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[2026] ZAGPJHC 660
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Ndlovu v National Director of Public Prosecutions and Others (2024/007128) [2026] ZAGPJHC 660 (9 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 2024-007128
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
9
June 2026
NEMAVHIDI
AJ
In the matter between:
MYLES
NTOKOZO NDLOVU
Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
THE
PROSECUTOR, REGIONAL COURT, PALMRIDGE
Second Respondent
THE
PRESIDING
MAGISTRATE,
Third
Respondent
REGIONAL COURT,
PALMRIDGE
Summary:
Review — appeal — review versus appeal
— further particulars — disclosure — FSCA materials
—
commercial crime — money laundering — costs in
criminal matters — scale B costs — gross irregularity —
lack of jurisdiction — bias — improper admission of
evidence — delay in criminal proceedings — rule 53
of the
Uniform Rules of Court —
s 22
of the
Superior Courts Act 10 of
2013
—
Superior Courts Act 10 of 2013
—
s 87
of the
Criminal Procedure Act 51 of 1977
—
Criminal Procedure Act 51
of 1977
— Banks Act 94 of 1990 — Financial Action Task
Force — FATF grey list
JUDGMENT
NEMAVHIDI AJ:
Introduction
[1]
This is an application for the review of a decision handed down in
the Regional Court for the District of Ekurhuleni Central,
held at
Palm Ridge, on 16 November 2023. In that decision, the third
respondent (the presiding magistrate) dismissed an application
brought by the applicant, Mr Myles Ntokozo Ndlovu, in terms of
s 87
of the
Criminal Procedure Act
[1
]
for further disclosure of information.
[2]
The applicant is facing serious commercial crime charges in the court
a quo. The charges, which have been pending since
2017, include 33
counts of fraud, alternatively theft, one count of contravening
s11(1) of the Banks Act
[2]
, and
one count of money laundering in contravention of the Prevention of
Organised Crime Act
[3]
. The
total value involved in the charges is approximately R16 million.
[3] The background
to the s87 application is somewhat protracted. During August 2023,
the State disclosed a report compiled
by the Financial Sector Conduct
Authority (FSCA) to the defence. This disclosure occurred more than
five years after the accused's
first appearance. The applicant took
issue with the fact that the report was incomplete and extensively
redacted. He contended
that the underlying records of the FSCA’s
investigation—including interview records, witness statements,
and seized
documents—were crucial for him to prepare his
defence properly.
[4]
In a previous court sitting (prior to the application now under
review), the State indicated that it would not rely on
the FSCA
report during the trial. The court a quo subsequently barred the
State from using the FSCA report in its case. However,
this did not
satisfy the applicant. He persisted in his request for the underlying
documents, arguing that his right of access
to information under s32
of the Constitution
[4]
, read
with his right to a fair trial under s35(3), entitled him to receive
them, irrespective of whether the State intended to
use them.
[5] On 16 November
2023, the applicant’s legal representative, Mr Steenkamp,
brought a formal application in terms of
s87 of the CPA, requesting
the court to compel the State to disclose the underlying FSCA
records. The State, represented by Mr
Maseule, opposed the
application. The State’s primary submissions were that (a) the
requested documents did not form part
of the State’s case; (b)
the documents were not in the possession of the National Prosecuting
Authority (NPA) but were held
by the FSCA, a separate legal entity;
and (c) the court a quo had already barred the State from using the
FSCA report, and compelling
disclosure of its contents would
undermine that order.
[6] After hearing
argument, the third respondent dismissed the application. The
magistrate found that the purpose of s87 was
to inform an accused of
the case they are to meet, not to allow them to embark on a “fishing
expedition” for possible
loopholes. The magistrate further held
that the State could not be compelled to provide information that was
not in its possession
and that did not form part of the case against
the accused.
[7] It is against
this dismissal that the applicant now brings the present review
application. The applicant seeks an order
reviewing and setting aside
the magistrate’s ruling and compelling the State to disclose
the requested FSCA materials.
The Review
Application
[8]
The review is brought in terms of Rule 53 of the Uniform Rules of
Court, read with
s22
of the
Superior Courts Act
[5
]
.
The applicant’s grounds for review, as set out in the joint
practice note, are essentially threefold:
8.1
The third respondent erred by failing to find that the right to a
fair trial (s 35(3) of the Constitution) and the right to
access to
information (s32 of the Constitution) entitled the applicant to the
requested disclosure.
8.2
The third respondent erred by refusing to compel the State to
disclose documents that were relevant to the applicant`s defence,
even though the State would not itself rely on them.
8.3 The third respondent
erred by accepting the State’s submission that it did not
possess the documents, without considering
that the documents were
held by a separate state organ (the FSCA) and were thus
constructively in the State’s control.
[9]
The first and second respondents oppose the review. Their primary
argument, as set out in their answering affidavit and
heads of
argument, is one of procedural law. They contend that the applicant
has chosen the incorrect remedy. They submit that
the magistrate’s
ruling was a judicial determination on a point of law. If the
applicant believes that ruling was wrong,
his remedy was to appeal
it, not to seek a review. They further argue that, in any event, the
State cannot be compelled to disclose
information it does not
possess, and the applicant has alternative remedies, such as a
subpoena duces tecum or a request
under the Promotion of
Access to Information Act
[6]
,
to obtain the documents from the FSCA.
The Distinction
Between Review and Appeal
[10] The crisp
issue for determination in this matter is not, in the first instance,
the correctness of the magistrate’s
decision on the disclosure
application. The preliminary, and decisive, issue is whether the
applicant has approached this Court
by way of the correct procedure.
The question is whether a party who is dissatisfied with a
magistrate’s ruling on a procedural
application (such as a
request for further particulars) should attack that decision by way
of an appeal or by way of a review.
[11] The
distinction between an appeal and a review is well-established in our
law. An appeal is directed at the correctness
of the judgment or
order itself. It concerns whether the court a quo came to the right
conclusion on the merits. A review, on the
other hand, is directed at
the process by which the judgment was reached. It concerns whether
there was some latent defect in the
proceedings, such that the
applicant did not have a fair trial, irrespective of whether the
outcome was correct or not.
[12] The power of
this Court to review proceedings of the Magistrates’ Court is
derived from
s22
of the
Superior Courts Act. Section
22(1) provides
that the grounds for review are:
“
(a)
absence of jurisdiction on the part of the court;
(b) interest in the
cause, bias, malice or the commission of an offence referred to in
Part 1
to
4
, or
section 17
,
20
or
21
(in so far as it relates to the
aforementioned offences) of Chapter 2 of the
Prevention and Combating
of Corrupt Activities Act, 2004
, on the part of the presiding
judicial officer;
(c) gross irregularity in
the proceedings; and
(d) the admission of any
evidence which is not legally admissible, or the rejection of any
evidence which is legally admissible”.
[13]
The list of grounds in
s22
is exhaustive. It does not include a mere
misdirection on the facts or the law. Where a judicial officer
applies his or her mind
to the issues and comes to a wrong
conclusion, that is an error of law or fact which is appealable, not
reviewable. As was stated
in
S
v Xaba
[7]
,
the failure by a prosecutor to disclose a prior statement, while an
irregularity, is one that must be addressed at trial and,
if
necessary, on appeal. The key question is whether the irregularity
vitiates the trial process itself.
[14]
In
Vermaak
v Magistrate Page and Another
[8]
,
Windell J summarised the concept of a “gross irregularity”
as follows:
“
Van
Loggerenberg et al interprets gross irregularity as an ‘irregular
act or omission by the presiding judicial officer in
respect of the
proceedings of so gross a nature that it was calculated to prejudice
the aggrieved litigant, on proof of which the
court would set aside
such proceedings unless it was satisfied that the litigant had in
fact not suffered any prejudice’.”
[15] The
applicant’s complaint is not that the magistrate was biased,
that she lacked jurisdiction, or that she committed
a gross
irregularity in the conduct of the proceedings. The applicant’s
complaint is that the magistrate came to the wrong
conclusion on the
law. The applicant argues that the magistrate should have interpreted
s87
and the constitutional rights to disclosure differently and
should have granted the application.
[16]
It is trite that an incorrect decision on a point of law, without
more, does not constitute a gross irregularity. This
principle was
affirmed in
S
v Molale
[9]
,
where the court dealt with a special review in terms of
s22.
In that
matter, the court had to determine whether a misdirection regarding
an inquiry into an accused’s mental capacity
constituted a
reviewable irregularity. The court engaged with the merits because
the matter was properly before it on special review,
but it did so by
noting that the enquiry was a narrow one.
[17]
The Constitutional Court in
Shongwe
v The State
[10]
dealt
with an analogous situation regarding procedural routes. In that
case, an applicant sought direct access to the Constitutional
Court
under
Rule 17
, arguing that his right to a fair trial had been
infringed. The Court dismissed the application, holding that
Rule 17
is not an appeal procedure, nor may it be used for disguised appeals.
An applicant wishing to appeal a conviction must follow the
proper
appeal procedure. The same logic applies here: an applicant wishing
to challenge the correctness of a lower court’s
ruling on a
procedural point must follow the appeal procedure, not the review
procedure.
Application to the
Facts
[18] I have
carefully considered the record of the proceedings in the court a
quo. What emerges is a magistrate who engaged
fully with the
arguments presented. She summarised the history of the matter, the
submissions of both counsels, and the applicable
legal principles.
She then applied those principles to the facts and reached a
conclusion. The applicant may disagree with that
conclusion, but that
does not mean the proceedings were irregular.
[19]
The applicant’s founding papers, and the heads of argument
filed on his behalf, are replete with arguments about
why the
magistrate’s decision was wrong. He argues that the State has a
duty to disclose all relevant information, even if
it is not in the
docket and even if the State does not intend to use it. He relies
on
Shabalala
v Attorney-General of the Transvaal
[11]
and
S
v Rowand
[12]
to
support this proposition. These are substantive arguments that go to
the merits of the
s87
application. They are precisely the kind of
arguments that should be raised in an appeal against the refusal of
that application.
[20] The
applicant’s case is not that the magistrate was asleep, or that
she refused to hear him, or that she was biased.
His case is that she
made an error of law. He himself, in the joint practice note, frames
the issues as:
3.1.Whether
the decision of the third respondent… will be in support to
the right to a fair trial.
3.2.Whether the
applicable Constitutional principle… was adhered to.
3.3.
Whether the refusal… can be interpreted as to be in the
interest of justice.
[21] These are
questions about the correctness of the decision, not about the
integrity of the process. The proper forum for
ventilating these
questions is the appeal court, after the trial has concluded, or if
the applicant is so advised, by way of an
application for leave to
appeal the magistrate’s ruling as an interlocutory decision if
it is final in effect. The review
procedure is not designed to be a
substitute for an appeal.
Conclusion
[22] It is a
fundamental principle of our justice system that there should be
finality in proceedings, particularly in criminal
matters where
delays are prejudicial to both the accused and the State. The matter
has been pending in the Regional Court since
2017. To allow a review
on a procedural ruling that is properly the subject of an appeal
would be to encourage piecemeal litigation
and further delay.
[23] The applicant
has failed to make out a case that the proceedings in the court a quo
were vitiated by a gross irregularity
or any of the other grounds set
out in
s22
of the
Superior Courts Act. His
true grievance is with the
legal outcome, not the procedural fairness, of the hearing. That
grievance must be pursued, if at all,
through the appropriate
appellate channels.
Costs
[24]
The remaining question is costs. The foundational principle in the
matter of
Wahlaus
and Others v Additional Magistrate, Johannesburg and Another
[13]
(‘
Wahlhaus’
),
is that a superior court will not ordinarily intervene in
unterminated criminal proceedings, save in exceptional circumstances,
namely, where grave injustice might otherwise result or where justice
might not by other means be attained. The applicant has not
demonstrated these circumstances. As such, a review application that
fails to meet the
Wahlhaus
threshold
imposes an unjustified burden on the resources of the High Court. The
charges against the applicant have been pending
in the Regional Court
since 2017. Successive pre-trial postponements have ensued over this
period. Many legal representatives have
been employed by the
applicant. Only in 2023 was the application in the court a quo
initiated, which was ultimately dismissed.
[25] Upon dismissal
of the application and notwithstanding the long delays in this
matter, the applicant chose to approach
this Court by way of review.
That choice has consequences and as such, a costs order is warranted.
Although criminal matters do
not ordinarily attract cost orders,
exceptional circumstances justify departure from that principle.
[26]
Such a cost order serves as a disincentive to prematurely resort to
review proceedings and affirms the standards pertaining
to the
expeditious finalization of matters as set out in the Norms and
Standards for the performance of Judicial Functions.
[14]
The Norms and Standards recognise that delay in the finalisation of
criminal proceedings occasions harm, to an accused, to witnesses,
to
complainants, and to the administration of justice generally.
Criminal matters that have remained in the Regional Court since
2017,
without resolution, stand as an affront to these standards. Where an
accused person contributes to this delay through the
institution of
misconceived or premature review proceedings, the costs of such
proceedings ought not to be borne by the State.
To hold otherwise
would be to incentivise the very dilatory conduct that the Norms and
Standards were designed to discourage.
[27] South Africa
was placed on the Financial Action Task Force (FATF) grey list in
February 2023 due to an inability to prevent,
investigate and
prosecute major financial crimes. Following an intensive two-year
reform program that tightened financial laws
and improved
cross-agency enforcement, South Africa officially exited the FATF
grey list in October 2025. When prosecutions pertaining
to fraud and
money laundering cases are delayed, it contributes significantly to
undermine South Africa’s financial credibility
and will
directly increase the risk of slipping back onto the grey list.
[28] In the result,
I make the following order:
Order:
1.
The application for review is dismissed;
2.
The applicant is to pay costs on scale B as
contemplated in Rule 67A of the Uniform Rules of Court.
NEMAVHIDI
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
I agree
DOSIO J
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, JOHANNESB
URG
This
judgment was handed down electronically by circulation to the
parties’ representatives via e-mail, by being uploaded
to
CaseLines and by release to SAFLII. The date and time for hand- down
is deemed to be 10h00 on 9 June 2026
.
APPEARANCES
ON BEHALF OF THE
APPLICANT:
Mr.
Andre Steenkamp
Instructed
by Andre Steenkamp Attorneys
ON
BEHALF OF THE RESPONDENT:
Adv. Adele Carstens
Instructed
by the Office of the National
Director of Public
Prosecutions, Johannesburg
[1]
Criminal
Procedure Act 51 of 1977
[2]
Banks
Act 94 of 1990
[3]
Prevention
of Organised Crime Act 10 of 2013
[4]
Constitution
of the Republic of South Africa, 1996
[5]
Superior
Courts Act 10 of 2013
[6]
Promotion
of Access to information Act 2 of 2000
[7]
S
v Xaba
1983
(3) SA 717 (A)
[8]
Vermaak
v Magistrate Page and Another
[2018] ZAGPJHC 721
[9]
S
v Molale
2021 JDR 1414(GJ)
[10]
Shongwe
v The State
[2003] ZACC 9
; 2003(5) SA 276 (CC)
[11]
Shabalala
v Attorney-General of the Transvaal
[1995] ZACC 12
; 1996(1) SA 725 (CC)
[12]
S
v Rowand
2009 (2) SACR 450 (W)
[13]
Wahlaus
and Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA 113 (A)
[14]
GN
147 in GG 37390 of 28 February 2014