REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, SITTING IN PLAM RIDGE
Case Number: 55/2025
In the matter between:
PHELELANI VINCENT MKHIZE & OTHERS Applicant
and
THE STATE Respondent
In re:
THE STATE
and
PHELELANI VINCENT MKHIZE Accused 1
MAKHUMULENI MKHIZE Accused 2
PEDRO BERDICHEVSKY Accused 3
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
SIGNATURE DATE:
19 May 2026
2
________________________________________________________________
RULING
________________________________________________________________
Mfenyana J:
[1] There are two applications before this court, brought by accused 1 and 3
respectively. Accused 1, 2 and 3 face various charges, including murder.
[2] In the first application, accused 1, who made a confession to Colonel
Zwane challenged the admissibility of that confession. A trial within a trial
was held to determine the admissibility of the confession. Sergeant Sigidi
(Sgt Sigidi) is the first witness to testify for the state in the trial within a trial.
[3] At the commencement of cross-examination, the applicant made an
application for the state to disclose the contents of Section C of the docket,
also known as the investigation diary or the SAPS5, on the basis that it could
reveal what occurred between the accused's arrest and his confession to
Colonel Zwane.
[4] Access to Parts B and C was subsequently granted by the state on the basis
of the decision in Krejcir1, subject to the condition that the contents thereof
were not disclosed to the accused (insight into the docket without
disclosure).
[5] During the cross-examination of Sgt Sigidi on 8 May 2026, the applicant
revived its request for access to section C of the case docket , and on 11
May 2026 , filed a formal request to the state to be granted access to
sections B and C of the case docket.
1 [2014] ZAGPJHC 190.
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[6] The reasons advanced for access are that the requested information is
essential for obtaining proper instructions from the applicant; to enable the
applicant to prepare his defence ; to cross-examine Sgt Sigidi and enforc e
his rights under sections 35 and 179 of the Constitution and in the interests
of justice.
[7] According to the applicant, the application was prompted by Sgt Sigidi’s
responses during cross-examination, specifically his failure to follow certain
Standing Orders on record -keeping during investigations and interactions
with the accused. In particular, the applicant contends that the police
overlooked a directive on the front page of the pocketbook, which instructs
them to make an entry in the pocketbook when informing a suspect of their
constitutional rights. Th is directive also requires the police to complete a
warning statement form (a SAPS 3m) whenever a suspect is interviewed.
[8] In the second application, accused 3 also seeks access to sections B and
C on the ground that his right to a fair trial requires that he be provided with
as much information as possible , concerning the offence the state intends
to prove against him , as is necessary for the thorough preparation of his
defence2. This includes particulars of the facts relied on by the state in
respect of each accused where conspiracy or common purpose is alleged ,
and he contends that the contents of both sections are necessary to enable
him to properly prepare for and continue with the trial.
[9] In this regard, it is worth noting that accused 3 did not play any part i n the
trial within the trial, as the confession in question pertains only to accused
1.
[10] The state declined the request and has opposed both applications.
2 S v Cooper and others 1976 (2) SA 875 (T).
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[11] In respect of accused 1, the state avers that the applicant has not provided
a prima facie justification for the request, and that the request is not in the
spirit of Krejcir.
[12] The State argues that, although Sgt Sigidi conceded his failures, albeit
remaining defiant as to whether his actions were wrong, he was honest
about the issue. The State further submits that Sgt Sigidi’s credibility is not
an issue to be determined in the present application. What must be
determined is whether this contention by the applicant establishes prima
facie facts pointing to the contents of sections B and C of the case docket
as being relevant to the applicant’s plight.
[13] As regards the application in respect of accused 3, the State argues that the
application is premature, pre-emptive and speculative and may be revisited
at a later stage should that need arise.
Legal framework
[14] The principles governing the provision of access to Parts B and C of the
docket are not in dispute between the parties. They are trite. The main
contention is whether the applicants in the present case are entitled to such
access.
[15] As a point of departure, various constitutional provisions are worth noting.
[16] In terms of section 32 of the Constitution, everyone has the right of access
to any information held by the state, and information held by another person,
that is required for the exercise or protection of any rights.
[17] In terms of section 35(3):
“ Every accused person has a right to a fair trial, which includes the right
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(a) To be informed of the charge against them with sufficient detail to
answer it”.
(b) ….
(i) To adduce and challenge evidence;
(ii)
[18] In terms of section 36, the rights in the Bill of Rights may only be limited in
terms of a law of general application to the extent that the limitation is
reasonable and justifiable in an open and democratic society.
[19] Section 39 enjoins the court, when interpreting the Bill of Rights, to promote
the values that underlie an open and democratic society based on human
dignity, equality and freedom, to consider international law and may
consider foreign law.
[20] It is well understood that Parts B and C of the docket contain privileged
information necessary to prosecute an accused. They are generally
withheld from the defence in a bid to protect the integrity of the investigation,
prevent intimidation of witnesses, and maintain a clear distinction between
the functions of the defence and the state. However, this position is not
absolute. As already stated section 32 provides for access to information
that is necessary to exercise or protect rights while section 35 advances
fair trial. These rights may be limited under section 36 of the Constitution.
[21] In Shabalala3, the Constitutional Court ruled against a blanket denial of an
accused person's access to information. The court held that the interests of
the accused must be balanced against other legitimate considerations ,
including ‘the risk involved in attracting the consequences sought to be
avoided by the prosecution (if access is permitted ) against the risk that a
fair trial might not ensue’ (if such access is denied). The court is required to
make an assessment of the balance of risk involved in either case.
3 Shabalala and Others v Attorney-General of the Transvaal [1995] ZACC 12; 1995 (12) BCLR
1593; 1996 (1) SA 725.
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[22] The court noted that while an accused person should ordinarily be entitled
to witness statements, the prosecution may, in some cases, be able to justify
the denial of such access on the basis that it is not justified for the purposes
of a fair trial. The determination of what a fair trial will vary from case to
case, depending on the circumstances of each case.
[23] In King4 the Supreme Court of Appeal addressed the balance between an
accused’s right to a fair trial and the state’s claim of litigation privi lege
regarding the documents in sections B and C of a police docket. The court
ruled that the accused does not have a general right to a ‘motivated index’
of all withheld documents. In the context of the present case, this translates
to every bit of information held by the State. Moreover, while a blanket denial
of access is unconstitutional, as found in Shabalala, the state can still invoke
litigation privilege if the information is not relevant to the defence. This
means that an accused’s access to the case docket should be strictly
tailored to what is relevant for a fair trial.
[24] Importantly, the court noted that:
“Fairness is not a one -way street conferring an unlimited right on an accused to
demand the most favourable possible treatment, but also requires fairness to the
public as represented by the state. This does not mean that the accused’s right
should be subordinated to the public’s interest in the protection and suppression
of crime; however, the purpose of the fair trial provision is not to make it
impracticable to conduct a prosecution. The fai r trial right does not mean a
predilection for technical niceties and ingenious legal stratagems, or to encourage
preliminary litigation – a pervasive feature of white collar crime cases in this
country. To the contrary: courts should within the confines of fairness actively
discourage preliminary litigation. Courts should further be aware that persons
discourage preliminary litigation. Courts should further be aware that persons
facing serious charges – and especially minimum sentences – have little inclination
to co-operate in a process that may lead to their conviction and ‘any new procedure
can offer opportunities capable of exploitation to obstruct and delay’.
4 National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA).
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[25] It is worth stating that of the judgments cited by the applicant, Krejcir does
not find application at this stage of proceedings, given that access (without
disclosure) was already granted to sections B (to a limited extent) and C of
the docket, in line with Krejcir.
[26] As I understand the applicants’ case, the main reliance is placed on the
decision in Wolf5, in which Govindjee J ruled that the applicant be provided
with copies of sections B and C of the docket. Reiterating the principles
enunciated in King, the court held that an accused person is generally
entitled to such contents of the docket as are prima facie relevant for the
exercise or protection of his/her right to a fa ir trial. The entitlement is not
restricted to statements of witnesses or exhibits but extends to all
documents that might be important for an accused to properly adduce and
challenge evidence in ensuring a fair trial6.
[27] What emanates from the authorities, which have been relied on by all the
parties alike, is among others, that:
(a) There is no blanket docket privilege or a blanket denial of access to
documents.
(b) An accused person does not have an automatic right of access to
Parts B and C of the case docket.
(c) The documents to which access is required must be relevant to the
defence for the exercise of the accused’s rights, such that his / her
right to a fair trial is implicated.
(d) In exercising its discretion, the court should seek to balance the
accused’s need for a fair trial against the legitimate interests of the
State in enhancing and protecting the ends of justice.
5 Wolf v S [2023] ZAECQBHC 62.
6 Shabalala para 57.
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[28] In the present case, as in Wolf, access to the documents in sections B and
C is sought on the basis of their “perceived helpfulness or relevance to the
defence. Govindjee J referenced the test formulated in King, as
reformulated by Goosen J in Panayiotou7, to determine whether access
should be permitted, as follows:
“(i) Has the applicant established prima facie facts which point to the
contents of sections B and C of the case docket as being relevant in
the sense required by the King matter?
a. If not, access to the documents should be refused.
(ii) If so, is there a justified ground for non-disclosure raised by the
State?
a. If not, access to the documents should be ordered.”
[29] Whether the applicant has satisfied this test depends on the circumstances
of the case. Of relevance for present purposes is that the applicant’s
contention does not concern the instructions which may or may not have
been entered in the investigation diary by the investigating officer. Rather,
the issue is whether Sgt Sigidi , who is not an investigating officer in the
case, complied with the standing orders. During cross -examination, Sgt
Sigidi conceded that he had not complied with the standing orders referred
to by defence counsel, adding that ‘things work differently in practice’. The
standing orders do not form part of section b or C. It is therefore not clear
how the applicant’s right to a fair trial is impacted by this concession.
[30] In my view, the present case differs from Wolf. In Wolf, access was granted
to both sections B and C of the docket to allow the defence to challenge
contradictory witness statements and investigate alleged improper
relationships between the investigation team and state witnesses. This is
not the case in th e present case. The facts of this application are
7 Panayiotou v The State and Others [2016] ZAECPEHC 50; 2017 1 SACR 354.
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distinguishable. In my view, t he applicant has not established any prima
facie facts which point to the relevance of those documents such that his
right to a fair trial is implicated. His desire to cross -examine Sgt Sigidi on
what may be contained in the investigation diary is not sufficient to entitle
him to access to section B of the case docket as envisaged in King,
Shabalala, Krejcir, Panayiotou and Wolf. Consequently, the application in
respect of Part C falls to be dismissed on this aspect.
[31] As to Part B, although this application may be said to share similarities with
Panayiotou, the court in that case refused access to Part B of the docket
because the applicant provided no basis for seeking those documents.
Likewise, the applicant in this case gives no basis for requesting Part B,
which contains internal memoranda, status report s, and correspondence
with stakeholders among others.
[32] In short, the applicant has also not demonstrated why Parts B and C of the
case docket are relevant to his defence or how they would assist him in
exercising or protecting his rights. The entire exercise, in my view, amounts
to a fishing expedition . It requires the court to speculate , alternatively, to
apply a blanket approach in granting the applicant access to the requested
parts of the docket. In the circumstances, the application as it relates to Part
B also falls to be dismissed.
[33] I agree with the respondent that the application in respect of accused 3 is
both premature and speculative. The need for the application has not yet
arisen in respect of accused 3. Accused 3 has not cross-examined Sgt Sigidi
and can thus not be in a position to ascertain what information would be
required in cross -examination. This is despite hi s conte ntion that the
irregularities as conceded to by Sgt Sigidi are only the tip of an iceberg.
[34] As it stands, the application requires the court to perform guesswork as
[34] As it stands, the application requires the court to perform guesswork as
regards the information required from the docket. This renders the
application speculative. While Shabalala did away with the blanket docket
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privilege, it ruled that an accused’s access to Parts B and C is not automatic.
Ironically, both applications have the effect of adopting a blanket approach
to the accused’s access to privileged information.
[35] I also agree that having found as I have, it is not necessary to deal with the
second leg of the test, which requires the State to advance grounds which
justify th e non - disclosure. That would have been necessary, had the
applicants satisfied the first leg of the test.
[36] For these reasons, the applications fall to be dismissed.
Order
[37] In the result, I make the following order:
a. The application in respect of both accused 1 and 3 is dismissed.
S Mfenyana
Judge of the High Court
Date heard: 14 May 2026
Date delivered: 19 May 2026
Appearances:
For the first applicant:
Counsel: J van Heerden
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Instructed by van Heerden Attorneys
For the second applicant:
Counsel: M Witz
Instructed by: Cliff Alexander Attorneys
For the respondent:
Counsel: GJ Ehlers
Instructed by DPP, Johannesburg