IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN

CASE NO: CCD38/2023
In the matter between:

THE STATE

and

MTHOKOZISI PIUS DUZE ACCUSED 1
BABONGILE MNYANDU ACCUSED 2
SILAS ZWELAKHE HLOPHE ACCUSED 3
MHLANGA INCORPORATED ACCUSED 4
SITHEMBELO RALPH MHLANGA ACCUSED 5
SIYANDA BASIL NGONGOMA ACCUSED 6
THABISO WESLEY KHUMALO ACCUSED 7
ANDILE MCINEKA ACCUSED 8
NCD INVESTMENTS (PTY) LTD ACCUSED 9
NOFEZILE CHARON MHLANGA ACCUSED 10
NONHLANHLA OMIC MKHIZE ACCUSED 11
SIPHIWE MOSES MABASO ACCUSED 12
___________________________________________________________________

ORDER
___________________________________________________________________
In the premises the following order is made:
1. The application for the case to be struck off the roll is dismissed.
2. The rule nisi that was issued by Henriques J on 9 October 2025 is confirmed.

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3. The dates of 23 February 2026 to 27 March 2026 and 13 April 2026 to 15 May
2026 are no longer reserved for trial of this matter.
4. The case is to be enrolled to the pre-trial roll.
5. There is no order as to costs.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Mathenjwa J

[1] This is an application brought by all the accused in terms of s 342A of the
Criminal Procedure Act 51 of 1977 (the CPA)1 seeking an order that the case against
them be struck off the roll and the prosecution not to be resumed or instituted de
novo without the written authority of the Director of Public Prosecution s. The State is
opposing the application. Also, the matter come before me as response to a rule nisi
issued by Henriques J on 9 October 2025 for the parties to show cause why the
reserved trial dates of 23 February 2026 to 27 March 2026 and 13 April 2026 to 15
May 2026 should remain reserved.

Background
[2] The accused are arraigned on various counts of corruption, contravening the
Prevention and Combating of Corrupt Activities Act 12 of 2004 , fraud , money
laundering, theft , extortion and conspiracy to commit robbery stemming from the
award of tenders for legal services at Mhlathuze Water. Accused 1 and 2 were
employed as the Chief Executive Officer and Chief Financial Officer of Mhlathuze
Water respectively. Accused 3 was the Deputy Chairperson of the Board of
Mhlathuze Water, accused 4 was the law firm that was appointed to the legal panel
of Mthathuze Water and accused 5 is the attorney and director of accused 4.


1 Section 342A (1) of the CPA provides that: ‘A court before which criminal proceedings are pending
shall investigate any delays in the completion of proceedings which appears to the court to be
unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or
her legal adviser, the State or a witness…’

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[3] Accused 1, 2, 5 and 7 were arrested on 29 August 2022, accused 8 was
arrested on 30 November 2022, accused 6 was arrested on 16 February 2023, and
accused 3 was arrested on 23 June 2023 . When accused 1,2,5 and 7 appeared in
court on 30 August 2022 the investigating officer had deposed to an affidavit in which
he stated that the investigation was about 90% complete and that the State required
a period of three months to finali se the investigation. On 6 December 2022 the
matter ser ved before the Special ised Crimes Court , Durban where the State
requested a seven-month adjournment for further investigation. The court refused the
seven-month adjournment and adjourned the matter to 6 April 2023 to allow the
State to complete its investigation.

[4] On 6 April 2023 the investigation was still not compl ete. Counsel for the State
made an undertaking that an indictment would be provided, and discovery would be
made within three months. The matter would then be ready to be transferred to the
High Court. The court adjourned the matter to 29 June 2023. On 29 June 2023 the
State provided an indictment to the defence but did not make discovery of the docket
as undertaken. The matter was subsequently transferred to the Durban High Court
on 6 November 2023 on assurance by the State that discovery would be completed
by 6 November 2023.

[5] On 6 November 2023 the matte r came before Radebe J in the High Court .
Discovery had not been made by the State as per its undertaking and Radebe J
placed the State on terms to complete discovery no later than 23 November 2023 .
The matter was adjourned to 28 November 2023. Discovery was only made on 28
November 2023 when the accused appeared before court.

[6] The matter was set down for a pre-trial conference on 25 July 2024, where the
matter was further adjourned to 7 November 2024 for determination of trial
readiness. On 7 November 2024 the matter came befo re Judge President Poyo-

readiness. On 7 November 2024 the matter came befo re Judge President Poyo-
Dlwati who reserved the period of 23 February 2026 to 27 March 2026 and 13 April
2026 to 15 May 2026 for trial. On 23 January 2025 the matter came before
Henriques J for a pre-trial conference. The State indicated that the trial could
proceed as per the pre-arranged trial dates. Henriques J adjourned the matter to 24

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July 2025 with the proviso that the State had to file the amended indictment by 28
March 2025 and make delivery by 20 June 2025.

[7] On 24 July 2025 w hen the matter came before Henriques J the State advised
that the indictment, which was not signed by the Director of Public Prosecutions, was
served electronically on 28 March 2025 . Further, discovery was made on 21 July
2025 to those accused who had provided external hard drives to the State as per its
request to the accused to provide the Sta te with hard drives to enable it to discover
the documents using the hard drive. Henriques J directed the State to prepare a pre-
trial minute to be signed by all parties confirming that the matter is tr ial ready. The
matter was adjourned to 9 October 2025 for a pre-trial to be held.

[8] On 5 September 2025 the State ’s counsel informed the defence counsel by
email that further discovery was being made and requested that the State be
provided with 2TB hard drives by no later than 9 September 2025. On 18 September
2025 the State made further discovery consisting of another hard drive containing:
(a) 183 new documents totalling 118 876 pages;
(b) a folder marked “cell phones” containing 370 839 items consisting inter alia of
photographs, WhatsApp messages, media files, videos and music;
(c) a folder marked “USB DUZE” containing 1 123 items consisting inter alia of
photographs and media files;
(d) a folder marked “Richards Bay CAS 324/07/2022 ” containing 1 36 443 items;
and
(e) a supplementary witness list extending the number of State witnesses from 47
to 131.

[9] On 3 October 2025 the State convened a video conference with legal
representatives of the accused with a view to declaring the matter trial ready . All
legal representatives for the accused were unanimous that the matter would not be
ready for trial on the reserved dates due to the extent of further discovery. On 9
October 2025 Henriques J asked the State counsel why the State was non-compliant

October 2025 Henriques J asked the State counsel why the State was non-compliant
with the order that a pre -trial minute be filed declaring the matter trial ready. Counsel
for the State informed the court that the investigation was 99% complete. Henriques

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J ordered the parties to file affidavits setting out the facts pertinent to the delay and
adjourned the matter to 26 November 2025 . O n 23 October 2025 the acc used
launched the present application.

Parties contentions
[10] An affidavit resisting the application on behalf of the State was deposed to by
Advocate Bulelwa Vimbani-Shuma who is employed by the National Prosecuting
Authority, occupying the position and title of Deputy Director of Public Prosecutions
and Regional Head, Specialised Commercial Crimes Unit in KwaZulu -Natal. She
denies that the State is solely responsible for the delay but contends that the
accused also contributed to the delay in the prosecuting of the matter. The State
contends that on receipt of the results from Digital Forensic Laboratory on imaging of
the devices on 1 December 2022 it recognised the importance of obtaining mutual
legal assistance in the United States to facilitate collaboration in the investigation and
prosecution of crimes. Furthermore, the State contends that following the finalisation
of the draft flow of funds report concerning the bank statements of the accused, it
was essential to add additional charges against them . Further arrests of additional
suspects were made on 23 June 2023.

[11] On 16 February 2024, the State received a request for further particulars from
the erstwhile accused 3. This necessitated that the State review the request, consult
with witnesses, gather more information, and prepare a response. Again, on 5 April
2024 the State received a request for further particulars from accused 4, 5, 7, 8, 9
and 10 which request the defence conceded was out of time. Accused 11 had filed
an application for separation of trial when the matter appeared before Ra debe J on
24 April 2024 and the State was directed to file its answering affidavit to the
application for separation of trial by not later than 23 July 2024.

[12] On 27 May 2024 the State received further requests for further particulars

[12] On 27 May 2024 the State received further requests for further particulars
from accused 2 and 6. On the same date the State received representations from the
erstwhile accused 3. On 18 June 2024 the State further received representation s
from the erstwhile accused 1. On 22 July 2024 the State received representation s
from accused 3 accompanied by recordings of minutes of meetings. On 13

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September 2024 accused 11’s application for separation of trial was argued before
Olsen J , where judgment was reserved and ultimately delivered on 9 December
2024. Accused 11 ’s application for separation of trial was dismissed . After
considering representations from the accused, the State decided to withdraw
charges against erstwhile accused 1, 3, 5 and 9. The withdrawal of charges
necessitated an amendment of the indictment. Further , on 13 May 2025 the State
received supplementary representations from accused 3.

[13] When the State started with the process of drafting admissions in terms of s
220 of CPA it discovered that the files in some of the digital folders were empty which
necessitated procurement of those files from uMngeni-uThukela Water. On 18 June
2025 after the State had obtained further information which it required , it sen t an
email to the defence requesting them to provide it with USBs on which this
information was to be loaded . W hilst some of the legal representatives for the
accused responded by providing USB’s as from 1 July 2025 onward s others did not
respond to the State’s request.

[14] During the year 2024/2025 a dispute arose between the Legal Affairs Division
of the NPA and IFS legal representatives. This caused the State counsel to involve
the Financial Intelligence Centre Forensic Services (FIC) to deal with aspects of cash
flow analysis already done by IFS to prevent any harm and cause delay to the trial.
The report completed by the FIC was discovered to the defence in September 2025.

[15] The State further contend s that the complex ity of the case together with
voluminous documents and the fact that the investigating team involved in this case
was the same team involved in another complex matter of S v Gumede pending in
this Division contributed to the delay of this matter.

[16] The defence contends that Advocate Vimbani -Shuma’s affidavit regarding the

[16] The defence contends that Advocate Vimbani -Shuma’s affidavit regarding the
discussion at the pre -trial video conference on 3 October 2025 is hearsay because
she was not in attendance at the meeting. Furthermore, it was contended on behalf
of the accused that since the affidavit was commissioned by the investigating officer
in this case , there was conflict with the regulation governing the administering of an

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oath because the investigating officer has an interest in the matter, therefore the
answering affidavit was inadmissible. The d efence argued that the State made
misrepresentations to Poyo -Dlwati JP that the matter was ready for trial on 7
November 2024 which resulted in the JP reserving the trial dates.

[17] The defence contends that the arrest of the accused was premature and the
investigation of this case continues unabated more than three years after the arrest
of the accused. The defence submitted that the delay has prejudiced the accused
because they have been under severe constraints having been admitted to bail
under onerous conditions. Their freedom of movement and liberty has been severely
restricted. Further, they have been force d to retain their respective legal team s for
three years at substantial costs.

Analysis and applicable legal principles
[18] The admissibility of the affidavit deposed to on behalf of the State is central to
the States’ version in that if such evidence is not admissible there would be no
version for the State before this court. It is instructive to determine the admissibility of
such evidence in the context of the nature of s 342A proceedings . It is trite that s
342A(3) does not specifically require that a ‘formal’ enquiry be held , but for at least
an enquiry, on the basis of which a finding must be made. 2 It is not in dispute that
some of the facts stated in the affidavit relate to issues which do not fall within the
personal knowledge of the deponent to the affidavit and that the relevant individual
who participated in the pre -trial proceedings did not submit confirmatory affidavits.
Although the enquiry need not be formal, a finding on the cause of the delay should
be made based on reliable facts. The veracity of the State’s evidence on what
occurred in the pre-trial conference cannot be properly determined if the deponent to
the affidavit was not present at the conference and the personnel who attended the

the affidavit was not present at the conference and the personnel who attended the
conference have not deposed to confirmatory affidavits confirming the correctness of
the facts. The reason being that the probative value of such evidence depends upon
the credibility of a person other than the deponent to the affidavit . For that reason ,
only those parts of the affidavit which contain hearsay information will not be

2 S v Ramabele and Others [2020] ZACC 22 ; 2020 (2) SACR 604 (CC ) para 62; S v Ndibe [2012]
ZAWCHC 245 para 6.

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considered for purposes of this judgment . It must be noted that the administering of
an oath by a commissioner of oath s who is part of the investigating team , is
undesirable. However, for purposes of this enquiry I am not convince d that that
would render the affidavit inadmissible.

[19] This then brings me to the issue of the delay. It is instructive that s 342A of the
CPA aims to recognise the rights contained in s 35(d) of the Constitution which
guarantees every accused person the right to a fair trial, which includes the right to
have their trial begin and conclude without unreasonable delay. Section 342A obliges
the court to investigate a delay which is unreasonable, and could cause substantial
prejudice either to the State, defence, legal representatives or witnesses. Therefore,
the starting point is to establish whether the delay is unreasonable . In determining
the reasonableness of the delay, the court is directed to consider the following
factors as set out in s 342A (2) of the CPA:
‘(a) The duration of the delay;
(b) the reasons advanced for the delay;
(c) whether any person can be blamed for the delay;
(d) the effect of the delay on the personal circumstances of the accused and
witnesses;
(e) the seriousness, extent or complexity of the charge or charges;
(f) actual or potential prejudice caused to the State or the defence by the delay,
including a weakening of the quality of evidence, the possible death or
disappearance or non-availability of witnesses, the loss of evidence, problems
regarding the gathering of evidence and considerations of cost;
(g) the effect of the delay on the administration of justice;
(h) the adverse effect on the interests of the public or the victims in the event of
the prosecution being stopped or discontinued;
(i) any other factor which in the opinion of the court ought to be taken into
account.’

[20] The evidence shows that both the State and defence have been kept busy

account.’

[20] The evidence shows that both the State and defence have been kept busy
through interlocutory applications and other related requests since the accused first
appeared in the regional court on 30 August 2022. The defence had requested

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further particulars in a staggered manner on 16 February 2024, 5 April 2024 and 27
May 2024 . Whilst the accused are entitled to request further particulars, the time
spent on consultation and compiling response s to the request s is relevant in
assessing the reasonableness of the delay. Furthermore, the accused made
representations to the State in a staggered manner on 18 June 2024, 22 July 2024
and 13 May 2025. The State spent time working on the representation s.
Consequently, cases were withdrawn against some of the erstwhile accused
because of the representations made. It is not in dispute that accused 11 applied for
separation of trial, the State filled opposing papers, and the application was argued
before court on 13 September 2024. All these interlocutory matters consumed time
and contributed to delay in prosecuting the matter.

[21] The State does not dispute that it continued investigating the matter after the
accused were arrested . However, it explained the circumstances that warranted
further investigation. On receipt of the results from Digital Forensic Laboratory on
imaging of devices on 1 December 2022 it came to the knowledge of the State that it
needed mutual legal assistance in this matter. The introduction of FIC to render
financial intelligence services instead of IFS which was previously rendering the
same services, was also explained by the State, in that the change was necessitated
by a dispute that ha d arisen between the NPA and the IFS. Therefore, the
involvement of FIC was to prevent further delay in completion of the investigation. It
is trite that i n determining a delay in the completion of t he investigation, the nature
and circumstances of each case should be considered as some cases may appear
simple but are complex and require specialised analysis of documents which justify
delay.3

[22] The relevance of systematic delay was considered in Sanderson v Attorney -

delay.3

[22] The relevance of systematic delay was considered in Sanderson v Attorney -
General, Eastern Cape , where the Constitutional Court held that although systemic
factors are probably more excusable than cases of individual dereliction of duty, they
should not be regarded as exculpatory .4 While in principle the court accepted that in
certain circumstances systemic factors may justify delay, they can only justify delay

3 Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 22 (CC) para 34.
4 Ibid para 35.

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for a certain period.5 It is instructive to note that a massive scourge of corruption has
surfaced in our country which requires specialised and expert investigative skills.
There is no doubt that the large number of arrests and prosecution of people of all
walks of life in all three arms of government that is Parliament, Executive and the
Judiciary has overstretched the capacity of expert investigation teams. However, that
should not give the State ca rte blanche powers to arrest people before proper
investigation and subject them to a prolonged judicial trial. However , in the present
matter the involvement of the same investigation te am in another high-profile matter
is but one of the various factors that contributed to the delay in the prosecution of this
matter.

[23] It is also clear that when the State made representations to Poyo-Dlwati JP
that the matter was ready for trial on 7 November 2024 which resulted in the JP
reserving dates for trial, such representations were not correct because up to now
the State has not discovered all documents to the defence. When the court enquired
from the State at the hearing of this matter whether it had discovered all documents
to the defence the State counsel advised that there were still two further documents
that it will discover to the defence, that is the mapping of all cell phones and forensic
results for a handwriting specimen. The State indicated that the remaining
documents were prepared for discovery and committed to discovering those
documents in the afternoon on the same day.
.
[24] The defence argued that the circumstance of this matter is in all fours with
Van Heerden and Another v National Director of Public Prosecutions 6 where the
Supreme Court of Appeal granted permanent stay from prosecution. In my view, the
present case is distinguishable from Van Heerden . In Van Heerden the accused
were charged for theft of hundreds of boxes of cigarettes which were valued at

were charged for theft of hundreds of boxes of cigarettes which were valued at
R3 470 000. The case had been struck of f the roll twice on account of the State’s
conduct. In the present matter the accused are facing a multiplicity of charges
including theft, fraud, corruption, money laundering, extortion, conspiracy to commit

5 Ibid.
6 Van Heerden and Another v National Director of Public Prosecutions and Others [2017] ZASCA 105;
2017 (2) SACR 696 SCA).

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robbery, robbery, intimidation and defeating the ends of justice which involve an
amount of more than R37 million.
[25] The numerous documents consisting of millions of pages which had been
discovered by the State to the defence shows that a lengthy time wa s required to
conduct this investigation. At the hearing of the matter the defence indicated that
they would certainly request further particulars to the recent discovery by the State.
The State’s case has progressed to such an extent that to strike the matter from the
roll would further delay completion of this matter, since the ongoing process of
discovery, request for further particulars and response to the request for further
particulars would cease.

[26] On a conspectus of the fa cts I am of the view that the State could have done
better in expediting the matter and alleviate further delay in prosecuting of the matter.
However, considering the complexity of the matter , the interlocutory applications,
numerous representations to the State, numerous requests for further particulars ,
new arrest s made and discovery of further information which required further
investigation, I cannot find that the delay in prosecuting the matter was
unreasonable.

[27] It would be in the interest s of the State, the accused and the administration of
justice if the trial start s and is completed soon, rather than strike the matter from the
roll and recharge the accused. The State indicated that it was ready for trial on the
reserved dates . However, considering late discovery, the volume of documents
discovered and the two set of documents that would still be discovered, the defence
would suffer trial related prejudice if the trial were to commence on the reserved
dates.

[28] For these reasons the dates that were reserved should no longer be reserved.
for trial , and the matter should be enrolled to the pre -trial roll for further attention.
Regarding the issue of costs, although the court found that the delay was not

Regarding the issue of costs, although the court found that the delay was not
unreasonable, it also found that the matter will not be trial ready on the reserved
dates. Therefore, there will be no order as to costs.

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Order
[29] In the premises the following order is made:
1. The application for the case to be struck off the roll is dismissed.
2. The rule nisi that was issued by Henriques J on 9 October 2025 , is
confirmed.
3. The dates of 23 February 2026 to 27 March 2026 and 13 April 2026 to 15
May 2026 are no longer reserved for trial of this matter.
4. The case is to be enrolled to the pre-trial roll.
5. There is no order as to costs.


_______________
Mathenjwa J

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Case information

Date of hearing: 26 November 2025
Date of judgment: 9 December 2025


Appearances:
The State: Mr Mnyani and Ms R Ramouthar
Instructed by: The Director of Public Prosecutions:
Specialised Commercial Crimes Unit

1st Accused: Mr J Howse SC
Instructed by: Garlicke & Bousfield Inc
Durban

2nd and 6th Accused: Mr Naidoo SC
Instructed by: Sasha Pillay Attorneys
Umhlanga

3rd and 11th Accused: Ms P S Mdlalose
Instructed by: Gumede & Jona Inc.
Durban

4th, 5th, 7th, 8th, 9th, and 10th Accused: Mr P Jorgensen
Instructed by: Deena Moodley & Associates
Umhlanga

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