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[2026] ZAGPPHC 454
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Du Plessis v National Director of Public Prosecutions and Others (Leave to Appeal) (2025/145669) [2026] ZAGPPHC 454 (30 April 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER:
2025/145669
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates
NO
In the application for
leave to appeal between:-
R
DU PLESSIS
Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
1
st
Respondent
CONRAD
PRETORIUS
2
nd
Respondent
AFRIFORUM
NPC
3
rd
Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS, NORTH GAUTENG
4
th
Respondent
This judgment is handed
down electronically by circulation to the parties email addresses.
The date of the judgment is deemed to
be 30 April 2026.
JUDGMENT:
LEAVE TO APPEAL
Reid J
Introduction
[1]
The applicant seeks leave to appeal to the full court of this
Division or to the Supreme Court of Appeal, after a
rule nisi
order dated 25 August 2025 under case number 2025-145669 was
discharged by this Court on 9 February 2026.
[2]
The applicant (R du Plessis)
was initially not prosecuted criminally after an incident of road
rage. Instead, the second respondent
(Conrad Pretorius) was
prosecuted on two charges.
After
representations by AfriForum on behalf of Mr. Pretorius, the National
Director of Public Prosecutions (NDPP) reviewed and
set aside the
earlier decision not to prosecute the applicant and decided to
prosecute the applicant for attempted murder.
[3]
The applicant obtained an
interim
rule
nisi
on an
ex parte
basis on
25 August 2025 suspending that decision (to prosecute) pending a
review application against the decision to prosecute the
applicant.
[4]
On the return date, this
Court discharged the interim order.
The
applicant now seeks leave to appeal that discharge.
Grounds
of appeal
[5]
In essence, the applicant claims that this
Court erred in treating this as an ordinary challenge to a
prosecution decision,
thereby applying the wrong legal framework and
incorrectly refusing interim relief that was necessary to prevent
irreparable harm
from a
prima facie
illegal prosecution.
[6]
The applicant argues that the NDPP’s decision to prosecute
him
is illegal on the basis that:
6.1.
The NDPP failed to comply with constitutional
preconditions for
reviewing a decision not to prosecute in that it:
6.1.1.
Failed
to take proper representations from the applicant (not
disclosing adverse information) after receiving new information after
the decision to not prosecute the applicant was made.
6.1.2.
Failed
to consult the relevant Director of Public Prosecutions
(DPP) as required by section 179(5)(d) of the Constitution and
section
22(2)(c) of the
National Prosecuting
Authority Act 32 of 1998
(NPA Act).
[7]
The applicant further argues that the decision to prosecute
him,
is irrational and biased (e.g., applying double
standards, ignoring exculpatory evidence, and essentially
trying to
appease AfriForum).
[8]
The applicant contends that this Court erred in refusing to
confirm
the interim relief, on the basis that:
8.1.
A
prima facie
illegal prosecution causes irreparable
harm to liberty, dignity, and privacy (citing
Sanderson
v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC)).
8.2.
The balance of convenience favours suspending the
prosecution pending review.
8.3.
There is no adequate alternative remedy (the criminal trial
itself is the harm, not a remedy).
[9]
The applicant contends that this Court erred as
follows:
9.1.
In not distinguishing between an ordinary
decision to prosecute
and a review decision under section 179(5)(d) of the Constitution
(where prior non-prosecution exists and
specific preconditions
apply).
9.2.
In holding that the applicant failed to establish
a
prima
facie
case of illegality, when in fact the NDPP failed to provide
the applicant with the AfriForum representations or even the “gist”
of adverse considerations, violating the right to meaningful
representations. The NDPP failed to properly consult the Gauteng DPP
(in that there was no reciprocal exchange of ideas).
9.3.
In finding that the harm to the applicant is “speculative”
and that arrest/adverse publicity does not amount to irreparable
prejudice.
9.4.
In holding that the criminal trial is a suitable alternative
remedy,
whereas appearing as an accused itself causes irreparable harm.
9.5.
In concluding that the “floodgates”
argument applies
here, when this is a rare case of a review of a decision not to
prosecute – not an ordinary challenge to
a prosecution
decision.
9.6.
In applying In
Mapisa-Nqakula v National
Director of Public Prosecutions and others
2024
JDR 1749 (GP)
which concerned an original decision to
prosecute to this matter, which concerns a different constitutional
provision (section
179(5)(d)).
9.7.
In failing to find that the NDPP’s decision was
irrational
and biased, e.g.:
9.7.1.
Ignoring the unexplained adaptation of Mrs Pretorius’s
version.
9.7.2.
Applying double standards to the applicant as opposed to Mr
Pretorius.
9.7.3.
Incorrectly rejecting the applicant’s self-defence argument.
9.8.
In requiring irreparable trial prejudice or
mala
fides
as a prerequisite for interim relief, whereas
prima
facie
illegality alone should suffice to prevent irreparable harm
to fundamental rights.
[10]
In holding that the balance of convenience favours the NPA, when
the only alleged
harm to the NPA (loss of public confidence) is
speculative.
[11]
In concluding that the applicant had an alternative remedy, when
none exists
that can prevent the irreparable harm before the review
is heard.
Leave
to appeal
[12]
The test to be applied in an
application for leave to appeal is set out in section 17(1)(a) of the
Superior
Courts Act
10 of 2013
which provides that:
“
(1)
Leave to appeal
may only be given
where the
judge or judges concerned are of the opinion that-
(a)
(i) the appeal
would
have a reasonable prospect of
success
; or
(ii)
there is some
other compelling reason
why the appeal should be
heard, including conflicting judgments on the matter under
consideration;”
(own
emphasis)
[13]
In
Erasmus Superior Court Practice
CD Rom & Intranet: ISSN
1561-7476 Internet: ISSN 1561-7475, DE van Loggerenberg, ©
Jutastat e-publications Part A, Volume
3 under the heading
“Introduction, Superior Court System and Access to Superior
Courts” the author discusses the right
of a party to appeal to
a higher court, and compares section 20(4) of the
Supreme Court
Act
59 of 1959 (repealed with effect from 23 August 2013) with
section 17
of the
Superior Courts Act
10 of 2013
. The
author writes as follows:
“
Leave
to appeal.
Both
Acts limit the right to appeal to a higher court against a judgment
or order, either by the court appealed from or the court
appealed to.
This limitation was contained in section 20(4) of the
Supreme
Court Act
59 of 1959, and was re-enacted in
section
17
of
the
Superior
Courts Act
10
of 2013
.
In
Besserglik
v Minister of Trade, Industry and Tourism (Minister of Justice
Intervening)
[1996] ZACC 8
;
1996
(4) SA 331
(CC)
, dealing
with the repealed Act, the Constitutional Court pronounced that the
screening of unmeritorious appeals to prevent
the flooding of the
courts of appeal with hopeless cases did not constitute an
infringement of the fundamental right of access
to courts. The same
principle applies to the new Act, save that the wording of section 17
indicates that, in the test whether a
potential appeal could succeed,
the
bar has been raised
:
except in extraordinary cases,
leave
may be granted only if another court ‘would’ come to the
conclusion that the appeal had merit
. (See:
Magashule
v Ramaphosa
[2021]
3 All SA 887
(GJ) at para [6]; and also cited with approval in,
amongst others,
South
African Breweries (Pty) Ltd v Commissioner of the South African
Revenue Services
(unreported,
GP case no 3234/15 dated 28 March 2017) at para [5];
Pretoria
Society of Advocates v Nthai
2020
(1) SA 267
(LP)
at
para [5], overruled, but not on this point, in
Johannesburg
Society of Advocates v Nthai
2021
(2) SA 343 (SCA)
) Given
the case load of all courts, the new section does meet the
constitutional threshold of compliance.”
(some footnotes omitted;
own emphasis)
[14]
The Supreme Court of Appeal specifically found in
MEC for Health,
Eastern Cape v Mkhita
2016 JDR 2214 (SCA) that the application
for the test for leave to appeal has to be applied purposefully for
appeals where there
is no prospect of success and appeals which have
no merit, should not be granted leave to appeal. This is to
alleviate the
ever-increasing workload on the judicial system.
[15]
The Supreme Court of Appeal aptly described the test to grant leave
to appeal in
Cook v Morrisson and Another
2019 (5) SA 51
(SCA)
as follows:
“
[8]
The existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of special leave.
Something more, by way of special circumstances, is needed.
These may include that the appeal raises a substantial point of
law;
or that the prospects of success are so strong that a refusal of
leave would result in a manifest denial of justice; or that
the
matter is of very great importance to the parties or to the public.
This is not a closed list (Westinghouse Brake &
Equipment
(Pty) Ltd v Bilger Engineering (Pty) Ltd
1986
(2) SA 555 (A)
at
564H – 565E; Director of Public Prosecutions, Gauteng
Division, Pretoria v Moabi
2017 (2) SACR 384
(SCA) ([2017] ZASCA
85) para 21).”
[16]
These sentiments are echoed in
MEC for Health, Eastern Cape v
Mkhita
2016 JDR 2214 (SCA) the Supreme Court of Appeal emphasised
the application for the test for leave to appeal and found as follows
in paragraphs [16] to [18]:
“
[16] Once
again it is necessary to say that
leave to appeal
,
especially to this court,
must not be granted unless there
truly is a reasonable prospect of success
.
Section
17(1)(a)
of the
Superior Courts Act 10 of 2013
makes it clear
that leave to appeal may only be given where the judge concerned is
of the opinion that the
appeal would have a
reasonable prospect of success
; or there is some other
compelling reason why it should be heard.
[17] An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect
or realistic chance of
success on appeal.
A mere possibility of success, an
arguable case or one that is not hopeless, is not enough.
There must be a sound, rational basis to conclude that
there is a reasonable prospect of success on appeal
.
[18] In
this case the requirements of 17(1)(a) of the
Superior Courts
Act were
simply not met. The uncontradicted evidence is that the
medical staff at BOH were negligent and caused the plaintiff to
suffer
harm. The special plea was plainly unmeritorious
. Leave to
appeal should have been refused. In the result, scarce public
resources were expended: a hopeless appeal was prosecuted
at the
expense of the Eastern Cape Department of Health and ultimately,
taxpayers; and valuable court time and resources were taken
up in the
hearing of the appeal
. Moreover, the issue for decision did not
warrant the costs of two counsel.”
(own
emphasis)
[17]
The above illustrates that the legislation and the Supreme Court of
Appeal require
more than a mere possibility than that another judge
might
come to a different conclusion. The test is
whether another judge
would
come to a different conclusion.
Analysis
[18]
In my view, the
crux
of the application for leave to appeal
relates to the correct interpretation of sections 179(5)(d) of the
Constitution and section
22(2)(c) of the
NPA Act
.
[19]
These sections deal specifically with the process to be followed when
the NDPP executes
a decision made on whether to prosecute an
individual or not.
[20]
The fundamental question in this application for leave to appeal, in
my analysis,
is whether the NDPP failed to take proper
representations from the applicant by not disclosing adverse
information and giving
the applicant an opportunity to respond to the
adverse information, before the decision to not prosecute is changed
to a decision
to prosecute.
[21]
Having considered the grounds of the application for leave to appeal,
I hold the
view that another court may have come to a different
conclusion, being presented with the same facts. I hold this
view on
the basis that the outcome of the application was based on
the interpretations of sections 179(5)(d) of the Constitution and
section
22(2)(c) of the
NPA Act, which may have
been interpreted differently.
[22]
In as far as my research has been concerned, and
both parties’ legal representatives submissions, this is a
novel point in
law and have not been considered in our courts
before.
[23]
As such, I conclude that leave to appeal to the
Supreme Court of Appeal should be granted.
Cost
[24]
The general principle in appeals, is that the costs of the
application for leave
to appeal forms part of the costs of the
appeal, save where the applicant does not pursue the appeal in which
case the applicant
is to pay the application for leave to appeal.
[25]
I find no reason to deviate from this principle.
Order:
[26]
In the premise, I make the following order:
i)
Leave to appeal to the Supreme
Court of Appeal is granted.
ii)
The costs of the application for leave to
appeal forms part of the
costs of the appeal, save where the applicant does not pursue the
appeal in which case the applicant is
to pay the application for
leave to appeal.
FMM REID
JUDGE OF THE HIGH
COURT
NORTH WEST DIVISION
SEATED IN GAUTENG
DIVISION
PRETORIA
DATE OF ARGUMENT:
24 APRIL 2026
DATE OF JUDGMENT:
30 APRIL 2026
APPEARANCES:
FOR
THE APPLICANT:
ADV
JL (MAC) VD MERWE SC
ADV
DC DU PLESSIS
INSTRUCTED
BY:
JACQUES
CLASSEN INC ATTORNEYS
CNR
OF FLINDERS LANE & LYNNWOOD ROAD
LYNNWOOD
PRETORIA
TEL:
012 942 9476
EMAIL:
[email protected]
&
[email protected]
Ref:
JA CLASSEN/JC/GB/RDP1-0009
FOR
THE RESPONDENTS:
ADV
N CASSIM SC
ADV
J JANSE VAN RENSBURG
INSTRUCTED
BY:
THE
STATE ATTORNEY
ATTORNEY
FOR THE FIRST AND SECOND APPLICANT
316
THABO SEHUME STREET
PRETORIA
CENTRAL PRETORIA
REF:
MS A MOODLEY-3342/2025/Z10
AND
TO:
HURTER
SPIES ATTORNEYS
REPRESENTING
CONRAD PRETORIUS AND AFRIFORUM
SECOND
FLOOR, BLOCK A, LOFTUS PARK 416
KIRKNESS
STREET ARCADIA PRETORIA
REF:
W SPIES