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[2025] ZAFSHC 368
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Director of Public Prosecutions v Mohapi and Others (10/2021) [2025] ZAFSHC 368 (21 November 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not reportable
Case number:
10/2021
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS, FREE STATE
APPLICANT
and
MALIKOMO
MOHAPI
FIRST RESPONDENT
SUPERIOR
QUALITY TRADING
SECOND RESPONDENT
SEIPATI
DHLAMINI
THIRD RESPONDENT
LERATO
MNGOMEZULU
FOURTH
RESPONDENT
DISEBO
MASITENG
FIFTH
RESPONDENT
MOKEMANE
NDUMO
SIXTH
RESPONDENT
MAHLOMOLA
MOFOKENG
SEVENTH
RESPONDENT
MBANA
PETER THABETHE
EIGHTH RESPONDENT
Neutral
citation:
Director of Public
Prosecutions v Mohapi and Others
(10/2021)
[2025] ZAFSHC 368
(21 November 2025)
Coram:
Loubser J
Heard:
14 November
2025
Delivered:
21 November
2025
Summary:
Application for reservation of questions of law in
terms of
s 319
of the
Criminal Procedure Act 51 of 1977
.
ORDER
The
application for reservation of questions of law is dismissed.
JUDGMENT
Loubser
J
[1]
This is an application by the applicant for
the reservation of questions of law in terms of the provisions of
s
319
of the
Criminal Procedure Act 51 of 1977
. The application follows
upon the judgment of Mgudlwa AJ finding the respondents not guilty
and acquitting them in respect of all
the charges in a criminal trial
over which he presided.
[2]
The respondents stood trial on 61 counts in
terms of the
Prevention of Organised Crime Act 121 of 1998
,
Prevention and Combating of Corrupt Activities Act 12 of 2004
, Broad
Based Economic Empowerment Act 46 of 2013,
Public Finance Management
Act 1 of 1999
, and forgery, uttering and fraud read with the
provisions of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
,
read with s 332 of the Criminal Procedure Act 51 of 1977 (CPA).
[3]
The respondents were not all charged on the
same counts. Counts 1 to 8 of forging and tendering of forged
documents and the award
of the contract in question relate to only
the first and second respondents. Counts 9 and 10 are similar to
Counts 1 to 8, but
they relate to the third up to the eighth
respondents only. Counts 11 and 12 pertain to the failure to disclose
financial interests
and providing of false information, but Count 11
relates to the first and second respondents only, while Count 12
relates to only
the third respondent. Counts 13 to 61 pertain to the
offences of corruption, money laundering and the contravention of the
Public Finance Management Act 1 of 1999
, but Counts 13 to 28 relate
to the third respondent only, while Counts 29 to 44 relate to the
first and second respondents. Counts
45 to 60 relate to the first,
second and third respondents only, while Count 61 relates only to the
eighth respondent.
[4]
The third to eighth respondents were all
employees of the Department of Agriculture and Rural Development in
the Free State Province.
[5]
Since Mgudlwa AJ is no longer acting as a
judge of this Division, he was not available to hear the application
in terms of
s 319.
The application was consequently allocated to this
Court for hearing. At the hearing, the application was furiously
opposed by
counsel appearing for the respective respondents.
[6]
Section 319
provides for the reservation of
a question of law for consideration by the Supreme Court of Appeal.
Such a question of law must
arise at the trial, and the trial court
may of its own motion or at the request of either the prosecutor or
the accused reserve
the question. The main use of the procedure under
this section is to give the State the opportunity to appeal from a
high court
to the Supreme Court of Appeal on a point of law. The
State cannot appeal against findings of fact which the trial judge
made.
The pivotal question in applications of the present kind is
therefore whether the questions involve points of law or not. If the
questions appear to be factual and do not involve points of law, the
application stands to be dismissed.
[7]
In
DPP
Western Cape v Bongo
[1]
the Supreme Court of Appeal set out the requirements that must be met
before a question of law may be reserved. They are the following:
the
question must be framed accurately so that there is no doubt as to
what the legal point is, the facts upon which the point
is based must
be clearly set out in the record and questions of law should not be
reserved where they will have no practical effect
on the acquittal of
the accused.
[2]
Elsewhere, the
Court stated that the question as to whether proven facts in a
particular case constitute the commission of a crime,
is a question
of law, but a question of law is not raised by asking whether the
evidence established one or more of the factual
ingredients of a
particular crime where there is no doubt or dispute as to what those
ingredients are.
[3]
[8]
In
Director
of Public Prosecutions: Limpopo v Molope and Another
[4]
the Supreme Court of Appeal reaffirmed that the provisions of
s 319
are peremptory and require strict compliance as its purpose is to
limit appeals by the State.
[5]
In
S
v Basson
[6]
the Supreme Court of Appeal held that the State has no right of
appeal in terms of the CPA in respect of erroneous findings of
fact
by the trial Judge. Whether the trial court’s finding of fact
is right or wrong is therefore totally irrelevant in order
to
determine whether he erred in law. A legal question arises only when
the facts on which the trial court bases its ruling may
have a
different legal consequence than the consequence that the court
found, it was held.
[9]
It is with these legal principles in
mind that I now turn to the questions of law raised by the applicant,
in order to establish
whether it has met the stated requirements and
whether they indeed involve questions of law. The applicant raised
altogether seven
questions of law, which it framed as questions A to
G.
[10]
Question of Law A:
‘
Whether in light of the
prima
facie
evidence that was placed before
the trial Court, the decision to find the respondents not guilty was
such an error of such a nature
that it constituted a gross
irregularity in the trial?’
a)
In relation to this question the applicant
submits that the Court did not properly consider, ignored or
misapplied the principles
related to the evaluation of evidence in
its judgment. It did so by brushing aside all the exhibits handed in
by the State as copies
and inadmissible evidence ‘in terms of
the best evidence rule’.
b)
The applicant further submits that the
Court erred and misdirected itself by failing to consider uncontested
evidence and to apply
the relevant principles of the law to the
respective exhibits by brushing them aside as copies and ‘in
terms of the best
evidence rule”.
[11]
Now, we have seen from the
discussion above that questions of law should not be reserved where
they will have no practical effect
on the acquittal of the accused.
The present case is complicated by the fact that all the respondents
were not charged with all
the counts on the charge sheet. This
question of law is too widely stated to be applicable to all the
respondents without specifying
what effect a successful appeal will
have on each of the respondents individually. For instance, in
respect of the fifth, sixth
and seventh respondents, they were
charged with a failure to prevent irregularities in the procurement
and award process of a tender.
However, it appears that no direct
evidence was placed before the court that any of them had engaged in
or had actual knowledge
of any false representations or misstatements
forming the basis for the charges against them. It follows that a
successful appeal
on this question of law will probably have no
practical effect on the acquittal of these accused, if it ever can be
classified
as a question of law. The question simply lacks the
necessary particularity as to which of the respondents will be
affected by
the question of law. The question under A, therefore,
cannot be reserved.
[12]
Furthermore, the applicant relies in
this question on the allegation that the trial Judge ‘brushed
aside’ all the exhibits
as copies and inadmissible evidence. In
terms of the best evidence rule, they should have been considered, so
the argument goes.
However, it appears as if all the conditions for
applying the best evidence rule have not been met, for instance that
a diligent
search was conducted to find the originals.
[13]
In the premises, I do not regard
this question as a valid question of law.
[14]
Question of Law B:
‘
Whether the trial Court applied the correct
test, or legal principles to evaluation of evidence when it draws an
adverse inference
against the State for electing not to call
witnesses where the evidence relevant to the applicant’s case
was common cause
and the witnesses were made available to the
defence?’
a)
This question relates to witnesses Masiteng
and Mlambo, who were State witnesses whom the State failed to call,
but had been made
available to the defence, who also declined to call
them.
b)
The applicant submitted that the trial
Judge was wrong when he drew an adverse inference against the
applicant for not calling the
witnesses by finding that this failure
meant that the witnesses would have given unfavorable evidence to the
applicant’s
case.
[15]
I am of the view that this question
of law will have no practical effect on the acquittal of the
respondents. This is so because
the trial judge knew that the
witnesses were made available to the defence, who did not call them.
Therefore, even if he was wrong
to make the inference against the
applicant, the correct decision would have been to find that the
witnesses could not take the
matter any further and that their
evidence was therefore irrelevant to the adjudication of the case. In
any event, having regard
to all the circumstances of the case, a
successful appeal on this question of law will have no practical
effect on the acquittal
of the respondents.
[16]
I consequently find that this
question does not raise a valid question of law that could have any
positive effect for the respondents.
[17]
Question of Law C:
‘
Was there not a duty on the trial Court in
terms of
Section 186
of the
Criminal Procedure Act, Act
51 of 1977 to
call dr. Masiteng and mr. Mlambo? [sic]’
[18]
This question has already been
answered under Question of Law B. The two witnesses would not have
taken the matter any further.
A successful appeal on this point will
have no practical effect on the acquittal of the accused.
[19]
Question of Law D:
‘
Whether the trial Court, in respect of its
ruling on 4 December 2024 that all documents tendered in evidence by
the applicant were
copies, unauthenticated and inadmissible, erred in
applying the wrong test and legal principles relating to
admissibility of documentary
evidence?’
a)
In relation to this question, the applicant
submits that the total rejection of all the exhibits under the
circumstances amounted
to a miscarriage of justice, as the
requirements for the admissibility of each type of document varies.
b)
It further contended, in amplification,
that the trial court misdirected itself in finding that affidavits or
certificates by bank
officials in terms of
s 236
of the CPA were
copies and therefore inadmissible.
[20]
This question appears to be a
repetition of Question of Law A, which was already dealt with herein
before. The same considerations,
therefore, apply to the present
Question. In addition, it is not clear whether the Question is framed
accurately. The fact on which
this Question is based, do not refer to
the trial court’s judgment at all and it is not clear which
portions of the judgment,
with reference to the paragraphs thereof,
the applicant seeks to attack. For instance, no specific reference is
made to the contents
of para 28 to 31 of the judgment and the case
law referred to by the trial court. It is not alleged that the case
referred to was
incorrectly applied.
[21]
With reference to my findings on
Question of Law A, I have to conclude that the present Question also
lacks the particularity to
qualify as a valid Question of Law.
[22]
Question of Law E:
‘
Whether the common cause facts actually
constitute the crimes of fraud, forgery, uttering, corruption money
laundering and contravention
of the PFMA?’
a)
As the basis for this Question, the
applicant refers to one or two instances where the evidence of a
State witness was not challenged
by the defense. It further contends
that the trial Court misdirected itself by failing to consider all
evidence tendered but compartmentalized
and disregarded some of the
evidence tendered by the State, thereby committing an error in law.
b)
The applicant further submits that the
trial court failed to apply the elements of the crimes charged to the
proven facts and thereby
committed an error of law.
[23]
It appears to this Court, that the
factual basis upon which the applicant wishes to ask this Question of
law does not address the
question itself. While the Question refers
to common cause facts, such common cause facts are not listed in the
Question. In addition,
this Question appears to be nothing more than
a question whether the trial Judge had considered the facts,
particularly the common
cause facts, correctly. This is a question of
fact which may not be reserved by the State for consideration.
[24]
This question of fact is now
disguised as a question of law, and therefore cannot be reserved.
[25]
Question of Law F:
‘
Should the Court
a
quo
not have considered the entire body
of evidence?’
a)
In relation to this Question the applicant
points out that all the undisputed evidence became common facts, and
that it is clear
from the record that the Court
a
quo
did not consider the entire body of
evidence.
[26]
In formulating this Question, the
applicant does not refer to the trial court’s judgment. It does
not challenge the trial
court’s observations in para 55 of the
judgment, where the following is said:
‘
The
case of the State in this matter is pivoted on the disputed secondary
evidence which has been proven to have been mishandled.
I have
assessed the credibility of the evidence of all state witnesses and,
in my view, even though the accused exercised their
right to remain
silent, the State has not succeeded in surmounting the threshold of
proving the guilt of all 8 accused beyond any
reasonable doubt in
respect of all counts respectively.’
[27]
Therefore, it cannot be said that
the trial court had not considered the entire body of evidence in the
trial. The Question of Law
may therefore be considered to be
inelegantly drawn or inaccurately drawn. As is mentioned in the
discussion above, questions of
law will not be reserved if they are
not drawn accurately.
[28]
Consequently, this question cannot
be reserved.
[29]
Question of Law G:
‘
Whether the Court’s failure to make
findings of fact as enjoined in terms of
S146(A)
of the
Criminal
Procedure Act 51 of 1977
read with S34 of the Constitution of South
Africa amounted to a failure of justice or rendered the trial
unfair?’
a)
In this Question the applicant relies on
the fact that the trial judge gave an
ex
tempore
judgment on the matter on 4
December 2024, and promised to provide a full written judgment later.
The applicant then made numerous
requests for the full written
judgment. It was only submitted on 17 February 2025 and turned out to
be the same judgment as the
ex tempore
judgment. On 17 June 2025 the applicant requested a ‘stated
case’ from the trial judge, and on 5 August 2025 he responded
by stating that his reasons for judgment are in his written judgment.
b)
The applicant submits that the trial court
had a statutory duty of proper consideration and a duty to give
adequate reasons for
its acquittal of the respondents. Its failure to
provide the same amounted to a failure of justice and a breach of the
right to
a fair trial in terms of s 34 of the Constitution, it is
alleged.
[30]
What the applicant appears to seek
by way of this Question is a ruling that the trial judge erred in his
findings on the facts,
since he did in fact give reasons as envisaged
by s 146. It is therefore a question of fact, and not a question in
law. This Question
can also not be reserved.
[31]
The following order is made:
The
application for reservation of questions of law is dismissed.
P. J. LOUBSER
JUDGE OF THE HIGH
COURT
Appearances
For
the applicant:
J. T. Bakamela
Assisted
by:
M. Ponye
Instructed
by:
Director of Public Prosecutions
,
Bloemfontein
For
the first, second and
fourth
respondents:
L. D. Mantsha
Instructed
by:
Mantsha Attorneys
info@lugisanimantshaattorneys.co.za
For
the third respondent:
W. J. Edeling SC
Instructed
by:
Bokwa Inc Attorneys,
Bloemfontein
For
the fifth, sixth and
seventh
respondents:
A. D. Schoeman
Instructed
by:
Peyper Attorneys,
Bloemfontein
For
the eighth respondent:
C. J. van Schalkwyk SC
Instructed
by:
Kramer Weihmann Attorneys,
Bloemfontein
[1]
DPP
Western Cape v Bongo
[2024]
ZASCA 70; 2024 (2) SACR 183 (SCA).
[2]
Ibid para 36.
[3]
Ibid para 35.
[4]
Director
of Public Prosecutions: Limpopo v Molope and Another
[2020]
ZASCA 69; 2020 (2) SACR 343 (SCA).
[5]
Ibid para 39.
[6]
S
v Basson
2003
(2) SACR 373
(SCA).