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[2026] ZANCHC 37
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Mothibi and Another v S (CA&R 77/2024) [2026] ZANCHC 37 (4 May 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO:
CA&R
77/2024
Reportable: YES /
NO
Circulate to
Judges: YES / NO
Circulate to
Magistrates: YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter between:
WONDER
VILJOEN DIMAKATSO MOTHIBI
First Appellant
FEZILE
MAKIWANE
Second Appellant
and
THE
STATE
Respondent
Neutral Citation:
WK Mothibi & Another v The State (CA&R77/2024)
Heard on:
21 July 2025
Delivered on:
04 May 2026
Coram
:
Mamosebo
J
et
Olivier
AJ
Summary:
Appeal against decision by Regional
Magistrate to refuse a permanent
stay of prosecution. Section 342A of
Criminal Procedure Act 51 of
1977
. Magistrate obliged to conduct enquiry in terms of
Section 342A
– Magistrate failing to conduct such an enquiry –
Magistrate’s failure is misdirection and procedural error –
Courts of Appeal should not step into the shoes of Courts a quo in
these circumstances – Matter to be remitted in terms of
Section
19
of the
Superior Courts Act 10 of 2013
.
ORDER
In the result, the
following order is made:
1.
The appeal is upheld.
2.
The order of the
Regional Magistrate, Mr.
Smit, of 11 July 2022 to refuse an application brought on behalf of
the appellants in terms of
Section 342A
of the
Criminal Procedure Act
51 of 1977
, for the permanent stay of prosecution is hereby set
aside.
3.
The matter is remitted to the Regional
Magistrate to conduct an enquiry into the reasonableness of the
alleged delays in the criminal
prosecution of the first and second
appellants as contemplated in
Section 342A(1)
read with
Section
342A(2)
of the
Criminal Procedure Act 51 of 1977
, and to make an
order permitted by
Section 342A(3)
of said
Criminal Procedure Act.
>
JUDGMENT
OLIVIER AJ
[1]
This is an appeal against a decision by the
Regional Magistrate, Mr. Smit, (“the Magistrate”) to
refuse an application
brought on behalf of the appellants in terms of
Section 342A of the Criminal Procedure Act 51 of 1977 (“
the
CPA
”
) for the permanent stay of
prosecution in respect of the appellants. The appellants were granted
leave to appeal on 22 September
2022.
[2]
Although the trial record that accompanied
the papers in the appeal was not complete, the representatives of the
respective parties
agreed that the available record was adequate for
the proper consideration of the appeal.
[3]
The charges brought against the appellants
are closely related to the much-publicized Trifecta trial and it
appears from the record
and specifically from the provisional
indictment that we were provided with, that the first appellant, Mr.
Mothibi, is being charged
with 1 (one) count of allegedly
contravening the provisions of the Public Finance Management Act, Act
1 of 1999 (“
the PFMA
”
)
read with the provisions of Section 217(1) of the Constitution of the
Republic of South Africa, 1996 (“
the
Constitution
”
) relating to the
signing of a lease agreement without following proper procurement
processes.
[4]
Mr. Mothibi is accused 2 in the criminal
proceedings and it is alleged that at the time of the commissioning
of the alleged offence,
he was the Head of the Department of
Agriculture and Land Reform in the Northern Cape Province and by
virtue of his portfolio,
also the accounting officer of the said
department.
[5]
It is further alleged that the aforesaid
lease agreement was allegedly unlawfully signed on 9 November 2005.
[6]
Mr. Makiwane (the second appellant and
accused 4 in the criminal proceedings) is being charged with 5 (five)
counts of allegedly
contravening the provisions of the PFMA read with
the provisions of Section 217(1) of the Constitution.
[7]
The charges against the second appellant
vary between allegations of the unlawful awarding of contracts and
the unlawful signing
of lease agreements.
[8]
It is alleged that, at the time of the
commissioning of the alleged offences, Mr. Makiwane was the Chief
Executive Officer of the
South African Social Security Agency
(“
SASSA
”
)
and it appears that the alleged offences were commissioned during
August 2006 to June 2007.
[9]
The aforementioned indictment is dated 11
December 2019 and this is also the date upon which the appellants
appeared in court for
the first time.
[10]
The criminal trial was thereafter postponed
on several occasions until eventually on 12 April 2022 when the
application for permanent
stay of prosecution was lodged. The
Magistrate dismissed the application on 11 June 2022.
[11]
Central
to this appeal, is Section 35 of the Constitution that affords every
accused person the right to a fair trial and specifically
the right
to have his/her trial commence and conclude without unreasonable
delay.
[1]
[12]
Section 342A(1) of the CPA underlines the
constitutional right of accused persons to a speedy trial where it
states as follows:
‘
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 …’ (my underlining)
[13]
Section 342A(3) of the CPA provides as
follows:
“
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 …”
[14]
Although Section 342A of the CPA does not
specifically mention the permanent stay of prosecution amongst the
list of possible orders
that may be made in terms of Section 342A(3),
it is trite that an order of a permanent stay of prosecution would
resort under such
possible orders and it was further never in dispute
that it is within the powers of a Magistrate to make such an order.
[15]
Section 342A(2) of the CPA reads as
follows:
‘
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 cost;
(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.’
(my underlining)
[16]
The
crux
of the Magistrate’s findings and reasons for judgment as
gleaned from the record, is as follows:
‘
One
must know that the court will protect a person’s constitutional
rights even if it sometimes [has] (sic) a drastic impact
on the
desires of the general public, however all the relevant factors
should be considered.
In this case it is not in
dispute that there was a …[indistinct] time lapse since the
allege[d] (sic) commission of the offence
and the indictment in 2019.
The … [indistinct] delays [were] (sic) not caused by the
applicants except for the representations
which they were in any way
entitled to.
I have however listened
to the arguments of the applicants. At this stage it is mere remarks
with council (sic) what could possibly
happen, what could have
happened and what may have happened. This is vague and in my mind
without substance. At the end of the
day the trial court will be the
best to decide on the fairness of the trial. That court will be in a
better position to diligently
examine the facts and decide whether
the accused had a fair trial or not.
One should always
remember a fair trial also requires fairness to the public as
represented by the state. It has to …[indistinct]
confidence
in the criminal justice system with the public, those close to the
accused as well as those distressed by the audacity
…[indistinct]
of the crime… however when one balance (sic) all the pro and
cons I cannot say that the eventual trial
will not be fair. Further
delays by the state might be treated differently but at this stage I
have to dismiss the application
for permanent stay of prosecution by
the applicants.’
[17]
If proper
regard is given to the provisions of Section 342A of the CPA it is
clear that when a court faces an application for the
permanent stay
of prosecution, such court is compelled to investigate whether the
alleged delay is unreasonable by taking into
account the factors
listed in Section 342A(2) and to, thereafter, make an order as
provided for in Section 342A(3) of the CPA which
may include an order
for the permanent stay of prosecution. This is underlined by the use
of the word “
shall
”
in the opening lines of both Section 342A(1) and Section 342A(2) of
the CPA.
[2]
[18]
The Magistrate however and despite declaring that all factors
must be
considered, then fails to deal with any of the factors listed in
Section 342(2) of the CPA.
[19]
The Magistrate merely mentions a delay
between
the commissioning of the alleged offences by the appellants and the
serving of an indictment in 2019 which delay, so it
appears from the
record, was regarded by the Magistrate as sufficiently long to
warrant a mention, but then fails to deal with
or even properly deal
with,
inter alia
:
19.1
The duration of the delay;
19.2
The effect of the delay on the personal circumstances of the accused
and witnesses;
19.3
The seriousness, extent or complexity of the charge or charges;
19.4
The effect of the delay on the administration of justice; and/or
19.5
The adverse effect on the interests of the public or the victims in
the
event of the prosecution being stopped or discontinued.
[20]
It was held as follows in
Director
of Public Prosecutions North Gauteng v Makhubela
[3]
:
“
It is clear, in
casu, that the court could not have taken this decision without
holding an enquiry whereupon facts from which it
could determine if
the exceptional circumstances for it to issue the order in terms of s
342A(3)(d) exist. I am of the view that
the court misdirected itself
when it failed to consider the appropriate aspects provided in s
342A(2) …Its misapplication
of the law resulted in a gross
irregularity.” (my omissions)
[21]
In
Ndibe
[4]
the court confirmed that the record of proceedings must reflect that
Section 342A has been fully complied with and further held
as
follows:
‘
Even
though S 342 (3) does not specifically state that a ‘formal’
enquiry be held, it does call at the very least for
an enquiry, on
the basis of which a finding must be made. Such an enquiry must have
regard to the full conspectus of the factors
in s 3 (2). In the
absence of an enquiry, a court may find it difficult to assess
whether a delay is unreasonable or how much systemic
delay to
tolerate.’
[22]
The constitutional court effectively underlined the above where it
held as follows:
[5]
‘
A proper reading
of Section 342A as a whole reveals that the Section requires an
investigation into the reasonableness of the delay.
Courts have
grappled with this provision and held that an enquiry is necessary in
order to sufficiently consider the reasonableness
of the delay.’
[23]
It is clear from the above quoted authorities that a court that is
faced with an application
in terms of Section 342A of the CPA is
compelled to hold an enquiry into the reasonableness of the delay and
in doing so, to have
regard to the factors listed in Section 342A(2),
to make a finding in terms of Section 342A(3) and to make sure
that the enquiry
and finding form part of the record of the
proceedings.
[24]
I take the view that the failure by the Magistrate in the present
matter to properly deal with
the factors listed in Section 342A(2) of
the CPA, coupled with the suggestion by the Magistrate that the trial
court is the appropriate
forum to determine the fairness of the
trial/delay, is a misdirection by the Magistrate and is a significant
procedural error.
[25]
I am of the considered view that Section 342A was specifically
enacted to provide courts with
a tool to manage unreasonable delays
in criminal proceedings and to give effect to the constitutional
right entrenched in Section
35(3)(d) of the Constitution to have a
trial commence and finalise without unreasonable delays.
[26]
I am further of the view that Section 342A is intended to be a
pre-emptive remedy and that, if
the view of the Magistrate, namely
that the trial court is actually the best court to decide on the
reasonableness of the delay,
is to be applied universally, Section
342A would effectively be rendered redundant as the provisions
empowers a court to investigate
the delays before or during
proceedings to prevent the very prejudice that an inordinately
delayed criminal trial might create.
[27]
I am finally of the view that the eventual finding of the Magistrate
is not one that was properly
considered and that it effectively boils
down to an attempt to kick the can as far down the road as possible.
[28]
It is trite that when considering a matter on appeal, the powers of
the court of appeal is generally
limited and that the court of appeal
would only be allowed to interfere with the exercise of a discretion
by a lower court if it
is satisfied that the discretion was not
exercised ‘… judicially, or that it had been influenced
by wrong principles
or a misdirection on the facts, or that it had
reached a decision which in the result could not reasonably have been
made by a
court properly directing itself to all the relevant facts
and principles.’
[6]
[29]
In
Florence
v Government of the Republic of South Africa
is was held that a court sitting as court of appeal may only
interfere in instances where the lower court exercised a discretion
in the true sense if ‘it is clear that the choice the court has
preferred is at odds with the law.’
[7]
[30]
I am of the view that the answer to the question as to the scope of
an appeal court’s powers
when considering a decision taken by a
lower court, is best summarised by the learned Majiedt J where he
held as follows in
Lewis Stores Proprietary Ltd v Pepkor
Holdings Ltd and Others
:
‘
When a lower court
(or Tribunal) has exercised a true discretion, it is generally
inappropriate for an appellate court to interfere
unless –
(a)
the discretion was not judicially exercised;
(b)
the discretion was influenced by the wrong principles or by a
misdirection
on the facts; or
(c)
the lower court reached a decision which, in the result, could not
reasonably
have been made by a court properly directing itself to all
the relevant facts and principles.’
[8]
[31]
In the end, each case must be considered on its own merits
[9]
and it is against the above that this appeal is considered. This
court primarily needs to consider whether the Magistrate misdirected
himself by failing to consider the specific trial related prejudice
and/or whether the Magistrate applied the incorrect legal standard.
I
am of the view that the decision of the Magistrate in the present
matter does not cut the mustard for the reasons already alluded
to
herein above.
[32]
It should always be borne in mind that a permanent stay of
prosecution is widely regarded as
a drastic remedy and has been
described in
Sanderson
v Attorney-General; Eastern Cape
as
follows:
‘…
radical,
both philosophically and socio-politically. Barring the prosecution
before the trial begins … and consequently without
any
opportunity to ascertain the real effect of the delay on the outcome
of the case … is far reaching. Indeed it prevents
the
prosecution from presenting society’s complaint against an
alleged transgressor of society’s rules of conduct.
This will
seldom be warranted in the absence of significant prejudice to the
accused.’
[10]
[33]
It is therefore of great importance that any application for a
permanent stay of prosecution
be taken seriously and be given the
attention that it deserves and that a lackadaisical approach to this
topic should be strongly
discouraged.
[34]
I am of the view that, given all of the above, this is a matter where
this court may and should
interfere with the decision of the
Magistrate, but I am also of the view that this court should not step
into the shoes of the
court
a quo
just because the Magistrate
failed in his duties.
[35]
I am well aware of the congested rolls in the Magistrates courts, but
congestion does not absolve
the court from managing its roll
effectively and from giving proper attention to matters that serve
before it. This is what the
public expects.
[36]
I am consequently of the view that this is a case where this court
should exercise its powers
as set out in
Section 19(c)
of the
Superior Courts Act 10 of 2013
, and remit the matter to the Regional
Court for proper enquiry in terms of the provisions of
Section 342A
of the CPA.
ORDER
:
[37]
In view of the above, the following order is made:
1.
The appeal is upheld.
2.
The order of the
Regional Magistrate, Mr.
Smit, of 11 July 2022 to refuse an application brought on behalf of
the appellants in terms of
Section 342A
of the
Criminal Procedure Act
51 of 1977
, for the permanent stay of prosecution is hereby set
aside.
3.
The matter is remitted to the Regional
Magistrate to conduct an enquiry into the reasonableness of the
alleged delays in the criminal
prosecution of the first and second
appellants as contemplated in
Section 342A(1)
read with
Section
342A(2)
of the
Criminal Procedure Act 51 of 1977
, and to make an
order permitted by
Section 342A(3)
of said
Criminal Procedure Act.
A.D. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
KIMBERLEY
I CONCUR.
M.C. MAMOSEBO
JUDGE
NORTHERN CAPE DIVISION
KIMBERLEY
APPEARANCES:
For
the 1
st
and 2
nd
Applicants:
ADV
CF VAN HEERDEN
Instructed
By:
Majiedt
& Swart Inc.
Kimberley
For
the Respondent:
ADV
WJ ELS
Instructed
By:
National
Department of Public Prosecution
Kimberley
[1]
See Section 35(3)(d) of the Constitution
[2]
See also
S
v Ndibe
[2012]
ZAWCHC 245
(14 December 2012), para 6
[3]
[2014] ZAGPPHC 535 (6 August 2014), para 19
[4]
Supra
[5]
Ramabele
v S; Msimango v S
[2020]
ZACC 22
(16 September 2020), para 61
[6]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
[2015]
ZACC 22
(26 June 2015), paras 83 and 88;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999]
ZACC 17
(2 December 1999), para 11
[7]
[2014]
ZACC 22
(26 August 2014), para 113
[8]
[2026] ZACC 4
(30 January 2026), para 68;
Caledon
River Properties (Pty) Ltd t/a Magwa Construction and Another v
Special Investigating Unit and Another
[2026]
ZASCA 6
(16 January 2026), para 12
[9]
Bothma
v Els and Others
[2009]
ZACC 27
(8 October 2009), para 75
[10]
1998 (2) SA 38
(CC), para 38;
Zanner
v Director of Public Prosecutions, Johannesburg
2006]
ZASCA 56
(3 April 2006), para 10