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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: 16116 /24
In the matter between
J[...] T[...] Applicant
and
THE REGIONAL MAGISTRATE First Respondent
SOMERSET WEST
THE DIRECTOR OF PUBLIC Second Respondent
PROSECUTIONS WESTERN CAPE
Coram: Wille et Lekhuleni, JJ
Heard: 14 February 2025
Delivered: 19 March 2025
JUDGMENT
WILLE, J:
INTRODUCTION
[1] The applicant is currently an accused person in a part-heard criminal trial .
The first respondent is the judicial officer in the lower court in charge of and presiding
over this criminal trial. A member of the second respondent is the prosecutor in this
criminal trial.1
[2] The first respondent, the judicial officer presiding over the case in the lower
court, takes no part in these review proceedings. The trial is still ongoing. The
prosecution has presented evidence and closed its case .2
[3] After that, the applicant brought an application to be discharged at the end of
the prosecution’s case . The first respondent found the applicant had a case to meet
on the evidence presented . Thus, the first respondent dismissed the application for
the applicant's discharge after the prosecution had closed its case and reserved the
main reasons for he r findings to be given in her leading judgment .3
OVERVIEW
[4] The a pplicant seeks an order to:
(a) Review and set aside the first respondent’s decision to dismiss the
application for the applicant’s discharge .
(b) To discharge the applicant and effectively acquit the applicant.
(c) Alternatively, the first respondent ’s ruling should be reviewed and set
aside , reserving the reasons for her ruling to be dealt with in her
leading judgment.
1 This application is opposed by the Director of Public Prosecutions, Western Cape.
2 The applicant has yet to testify, call witnesses or close his case.
3 This following the provisions of s ection 174 of the Criminal Procedure Act, Act 51 of 1977 (“CPA”).
(d) Alternatively, the first respondent should provide reasons for not
discharging the applicant within thirty days of the order of this court.
(e) Finally, the respondents are to pay the costs of the review application
jointly and severally , the one paying the other to be absolved .4
[5] In summary, the applicant contends for the position that the first respondent
erred as a matter of law and made an incorrect decision and not that the first
respondent committed an irregularity in arriving at her decision . The applicant was
charged with one count of sexual assault and two counts of attempt ing to commit a
sexual offence. The applicant pleaded not guilty to all the charges preferred against
him. The complainant is the applicant’s granddaughter, a minor at the time of the
alleged offences.5
THE REVIEW GROUNDS
[6] The applicant has seemingly now abandoned his contentions that were
chartered following the law dealing with administrative review s regarding specific
targeted legislation.6
[7] In summary, t he matter is brought before us under the rubric of one of the
following review grounds :
(a) Absence of jurisdiction on the part of the court .
(b) Interest in the cause, bias, malice or corruption by the presiding
judicial officer .
(c) Gross irregularity in the proceedings .
4 On what basis is the first respondent is liable for costs is challenging to und erstand.
5 The offences allegedly occurred in 2014 and 2020 respectively.
6 The Promotion of Administrative Justice Act,3 of 2000 (“PAJA”).
(d) The admission of inadmissible or incompetent evidence or the rejection
of admissible or competent evidence .7
[8] The sole basis for the review application at the instance of the applicant is that
the first respondent committed a gross irregularity by failing to discharge the
applicant after the prosecution had closed its case .8
[9] Alternatively , the complaint is that the first respondent did not give detailed
reasons for refusing the application for the discharge , and the recording that detailed
reasons would be provided later in her leading judgment amounts to an irregularity.9
SECTION 174 OF THE CR IMINAL PROCEDURE ACT
[10] The applicable legislation provides as follows:
‘…[If], at the close of the case for the prosecution at any trial, the court is of
the opinion that there is no evidence that the accused committed the offence
referred to in the charge or any offence of which he may be convicted on the
charge, it may return a verdict of not guilty…’10
CONSIDERATION
[11] The applicant is effectively asking this review court to find him not guilty. It is
so that an appeal and a review are both ways of reconsidering a decision. An
appeal is when the incorrect result is achieved on the facts or the law.11
[12] It is trite that a review is not concerned with the decision's merits but solely
about whether it was arrived at through the correct decision -making process or
whether an incorrect procedure was followed in reaching the court's decision . The
first respondent's ruling on the discharge application was because of the intervening
7 Sections 21 and 22 of the Superior Court’s Act, Act 10 of 2013 (“HCA”).
8 This, to me, is an out -and-out ground for an appeal.
9 Again, this may be grounds for appeal once the criminal trial has been concluded.
10 Section 174 of the C PA.
11 Tikly v Johannes NO 1963 (2) SA 588 (T) at 590 G -H.
legislation of a discretionary nature. I say this because t he applicable legislation
determines that the court ‘may’ discharge an accused p erson and render a finding of
no guilty.12
[13] Even on a liberal approach to the interpretation of this discretion afforded to
the first respondent (in circumstances such as these ), it is challenging to understand
on what basis the finding by the first respondent is subject to any judicial review.13
[14] I say this for several reasons:
(a) There is no final inalterable prejudice against the applicant , given the
failure to discharge the applicant after the closure of the case for the
prosecution.
(b) The f irst respondent may acquit the applicant upon finalising the
proceedings and applying the test for a final judgment on the merits.
(c) The ‘complaints’ raised are groun ds for appeal should a conviction be
returned against the applicant.
(d) Thus, a ny appeal or review is manifestly premature .14
[15] Moreover, a ny application for a discharge in terms of this specified legislation
is interlocutory by its very nature. This is so because once the prosecution rests
after presenting its case ( and despite a finding that a prima facie case was made
against t he applicant) , the applicant may still lead evidence , which may cause the
judicial officer to decide that the applicant falls to be acquitted. Alternatively, the
applicant may close his case without giving evidence, and if the court finds no
evidence against him, the court may still return a verdict of not guilty.15
12 It may be that this discretion is extremely limited, which will be discussed later in this judgment.
13 The finding was interlocutory and “partially ” discretionary by nature.
14 The review application is in medias res.
15 The test to be applied at the conclusion of the trial is a different and discrete test
[16] Thus, a finding by a judicial officer dismissing an application for a discharge in
terms of this intervening legislation is not reviewable, even if the exercise of this
partia l discretion was found to be incorrect. What must be demonstrated is a n
irregularity on the part of the judicial officer.16
[17] The mere assertion by the applicant that the finding by the judicial officer was
not to his benefit does not mean, absent any other features, t hat the decision was
incorrect , irregular or ‘grossly ’ irregular .17
[18] It is the second respondent’s submission that t he arguments raised supporting
the application for review are based on the submission s that the first respondent did
not apply the relevant legal principles applicable when evaluating the evidence
presented . This is not a ground for review .18
[19] By contrast, the a pplicant contends that the first respondent did not follow the
legal guidelines following our decided jurisprudence and irregularly (at best for the
applicant) exercised her judicial discretion incorrectly.19
[20] The primary argument by the applicant is that there were shortcomings in the
complainant's evidence, which established the possibility that the allegations against
him might be untrue . Thus, it is contended that the only possibility for the applicant's
conviction would be if the applicant elected to testify or call witnesses .20
[21] I say this because to establish this as a genuine irregularity worthy of
consideration, the applicant’s contentions are solely underpinned by an analysis of
the credibility of the witnesses for the prosecution. It cannot be said there was ‘no
evidence ’ on which a reasonable man acting carefully might convict .21
16 Van Aswegen v District Magistrate Atlantis and Another 2024 JDR 2129 (WCC) at paragraphs [29]
- [30].
17 Again, this may in time manifest as a grou nd of appeal.
18 The applicant contended that the first respondent’s finding was wrong.
19 This discretion may be “limited” as discussed later.
20 The applicat ion is contended for the applicant’s right against self -incrimination.
21 S v Mpetha 1983 (4) SA 262 (C) at 266H.
[22] The trial court must indulge in the exercise of limited judicial discretion.
Guidelines for the exercise of t his discretion concerning this type of judicial discretion
have been eloquently illustrated as follows:
‘…It seems to me that the rule is clear, namely, that if at the close of the case
for the Crown the evidence against the accused, or against one or more of the
accused, is not such that a reasonable man might convict upon it, the Judge
had a discretion wheth er or not to discharge. He is quite entitled to refuse to
discharge if he considers that there is a possibility that the case for the Crown
may be strengthened by evidence emerging during the course of the
defence …’22
[23] Sometime after this, our jurispr udence was further ‘developed ’ by formulating
and suggesting a two -staged approach to be considered when evaluating the
discharge of an accused person after the closure of the case by the prosecution.
Although I do not agree with this two -stage test or ap proach (which has since been
overruled), what was stated was the following:
‘…The position can be summed up as follows: At the close of the State case,
when discharge is considered, the first question is: (i ) Is there evidence on
which a reasonable man might convict; if not , (ii) is there a reasonable
possibility that the defence evidence might supplement the State case? If the
answer to either question is yes, there should be no discharge , and the
accused s hould be placed on his defence…’23
[24] Thus, what emerged that is helpful is that once the trial court established
prima facie evidence linking the applicant with the commission of the alleged
offences, credibility would only become a consideration once (and if) the evidence
was of such a ‘poor quality ’ that no reasonable person could accept it .24
22 R v Kritzinger 1952 (2) SA 401 (W) at 406 -A.
23 S v Schuping 1983 (2) SA 119 (B) at 120 -121 & S v Lubaxa 2001 (2) SACR 703 (SCA).
24 S v Mpetha 1983 (4) SA 262 (C).
[25] Following an objective analysis of the evidence in this case, no finding could
reasonably be returned against the poor quality of the evidence presented by the
prosecution. Thus, we are left with the applicant’s criticisms about the credibility of
the complainant’s allegations to the limited extent that it is reasonably possible that
the accused may be innocent .25
[26] Undoubtedly, this does not meet the threshold test for a judicial review. I say
this because the merits or demerits of the impugned finding play a limited role (if
any). After all, the application is by its very nature interlocutory and premature . The
applicant’s entire case is based on the contention that the first respondent made an
incorrect decision and not that the first respondent committed an irregularity in
arriving at her decision .26
[27] Further, no irreparable prejudice would result should the trial proceed to
finality because the applicant may be acquitted in the final trial process. Put another
way, if a conviction followed, the complaints raised may manifest as grounds for an
appeal.27
[28] In ad dition, the applicant complains about an infringement of his right to a fair
trial. These complaints must be viewed in the context of the fact that the trial
process regarding the applicant has not yet been completed. The position in our law
concerning t his issue has been eloquently formulated as follows:
‘…Once again, it is our respectful view that the applicant 's reliance on the
provisions of the Constitution with regard to his fair trial rights do es not justify
interference in criminal proceedings which are mid -stream, and more so
where the applicant has failed to demonstrate any legal basis for the relief
sought in this court on review …’28
25 This is not a ground for a review.
26 These are arguments to be pursued by way of an appeal process.
27 These complaints may manifest in due course as grounds of appeal.
28 Motikeng v Regional Magistrate Beaufort West and Another 2023 JDR 0119 (WCC) at paragraph
[39].
[29] Many significant trial rights exist and find application in our criminal and
procedural law. One of the most important ones is the presumption of innocence. A
failure by the prosecution to mount sufficient evidence at the closure of its case gives
an accused person an opportunity to escape having to be put on his or her
defence.29
[30] It is trit e that the threshold test of evidence presented and thus required by the
second respondent at the closure of its case to avoid the applicant’s discharge was
considerably lower than the standard the second respondent ha s to meet to secure
the applicant’s co nviction (if any) .30
[31] This threshold test relating to the discharge of an accused after the closure of
the case for the prosecution has been consistently applied by our courts over many
years. However , it is the ex ception to this test , which calls for an approach of the
caution of a chameleon.31
[32] The exception in our procedural law is that a court may discharge an accused
when the evidence presented by the prosecution is of such a poor quality that no
reasonable man acting carefully could convict thereon.32
[33] What this exception may permit is a limited probe into the issue of the
credibility of the evidence presented. In my view , this is where the diff iculty lies, as
this ‘credibility’ exercise does not strictly fall within the remit of a judicial officer at the
stage when the prosecution has closed its case .33
[34] Thus, t his discharge device in our law is just a sentinel against the conviction
in the face of spurious evidence presented by the prosecution. Harm may occur
when this procedural mechanism is used as a device by an accused person to
attempt either to:
29 This is not the case that we have been presented by way of this review,
30 This is common cause between the parties.
31 Lubaxa 2001 (2) SACR 703 (SCA) at paragraph 1 1.
32 S v Schwartz 2001 (1) SACR 334 (W).
33 This is an area of vigorous academic debate , especially where there is more than one accused.
(a) Impermissibly persuade a judicial officer to embark on pre -mature
credibility finding s regarding the evidence presented by the prosecution
and/or ,
(b) Impermissibly ga in a window into the judicial thought process of the
judicial officer so that an accused person may tailor his or her defence
case accordingly under the camouflage of simulated review
proceedings.34
[35] I will now deal with this second aspect of the revie w piloted by the applicant.
In a final thr ow of the dice , the applicant sought complete and comprehensive
reasons from the first respondent as to why the discharge application was refused.35
[36] The first respondent gave the following ‘reasons ’ for the refusal of the
discharge application:
‘…there is evidence that the accused committed the offence in the charge …’36
[37] The second respondent contends that reserving full reasons for a decision
when interlocutory findings are made during a criminal trial is a regular occurrence
and does not amount to an irregularity, gross or otherwise.37
[38] In summary, the first respondent communicated to the applicant that sufficient
evidence implicate d the applicant in committing the alleged charges as preferred
against him by the prosecution. The fact that the applicant is unsatisfied with the
reasons provided does not , per se , indicate an irregularity, grossly or otherwise.
This is especially so when detailed reasons will be given in the leading judgment.38
[39] What I say is impermissible under the guise of review proceedings is an
analysis of the judicial officer ’s detailed reasons for refusing the applicant’s
34 This is precisely what the applicant is attempting to do.
35 The applicant is “testing the waters” regarding the strength of the case for the prosecution.
36 In my view, this is more than adequate.
37 With this, I agree.
38 Again, this may manifest as a ground of appeal in the fullness of time.
discharge application. I say this because this would constitute an interim evaluation
of the available evidence under the guise of review proceedings. Any such detailed
assessment would, in essence, amount t o appeal proceedings, in medias res , which
would be legally impermissible and to which the applicant is not entitled at this
stage .39
[40] It is also not for this court, in medias res , to now e valuate the evidence
presented by the prosecution, except in limited circumstances in the category of the
discharge procedure, which I have styled as an ‘exception ’ to the standard method to
be followed.40
[41] The arguments chartered by the applicant are based o n the facts relating to
the findings made by the first respondent . It is legally impermissible for this review
court to re -consider the merits of the evidence as presented thus far, as this would
amount to a premature appeal of the first respondent’s factual findings.41
[42] For this reason, I will not engage with the factual findings or evidence
presented in the lower court. The applicant’s defence is a bare denial , and he
advances a possible motive for implicating him with the offences preferred against
him by the prosecution. Self-evidently, it is not for this court to engage in any
manner with these defences raised under the guise of review proceedings.42
[43] Undoubtedly, we are dealing with out -and-out issues about credibility, which a
trial court is best s uited to decide on after hearing all the available evidence. Against
this background, it is challenging to understand how the interim finding against the
applicant amounts to an irregularity, let alone a gross irregularity. In addition, there
is no final inalterable prejudice to the applicant should the decision stand.43
39 In terms of section 309 (1) (a) of the CPA.
40 This is what may occur ultimately in the appeal process.
41 This would amount to an appeal in medias res .
42 This is an issue to be decided upon by the trial court.
43 The applicant may even be acquitted upon the conclusion of the trial proceedings.
[44] Put another way, the applicant will not suffer irreparable prejudice if the trial
proceed s in tha t he may be acquitted . Besides, even if a conviction was to follow,
the complaints raised may constitute ground s for appeal.44
[45] Our jurisprudence has established a longstanding principle that a reviewing
court will sparingly interfere with the ‘as-yet-uncompleted ’ proceedings in a lower
court. This principle was eloquently illustrated as follows:
‘…The learned authors of Gardiner and Lansdown (6th ed., vol. I p. 750)
state: While a superior court having jurisdiction in review or appeal will be
slow to exercise any power, whether by mandamus or otherwise, upon the
unterminated course of proceedings in a court below, it certainly has the
power to do so, and will do so in rare cases where grave injustice might
otherwise result or where justice might not by other means be attained …’45
[46] Undoubtedly, this is not such a rare case. Instead, in my view, the applicant
is impermissibly attempting to utilise the discharge provisions as a mechanism or
tool to gain insight into the strengths and weaknesses of the case for the prosecution
to tailo r his evidence from now on or to assist him with his decision on whether or not
he should testify in his defence and /or call witnesses. This is not the purpose for
which the discharge provisions were designed.46
COSTS
[47] The applicant sought a cost order against those respondents in the event of
their opposition to the application. The second respondent opposed the application.
Although the application exhibited some features of a civil review, it was , in essence,
a ‘criminal ’ review. I say this because one of the remedies contended for was the
applicant's acquittal . In these circumstances , there should be no order as to costs.47
44 This application by the applicant is premature.
45 Wahlhaus and Others v Additional Magistrate, Johannesburg an d Another 1959 (3) SA 113 (A) at
119.
46 This is legally impermissible.
47 I have a discretion when it comes to issues of costs.
CONCLUSION AND ORDER
[48] Given the circumstances of the matter, the first respondent's conduct did not
and does not amount to an irregularity, gross or otherwise . Thus, the following order
is granted:
1. The application is dismissed.
2. There shall be no order as to costs.
________
WILLE, J
I agree.
_____________
LEKHULENI, J