IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: R12 /2024
(1) REPORT A BLE: NO
(2) OF INTERE ST TO OTHER JUDGE S: Y ES
(3) RE VISED Y ES /NO
2 July 2025
D ATE
In the application between:
THE STATE
and
SIGN ATURE
ALBERT SIBUSISO TSHABALALA ACCUSED
Delivered: This judgment was handed down electronically by circulation to the parties'
legal representatives by email. The date and time for hand-down is deemed to be
10:00 on 2 July 2025.
LEAVE TO APPEAL JUDGMENT
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Moleleki AJ
[1] This is an appeal against the entirety of the judgment and order dismissing the
appellant’s application to review and set aside the judgment delivered in the
Specialised Commercial Crimes Court on 11 October 2021, as well as to have the
matter resume de novo. As a result, the matter was remitted to the Regional Court for
further hearing and conclusion of the sentenc e proceedings before another Regional
Magistrate.
Background Facts
[2] The app licant and two others appeared before the Specialised Commercial
Crimes Court in Mbombela. The applicant was convicted of fraud on 11 October 2021.
The Acting Regional Magistrate who convicted the applicant recused himself from the
matter. The Regional Magistrate before whom the app licant appeared for sentence
referred the matter to this court for review in terms of section 304A(1)(a) of the Criminal
Procedure Act 51 of 1977 (CPA). This section makes provision for the review of
proceedings before sentence.
[3] This court found that the case did not warrant interference. As a result, the case
was remitted to the Regional Court for further hearing and conclusion of the sentence
proceedings before another Regional Magistrate.
[4] At this stage, the app licant challenges the outcome of the review application
and contends that the court erred in the following respects:
4.1 By finding that the Regional Magistrate, when referring the matter for review,
did not substantiate that there was a failure of justice;
4.2 By not addressing its view on the non-substantiation of the failure of justice with
the referring Regional Magistrate;
4.3 By finding that the failure by the Acting Regional Magistrate to place on record
that he was approached by the complainant in his chambers did not constitute any
irregularity that resulted in the failure of justice, was an error;
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4.4 By not having regard to the fact that the Acting Regional Magistrate was aware
of the sentiments of the complainant, which is a clear indication of interaction between
the Acting Regional Magistrate and the complainant;
4.5 By finding that the question of bias is only relative to the continuation of the
proceedings and had no effect on the trial prior to the conviction;
4.6 By finding that the recusal of the Acting Regional Magistrate sufficiently
addressed the irregularity prior to the conviction; and
4.7 By finding that the irregularity prior to the conviction does not warrant
interference.
Legal Principles
[5] Applications for leave to appeal are governed by the provisions of section 17 of
the Superior Courts Act 10 of 2013. Section 17 provides as follows:
“(1) Leave to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.”
[6] It is an established principle of our law that the High Court will not ordinarily, by
way of appeal, review or mandamus, interfere with unterminated proceedings in a
lower court. The court’s power to interfere is exercised sparingly and in those cases
where the court is satisfied that a grave injustice may otherwise result or where justice
might not be obtained by other means.
[7] The court’s reluctance to interfere in unterminated proceedings stems primarily
from (a) the effect that such procedure has on the continuity of proceedings in the
court below; (b) the undesirability of hearing appeals and reviews piecemeal; and (c)
the fact that redress by other means, such as review or appeal, will ordinarily be
available in due course.
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[8] As stated, the applicant was before this court for a review in terms of section
304A of the Criminal Procedure Act. The section is the exception to the general rule
that review courts do not readily intervene in incomplete proceedings. The rationale is
that a case should follow its normal course, through conviction to sentencing, before
the matter is taken to a higher court. In other words, courts should avoid a piecemeal
approach to review.
[9] The leading case in this regard is S v Delport and Others 1 in which the
appellants challenged the authority of the prosecutors to prosecute their matter. The
Magistrate before whom they were appearing found in their favour and referred the
matter to the High Court for special review. The High Court, without consi dering the
merits, found that there were no proper grounds for the Magistrate to have referred
the matter for review before the conclusion of the trial. The matter was accordingly
remitted for the trial to continue. Subsequent thereto, the appellants sought to amend
their plea by introducing a special plea. The Magistrate upheld their application. The
State appealed against that decision to the High Court. The matter was once again
remitted for the trial to continue. The appellants then applied for leave to appeal
against this ruling. The court granted the appellants leave to appeal.
[10] The Supreme Court of Appeal in Delport2 held that the general rule,
underpinned by section 35(3)(d) of the Constitution, was against permitting piecemeal
appeals. It is therefore in the interests of justice that criminal trials should commence
and be completed without unreasonable delay and that appeals should not be
entertained before the trial is completed. However, in unusual circumstances , a
departure from the general rule might be required. The general rule , therefore,
required a remittal order not to be appealable unless unusual circumstances warranted
it.
required a remittal order not to be appealable unless unusual circumstances warranted
it.
[11] The presence of unusual circumstances would depend on the facts of each
case. A court that ha s to decide whether the advantages of entertaining the appeal
outweigh the disadvantages, thus constituting unusual circumstances, would have to
1 S v Delport and Others 2015 (1) SACR 620 (SCA).
2 Ibid para 27.
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look at considerations of convenience, delay and prejudice. In Delport, the appellants
were unable to persuade the court that there was anything unusual that obliged the
court to entertain the appeal. Accordingly, the appeal was struck from the roll.
[12] Having considered the grounds set out by the applicant, as well as submissions
made, nothing that was placed before the court persuades it that there are unusual
circumstances which, in the interests of justice, require a departure from the general
rule.
[13] Section 309(1) of the CPA provides that an appeal lies only against convictions
and “any resultant sentence or order” flowing from the conviction. As stated above, the
general principle on reviews applies to appeals as well. What this means, as noted by
the authors of Du Toit in Commentary on the Criminal Procedure Act,3 is –
“… as a general principle, allegedly wrong decisions made in the course of a criminal
trial, which are capable of correction by way of appeal, should be permitted to be
challenged only after the trial has run its course, unless there is a compelling reason
to allow an appellant to do otherwise … Criminal trials should be continuous, with no
appeals or interlocutory approaches to a court of appeal before conviction.”
[14] As correctly pointed out by the respondent, there has been a delay in these
proceedings. A period of more than three years has elapsed since the trial court
pronounced on the conviction of the applicant. This is undesirable as it means that the
criminal tr ial has not been concluded without undue delay , as is envisaged by
section 35(3)(d) of the Constitution. The criminal proceedings remain pending, not only
to the prejudice of the applicant himself but to that of the complainants as well. The
complainants are legitimately entitled to finality. What remains, and is of significance,
is the interests of justice. In my view, the interests of justice call for the finalisation of
the criminal trial before an appeal can be heard.
the criminal trial before an appeal can be heard.
3 Du Toit: Commentary on the Criminal Procedure Act, RS 73, 2024 chapter 30 at p24Q-24R.
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[15] With reference to Moyo and Another v Minister of Justice and Constitutional
Development and Others,4 courts should discourage preliminary litigation that appears
to have no purpose other than to circumvent the application of s ection 35(5) of the
Constitution. Although the court’s “doors should never be completely closed to
litigants”, courts should not entertain such litigation “in the ordinary course of events,
and where the purpose of the litigation appears merely to be the avoidance of the
application of s 35(5) or the delay of criminal proceedings”.5
[16] The main reason why preliminary appeals are not normally in the interests of
justice is that all the approaches to the higher courts take time, while the matter could
likely be resolved more quickly if started and concluded with the trial court deciding on
all the issues bef ore it. The delays tend to “defeat the speedy resolution of criminal
cases contrary to the provisions of s 35(3)(d) of the Constitution”.6
[17] In Stow v Regional Magistrate, Port Elizabeth NO and Others,7 a distinction was
drawn between reviews and appeals as follows: an appeal is against the result of the
proceedings, and a review is an attack on the method of proceedings. The
section 304A review was brought to challenge a perceived irregularity in the
proceedings after the applicant’s conviction. It was not intended to be dispositive of
the case against the applicant in its entirety. Like in Delport, this court did not
pronounce on the merits of the matter, that is, the correctness or otherwise of the
criminal proceedings. There is therefore no basis to depart from the general rule that
a remittal order need not be appealable, unless unusual circumstances warrant it.
[18] Based on the above, I am not persuaded that a different court would find in
accordance with the applicant’s submissions. The application for leave to appeal is
without merit and should therefore be dismissed.
[19] I accordingly make the following order:
[19] I accordingly make the following order:
1 The application for leave to appeal by the applicant is dismissed.
4 Moyo and Another v Minister of Justice and Constitutional Development and Others 2018 (2) SACR
313 (SCA).
5 Ibid para 161.
6 Ibid para 168.
7 Stow v Regional Magistrate, Port Elizabeth NO and Others 2019 (1) SACR 487 (SCA) para 25.
2 The case is remitted to the Reg ional Court, Mbombela , for further hearing and
conclusion of the sentence proceedings before another Regional Magistrate.
A ppearances
For the A pplicant:
For the State:
M.R MOLELEKI AJ
ACTING JUDGE OF THE H IGH CO U RT
M PU MALANGA DIVISION , MBOMBELA
Mr. MMW Van Zyl SC
Barnard Incorporated Attorneys
Pretoria
Email. eloise@barnardinc.co.za
Tel. 012 001 2739
M r ZH Nxumalo
DO PP : SCCU Mpumalanga
M bombela
hnxumalo@n pa.gov.za
Judgmen t delivered on: 02 July 2025
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