REPORTABLE: NO
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA
(1)
(2)
(3)
OF INTEREST TO OTHER JUDGES: NO
REVISED: NO
SIGNATURE DATE 17/02/2026
In the matter between:
HENDRY DLAMINI
and
HONOURABLE ROELOFSE , AJ
THE DIRECTOR OF PUBLIC PROSECUTIONS ,
MPUMALANGA DIVISION
SOUTH AFRICAN POLICE SERVICE, MBOMBELA
CASE NO: R0S/2025
(A82/2024)
APPLICANT
1st REPSONDENT
2ndRESPONDENT
3rd RESPONDENT
2
This judgment was handed down electronically by circulation to the parties and/or parties’
representatives by email. The date and time for hand-down is deemed to be 17 February
2026 at 10:00.
______________________________________________________________________
ORDER
______________________________________________________________________
1. The matter is removed from roll.
2. The judgment is to be brought to the attention of the attorney for the applicant,
(Marthinus Boshoff Attorney) as well as the National Prosecuting Authority, Mpumalanga
Division.
REVIEW JUDGMENT
P Venter, AJ
Introduction
[1] “Truth is ever to be found in simplicity, and not in the multiplicity and confusion of
things.” -Isaac Newton
[2] This judgment is not aimed at addressing the merits of the applicant’s prayers. It
is aimed at addressing the question of whether the Local Division of the High Court has
jurisdiction to entertain a review in respect of a finalised criminal matter from its own
Division. This applicant has now featured before this Division on a number of procedural
platforms, some running parallel with one another, all stemming from the same origin. It
is necessary to reflect on the history of the procedures in a time sequence.
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[3] The origin from which it was spawned is a criminal matter CC26/2023 which served
before the first respondent, in this High Court Division. The accused was convicted on a
charge of Murder r/w the provisions of s51(1) of the Criminal Law Amendment Act 1997,
(Act 105 of 1997) and to a second charge of Attempted Murder. He was sentenced on
the 20 th March 2024, to life imprisonment on the murder charge in terms of s51(1) r/w
Part I schedule 2 of the Criminal Law Amendment Act 1997, (Act 105 of 1997) and to 10
years imprisonment on the second charge of attempted murder . The term of
imprisonment on the second count was ordered to run concurrently with the life
imprisonment imposed on the first count.
[4] When an accused is not satisfied with the final result of a criminal trial in the High
Court, he usually would follow the established process of appeal set out in s315 and s316
of the Criminal Procedure Act,1977 (Act 51 of 1977 ), with s316 being the point of
departure.
[5] In terms of the Criminal Procedure Act,1977 (Act 51 of 1977)
s315. Court of appeal in respect of superior court judgments.
(1) (a) In respect of appeals and questions of law reserved in connection with
criminal cases heard by a High Court, the court of appeal shall be the Supreme
Court of Appeal, except in so far as subsections (2) and (3) otherwise provides.
(2) (a) If an application for leave to appeal in a criminal case heard by a single
judge of a High Court (irrespective of whether he or she sat with or without
assessors) is granted under section 316, the court of judge or judges granting the
application shall, if it, he or she or, in the case of the judges referred to in
subsections (12) and (13) of that section, they or the majority of them, is or are
satisfied that the questions of law and of fact and the other considerations involved
in the appeal are of such a nature that the appeal does not require the attention of
in the appeal are of such a nature that the appeal does not require the attention of
the Supreme Court of Appeal, direct that the appeal be heard by a full court.
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[6] Before engaging in the s315 procedure, the applicant first needs to obtain leave to
appeal. The a pplications for condonation, leave to appeal and further evidence is
governed by section 316 (Act 51 of 1977):
(1) (a) Subject to section 84 of the Child Justice Act, 2008, any accused convicted
of any offence by a High Court may apply to that court for leave to appeal against
such conviction or against any resultant sentence or order.
[7] The above process in the Criminal Procedure Act 1977, (Act 51 of 1977) is virtually
copied in the Superior Courts Act, 2013 (Act 10 of 2013).
Section 16. Appeals generally
(1) Subject to section 15(1), the Constitution and any other law—
(a) an appeal against any decision of a Division as a court of first instance lies,
upon leave
having been granted—
(i) if the court consisted of a single judge, either to the Supreme Court of Appeal
or to a
full court of that Division, depending on the direction issued in terms of section
Section 17(6);
or
(ii) if the court consisted of more than one judge, to the Supreme Court of Appeal;
[8] Section 17(6)(a) (Act 10 of 2013):
If leave is granted under subsection (2)(a) or (b) to appeal against a decision of a
Division as a court of first instance consisting of a single judge, the judge or judges
granting leave must direct that the appeal be heard by a full court of that Division,
unless they consider—
(i) that the decision to be appealed involves a question of law of importance,
whether
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because of its general application or otherwise, or in respect of which a decision
of the
Supreme Court of Appeal is required to resolve differences of opinion; or
(ii) that the administration of justice, either generally or in the particular case,
requires
consideration by the Supreme Court of Appeal of the decision, in which case they
must direct that the appeal be heard by the Supreme Court of Appeal.
[9] Following his conviction and sentence and feeling displeased with the outcome,
on the 04th October 2024, the applicant lodged an application to the High Court (the trial
court), for a special entry in terms of s317(1) of the Criminal Procedure Act, 1977 (Act 51
of 1977) and condonation for late filing . His prayer was that a special entry be noted to
the Supreme Court of Appeal, on an irregular process of denial of legal representation,
alternatively that a full bench of this Division set aside the conviction and sentence. His
application does not specify in terms of which provision the alternative prayer falls .
Although the remedy he seeks have some characteristics of an application for leave to
appeal, those words never feature in his application, neither is there any judgment
delivered by the court a quo in respect of the granting of leave to appeal.
[10] The grounds for the special entry were the following:
(i) He was refused legal representation and/or not granted an opportunity to
instruct new counsel;
(ii) The accused as a lay person was not provided with copies of the docket
and not given an opportunity to prepare;
(iii) The chain evidence was admitted irregularly by the trial court;
(iv) The evidence of a witness was accepted or admitted without cross
examination;
(v) Sentencing was irregular and not in accordance with the provisions of
s51(1) of the Criminal Law Amendment Act 1997, (Act 105 of 1997);
(vi) The court did not guide the lay person on how to mitigate and obtain a
presentence report.
presentence report.
[11] The respondent (second respondent in this review) opposed the application for a
special entry, stating that it was an abuse of process. The accused made the
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commencement of the trial impossible due to continuous changing of legal
representatives. Even if the refusal of legal representation was irregular, it did not warrant
a special entry to be made.
[12] The court a quo, made an order in granting the recording of a special entry in terms
of s317(1) of the Criminal Procedure Act, 1977 (Act 51 of 1977), on the 16th October 2024
and settled the points of the special entry as envisaged in s317(4).
[13] Following the premeditated course on which the appellant embarked through a
successful s317(1) application, he would in the normal course pursue his appeal with the
Supreme Court of Appeal in terms of s318(1) Criminal Procedure Act,1977 (Act 51 of
1977).
[14] In a surprising change of course, on the 14 th November 2024, through Nkosi TS
Attorneys, he filled a Notice of Appeal in terms of s318(1) r/w s316 of the Criminal
Procedure Act 1977, (Act 51 of 1977) , under A82/2024 at the Local Division of the High
Court, Mpumalanga. He essentially sited the same grounds enunciated in the application
for special entry before the trial court, in his notice of appeal. The appeal was scheduled
to be heard on the 21st February 2025 before a full bench panel of three judges.
[15] After reading the papers in preparation, the office of the Deputy Judge President
(DJP), who was one of the full bench panel, on the 13 th February 2025, sent
communication to the attorneys of the appellant requesting they provide the authority
which vest the Local Division of the High Court with jurisdiction to hear an appeal based
on a special entry in terms of s317(1) of the Criminal Procedure Act, 1977 (Act 51 of
1977). The communication called on the attorneys to respond by the 17th February 2025.
[16] Without responding to the communication form the DJP’s office, the appellant filed
a notice of removal from roll on the 19th February 2025. It followed that at the instance of
the appellant the matter was removed from roll on the 21st February 2025.
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[17] On the 23 rd July 2025, after instructing, Marthinus Boshoff Attorneys, he filed a
review application through notice of motion, under review case R05/25, which is the
matter this court is seized with. His prayer is seeking 1. Condonation for late filing, 2. To
have the conviction in the criminal trial (CC26/2023) set aside, 3. A de novo trial to be
ordered, and 4. That he be given access to the police case docket. From the papers it is
evident that there is no proof of service on any of the respondents.
[18] On the 18 th August 2025, Marthinus Boshoff Attorneys, sent a correspondence
letter to the office of the Judge President (JP), Mpumalanga High Court Division,
requesting for permission to apply for review of the CC26/2023 matter . In the same
communication, he informs the JP that he had already filed a review application with the
registrar who registered a review under number R05/2025. In his correspondence he
narrows down the issues of the review to the refusal by the trial court to grant a remand
to the then accused in order to obtain new legal representation and by doing so deprived
him of having a fair trial. He is of the view that the trial judge’s refusal of a postponement
for legal representation is not appealable and must be taken on review. He also informs
the JP that he is aware of a pen ding appeal in the same matter. This was factually
incorrect, because the appeal had been removed from roll on the 21st February 2025 at
the instance of the appellant.
[19] On the 11 th November 2025, the office of the Deputy Judge President (DJP),
Mpumalanga Division of the High Court, sent a communication to the attorney in respect
of the 18 th August communication, requesting he provide authority permitting criminal
trials finalised in the High Court to be reviewable under the Criminal Procedure Act. The
attorney was directed to respond by the 21st November.
[20] On the 19th November a response was received wherein the attorney indicated he
[20] On the 19th November a response was received wherein the attorney indicated he
cannot refer to any specific provision from the Criminal Procedure Act or Superior Court’s
Act supporting a review procedure of criminal trials finalised in the High Court. He
however referred to two judgments (S v Le Grange 2011(3) SA 92 ( CC); Sizani v Mpofu
2017 (5) SA 577 (GJ), from which he says two separate Local Divisions of the High Courts
considered a review of the conduct of a presiding judge within its own division.
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[21] This court could not find the referred to cases after a diligent search. After a
query was directed at the Attorney to provide correct details of the cited cases or to
forward copies of the cases, the following was provided: Le Grange v The State
(040/2008) [2008] ZASCA 102 (18 September 2008) and an unreported case
Nonthuthuzelo Portia Sizani vs Mpofu N.O. and the Director of Public Prosecutions,
Eastern Cape, (case no 642/2017) dd 12 December 2017 (ECG).
[22] The Le Grange v The State matter is an appeal to the Supreme Court of Appeal
emanating from a conviction and sentence in criminal proceedings before the Northern
Cape High Court Division, Kimberley where the right to a fair trial was challenged
alleging bias conduct by the judicial officer.
[23] The Sizani v Mpofu matter is a review judgment by Pickering J from the Eastern
Cape Local Division of the High Court on the refusal to recuse by an Acting Regional
Court Magistrate from criminal proceedings.
[24] None of the two case references was on the point in issue, addressing the
question by the DJP. More specifically, they do not provide authority for a review.
[25] On the 22 October 2025, in yet another surprising turn of events, the appellant
through the same legal representative, Marthinus Boshoff Attorneys filed another appeal
with the registrar of the Mpumalanga Division of the High Court under inexplicably the
same appeal number A82/2024, which was previously removed from roll on the 21st
February 2025. A date of hearing the appeal was allocated as 06 February 2026.
[26] On the 25th November 2025 he filed a notice of withdrawal of his appeal,
stipulating that the appeal should be brought before the Supreme Court of Appeal in
terms of s318 of the Criminal Procedure Act 1977, Act 51 of 1977.
[27] From acting on advice from two sets of legal representatives, this applicant made
a litany of errors. After electing to follow the special entry process (s317(1) CPA), which
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evidently was successfully granted, s318 of the CPA (Act 51 of 1977) directs the only
forum to hear such special entry is the Supreme Court of Appeal.
[28] Section 318 reads: Appeal on special entry under section 317.
(1) If a special entry is made on the record, the person convicted may appeal to
the Appellate Division against his conviction on the ground of the irregularity stated
in the special entry if, within a period of twenty-one days after entry is so made or
within such extended period as may on good cause be allowed, notice of appeal
has been given to the registrar of the Appellate Division and to the registrar of the
provincial or local division, other than a circuit court, within whose area of
jurisdiction the trial took place, and of which the judge who presided at the trial was
a member when he so presided. (my emphasis)
[29] It is important to be aware of what the Supreme Court of Appeal said in S v Khoza
And Others 2010 (2) SACR 207 (SCA) at par [44] “The grounds open to a trial judge in
refusing to note a special entry are restricted: that the application is not made bona fide;
or that it is frivolous or absurd; or that the granting of the application would be an abuse
of the process of the court.
There is a further ground not expressly mentioned in s 317(1), but inherent in the
section: when the irregularity appears from the record itself the special entry
procedure, whilst convenient, may be unnecessary because of the wide powers of
appeal enjoyed by the SCA in terms of s 316 of the Act.” (my emphasis)
[30] In the matter of Nkabinde v The State (115/17) [2016] ZASCA 75 (01 June 2017)
the SCA remarked as follows when dealing with the provisions of Section 317 at par [27]:
“The purpose of a special entry is to raise an irregularity in connection with or
during the trial as a ground of appeal against conviction under s 318(1) of the Act.
The latter section provides, inter alia, that if a special entry is made on the record, the
The latter section provides, inter alia, that if a special entry is made on the record, the
person convicted may appeal to this Court against his conviction on the basis of the
irregularity stated in the special entry. Recently this Court has held that the sole
purpose of a special entry is to record an irregularity that does not appear on the
10
record. As is shown below, all of the so-called special entries are not proper special
entries but grounds of appeal under s 316 of the Act, because they appear on the
record. Some 60 years ago this Court held that the special entry procedure is of vital
importance and should be utilised where the irregularity does not appear on the
record of the proceedings. So, the statement in the application for leave to appeal to
this Court that a special entry is 'simply a method of applying for an appeal in regard
to irregularities on or off the record' is quite wrong.” (my emphasis)
[31] Whether the refusal of postponement by the trial court in CC26/2023, to allow a
new legal representative to be instructed, appears from the trial transcript, and if it is an
‘irregularity in connection with or during the trial’, is an issue best left to be decided by the
Supreme Court of Appeal. That is not my domain to make any determination on.
[32] The applicant never applied for leave to appeal in terms of s 316 (Act 51 of 1977)
or s17 (Act 10 of 2013) which would have been the most reasonable course of action.
Both the appeals filed, despite never complying with s316 or s17 have been removed
from roll.
[33] The letter directed at the office of the Judge President ( dated 18th August 2025)
seeking permission to apply for a review is not in accordance with any provision in the
Criminal Procedure Act or Superior Court’s Act.
Conclusion
[34] The sole issue that remains to be determined is whether the matter under
R05/2025, is capable of review. Neither the Criminal Procedure Act, (Act 51 of 1977) nor
the Superior Court’s Act, (Act 10 of 2013) makes provision for a review by the Local
Division of the High Court in respect of a matter that has already been finalised by the
High Court. The absence of statutory authority fails to vest this court with jurisdiction to
entertain such a review, since it is procedurally impermissible.
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Order
[ ] In the result, the following order is made
1. The matter is removed from the roll.
2. The judgment is to be brought to the attention of the attorney for the
applicant, (Marthinus Boshoff Attorney) as well as the National Prosecuting
Authority, Mpumalanga Division.
APPEARANCES
Counsel for the Applicant:
Instructed by:
Counsel for the Respondent:
Instructed by:
P VENTER , AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Marthinus Boshoff Attorney
Director of Public Prosecutions,
Mpumalanga Division