Counsel for the Eleventh & Twelfth Respondents : Mr. Jaco Hills/Adv W Jungbluth
Instructed by:
Date heard:
Date of Judgment: Hills Incorporated
11 November 2024
6 January 2025
40