056281/2025 -Is
09-05-2025 1 JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETOR IA
CASE NO: 056281/2025
DATE: 09-05-2025
DELETE WHICHE~ S NOT APPLICABLE
(I) REPORTABL E:~/ NO.
(2) OF INTEREST TO OTHER JUDGES: @No.
(3) REVISED.
DATE IC;) fui.. ~
SIGNATURE
1 0 In the matter between
CHRISTO JOHAN ROSE
and
NATIONAL PROSECUTING AUTHORITY
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
ADV. S.M MZINYATH I:
ACTING DEPUTY NATIONAL DIRECTOR
HEAD: NATIONAL PROSECUTING
20 SERVICES
JUDGMENT Applicant
First Respondent
Second Respondent
Third Respondent
NEUKIRCHER1 J: This is a judgment that emanates from an
urgent application that I heard in this court which is going to
056281 /2025-ls
09-05-2025
be given extempore. 2 JUDGMENT
The facts in this matter are not in dispute or
contentious. What is, is the relief sought by the applicant
who asks of the resp0ndents, (the NPA), to provide him with
the representations made by one Esterhuizen (the accused)
in Vryburg CAS102/06/2023 within 48 hours of date of this
order.
It bears noting that the accused is neither cited as a party in
this application nor has this application been served on him.
10 The point of non-joinder has been taken by the NPA. The
NPA also opposes the application on its merits and on the
issue of urgency.
20 The applicant is the complainant in a criminal matter
originating in the Regional Division held at Vryburg under
CAS102/06/2023 in relation to a charge of attempted murder
against the accused.
On 25 February 2025, Yende AJ, issued out the
following order in this division , by agreement between the
parties and that order, inter alia, states:
" ... 2. The second respondent (the
NDPP) to within 21 days from the
date of this order either issue a
no/le prosequi certificate to the
Applicant or instruct the Fourth
Respondent (the senior Public
056281 /2025-ls
09-05-2025 3 JUDGMENT
Prosecutor sub-cluster Vrybu rg)
to reinstitute the criminal
proceedings forthwith ... ".
The no/le prosequi certificate received by the
applicant on 12 March 2025 turned out to be incorrect (the
reason is not relevant to the issue to hand). The applicant
states that the correct no/le prosequi was eventually
received by him.
However, on 17 March 2025, the applicant's attorneys sent
10 correspondence to the respondents in which it was pointed
out that:
20 (a) the docket received as incomplete ;
(b) the applicant was not provided with the
representations of the accused that led to the
issuing of the no/le prosequi certificate.
The NPA's response is dated 18 March 2025 and the
relevant portions of that read as follows:
"12.4 I will request the OPP to assist
you with your query in respect of
the alleged incomplete case
docket. Please note that the NPA
is neither the owner nor the
custodian of the case docket, as
the docket is corn pi I ed by the
South African Police Service
10
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(SAPS). 4 JUDGMENT
12.5 The representations on behalf of
E Esterhuizen is legally
privileged and cannot be
disclosed to you, as the NPA is
n o t t he a u t h o r t h e re of. A f u rt h e r
consideration as to why you
cannot be provided with a copy of
the representations made on
behalf of E Esterhuizen , is
because you would expect the
NPA not to disclose your
representations to E Esterhuizen .
See also in this regard the
Democratic Alliance v The Acting
National Director of Public
Prosecutions (288/11 ) (2012]
ZASCA 15 where the SCA
declined to compel the NPA to
provide the applicant with a copy
of the representations made on
behalf of the accused . The court
order also does not provide for
this to be furnished to you."
The applicant , however , was not satisfied with this
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and on 22 April 2025 he launched this urgent application
giving the NPA until 24 April 2025 to file a notice to oppose
and u nti I 2 9 Ap ri I 2 02 5 to file an answering affidavit. The
application was then set down for hearing in my urgent court
on 6 May 2025 and heads of argument were also filed by
both parties.
The applicant contends that:
(a) he is a private prosecutor as contemplated in
sections 7 to 10 of the Criminal Procedure Act of
1977 (CPA);
(b) as such he stands on the same footing as the NDPP
and its prosecuting arms (see Po/ovin v Director of
Public Prosecutions 2 02 5 ( 1) SAC R 1 ( SCA)
paragraph 34);
(c) however, by virtue of the provisions of section 9 of
the CPA a private prosecutor is required to provide
security for the private prosecution as set out in
sections 9(i) and 9(ii) which is:
(i) R2 500 being the amount set by the minister in
20 the Government Gazette; and
(ii) the amount a court may determine as security
for the costs incurred in respect of the
accused's defence to the charge (or any
increased amount in terms of section 9(2));
(d) this places an undue and onerous burden upon him
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and that he must "seriously apply his mind" to the
case;
(e) he cannot do so without the accused 's
representations .
He argues that the application is urgent as he has a
short window within which to initiate his private prosecution
-this being three months -and therefore were he to wait his
turn on the ordinary Opposed Motion Roll he would not
obtain substantial redress in due course.
The applicant argues that as the accused 's
representations have been instrumental in the decision to
issue the nolle prosequi , it must be considered by the
applicant as well in order to make an informed decision on
whether or not to continue with the private prosecution and
to refuse this, exposes him to substantial prejudice.
The NPA argues, over and above the points in
limine, that the representations of an accused are legally
privileged and that they are made on the understanding that
they will not be disclosed to any third party without his or her
20 consent in light of the provisions of the NPA's PAIA Manual.
This has been the NPA's consistent stance since the
applicant 's first applicat ion that led to Yende AJ's order of
25 February 2025.
The NPA argues that the accused "has a legitimate
expectation that his representations will not be disclosed
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without him waiving the legal privilege ". According to the
NPA, paragraph 11.4 of the PAIA Manual compiled in terms
of section 14 of the Promotion of Access to Information Act 2
of 2000 provides :
"An accused person may also make
representations to the NPA. In such
circumstances , the representations will be
treated as having been made without
prejudice ."
Although I am of the view that the matter is not truly
urgent, the issue being mooted since the first (incorrect)
no/le prosequi being received in early March 2025, I decided
to entertain this matter on its merits so that the toing and
froing of the parties can be resolved at an early stage.
Thus, I entertained this matter as one of at least some
urgency .
The applicant has not sought to take issue with
paragraph 11.4 of the NPA's PAIA Manual as set out supra.
It has not sought to review or set aside that provision if
20 indeed it can do so. I make no comment or finding on this as
it was not argued.
The h ig hwater mark of the answer to the pa rticu la r
paragraph dealing with paragraph 11.4 of the PAIA Manual
was the NPA's argument is "misplaced " and loses sight of the
applicant 's status as a private prosecutor and that he is
056281 /2025-ls
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permitted to take the steps necessary to institute private
prosecution by virtue of the no/le prosequi certificate. But
this argument loses sight of the issue raised by the NPA i.e.
that the accused makes representations based on the
assurance that he does so "without prejudice". This means
that the representations are per se privileged . In ABSA Bank
Ltd v Hammerle Group 2015 (5) SA 215 (SCA) (ABSA Bank)
the Court stated that the general rule as regards
negotiations between the parties is as follows:
10 "[13) It is true that, as a general rule, negotiations
20 between parties which are undertaken with a view to a
settlement of their disputes are privileged from disclosure.
This is regardless of whether or not the negotiations have
been stipulated to be without prejudice ... ".
In KLD Residential CC v Empire Earth Investments
17 (Pty) Ltd 2017 (6) SA 55 (SCA) (KLD) at paragraph 32 the
SCA reaffirmed the principle and confirmed that although
there are exceptions to the privilege rule:
"[39] ... the exception itself is not
absolute and will depend on the facts of
each matter and there is nothing to prevent
parties from expressly or impliedly ousting
it in their discussions. What the exception
allows for, as I see it, is the prevention of
abuse of the without prejudice rule and the
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protection of a creditor ."
In both cases the abuse sought to be prevented
was:
(a) in ASSA Bank the debtor had admitted an act of
insolvency during negotiations and this admission
was allowed by the Court as an exception to the
without prejudice rule;
(b) in KLD an acknowledgment of indebtedness
embodied in a letter written to settle litigation was
permitted by the Court in order to interrupt
prescription.
In my view, the exceptions considered , supra, by the SCA do
not arise in casu.
There are also further considerations that prompt
me to find that the applicant is not entitled to the accused 's
presentat ions.
The N PA must act as a disinterested third party to
prosecute defences in the public interest and using public
funds. The prosecutor is an "at arm's length" decision -maker
20 based on the facts and evidence available to him or her at
the time. A private prosecutor does not act in public interest
-he or she has a vested interest in prosecution . This is
because section 7(1)(a) of the CPA requires that:
"(a) any private person who proves some substantial and
peculiar interest in the issue of the trial arising out of
10
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some injury which he individually suffered in
consequence of the commission of the said offence "
This difference cannot be understated.
In the unreported judgment of Mathunyane and Another v
Mokoena (case number 5722/2024) Mpumalanga Division
Middelburg , 18 November 2024, Bhengu AJ stated:
II [ 1 3] I consider that the applicants are
not challenging the decision of
the OPP in declining to prosecute
or the validity of the nolle
prosequi certificate of the OPP.
The applicants are also not
challenging the action of the
clerk of the court in issuing the
summons . I am of the view that
the recording forming the basis of
the NDPP's decision to issue a
nolle prosequ i is irrelevant in the
absence of a challenge to the
decision ... ".
On the issue of whether such a record would include
the accused 's representations, the following must be said:
where an accused raises no objection to the disclosure of
the representations , he then waives privilege and those may
then be provided. (See Polovin v Director of Public
056281 /2025-ls
09-05-2025
Prosecution and Others supra). 11 JUDGMENT
In Democratic Alliance and Others v Acting National Director
of Public Prosecutions and Others 2012 (3) SA 486 (SCA)
(the DA decision) the DA brought an application to review,
correct and set aside the decision to discontinue the
prosecution of Mr Zuma and to declare the decision to be
inconsistent with the Constitution. The DA required that the
record of decision including the representations made by
Mr Zuma be made available .
10 The NDPP refused to deliver the record on the basis that it
contained the representation which had been made on a
confidential and without prejudice basis. They, inter alia,
pointed out that Mr Zuma had declined to waive the
20 conditions under which he had submitted his
representations . The DA then brought an application to
deliver the record of proceedings on which the decision to
discontinue the prosecution was based excluding these
representations . The SCA stated:
"[33] There was a debate before us
about what value would be to the
reviewing court of a reduced
record, namely, a record without
Mr Zuma's representations.
Concern was also expressed on
behalf of Mr Zuma that there
10
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might be material in the record of
the decision, which might
adversely affect his rights and to
which he might rightly object.
That concern was met by an
undertaking on behalf of the first
respondent that, in the event of
this Court altering the decision of
the court below as to order the
production of the record of the
decision sought to be reviewed,
the NDPP's office would inform
Mr Zuma of its contents.
Questions involving the extent of
the record of the decision and its
value to the court hearing the
review application are
speculative and premature. In
the event of an order compelling
production of the record, the
office of the NDPP will be obliged
to make available whatever was
before Mr Mpshe when he made
the decision to discontinue the
prosecution. It will then fall to
10
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the reviewing court to assess its
value in answering the questions
posed in the review application.
If the reduced record provides an
incomplete picture it may well
have the effect of the NDPP
being at risk of not being able to
justify the decision. This might
be the result of Mr Zuma's
decision not to waive the
confidentiality of the
representations made by him.
On the other hand, a reduced
record might redound to the
benefit of the NDPP and Mr
Zuma.
[37] In the constitutional era courts
are clearly empowered beyond
the confines of PAJA to scrutinise
the exercise of public power for
compliance with constitutional
prescript. That much is clear
from the Constitutional Court
judgments set out above. It can
hardly be argued that, in an era
10
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of g re ate r transparency,
accountability and access to
information , a record of decision
related to the exercise of public
power that can be reviewed
should not be made available ,
whether in terms of Rule 53 or by
courts exercising their inherent
power to regulate their own
process. Without the record a
court ea n not perform its
constitutionally entrenched
review function , with the result
that a litigant's right in terms of
section 34 of the Constitution to
have a justiciable dispute
decided in a fair public hearing
before a court with all the issues
being ventilated , would be
infringed . The DA, in its
application to compel discovery ,
has merely asked for an order
directing the office of the NDPP
to despatch within such time as
the court may prescribe the
10
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record of proceedings relating to
the decision to discontinue the
prosecution , excluding the written
representations made on behalf
of Mr Zuma to the office of the
NDPP. Subject to the question of
standing which is dealt with next
I can see no bar to such an order
being made."
Whilst the applicant relies on the general statement
set out at paragraph [37] of the judgment supra to
underscore his position , the facts of the DA decision are
vastly d iffe rent to those in casu:
(a) in that matter it appears that the DA abandoned its
request that the record include the representations.
This much is clear from paragraph [37] and paragraph
1.3 of that court order which states:
"1.3 ... the first respondent is directed to
produce and lodge the registrar of
this court a record of the decision .
Such record shall exclude the written
representations made on behalf of
the third respondent (who was Mr
Zuma) and any consequent
memorandum or report prepared in
056281 /2025-ls
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response thereto or oral
representations if the production
thereof would breach
confidentiality attaching to any
the
representations (a reduced record)
"
(b) the DA decision also involves the issue of a review of
the exercise of a public power -there is no such
consideration present here.
10 In fact, the applicant has disavowed pursuing a review in the
application that is before me, and that is clear from his
papers and relief that he seeks.
In my view the applicant does not need the
complainant 's representations to institute his private
prosecution.
I am also of the view that it would give him an unfair
advantage in the criminal proceedings as he will know at
commencement what the version of the accused is and would
be able to tailor his evidence to accommodate that. If the
20 accused decides to give a plea explanation or make any
admissions at the commencement of the criminal
proceedings then so be it.
Given my view that the application must fail, I do not
intend to deal with the point of non-joinder in any detail.
How ever, I must state that had the out co me been different , I
056281 /2025-ls
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would have insisted on service of this application on the
accused as in my view he has a substantial interest in the
outcome of this application.
Costs
The NPA sought a cost order in the event it is successful.
However , must bear in mind that the applicant seeks
information he alleges should be made available to him in
order to put him in a position to exercise his rights under
sections 7 to 10 of the CPA. These issues are complex and
10 a novel I cannot find that he pursued a course knowing he
would be unsuccessful or that he is vexatious in his suit.
20 a I so take into account that he wi II have to set security
should he persist with his private prosecution .
This all being so, I am of the view that each party
should pay his or its own costs.
ORDER
The application is dismissed .
NEUKIRCHER, J
JUDGE OF THE HIGH COURT
Judgement handed down: 9 May 2025
Transcript revised: 15 May 2025