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[2026] ZAMPMHC 12
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S v Greyvenstein and Another (Review) (RC12/2025) [2026] ZAMPMHC 12 (20 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG
REVIEW NO: RC12/2025
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE 19-02-2026
M.
MALANGENI
In the matter between:
THE STATE
and
MARIO GREYVENSTEIN
SANDILE KHOZA
REVIEW JUDGEMENT
Malangeni
AJ
[1]
At the request of the Senior Public
Prosecutor, Magistrate TWP Makhunga of the Ermelo Magistrates’
Court referred the following
two cases on special review:
1.1
A529/2024 (State versus Mario Greyvenstein); and
1.2
A76/2025 (State versus Sandile Khoza).
[2]
In respect of the first case (“the
Greyvenstein Case”), the brief history is that:
2.1
The matter was postponed for trial for 4 April 2025. On that date,
the state prosecutor
realised that a foreign interpreter was required
and asked for a postponement for that purpose.
2.2
A date of postponement was agreed upon between the state prosecutor
and the defence attorney.
The court did not seem happy with the issue
of an interpreter. Whilst the Prosecutor was addressing the issue of
the interpreter
further, the court indicated that it had already
removed the matter from the roll.
2.3
The view of the Senior Public Prosecutor is that the Court’s
decision was irregular,
which is why the matter has been sent for a
special review.
[3]
In respect of the second case (“the
Khoza Case”), the brief history is that:
3.1
The case was postponed to 16 April 2025 for a formal bail
application. On that date, the
state prosecutor advised that it was
an opposed Schedule 5 formal bail application, that the investigating
officer was before the
court and further that the bail application
could proceed.
3.2
However, due to the congestion of the roll, a remand of the case was
sought. 3.3 This request
received an objection from the defence
Attorney.
3.4
Instead, the court fixed bail in the amount of R1000.00 (one thousand
rand).
3.5
The Senior Public Prosecutor is of the view that the court had no
discretion to fix bail,
which is why the matter has been referred for
special review.
[4]
The two matters first served before
Phahlamohlaka AJ, as he then was. He asked for an opinion from the
DPP’s Office in terms
of these matters.
[5]
The matters then served before Langa J, who
noticed that Judge Phahlamohlaka’s order in terms of the DPP’s
opinion was
not complied with. He then postponed the matters for such
compliance.
[6]
Currently, this court is in possession of
the opinions from the DPP’s Offices (Middleburg and Mbombela)
in respect of both
cases, and I highly appreciate their kind
assistance herein.
The opinions by advocates from
DPP’s offices
[7]
There are three sets of opinions received
herein. The first two address the issue of the striking off of the
case from the roll
(“the Greyvestein case”). The first
one was compiled by Advocates Molefe and Molokoane. They referred the
court to
section 168 of the Criminal Procedure Act 51 of 1977 (“the
CPA”). They submit that the learned Magistrate decided to
strike the matter off the roll without hearing the Prosecutor first.
They opine that he prematurely struck the matter off the roll
and
that his action is not in the interest of justice, especially if one
considers the fact that the matter had not been long on
the roll.
[8]
In the second opinion Advocates Maoke and
Magwanyana submitted that the matter had not been long on the roll
and it was its first
postponement for the purpose of trial. They also
point out that the postponement was by consent between the prosecutor
and the
legal representative of the accused and that the seriousness
of the charge, (assault with intent to do grievous bodily harm),
weighs
heavily against such a premature striking off done while the
prosecutor was still addressing the court, and without conducting the
mandatory enquiry required under section 342A of the CPA. They stated
that by striking the matter off the roll in this manner,
the
Magistrate acted in contravention of section 168, which empowers the
court to adjourn proceedings when necessary or expedient.
They ask
that the Magistrate’s decision be reviewed and set aside, and
further that it be re-enrolled or reinstated on the
trial roll.
[9]
Advocates Mtsweni and Molokoane submitted
an opinion regarding the Khoza case. They submit that section 60(11)
of the CPA governs
when and how bail can be granted in serious
offences, mainly in Schedules 5 and 6 offences. They assert that It
limits the Magistrate’s
discretion to fix bail and sets a
higher threshold before bail can be granted. In Schedule 5 cases,
section 60(11)(b) of the CPA
provides that the accused must satisfy
the court that the interests of justice permit release. The
Magistrate’s action of
fixing bail on behalf of the accused was
irregular as it is in direct contravention of section 60(11), and the
formal procedure
to be followed in accordance with the provisions of
that section. They further submit that the bail granted by the
magistrate be
declared invalid and set aside, and the accused be
detained pending a lawful bail application before another magistrate.
The Greyvenstein Case
[10]
It is common cause that there had not been
numerous postponements for trial purposes of this matter. It would
have been the first
postponement by the state for a foreign language
interpreter. It is clear that the state was willing to call
Ms Zikalala,
the Senior Interpreter, to explain this
administrative issue to the court. It is further common cause that
the issue of postponement
was already agreed upon by the parties, and
as such, they had already secured a date for a postponement. Lastly,
the accused was
not in custody as he was before the court under J175
(Summons).
[11]
The crux of these review proceedings is
whether the striking off of the case from the roll was necessary and
in accordance with
law. It is trite that the striking off must happen
on proper grounds; for example, when there have been numerous
postponements
by the state which the court finds unreasonable, and
which delay the finalisation of the case, thereby prejudicing the
accused.
There was therefore a need to investigate the matter and
determine if the requested postponement would cause an unreasonable
delay
that would negatively affect the accused. This is in line with
the view that the accused has a right to a speedy trial. Section
35(3)(d) of the Constitution provides that: “Every accused
person has a right to a fair trial, which includes the right to
have
their trial begin and conclude without unreasonable delay.”
[12]
The suitable method in the investigations
of this nature is to apply the provisions of section 342A of the CPA.
[13]
This section provides:
“
(1)
A court before which criminal proceedings are pending shall
investigate any delays in the
completion of proceedings which appears
to the court to be unreasonable and which could cause substantial
prejudice to the prosecution,
the accused or his or her legal
adviser, the State or a witness…
…
(2)
In considering the question whether any delay is unreasonable, the
court shall consider
the following factors:
(a)
The duration of the delay;
(b)
the reasons advanced for the delay;
(c)
whether any person can be blamed for the delay;
(d)
the
effect of the delay on the personal circumstances of the accused and
witnesses;
(e)
the
seriousness, extent or complexity of the charge or charges;
(f)
actual
or potential prejudice caused to the state or the defence by the
delay, including a weakening of the quality of evidence,
the possible
death or disappearance or non-availability of witnesses, the loss of
evidence, problems regarding the gathering of
evidence and
considerations of costs;
(g)
the
effect of the delay on the administration of justice;
(h)
the
adverse effect on the interests of the public or the victims in the
event of the prosecution being stopped or discontinued;
(i)
any
other factor which in the opinion of the court ought to be taken into
account.
(3)
If the court finds that the completion of the proceedings is being
delayed unreasonably,
the court may issue any such order as it deems
fit in order to eliminate the delay and any prejudice arising from it
or to prevent
further delay or prejudice, including an order-
(a)
refusing
further postponement of the proceedings;
(b)
granting
a postponement subject to any such conditions as the court may
determine;
(c)
where
the accused has not yet pleaded to the charge, that the case be
struck off the roll and the prosecution not be resumed or
instituted
de
novo
without the written instruction of the attorney-general;
…
(f)
that the matter be referred to the appropriate authority for an
administrative
investigation and possible disciplinary action against
any person responsible for the delay.”
[14]
In the proceedings under consideration, the
Magistrate did not investigate the cause or reason for the case not
proceeding on that
day. He failed to listen to the state prosecutor’s
request to have Ms Zikalala (Senior Interpreter) before the court so
as
to explain the reason why the Chinese interpreter was not paid for
the services she had rendered for that court previously. The
Magistrate was supposed to listen to Ms Zikalala and then
consider how the absence of the interpreter would prejudice the
accused. No evidence was adduced before the court
a
quo
as to how the absence of that
interpreter prejudiced the accused.
[15]
I do understand that the absence of foreign
language interpreters in our courts is a serious challenge. It
disturbs the proper functioning
of our courts, as such absence delays
the progress of justice.
[16]
However, the accused was on warning and it
was the first day that the matter could not proceed.
[17]
I cannot find justifiable reasons for the
Magistrate to rush for the striking of the matter off the roll under
these circumstances.
In my view the court had the option of
postponing the matter in order to grant the State the opportunity to
procure the attendance
by the interpreter. The court could have at
leave given the Sate a warning that should it fail to get its ducks
in a row the matter
may be struck off the roll.
[18]
In
Myburgh
Transport v Botha t/a SA Truck Bodies
,
[1]
it was said that the discretion as to whether to grant a postponement
should be exercised judiciously and not capriciously. It
was held
that a trial court should be slow to refuse a postponement where the
reason is not due to delaying tactics by a party.
In the
circumstances of this case, postponement would be a good option.
[19]
The Magistrate did not exercise his
decision judiciously by considering not only the right of the accused
to a speedy trial but
also the rights of other affected persons
including the victims and family members and the State.
[20]
The accused
was facing an offence of assault with intent to cause grievous bodily
harm. This is a serious offence, and surely the
victim or the
complainant wanted to know the outcome of the case, as by laying a
charge with the police, the complainant wanted
his or her case to be
decided in a court of law. Section 34 of the Constitution provides
that:
“
Everyone
has the right to have any dispute that can be resolved by application
of law decided in a fair public hearing before a
court or, where
appropriate, another independent and impartial tribunal or forum.”
[21]
Therefore, the order of striking the matter
from the roll infringed the right of the complainant in terms of
section 34, as his
or her case has not been decided by a court of
law.
[22]
It is clear from the record that the
interpreter refused to come to court as she had not been paid
previously. It follows that the
non-attendance of the court by the
interpreter was an administrative issue. This cannot be regarded as a
delaying tactic by the
State.
[23]
By striking the matter from the roll
without having made an investigation in terms of section 342A of the
CPA, the Magistrate committed
an irregularity which warrants the
intervention of this court.
[24]
It would be in the interests of justice to
order that the matter be reinstated before the court
a
quo
so as to ensure justice is done in
his or her case. I must also point out that that this is a matter
which the State could have
re-enrolled for trial without the need for
a review.
The Khoza Case
[25]
In this case, the big question is whether
the court
a quo
applied the law in granting the accused bail without hearing
evidence.
[26]
Bail is a constitutional right. Section 35
of the Constitution provides that:
“
(1)
Everyone who is arrested for allegedly committing an offence has the
right–
…
(f)
to be released from detention if the interests of justice permit,
subject to
reasonable conditions.”
[27]
Furthermore, the Constitution guarantees an
arrested person the right to be released on bail. Section 12(1)
provides that:
“
(1)
Everyone has the right to freedom and security of the person, which
includes the right –
…
(b)
not to be detained without trial.”
[28]
The
circumstances of each individual case are factors that help the court
in deciding whether to grant or refuse bail. In
S
v Dlamini;
S
v Dladla and others; S v Joubert: S v Schietekat
,
[2]
Kriegler J remarked as follows:
“
What
is of importance is that the grant or refusal of bail is under
judicial control, and judicial officers have the ultimate decision
as
to whether or not, in the circumstances of a particular case, bail
should be granted.”
[29]
It is common cause that the offence the
accused is facing falls within the ambit of Schedule 5. This section
is governed by section
60(11)(b) of the CPA. It states the following:
“
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence –
…
(b)
referred to in Schedule 5, but not in Schedule 6, the court shall
order that the accused be detained in custody until he or
she is
dealt with in accordance with the law, unless the accused, having
been given a reasonable opportunity to do so, adduces
evidence which
satisfies the court that the interests of justice permit his or her
release.”
[30]
In
Smith
and Another
,
[3]
it was held that “the Court will always grant bail where
possible, and will lean in favour of, and not against, the liberty
of
the subject, provided that it is clear that the interests of justice
will not be prejudiced thereby”.
[31]
Subsection 11(b) makes clear that the onus
rests on an accused person to satisfy the court that the interests of
justice permit
his release on bail. This then means that a court
cannot informally grant bail to an accused person without the accused
having
adduced evidence. Or to put it differently, it is peremptory
for the accused to give or adduce evidence in a Schedule 5 offence.
[32]
In
the consideration of bail for the accused, the court should be
mindful of the fact that it must follow the proper procedure used
in
determining bail. In
S
v Mabena and Another
,
[4]
it was held that bail is not competent in the absence of a proper
enquiry being made in terms of the CPA. The judge had no legal
authority to grant bail; his order was a nullity. The order granting
bail was set aside. An order was issued for the arrest of
the accused
persons. This helps the court to make an informed decision.
[33]
The
prosecutor plays a major and active role in bail proceedings. A
prosecutor must be given an opportunity to address the court
on
whether bail is opposed or not. In
Director
of Public Prosecutions, Gauteng Local Division, Johannesburg v The
Magistrate: Kagiso and Another
,
[5]
it was held that a bail court’s failure to give the prosecutor
an opportunity to oppose bail constitutes an irregularity
which
required that the granting of bail had to be set aside.
[34]
In the proceedings under consideration,
there had been non-compliance with section 60(11)(b) in that the
accused was not given an
opportunity to adduce evidence satisfying
the court that the interests of justice permit his release. The
unanswered question is
what evidence caused the court
a
quo
to grant bail in favour of the
accused.
[35]
Secondly, neither the state nor the defence
was invited to make submissions on the issue of bail. I mean to say
that even the defence
did not move or apply for bail; instead, he
objected to a postponement.
[36]
In my view, the only remedy available to
the court
a quo
was to refuse postponement and order that the bail hearing should
proceed. The Magistrate was not empowered by law to grant bail.
[37]
By granting bail in the circumstances of
this case, the court
a quo
committed an irregularity. Although irregular, I am of the view that
it does not warrant a reversal as a reversal would mean re-arresting
the accused who was not complicit in the granting of bail
irregularly. The accused is not the author of this irregularity, as
he never participated in the proceedings. The Magistrate
mero
motu
granted him bail.
[38]
Nothing suggests that the administration of
justice has been compromised. The bail granted in favour of the
accused does not negatively
affect the complainant in any manner; in
other words, the release of the accused on bail does not prejudice
the complainant. It
will not be in the interests of justice to revoke
the accused’s bail and order him into custody.
Order
[39]
I therefore propose the following order:
The Greyvenstein Matter
1.
That the order of striking off the matter
from the roll is reviewed and set aside.
2.
That the case be re-enrolled and proceed
before any magistrate including the Magistrate who made the order.
The Khoza Case
3.
That the granting of bail by the court
a
quo
is declared irregular.
4.
That the accused’s release on bail
remains extant.
M MALANGENI
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
I agree, and it is so ordered
MGB LANGA
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
RECEIVED
ON THE 04
TH of
DECEMBER 2025
DELIVERED
ON THE 19
TH of
FEBRUARY 2026
[1]
Myburgh
Transport v Botha t/a SA Truck Bodies
1991
(3) SA 310 (NmS).
[2]
S
v Dlamini;
S
v Dladla and others; S v Joubert: S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) para 74.
[3]
Smith
and Another
1969 (4) SA 175
(N) at 177E-F.
[4]
S
v Mabena and Another
2007 (1) SACR 482 (SCA).
[5]
Director
of Public Prosecutions, Gauteng Local Division, Johannesburg v The
Magistrate: Kagiso and Another
[2017] ZAGPJHC 23 para 3.