IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 2026-006617
In the matter between:
JUSTIN JAMES HANDS APPLICANT
and
THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT & OTHERS FIRST RESPONDENT
THE REGIONAL MAGISTRATE P COURT,
DURBAN, MS. MEEWALAL SECOND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTION,
KWAZULU-NATAL THIRD RESPONDENT
THE PUBLIC PROSECUTOR P REGIONAL
COURT, DURBAN, MS. S MKWANAZI FOURTH RESPONDENT
ORDER
___________________________________________________________________
2
Accordingly, I make the following order:
1. The application is dismissed.
2. There is no order as to costs.
JUDGMENT
___________________________________________________________________
SAKS AJ:
[1] This matter came before me as an urgent application on 16 January 2026 in
which the applicant, who is the accused in pending trial proceedings before the
second respondent, sought an order interdicting the continuation of the trial pending
the finalisation of the review proceedings instituted under case number: 2026 -
006352 ( “the review ”). The applicant sought this relief on limited notice in
accordance with the provisions of Rule 6 (12) of the Uniform Rules of Court, upon
the basis that the trial was enroll ed for hearing from 13 to 16 January 2026 , and that
the second and fourth respondents respectively, were not disposed to adjourning the
trial pending the finalisation of the review.
[2] The applicant attached a copy of the review to his founding affidavit,
although the third respondent took issue with the fact that it does not appear to have
been served.
[3] The background to this application is that the applicant has been arraigned
on the charges set out in annexure “A” to the review, namely that the applica nt has
been charged with statutory rape and a charge of grooming a child in terms of the
provisions of Act 32 of 2007.
3
[4] The complainant in the matter is a minor born on 26 May 2008. At the time of
the commission of the alleged offences, the complainant was 14 years old and she is
now 17 years old and still to be considered a minor in the circumstances.
[5] During the course of pre-trial proceedings, the fourth respondent, namely the
prosecutor in the matter, advised the applicant’s legal representatives that the State
would make use of the services of an intermediary, as contemplated by s170A of the
Criminal Procedure Act 53 of 1977 (“the CPA”).
[6] Although the applicant’s legal representatives requested copies of any
reports which might have been available in respect of the complainant’s assessment
by a forensic social worker at the behest of the investigating officer, no such reports
were obtained and, accordingly, the fourth respondent disclosed that there would be
no evidence by way of a report and the matter would simply be addressed in
argument at the inception of the trial.
[7] At the commencement of the trial on 13 January 2026, it became apparent
that the particular court did not have the requisite facilities to accommodate matters
where evidence was to be taken through an intermediary in terms of section 170A or
evidence by means of close circuit television (CCTV). In the result the trial had to be
transferred to another court where such facilities were available.
[8] In the interim, the parties agree to de al with the preliminary issues by way of
the applications in terms of ss153, 158 and 170A, respectively, of the CPA.
[9] It was common cause that the first application , in terms of section 170A,
namely for the evidence of the complainant to be taken through an intermediary, was
abandoned during the course of argument.
[10] The prosecutor then moved a second application, in terms of the provisions
of section 153 of the Act, for the trial to take place in camera. This application was
not opposed and an order to that effect was granted by the second respondent.
4
[11] However, the central issue in this application before me, was the third
application, namely for an order in terms of s158 (2) of the CPA, that the complainant
be allowed to give her evidence through the medium of CCTV. This application was
opposed and the prosecutor and the applicant’s counsel argued the matter before
the second respondent.
[12] It was common cause that the fourth respondent did not present any
evidence by means of an expert report or lead any evidence by any such expert and
confined himself to submissions made from the bar.
[13] The second respondent proceeded to grant an order in terms of s158 (2), in
terms of which the complainant was allowed to give evidence by means of such
CCTV facilities.
[14] It is this order, which forms the subject of the urgent application before me
and which lies at the heart of the review.
[15] The urgent application was opposed by the third respondent, whose grounds
of opposition initially focused on a challenge as to the urgency of the application,
when the matter was initially heard on 16 January 2026 ; however, the third
respondent then supplemented its grounds of opposition in the answering affidavit,
which was delivered before the matter was heard on 23 January 2026. The third
respondent’s grounds of opposition can conveniently be summarised as follows:
[15.1] the application is not urgent for failure to comply with the provisions of
section 35 of General Law Amendment Act 52 of 1955, read in conjunction of the
provisions of Rule 6 (13) of the Uniform Rules of Court.
[15.2] the relief sought by the applicant is not competent.
[15.3] the applicant has not satisfied the requirements of an interim interdict, in that
he has not established a right to review the decision and , secondly, that the
balance of convenience favours the dismissal of the application . Finally,
he alleged that the applicant has an alternative remedy, in that his right to
he alleged that the applicant has an alternative remedy, in that his right to
review the decision of the second respondent is still available to him either in
the interim or at the conclusion of the trial proceedings.
5
[16] I deal with each of these issues ad seriatim.
URGENCY
[17] At the outset of this matter I asked the third respondent’s counsel whether
the trial would proceed if the application is struck off the roll for lack of urgency.
[18] Mr Abraham, who appeared on behalf of the third respondent, confirmed that
the trial would have to proceed, which in my view rendered the application urgent in
the circumstances.
[19] In advancing his argument, Mr Abraham sought to rely on the provisions of
section 35 of the General Law Amendment Act 52 of 1955, as well as the provisions
of Rule 6 (13); however, in both provisions, the discretion of the court is preserved.
The section in question provides that in respect of any interim interdict sought
against the State, at least 72 hours’ notice must be given ; however, it contains a
caveat, namely such notice may be for a less er period as the court may in all the
circumstances of the case consider reasonable. Furthermore, Rule 6(13) makes
provision for the time periods referred to in Rule 6(5)(b) or for the return date of a
rule nisi, which shall not be less than 15 days after the service of the notice of motion
of the rule nisi as the case may be; however, similarly, the court may specially
authorise a shorter period.
[20] Having considered the papers and the circumstances surrounding the
application, I find that the matter is indeed urgent and warrants a departure from the
time periods referred to in section 35 of the General Law Amendment Act 52 of 1955
and Rule 6(13), respectively.
INTERIM INTERDICT: IS THE RELIEF COMPETENT?
[21] There are two legs to this argument . Mr Abraham submitted that the
applicant was seeking what was effectively a permanent stay of prosecution,
notwithstanding the framing of the relief . He submitted that the relief was final in
6
nature. Secondly, he submitted that it is not competent to determine these disputes
relating to rulings of the presiding magistrate by way of piecemeal litigation.
[22] As to the first question, it is manifestly obvious from the framing of the
interdictory relief, both in respect of the primary relief and the alternative relief, that
the applicant is seeking an order staying the criminal proceedings and interdicting
the continuation thereof , pending the final determination of the review. I fail to
understand how that could be final in nature, in that the interdict would only operate
pending the finalisation of the review . I f the review was dismissed the interim
interdict would fall away automatically.
[23] Secondly, the relief could never be considered a permanent stay of
prosecution, in that the applicant accepts that the trial should proceed, even on his
own version, after the determination of the review, either upon the basis that he is
successful in the review and, therefore, the evidence of the complainant cannot be
taken through the medium of CCTV. Alternatively, if he is unsuccessful in the review,
the trial would proceed subject to the existing ruling of the second respondent,
namely that the evidence of the complainant would be led through the medium of
CCTV facilities. There is simply no merit in this argument.
[24] The second leg of the third respondent’s submission is deserving of further
consideration as our courts have set their fac e against the piecemeal determination
of disputes, especially in the context of criminal proceedings. To that end, courts are
reluctant to automatically stay criminal proceedings based solely on pending
reviews.1
[25] Other courts, including the SCA, have also criticised and discouraged
piecemeal litigation in criminal proceedings:
“It was well established before the present constitutional era that a criminal
trial is not to be conducted piecemeal, and that continues to ap ply. An
trial is not to be conducted piecemeal, and that continues to ap ply. An
1 S v Seth [2024] ZAGPJHC 1962 (26 September 2024) at [74]; S v Zuma [2022] ZAKZPHC 5 at [57]; Van Der
Merwe v National Director of Public Prosecutions & Others [2010] ZASCA 129 at [32]; Williams & Others v
Director of Public Prosecutions: Western Cape [2021] ZAWCHC 187 at [53]
7
accused is not entitled to have the trial interrupted or to have it not even begin
so as to have alleged irregularities reviewed by another court in the course of the
trial. It is important to bear in mind that while the Constitution guarantees to
an accused a fair trial that does not mean that the prosecution must satisfy
the accused in advance that the trial will indeed be fair. It is the duty of the trial
court to try a charge, and ensure that the trial is fair, and if it turns out that it
was not, then any conviction that followed might be set aside. It might even
turn out that the accused is acquitted, in which case the alleged irregularities
will be irrelevant. Litigation of the kind that is before us falls squarely into the
category of preliminary litigation that ought to be avoided and discouraged.”2
[26] It also be ars mention ing that courts have observed that this piecemeal
approach to criminal trials has been used by unscrupulous accused to unduly delay
the proceedings, because it would usually be followed by an appeal to the Supreme
Court of Appeal, and thereafter to the Constitutional Court.3 The applicant complains
of a failure to follow proper procedure in the second respondent’s consideration of
the state’s application in terms of s158 of the CPA. Mr Snyman who appeared on
behalf of the applicant was at pains to emphasis e that the applicant’s fair trial rights
were adversely affected by the second respondent’s ruling in the s158 application.
[27] However, the applicant’s application cannot be summarily dismissed. These
criticisms are some of the factors to be considered as to whether the applicant has
established a prima facie right, although open to some doubt , for the purposes of
determining whether an interim interdict ought to be granted in the circumstances.
HAS THE APPLICANT ESTABLISHED A PRIMA FACIE RIGHT (ALTHOUGH
OPEN TO SOME DOUBT)
[28] It is now settled that in circumstances where an applicant seeks an interim
[28] It is now settled that in circumstances where an applicant seeks an interim
interdict pending a review, a court must first be satisfied that the applicant has good
prospects of success in the review. The claim for review must be based on strong
grounds, which are likely to succeed. This requires a court adjudicating the interdict
2 Van Der Merwe v National Director of Public Prosecutions & Others (supra) at [32]
3 Williams & Others v Director of Public Prosecutions: Western Cape (supra) at [53]
8
application to peek into the grounds of review raised in the main review application
and assess their strengths. It is only if a court is convinced that the review is likely to
succeed that it may appropriately grant the interdict.4
[29] It is necessary to consider the context within which any application in terms
of s158(2) of the CPA would be made. Firstly, it is well -established that vulnerable
children find the criminal justice system extremely intimidating and challenging when
they are called to testify as witnesses or as victims of criminal acts. The importance
of realising justice that not only affords an accused person the right to a fair trial but
also protects and safeguards the rights of children involved as victims and witnesses
to the crime is thus undeniable. In Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development ,5 the Constitutional Court
acknowledged that children are uniquely vulnerable and that they require specific
attention when brought to testify in court. The Constitutional Court provided
guidelines on how child victims and witnesses should be accommodated in co urt
proceedings relating to sexual offences, requiring the State to ensure that the
children’s best interest s remain intact when they appear in court as victims or
witnesses.
[30] Furthermore, s28(2) of the Constitution requires that the best interest s of the
child are of paramount importance in all matters concerning the child. In the context
of child complainants and witnesses, s28(2) demands protection of children while
giving evidence in Court to prevent hardship and secondary trauma. The concept of
the best interest s of the child i s entrenched in s28 of Constitution and is aimed at
ensuring the full and effective realisation and enjoyment of all children’s rights as
provided for.
[31] Courts in the criminal justice system must find a balance between the rights
[31] Courts in the criminal justice system must find a balance between the rights
of the accused person to a fair trial and the protection and safeguarding of the rights
of child victims and child witnesses. Emphasis must be placed on the role of the
4 Economic Freedom Fighters v Gordhan & Others 2020 (6) SA 325 (CC) at [42].
5 2009 (4) SA 222 (CC).
9
judiciary to ensure that the delicate balance is maintained and all rights impacted by
crime are promoted and secured.6
[32] Section 158 of the CPA was previously the subject of differing judgments. 7
Those judgments, were the subject of consideration by the F ull Bench in S v
Domingo.8 The Full Bench followed the reasoning in Staggie,9 namely that the
provisions of s158(3) must be read disjunctively.10
[33] In S v Lenting & Others ,11 In a more recent judgment of the same court, the
Court stressed that the protection envisaged in ss153 and 158 is not only aimed at
protecting a witness, but also ensures that the evidence that is given to the court is
not reduced and d iminished in quality because of the witness’s fear or distress in
testifying in an open court or in the presence of the accused. The protection ensures
that the witness gives her evidence in a more coherent and relaxed manner. In other
words, the protection is intended to ensure that the court obtains a full and candid
account from the witness, of the acts complained of. This enables the witness to feel
at ease to provide reliable evidence to the court to enable the court to make a finding
as to the reliability of the evidence and the witnesses giving it.12
[34] It is trite that the rights of an accused person to be present in court
throughout the trial and to observe his accusers and those who testify against him is
a fundamentally important right and should not lightly be interfered with. However,
the legislature specifically contemplated this and legislated an inro ad to that
fundamental right by codifying the protection for witnesses, in particular child
witnesses, who have to give evidence in criminal proceedings. Section 158 of the
CPA is one such exception and the court is to consider whether a fair balance has
been struck between the applicant’s fair trial rights and the protection afforded to the
complainant, who was a minor (14 years old) at the time of the alleged commission
complainant, who was a minor (14 years old) at the time of the alleged commission
of the offence and who is still a minor at the commencement of the trial.
6 McKenzie v State [2025] ZAWCHC 132 at [38] to [43].
7 See S v F 1999 (1) SACR 571 (C); cf S v Staggie & Another 2003 (1) SACR 332 (C) (“Staggie”).
8 S v Domingo 2005 (1) SACR 193 (C).
9 S v Staggie 2003 (1) SACR 332 (C).
10 See S v Domingo (supra) at 199F-I.
11 S v Lenting & Others 2023 (2) SACR 409 (WCC) (“Lenting”).
12 S v Lenting (supra) at [26].
10
[35] In Lenting, a similar argument was advanced, namely that the accused
seeks to challenge the witness, in court, through direct cross-examination. The court
dismissed this argument and observed that the accused’s legal representatives
would be able to exercise the right to cross examine the witness directly, even when
the witness testifies through closed circuit television (CCTV).13
[36] Section 158(3) of the CPA record a number of factors which may or may not
be present and for the reasons advanced above it is not required that all of these five
factors need to be present before a Magistrate is entitled to make an order under
s158(2). One or more of these factors ought to be present after it has been
determined in the affirmative that facilities are readily available to allow the evidence
to be taken by CCTV. These factors will then be considered and the weight to be
attached to any such factor(s) which may be present, for the purposes of the judicial
officer exercising his or her discretion to grant such an application.
[37] It is significant that s158(3)(e) of the CPA would appear to dovetail with the
provisions of s170A; and it is often the case that the two sections operate in tandem,
namely that a child witness gives evidence via CCTV through an intermediary. The
physical, psychological, mental or emotional stress, trauma or suffering which is
referred to in s170A(1) would fall squarely within the ”prejudice or harm” referred to
in s158(3)(e). Accordingly, the decisions which have considered the implementation
of s170A will assist in determining the proper application of a judicial office r’s
discretion in whether or not to grant an application under s158(2) of the CPA.
[38] Whilst the applicant concedes that the provisions of s158(3) of the CPA must
be interpretated disjunctively, the dispute in this application is focused on the
implementation of s158 (2) and (3) and the discretion that is to be exercised by a
implementation of s158 (2) and (3) and the discretion that is to be exercised by a
Magistrate in the circumstances. It is common cause that the first jurisdiction al fact
was present, namely facilities were available for the purposes of taking evidence by
CCTV. The enquiry, therefore, is confined to the approach which the second
respondent adopted when considering the fourth respondent’s application in terms of
s158(2) of the CPA.
13 S v Lenting (supra) at [32].
11
[39] It was common cause that the fourth respondent did not lead any evidence,
expert or otherwise, in support of the application in terms of s158. However, he
moved a separate application to have the trial proceed in camera, in terms of s153 of
the CPA. That application was not opposed. However, it is relevant when
considering the discretion exercised by the second respondent, namely the trial
would proceed in camera and that complainant was a minor who would be giving
evidence at some point in the trial.
[40] It was common cause that in the application in terms of s158, the fourth
respondent made the submission that the complainant would feel more comfortable
giving evidence through CCTV facilities and that it would be more convenient to do
so. The applicant complained that this constituted hearsay evidence and that the
Magistrate committed an irregularity in allowing such evidence in support of the
application.
[41] When I queried what the applicant contemplated by way of evidence to be
led in an application in terms of s158 of the CPA, Mr Snyman submitted that in the
absence of competency reports from the expert(s) who would have assessed the
complainant, the fourth respondent was bound to lead the evidence of such
expert(s).
[42] It is fairly common for these types of applications to be made from the bar
and, on occasion, with the admission of hearsay evidence. This was in fact the case
in Staggie where th ere was a similar complaint. The admissibility of hearsay
evidence is dealt with in s3 of the Law of Evidence Amendment Act 45 of 1988.
Section 3(1)(b) and (c) are relevant for the purposes of any such application. S ection
3(1)(c) sets out the issues a court must consider when examining whether the
interests of justice are served by admitting hearsay evidence. The nature of these
proceedings is highly relevant. It is a statutory rape case of a minor where that minor
was allegedly groomed by the applicant. The purpose of any such hearsay evidence
was allegedly groomed by the applicant. The purpose of any such hearsay evidence
that might have been tendered by the fourth respondent was not to prove the
charges themselves, but rather to deal with the interlocutory application before the
12
court. In this regard, the dicta of Cameron JA in S v Ndlovu & Others 14 is apposite
where he held that “ the Act requires that specific account be taken of the nature of
the proceedings (s3(1)(c)(i)). This alludes to the distinction between application and
trial proceedings”. The hearsay evidence in Staggie was tendered in an application
solely for the purposes of that application. That was similarly the case in the s158
application before the second respondent.
[43] In Van Zyl & Another v Jonathan Ball Publishers (Pty) Ltd & Others ,15 Navsa
J, as he then was, referred to Metedad v National Employers’ General Insurance Co.
Ltd16 regarding s3 of the Law of Evidence Amendment Act where Van Schalkwyk J
held that:
”This section invests the court with the discretion, to be judicially exercised in
the interests of justice. It seems to me that the purpose of the amendment
was to permit hearsay evidence in certain circumstances where the application of
rigid and somewhat archaic principles might frustrate the interests of
justice.”17
Navsa JA subsequently held in Makhatini v Road Accident Fund18 that:
“the statutory preconditions for the reception of hearsay evidence are now
designed to ensure that it is received only if the interest s of justice dictate its
reception.”
[44] There are clear reasons why such evidence could not be given by the
complainant at that point in the proceedings, nor would it have been appropriate for
the complainant herself to give evidence and subject herself to cross -examination
which would defeat the very purpose of the application and would serve to
traumatise her before she even commenced her evidence in the trial itself . T here
clearly would be prejudice to the complainant if she had to testify as to why she
needed to give her evidence through the medium of CCTV facilities. There were no
competency reports nor any evidence to be led by experts. It was, therefore, in the
competency reports nor any evidence to be led by experts. It was, therefore, in the
interests of justice for the second respondent to consider the submissions made by
14 2002 (2) SACR 325 (SCA) at 337 a – c
15 Van Zyl & Another v Jonathan Ball Publishers (Pty) Ltd & Others 1999 (4) SA 571 (W) at 588E – G
16Metedad v National Employers’ General Insurance Co. Ltd 1992 (1) SA 94 (W)
17 Metadad v National Employers’ General Insurance Co. Ltd (supra) at 498I to 499A
18 Makhatini v Road Accident Fund 2002 (1) SA 511 (SCA) at [21]
13
the fourth respondent, specifically for the purposes of the application in terms of
s158, even if they constituted hearsay evidence in the circumstances.
[45] Even if the second respondent was limited to considering submissions from
the bar, the question then remains whether that would have been enough to allow
her to exercise her discretion to grant an order in terms of s158(2). In other words, in
the circumstances of this case, would it have been enough for the second
respondent to have considered the nature of the charges and the fact that the
complainant was a minor, aged fourteen at the time of the commission of the alleged
offences, and that she was still a minor at the time of the application ? There are no
authorities that have considered this question in the context of s158 of the CPA.
[46] However, the suggestion that there should have been an extensive enquiry
by the second respondent before she made her ruling, appears to have its genesis in
the dicta of Ngcobo J, as he then was, in Director of Public Prosecutions, Transvaal
v Minister of Justice and Constitutional Development 19 where he held that “ if
necessary, the presiding judicial officer must initiate an enquiry into the desirability of
appointing an intermediary……..” (my emphasis)
[47] Admittedly that case considered the constitutionality of s170A(1) of the CPA;
however, the reference to an enquiry appears to have found its genesis in those
comments. I have emphasised the fact that the presiding officer is vested with a
discretion as to whether to convene an enquiry. One should not lose sight of the fact
that the limitation of the accused’s fair trial rights contemplated by s170A is more
pronounced than that under s158(2) and so it is fair to consider that a more
extensive enquiry is required to establish whether there is a need to appoint an
intermediary under s170A. Any criticism of the second respondent’s decision to grant
an order in terms of s158(2) must be considered in this context.
an order in terms of s158(2) must be considered in this context.
[48] Was it sufficient in this instance for the second respondent to have enquired
by considering submissions from the bar in what amounted to an opposed
interlocutory application?
19 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (4) SA
222 (CC) at [112]
14
[49] The fact that the prosecutor abandoned the application in terms of 170A in
the application to have minor complainant ’s evidence be heard through an
intermediary, is not a negative factor to be weighed into consideration. Neither party
disclosed any further reasons for this. The prosecutor appears to have been content
with orders directing that the trial proceed in camera and that the complainant’s
evidence be accepted through the medium of CCTV.
[50] In S v Mabuza 20 where the court held that it is not a prerequisite that a
competency report be provided before a court can make a ruling in respect of an
application in terms of s170A. Similarly, a judicial officer can make the observation
without any evidence even being presented by a prosecutor by taking into account
the age of the witness and the nature of the charges. 21 I find myself in agreement
with that reasoning and there is no reason why the second respondent was not
entitled to take into account the nature of the charges and the fact that the
complainant, a minor child, who was fourteen at the time of the commission of the
alleged offences and was still a minor at the time of the application, and issue the
ruling pursuant to the application being argued before her. This was a discretion that
she was entitled to exercise having satisfied herself, be it by way of hearsay
evidence or simply on the submission s of the prosecutor when the matter was
argued, that one or more factors in s158(3) were present. She had already issued a
ruling, by consent, that the trial be heard in camera . Secondly, she agreed that the
witness would feel more comfortable by avoiding the mental anguish and stress of
having to testify in court in front of the applicant who had allegedly perpetrated the
sexual acts complained of and she would have to relive and suffer the secondary
trauma of giving it that evidence in front of him, quit e apart from the intimidating
trauma of giving it that evidence in front of him, quit e apart from the intimidating
environment of the court room and the direct cross -examination of her in person by
counsel.
20 S v Mabuza 2018 (2) SACR 54 (GP) at [23] to [26]
21 S v Mabuza (supra) at [24] to [25]; See also S v Peyani 2014 (2) SACR 127 (GP) at 128 to 130 (see in particular
para [24] at 129 to 130).
15
PRIMA FACIE RIGHT: DOES THE APPLICANT HAVE A RIGHT TO REVIEW THE
SECOND RESPONDENT’S RULING WHILST THE TRIAL IS PENDING?
[51] It is trite that by virtue of its inherent power to restrain illegalities in inferior
courts, the High Court may, in a proper case, grant relief by way of a review, interdict
or mandamus against the decision of a Magistrates’ Court before a conviction. This,
however, is a power which is to be sparingly exercised.22
[52] In Wahlhaus, the then Appellate Division held that a court should be hesitant
to intervene, especially having regard to the effect of such a procedure upon the
continuity of proceedings in the court below, and to the fact that redress by means of
review will ordinarily be available at the end of the day. 23 The Appellate Division held
that this statement correctly reflects the position in regard to incomplete criminal
proceedings in the Magistrate’s Court.24
[53] This rule that reviews of criminal proceedings should only occur after
conviction and sentence, seeks to prevent the piecemeal adjudication and serv es to
promote the efficient administration of justice.25
[54] The principle enunciated by the then Appellate Division in Wahlhaus is thus
informed by the effect review relief could have on the continuity of proceedings in the
court below, and the fact that redress by means of review or appeal will be ordinarily
be available upon concluding the proceedings in that court .26 Importantly, the
prejudice to an accused person being obliged to proceed to trial, and possible
conviction, before being a fforded the opportunity to test the correctness of a
Magistrate’s decision o n a ruling does not necessarily justify the High Court from
granting relief before proceedings are finalised. 27 The prospects of success in the
22 Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (AD) at 119H to 120A (“Wahlhaus”)
23 See Gardiner & Lansdown (6ed) Vol. I, p570.
24 Wahlhaus v Additional Magistrate, Johannesburg (supra) at 120A-C
24 Wahlhaus v Additional Magistrate, Johannesburg (supra) at 120A-C
25 Steytler, Constitutional Criminal Procedure p396, fn 48
26 Wahlhaus at 120B
27 Wahlhaus at 120D-F
16
contemplated review proceedings represent the measure of the strength or
otherwise of the alleged right being advanced in the review.28
[55] Having considered what was held in Wahlhaus, the poor prospects of
success in the review for all the reasons advanced above, the applicant has failed to
meet the threshold of a prima facie right although open to some doubt.
[56] However, the applicant has further difficulties associated with meeting the
requirements for an interim interdict in these circumstances.
APPREHENSION OF IRREPARABLE HARM
[57] Putting aside the applicant’s complaint regarding the procedure which was
followed in the adjudication of the fourth respondent’s application in terms of s158,
the essence of the applicant’s submission as to the anticipated harm is that his fair
trial right will be compromised by not being able to test the cogency of the evidence
associated with the complainant’s mental anguish and his ability to confront his
accuser, the minor child complainant, directly in court through cross examination.
[58] The fundamental flaw in this submission is that the applicant’s fair trial right
is not absolute, in the sense that the legislature has already codified an inroad into
that right by the enactment of ss153, 158 and 170A, respectively. Provided a court is
satisfied that the jurisdictional facts are present, the said subsections empower a
judicial officer to make such rulings which may negatively impact upon an accused
right to conduct the proceedings in open court and to face his accuser in court.
[59] However, as was pointed out in Wahlhaus and many judgments subsequent
thereto, it not irreparable harm to have had the second respondent issue an
objectionable ruling which an accused believes is to form the subject of a review, in
that that right of review remains extant, and the accused would be entitled to raise
that in any review or appeal at the end of the day if he is convicted. Moreover, the
that in any review or appeal at the end of the day if he is convicted. Moreover, the
complaint advanced by the applicant is one that is a projection, at best, namely there
28 Ladychin Investments (Pty) Ltd v South African National Roads Agency Limited & Others 2001 (3) SA 344 (N)
at 353 F-G
17
is an apprehension that his fair trial right will be compromised. However, one cannot
lose sight of the peculiar facts of this matter, namely that his legal representative will
be entitled to cross -examine the complainant, without the intervention or filter of an
intermediary, in terms of section 170A . It is direct cross -examination albeit through
the medium of CCTV.
[60] Accordingly, the balance of convenience does not favour the applicant in
these circumstances.
ABSENCE OF ALTERNATIVE REMEDY
[61] I have already mentioned that the applicant does have an alternative
remedy, namely if he wishes to persist in challenging the ruling upon the basis that it
constitutes an irregularity that vitiates his fair trial right, then he is at liberty to raise
that in either review proceedings or an appeal in the event that he is convicted in the
court below.
[62] Mr Snyman submitted that, that does not constitute an alternative relief to
urgent relief w hich the applicant now seeks in this application. I disagree. T hat
contemplates a piecemeal approach to the litigation which should not be permitted
for the reasons advanced above.
[63] In the result, the applicant does have alternative remedy.
CONCLUSION
[64] The applicant has failed to establish any of the requirements for an interim
interdict in the circumstances and his application falls to be dismissed.
COSTS
[65] Ordinarily, costs would follow the result. However, in this application, it is
necessary to make mention of several disturbing features that played a part in the
18
application, which impact upon the exercise of my discretion in the award of costs for
the application.
[66] Firstly, the applicant saw fit to include the identity of the complainant, a minor
child, in circumstances where the second respondent had already granted an order
to preserve her identity by directing that the trial be heard in camera, as
contemplated in s153 of the CPA.
[67] When I inquired as to the reason why the complainant’s identity was
disclosed in the founding papers, I received a glib response from the applicant’s
counsel, to the effect that there was no order preventing them from disclosing the
identity and that it was not done with any malicious intent.
[68] Secondly, the first, third and/or fourth respondents, represented through the
offices of the state attorney, saw fit to attach various pleas, in terms of s105A of the
CPA, which form the subject of plea negotiations between the applicant and the
prosecution authorities, which have proven to be unsuccessful. However, it is
unclear whether this was done in an attempt to influence th is court by putting
evidence forward that the applicant was prepared to plead guilty to the two charges
albeit subject to a proposed sentence . However, more importantly, that affidavit,
replete with the s105A pleas attached as annexures, appears to have been served
on the second respondent, who is the presiding Magistrate in the trial. Much was
made of this by the applicant’s counsel and this may well form the subject of a
recusal application in the trial. It is not a matter on which I am to rule; However, this
approach is to be deprecated as the pleas ought to have played no part in an
adjudication of the issues which arise in this application, save that they now impact
upon a consideration of an appropriate costs order.
[69] Both parties are at fault for these infractions, as a consequence of which I
am disinclined to grant an order for costs in favour of the respondents despite their
am disinclined to grant an order for costs in favour of the respondents despite their
success in opposing the application.
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ORDER
[70] Accordingly, I make the following order:
[70.1] The application is dismissed.
[70.2] There is no order as to costs.
__________________
SAKS AJ
Appearances:
For the Applicant: C.E. Snyman
Instructed by: Karl Van Der Merwe Attorneys
c/o Henwood Britter & Caney Attorneys
For the Third Respondents: F. Abraham
Instructed by: The State Attorney, KwaZulu-Natal
Date matter heard: 23 January 2026
Date judgment delivered: 13 February 2026