IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 18554/23
In the matter between
LUCA REGGIO 1st APPLICANT
MICHELA MORONI 2nd APPLICANT
AND
REGIONAL MAGISTRATE, BELLVILLE 1st
RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS, WC 2nd
RESPONDENT
CORAM: THULARE J; MTHIMUNYE AJ
Date of Hearing : 09 October 2025
Date of Delivering : 20 November 2025
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JUDGMENT ON APPLICATION FOR LEA VE TO APPEAL
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THULARE J
ORDER
(a) The application for leave to appeal is dismissed.
[1] This is an opposed application for leave to appeal against the judgment of this
court which dismissed a review application brought by the applicants against a
judgment of the 1 st respondent. The applicants face criminal charges before the 1 st
respondent instituted by the 2 nd respondent. The applicants served a notice
requesting further particulars in terms of section 87 of the Criminal Procedure Act,
1977 (Act No. 51 of 1977) (the CPA). The 2nd respondent responded to the request.
According to the applicants, they received incorrect and incomplete documents.
The 2nd respondents answer was that the complainant company files were kept by
the first applicant and that after diligent search of the complainant company
premises after the 1st applicant left, the company was unable to find the documents
sought by the applicants. On other documents sought, the response was that 1st
applicant did not provide the company with the description of his monthly
expenses, was responsible and handled the general ledger and the complainant
company did not find any other documentation or general ledger after he left.
[2] It was the provision of further information sought by the applicants , including
those documents, which occasioned postponements and upon which the applicants
brought the section 342A of the CPA application. The applicants submit that they
would be unable to defend themselves as the 2nd respondent failed to comply with
their section 87 notice by providing further and better particulars essential for their
defence and that as a result the applicants were left completely empty -handed and
had no means to mount a defence.
[3] The matter be fore us was a review and not an appeal. Section 87 is an
intervention for more particulars concerning the offence that the State intends to
prove against an accused as will be necessary for a thorough preparation of their
defence [R v Moyage & Others 1958 (3) SA 400 (A) at 413B ]. The purpose is to
inform the accused of the case against them [ R v Mokgoetsi 1943 AD 622 at 627].
At this stage , and on review, it is impossible to determine whether the absence of
the particulars sought , against the backgroun d of the explanation provided by the
2nd respondent, are prejudicial to the accused such that they would cause a failure
of justice which would result in them not receiving a fair trial [Jaca v Minister of
Justice & Others, an unreported judgment GNP case no A405/13 delivered on 11
November 2013].
[4] The prosecution cannot be expected to provide particulars which they do not
have [ S v Alexander & Others 1964 (1) SA 249 (C) at 252C; S v Nghixulifa &
Others 2016 (2) NR 356 (HC) at para 5]. South Africa may be alive with
opportunities, but it would be bad jurisprudence if for instance, the facts were to
establish that an accounting officer simply did not keep records, or walked away
with or disposed of records showing criminality on their par t when they were
caught out, and could avoid prosecution at the instance of a judge, by demanding
that the prosecution provide records he did not keep, walked away with or disposed
of in anticipation of a criminal prosecution. In this matter, the State did not deny
the ap plicants the further particulars sought. The State alleged that it cannot
provide the further particulars sought. The information sought was not available to
the State. Adv. Seroto, on behalf of the prosecution, held the view that the State
was ready to try the accused. Whether it was true that the complainant company
had documents, correspondence and evidence that could prove the applicant’s
innocence, which was deliberately being withheld from the appl icants, as Adv.
King SC argued, cannot be determined from the papers. Upon review of the docket
contents and analysis of the evidentiary material in comparison to the charge sheet
Adv. King SC held the view that the matter was not properly investigated . These
disputes and arguments cannot be resolved in review and on papers, without the
benefit of evidential material. The applicants may favour Adv. King SC and
celebrate him as of superior logic to Adv Seroto, but that is how far they can take
it. For a court to accept his opinion, the court must consider the facts.
[5] The allegations include those that relate to the first applicant’s role as managing
director of the complainant during the period in which he stood accused. The
allegations against the accused include pocketing too much salary at own instance
and claiming travel expenses that they were not entitled to. They were summarily
dismissed and barred further access to the complainant company resources. What is
also clear is that the information sought by the accused in this matter was not
particulars sought and which were necessary to inform the ac cused about the case
against him. What is sought is evidence that may be led to prove or disprove the
commission of the offence [S v Alexander at 251H]. The State has an obligation to
provide partic ulars of material facts which it intends to prove and no obligation
rests on the State to disclose the evidence by means of which such material facts
rests on the State to disclose the evidence by means of which such material facts
are to be proved [ S v Boekhoud 2011 (2) SACR 124 (SCA) at para 61]. In Key v
Attorney-General, Cape Provincial Division and Another 1996 (4) SA 187 at para
13 it was said:
[13] In any democratic criminal justice system there is a tension between, on the one hand, the
public interest in bringing criminals to book and , on the other, the equally great public interest in
ensuring that justice is manifestly done to all, even those suspected of conduct which would put
them beyond pale. To be sure, a prominent feature of that tension is the universal and unceasing
endeavour by international human rights bodies, enlightened legislatures and courts to prevent or
curtail excessive zeal by State agencies in the prevention, investigation or prosecution of cri me.
But none of that means sympathy for crime or it perpetrators. Nor does it mean a predilection for
technical niceties and ingenious legal stratagems. What the Constitution demands is that the
accused be given a fair trial . Ultimately, as was held in Ferreira v Levin, fairness is an issue
which has to be decided upon the facts of each case, and the trial Judge is the person best placed
to take that decision. …
[6] I understand the law differently to the applicants legal repres entatives,
including Adv. King SC. At para 110 of their note on this application for leave to
appeal, the following was said:
110. Furthermore, in S v Van der Westhuizen 2011 (2) SACR 26 (SCA), the Supreme Court of
Appeal, when referring to the South African Code of Conduct for members of the National
Prosecuting Authority regarding criminal discovery, affirmed that prosecutors should, as soon as
reasonably possible, disclose to the accused all relevant information, whether prejudicial or
beneficial, in accordance with the law and the requirement s of a fair trial. In the light of the
foregoing, it is insufficient for the Second Respondent to merely assert that they do not possess
the documents sought by the appellants. The law imposes an obligation on the Second
the documents sought by the appellants. The law imposes an obligation on the Second
Respondent to act fairly and to uphold the principles of trial fairness . In this instance, this duty
requires the Second Respondent to obtain the relevant documents from the Complainant and to
disclose them to the Appellants.
The SCA in Van der Westhuizen, in dealing with the concept of the impartiality of
the prosecutor in c riminal proceedings, emphasized that the concept was not used
in the sense of not acting adversarial, but in the sense of acting even -handedly,
including avoiding discrimination but to also act without fear, favour or prejudice
[para 10]. The court said it is the obligation of a prosecutor firmly, but fairly and
dispassionately, to construct and present a case from what appears to be credible
evidence, and to challenge the evidence of the accused and other defence
witnesses, with a view to discrediting such evidence for the very purpose of
obtaining a conviction [at para 11].
[7] I am unable to trace the law upon which the duty which the applicants argue
exists in our law , which requires the prosecution to obtain documents from the
complainant, which the complainant said they do not have in their possession, and
to disclose those unavailable documents to an accused. The legal position, to my
understanding, is that the request for further partic ulars will clearly not be
interpreted to contemplate that information which is unknown and/or which is
unavailable to the party against whom it is directed and which it is impossible for
them to furnish, must be furnished on pain of facing serious consequences.
Impossibility of complying with the request is an answer to the request . A party to
whom the request was made, may in re sponse answer that the information sought
is unavailable or unknown to them [ Houtlands Investments Ltd v Traverso
Construction Ltd 1976 (2) SA 261 (C) at 265-266]. A request for further particulars
must be interpreted to mean that the requestor was entitled to particulars referred to
in the request, to the extent that the prospective supplier was able to furnish them
[Wilson v Die Afrikaanse Pers Publikasies (Edms) Bpk 1971 (3) SA 455 (T) at
462FE-F]. The word deliver in section 87 can mean no more than bring and hand
over to the requestor. One cannot deliver what one did not have.
[8] The principle to be applied on the question whether the relief sought by the
applicants should be granted is that a court will make the order if the applicant is
likely to be prejudiced by the refusal. When the question of particulars is
considered what must be determined is whether the charge sufficiently informs the
accused person of what the case is that he must meet. [ Behrman v Regional
Magistrate, S. Tvl & Another 1956 (1) SA 318 (T) at 319 -320]. An accused is
entitled to be told the facts which th e prosecution proposes to prove, and not the
evidence by which those facts will be proved. He is entitled to all the necessary
information to be able to instruct his attorneys and counsel and to prepare his
defence [Behrman 320-321]. The ordinary principle is that an accused person must
be given such particulars as he properly requires for the purpose of preparing his
case before he is called upon to plead and enter upon his defence. It seems to me
that there may be instances, like the present, where the av ailability of such
evidence and the ability of the prosecution to furnish the particulars asked for, and
the prejudice by reason of the absence of the particulars may not clearly appear at
the time that the application is made and the relief to pressure fu rnishing thereof is
pursued. In these instances, in my view, the proper approach would be to allow the
accused to renew his application in the course of the trial if it could be established
that he would in fact be prejudiced by reason of the absence of th e available
particulars [Green v Assistant Magistrate, Johannesburg 1954 (4) SA 580 (T) at
584; Behrman at 321; S v Du Plessis 1963 (3) SA 168 (O)]. I remain persuaded that
the Magistrate exercised her discretion judicially on the matter before her, and on
the Magistrate exercised her discretion judicially on the matter before her, and on
our decision on review. For these reasons I was not of the opinion that the appeal
would have a reasonable prospect of success or that there was some compelling
reason why the appeal should be heard, and the order was accordingly made. For
these reasons I was not of the opinion that the appeal would have a reasonable
prospect of success or that there was some compelling reason why the appeal
should be heard, and the order was accordingly made.
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DM THULARE
JUDGE OF THE HIGH COURT
I agree
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S MTHIMUNYE
ACTING JUDGE OF THE HIGH COURT