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[2025] ZAFSHC 131
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Bester v S (83/2023) [2025] ZAFSHC 131; 2025 (2) SACR 664 (FB) (29 April 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
NOT
REPORTABLE
Case
no:
83/2023
In
the matter between:
THABO
BESTER
Applicant
And
THE
STATE
Respondent
Coram:
JP DAFFUE J
Heard
:
23 APRIL 2025
Delivered
:
29 APRIL 2025
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 15H00 on 29 APRIL
2025.
Summary
:
Application for leave to appeal. The court ruled that the
applicant, accused 7 in a criminal trial which has yet
to commence,
shall respond to the State’s notice in terms of
s 212B
of the
Criminal Procedure Act 51 of 1977
. The purpose of the section was
considered,
ie
to establish the undisputed facts in criminal
proceedings in an attempt to streamline proceedings. The court held
that the ruling
was not appealable, did not cause any unfairness and
did not disregard any of the applicant’s constitutional rights.
Also,
an appeal in the uncompleted criminal proceedings should not be
allowed. The court dismissed the application for leave to appeal.
ORDER
1.
The application for leave to appeal is
dismissed.
JUDGMENT
Daffue
J:
Introduction
[1]
The applicant, Mr Thabo Bester, cited as the seventh
accused in
criminal case number 83/2023, applies for leave to appeal to the
Supreme Court of Appeal, alternatively the full bench
of this
division. His case is that the ruling on 13 January 2025, directing
him to reply to the State’s notice in terms of
s 212B of the
Criminal Procedure Act 51of 1977 (the CPA) on/or before 28 February
2025, should be set aside on appeal for various
reasons to be dealt
with briefly. The application is opposed by the State.
Grounds
of appeal
[2]
In submitting that there are reasonable prospects of
success on
appeal, or compelling reasons why the matter should be referred to a
court of appeal, the applicant relies on the following
grounds of
appeal:
a.
I violated the
audi alteram partem
principle with reference to
ss 34 and 35 of the Constitution;
b.
I disregarded his right to remain silent,
to be presumed innocent and
not to testify;
c.
the proceedings on 13 January 2025 are equivalent
to litigation by
ambush;
d.
I usurped the powers of the court hearing
his ‘pending fair
trial rights application’; and
e.
I erred in compelling the applicant to reply
to the s 212B notice
before he could properly consult with his legal team; furthermore, I
should have instituted an investigation
in terms of s 212B(5) at the
very least, which I failed to do.
The
test in applications for leave to appeal
[3]
In
S
v Smith
[1]
the
Supreme Court of Appeal (the SCA) stated:
‘
. . . In order to
succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success
on appeal and that those
prospects are not remote, but have a realistic chance of succeeding.
More is required to be established
than that there is a mere
possibility of success, that the case is arguable on appeal or that
the case cannot be categorised as
hopeless. There must, in other
words, be a sound, rational basis for the conclusion that there are
prospects of success on appeal.’
[4]
Later on in
MEC for
Health Eastern Cape v Mkhita and Another
[2]
the SCA
repeated the principle in the following words:
‘
[16] Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly
is a reasonable
prospect of success.
Section
17(1)
(a)
of
the
Superior
Courts Act 10 of 2013
makes
it clear that leave to appeal may only be given where the judge
concerned is of the opinion that the appeal
would
have
a reasonable prospect of success; or there is some other compelling
reason why it should be heard.
[17] An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough.
There must be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.’
[5]
More
recently the same court commented as follows in
Ramakatsa
and Others v African National Congress and Another
[3]
:
‘
. . . The test of
reasonable prospects of success postulates a dispassionate decision
based on the facts and the law that a court
of appeal could
reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants in this
matter need to convince
this Court on proper grounds that they have prospects of success on
appeal. Those prospects of success
must not be remote, but there must
exist a reasonable chance of succeeding. A sound rational basis for
the conclusion that there
are prospects of success must be shown to
exist.’
The
history of the litigation
[6]
As can be gleaned from the heading, the case number is
83/2023. We
are now in 2025, two years after the criminal proceedings have been
instituted. I have not been involved in any of
the several pre-trials
and/or applications launched by Dr Magudumana, the first accused and
the applicant, Mr Bester, relating
to the criminal case. Bearing in
mind the huge attention that this matter has been given by the media,
I have taken note of the
events. I am not a stranger in Jerusalem.
This matter has been delayed, but the criminal trial was eventually
set down to start
on 10 February 2025.
[7]
Dr
Magudumana applied for several orders, inter alia that her alleged
arrest in Tanzania and subsequent transportation to South
Africa as
well as her further detention be declared wrongful and unlawful. On 5
June 2023 her application was dismissed by Loubser
J
[4]
.
She was not satisfied with the outcome and appealed to the SCA. I was
informed by Mbhele DJP that she had been informed that the
SCA
judgment would be handed down not later than 10 February 2025. At the
hearing of this application for leave to appeal this
judgment was
still outstanding.
[8]
The applicant, Mr Bester, brought an application issued
under case
number 4096/2024, inter alia claiming that it was impossible for him
to consult with his legal team, bearing in mind
the detention
conditions. He inter alia averred that no meaningful consultations
could be held with his legal team. He also sought
an order that he be
allowed to use a laptop or any suitable gadget in preparation of his
criminal trial. The application was heard
by Mbhele DJP who informed
me the night before the events on 13 January 2025 that her judgment
was still outstanding, but would
be delivered soon. I have now been
informed by Adv Moela, acting for the applicant, that judgment had
indeed been delivered, but
that they had applied directly to the
Constitutional Court for leave to appeal to that court. Those
proceedings are pending. In
the mean time I obtained a copy of Mbhele
DJP’s judgment. Applicant’s counsel argued that the
criminal court before
which he is arraigned is cloaked with
jurisdiction and not the civil court. His objection to the civil
court’s jurisdiction
was dismissed with costs.
[9]
I now return to the events of 13 January 2025. Adv Bester
on behalf
of the State arranged with the parties involved in the criminal trial
to appear before me on that day, I being the only
judge on duty at
the time during the recess. The purpose, and my understanding of the
meeting, was to come to an agreement pertaining
to the postponement
of the criminal case, set down for hearing as mentioned above, to new
dates. It was apparent to the State that
the defence would not be
ready to proceed on trial in February 2025. The parties did in fact
agree on postponement of the criminal
trial to the third term of
2025, as well as certain dates in the fourth term of 2025. They also
provisionally agreed that, if required,
dates in the first term 2026
should be allocated to the case. Such order was made.
[10]
When the parties met me in chambers before going to court, Adv Bester
indicated
that I should make further orders. The only relevant order
required and the issue now before the court is the ruling that the
applicant
shall respond to the State’s notice in terms of
s
212B
which had been provided to him several months ago. Mr Moela
indicated in chambers that his client was ambushed. As a result, I
gave him a short while to consult with his client before the start of
proceedings in court. After hearing some argument, I made
my ruling
without giving reasons and without allowing further submissions as
indicated in the transcription obtained by the applicant’s
attorney.
Norms
and Standards and the finalisation of criminal cases
[11]
On 14 February 2014, Chief Justice Mogoeng Mogoeng at the time issued
Norms
and Standards in terms of
s 8
of the
Superior Courts Act 10 of
2013
, read with s 165(6) of the Constitution. In paragraph 5.2.4
thereof judicial case flow management is dealt with. Judicial
Officers
shall take ‘active and primary responsibility for the
progress of cases from initiation to conclusion to ensure that cases
are concluded without unnecessary delay’. Pre-trial conferences
became obligatory and it is stated that these shall be held
‘as
early and as regularly as may be required to achieve the expeditious
finalisation of cases’. It is clearly stipulated
in paragraph
5.2.5 that ‘
every effort shall be made to bring the accused
to trial as soon as possible after the accused’s arrest and
first appearance
in court’
. (emphasis added)
Section
212B
of the
Criminal Procedure Act 51 of 1977
[12]
Section 212B(1)
provides an opportunity to the State at any stage
during the proceedings to hand a notice to the accused or their legal
advisor,
setting out the facts that shall be deemed to be proved at
the proceedings, unless notice is given that those facts (or some of
them) will be placed in issue. In terms of subsec (3) the accused or
their legal representative shall deliver a notice in writing
indicating the facts in issue. If a fact or facts are not placed in
issue as contemplated in subsec (3), the court may in terms
of subsec
(4) deem such fact or facts to have been sufficiently proved, subject
to the provisions of subsecs (5) and (6). Once
the State’s s
212B notice and the reply thereto are brought to the notice of the
court, it shall at the commencement of the
criminal proceedings
institute an investigation into such of the facts which are not
disputed and enquire from the accused whether
they confirm the
information given by the prosecutor, whether they understand their
rights and the implications of the procedure
and whether they confirm
their reply or not.
[13]
Mr Moela conceded that the purpose of
s 212B
was to establish the
undisputed facts in criminal proceedings in an attempt to streamline
proceedings. Yet, he submitted that I
had no power to compel his
client to reply. Adv Bester for the State submitted that instead of
accepting that the failure to reply
should be deemed to be an
admission of the facts set out in the State’s s 212B notice,
she was lenient and requested a further
opportunity for the applicant
to reply.
Discussion
[14]
I shall focus in my discussion under several sub-headings. I deal
first with
the non-appealability of the ruling. Then I shall deal
with aspects relating to the merits of the application and the
grounds of
appeal.
Non-appealability
of the ruling
[15]
My ruling is not definitive of the rights of either the applicant, or
the State.
Clearly, it is not dispositive of a substantial portion of
any relief to be claimed in the criminal proceedings still to
commence.
I did not finally determine any of the parties’
rights. Clearly, the trial judge may again consider the issue when
the applicant
and his co-accused eventually go on trial. The trial
judge may decide to grant more time to the applicant to respond.
No
practical effect
[16]
Section
16(2)(a)(i)
of the
Superior Courts Act 10 of 2013
states that when it
appears at the hearing of an appeal ‘that the decision sought
will have no practical effect or result,
the appeal may be dismissed
on this ground alone.’ Courts shall not decide issues purely
for academic interest and leave
to appeal should not be granted where
the decision sought on appeal will have no practical effect or result
as stated in
Centre
for Child Law v The Governing Body of Hoërskool Fochville
[5]
.
The doctrine of mootness is also relevant to the application.
Clearly, the matter has become moot. The date provided for the reply
to be filed has come and gone
.
Even if
it may be assumed that the applicant’s failure to respond –
which is seriously doubted in the circumstances
- resulted in
admissions, the trial court will be duty-bound to enquire from him as
set out in subsec 212B(5). Mr Moela’s
submission that I should
have undertaken such enquiry already on 13 January 2025 is without
substance as I granted more time to
respond at the request of the
State.
[17]
Mr Moela conceded that my ruling cannot have any conceivable effect
on the
applicant’s rights to fair hearing. What I did was to
grant the applicant more than sufficient time to respond to the
State’s
notice in terms of
s 212B.
He failed to file a response
by 28 February 2025. Mr Moela conceded that the decision to be sought
on appeal will have no practical
effect, but submitted that the
consequences are of such a serious nature that a court of appeal
should rule that I was wrong, because
if this is not done, the ruling
will have an unfair and negative effect on other accused persons who
may be subjected to similar
rulings. I accept that the SCA may in its
discretion hear moot matters where an appeal raises issues of public
importance that
may influence future matters, but am not prepared to
accept that this is such a case and that another court may reasonably
come
to such a conclusion.
Unfairness
and violation of the applicant’s constitutional rights
[18]
The
audi alteram partem
principle, applicant’s rights in
terms of ss 34 and 35 of the Constitution and his right to remain
silent must be considered.
Although I cut Mr Moela short during his
argument on 13 January 2025 due to time constraints and my work load,
being the only judge
on duty during the recess, the ruling does not
affect the applicant’s constitutional rights as set out in ss
34 and 35. Section
34 provides that everyone has the right to have
any dispute that can be resolved by application of the law decided in
a fair public
hearing. The legislature has deemed it necessary to
enact s 212B. The applicant has not attacked the constitutionality of
the section.
An accused is obliged to respond to the State’s
notice. The rights afforded to the applicant in s 35 have not been
affected.
He was not ordered to make admissions or to speak when he
had the right to remain silent. The ruling has no effect on his right
to a fair criminal trial. Like all accused persons during plea
procedure and those required to respond to notices in terms of s
212B, he could just dispute all allegations. In such a case the State
would still have to prove each and every allegation relied
upon, even
those which it might have thought would be undisputed.
[19]
I confirm that the purpose of the appearances on 13 January 2025 was
to agree
on new trial dates. But I do not agree with Mr Moela that
his client was ambushed. Litigation by ambush refers to a practice of
deliberately concealing information or evidence during pre-trial
discovery and then to use it to surprise or disadvantage the opposing
party during the trial. Such tactic undermines the principle of
fairness as the other party should have a fair opportunity to prepare
a defence or argue their case based on a complete understanding of
the case to meet. I reiterate that nothing prevented the applicant
to
reply to the s 212B notice, even if he had to deny all issues raised
therein because of the alleged difficulty to consult properly
with
his counsel.
Reviews
or appeals in respect of uncompleted proceedings
[20]
Section 309 of the CPA deals with appeals from the lower courts by
convicted
persons. Section 315 deals with appeals in respect of High
Court judgments. If a special entry is made on the record in terms of
s 317 of the CPA, the convicted person may in terms of s 318 appeal
against the conviction on the ground of the irregularity or
illegality stated in the special entry. Clearly, there is no room for
an appeal procedure in respect of rulings made mid-stream.
[21]
Hancke and
Pickering JJ considered the applicable principles pertaining to
reviews of uncompleted criminal proceedings in
Motata
v Nair NO
[6]
and for the sake of convenience I quote extracts from paragraphs [9]
– [12]:
‘
[9]
It is trite that, as a general rule, a High Court will not, by way of
entertaining an application
for review, interfere with
uncompleted proceedings in a lower court. As stated in
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
1959
(3) SA 113 (A)
at
119G, the High Court will not ordinarily interfere whether by way of
appeal or review before a conviction has taken place
in the lower
court even if the point decided against the accused by a magistrate
is fundamental to the accused's guilt. At 119H
- 120A Ogilvie
Thompson JA (as he then was) stated as follows:
“
It is true that,
by virtue of its inherent power to restrain illegalities in inferior
courts, the Supreme Court may, in a proper
case, grant relief - by
way of review, interdict, or
mandamus
- against the
decision of a magistrate's court given before conviction….
This, however, is a power which is to be sparingly
exercised. It is
impracticable to attempt any precise definition of the ambit of
this power; for each case must depend upon
its own circumstances. 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 . .
.. In general, however, it will hesitate
to intervene, especially having regard to the effect of such a
procedure upon the continuity
of proceedings in the court below, and
to the fact that redress by means of review or appeal will
ordinarily be available.”
In my judgment, that
statement correctly reflects the position in relation to unconcluded
criminal proceedings in the magistrates'
courts.
At 120D, the learned
judge continued: “(T)he prejudice, inherent in an
accused's being obliged to proceed to trial, and
possible conviction,
in a magistrate's court before he is accorded an opportunity of
testing in the Supreme Court the correctness
of the magistrate's
decision overruling a preliminary, and perhaps a fundamental,
contention raised by the accused, does not
per se
necessarily justify the Supreme Court in granting relief before
conviction… As indicated earlier, each case falls to be
decided on its own facts and with due regard to the salutary general
rule that appeals are not entertained piecemeal.”
[10]
In
Ismail
and Others v Additional Magistrate, Wynberg and Another
1963
(1) SA 1 (A)
, the following was stated at 5H - 6A:
“
I should point out
that it is not every failure of justice which would amount to a gross
irregularity justifying interference before
conviction. As was
pointed out in
Wahlhaus and Others
v
. Additional
Magistrate, Johannesburg and Another
,
1959 (3) S.A. 113
(A.D.) at
p. 119, where the error relied upon is no more than a wrong decision,
the practical effect of allowing an interlocutory
remedial
procedure would be to bring the magistrate's decision under appeal at
a stage when no appeal lies. Although there is no
sharply defined
distinction between illegalities which will be restrained by review
before conviction on the ground of gross irregularity,
on the one
hand, and irregularities or errors which are to be dealt with on
appeal after conviction, on the other hand, the distinction
is a
real one and should be maintained. A Superior Court should be slow to
intervene in unterminated proceedings in the court below,
and should,
generally speaking, confine the exercise of its powers to 'rare cases
where grave injustice might otherwise result
or where justice might
not by other means be attained' (
Wahlhaus's
case,
supra
at
p. 120).”
[11]
These principles have been applied in a number of later cases …;
S
v Western Areas Ltd and Others
2005
(5) SA 214 (SCA)
(2005
(1) SACR 441)
in para 20.
[12]
It has been stressed that underlying the reluctance of the courts to
interfere in unterminated
proceedings in a lower court is the
undesirability of hearing appeals or reviews piecemeal. See …
and
S v Western Areas Ltd and Others
(supra) where,
in para 25, Howie P stated:
“
Long experience
has taught that in general it is in the interests of justice that an
appeal await the completion of a case whether
civil or criminal.
Resort to a higher Court during proceedings can result in
delay, fragmentation of the process, determination
of issues
based on an inadequate record and the expenditure of time and effort
on issues which may not have arisen had the process
been left to run
its ordinary course.”’
[22]
The learned judges dealt with reviews and appeals to the High
Court and not with a ruling granted by a High Court judge. In any
event, there are no exceptional circumstances why the ruling should
be overturned on appeal. In any event, there is no reasonable
possibility that a court of appeal will interfere with a ruling made
mid-stream through pre-trial proceedings prior to the commencement
of
the criminal trial and which has no effect at all on the person’s
right to a fair trial.
[23]
I
accept that constitutional approaches to rights determination must
generally enjoy primacy as explained by Cameron J in
Jordaan
& Others v Tswane Metropolitan Municipality & Others,
[7]
but as
the SCA held in
Moyo
& Another v Minster of Justice and Constitutional Development &
Others
,
[8]
preliminary litigation that serves no purpose other than to
circumvent the application of s 35(5) of the Constitution must be
discouraged.
Conclusion
[24]
I conclude that the ruling is not appealable, but even if it was, I
am satisfied
that there is no reasonable possibility that another
court would come to a different conclusion and furthermore, there are
no compelling
reasons why another court should deal with this on
appeal.
Order
[25]
The following order is made:
1.
The application for leave to appeal is
dismissed.
JP
DAFFUE J
Appearances
For
applicant:
Adv
L Moela
Instructed
by:
Dinana
Reid Inc
Bloemfontein
For
the State:
Adv
A Bester
Instructed
by:
DPP
Bloemfontein
[1]
2012 (1) SACR 567
(SCA) para 7.
[2]
[2016] ZASCA 176
, a judgment delivered on 25 November 2016 at paras
16 & 17.
[3]
[2021] ZASCA 31
, a judgment delivered on 31 March 2021.
[4]
Magudumana
v DPP Free State and Another
(2484/2023)
[2023] ZAFSHC 223
(5 June 2023).
[5]
2016 (2) SA 121
(SCA) para 10.
[6]
2009 (2) SA 575 (TPD)
[7]
2017(6) SA287 (CC) at para 8.
[8]
2018(2) SACR 313 (SCA) at para 161; the court relying on
Thint
(Pty) Ltd v NDPP & Others; Zuma v NDPP & Others
2009
(1) SA 1
(CC) at para 65.