IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Reportable
CASE NO: M412/2020
In the matter between:
LEBOGANG ELIZABETH MOTEANE APPLICANT
and
THE PRESIDING MAGISTRATE,
MAGISTRATES’ COURT, MR PAKO N.O. FIRST RESPONDENT
DEPARTMENT OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT SECOND RESPONDENT
THE DIRECTOR OF PUBLIC
PROSECUTIONS, NORTH WEST THIRD RESPONDENT
Coram : PETERSEN ADJP et REDDY J
Heard on : 5 JUNE 2026
Delivered: This judgment was handed down electronically, circulated to the parties’
representatives via email, uploaded to CaseLines, and released to SAFLII. The date
and time for the handing down of the judgment are deemed to be 15h00 on 24 August
2026.
Summary: Criminal procedure – Review of criminal proceedings in the magistrates’
court under section 22 of the Superior Courts Act 10 of 2013 – Applicant convicted of
theft and awaiting sentence – Complaint of non-disclosure of the contents of a police
docket relevant to the count on which the applicant was convicted – Applicant failing
to plead reliance on any ground enumerated in section 22(1) – A court cannot read a
ground of review into the founding papers – Principle in Wahlhaus restated - A superior
court will intervene in unterminated proceedings only in rare cases where grave
injustice might otherwise result – Complaint directed at the correctness of the
magistrate’s ruling constituting, at best, an error of law justiciable on appeal and not a
gross irregularity in the proceedings – Principle of subsidiarity precluding direct
reliance on section 35(3) of the Constitution where legislation provides a remedy –
Application dismissed – No order as to costs.
2
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PETERSEN ADJP (REDDY J concurring)
Introduction
[1] The applicant stands convicted of theft in the Regional Court for the Regional
Division of North West, sitting at Mogwase. The criminal proceedings have not been
finalised, as the applicant, although convicted on one count of theft, has not yet been
sentenced. Before sentence could be imposed, she instituted the present proceedings
seeking an order reviewing and setting aside the entirety of the proceedings in the
Regional Court.
[2] The review is founded upon an alleged procedural irregularity arising from the
non-disclosure of the contents of a police docket said to be material to count 1, the
count on which the applicant was convicted. According to the applicant, the failure to
disclose the docket deprived her of the opportunity to properly prepare her defence
and effectively challenge the State’s case, thereby infringing her constitutional right to
a fair trial.
[3] The third respondent opposes the application, contending that the review is
both procedurally incompetent and substantively without merit. The central issue in
opposition is that the applicant has sought to invoke this court’s review jurisdiction
without identifying any statutory grounds on which that jurisdiction may be exercised
and, in substance, seeks to challenge rulings and findings that fall to be determined
on appeal once the criminal proceedings have concluded.
Background
[4] The material facts are largely common cause. The applicant was charged in the
Regional Court on three counts of theft arising from the alleged misappropriation of
monies at the Brits Police Station on 29 December 2014. The prosecution treated the
conduct as constituting a continuing offence. At the commencement of the trial, the
applicant pleaded not guilty and furnished a written plea explanation. An important
applicant pleaded not guilty and furnished a written plea explanation. An important
feature of that explanation was the contention that the defence had not been furnished
with the contents of the police docket registered under Brits CAS 446/12/2014. It was
alleged that the information contained in that docket was central to count 1 and that,
without disclosure thereof, the applicant was unable adequately to prepare her
defence. An objection was accordingly raised before the commencement of the
evidence.
[5] The Regional Magistrate ruled on the objection and directed that the trial
proceed. The applicant’s complaint in these proceedings is that the Regional
Magistrate neither adequately addressed the objection nor returned to it in the
judgment delivered at the conclusion of the trial. The trial extended over several years
during which the applicant enjoyed continuous legal representation. The State
presented the evidence of several witnesses, including Mr Sitchofe, Mr Moromani,
3
Mr Sarila and Colonel Jenner. The applicant’s defence included an alibi and
challenged the reliability of the State’s evidence concerning the alleged theft.
[6] At the conclusion of the trial, the applicant was convicted on count 1 and
acquitted on counts 2 and 3. The acquittals were based upon the Regional
Magistrate’s conclusion that convictions on those counts would have constituted an
impermissible duplication of convictions. The matter was thereafter postponed for
sentence. Before sentence could be imposed, the applicant launched the present
review proceedings. During the course of the prosecution, she had also made
representations to the National Director of Public Prosecutions regarding its
continuation. Those representations were unsuccessful, and the prosecution
proceeded to trial.
The review application
[7] The applicant’s case rests on the proposition that the State’s failure to disclose
the contents of the relevant police docket rendered the proceedings fundamentally
unfair. It is alleged that the undisclosed material was directly relevant to count 1. Its
absence, so goes the argument, deprived the applicant of the ability properly to
prepare for trial, to challenge the State’s witnesses effectively, and to test the reliability
of the evidence upon which the conviction ultimately rested. The applicant, relying
principally on the fair trial guarantee in s 35(3) of the Constitution, contends that the
proceedings were vitiated by a procedural irregularity sufficiently serious to warrant
intervention by this court before the criminal proceedings conclude. In support of that
proposition, reliance is placed, amongst other authorities, upon Minister of Safety and
Security v Van Duivenboden.
1
The opposition
[8] As indicated above, the third respondent opposes the application on both
procedural and substantive grounds. It submits, first, that the applicant has failed to
invoke the review jurisdiction of this court in accordance with s 22 of the Superior
invoke the review jurisdiction of this court in accordance with s 22 of the Superior
Courts Act 10 of 2013. It posits that although alleging procedural unfairness, the
founding affidavit does not identify any of the statutory grounds upon which the
proceedings of a magistrates’ court may be reviewed. Secondly, the third respondent
submits that the proceedings in the Regional Court remain incomplete. This court is
therefore urged to be consistent in giving effect to long- established authority and to
decline to intervene in criminal proceedings before their conclusion, save in truly
exceptional circumstances. Thirdly, it is contended that the applicant’s complaint
concerns, at its core, the correctness of rulings made by the Regional Magistrate
during the course of the trial and the conclusions ultimately reached on the evidence.
These matters constitute grounds of appeal rather than review.
The submissions in support of and in opposition to the relief sought
[9] Counsel for the applicant submitted that the review is directed not at the
correctness of the conviction but at the fairness of the procedure which preceded it. It
was argued that the refusal or failure to disclose the contents of the relevant police
docket materially impaired the applicant’s ability to prepare her defence and to
exercise effectively the right to challenge the evidence led against her, and that
1Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 432F–G.
4
resulting prejudice was of such a nature that intervention by this court before sentence
was justified. During argument , counsel properly accepted that the founding affidavit
does not expressly identify any of the review grounds enumerated in s 22(1) of the
Superior Courts Act but submitted that, read as a whole, the founding papers
sufficiently allege an irregularity in the proceedings capable of engaging this court’s
review jurisdiction.
[10] Counsel for the third respondent submitted that the application is misconceived.
The applicant seeks to interrupt criminal proceedings that have not yet terminated
without establishing the exceptional circumstances required for such intervention. The
complaint advanced concerns the correctness of interlocutory rulings and the
evaluation of the evidence rather than any irregularity in the conduct of the
proceedings themselves, matters which, if sustainable, fall to be considered on appeal
after sentence has been imposed. It was further submitted that, if the applicant
considered disclosure of the docket essential to the conduct of her defence,
appropriate remedies were available during the trial, including an application to compel
disclosure or other interlocutory relief. Having elected to proceed with the trial while
legally represented and having participated fully in proceedings extending over several
years, the applicant cannot, following conviction but before sentence, rely upon the
same complaint as the basis for interrupting the criminal process by way of review.
The issues
[11] The issues requiring determination are the following. Whether the application
properly invokes this court’s review jurisdiction under s 22 of the Superior Courts Act.
Whether the applicant has established circumstances warranting intervention by this
court in criminal proceedings that have not yet terminated. Whether the complaint
concerning the non- disclosure of the police docket constitutes a gross irregularity in
concerning the non- disclosure of the police docket constitutes a gross irregularity in
the proceedings within the meaning of s 22(1)(c) of the Superior Courts Act. And lastly,
whether, properly characterised, it is directed at alleged errors of law or fact
remediable on appeal. Should the application fail, the question is what the appropriate
order as to costs should be.
The legal framework
[12] The review jurisdiction of this court over proceedings in the magistrates’ courts
is derived from s 22 of the Superior Courts Act, which provides that the proceedings
of a magistrates’ court may be brought under review on one or more of the following
grounds:
‘(a) Absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice, or corruption on the part of the
presiding judicial officer;
(c) gross irregularity in the proceedings; or
(d) the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.’
5
[13] Section 22 is not merely procedural. It constitutes the statutory source of this
court’s review jurisdiction. Rule 53 of the Uniform Rules of Court no longer supplies
the substantive grounds upon which proceedings may be reviewed. Its function is
procedural only, to regulate the production of the record and the conduct of review
proceedings. An applicant who seeks to invoke this court’s review jurisdiction must
therefore identify in the founding papers the statutory ground or grounds upon which
reliance is placed. That requirement is neither technical nor formalistic.
[14] Motion proceedings are decided upon the affidavits, which constitute both the
pleadings and the evidence. It is accordingly incumbent upon an applicant to formulate
with sufficient clarity the legal basis upon which relief is sought. A respondent i s
entitled to know the case to be met, and the court must be able to determine from the
founding papers whether its review jurisdiction has properly been engaged. It is not
the function of a court to reconstruct or supplement an applicant’s case by inferri ng
statutory grounds not pleaded. In Fischer v Ramahlele
2 this principle was articulated
as follows:
‘13 Turning then to the nature of civil litigation in our adversarial system it is for the
parties, either in the pleadings or affidavits, which serve the function of both pleadings
and evidence, to set out and define the nature of their dispute and it is for the court to
adjudicate upon those issues. That is so even where the di spute involves an issue
pertaining to the basic human rights guaranteed by our Constitution, for ‘it is
impermissible for a party to rely on a constitutional complaint that was not pleaded’.
There are cases where the parties may expand those issues by the way in which they
conduct the proceedings. There may also be instances where the court may mero
motu raise a question of law that emerges fully from the evidence and is necessary for
motu raise a question of law that emerges fully from the evidence and is necessary for
the decision of the case. That is subject to the proviso that no prejudice will be caused
to any party by its being decided. Beyond that it is for the parties to identify the dispute
and for the court to determine that dispute and that dispute alone.
14 It is not for the court to raise new issues not traversed in the pleadings or affidavits,
however interesting or important they may seem to it, and to insist that the parties deal
with them. The parties may have their own reasons for not raising those issues. A court
may sometimes suggest a line of argument or an approach to a case that has not
previously occurred to the parties. However, it is then for the parties to determine
whether they wish to adopt the new point. They may choose not to do so because of
its implications for the further conduct of the proceedings, such as an adjournment or
the need to amend pleadings or call additional evidence. They may feel that their case
is sufficiently strong as it stands to require no supplementation. They may simply wish
the issues already identified to be determined because they are relevant to future
matters and the relationship between the parties. That is for them to decide and not
the court. If they wish to stand by the issues they have formulated, the court may not
raise new ones or compel them to deal with matters other than those they have
formulated in the pleadings or affidavits.’
[15] In view of the significance and impact of the sequence and content of affidavits
great care is expected of counsel in the drafting and presentation of same before the
courts. In Isedor Skog N.O. & Others v Koos Agullus & Others 3 (797/2021) [2023]
ZASCA 15 (20 February 2023), this duty of care was underscored as follows:
2 Fischer v Ramahlele (203/2014) [2014] ZASCA 88 (4 June 2014).
3 Isedor Skog N.O. & Others v Koos Agullus & Others3 [2023] ZASCA 15 (20 February 2023).
6
‘18 It is trite that in motion proceedings, the affidavits filed in the application constitute
evidence. In such proceedings, the norm is that affidavits are limited to three sets. For
this reason, utmost care must be taken to fully set out the case of a party on whose
behalf an affidavit is filed. These being motion proceedings, the application fell to be
decided in accordance with the principle laid down in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd (the Plascon Evans principle). In terms of that principle, an
applicant who seeks final relief in motion proceedings must, in the event of a dispute
of fact, accept the version set up by his or her opponent unless the latter’s allegations
are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute
of fact or are so far -fetched or clearly untenable that the court is justified in rejecting
them merely on the papers.’
[16] The aforesaid accords with the approach recently confirmed by the Constitutional
Court that where a court’s jurisdiction to entertain a review is put in issue, that
jurisdiction must be established on the founding papers. It is not for the court to hold
that facts alleged by an applicant might sustain some other, unpleaded, claim
cognisable in some other forum or on some other ground. In Famous Idea Trading 4
(Pty) Ltd t/a Dely Road Courier Pharmacy v Government Employees Medical Scheme
4
the Constitutional Court specifically stated as follows:
‘62 A “ground” or “relevant ground” is a legal basis used to validate a claim. Any
ground must be supported by relevant factual material. Litigants who seek to review
a decision have to identify both the facts upon which they base their cause of action,
and the legal basis of their cause of action…
63 If a party does not establish in its founding affidavit that the court has review
jurisdiction to adjudicate the subject matter of the controversy, it is not entitled to a
jurisdiction to adjudicate the subject matter of the controversy, it is not entitled to a
“review” record... If a party fails to lay a factual basis for the review ground, it will have
failed to engage the court’s review jurisdiction…
64 In Gcaba, this court accepted the definition of jurisdiction as the “power or
competence of a court to hear and determine an issue between parties”. It pointed
out that jurisdiction is determined by the pleadings, not by the substantive merits of
the case. This court held:
‘In the event of the court’s jurisdiction being challenged at the outset (in limine), the
applicant’s pleadings are the determining factor. They contain the legal basis of the
claim under which the applicant has chosen to invoke the court’s competence. While
the pleadings – including in motion proceedings, not only the formal terminology of
the notice of motion, but also the contents of the supporting affidavits – must be
interpreted to establish what the legal basis of the applicant’s claim is, it is not for the
court to say that the facts asserted by the applicant would also sustain another claim,
cognisable only in another court.’
[17] It has long been established that superior courts exercise considerable restraint
before intervening in criminal proceedings that have not yet run their course. In
4Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Courier Pharmacy v Government Employees Medical
Scheme [2026] ZACC 5 at paras 62–64, applying Gcaba v Minister of Safety and Security 2010 (1)
SA 238 (CC) at para 75.
7
Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 5, the
Appellate Division 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. In general,
however, it will hesitate to intervene, especially having regard 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.’
[18] That principle has repeatedly been reaffirmed and continues to govern
applications of the present nature. 6 The existence of prejudice occasioned by an
interlocutory ruling, or even the prospect that the ruling may ultimately prove incorrect,
does not, without more, justify intervention before the proceedings have terminated.
Alleged errors committed during the course of a criminal trial are ordinarily corrected
through the appellate process after conviction and sentence. Departure from that
principle is warranted only where exceptional circumstances demonstrate that grave
injustice will otherwise result or that justice cannot adequately be attained by any other
means. Equally well established is the distinction between an appeal and a review. A
review is directed at the regularity and fairness of the proceedings by which a decision
was reached, while an appeal concerns the correctness of the decision itself. As was
explained in Goldfields Investment Ltd and Another v City Council of Johannesburg
and Another,
7 a gross irregularity concerns the manner in which the proceedings were
conducted and whether the litigant received a fair hearing. A mere error of law or fact,
however material, ordinarily constitutes a matter for appeal rather than review. Only
however material, ordinarily constitutes a matter for appeal rather than review. Only
where the irregularity is of such a nature that it prevents a fair adjudication of the issues
may review jurisdiction properly be engaged.
[19] The principles governing disclosure in criminal proceedings are settled. In
Shabalala and Others v Attorney -General of the Transvaal and Another
8 the
Constitutional Court recognised that an accused person is ordinarily entitled, to
vindicate the right to a fair trial, to disclosure of relevant information contained in the
police docket, subject to recognised limitations. Disputes concerning disclosure are
ordinarily determined within the criminal proceedings themselves. Appropriate
remedies include applications to the trial court seeking to compel disclosure or to
regulate the use of privileged material before the trial proceeds further. Finally, where
legislation has been enacted to regulate the exercise or protection of constitutional
rights, litigants are ordinarily required to rely upon that legislation rather than invoke
constitutional provisions directly.
9 The Superior Courts Act defines the grounds upon
which the proceedings of a magistrates’ court may be reviewed. An applicant who
seeks to challenge such proceedings must accordingly locate the complaint within the
5Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A) at
120A–C.
6Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A) at 5H.
7Goldfields Investment Ltd and Another v City Council of Johannesburg and Another 1938 TPD 551
at 560.
8Shabalala and Others v Attorney-General of the Transvaal and Another 1996 (1) SA 725 (CC) para
56.
9My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) para 70.
8
statutory framework established by s 22 of the Superior Courts A ct. Absent a
constitutional challenge to the legislation itself, reliance upon the fair trial guarantee in
s 35(3) of the Constitution cannot displace the statutory scheme governing judicial
review.10
Discussion
The failure to properly invoke the review jurisdiction of this court
[20] The first and fundamental difficulty confronting the applicant concerns how the
review has been pleaded. The founding affidavit alleges that the applicant’s
constitutional right to a fair trial was infringed by the State’s failure to disclose the
contents of the police docket relevant to count 1. It does not, however, identify th e
statutory ground upon which the review jurisdiction of this court is invoked. During
argument, counsel for the applicant properly accepted that the founding papers do not
expressly rely upon any of the grounds in s 22(1) of the Superior Courts Act. The
submission was, nevertheless, that the founding affidavit, read as a whole, sufficiently
alleges a procedural irregularity capable of sustaining the review.
[21] That submission is not sustainable. It is not sufficient merely to allege that
proceedings were conducted irregularly. Section 22 identifies the jurisdictional
grounds upon which the proceedings of a magistrates’ court may be reviewed. Those
grounds define the scope of this court’s supervisory jurisdiction. An applicant must
therefore identify, with reasonable clarity, the statutory basis upon which reliance is
placed. Motion proceedings are determined upon the affidavits, which define the
issues for determination and delimit the ambit of the dispute. A court is not entitled to
formulate a litigant’s case afresh or to infer statutory grounds not pleaded. If this court
were to do so, it would undermine the principles governing motion proceedings and
prejudice the respondent, who is entitled to know the case to be answered. Properly
prejudice the respondent, who is entitled to know the case to be answered. Properly
analysed, the applicant relies directly upon the constitutional right to a fair trial in
s 35(3) without first locating the complaint within the statutory framework established
by s 22. An approach that is inconsistent with the principle of constitutional
subsidiarity. On that basis alone, the application encounters a substantial obstacle. It
is nonetheless appropriate to consider whether the application could succeed if the
applicant’s complaint were treated as alleging a gross irregularity within the meaning
of s 22(1)(c).
Intervention in incomplete criminal proceedings
[22] The second obstacle confronting the applicant is that the criminal proceedings
have not yet terminated. Although convicted, the applicant has not been sentenced.
The restraint with which superior courts approach applications of this nature serves
important institutional purposes. Criminal trials are intended to proceed to their lawful
conclusion without unnecessary interruption. Frequent interlocutory intervention would
fragment criminal proceedings, undermine their continuity, and encourage piecemeal
litigation. For that reason, Wahlhaus establishes a high threshold for intervention, and
the applicant has not demonstrated circumstances falling within that narrow exception.
10Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Courier Pharmacy v Government Employees Medical
Scheme [2026] ZACC 5 at paras 28–31, applying the principle of constitutional subsidiarity restated in
Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) paras 95–96.
9
[23] The complaint concerning disclosure was raised at the commencement of the
trial during the plea proceedings. The Regional Magistrate ruled upon the objection
and directed that the trial proceed. The objection was heard and determined during
the proceedings, whatever the correctness of the ruling. Thereafter, the applicant
participated fully in a trial extending over several years while continuously represented
by legal practitioners. The State called numerous witnesses, all of whom were cross-
examined. The applicant presented her own defence, including an alibi. At no stage
did she seek interlocutory relief compelling disclosure, seek to review the magistrate’s
ruling, or apply to stay the proceedings pending disclosure, even though those
remedies were available. Only after conviction, immediately before sentence, did the
same complaint become the basis for the present review. That sequence of events
does not establish the exceptional circumstances contemplated in Wahlhaus . On the
contrary, it demonstrates that the applicant elected to pursue the ordinary course of
criminal proceedings notwithstanding the previously raised objection. Nor does the
suggestion of financial difficulty in pursuing an appeal justify interlocutory intervention.
The expense associated with criminal litigation is not the species of prejudice
contemplated in Wahlhaus, and were financial hardship alone sufficient, the exception
would rapidly become the rule.
The complaint concerns an alleged error of law rather than a gross irregularity.
[24] Even if the procedural hurdles confronting the application could be overcome,
the applicant’s complaint does not, properly characterised, disclose a gross irregularity
in the proceedings. The distinction between review and appeal is well settled. A review
concerns the integrity of the process by which a decision was reached. An appeal
concerns the correctness of the decision itself. The applicant’s complaint ultimately
concerns the correctness of the decision itself. The applicant’s complaint ultimately
rests on the propositions that the Regional Magistrate wrongly permitted the trial to
proceed notwithstanding the alleged non-disclosure and failed to address that issue in
the judgment adequately . Those complaints are directed, in substance, at the
correctness of the magistrate’s rulings and conclusions. The applicant’s submissions
extended beyond the procedural issue to criticism of the evidential basis upon which
the conviction was entered, that only one witness had counted the monies in question,
that other witnesses were unreliable, and that the evidence did not justify the
conviction on count 1. Those submissions reveal the true character of the application.
Dissatisfaction with the legal and factual conclusions reached by the Regional
Magistrate falls squarely within the province of an appellate court.
[25] An incorrect evidential ruling or an erroneous conclusion of law does not,
without more, constitute a gross irregularity. The enquiry on review is whether the
conduct of the proceedings was so fundamentally flawed that the applicant was denied
a fair adjudication of the issues. The present record does not support that conclusion.
The applicant was legally represented throughout the trial. She raised the objection
upon which she now relies, which was determined by the magistrate. She thereafter
cross-examined the State witnesses extensively, presented her own version, and
secured acquittals on two of the three counts. Whether the Regional Magistrate
reached the correct conclusion concerning disclosure, the admissibility of the
evidence, or the applicant’s guilt are matters which, if necessary, fall to be determined
by an appellate court after the criminal proceedings have been completed. They do
not furnish a basis for the exercise of this court’s review jurisdiction at the present
stage.
10
Remaining preliminary objections
[26] In view of the conclusions already reached, it is unnecessary to determine the
remaining preliminary objections in any detail. It is sufficient to observe that the
applicant’s reliance upon representations made to the National Director of Public
Prosecutions does not materially advance the present application. The decision to
continue with the prosecution constitutes a separate administrative decision.
Whatever remedies may exist in relation to that decision are not before this court and
cannot supply the jurisdictional foundation absent from the present review.
Conclusion
[27] The application cannot succeed for three independent reasons. First, the
applicant has failed properly to invoke this court’s review jurisdiction by identifying any
of the statutory grounds contemplated in s 22(1) of the Superior Courts Act. An
omission that is not a mere pleading defect but goes to the jurisdictional foundation
upon which the review is brought. Secondly, the proceedings in the Regional Court
remain incomplete. The applicant has not established exceptional circumstances
justifying this court’s intervention before sentence has been imposed. The matter falls
squarely within the ordinary rule articulated in Wahlhaus , namely that alleged errors
occurring during criminal proceedings should ordinarily be corrected through the
appellate process after the proceedings have terminated. Thirdly, the complaint
advanced, properly characterised, is directed at the correctness of the rulings made
by the Regional Magistrate and the conclusions ultimately reached on the evidence.
These are matters falling within the province of an appellate court rather than a court
exercising review jurisdiction.
[28] Nothing in this judgment should be construed as expressing any view on the
merits of the applicant’s conviction or on any appeal which may follow after sentence
has been imposed. Those issues will, if necessary, be determined in the ordinary
has been imposed. Those issues will, if necessary, be determined in the ordinary
course by the appropriate appellate court on a complete record. It follows that the
application falls to be dismissed.
Costs
[29] The third respondent sought an order that costs follow the result. The applicant
submitted that the litigation was directed at vindicating constitutional fair trial rights and
relied on the principles articulated in Biowatch Trust v Registrar, Genetic Resources
and Others.
11 Although the application cannot succeed, it arose directly from pending
criminal proceedings. It was brought in an attempt to vindicate what the applicant
believed were her constitutional rights to a fair trial. It cannot fairly be characterised as
frivolous, vexatious or an abuse of process. In criminal proceedings, costs orders
remain exceptional, and had the matter reached this court by way of appeal after
sentence, no order as to costs would ordinarily have been made. In all the
circumstances, the interests of justice are best served by directing that each party bear
its own costs.
11Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC) paras 21–22.
11
Order
[30] The following order is made:
1. The application to review and set aside the criminal proceedings in the
Regional Court, Mogwase, is dismissed.
2. The matter is remitted to the Regional Court, Mogwase, for the
continuation and finalisation of the sentencing proceedings.
3. Each party to bear its own costs.
C
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE
HIGH COURT , NORTH WEST DIVISION , MAHIKENG
I agree.
A REDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Applicant
Instructed by
For the Third Respondent
Instructed by
Adv K P Letswalo
G A Mokaa Attorneys, Mahikeng
Adv K Nondwango
The State Attorney, Mahikeng