Ndluli v Wilken en Andere (378/89) [1990] ZASCA 107; 1991 (1) SA 297 (AD); [1991] 1 All SA 256 (A) (27 September 1990)

Ndluli v Wilken en Andere (378/89) [1990] ZASCA 107; 1991 (1) SA 297 (AD); [1991] 1 All SA 256 (A) (27 September 1990)

The court held that the special plea under section 106(1)(h) of the Criminal Procedure Act is not applicable to the circumstances alleged by the appellant. The plea concerns the authority of the individual prosecutor appearing in court, not the entitlement of the State to prosecute based on prior undertakings. The appellant's grievance was against the State's decision to prosecute despite an alleged agreement, not against the locus standi of the prosecutor in court. The regional magistrate was obliged to hear and decide the special plea, but the plea itself was misconceived and could not succeed on the facts. The proper remedy, if any, would have been to seek an interdict against the...

Citation
[1990] ZASCA 107
Parties
Appellant: Welcome Ndluli; Respondent: W.J.J. Wilken; Respondent: The Attorney-General, Transvaal; Respondent: The President of the Regional Division, Northern Transvaal
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 1990
Case Number
378/89
Procedural Posture
Criminal Appeal / Appeal From Dismissal of Review Application by Court a Quo
Outcome
The appeal is dismissed.
Judges
Eksteen, Hoexter, Smalberger, Steyn, Goldstone
Legal Topics
Title to Prosecute, Special Plea, Prosecutorial Discretion, Review of Prosecutorial Decision
Criminal Law Civil Procedure Title to Prosecute Special Plea Prosecutorial Discretion Review of Prosecutorial Decision

Case Brief

Summary, issues, holding and outcome

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Parties

Welcome Ndluli

Appellant

W.J.J. Wilken

Respondent

The Attorney-General, Transvaal

Respondent

The President of the Regional Division, Northern Transvaal

Respondent

Procedural Posture

Criminal Appeal / Appeal From Dismissal of Review Application by Court a Quo

Legal Issues

  1. 1 Whether a special plea under section 106(1)(h) of the Criminal Procedure Act 51 of 1977 can be sustained where the accused alleges the State is not entitled to prosecute due to a prior undertaking.
  2. 2 Whether the regional magistrate had jurisdiction to determine the special plea.
  3. 3 Whether the decision of the Attorney-General to proceed with prosecution is subject to review by the regional court.

Ratio Decidendi

The court held that the special plea under section 106(1)(h) of the Criminal Procedure Act is not applicable to the circumstances alleged by the appellant. The plea concerns the authority of the individual prosecutor appearing in court, not the entitlement of the State to prosecute based on prior undertakings. The appellant's grievance was against the State's decision to prosecute despite an alleged agreement, not against the locus standi of the prosecutor in court. The regional magistrate was obliged to hear and decide the special plea, but the plea itself was misconceived and could not succeed on the facts. The proper remedy, if any, would have been to seek an interdict against the...

Court Disposition

The appeal is dismissed.

Orders

  • The appeal is dismissed.
  • The order of the court a quo stands: the special plea is noted as dismissed and the prosecution may proceed.