REPUBLIC OF SOUTH AFRI CA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLEAJritlNO
(2) OF INTERESJ T6 OTHER JUDGES: vt /No
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DA E SIGNATURE
In the matter between:
MULIMISI SOLOMON MAPOSA
and
THE DIRECTOR OF PUBLIC PROSECUTI ONS
GAUTENG DIVISION
KABELO JOHN MATSEPE
MAMPHE DANIEL MSIZA
AN DILE MALUSI ATTWELL RAMAVHUNGA
PHOPHI LONDOLANI MUKHODOBWANE
NHLANHLA KELVIN SIPHO MALABA
PHALAPHALA AVHASHONI RAMIKOSI
THIFHELIMBILU ERNEST NESANE
PAULMAGULA
MMBULAHENI ROBERT MADZONGA
Case Number: CC11/2021
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
RALLION RAZWINANE
TAKUNDA EDGAR MUCHEKE
TSHIANEO MADADZHE
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
NATIONAL DIRECTOR OF PUBLIC
PROSECUT IONS
Eleventh Respondent
Twelfth Respondent
Thirtieth Respondent
Fourteenth Respondent
Fifteenth Respondent
This judgment has been delivered by uploading it to the Court online digital database
of the Gauteng Division, Pretoria and by email to the attorneys of record of the parties.
The date of the delivery of the judgment is deemed to be 10 September 2026
JUDGMENT
MAKHOBA , J
[1] The Applicant is accused number three in S v Ramavhunga and 12 Others1.
This matter is currently in one of the criminal courts here in the Gauteng Division,
Pretoria. The matter is a large-scale prosecution involving allegations of racketeering,
theft, corruption and money-laundering , stemming from a severe liquidity crisis that
prevailed at VBS Mutual Bank ("VBS").
[2] The First Respondent is the Director of Public Prosecutions, Gauteng Province,
and the Fifteenth Respondent is the National Director of Public Prosecutions. Both
Respondents oppose the application .
1 Case number CC 11 /2021 .
2
[3] The prosecution against all the accused was authorised on 12 June 2020. Later,
additional evidence allowed for the indictment to be expanded. The NDPP approved
the expanded racketeering case on 9 March 2021. The new accused persons,
including the applicant, were arrested on 11 March 2021 and made their first
appearance on 12 March 2021. The case was then transferred to the Gauteng
Division, Pretoria on 26 March 2021.
[4] The matter has been beset by legal representation issues, requests for further
particulars, separation applications, review proceedings, additional disclosure, the
unavailability of a Judge, and, later, litigation arising from the Criminal Procedure Act's2
section 319 process.
[5] Tl1e Applicant was arrested in March 2021, and the matter was transferred to
the High Court on 26 March 2021 under section 75(1) of the CPA Two erstwhile co
accused, Phillip Truter and Tshifhiwa Matodzi, pleaded guilty under section 105A of
the CPA and were separated under section 157.
[6] Mosopa J refused Daniel Mamphe Msiza's separation application on 1
December 2021. In Msiza v S,3 leave to appeal that refusal was also refused. The
court held that an order refusing separation is interlocutory and not appealable at that
stage.
[7] The court later granted separation in respect of the accused Kabelo Matsepe,
in Matsepe and Another v Director of Public Prosecutions and Others. 4
[8] The State's attempt to reserve questions of law under section 319 CPA arising
from that separation was dismissed as interlocutory, and the State's application for
leave to appeal to the Supreme Court of Appeal was referred for oral argument
under section 17(2)(d) of the Superior Courts Act. The trial has been postponed to 15
September 2026 pending that process.
2 Act 51 of 1977.
3 [2022) ZAGPPHC 216 at para 25.1.
4 [2024) ZAGPPHC 893.
3
[9] The State concedes on the papers that there is no indication that the applicant
personally caused or contributed to any delay, while contending that this does not, of
itself, justify the relief sought.
[1 O] The relief sought as per the notice of motion may be summarised as follows:
a. That the criminal trial against the applicant be held in abeyance, and/or
permanently stayed against the applicant.
b. Alternatively, the trial be transferred to Limpopo Province.
c. Alternatively, the charges be withdrawn against the applicant.
d. Alternatively, the administrative decisions of the first and fifteenth
respondents be reviewed and/or set aside.
e. Alternatively, the Court must find that in terms of section 342A there is
unreasonable delay and strike the matter in respect of the applicant off the
roll and the prosecution not to be resumed without the written instructions
of the fifteenth respondent.
f. The applicant must be exempted from the requirement of first exhausting
any internal remedy before bringing the review application.
Points in limine
[11] The Respondents raised the following points in limine:
a. The applicant e-mailed the application to Adv Van Der Merwe and Adv
Veenemans while they were not authorised to accept service on behalf of
the first and fifteenth respondents.
b. In regard to prayers 2, 4 and 6 (Review of first and fifteenth respondent's
decisions), the respondents' point in limine is that this Court has no authority
in terms of the CPA to review the decision of the Director of Public
Prosecutions and the National Director of Public Prosecutions.
c. On prayers 1 and 2, the points in limine raised by the respondents are that
the trial is already in abeyance pending the SCA proceedings. The criminal
trial is provisionally postponed to 15 September 2026, pending the outcome
of the SCA proceedings.
4
d. Whether proceedings should be permanently stayed is for the criminal court
seized with the trial to determine.
e. On prayer 4, the respondents submit that separation and transfer of cases
to another province are judicial functions and that a formal application must
be made in a court.
f. On prayers 5 and 6, the respondents submit that section 6 of the CPA vests
the power to withdraw charges or to stop a prosecution in a prosecution.
g. On prayer 8, the respondents' point in limine is that the applicant's reliance
on the Promotion of Administrative Justice Act5 ("PAJA") is incompetent.
[12] Counsel for the respondents argued that the question of the separation of trials
lies with the trial court in terms of section 157 of the CPA The prosecuting authority
does not have the power to grant or refuse separation.
[13] Counsel for the respondents contended that PAJA does not apply to
prosecutorial decisions and that it applies only to administrative action as defined in
PAJA.
[14] It was contended further that decisions to institute or decline to withdraw a
prosecution do not constitute administrative action for the purposes of PAJA; such
decisions are therefore not reviewable under PAJA.
[15] Furthermore, it is submitted on behalf of the respondents that the present
proceedings are not part of the criminal trial itself but constitute a collateral motion
application brought in the civil jurisdiction of this court, in which the applicant seeks
wide-ranging relief against the prosecution authority, including review, declaratory, and
coercive orders. In such proceedings, the ordinary civil principle applies, namely that
costs follow the result, subject to the court's discretion.
Separation of trials
5 Act 3 of 2000 .
5
[16] The provisions of legal documents, whether contracts or legislation, must be
interpreted in accordance with the well-established principles of interpretation.
[17] In Natal Joint Municipal Pension Fund v Endumeni Municipality,6 the current
state of our law in regard to the interpretation of documents was summarised as
follows:
'The present state of the law can be expressed as follows. Interpretation is the process
of attributing meaning to the words used in a document, be it legislation, some other
statutory instrument, or contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document as a whole and the
circumstances attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of the ordinary
rules of grammar and syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to those responsible for its
production. Where more than one meaning is possible each possibility must be
weighed in the light of all these factors. The process is objective not subjective. A
sensible meaning is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges must be alert to,
and guard against, the temptation to substitute what they regard as reasonable,
sensible or businesslike for the words actually used. To do so in regard to a statute or
statutory instrument is to cross the divide between interpretation and legislation. In a
contractual context it is to make a contract for the parties other than the one they in
fact made. The 'inevitable point of departure is the language of the provision itself ,
read in context and having regard to the purpose of the provision and the background
to the preparation and production of the document."
[18] The above judgment applies to both contractual and statutory interpretation.
[18] The above judgment applies to both contractual and statutory interpretation.
[19] Whilst the starting point remains the words of the contract or statutory
instrument, the process of interpretation does not stop at a perceived literal meaning
of those words but considers them in the light of all relevant and admissible context,
including the circumstances in which the contract or statutory instrument came into
being.
6 2012 (4) SA 593 (SCA) at para 18.
6
[20) The Constitutional Court in University of Johannesburg v Auckland Park
Theological Seminary & Another7 is relevant to the question under consideration. On
this point, the Constitutional Court held as follows:
"This approach to interpretation requires that 'from the outset one considers the
context and the language together, with neither predominating over the other'. In
Chisuse, although speaking in the context of statutory interpretation, this Court held
that this 'now settled' approach to interpretation, is a 'unitary' exercise. This means
that interpretation is to be approached holistically; simultaneously considering the
text, context and purpose."
[21] Section 157(2) of the CPA provides that, on the application of the prosecution
or any of the accused, the court may, at any stage of the proceedings, direct that the
trial of any one or more of the accused be separated from the trial of the other accused .
[22] The section reads "at any time during the trial". Following the guidance on
interpretation in Endumeni, in my view, such an application can only be brought before
a court where the trial is pending, namely the criminal court.
Section 342A
[23] Section 342A(1 )8 obliges "a court before which criminal proceedings are
pending" to investigate any delay in the completion of proceedings that appears to the
court to be unreasonable and could cause substantial prejudice to the prosecution , the
accused , a witness, or the public interest. Section 342A(2) sets out the factors for the
reasonableness inquiry, including the duration and causes of the delay, the effect on
the accused and witnesses , the seriousness, extent , or complexity of the charge,
actual or potential prejudice to the parties, and the adverse effect on the interests of
the public or victims . Only upon a finding of unreasonable delay may the court issue a
remedial order under section 342A(3), which includes refusing further postponement,
remedial order under section 342A(3), which includes refusing further postponement,
granting a final postponement , or, where the accused has not yet pleaded, striking the
7 2021 (6) SA 1 (CC) at para 65.
8 Section 342A(1) reads as follows: "a court before which criminal proceedings are pending shall
investigate any delay in the completion of the proceedings which appears to the court to be
unreasonable ."
7
matter from the roll, in which event "the prosecution shall not be resumed or instituted
de nova without the written instruction of the attorney-general [now the OPP]".
[24] The literal interpretation of section 342A of the CPA in my view is that the
application in terms of this section must be brought before the trial court, not an
opposed motion court. This court, in my view, is not a criminal court before which the
criminal proceedings are pending.
Permanent stay
[25] In my view, for the court to grant a permanent stay of prosecution, the applicant
must appear before the trial court in which the trial is pending unless there are
exceptional circumstances why he cannot appear before that court.
Transfer to another division
[26] The centralisation of the VBS prosecution in the Gauteng Division was effected
under section 111 (2) of the CPA read with section 22(3) of the National Prosecuting
Authority Act, in terms of which the National Director of Public Prosecutions may, in
consultation with the relevant Director of Public Prosecutions, direct that criminal
proceedings be instituted in a specified jurisdiction; once instituted, that court has
jurisdiction. The corollary is that "reversal" of centralisation is likewise a function of the
National Director of Public Prosecutions.
[27] Section 75(2) of the CPA provides: "If an accused appears in a court which does
not have jurisdiction to try the case, the accused shall at the request of the prosecutor
be referred to a court having jurisdiction".
[28] In my opinion, a court cannot transfer a pending High Court criminal trial to
another division at the request of an accused person. Only the prosecutor can initiate
such a transfer.
[29] Furthermore, there is no provision in the CPA that confers on this court the
power to transfer a matter to another division on the application of the accused person.
8
Section 27 of the Superior Courts Act (removal of proceedings between divisions) is
confined to civil proceedings.
[30] In S v Porritt and Another ,9 the application to transfer the criminal matter was
made to the court in which the trial is pending. The court observed that the issue before
it was not simply whether the National Director of Public Prosecutions' section 111
directive was valid , but whether the applicant could, at that stage, contend that their
right to a fair trial had been compromised if the proceedings were to continue in
Gauteng; and, if so, whether their rights had been infringed.
[31] In assessing whether the accused had demonstrated trial prejudice, the court
considered allegations substantially similar to those advanced by the applicant,
including the costs of travelling to the trial venue, accommodation expenses , the
location of documentary evidence , inconvenience arising from the duration of the
trial, and the logistical difficulties associated with preparing a defence away from
their place of residence. Although the court accepted that these factors created
inconvenience and financial burdens, it concluded they did not violate the accused's
fair trial rights. The court held that the accused had adequate time to prepare their
defence and that any prejudice arising during the trial could be addressed through
procedural mechanisms , including adjournments where necessary.
[32] Therefore , in my view, the applicant in this matter must appear in person before
the trial court and bring this application.
[33] Sections 6(a) and (b) of the CPA empower a Director of Public Prosecutions or
a prosecutor acting on instructions to withdraw a charge before a plea or stop a
prosecution after a plea with the Director of Public Prosecutions' consent.
[34] In my view, I do not have the power to direct the prosecuting authority on how
to exercise its discretion. The proper course is to remit the matter to prosecution
to exercise its discretion. The proper course is to remit the matter to prosecution
authority for a fresh decision on whether to withdraw the case against the appellant or
not.
9 2016 (2) SACR 700 (GJ).
9
[35] It is trite that courts must not usurp discretionary powers entrusted to other
branches and must be conscious of the limits of the judicial function.
[36) In Nzuza v National Director of Public Prosecutions , 10 the court held that review
of prosecutorial decisions is confined to legality and that courts do not sit as appellate
bodies over the NPA's discretionary judgments.
[37) This Court cannot therefore order withdrawal of charges against the applicant.
[38) Finally, in my view, the relief sought in the notice of motion is procedurally
incompetent in a motion court. It is trite that criminal proceedings must be held in the
presence of the accused person. It is not desirable to hold criminal proceedings in a
motion court in the absence of the accused person.
[39) Again, it is my view that co-accused are entitled to indicate whether they oppose
any application brought by the state or by a co-accused. They cannot do so in a motion
court, where they are expected to file papers.
[40] In conclusion I must repeat, the relief sought by the applicant is incompetent in
the motion court and must be brought before the trial court in the presence of all
accused persons. In addition, it is my view that the applicant failed to make a case for
the relief sought in the notice of motion.
[41) The application must be dismissed on all prayers in the notice of motion and
the alternatives.
Order
[42] I make the following order:
42.1. The application is dismissed.
42.2. The Applicant is ordered to pay the costs of this application including the
costs of senior counsel where so employed on scale C.
10 [2024] ZAGPPHC 372.
10
Date of hearing: 25 August 2026
D. MAKHOBA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of Judgment: 10 September 2026
For the Applicant:
Instructed by:
For the First, Fourteenth
and Fifteenth Respondents:
Instructed by:
Adv AD Ramagalela
Shemaya Vengesa Attorneys
Adv P Hemraj SC
Adv HM Barnardt
State Attorney, Pretoria
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