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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2025/145669
In the matter between:-
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
DIRECTOR OF PUBLIC PROSECUTIONS , NORTH
GAUTENG
and
R DU PLESSIS
CONRAD PRETORIUS
AFRIFORUM NPC
In re:
R DU PLESSIS
and
1st Applicant
2nd Applicant
1st Respondent
2nd Respondent
3rd Respondent
Applicant
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 1st Respondent
CONRAD PRETORIUS 2nd Respondent
YES
YES
NO
NO
2
AFRIFORUM NPC
DIRECTOR OF PUBLIC PROSECUTIONS,
NORTH GAUTENG
3rd Respondent
41h Respondent
This judgment is handed down electronically by circulation to the parties email
addresses. The date of the judgment is deemed to be 9 February 2026.
Reid J
Introduction
JUDGMENT
[1] This is the return date of a rule nisi order that was issued on 25 August
2025 by Millar J on an urgent, ex parte and in camera basis (the order).
The matter before this Court also includes a reconsideration application
of the order in terms of Rule 6(12)(c) of the Uniform Rules of Court.
[2] The order suspends a decision made on 21 August 2025 by the National
Director of Public Prosecutions (for ease of reference, the National
Prosecuting Authority (NPA)) to institute criminal prosecution for the
charge of attempted murder against the applicant, pending the
finalisation of a review application against that decision.
[3] The nub of the order reads:
"That first respondent (NPA) be prohibited from taking any further
3
steps of any nature whatsoever, to execute its decision that was
taken on 21 August 2025, by the fourth respondent (OPP) to
prosecute the applicant for attempted murder, pending a review
application of that decision to be instituted by the applicant within
15 days from date of this order."
[4] The following parties are involved:
4.1. The applicant, Mr. Roelof du Plessis (du Plessis). He is a senior
counsel advocate (SC) practicing at the Pretoria Association of
Advocates. Du Plessis is potentially facing prosecution for
attempted murder.
4.2. The State Prosecution Authorities (holistic referred to as the
National Prosecuting Authority= NPA), which are:
4.2.1.
4.2 .2.
4.3.
The National Director of Public Prosecutions (NDPP); and
The Director of Public Prosecutions for North Gauteng (OPP).
The complainant in the criminal matter, Mr. Conrad Pretorius, and
his wife who was a witness to the incident (Mrs Pretorius). Where
I refer to Pretorius, it will be in reference to Mr Pretorius.
4.4 . The applicant also cites a third party as a pivotal role player, being
AfriForum NPC, a non-profit company (AfriForum). The applicant
claims that AfriForum is the driving force behind the decision to
prosecute him. AfriForum has been cited as a party to these
4
proceedings and filed a notice to abide by this Court's decision.
AfriForum also filed an "explanatory affidavit", to which I will refer
hereunder.
[5] To avoid confusion and due to the different citations of the parties in the
rule nisi and in the reconsideration applications, I will refer to the parties
by their respective identities instead of citations.
[6] The review application against the decision of the NPA to institute
criminal proceedings against du Plessis, has been instituted by du
Plessis and is opposed. The documents of the review application,
including the record, are included in the papers before this Court.
[7] It serves to emphasise that the review application itself is not before this
Court for determination. The review application is only relevant in as far
as it relates to prospects of success of du Plessis proving a prima facie
right in relation to the confirmation of the interim order to prevent
prosecution of the criminal matter, pending the outcome of the review
application.
[8] The issues before this Court engage several intersecting legal principles:
8.1. The constitutional and statutory mandate of the NPA to prosecute
without fear, favour or prejudice (section 179(2) of the
5
Constitution of the Republic of South Africa 108 of 1996 (the
Constitution); section 32(1 )(a) of the National Prosecuting
Authority Act 32 of 1998 (NPA Act) and section 22 of the NPA
Act relating to the powers, duties and functions of the NPA.
8.2. The separation of powers and the need for judicial restraint when
asked to interfere with executive functions.
8.3. The right to a fair trial and the limited circumstances in which a
prosecution may be stayed.
8.4. The scope of the audi alteram partem principle in prosecutorial
decision-making.
(9] The crisp question before this Court is whether an accused is entitled to
the content of all the representations made to the NPA, and legally
entitled to an opportunity to respond to all the representations made to
the NPA prior to the NPA making a decision as envisaged in Section
22(2)(c) of the NPA Act, read together with the Constitution.
Factual background
(1 O] On an evening in September 2023, there was a road rage altercation
between Roelof du Plessis (then about 60 years old) and Conrad
Pretorius (then about 30 years old). Both men were crossing an
intersection with non-working traffic lights due to load shedding. Du
Plessis's vehicle was nearly hit, or was hit, on the rear bumper.
6
[11] Du Plessis followed Pretorius to obtain his license plate number. Both
vehicles came to a stop in a cul-de-sac. Pretorius alighted his vehicle
and approached du Plessis, who then got out of his vehicle. When
Pretorius approached him, du Plessis pushed Pretorius away. In
response, Pretorius punched du Plessis with a clenched fist. Du
Plessis fell to the ground, and Pretorius fell on or with him. Du Plessis
states that he was briefly knocked unconscious when his head hit the
ground. When he came to, Pretorius was still assaulting him with
clenched fists. While on the ground, du Plessis used a pocket knife
and stabbed Pretorius twice.
[12] Both men respectively went to the hospital.
12. 1. Pretorius was hospitalised for approximately a week to treat his
stab wounds.
12.2. Du Plessis was admitted for obseNation to check for a
concussion or head injury. He was treated and discharged later
that same evening.
[13] The core facts of the physical fight are disputed, but it is agreed that it
escalated from a traffic incident to a physical fight, ending with du
Plessis stabbing Pretorius twice. One stab wound was in the neck
whilst the other was in Pretorius's upper thigh.
[14] Criminal charges followed against both du Plessis and Pretorius
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respectively.
14.1. Du Plessis was charged with attempted murder in Brooklyn South
African Police Service Case No: 169/08/2023, Pretorius being the
complainant.
14.2. Pretorius was charged with assault with intention to inflict grievous
bodily harm under Brooklyn GAS 51/08/2023, du Plessis being the
complainant. The charges in respect of Pretorius have been
provisionally withdrawn.
[15] Initially, in 2023, the NPA decided to not prosecute du Plessis for
attempted murder, but to prosecute Pretorius for assault. The reasoning
behind the decision was that du Plessis used his pocket-knife in self
defense against the attack of Pretorius.
[16] A media hype followed in which the media (mostly Maroela Media,
alleged by du Plessis to be backed by AfriForum) accused the judiciary
of protecting "one of their own" in that the prosecuting authority failed to
prosecute du Plessis for attempted murder or any other criminal charge.
[17] During 2024 AfriForum , representing Pretorius, made repeated
representations to the NPA, criticising the decision to not prosecute du
Plessis but to prosecute Pretorius. On 31 January 2025, the
NPA directed the matter to mediation. This process was unsuccessful.
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[18] On 21 August 2025, and in terms of section 22(2)(c) of the National
Prosecuting Authority Act 32 of 1998 (NPA Act), the NPA self
reviewed their earlier decision and on 20 August 2025 elected to
prosecute du Plessis for attempted murder. The correspondence from
the NDPP relating to the decision reads as follows:
"In making my final decision in this matter, I have duly considered
the prima facie evidence per Brooklyn GAS 51/08/2023 and
Brooklyn GAS 169/08/2023, the respective representations
received, referred to above, and the reports of the OPP.
The central issue in this matter is who acted unlawfully in
attacking whom and in this regard, whether Adv. Du Plessis acted
in private defence when he twice stabbed Mr. Pretorius with his
(I.e. Adv. Ou Plessis'? pocketknife.
It is my considered view that the prima facie evidence and the
probabilities emerging from the case as a whole show that Adv.
Du Plessis did not act in private defence when he attacked Mr.
Pretorius with the knife, and indeed, that Adv. Ou Plessis acted
unlawfully when he twice stabbed Mr. Pretorius.
Furthermore, the nature of the stab-wounds inflicted on Mr.
Pretorius prima facie show that Adv. Du Plessis committed the
crime of Attempted Murder when he stabbed Mr. Pretorius.
I have accordingly Instructed the present Acting OPP: Gauteng.
Pretoria, Adv. M. Jansen van Vuuren, to institute a prosecution
against Adv. Du Plessis in the Regional Court on a charge of
Attempted Murder.
I have also accordingly reviewed the decision of the OPP:
Gauteng, Pretoria, dated 3 October 2023, to decline the
representations of Mr. Pretorius and to proceed with a
prosecution against Mr. Pretorius on charges of Assault and
Malicious Injury to Property. My decision is that the said
prosecution against Mr. Pretorius must not be proceeded with."
9
[19] This decision came after representations were made by AfriForum to the
NPA. Du Plessis contend that the representations contain a strong, one
sided attack on himself and a new, more damning version of events from
Mr. and Mrs. Pretorius. He was never privy of these new allegations,
and the NPA never granted him an opportunity to respond to these new
allegations. It is argued on behalf of du Plessis that the contradicting
versions of Mr and Mrs Pretorius, the contradicting evidence of Mrs
Pretorius in her 2 statements, and his (du Plessis's) answer to these new
allegations, would have resulted in a decision to not prosecute him. As
such, so the argument goes, he should not be charged with attempted
murder as he was never given the audi a/teram partem right to answer
the new allegations.
[20] Pretorius instituted a civil claim for damages against du Plessis for R12
million on the basis of, inter a/ia, injuries suffered. It is stated by du
Plessis that the process of mediation, as directed to by the NPA in 2025,
was used by Pretorius as an instrument to scare du Plessis with a civil
suit, and to establish whether Pretorius could "buy" du Plessis's silence
about the incident. This is denied by Pretorius.
[21] Before the criminal prosecution could commence, du Plessis launched
an urgent ex parte application, obtaining the order that effectively stays
the prosecution pending a review.
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Du Plessis's case
[22] It is du Plessis's case that the self-review of the initial decision to not
prosecute him, was illegal because the NPA failed to consult the
Gauteng Director of Public Prosecution (OPP) and failed to give him (du
Plessis) a proper chance to respond to the damaging new allegations in
AfriForum's representations.
[23] AfriForum 's representations were not made available to du Plessis by
the NDPP, but only came to light as an annexure to AfriForum's
explanatory affidavit filed in the application.
[24] Du Plessis's position is that the interim order should be confirmed on the
basis that the NPA's decision is unlawful in that it violates constitutional
procedures and natural justice. Allowing a prosecution based on this
decision would violate his fundamental rights to liberty and dignity while
the review, which (so he argues) has high prospects of success, is
pending.
[25] Du Plessis further claims the allegations in AfriForum's representations
are factually flawed and contradict earlier police statements. He holds
the view that the interim interdict should be confirmed because the
prospects of success in his review application against the decision of the
NPA to prosecute him, is very strong and will likely succeed, resulting in
11
the pending current prosecution being unlawful.
[26] The argument of du Plessis is that the boundaries of self defence can
not be overstepped in the absence of an assault.
[27] According to du Plessis, the nature of the injuries cannot play a role as
he had no intention to injure Pretorius but only to get him to stop
assaulting du Plessis. Du Plessis states that he did not even know
whether the use of the knife could cause any harm as he only used it in
self- defence. In making these statements, Du Plessis ventures in the
merits of the criminal case. Whether there was intent, or whether his
actions were self-defence, are issues that is to be determined by the
criminal court in criminal proceedings. It has no place for this Court to
interfere with the decision of the NPA on the basis of triable merits in the
criminal matter.
[28] Du Plessis states that prominent members in AfriForum have a personal
vendetta against him, which originated in 2011 during the court
proceedings that dealt with the song "Kill the Boer, kill the Farmer". Du
Plessis acted for the Transvaal Agricultural Union as co-plaintiff with
AfriForum. According to du Plessis, Afri-Forum used the platform of the
court to gain additional members during the 3-day hearing. The origin of
the alleged vendetta was du Plessis's being outspoken against
AfriForum abusing the court for ulterior motives. It further escalated
12
when du Plessis greeted Mrs Winnie Madikisela-Mandela and Mr Julius
Malema after the legal proceedings. The gripe between the managers
of AfriForum and du Plessis continued during 2017 with legal
proceedings that are irrelevant to this proceeding.
[29] When the first set of du Plessis's representations were sent to the OPP,
it was apparently circulated by the media and although du Plessis acted
as a judge in 2018, it was widely reported that an Acting Judge is
prosecuted for attempted murder. This, so the argument goes, brought
the judiciary in great disrepute. Du Plessis's good name, character and
reputation as counsel was also damaged.
[30] The Pretoria Bar Council considered taking disciplinary steps against du
Plessis for his involvement in the incident in 2023, but it was not
proceeded with after du Plessis convinced the Bar Council that he was
a State Witness in the process, not an accused (See: Founding Affidavit
of du Plessis, paragraph 54). I will be remiss of my duties in not pointing
out that this is factually incorrect as du Plessis was, in fact, accused of
attempted murder.
National Director of Public Prosecutions
[31] The NPA's position is that the interim order should be set aside and
should not have been granted in the first place. Du Plessis must air his
grievances in the criminal trial court. It is argued that the ex
13
parte application was improper, and interim orders interfering with
prosecutions are only for the "clearest of cases." The NPA insists that
the criminal court is the proper forum and that du Plessis's rights should
be raised there.
[32] The NPA contends that the rule nisi order was granted without proper
grounds for urgency, without justification for ex parte relief, and in a
manner that unlawfully interferes with its constitutional mandate.
[33] The NPA anticipated the return date of the order of Millar J, claiming
the ex parte application was an abuse and lacked urgency. During
October 2025 the matter served before Potteril J, who removed it since
it was incorrectly enrolled. During November 2025 the reconsideration
application served before Jansen van Nieuwenhuizen J, who struck it
from the roll for lack of urgency.
[34] The anticipation of the rule nisi order ended up being heard together with
the reconsideration application currently before this Court. The two
applications morphed together as set out hereunder.
The filing of affidavits with dual purposes and Explanatory Affidavits
[35] The proceedings followed no specific process in as far as the affidavits
and applications were identified and isolated. All counsel agreed that
the review application does not serve before this Court, and the
14
remaining documents of the rule nisi and reconsideration order were to
be considered in toto.
[36] The practical effect of doing this, has the potential to cause unnecessary
pitfalls and confusion in established legal procedures. The founding
affidavit in the reconsideration application was to serve as the opposing
affidavit to the rule nisi. The answering affidavit in the rescission
application was to be considered the replying affidavit in the rule nisi.
This practice must be discouraged in the strongest possible terms.
[37] Legal consequences and inferences are drawn from the documents
before court. For example, the absence of a replying affidavit has a
direct consequence in the outcome of an application. Both counsel
requested in argument that the facts should be considered holistically
without giving credence to the identification of the affidavits. Rule 6 of
the Uniform Rules of Court provides for a founding affidavit, an
answering / opposing affidavit and a replying affidavit to be filed in
specific procedural periods. If an answering affidavit (of the rule nis1) is
found in the founding affidavit (of the reconsideration application), as in
this case, the litigating party should file an affidavit titled answering
affidavit and refer to the content of the founding affidavit of the
reconsideration application to be considered as the content of the
answering affidavit.
15
[38) The absence of following established procedure as described in the
Uniform Rules, is an invitation to a muddled legal process; which should
be discouraged.
[39) The "explanatory" affidavit as filed by AfriForum is a new creature that is
developing in our courts. The status there-of is unclear. It is not an
opposing affidavit, but the party filing same wishes it to be taken into
consideration in determination of the application. In my view, an
explanatory affidavit should only be filed if a party that is before Court
has to explain something to the court which would not be proper in a
founding or answering affidavit. This should only be in exceptional
circumstances.
[40) Where a party is before Court, and abides by the decision of the Court, I
hold the view that it should not be allowed to file affidavits that may
influence the outcome of the proceedings. One example for the
reasoning of my view, is the costs implications involved in litigation.
When a party files an explanatory affidavit that influences the ultimate
decision of the court, the consequences are unclear: is such a party to
be included in an adverse cost order? Furthermore, are parties that are
referred to in the explanatory affidavit, under any obligation to answer to
allegations made in the explanatory affidavit? Explanatory affidavits
often find itself to bamboozle the legal process before court.
16
[41] Explanatory affidavits should only be filed in circumstances where an
explanation is required that would not influence the reasoning of the
court, and that would not call for any party to answer to the explanatory
affidavit.
Applicable legislation
[42] Du Plessis argues that the decision to prosecute him was unlawful as
the Constitution provides in section 179(4) that National Legislation must
ensure that the prosecuting authority exercises its functions without fear,
favour or prejudice and those principles are echoed in the legislation
applicable to the NPA. He alleges that did not happen.
[43] Section 179(5)(d) of the Constitution provides that the NDPP may review
a decision to prosecute or not to prosecute, after consulting the relevant
Director of Public Prosecutions and after taking representations within a
period specified by the NDPP, from the following:
43.1. the accused person.
43.2. the complainant.
43.3 . any other person or party whom the national director considers to
be relevant.
[44] The process is administrative and not judicial. While fairness is
required, it does not entail full disclosure akin to civil discovery or the
17
right to cross-examine. The NPA has a discretion in managing such
representations, balanced against its duty to act independent and
efficiently .
[45] Du Plessis argues that, in this matter, it does not appear that there
was any consultation with the relevant Director of Public Prosecutions
which would include the Provincial Director and the district court
prosecutor, and it does not appear from the letter giving reasons for
the decision. That also makes the decision unlawful.
[46] Du Plessis argues furthermore that AfriForum is not a relevant person
that could have made representations to the NDPP under the
circumstances of this matter, and their representations should not
have been considered at all.
[47] Section 12(2)(c) of the NPA Act echoes section 179(5)(d) of the
Constitution and permits the NDPP to review a decision to prosecute
after taking representations from "the accused person, the
complainant and any other person or party whom the national director
considers to be relevant."
Prosecutorial Independence and the Separation of Powers
[ 48] Section 179(2) of the Constitution vests the power to institute criminal
proceedings in the prosecuting authority. This power is integral to the
18
executive function and is protected by the principle of prosecutorial
independence.
[49] As emphasised in Sanderson v Attorney-General, Eastern Cape 1998
(2) SA 38 (CC), courts must be slow to intrude upon this terrain. The
appellant in Sanderson sought a permanent stay of prosecution on the
basis that an unreasonable delay in his prosecution violated this
constitutional rights.
[50] Sanderson expanded the scope of section 25(3)(a) of the Constitution to
protect non-trial-related interests such as liberty, security, and social
prejudice. Sanderson also remains a foundational precedent on the right
to a speedy trial in South African constitutional law, balancing individual
rights against the public interest in effective criminal prosecution.
[51] The Constitutional Court in National Treasury and Others v Opposition
to Tolling Alliance and Others 2012 (6) SA 223 (CC) reiterated that
interim interdicts restraining state organs from performing statutory or
constitutional duties should be granted only in the clearest of cases and
where unlawfulness, fraud, corruption or manifest irrationality is shown.
[52] Section 179(2) of our Constitution is emphatic: "The prosecuting
authority has the power to institute criminal proceedings on behalf of the
State and to carry out necessary functions incidental to instituting
19
criminal proceedings."
[53] In Mapisa-Nqakula v National Director of Public Prosecutions and others
2024 JDR 1749 (GP) the facts are similar to this application. The
following was held by Potteril J:
"[5] The first issue the Court has to decide is urgency. The
grounds for the accelerated or anticipated urgency application is
set out as that the unlawful arrest is imminent and it intended to
take the applicant and her attorney by surprise. The imminent
arrest will harm the applicant's dignity, as a normal citizen, and
under the Constitution of the Republic of South Africa: "Merely by
virtue of her office and status as Speaker of Parliament." It is
further averred that there has been constant and unrelenting
attempts by the state to arrest, despite the necessary threshold to
arrest her, let alone charge a statutory and constitutional
authority. In this case one of the three most important
functionaries appointed in terms of the Constitution of the
Republic of South Africa.
[6] It is further set out that the state's case is underpinned by an
underwhelming weak investigation and riddled with irregularities
which could never justify the infringement and imperilment of the
applicant's constitutional rights; let alone the applicant's position
as the Speaker of the Parliament."
[54] In the ratio decidendi of the Mapisa-Nqakula matter, Potteril J found:
[20] It is most certainly not within the power of this Court to
instruct the Minister and his officials to summons the
applicant versus to arrest her. There is in anyway no such
prayer sought in the application before me. I cannot find
this, firstly, because there are no grounds set out as to why
this should be done, except that the applicant's standing in
society and her dignity. The NDPP has stated, under oath,
that her attorney can take her to Lyttleton Police Station
and her attorney can take her to the court. This is already
20
a courtesy and an exception to what ordinary citizens are
afforded.
[21] There is not a single fact set out as to why the future arrest
will be unlawful. Seemingly because there is a weak case
made out. Yet, the applicant does not know what case has
been set out and this is pure speculation. I can make no
finding on such speculation that there will be an unlawful
arrest or that there is a weak case. These facts cannot
underpin urgency.
[22] The respondents argued that it would not be competent
for this Court to interdict an arrest. I am in full
agreement with this submission. Not on the facts
presented, but more importantly, a Court has to take
cognisance of the fact that if the Court grants such an order
the floodgates will be opened. Every suspect will be in a
position to approach a Court, on an urgent basis, setting
out on speculation that there is a weak case against it and
interdict an arrest.
Any suspect would merely have to set out in a founding
affidavit that the arrest in future will be unlawful. The whole
criminal justice system will fail and will be controlled by
suspects."
(own emphasis)
[55] As mentioned above, Du Plessis claims that any arrest would be unlawful
on the basis that the process in deciding to prosecute, contravenes the
audi alteram partem rule, and secondly, on the basis that AfriForum is
not a competent party to make submissions on behalf of a complainant
(or any other party) in terms of section 22(2)(c) of the NPA Act read with
section 179(5)(d) of the Constitution. I disagree.
[56) I am of the view that the legislature clothed the NPA with the authority to
21
prosecute and to take any information presented to it, into account. The
legislature could not have intended to limit the powers of the NPA, in
deciding whether to prosecute or not, to receiving representations of only
certain categories of people. To ensure that criminal proceedings will be
fair and fruitful, the NPA is entrusted with this responsibility.
[57] The order granted on 25 August 2025 effectively suspends the NPA's
constitutional duty to criminally prosecute, pending a civil review of the
decision to prosecute. It constitutes a judicial pre-emption of a core
executive function and, absent compelling evidence of irreparable trial
prejudice or ma/a tides, cannot be justified.
Equality before the law
[58] Equality before the law is a dual principle that a) the law must be
applied impartially and procedurally fairly to every person, and b) the law
itself must provide equal protection and not create arbitrary or unjustified
distinctions between people. It is the bedrock of democratic justice,
designed to prevent privilege and oppression by ensuring all are subject
to the same fair rules.
[59] The rule of law requires that all persons be treated equally before the
courts and that the criminal justice system operates without fear or
favour.
22
[60] Du Plessis invokes his right to dignity and privacy, arguing that
prosecution would damage his reputation and subject him to public
scrutiny. While these rights are important, they are not absolute. The
public interest in the prosecution of alleged crimes, the principle of
equality before the law, and the constitutional mandate of the NPA must
be balanced against individual reputational concerns. In most cases,
as Sanderson confirms, the social prejudice of being accused is an
inherent burden of the criminal process, not a basis for its interruption.
[61] In Sanderson , the Constitutional Court underscored that a stay of
prosecution is a "radical" remedy, "far-reaching" and "seldom warranted
in the absence of significant prejudice to the accused." The Court
identified three categories of prejudice: liberty, security, and trial-related
interests. Only where delay or procedural unfairness results in
irreparable trial prejudice-or in exceptional circumstances where non
trial prejudice is overwhelming-may a stay be justified.
[62] Du Plessis has alleged social prejudice, reputational harm, and anxiety.
However, as Sanderson makes clear, these forms of prejudice, while
real, do not ordinarily justify a stay of prosecution. The proper forum for
addressing his complaints is the criminal trial itself, where he may
present his defence and challenge the evidence against him.
[63] Despite significant social prejudice against du Plessis, this Court's duty
23
is to balance the rights of du Plessis, and Pretorius, against societal
interests in the execution of justice. Social prejudice (embarrassment,
anxiety, reputational harm) is present due to the seriousness of the
charge and the publicity of the developments in the matter. The adage is
apt that "justice is not only to be done but must be seen to be done."
Urgency and Ex Parte Relief
[64] Rule 6(12) requires an applicant for urgent relief to demonstrate that he
cannot obtain substantial redress in the ordinary course. Du Plessis's
claim of urgency was based on speculation that he would be arrested
with "huge fanfare" and that AfriForum would publish prejudicial articles.
These fears were not substantiated by evidence of imminent arrest or
any NPA policy of sensationalist arrests.
[65] During argument, it was submitted by Adv van der Merwe SC that the
documents in the review application refer thereto that du Plessis was
arrested in this matter, which was the basis for the fear of a further arrest.
Adv van der Merwe SC referred to annexures of the review application.
As mentioned, the review application is not before this Court. It also did
not serve before the court that made the urgent order on 25 August 2025.
[66] As such, it cannot be taken into consideration in this judgment.
24
Requirements of an interim interdict:
Prima facie right
[67] Du Plessis argues that he has a prima facie case for review of the
decision of the first respondent to prosecute me. In addition, he also has
a prima facie case to have his good name, reputation and character
protected, as well as the reputation of his profession, and to have the
Judiciary protected against attacks from AfriForum. He states that
AfriForum drives the matter in a personal attack against him.
[68] Du Plessis failed to show a prima facie right. His complaint lay against
the decision to prosecute him, yet the Constitution vests that discretion
in the NPA. At best, du Plessis raises a disagreement with the
prosecutorial assessment, which does not constitute a legally
protectable right capable of sustaining interim relief.
Irreparable Harm
[69] Du Plessis argues that he stands to suffer irreparable harm and damage
to his good name and reputation in the profession if the same defamatory
allegations as was made in 2023 are to be made in the press.
[70] In addition, his enemies in the Bar who wanted to take disciplinary steps
against him will not waste time to do so and his practice as senior
counsel may suffer irreparable harm.
25
[71] The harm alleged was speculative (possible arrest and adverse publicity)
neither of which amounts to irreparable prejudice. Any harm flowing from
a criminal charge can be addressed in the criminal trial itself, where he
may advance his full defense and vindicate his rights.
[72] In the result, du Plessis failed to show irreparable harm.
Balance of convenience
[73) Du Plessis argues that the balance of convenience is in his favour as his
name and reputation will be damaged, whereas there is no harm for the
prosecution should the interim interdict be granted. Mr du Plessis
invokes his right to dignity and privacy, arguing that prosecution would
damage his reputation and subject him to public scrutiny.
[74] While these rights are important, they are not absolute. The public
interest in the prosecution of alleged crimes, the principle of equality
before the law, and the constitutional mandate of the NPA must be
balanced against individual reputational concerns.
[75] The public interest in ensuring that prosecutions proceed without undue
interference outweighs the personal anxiety or inconvenience of an
accused person who has adequate remedies in the criminal courts. The
order granted has the effect of suspending prosecution of du Plessis. It
has the potential to undermine public confidence in the rule of law.
26
(76] In most cases, as Sanderson confirms, the social prejudice of being
accused is an inherent burden of the criminal process, not a basis for its
interruption of the criminal process.
(77] In the result, the balance of convenience favours the NPA.
Alternative remedy
[78] Du Plessis has an adequate alternative remedy at his disposal, namely
the criminal trial process itself. He could raise all his defences before the
criminal trial court, and if dissatisfied with the prosecutorial decision, he
retains the right to review the process in due course.
Conclusion
[79] Du Plessis was given notice of the review of its decision by the NPA and
invited to make representations. He did so. The fact that he was not given
the other party's representations does not, in itself, render the process
unfair. The NPA's obligation is to consider the matter impartially, not to
facilitate a full adversarial exchange.
[80] Moreover, the explanatory affidavit filed by AfriForum-though not
strictly necessary given its notice to abide-does not demonstrate
procedural unfairness. Its purpose appears to be to clarify AfriForum's
role and to rebut allegations of malice. It does not expand the case
27
against du Plessis in a manner that required his (du Plessis's) prior
comment.
[81] The rule nisi order granted on 25 August 2025 should be discharged. If
confirmed, It has the potential to undermine the constitutional separation
of powers and encroaches on the NPA's independence. Du Plessis has
adequate remedies: he may raise his defences in the criminal trial and,
if appropriate, pursue a review of the prosecutorial decision in due
course.
(82] The interim interdict effectively amounts to a stay of prosecution without
the requisite showing of irreparable trial prejudice. This is contrary to the
principles in Sanderson and Mapisa-Nqakula in addition to the NPA
legislation and the constitutional framework governing prosecutions.
Order
(83] In the result, the following order is made:
i) The rule nisi order granted by this court on 25 August 2025 under case
number 2025-145669 is discharged with immediate effect.
ii) The reconsideration application is successful and the order dated 25
August 2025 is set aside.
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iii) The first respondent, Mr Roelof du Plessis, is to pay the costs of the rule
nisi and the reconsideration application, including the costs of two
counsel where employed.
FM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION
SEA TED IN GAUTENG DIVISION
PRETORIA
DATE OF ARGUMENT: 26 JANUARY 2026
DATE OF JUDGMENT: 9 FEBRUARY 2026
APPEARANCES :
FOR THE APPLICANT (DU PLESSIS) ADV JL (MAC) VD MERWE SC
ADV DC DU PLESSIS
INSTRUCTED BY: JACQUES CLASSEN INC ATTORNEYS
CNR OF FLINDERS LANE & LYNNWOOD
ROAD
LYNNWOOD PRETORIA
TEL: 012 942 94 76
EMAIL: jacgues@propdevlaw .co.za &
gen@propdev law.co.za
Ref: JA CLASSEN/JC/GB/RDP1-0009
FOR THE RESPONDENTS:
INSTRUCTED BY:
AND TO:
29
ADV N CASSIM SC
ADVJJANSEVANRENSBURG
THE STATE ATTORNEY
ATTORNEY FOR THE FIRST AND
SECOND APPLICANT
316 THABO SEHUME STREET
PRETORIA CENTRAL PRETORIA
REF: MS A MOODLEY-3342/2025/210
Email address: Arimoodley@justice.gov.za
HURTER SPIES ATTORNEYS
REPRESENTING CONRAD PRETORIUS
AND AFRIFORUM
SECOND FLOOR, BLOCK A, LOFTUS
PARK 416
KIRKNESS STREET ARCADIA PRETORIA
REF: WSPIES