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[2025] ZAFSHC 183
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S v Mokhesi and Others (45/2021) [2025] ZAFSHC 183; 2025 (2) SACR 182 (FB) (13 June 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not reportable
Case number: 45/2021
In the matter between:
THE STATE
and
NTHIMOTSE
MOKHESI
1
st
Accused
MAHLOMOLA
JOHN MATLAKALA
2
nd
Accused
PHEAGANE
EDWIN SODI
3
rd
Accused
BLACKHEAD
CONSULTING (PTY) LTD
4
th
Accused
(Registration
number 2011/011664/07)
As
represented by accused 3
DIAMOND
HILL TRADING 71 (PTY) LTD
5
th
Accused
(Registration
number 2012/100469/07)
As
represented by Lindikhaya Mpambani
605
CONSULTING SOLUTIONS (PTY) LTD
6
th
Accused
(Registration
number 2014/123768/07)
As
represented by Michele Anita Mpambani
SELLO
JOSEPH
RADEBE
7
th
Accused
MASTERTRADE
232 (PTY)LTD
8
th
Accused
(Registration
number 1999/013675/07
As
represented by accused no 7
ABEL
KGOTSO
MANYEKI
9
th
Accused
ORI
GROUP (PTY)
LTD
10
th
Accused
(Registration
number 2012/067835/07)
As
represented by accused 9
THABANE
WISEMAN ZULU
11
th
Accused
SARAH
MATAWANA MLAMLELI
12
th
Accused
ELIAS
SEKGOBELA MAGASHULE
13
th
Accused
NOZIPHO
BELINA MOLIKOE
14
th
Accused
THABISO
MAKEPE
15
th
Accused
ALBERTUS
VENTER
16
th
Accused
NOMALANGA
MOROADI SELINA CHOLOTA
17
th
Accused
MARGARET-ANN
DIEDRICKS
18
th
Accused
Neutral
Citation:
S v Mokhesi and Others
(45/2021)
[2025] ZAFSHC 183
(13 June
2026)
Coram:
Loubser J
Heard:
13 June 2025
Delivered:
Ex temporae
13
June
2025
Summary:
Application by the State to reserve questions of
law for consideration by the Supreme Court of Appeal in
terms
of
s 319
of the
Criminal Procedure Act 51 of 1977
.
ORDER
The application to
reserve questions of law for consideration by the Supreme Court of
Appeal, is dismissed.
JUDGMENT IN
APPLICATION IN TERMS OF
SECTION 319
Loubser J
[1]
The
State makes application for the
reservation of questions of law in terms of
s 319
of the
Criminal
Procedure Act 51 of 1977
. The application comes in the wake of this
Court’s judgment in the trial within a trial held to determine
whether the Court
has jurisdiction to try accused no 17, Ms Cholota,
on the charges levelled against her. She is one of the 18 accused in
the matter
of
The State v Mokhesi and 17 Others
that serves
before this Court under case no. 45/2021. In its judgment in the
trial within a trial, the Court found that it has
no jurisdiction to
try Ms Cholota, because the extradition of Ms Cholota from the United
States of America to the Republic of South
Africa had been done
unlawfully for want of a valid and lawful request for her extradition
by the South African Executive power.
[2]
Section 319
of the
Criminal
Procedure Act provides
as follows:
‘
319(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 Supreme
Court of Appeal, and thereupon
the first mentioned court shall state the question issued and shall
direct that it be specially
entered in the record and that a copy
thereof be transmitted to the registrar of the Supreme Court of
Appeal.
Section 319(2)
provides that the grounds upon which any
objection to an indictment is taken shall, for purposes of this
section, be deemed to
be questions of law.
Section 319
(3) provides
that the provisions of
s 317(2)
, (4) and (5) and
318
(2) shall apply
mutatis mutandis
with reference to all proceedings under this
section.’
[3]
This
section leaves no doubt that
it only allows the reservation of a question of law. For that reason,
the state is not permitted to have a disguised question of
fact
reserved for consideration by the Supreme Court of Appeal. In
addition, it was decided by the Supreme Court of Appeal in
Magmoed
v Janse van Rensburg
[1]
that
it is not
competent
for the prosecution to raise as a question of law the enquiry as to
whether on evidence placed before the trial Court a reasonable
court
could not have acquitted the accused.
[4]
I now turn to the six questions of law that
the State has advanced in its application.
Question
no 1
:
Whether
the court misdirected itself/erred in the application of the decision
of
Schultz
v Minister of Justice and Correctional Services and Others
[2]
(
Schultz).
In that decision, the Supreme Court of Appeal declared that only the
Minister of Justice and Correctional Services in his capacity
as a
member of the national executive of the Republic of South Africa, has
the power to make an extradition request for the extradition
of the
applicant from the United States of America. In the present case, the
extradition request was made by the Director of Public
Prosecutions
in the Free State.
Schultz
was handed down on 24 May 2024, some two months before the
extradition was granted in the USA. This Court is bound by the
decisions
of the Supreme Court of Appeal, and it was in no position
to regard the request for extradition as a valid and lawful request.
Because of this position, the question cannot be regarded as a valid
question of law. Therefore, the question is not reserved.
Question
no 2
:
Whether
this Court erred in upholding the special plea by failing to
distinguish the facts pertaining to the respondent’s
extradition from those applicable in
Schultz
.
This question pertinently raise the facts on which this court decided
the matter, as well as the facts that appeared in
Schultz
.
In my view, this question therefore does not raise a question of law
and cannot be reserved.
Question
no 3:
Whether this Court erred when it overlooked the
dicta
of the SCA in the unreported decision in
Spagni
v Acting Director of Public Prosecutions, Western Cape and Others
[3]
(
Spagni
).
Now obviously, the
dicta
in
Spagni
pertained to the facts of that matter, and more importantly,
Schultz
came at least a year after the judgment in
Spagni
.
It appears that this is a disguised question of fact, and not a valid
question of law that can be reserved.
Question
no 4:
Whether the court’s finding that the prosecution
had not proved beyond reasonable doubt that there was a valid and
lawful
request for extradition, was correct in law in the
circumstances. The only evidence placed before the Court in this
regard was
the request for extradition by the Free State DPP. The
Court therefore found on the facts, and this question cannot be
regarded
as a question of law.
Question
no 5:
Whether the Court was correct in law by allowing
counsel for the accused to raise the authority of
Schultz
for
the first time in closing arguments, depriving the State of
audi
alteram partem
, having a fundamental aspect of the rule of law.
On this aspect the record of the proceedings will show that a copy of
Schultz
was already handed in as an exhibit during the trial
within a trial, albeit not by the counsel appearing for the accused.
The prosecution
therefore knew of that judgment beforehand.
Furthermore, in closing argument the Court requested the prosecutor
to respond to the
accused’s argument on the
Schultz
-matter,
and he contended it is irrelevant because it did not form part of the
grounds for the special plea. This is in other words
a factual issue
that does not fall under a question of law. It cannot become
reserved.
Question
no 6:
Whether the Court erred in overlooking and failing to
consider the provisions of s 172 of the Constitution. This is the
first time
that this issue is raised. It was never part of the
State’s case in the trial within a trial. This question
assumingly pertains
to the fact that this Court failed to consider
the retrospective effect of
Schultz
. This cannot be regarded
as a question of law, because it is mostly irrelevant. The State knew
two months before the extradition
took place that there was no valid
and lawful request for extradition, and as it appears from this
Court’s judgment in the
matter, the State did nothing about it
and chose to stand by the request made by the DPP. Whether
Schultz
has retrospective effect or not, has no bearing on the position that
prevailed. This is not a valid question of law that can became
reserved.
[5]
Lastly, and apart from the views of the Court expressed so far, I am
not satisfied that it is competent for the State
to request
reservations of law in the circumstances of this case. In
R
v Solomons
[4]
the Appellate Division has stated that the State can only have a
question of law reserved when there is an acquittal. Also, in
S
v Mene
[5]
the Appellate Division decided that where a trial court has quashed a
charge, it cannot reserve a question of law on application
by the
prosecutor, because there was no acquittal. The circumstances of the
present matter are on the same level. The accused concerned
was not
acquitted by this court. It was only found that the court does not
have the jurisdiction to try her on the offences she
is charged with.
It was specifically mentioned in this Court’s judgment that she
cannot be found guilty or not guilty after
she had pleaded not guilty
to the charges, because of the provisions of
s 106(4)
of the
Criminal
Procedure Act. That
subsection provides that an accused who pleads to
a charge, other than a plea that the court has no jurisdiction to try
the offence,
is entitled to demand that he be acquitted or convicted.
For this reason the court only informed the accused that she was free
to go, without acquitting her on the charges.
[6] In the premises
the application to reserve questions of law for consideration by the
Supreme Court of Appeal, is dismissed.
Loubser J
Appearances
For
the State: JM
De Nysschen
with him
T McPherson
Instructed
by: Office of
the DPP, Bloemfontein
For
Accused 17: L Makapela
Instructed
by:
Morakile
Tibane Attorneys Inc, Johannesburg
[1]
Magmoed
v Janse van Rensburg
1993
(1) SACR 67 (A).
[2]
Schultz
v Minister of Justice and Correctional Services and Others
[2024] ZASCA 77; 2024 (2) SACR 294 (SCA).
[3]
Spagni
v Acting Director of Public Prosecutions, Western Cape and Others
[2023] ZASCA 24.
[4]
R v
Solomons
1959 (2) SA 352 (A).
[5]
S v
Mene
1978 (1) SA 832
(A).