Mokhesi and Others v S (45/2021) [2022] ZAFSHC 58; 2022 (2) SACR 326 (FB) (28 March 2022)

Mokhesi and Others v S (45/2021) [2022] ZAFSHC 58; 2022 (2) SACR 326 (FB) (28 March 2022)

The applications brought by the accused are premature and constitute impermissible preliminary litigation in criminal matters. The Criminal Procedure Act provides adequate mechanisms for accused persons to challenge charges and evidence before the trial court, which is the proper forum to adjudicate such issues. Regulation 8(2) of the State Capture Commission Regulations only prohibits the use of self-incriminating evidence, not all evidence emanating from the Commission, and the applicants have failed to identify any such evidence. Section 27 of PRECCA is not peremptory and any alleged non-compliance should be raised as a special plea before the trial court. The relief sought is academic...

Citation
[2022] ZAFSHC 58
Parties
Applicant: Nthimotse Mokhesi; Applicant: Pheane Edwin Sodi; Applicant: Blackhead Consulting (Pty) Ltd; Applicant: Thabane Wiseman Zulu; Applicant: Elias Sekgobela Magashule; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 March 2022
Case Number
45/2021
Procedural Posture
Civil Application / Motion Proceedings Prior to Criminal Trial
Outcome
All applications are dismissed with costs, including costs of two counsel where applicable. The application to strike out is also dismissed with costs.
Judges
Naidoo
Legal Topics
Fair Trial Rights, Preliminary Litigation, Self Incrimination, Regulation 8 State Capture Commission, Section 27 Precca, Declaratory Relief
Criminal Law Civil Procedure Constitutional Law Fair Trial Rights Preliminary Litigation Self Incrimination Regulation 8 State Capture Commission Section 27 Precca +1 more

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Parties

Nthimotse Mokhesi

Applicant

Pheane Edwin Sodi

Applicant

Blackhead Consulting (Pty) Ltd

Applicant

Thabane Wiseman Zulu

Applicant

Elias Sekgobela Magashule

Applicant

The State

Respondent

Procedural Posture

Civil Application / Motion Proceedings Prior to Criminal Trial

Legal Issues

  1. 1 Whether the applicants are entitled to declaratory relief or stay of prosecution prior to pleading in the criminal trial.
  2. 2 Whether evidence given before the State Capture Commission is inadmissible in criminal proceedings under Regulation 8(2).
  3. 3 Whether the State's alleged non-compliance with section 27 of PRECCA invalidates charges against certain applicants.

Ratio Decidendi

The applications brought by the accused are premature and constitute impermissible preliminary litigation in criminal matters. The Criminal Procedure Act provides adequate mechanisms for accused persons to challenge charges and evidence before the trial court, which is the proper forum to adjudicate such issues. Regulation 8(2) of the State Capture Commission Regulations only prohibits the use of self-incriminating evidence, not all evidence emanating from the Commission, and the applicants have failed to identify any such evidence. Section 27 of PRECCA is not peremptory and any alleged non-compliance should be raised as a special plea before the trial court. The relief sought is academic...

Court Disposition

All applications are dismissed with costs, including costs of two counsel where applicable. The application to strike out is also dismissed with costs.

Orders

  • The application brought by Nthimotse Mokhesi is dismissed with costs, including costs of two counsel.
  • The application brought by Pheane Edwin Sodi and Blackhead Consulting (Pty) Ltd is dismissed with costs, including costs of two counsel.