1
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, THOHOYANDOU.
(1 )
(2)
(3)
REPORTABLE : 't'eS/NO
OF INTEREST TO THE JUDGES: Y'E'S/NO
REVISED.
16 ...... .................. .
•Oo·J.o?Co
DATE...... ...... SIGNATUR ..... .
In the matter between:
FALAZA MATHEBULA AND 15 OTHERS
and
DIRECTOR OF PUBLIC PROSECUTIONS
LIMPOPO DIVISION, POLOKWANE
DEPUTY DIRECTOR OF
PUBLIC PROSECUTIONS LIMPOPO
LOCAL DIVISION: THOHOYANDOU
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
SOUTH AFRICAN CUSTODIAL MANAGEMENT
(PTY) LTD
KENSANI CORRECTIONS MANAGEMENT
CASE NO. 1091/2020
APPLICANTS
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
2
JUOGMENT
Heard on: 09 October 2025
Delivered: this judgment was handed down electronically by circulation to the parties' legal
representatives by email and release on SAFLII. The date and time for hand-down is deemed
to be at 10:00 on 16 March 2026.
SEMENYA DJP
[1] This review concerns the power of the Director of Public Prosecutions,
Limpopo (the first respondent), hereafter the OPP, to review the decision
made by the Deputy Director of Public Prosecutions (the second
respondent), the DOPP, within the same jurisdiction. The DOPP had
declined to prosecute the applicants who were charged with certain
specified charges in the Louis Trichardt magistrate court. The OPP
reviewed the DDPP's decision and ordered the reinstatement of the case
and the continuation of the prosecution against the applicants. In this court
the applicants seek a review and setting aside the decision of the OPP.
[2] The fourth and fifth respondents are the operating sub-contractors of South
African Custodial Services (SAGS), a concession holder of Kutama
Sinthumule Correctional Service Centre (the prison) in Limpopo Province.
3
The prison is a joint venture with the Department of Correctional Services.
The fourth and fifth respondents operate and manage the prison and its
programs jointly.
[3] The first to fifteenth applicants are former employees of either the fourth or
fifth respondent and were stationed at the prison when the events leading
to this application ensued. They were all expelled after a long-drawn-out
litigation which culminated in the confirmation of their expulsion by the
Constitutional Court.1 The applicants were, as at the date of the incident,
26 October 2017, the executive committee of the Union for Police, Security
and Corrections Organization (UPSCO) at the prison.
[4] Contrary to the assertions of the applicants, I am of the view that the facts
that led to their dismissal from employment and to the matter before me,
are relevant to the issues raised in this matter. They are, in any case, the
facts which were considered by the DPP and the DDPP in arriving at their
respective decisions. The fourth and fifth respondents attached the Labour
Court judgment to their answering affidavit.
1 The Constitutional Court dismissed their application for leave to appeal the order of the Labour Court.
4
[5] The background facts have been succinctly summarized in the Labour
Court by Moshoana J as follows:
"Background facts
[3] The onset of this dispute is an alleged agreement to pay to the employees
of the employers a 16% contribution towards their pension funds in the same
manner as government employees in the Department of Correctional Services
are dealt with. Union for Police, Security and Corrections Organisation (the trade
union) took a view that an agreement was reached that the aforesaid percentage
was to be paid by the employers. Suffice to mention that the dispute around the
alleged agreement is still pending in the Constitutional Court. Owing to the view
of the trade union, a request was made to have a meeting with the employers to
discuss the implementation of the alleged agreement. Three days before the
meeting and the incidents that led to the dismissal of the dismissed employees,
being 23 October 2017, a written request for that meeting was made. A
controversy, which shall later be dealt with in this judgment, arose with regard to
the purpose and intent of the said written request. The trade union and the
dismissed employees contended that the request served as a trade union leave
application. The employers did not treat the request as such.
[4) On the morning of 26 October 2017 a meeting between the employers
and the dismissed employees took place. The employers understood the
purpose of the meeting to being the giving of a feedback and to share an
understanding of the 16% contribution issue. It turned out that the dismissed
employees had a different understanding. After the employers categorically
stated that the 16% shall not be paid, the dismissed employees decoyed, as it
were, the representatives of the employers, to deliver the message of non
payment of the 16% to the general staff. The representatives agreed to do so
and a notification for a staff meeting was issued.
5
[5] The meeting was intended to be short and no longer than an hour like the
routine staff meetings held in the past. At the meeting the representatives were
met by visibly irate staff members and when they explained the position of the
employers, they were heckled by the group of staff members present. The staff
members demanded to be addressed by the shareholders. An attempt was
made to get a hold of the shareholders but ultimately it was agreed with the
dismissed employees that such an address will be held on Monday 30 October
2017. There was an indication that due to one of the shareholders being in the
United States of America and owing to the time zones differences, they might be
available on the other end of the telephone line at about 19h00 South African
time.
[6] When the staff was addressed for the second time, the heckling continued
unabated by the dismissed employees. They vowed to wait until 19h00 and
indicated that they shall not leave the area (Waste Management Area) until their
demand of 16% contribution is met. The dismissed employees flatly refused to
bring the situation under normality, stating that the meeting was summoned by
the employers' representatives and not them as trade union leaders. The
dismissed employees had arrived at work on 26 October 2017 not clad in their
work garments.
[7] Between 15h00 and 16h00, it is routinely the time to feed and medicate
the prisoners. At that time some staff members were still at the Waste
Management Area, whilst some of the dismissed employees had accessed the
prohibited control room center. The likes of Mr Sadike, whilst at the control room
center, commanded some staff members who were intent of feeding the
prisoners not to do so. It is common cause that in the past when the prisoners
were not fed, they resorted to rioting. Lo and behold, when the feeding time went
past, the prisoners started a riot. They burnt certain sections of the prison
precinct and other dangerous criminals managed to escape given the mayhem
precinct and other dangerous criminals managed to escape given the mayhem
that unfolded. Some of the dismissed employees indicated to the representatives
of the employers that had they acceded to the 16% demand the riot would not
have happened.
6
[8] One of the representatives of the employer was to catch a flight back to
Johannesburg via the Polokwane airport. He was prevented from leaving and
other staff members were prevented from leaving the prison precinct. These staff
members were effectively held hostage until the following morning.
[9] Ultimately, the dismissed employees were hauled before a disciplinary
hearing chaired by an independent practicing advocate of the Johannesburg
Bar. The dismissed employees faced a catalogue of allegations, which will be
spelled out later in this judgment. The disciplinary hearing hit several snags until
the independent chairperson recused himself. The employers came to the
realization that the dismissed employees will do everything in their power to
avoid the conclusion of the disciplinary hearing and as a result took a decision to
dismiss the dismissed employees."2
[6] Pursuant to the confirmation of their dismissal by the Labour Court, the
fourth and fifth respondents proceeded to lay criminal charges against the
applicants at Louis Trichardt police station for, amongst others, aiding
prisoners to escape and interference with the correctional or custodial
officials in the performance of their duties.
[7] On 11 July 2019, the applicants, through their attorneys S.O. Ravele
Attorneys, made representations to the Chief Prosecutor for the Makhado
District. On 7 August 2029, the Regional Prosecutor forwarded the
representations made by the applicants, his or her report (the regional
2 South African Custodial Manageme nt (Pty) Ltd and Another v Union For Police, Security and Corrections
Organisation (UPSCO) obo Makatu and Others (JS383/1 8) (2020] ZALCJHB 273; (2024] 2 BLLR 200 (LC) (20
October 2020)
7
prosecutor's) as well as other relevant documents to the office of the
DOPP for his consideration.
[8] Upon consideration of the representation made to him by the applicants
the DOPP addressed a letter dated 9 March 2020 to S.O. Ravele Attorneys
informing applicants that he has decided to decline to prosecute them. The
DOPP proceeded to close the file.
[9] On 13 May 2020, the applicants served the fourth and fifth respondents
with summons commencing action for malicious prosecution. On 23 June
2020, the fourth and fifth respondents, through their attorneys Norton Rose
Fulbright, addressed a letter to the OPP in which they requested the OPP
to furnish them with the written representations made by the applicants. On
30 June 2020, the OPP addressed a letter to the Chief Prosecutor, Louis
Trichardt, informing him that she has decided to prosecute the applicants.
[1 O] Subsequently, on 2 July 2020, the OPP addressed a letter to S.O. Ravele
in which she stated that she has decided to arraign the applicants in the
regional court on three charges, namely, (a) contravention of section 113
read with sections 1 and 129 of Act 111 of 1998 - interference with
correctional or custodial officials, (b) contravention of section 115 read
8
with sections 1 and 129 oof Act 111 of 1998- aiding a prisoner to escape
and (c) contravention of section 122 read with sections 1 and 129 of Act
111 of 1998 - unauthorised entry at prisons and communication or
interference with prisoners to their attention. The DPP's decision led to the
review application before this court.
[11] In this court, the first, second, and third respondents, who shall collectively
be referred to in this judgment as the NPA respondents, raised several
points of law in their answering affidavit. I am of the view that the said
points of law are interlinked with the merits of the application. They are
nonetheless not dispositive of the issues between the parties. In view of
this fact, I have decided to deal with them simultaneously with the merits of
the application.
[12] The NPA respondents contend that the applicants seem to be uncertain
whether the decision of the OPP is reviewable in terms of the Promotion of
Administrative Act3 (PAJA) or under common law legality review. There are
paragraphs in the founding and replying affidavits where the applicants
state that the provisions of that PAJA are not applicable. However, in other
paragraphs, the applicants state that they are bringing this application on
3 3 of 2000
9
both PAJA and common law legality review. Counsel for the applicants
conceded during oral submissions that section 1 (ff) of PAJA excludes
decisions of prosecutors, which includes the impugned decision of the
OPP, from the application of that Act. In view of this concession, this point
of law cannot be addressed any further than this.
[13] The NPA respondents objected to the applicants' averments that the public
has interest in the application and that this application is launched on that
basis. The NPA respondents places reliance on Limpopo Legal
Solutions v Vhembe District Municipality 4 in which the Constitutional
Court held that:
"[12] In Lawyers for Human Rights this Court dealt with what needs to be
shown in order to establish whether a person or an entity is acting in the public
interest. 5 In this regard , this Court quoted with approval a passage from
O'Regan J's judgment in Ferreira 6 where she said:
"This Court will be circumspect in affording applicants standing by way of
section 7(4)(b)(v) and will require an applicant to show that he or she is
genuinely acting in the public interest. Factors relevant to determining
whether a person is genuinely acting in the public interest will include
considerations such as: whether there is another reasonable and effective
manner in which the challenge can be brought; the nature of the relief sought,
and the extent to which it is of general and prospective application; and the
range of persons or groups who may be directly or indirectly affected by any
4 (CCT119/16) [2017] ZACC 30.
5 Lawyers for Human Rights [2004] ZACC 12 at para 16.
6 Ferreira v Levin NO; Vryenhoek v Powell NO [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).
10
order made by the Court and the opportunity that those persons or groups
have had to present evidence and argument to the Court. These factors will
need to be considered in the light of the facts and circumstances of each
case."
[14] The NPA respondents argue that in terms of section 38(d) of the
Constitution, anyone who acts in public interest, and who alleges that a
right in the bill of rights has been infringed, may approach a competent
court alleging that he or she is acting in public interest. The NPA
respondents contend that in the present case, the applicants failed to
comply with the procedure and requirements laid down by our courts in
their interpretation of the provisions of section 38(d), including that in
Limpopo Legal Solution, above.
[15] I agree with the applicants that the NPA respondents are confusing the
class action proceedings with those that are brought under public interest.
Despite that, the impugned decision is a decision that pertains solely to the
prosecution of the applicants for the offences the prosecution alleges they
have committed. The applicants' contention that the public has an interest
in the fairness of the DPP's decision to prosecute them is far-fetched. The
public interest, if it exists, would be in the prosecution of those who are
alleged to have committed serious offences, such as the ones referred to
11
in this case. The applicants failed to show that they are genuinely acting in
public interest.
[16] The applicants claim that the application raises constitutional issues. They
have, for that reason, filed rule 16A of the Uniform Rules of Court notice.
The alleged constitutional issues raised in rule 16A notice are:
i. whether the OPP is permitted in terms of section 179(5)(d) of the
Constitution to review the decision of the DOPP which presumably
taken on his or her behalf;
ii. If so permitted, whether the OPP was permitted to decide to
continue with the prosecution of the applicants without affording the
applicants an opportunity to make their representations;
iii. Whether the decision of the OPP differentiates between the
applicants, as accused persons, and the fourth and fifth respondents,
as complainants, and whether such differentiation will amount to
violation of the applicants' constitutional rights to equality before the
law; and
iv. Whether the decision of the first respondent was taken arbitrarily,
irrationally and unreasonably.
12
[17] The Supreme Court of Appeal in National Director of Public
Prosecutions v Zuma7 (Zuma) held that:
"[67] ... The presumption of equal treatment in statutory interpretation has always
been with us and now has a special status by virtue of the Bill of Rights The
question is whether it is ousted by other considerations in the circumstances of
this section of the Constitution. I am of the view that it is. The underlying purpose
of the provision is not to protect the accused or the complainant: it is to define
the procedure for the exercise of the power of control of the NDPP. It would be
strange to find such an important right, which is not known in comparable
jurisdictions or in our common law, in a chapter of the Constitution that deals
basically with structures concerned with the administration of justice and not
rights. The Bill of Rights deals in great detail with the rights of accused persons,
and is silent about the right to be invited to make representations concerning
prosecutorial decisions. The main problem though is that s179 on any
interpretation 'discriminates' in the sense that the right to be invited does not
extend to most prosecutorial reviews like those by a OPP or a prosecutor. These
considerations trump in my view the presumption and Mr. Kemp's reliance on
the equal protection clause of the Bill of Rights is, accordingly, misplaced."
[18] The fourth and fifth respondents contend that the applicants' reliance on
the right to equality should be considered in conjunction with the way the
applicants' representations were considered by the DOPP. They argue
7 [2009] 2 All SA 243 (SCA) at [67]
13
that they were not invited to make representations before the decision to
decline prosecute the applicants was made. Instead, the DOPP made his
decision based only on the representations made on behalf of the
applicants. They further argue that in contrast to the DDPP's approach, the
DPP's decision was taken after she considered the applicants'
representations which were already part of the case docket when the
matter came before her as well as those made by the fourth and fifth
respondents.
[19] The NPA respondents contend that, as in the PAJA issue, t here are
inconsistencies in the applicants' papers on this issue. They argue that the
applicants have presented two conflicting versions in that they admit and
deny, in the same papers, that their representations were considered
before the decision to continue with the prosecution was made. The
applicants' contention is without merit. Their representations were already
with the prosecution before the matter could come to the DPP's attention.
She stated in her affidavit that she had regard to those representations,
and that the applicants are admitting this fact. Bearing in mind that this is
an application where the applicants are seeking a final order, the
14
respondent's version has to be accepted as true. The applicants have not
seriously disputed this allegation.8
[20] The applicants argue that the OPP violated the provisions of section 179
(5) (d) of the Constitution by usurping the powers of the NOPP. They
contend that sub-section (5)(d) empowers the NOPP, as the highest
authority within the prosecution authority, to review decisions of all other
members of that institution. The NPA respondents hold a different view.
They contend that the OPP derives her powers from section 20 of the
National Prosecuting Authority Act9 (the NPA Act). More on this later in this
judgment.
[21] In addition to the argument that the OPP acted ultra vires, the applicants
contend that the OPP acted irrationally, arbitrarily, and unreasonably. This
argument is based on similar grounds as in the alleged violation of section
9 of the Constitution (equality clause). The applicants contend that the first
respondent's decision was arbitrary in that the OPP considered the
representations made by the fifth and sixth respondents only. I have
already rejected this argument. The applicants admit that the OPP
considered both representations. It cannot be said that the OPP acted
8 Plascon-Evans rule
9 Act 32 of 1998
15
arbitrarily when she considered the views on both sides. Furthermore,
based on the summary of the facts by the Labour Court which were
accepted by the Constitutional Court, one may safely find that the DPP's
decision was not irrational. These facts, at face value, constitute a prima
facie case upon which the applicants may be prosecuted.
[22] The applicants contend that the facts before this court raise constitutional
issues such as the right to be treated equally before the court. However, it
follows from the preceding paragraphs that the applicants' contention is not
supported by the facts. I am of the view that the issue here revolves solely
on ascertaining the proper interpretation of section 179(5)(d) of the
Constitution when read in conjunction with relevant sections of the NPA
Act.
[23] In S v Boesak10 it was stated that:
"If regard is had to the provisions of s 172(1)(a) and s 167(4)(a) of the
Constitution, constitutional matters must include disputes as to whether any law
or conduct is inconsistent with the Constitution, as well as issues concerning the
status, powers and functions of an organ of State. Under s 167(7), the
interpretation, application and upholding of the Constitution are also
constitutional matters. So too, under s 39(2), is the question whether the
10 2001 (I) 912 (CC); 2001 (I) BCLR 36 (CC) par 13
16
interpretation of any legislation or the development of the common law promotes
the spirit, purport and objects of the Bill of Rights. If regard is had to this and to
the wide scope and application of the Bill of Rights, and to the other detailed
provisions of the Constitution, such as the allocation of powers to various
legislatures and structures of government, the jurisdiction vested in the
Constitutional Court to determine constitutional matters and issues connected
with decisions on constitutional matters is clearly an extensive jurisdiction."
[24] It is clear from what has been said in Boesak that the mere mention of a
constitutional issue, which is what the applicants did, without support for
the said contention in fact does not satisfy this Court, nor does it empower
this Court to, for the sake of countenancing a constitutional issue, skip over
the inconsistencies in the facts that support the raising of the constitutional
issue in the first place.
[25] Returning to the power of the OPP to review the decision made by the
DOPP, the powers of the prosecuting authority to review decisions within
that institution are governed by statutes. The starting point is the
Constitution. Section 179 (5) (a) to (d) of the Constitution provides that:
"(5) The National Director of Public Prosecutions -
(a) must determine, with the concurrence of the Cabinet member
responsible for the administration of justice, and after consulting
17
the Directors of Public Prosecutions , prosecution policy, which
must be observed in the prosecution process;
(b) must issue policy directives which must be observed in the
prosecution process;
(c) may intervene in the prosecution process when policy
directives are not complied with; and
(d) 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 National
Director of Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director
considers to be relevant."
[26] The applicants contend that the power to review decisions within the
prosecuting authority lies only with the NDPP as envisaged in section
179(5)(d). They argue, as stated above, that the OPP acted ultra vires
when she reviewed the DDPP's decision. The NPA respondents contend
that the OPP derives the power to review the decision made by the DOPP
NPA Act, being an Act of parliament enacted in terms of section 179(4) of
the Constitution, and from the Prosecution Policy established under that
NPA Act.
18
[27] Section 22 and 24 of the NPA Act lays down the powers, duties, and
functions of the NOPP, the OPP, and the DOPP as follows:
"22. Powers, duties and functions of National Director
(1) The National Director, as the head of the prosecuting authority, shall have
authority over the exercising of all the powers, and the performance of all the
duties and functions conferred or imposed on or assigned to any member of the
prosecuting authority by the Constitution, this Act or any other law.
(2) In accordance with section 179 of the Constitution, the National Director- (a)
must determine prosecution policy and issue policy directives as contemplated in
section 21;
(b) may intervene in any prosecution process when policy directives are
not complied with; and
(c) may review a decision to prosecute or not to prosecute, after
consulting the relevant Director and after taking representations, within
the period specified by the National Director, of the accused person, the
complainant and any other person or party whom the National Director
considers to be relevant.
24 Powers, duties and functions of Directors and Deputy Directors
(1) Subject to the provisions of section 179 and any other relevant section of the
Constitution, this Act or any other law, a Director referred to in section 13 (1) (a)
has, in respect of the area for which he or she has been appointed, the power to
(a) institute and conduct criminal proceedings and to carry out functions
incidental thereto as contemplated in section 20 (3);
19
(b) supervise, direct and co-ordinate the work and activities of all Deputy
Directors and prosecutors in the Office of which he or she is the head;
(c) supervise, direct and co-ordinate specific investigations; and "
(d) carry out all duties and perform all functions, and exercise all powers
conferred or imposed on or assigned to him or her under any law which is
in accordance with the provisions of this Act.
(9) (a) Subject to section 20 (4) and the control and directions of a Director, a
Deputy Director at the Office of a Director referred to in section 13 (1 ), has all the
powers, duties and functions of a Director.
(b) A power, duty or function which is exercised, carried out, or performed by a
Deputy Director is construed, for the purposes of this Act, to have been
exercised, carried out or performed by the Director concerned."
[28] In accordance with section 179 of the Constitution read with sections 2 and
4 of the NPA Act, the NDPP issued a policy that guides DPPs and all other
prosecutors in the country, in the performance of their duties and functions.
Paragraph 48 of the policy (revised in June 2013) emphasises the
importance of the community's need to rely on the decisions made by
members of the NPA. It states that under normal circumstances, if an
accused person is informed that there will not be a prosecution or that
charges have been withdrawn, that should be the end of the matter.
20
[29] The prosecution policy, however, recognizes that special circumstances
that call for the reinstatement of the case after its withdrawal may arise.
Examples given in the policy include: (i) where the initial decision was
clearly wrong and should not be allowed to stand, (ii) an instance where a
case has not been proceeded with in order to allow the police to gather
and collate further evidence, in which case the prosecutor should normally
have informed the accused person that the prosecution might well start
again; and (iii) a situation where a prosecution has not been proceeded
with due to lack of evidence, but where sufficient incriminating evidence
has since come to light.
[30] The prosecution policy requires the prosecutor to obtain the consent of the
OPP before he or she can stop the prosecution that has already
commenced. However, it is notable that the policy is silent about the
procedure that is to be followed by prosecutors when a decision to
withdraw a case is to be reviewed. However, the NPA Act and the
Constitution make it clear that that decision must be made by the NDPP.
[31] The other reason proffered by the applicants why the OPP is not
empowered to review the decision of the DOPP is that in terms of section
24(9)(b) of the NPA Act, a power, duty or function which is exercised,
21
carried out or performed by the DOPP is construed, for the purposes of the
NPA Act to have been exercised, carried out or performed by the OPP
concerned. They proceeded to argue that the OPP has no authority to
review the decision of the DOPP in this case in that this will amount to a
review of her own decision.
[32] The applicants' contention that the OPP acted outside the powers
conferred on her in terms of the NPA Act, has merit. Section 24 of the NPA
Act excludes the power to review decisions made by prosecutors from the
purview of the OPP. The NPA respondents argue that this Court is bound
by its earlier decision where Gededger AJ in Maremba and Others v
National Director of Public Prosecutions and Others11 (Maremba)
found that the OPP does have the power to review the decision of the
DOPP.
[33) In Bloemfontein Town Council v Richter12 the Court said the following:
"The ordinary rule is that this Court is bound by its own decisions and unless a decision
has been arrived at on some manifest oversight or misunderstanding that is there has
been something in the nature of a palpable mistake a subsequently constituted Court
has no right to prefer its own reasoning to that of its predecessors - such preference, if
allowed, would produce endless uncertainty and confusion. The maxim "stare decisis"
should, therefore, be more rigidly applied in this, the highest Court in the land, than in
all others."
11 (2031/2023) [2024] ZALMPTHC15 (8 February 2024).
12 1938 AD 195 at 232
22
[34] Section 2 of the Constitution of the Republic of South Africa, 1996 provides
that the Constitution is the supreme law of the Republic and any law or
conduct inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled. The decision of the OPP is inconsistent with the
provisions of section 179(5)(d). It is therefore invalid. It is on this basis that
I find that Maremba was clearly wrongly decided. I further find that I am
justified from deviating from this earlier decision even though it emanates
from this Division.
[35] The NPA respondents contend that this Court should not entertain the
matter and should rather refer it to the NOPP for her consideration. This
argument, in essence, is asking this Court not to usurp the functions of the
NDPP. The applicants, on the other hand, contend that referring the matter
back to the NDPP in this case will be a futile exercise. They argue that the
fact that the NDPP is opposing the application is sufficient proof that she is
aligning herself with the decision of the OPP. The applicants argue that an
impartial NOPP would not have opposed the application. They further
submit that the NDPP is conflicted.
23
[36] The criticism leveled against the NDPP's decision to oppose the
application is unfair. She had the right to do so since she was drawn into
the case by the applicants. It is indeed so that she is not distancing herself
from the views of the OPP. For this reason, I find that referring the case to
her office will constitute a delay in bringing the criminal case against the
applicants to finality. The fourth and fifth respondents have interest in the
case and are eager to know their fate therein. It would be prudent, in my
view, to allow the criminal case against the applicant to run to its
conclusion without further ado.
[37] In Luphondo v The State13 the Supreme Court of Appeal said the
following:
"[96] The Constitutional Court drew an important distinction between two
categories of State conduct when considering applications to halt
proceedings . The first category concerns cases in which the criminal
prosecution is preceded and tainted by illegal and egregious State
conduct. The second concerns cases where unlawfulness or irregularity
arises from a bona fide error in the process. Criminal proceedings will be
halted only in the former category because it would amount to 'an affront
to the public conscience' or 'would be contrary to the public interest in the
13 (123/2024) [2026] ZASCA 24 (10 March 2026) at [39]
24
integrity of the criminal justice system' for a criminal trial to proceed in
such circumstances. The Court emphasised the need to strike an
appropriate balance between upholding the rule of law and combating
impunity.
[97] In the present matter, the lack of written authorisation specifically for the
applicant's prosecutions had nothing to do with illegality or any
objectionable conduct by the State. From his testimony, Mr Mzinyathi
bona fide, but erroneously, believed that the section 75 letter sufficed to
comply with Part 8 of the Prosecution Directives. This conduct falls into
the second category and, therefore, does not constitute a ground for
halting the applicant's criminal proceedings.
[98] That there was no compliance with the strictures of the Prosecution
Directives in the sense that there was no written authorisation for the
prosecution of the applicant, is not the end of the enquiry. The question is
whether it was fatal that it had not been complied with. In Maharaj v
Rampersad, ... "
[38] In this case, neither the DPP had the power to review the decision of the
DOPP nor did the latter have the power to review that of the regional court
prosecutor. The question is therefore whether the applicants should not be
prosecuted on that basis alone. In line with Luphondo, above, I am of the
view that this should not be the case. In any event, the decision to
prosecute is not a foregone conclusion that the applicants are guilty of the
25
offences they are charged with. Their right to be presumed innocent until
proven guilty is constitutionally entrenched. The State still bore the duty to
prove their guilt beyond reasonable doubt.
[39] In conclusion, I find that the review and the setting aside of the impugned
decision should be dismissed and the trial of the applicants should
commence. Based on the merits of this case, which as already stated, are
intertwined with the points of law raised, I am of the view that there is no
need for this Court to pronounce on the points of law raised by the NPA
respondents.
[40] On the issue of costs, the applicants contend that the principle laid down in
Biowatch Trust v Registrar Genetic Resources and Others 14 applies in
this matter in that they have raised constitutional issues. The applicants
are correct on the point that the OPP has no power to review the decision
of her deputy. However, it was not necessary for them to approach this
Court for the setting aside of the impugned decision. They should have
approached the NDPP as the authority that has the power to review the
impugned decision. It appears clearly in their affidavit that they were fully
14 (CCT 80/08) [2009] ZACC at 14
26
aware of the procedure available to them even before they approached this
Court.
[41] In Limpopo Legal Solutions and Another v Eskom Holdings SOC
Limited15 the Constitutional Court held that Biowatch finds no application
in instances where litigation is manifestly inappropriate, vexatious and
frivolous. I consider this application to be falling within that category of
cases. I find that the applicants' reliance on Biowatch is misplaced.
[42] The SCA in Luphondo restated the general principle applicable on costs by
stating the following:
"The general approach in matters of this nature is that costs do not necessarily
follow the result. The rationale was explained in Sanderson :
'[104] Ordinarily the dismissal of a claim such as this in the High Court should
not carry an adverse costs order. It is not a suit between private
individuals; it relates directly to criminal proceedings, which are instituted
15 [2017] ZACC at 34.
16 At[ l04]
by the State and in which cost orders are not competent; and the cause of
action is that the State allegedly breached an accused's constitutional
right to a fair trial ... '. "16
27
[43) The above general principle is applicable to NPA respondents. The
appropriate court order in this case will therefore be that each party
to pay own costs. However, the position is different regarding the
fourth and fifth respondents. They are private institutions whose
interests are important to this case. They were drawn into the case
by the applicants who were fully aware that it was not necessary to
approach this Court well knowing that the NDPP is the functionary
responsible for the review of the impugned decision. They were put
out of pocket by the conduct of the applicants. What is concerning is
that according to the fourth and fifth respondents, the applicants still
owe them costs granted by the Labour court and the Constitutional
Court. They are entitled to costs of this litigation.
[44) The NPA respondents filed an application condonation for the late
filing of the answering affidavits. The said application is not opposed
and is granted as prayed for.
[45) In the result the following order is made:
1. The NPA respondents' application for condonation for the late filing
of the answering affidavit is granted;
ii. The application for the review and for the setting aside of the DPP's
decision is dismissed.
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iii. The decision to prosecute the applicants on the preferred charges
stands.
iv. The applicants are ordered to pay the fourth and fifth respondents'
costs jointly and severally, the one paying the other absolved.
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION
APPEARANCES:
For the applicants: S.O. Ravele
S.O. Ravele Attorneys
For the 1 st, 2nd and 3rd Respondents: Adv E Tsatsi with Ntsako Baloyi
Instructed by: State Attorney, Thohoyandou
For 4th and 5th Respondents: Adv Y Pillay
Instructed by: Norton Rose Fulbright South Africa