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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A124/2023
(1) REPORTABLE: No
(2) OF INTEREST TO OTHERS JUDGES: No
(3) REVISED: No
(4) DATE: 25 August 2025
(5) SINGATURE:__________
In the matter between:
Cedric de la Harpe Applicant
And
Regional Magistrate, S F Ntlali First Respondent
(Court 9 Pta Central)
National Director of Public Prosecutions Second Respondent
Acting Chief Master Theresa Bezuidenhout Third Respondent
Assistant Master Johanna Mokhonoana Shogole Fourth Respondent
State Attorney J (Kobus) Meier Fifth Respondent
This judgment is issued by the Judge whose name is reflected herein and
is submitted electronically to the parties/their legal representatives by
email. The judgment is further uploaded to the electronic file of this
matter on CaseLines by the Judge or her Secretary. The date of this
judgment is deemed to be 25 August 2025.
JUDGMENT
Collis J (Kooverjie J concurring)
INTRODUCTION:
1] This is an application for review by the Applicant, Mr de la Harpe , a
private prosecutor. The applicant initiated prosecution against the third
and fourth respondents in their personal capacities , this after a nolle
prosequi certificate was issued.
2] The prosecution ensued in the Regional Court Pretoria and was
conducted before the first respondent who ultimately acquitted the third
and Fourth Respondents on 30 March 2023.
3] The present application for review was launched by applicant against
all the respondents following the acquittal of th e Third and Fourth
Respondents.
4] The acquittal ensued after the respondents successfully raised a plea in
terms of section 106 of the Criminal Procedure Act, Act 51 of 1977.
THE PARTIES
5] The applicant, Mr De La Harpe, throughout the criminal proceedings
indicated that he acted in his personal capacity and not as a member of
Grace Enterprises CC, a deregistered company of whom he and his wife
were members.
6] The National Prosecuting Authority is cited herein as the second
respondent responsible in law to prosecute persons for criminal offences.
As already mentioned , the prosecution issued a nolle prosequi certificate
in the criminal proceedings, declining to prosecute the Third and Fourth
Respondents.
7] In this review application the third respondent is cited in her capacity
as Acting Chief Master.
8] The fourth respondent is likewise cited in this review application in her
official capacity despite that she was prosecuted in her personal capacity .
She was also found not guilty.
9] Mr. J. Meier, cited as the fifth respondent herein, is the attorney of
record for the third and fourth respondents. He represented the
respondents during their criminal matter as well as in the present review.
Currently he is employed as a Senior Assistant State Attorney at the
Office of the State Attorney Pretoria.
THE PLEADINGS
10] As per the issued Notice of Motion the relief sought by the applicant
was formulated as follows:
“NOTICE OF MOTION TO REV IEW edited and amended in terms of r
53(4)
TAKE NOTICE that Cedric de la Harpe, (hereinafter called the
applicant) intends to make an application to this Court in terms of
rule 53, to review the 30 March 2023 ruling in Pretoria Central -
Regional Court No.9, by Respondent 1, and for an order (a) to set
aside the March 30 2023 ruling by the presiding officer, in which the
presiding officer finds that I, Cedric de la Harpe, as Private
Prosecutor, do not have substantial and unique interest in the
Perjury Cass, and that I show no damage suffered, as required in
term of Section 7 1(a) or Section 7 (b), and as such, I do not have
title to Privately Prosecute, notwithstanding the Certificate Nolle
Prosequi, issued by the NPS on 16 April, 2021, and (b) to reinstitute
all charges against Respondents 3 and 4, as responde d to in my
Affidavit dated November 10. 2022, Item 5, page 5 -6, as shown in
annexure 06 A39/1 & A39/2 (c) and set a trial date for Case
869/09/2019 to resume against accused one and two,
(Respondent’s 4 & 3) (d) to take note of any failure by accused one
and two, (Respondent’s 4 & 3), to rebut those averments introduced
through the ‘unethical presentation’ in the Heads of Argument, and
give the Applicant/other Judicial/Investigative direction to follow,
(here set forth the form of order prayed) and that the
accompanying “Supporting Affidavit” and “Supplement to the
“Support Affidavit of Cedric de la Harpe, will be used in support
thereof.
TAKE FURTHER NOT ICE, as Applicant, I call upon the
Respondents to show cause why such decision should not be
reviewed and set aside, and that the Court of Review should not
consider all the prayers submitted, and in terms of rule 53 (5)(a)
should you intend to oppose this am ended Notice of Motion, deliver
within fifteen days of service of this amended Notice of Motion to
Review, serve notice to the Applicant that you intend so to oppose,
and in such notice appoint an address within eight kilometres of the
office of the regist rar at which you will accept notice and service of
all process in such proceedings, and in terms of rule 53(5)(b),within
thirty days of receipt of this amended Notice of Motion to Review,
deliver any affidavits you may desire in answer to the allegations
made by the applicant, to the Applicant.
In terms of rule 53(6) the applicant shall have rights and obligations
in regard to replying affidavits set out in rule 6.
TAKE FURTHER NOTICE that the applicant has appointed Mr
Ezekiel Nkosi, Shop 10, Bothlong Pla za West (POST NET) 2[…] F[…]
B[…] Street, Pretoria Central, as the address referred to in rule
6(5)(b) at which he will accept notice and service of all process in
these proceedings.”
11] In support of the relief sought in terms of the Notice of Motion, the
applicant had placed reliance upon his Support ing Affidavit and the
Supplementary Supporting Affidavit so filed.
12] Although both the second to fifth respondents had filed notices to
oppose the present review proceedings, it was onl y the Third to Fifth
respondents who proceeded to file an Opposing Affidavit to this
application.
13] As the opposing respondents had raised several points in limine, this
court deemed it necessary to deal upfront with the prelim inary points in
limine as we h eld the view that they are dispositive of this review in its
entirety.
14] This approach so adopted by the court was also conveyed to the
parties at the commencement of the proceedings and the parties were
accordingly directed to specifically address this court on the points in
limine raised.
FIRST POINT IN LIMINE
The Founding Affidavit and Supplementary statement of the Applicant
dated 25 April 2023 and 27 July 2023 are not under oath or proper
affidavits and not properly commissioned as prescribed and do not comply
with Rule 53(2) of the Uniform Rules of Court.
15] As per the Opposing Affidavit , the deponent alleges that the founding
affidavit together with the supplementary affidavit mentioned above do
not satisfy the requirements set out in the Regulations Governing the
Administering of an Oath or Affirmation 1 (“the Regulations”) promulgated
in terms of the Justices of the Peace and Commissioners of Oaths Act 16
of 1963.
16] Furthermore, in terms of Regulation 2(1), read with 2(2), before a
commissioner of oaths administers the oath to any person, he/she shall
ask the deponent: (a) whether h e/she knows and understands the
contents of the declaration; (b) whether he/she has any objection to
taking the prescribed oath; and (c) whether he/she considers the
prescribed oath to be binding on his/her conscience.
17] If the deponent answer s these q uestions in the affirmative, the
commissioner of oaths must record such answers and thereby administer
the oath. Once the deponents ’ answers are then recorded ; in terms of
Regulation 3(1) the deponent is then to sign the declaration in the
presence of the commissioner of oaths.2
18] On behalf of the respondents it was contended that ex facie the
1 Promulgated in Government Gazette 3619, Government Notice R1258 of 21
July 1972, as amended by Government Notice R1648 of 19 August 1977,
Government Notice R1428 of 11 July 1980 and Government Notice R774 of 23
April 1983.
2 Absa Bank v Botha NO 2013 (5) SA 563.
Founding Affidavit read together with the Supplementary Supporting
Affidavit, prima facie , it appears that no oath was administered by the
alleged commissioner of oaths who only signed the two affidavits and
appended his stamp.
19] On this basis it was therefore argued that a bsent any reference to
either the relevant regulations or by recording the answers so supplied by
the deponent, the commissioner of oaths in merely applying a stamp did
not comply with the abovementioned Regulations.
20] In addition, a further argument advanced was that in the absence of a
proper affidavit having been filed in support of the review application,
there had been further non-compliance with the provisions of rule 53(2)
of the Uniform Rules of Court, as the notice of motion is not supported by
an affidavit as required by the rule.
21] In answer to this point so raised the applicant alleges that the first
point in limine had merely been raised by the opposing respondents as a
technicality in order to cast a fraudulent perception on him. Further that it
had merely been raised so as to cast an asper sion on him that the
affidavit was not si gned by him in the presence of the commissioner of
oaths and this without any supporting evidence to prove such allegation.
On this basis the applicant had argued that this point in limine should be
dismissed by this Court.3
22] Now a lbeit that a court enjoys a discretion to accept or reject an
affidavit which does not comply with the Regulations, it is now settled
that such Regulations are merely directory rather than peremptory.
23] It does however remain a question of fact in each individual case as
to whether there has been substantial compliance with the Regulations.
24] The submission that at the very least there had been substantial
compliance with the applicable Regulations governing the attestation or
commissioning of affidavits was not a submission which had been made
by the applicant before us.
25] In his Replying Affidavit, the applicant argued that the complaint
raised was a mere red herring, and as such he failed to deal with the
basis of the complaint.
26] Ex facie both affidavits it is clear that the commissioner of oaths failed
to ask the questions pertinently dealt with in the Regulations and also
failed to record the answers to the questions refer red to in the
Regulations.
3 Replying Affidavit para 5 Caselines 012-7.
27] In addition to the a bsence of such a recordal of answers, the
commissioner of oaths also failed to expressly make reference to the
relevant regulations which would at least have given this Court an
indication that the commissioning or attestation had taken place in
accordance with the applicable Regulations.
28] Premised on this omis sion, this Court is not persuaded that the
commissioning was in compliance with the Regulations and as such it
renders the “affidavits” mere statements.
29] The additional argument raised in this regard is that the re had also
been non-compliance with Rule 53(2) in that the notice of motion is not
accompanied by an affidavit setting out the grounds and the facts and the
circumstances upon which the applicant relies to have the decision set
aside or corrected. Here too, given this court’s view already expressed in
paragraph 28 supra, it must follow that there also had been non -
compliance with rule 53(2).
30] For the above reasons the first point in limine has merit and
accordingly it is upheld with costs.
SECOND POINT IN LIMINE
No record of proceedings before court and unauthorised filing of a
supplementary statement in terms of Rule 53(4).
31] In relation to this point the opposing respondents’ complaint is that to
date no record of the decision sought to reviewed has been delivered at
all despite their attorney requesting the record from the applicant. In
response the applicant submitted that the record in the court a quo is not
necessary and that the first respondent, being the Magis trate, allegedly
did not file the record.4
32] The opposing respondents further complain that the applicant
proceeded to file a supplementary affidavit without being authorised to do
so.
33] In the Replying Affidavit, the applicant fails to expressly deal with the
step he took to file a Supplementary affidavit without being authorised to
do so.5 His affidavit is simply silent in this regard.
34] The provisions of Rule 53 of the Uniform Rules of Court read as
follows.
“53. Reviews
4 Opposing Affidavit para 2.2.3 Caselines 011-12
5 Replying Affidavit Caselines 012-1
(1) Save where any law otherwise provides, all proceedings to bring
under review the decision or proceedings of any inferior court and of
any tribunal, board or officer performing judicial, quasi - judicial or
administrative functions shall be by way of notice of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer or chairperson of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected—
(a) calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairperson or
officer, as the case may be, to dispatch, within 15 days after receipt
of the notice of motion, to the registrar the record of such
proceedings sought to be corrected or set aside, together with such
reasons as the magistrate, presiding officer, chairperson or officer,
as the case may be is by law required or desires to give or make,
and to notify the applicant that such magistrate, presiding officer,
chairperson or officer, as the case may be has done so.
(2) The notice of motion shall set out the decision or proceedings
sought to be reviewed and shall be su pported by affidavit setting
out the grounds and the facts and circumstances upon which
applicant relies to have the decision or proceedings set aside or
corrected.
(3) The registrar shall make available to the applicant the record
despatched as aforesai d upon such terms as the registrar thinks
appropriate to ensure its safety, and the applicant shall thereupon
cause copies of such portions of the record as may be necessary for
the purposes of the review to be made and shall furnish the
registrar with two copies and each of the other parties with one
copy thereof, in each case certified by the applicant as true copies.
The costs of transcription, if any, shall be borne by the applicant
and shall be costs in the cause.
(4) The applicant may within 10 days after the registrar has made
the record available to the applicant, by delivery of a notice and
accompanying affidavit, amend, add to or vary the terms of the
applicant’s notice of motion and supplement the supporting
affidavit…………………………..
(6) The applicant shall have the rights and obligations in regard to
replying affidavits set out in rule 6.
(7) The provisions of rule 6 as to set down of applications shall
mutatis mutandis apply to the set down of review proceedings.”
35] In compliance with the afor esaid rule it was incumbent upon the
Magistrate to dispatch the record to the registrar within 15 days of receipt
of the notice of motion together with the reasons for such decision and
only upon receipt of such record will the applicant be permitted to amend
the notice of motion and or supplement the supporting affidavit. Upon
receipt of the record, the applicant was required to make copies of the
relevant portion of the record and to dispatch to each party such portion
of the record and to dispatch to the registrar two copies of the record.
36] Herein, the complaint by the opposing respondents is that at the time
when the first supplementary affidavit was filed by applicant, it was prior
to the record having been dispatched and therefore not in compliance
with rule 54(3) and that a substantial part of the record is still not
available.
37] Given the applicant’s failure to expressly deal with this complaint in
the Replying Affidavit, this Court is not being taken into his confidence
and no reasons were furnished for the filing of a supplementary
supporting affidavit before the record had been dispatched.
38] Procedurally, it was impermissible for the applicant to have take n this
step and absen t any explanation before this court, I must conclude that
there is also merit in the second point in limine raised by the opposing
respondents.
39] Consequently, the second point in limine is also upheld with costs.
40] An applicant in a review can only approach a Court on the grounds set
out in terms of section 22 of the Superior Court Act , 2013. The section
reads as follows:
“22. Grounds for review of proceedings of Magistrates’ Court
(1) The grounds upon which the proceedings of an y Magistrates’
Court may be brought under review before a court of a Division
are—
(a) absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice or corruption on the part of
the presiding judicial officer;
(c) gross irregularity in the proceedings; and
(d) the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
(2) This section does not affect the provisions of any other law
relating to the review of proceedings in Magistrates’ Courts.”.
41] In so far as the requirements set out in section 22 listed above, the
opposing respondents argued that the applicant failed to make out a case
to review the decision of first respondent on the basis that the first the
respondent had a mistaken view of the law or fact 6 in concluding that the
applicant did not have a substantial an d unique interest in the perjury
case and that the applicant did not have the title to privately prosecute
notwithstanding a certificate nolle prosequi having been issued.
42] A gross irregularity in criminal proceedings in an inferior court means
an irregular act or omission by the presiding judicial officer in respect of
the proceedings of so gross a nature that it was calculated to prejudice
the aggrieved litigant , on proof of which the court would set aside such
proceedings, unless it was satisfied that the litigant had not suffered any
prejudice.
43] Any ground of review listed in the issued Notice of Motion can only be
supported by the accompany affidavit (s) filed in support of the
application.
6 Absa Bank Ltd v De Villiers (146/09) 2009 ZASCA 140.
44] On behalf of the opposing respondents it was argued that there is no
irregularity as envisaged in section 22 of the Supe rior Courts Act which is
of the slightest relevance in these allegations.
45] This Court in making a determination as to whether any substance
can be given to any ground listed in the Notice of Motion must have
regard to the evidence filed in support of the application.
46] As this Court has already determined that mere statements had been
filed in support of the relief claimed in the Notice of Motion and no
affidavits as required by rule 53 , there can be no proper adjudication of
the merits of the review application filed before this court.
47] In light of the Court’s findings above it is not necessary to adjudicate
the remaining points in limine raised by the respondent.
ORDER
48] Consequently, I make the following order:
48.1 The first and second points in limine are upheld with costs.
48.2 The review application is dismissed with costs.
48.3 The costs of the application, is to be paid by the applicant on
scale B.
_______________
C COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
I agree
___________________
H KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES:
Counsel on behalf of the Applicant: In persona
Instructing Attorney: In persona
Counsel on behalf of the 3rd, 4th and 5th Respondents: Adv. M Barnard
Instructing Attorney: Office of the State Attorney, Pretoria
Date of Hearing: 31 October 2024
Date of Judgement: 25 August 2025