IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE (Court a Quo): CCC1/15/2021
APPEAL CASE NO.: CA 53/2025
Reportable Yes
In the matter between:
NONTUTHUZELO PORTIA SIZANI Appellant
and
THE STATE Respondent
ORDER
The following order shall issue:
1. The appeal is dismissed.
2. There shall be no order as to costs.
I I L_ _ _______l_____
JUDGMENT: APPEAL
NOTYESI AJ
Introduction
[1] The Appellant is charged with 14 counts of fraud and 13 counts of
contravening section 4(1)(a) of the Prevention of Organised Crime Act 121 of
1998. The criminal proceedings are unterminated before the Regional Court of
the Eastern Cape sitting as the Specialised Commercial Crimes Court,
Gqeberha. The Appellant applied for and received further particulars.
Thereafter, she applied for an order compelling the State to furnish her with
additional further particulars, namely the curricula vitae of 14 Grade R
practitioners (the curricula vitae) and a closed list of witnesses intended to be
called by the State (the or a closed list).
[2] In response, the State alleged that it was unable to provide the curricula
vitae because they could not be located as they had been removed from the
relevant files. The State further alleged that it had furnished the Appellant with
a list of 41 witnesses who it might call and that it was not necessary to provide a
closed list.
[3] The magistrate dismissed the Appellant’s application after finding that
the requested particulars were not necessary for the Appellant to plead; that the
Appellant had already been furnished with the police docket; and that the State
was not in possession of the curricula vitae sought by the Appellant. This appeal
is directed against that ruling.
[4] The appeal is predicated mainly on the grounds that the magistrate erred
in dismissing the application by failing to appreciate the spirit of fairness and
justice underpinning section 87(1) 1 of the Criminal Procedure Act 51 of 1977,
as amended (“the Criminal Procedure Act”). The Appellant contends that the
section not only permits the request for further particulars, but also emphasises
the right of an accused person properly to understand the charges brought
against her to formulate a defence.
[5] The Appellant had contended that the magistrate ought to have found that
the State was deliberately withholding information to ambush her during the
criminal trial.
1 Section 87(1) provides as follows: ‘ An accused may at any stage before any evidence in respect of any
particular charge has been led, in writing request the prosecution to furnish particulars or further particulars of
any matter alleged in that charge, and the court before which a charge is pending may at any time before any
evidence in respect of that charge has been led, direct that particulars or further particulars be delivered to
the accused of any matter alleged in the charge, and may, if necessary, adjourn the proceedings in order that
such particulars may be delivered. Provided that the provisions of this subsection shall not apply at the stage
when an accused is required in terms of section 119 or 122A to plead to a charge in the magistrate’s court.’
[6] The Appellant also contended that the magistrate failed to ensure the
protection of her right to a fair trial when she refused to order the State to
produce both the closed list and the curricula vitae. The Appellant submitted
that the magistrate incorrectly exercised her discretion under section 87(1) of
the Criminal Procedure Act and ought to have directed the State to furnish the
additional particulars sought.
[7] On the contrary, the State submitted that the magistrate had properly
exercised her discretion in a manner consistent with the limits of section 87(1)
of the Criminal Procedure Act.
Issue before this Court
[8] The main issue before this Court is whether the magistrate had correctly
exercised her discretion under section 87(1) when she refused the application to
produce both the closed list and the curricula vitae.
Background Facts
[9] The criminal proceedings involving the Appellant have a protracted
history. The case was initially enrolled on 13 December 2012. The trial
commenced on 18 August 2014.
[10] The State closed its case on 23 February 2016, whereafter the Appellant
applied for a discharge in terms of section 174 of the Criminal Procedure Act.
The State conceded that the Appellant should be discharged on certain charges.
On 29 July 2016, the Appellant was discharged on some charges. The
application for discharge was refused in respect of 16 charges.
[11] The defence commenced with its case on 14 August 2018. The Appellant
testified and was thereafter cross-examined until 17 August 2018. Following her
cross-examination, the Appellant refused to close her case, contending that she
required the curricula vitae to determine how to proceed with her defence. She
maintained that the curricula vitae were in the possession of the State. The
State, however, indicated that it was not in possession of the curricula vitae. At
some stage, the magistrate ordered the State to produce further documentation,
which it did. Those documents, however, did not include the curricula vitae.
The Appellant remained dissatisfied and applied from the bar to produce those
documents. The magistrate refused that application. Thereafter, the Appellant
refused to either proceed with her defence or to close her case. The magistrate
invoked section 342A (3) (d) of the Criminal Procedure Act and deemed the
defence case to be closed. On 19 November 2018, the parties presented their
respective oral submissions. On 29 March 2019, the Appellant was convicted on
some of the charges. She subsequently launched a review application on 26
September 2019. In his judgment, which was delivered on 18 August 2020,
Lowe J granted the Appellant the relief sought in the review application.
[12] Following the review judgment, the matter was referred to the Director of
Public Prosecutions, Eastern Cape, for a decision on whether the Appellant
should be re-arraigned, together with a directive that any retrial should proceed
before a different magistrate. The Appellant was indeed re -arraigned on 25
October 2021 on the present charges consisting of 14 counts.
[13] The Appellant caused a request for further particulars to be served upon
the State. In the request, the Appellant sought for:
‘1. All Curriculum Vitae of the particulars as part of the documents that resulted in the
appointment by the Department of Education and/or a detailed explanation from the
Department on how possible it is to result in the appointment by the accused or any
other person; and
2. The list of witnesses currently to be called in this matter.’
[14] The State replied to the Appellant’s request for further particulars. The
response was:
‘AD PARAGRAPH 1
1. The evidence is that most of the grade R practitioners handed over their respective
curriculum vitaes to the Accused. The said curriculum vitaes of the various grade
R practitioners were removed from the personnel files at the Department of
Education. After a thorough search for the various curriculum vitaes none could
be found. It is uncertain who removed the said documents.
2. The usual process for the appointment of Grade R practitioners is regulated by the
Guidelines for Management of Grade R classes, Circular no. 7 of 2008, dated 30
May 2008. This was however not strictly followed.
3. ECD practitioners are usually appointed by the School Governing Bodies of the
various schools who enter into one year contracts with the ECD practitioner
and/or Grade R practitioner. The Department subsidises the practitioner for the
services rendered to the school by way of the payment of a monthly stipend.
4. The correct and prescribed process for the appointment of Grade R practitioners
entails the following:
4.1 Upon identifying the need for a Grade R practitioner, a school must apply to
the Department for the funding of a Grade R class by completing the prescribed
application form, signed by the chairperson of the School Governing Body (SGB)
and the principal.
4.2 The ECD co -ordinator will then take the applications to the Provincial ECD
Committee.
4.3 The committee will then make recommendations to the Provincial Head Office
where posts will be created. The ECD co -ordinator notifies the school of the
creation of the post. The appointment will then be activated through the Human
Resources Department.
4.4 After receiving approval of their application, the school would invite
applications from candidate practitioners for the recruitment process. After receipt
of the curriculum vitae documents the principal and SGB screen the applications
to inter alia ensure that the applicants met the minimum required qualification for
appointment in the post. After they interview the applicants the SGB and principal
make an appointment and submit the documentation to the District Office. The
ECD co -ordinator must screen the applications and submit it to the District
Director of the Department for his signature.
4.5 On assumption of duty by the ECD practitioner an “Assumption of Duty”
form is signed by the principal of the school and the District Director as proof that
the ECD practitioner has commenced duties.
4.6 All these documents are then sent to the HR department for processing.
4.7 The practitioner’s personal and bank details are then entered on the PERSAL
system where after the ECD practitioner is paid a monthly stipend by the
Department.
5. It sometimes happened that the principal of a school would approach the ECD
coordinator and ask for assistance to fill a vacancy. However, the principal would
always be aware of the request.
6. The evidence is that whilst the curriculum vitaes were required for the completion
of the appointment process, the main focus was the assumption of duty forms as
that document indicated that the grade R practitioner had taken up a post. The
officials then proceeded to place the grade R practitioners on the system based on
the assumption of duty forms.
AD PARAGRAPH 2
The witnesses the State intends to call are the following witnesses but this is not a
numerous clausus. [A list of 41 names was provided].’
[15] The Appellant was dissatisfied with the further particulars and
consequently launched an application by way of notice of motion for further
particulars. The relief sought in the notice of motion is in the following terms:
‘1. That the court make an order compelling the state to furnish the Defence with the
correct further particular in respect of the First and Second Request; and
2. That the State provide section B and C of the police docket.’
[16] In the founding affidavit, the Appellant made the following averments:
‘8. I submit that the first request as per the request relating to “ANNEXURE PROS1”
was not answered correctly and or sufficiently in that I am not provided with the
Curriculum Vitaes and or, in the alternative, I am not provided with a detailed
explanation from the Department of Education on how possible it is to result in the
appointment by the myself (sic) or any other person (who is that person?).
9. I submit that the request for further particulars relating to request 1 (one) is in line
with my constitutional rights to a fair trial.’
[17] In relation to the closed list, the Appellant further averred in her founding
affidavit:
‘22. That although the list of witnesses and or the information provided is not
compelling on the State to follow it, whatever information and or list of witnesses
they intend on calling ought to be made available to me from the onset or at such time
that I ask for such further particulars relating thereto in order to allow me a proper
opportunity to prepare for my defence.
…
25. The State must be ordered to provide a full list of their witnesses so as to avoid to
trial me by ambush, and that this submission as well as the above if the court grants an
order compelling the State, will allow me to have sufficient information to answer the
allegations made against me.’
[18] In relation to the request for part B and C of the police docket, the
Appellant averred in her founding affidavit that, because she intended
challenging certain aspects of the investigation, she required the contents of
sections B and C of the police docket. She also averred that her matter was
complex and ‘that the above request will allow me to prepare sufficiently for the
trial.’
[19] Although the State did not deliver an answering affidavit, the application
was opposed. It was contended on behalf of the State that the charge sheet
contains a detailed preamble consisting of 106 paragraphs, which was further
supplemented by the response to the request for further particulars. The State
further contended that the Appellant had been supplied with an electronic copy
of the police docket, the charge sheet, as well as additional documents. The
State maintained that, whilst it was under an obli gation to provide particulars of
the material facts it intended to prove, it was under no obligation to disclose the
evidence which it will use to prove those facts. According to the State, the
preamble to the charge sheet, read with the further particulars furnished,
sufficiently set out how the various practitioners were appointed and that there
was accordingly no need for the curricula vitae. The State maintained that it was
not in possession of the curricula vitae. According to the State, the Appellant
had been furnished with adequate information to prepare her defence and her
right to a fair trial had therefore not been infringed or will not be infringed. The
State further contended that a list of witnesses had already been furnished and
that it was under no duty to confirm that the list constituted a closed list. In
respect of section B and C of the docket, the State submitted that the entire
docket was furnished to the Appellant.
The magistrate’s findings
[20] The magistrate accepted that the State was not in possession of the
curricula vitae. She further accepted that a diligent search for the curricula vitae
had been conducted and that they were no longer in the Department’s files. The
magistrate concluded that “compelling the State under the circumstances to
provide further particulars that it does not have may amount to ordering the
State to inform the Appellant of the evidence it will likely lead to proving the
charges against her”. She accordingly concluded that the State could not be
compelled to provide what it did not have.
[21] In relation to the Appellant’s request to be furnished with a closed list, the
magistrate found that it was unnecessary for the State to respond to what had
already been sufficiently stated in the preamble to the charge sheet and in the
further particulars already supplied. She concluded that the Appellant had been
furnished with the contents of the docket, which contained statements of State
witnesses, and that the Appellant had, in addition, been furnished with a list of
the witnesses the State intended calling to prove its case. The magistrate further
found that the Appellant’s request was not made for purposes of preparing her
defence, but rather constituted a fishing expedition aimed at ascertaining which
witnesses were available to the State to prove its case. The magistrate was
therefore satisfied that the information provided by the State by way of further
particulars was sufficient to ensure that the Appellant could not complain that
she would not receive a fair trial. The magistrate found that the Appellant was
well informed of the charges against her and that she knew which witnesses the
State intended calling to prove its case.
Legal framework
[22] In S v Cooper & Others 2 , the court, dealing with the provisions of the
Criminal Procedure Act 56 of 1955, which was repealed by the present Criminal
Procedure Act, stated:
‘These applications must be considered in the light of the pertinent provisions of the
Criminal Procedure Act, 56 of 1955, and the principles laid down in the decided
cases. In terms of sec. 315 a description of the offence in the words of the statutory
2 S v Cooper & Others 1976 (2) SA 875 (T) 885G - 885H.
enactment is sufficient, but the charge must at the same time set forth the offence in
such a manner as may be reasonably sufficient to inform the accused of the nature of
the charge; see also R v Alexander and Others, 1936 A.D. 445 at p. 457; R v Moyage
and Others, 1958 (3) S.A. 400 (A.D.) at p. 413. If it does not, he may apply for
further particulars under the provisions of sec. 179, and the charge is to be regarded as
amended in conformity with the further particulars furnished. The object of asking
for further particulars is to enable the accused to know the case which is proposed to
be made against him and thus to enable him to prepare his defence; R v Mokgoetsi,
1943 A.D. 622 at p. 627. The prosecution must therefore furnish particulars of the
relevant or material facts which it proposes to prove but is under no obligation to
disclose its evidence by which it proposes to prove the facts; R v Heyne and Others
(1), 1958 (1) S.A. 607 (W) at p. 609. Care must therefore be exercised not to confuse
particulars which may be essential to inform the accused fairly and reasonably of the
case he has to meet with the evidence which may be tendered to prove the
commission of the offence.’
[23] Section 87 of the Criminal Procedure Act is akin to those provisions
found in the 1955 Criminal Procedure Act. The section forms part of the
procedural framework regulating the conduct of criminal trials and, in
particular, the exchange of information necessary to ensure a fair trial under
section 35(3) of the Constitution. Its purpose is closely linked to the accused’s
constitutional right to be informed of the charge with sufficient detail to answer
it adequately.3
3 Commentary on the Criminal Procedure Act by du Toit et al, under section 87.
[24] In R v Adams & Others4 the court stated:
‘It is a well -known principle in our law that an accused person is entitled to such particulars
as he properly requires for the purpose of preparing his case before he is called upon to plead
and enter upon his defence, and he is entitled to such particulars even if it entails a disclosure
of Crown evidence.’
[25] This is the test that has consistently been applied by the courts in
considering requests for further particulars. Several formulations have been
developed to determine whether the charge gives the accused sufficient
information regarding what the State intends to allege, so as to enable the
accused to prepare a defence.
[26] In Jaca v Minister of Justice & Others,5 it is stated:
‘The whole question of further particulars in the relevant context is discussed in great
detail in Hiemstra’s Criminal Procedure, Lexis Nexis, at 14 -21. It is stated that the
purpose of further particulars is to inform accused persons of the case which is to be
brought against them, so that they can prepare their defence. When considering
whether particulars should be given, the question is whether the charge gives the
accused sufficient information about what the State is going to allege. This depends
obviously on the nature of the offence and, in the case of a statutory offence, on the
wording of the section of the particular legislation. Several tests have been fashioned
throughout the decades, such as whether i) a refusal would prejudice the accused; ii)
4 R v Adams & Others 1959 (1) SA 646 at 656F-G.
5 Jaca v Minister of Justice & Others (unreported, GNP case no: A405/13, 11 November 2013 at [4] – [5]).
the giving of the particulars is in the interest of justice; and iii) it is pertinent to the
points in issue. Ultimately, the question is whether the accused reasonably needed the
information. On appeal, the Court will only investigate whether a refusal of
particulars prejudice the accused.’
[27] An accused’s right to be properly informed of the case that the State
intends to prove against him must be strictly observed, to the extent that, if the
charge contains particulars that are meaningless or confusing, rather than
explanatory in nature, the accused may be acquitted on appeal owing to the
prejudice caused by such particulars.6
[28] Section 87 of the Criminal Procedure Act confers a judicial discretion
upon the trial court to order that the accused be furnished with further
particulars or refuse a request for further particulars. The court exercises a true
or narrow discretion, which must be exercised judicially upon a consideration of
all the relevant facts and circumstances of the particular case. The purpose of
the discretion is to balance the competing considerations of: (a) the accused’s
constitutional and procedural right to be informed of the case against him or her
with sufficient particularity to prepare a proper defence; and (b) the State’s
interest in avoiding unnecessary disclosure of its evidence, trial strategy, or
information that goes beyond what is required for a fair trial.
6 See Jaca supra.
[29] In Mystic River Investments 45 (Pty) Ltd & Another v Zayeed Paruk
Incorporated & Others7 it was held that the extent of an appellate court’s power
to interfere with the exercise of a discretion by the court a quo depends on the
nature of the discretion concerned. In Trencon Construction (Pty) Ltd v
Industrial Development Corporation of South Africa Ltd and Another 8
Khampepe J held that:
‘In order to decipher the standard of interference that an appellate court is justified in
applying, a distinction between two types of discretion emerged in our case law. That
distinction is now deeply rooted in the law governing the relationship between appeal
courts and courts of first instance. Therefore, the proper approach on appeal is for an
appellate court to ascertain whether the discretion exercised by the lower court was a
discretion in the true sense or whether it was a discretion in the loose sense. The
importance of the distinction is that either type of discretion will dictate the standard
of interference that an appellate court must apply.’
[30] Turning to the present case, the proper approach is to accept that, at a
procedural level, the State is required to inform the Appellant of all the essential
averments, and that a charge sheet should contain all the essential allegations to
be proved by the prosecution in order to secure a conviction against the
Appellant. The position is well set out in S v Sewela.9
7 Mystic River Investments 45 (Pty) Ltd & Another v Zayeed Paruk Incorporated & Others (Case No: 432/2022)
[2023] ZASCA 54 (19 April 2023).
8 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another [2015]
ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 83.
9 S v Sewela 2007 (1) SACR 123 (W).
[31] In S v Thobejane, 10 the court dealt with the requirement that sufficient
information be provided to the accused as follows:
‘At common law the accused, according to the principles of a fair trial, is entitled to
sufficient information to:
(a) Enable him to understand what the charge against him is and what conduct on
his part is alleged to constitute an offence, and
(b) Sufficient information to enable him to instruct his legal adviser and to prepare
his defence (which in practice would largely overlap with (a) above), and
(c) Insofar as the charge sheet and summary of facts supplied by the State is
inadequate for the above purposes to such further disclosure or information
that may be required to achieve such purposes.’ (Emphasis added)
[32] It is against these principles that I will consider the contentions advanced
by the parties in this appeal.
Contentions of the parties before this Court
[33] The Appellant contended that she could not formulate a proper defence in
response to the State’s case without the curricula vitae. Counsel for the
Appellant submitted that this Court should reject the State’s assertion that a
diligent search had been conducted for the curricula vitae and that they had been
removed from the Department’s files. Counsel went so far as to submit that this
10 S v Thobejane 1995 (1) SACR 329 (T) at 334.
Court should find that the State was misleading the Appellant and this Court.
He pointed out that there was no affidavit from the Department in this regard.
[34] Counsel further contended that the State should be compelled to produce
an updated or closed list of the witnesses it intended calling during the trial. The
basis of this submission was that the matter had been ongoing for more than a
decade and that there was a strong possibility that some witnesses had lost
interest in the matter, while others may have passed away due to events such as
the COVID-19 pandemic.
[35] Counsel also submitted that, in those circumstances, the list of 41
witnesses furnished by the State may well have been reduced and that the State
could therefore not rely on that list. Counsel argued that the State was required
to specify, in a definite or closed list, the names of the witnesses it intended
calling, together with the nature of the evidence to be led by each witness. In
support of his submissions, counsel relied on the judgment of Lowe J 11 in the
review application and referred to Shabalala & Others v Attorney General of
the Transvaal & Another 12. Shabalala is no authority for the proposition that
the State should produce the list as further particulars. The Appellant’s reliance
on Shabalala in support of a closed list, as further particulars, is misplaced.
11 NP Sizani v Mr Mpofu N.O & Another Case No: 2804/2019 delivered in the Eastern Cape Division of the
High Court, Makhanda on 18 August 2020.
12 Shabalala & Others v Attorney General of the Transvaal & Another CCT 23/94 [1995] Page 12, 1995 (12)
BCLR 1593, 1996 (1) SA 725 (CC).
[36] On the other hand, the State submitted that the magistrate’s ruling was
interlocutory in nature and, consequently, did not constitute a final judgment.
Counsel for the State cautioned against the readily interference by appellate
courts with interlocutory decisions and against entertainment of piecemeal
appeals. Relying on Zweni v Minister of Law and Order 13, the State submitted
that an interlocutory order is appealable only if it has a final and definitive
effect on the rights of the parties or disposes of a substantial portion of the relief
claimed. Counsel submitted that this was not such a case. The State further
contended that the Appellant had failed to demonstrate that the interests of
justice warranted this Court hearing or determining the appeal.
[37] As I understand the State’s submissions, the contention is that the
Appellant failed to identify the grave injustice that may result from the
magistrate’s ruling or to explain the manner in which she had been materially
prejudiced thereby. The State’s contention was that the curricula vitae were
never central to its case and were therefore unnecessary for purposes of the
Appellant’s plea. The State maintained that it was not in possession of the
curricula vitae. In relation to the closed list, the State submitted that a witness
list is not “particulars” contemplated in section 87 of the Criminal Procedure
Act and that there is no authority compelling the disclosure of a closed list.
13 Zweni v Minister of Law and Order 1993 (1) SA 523 (A).
[38] In essence, the State submitted that the Appellant had failed to
demonstrate that the refusal by the magistrate to order the production of the
curricula vitae or a closed list had resulted, or would result, in irreparable
prejudice to her or a miscarriage of justice.
Evaluation and Analysis
[39] The contention of the State is that the Appellant’s reliance on appeal
proceedings to challenge procedural rulings before the completion of the trial is
misplaced and contrary to established principles of criminal procedure. I
disagree. In D Behrman v Regional Magistrate, Southern Transvaal and
Another14 , it was stated:
‘The principle to be applied is that the Court will make an order if the applicant is
likely to be prejudiced by the refusal, in the court below, to order the particulars; the
question is whether such prejudice has been shown. It seems to me that prejudice has
been shown. It is true that the charges which I have read, both the main charge and the
alternative charge, set out an offence. Neither of these charges could be excepted to.
But when the question of particulars is considered what has to be considered is
whether the charge sufficiently informs the accused person of what the case is that he
has to meet. It seems to me that this charge, both on the main count and on the
alternative count is lacking in particularity.’
14 D Behrman v Regional Magistrate, Southern Transvaal and Another 1956 (1) SA 318 (T) at 319-20.
[40] Similarly, in Weber & Another v Regional Magistrate, Windhoek 15 the
court held:
‘Among the 'rare case' in which the Supreme Court has on occasion thought fit to
intervene in unconcluded proceedings in magistrates' courts are cases where the
accused complained that the charge against him lacked sufficient particularity. An
accused person is entitled to such particulars of the offence with which he is charged
as will sufficiently inform him of the case he has to meet and enable him to prepare
and present his defence. If the charge is deficient in this respect, and the magistrate
refuses to direct that the State furnish such particulars as are necessarily required for
the purpose aforestated, the accused need not abide by the magistrate's ruling but can
apply to the Supreme Court for its intervention in the proceedings of the lower court.
It is, however, clear from what I have stated with reference to the cases
of Wahlhaus and Ismail and Others that the Supreme Court will intervene only if it is
satisfied that, in the circumstances of the particular case, a grave injustice might result
if the accused were expected to proceed with his defence without the necessary
particulars having been furnished.
Cases in which the Supreme Court did so intervene are the following: Behrman v
Regional Magistrate, Southern Transvaal and Another , 1956 (1) SA 318 (T); Essop v
Regional Magistrate, Western Transvaal and Another, 1963 (1) PH. H16.’
[41] The above cases dealt with the requests for further particulars under the
1955 Criminal Procedure Act. That was long before the present constitutional
dispensation. In view of the accused’s fair trial rights entrenched in section
15 Weber & Another v Regional Magistrate, Windhoek 1969 (4) SA 394 (SWA) at 397.
35(3) of the Constitution, courts would intervene in circumstances where the
accused complains of a defective charge that fails sufficiently to inform him or
her of the allegations against him or her. I agree that, generally, it is most
unusual for an appeal court to interfere in proceedings of a lower court that have
not yet been finalised. The court should, therefore, be reminded of the principles
stated in Gardiner & Lansdown, South African Criminal Law and Procedure ,
Vol 1 at p 750, where it is stated:
‘While a Superior Court having jurisdiction in review or appeal will be slow to
exercise any power, whether by mandamus or otherwise, upon the unterminated
course of proceedings in a court below, it certainly has the power to do so, and will do
so in rare cases where grave injustice might otherwise result or where justice might
not by other means be attained. See Wessels v General Court Martial and Another,
1954 (1) SA 220 (E) and p.4. In general, however, it will hesitate to intervene,
especially having re gard to the effect of such a procedure upon the continuity of
proceedings in the court below, and to the fact that redress by means of review or
appeal will ordinarily be available.’
[42] I conclude that this Court is entitled to hear the appeal and therefore
rejects the State’s submission insofar as it objects to the hearing of the appeal.
[43] The reasons advanced by the Appellant in the main in seeking this
Court’s intervention are that: (1) she needs to be furnished with the curricula
vitae; and (2) she requires the State to provide a closed list. The State had
responded to the request in writing. The magistrate accepted the State’s
explanation that it does not have the curricula vitae and could therefore not
provide them to the Appellant.
[44] In S v Alexander and Others,16 it was stated:
‘The first ground of exception taken by the defence seems almost a contradiction in
terms. If the State does not know how many meetings were held at certain places
charged, it obviously cannot inform or be compelled to inform the accused. It can
merely be expected to do what in fact it has tried to do here, and that is to inform the
accused of what it does know and upon what it is going to rely. At this stage of the
proceedings, I repeat that it is not for me to comment on what sort of case the State is
making, as was posed by Mr Gordon, if the State does not know and cannot give the
particulars asked for.’
[45] Counsel for the Appellant placed considerable reliance on the review
judgment of Lowe J. He submitted that Lowe J had directed the State to provide
the curricula vitae to the Appellant. There is no merit in this submission. What
is apparent from the judgment of Lowe J is that, at some stage, the magistrate
had ordered the State to produce further documentation. In response to that
order, the State delivered additional documents consisting of 3 669 pages. The
16 disputed curricula vitae were not part of the additional documents. It was the
Appellant who contended that the documents were being withheld to the
16 S v Alexander and Others 1964 (1) SA 249 (C) at 252.
prejudice of the defence. Nothing further is stated in the judgment of Lowe J
regarding the curricula vitae. Lowe J did not find that the curricula vitae were
being withheld by the State. Instead, Lowe J concluded that:
‘It is clear from the record that, whilst Applicant’s Counsel invited the Court’s and
prosecution’s attention to Section 342A of the CPA, neither Applicant nor the
prosecution gave notice of intention to apply for the order contemplated in Section
342A(3)(d). As the magistrate could not do so mero motu, his ruling constitutes a
technical gross irregularity.
The Magistrate’s additional reasons for the ruling do not cure this clear irregularity.’
[46] In relation to the Appellant’s access to the 16 curricula vitae, Lowe J
stated only the following:
‘The answer is clear as the refusal of Applicant’s request for access to the 16 CV’s as
referred to, if they existed, and this supported in fact by the prosecution, precluded
further potential consideration by the Defence of the need to utilise same in
Applicant’s defence and very potentially led to the exclusion of material evidence – a
failure of justice in the sense required clearly resulted. This discloses sufficient
prejudice, at this stage, such as to justify the review being heard in medias res.’
[47] Self-evidently, Lowe J did not conclude that the curricula vitae were in
existence. He remained doubtful regarding the existence of the curricula vitae. It
is therefore incorrect for the Appellant’s counsel to submit, as a fact, that Lowe
J had confirmed the existence of the curricula vitae. The uncontroverted version
of the State is that the curricula vitae could not be found in the relevant files and
that the State is not in possession thereof. The State also indicated that it does
not rely on the curricula vitae to prove its case. The allegations set out in the
preamble to the charge sheet, together with the additional further particulars,
sufficiently inform the Appellant of the case against her and the allegations that
the State intends proving at trial. I therefore conclude, on this aspect, that the
Appellant’s right to be informed of the charges against her has not been
violated. The magistrate’s f inding, that the State does not possess the curricula
vitae and cannot be ordered to furnish the appellant with them, is correct and
must be confirmed.
[48] The second request pertains to a closed list of witnesses whom the State
intends calling to prove its case. There is no merit in this request. The Appellant
has been provided with the full police docket and witness statements. She is
therefore aware of the evidence that each witness in the police docket may give
against her. Counsel could not produce any authority requiring the State to
provide a definitive list of State witnesses. I have already found that the
Appellant’s reliance on Shabalala as authority for the proposition is misplaced.
[49] The Appellant was furnished with a list of 41 witnesses. It appears to this
Court that the Appellant seeks disclosure of the State’s trial strategy in
conducting its case. This is borne out by the demand for a closed list based on
allegations that some witnesses may have ‘lost interest’ or may have ‘died’ due
to events such as Covid -19. These submissions were speculative and lacked
substance or persuasive weight. The duty rests upon the State to prove its case
through the leading of evidence.
[50] In this Court’s view, it is sufficient for the Appellant to be furnished with
the police docket, the charge sheet and witness statements. The witness list is
supplementary in nature and not a legal requirement. I agree with the magistrate
that the Appellant is engaged in a fishing expedition or is seeking to delay the
commencement of the trial.
[51] In my view, the magistrate carefully considered the nature of the
particulars requested by the Appellant and correctly exercised her discretion. I
agree with the magistrate’s findings that, in the circumstances of this case, the
Appellant is not entitled to an order that she be furnished with the curricula
vitae or a closed list. The appeal should accordingly be dismissed.
[52] This Court is concerned about the excessive delay in the commencement
and conclusion of the criminal trial. Delays, such as this, serve only to defeat
the speedy resolution of criminal cases. That is contrary to section 35(3)(d) of
the Constitution. The public interest and the interests of justice demand that
cases such as this should be resolved speedily, in accordance with the right to a
fair trial. The court should caution against the use of the so -called “Stalingrad
approach” in our criminal justice system.
[53] This Court may only hope that the outcome of this appeal shall pave the
way for the trial to resume and to be concluded speedily and without further
delay.
Conclusion
[58] In the premises, the appeal against the ruling of the magistrate should be
dismissed. Regarding costs, in my view, the Appellant was exercising her
constitutional right. In such circumstances, this Court would make no order as
to costs. This Court must caution that in appropriately pleaded cases, it would
not hesitate to make a costs order if it finds that its procedures were abused.
[59] In the result, I would issue the following order:
1. The appeal is dismissed.
2. There shall be no order as to costs.
M NOTYESI
ACTING JUDGE OF THE HIGH COURT
I agree:
G H BLOEM
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Appellant : Adv Madukuda
Instructed by : Thulo Attorneys
c/o Mgangatho Attorneys
Makhanda
Counsel for the Respondent : Adv Brink
Instructed by : Director of Public Prosecutions
Makhanda
Heard on : 17 April 2026
Judgment Delivered on : 2 June 2026