Director of Public Prosecutions (KwaZulu-Natal) v Henry and Others

The matter arose from criminal proceedings in which the first respondent was charged with rape and indecent assault allegedly committed against the third respondent when she was a child. During preparation for trial, the defence requested access to all notes and documents of a clinical psychologist who had treated the complainant years later and had provided a report to the prosecution. The State furnished the psychologist’s report but refused access to her full therapy and assessment notes. The defence applied to compel disclosure, leading the psychologist and complainant to oppose on grounds of privacy and confidentiality. A regional magistrate partially ordered disclosure. The psychologist and complainant successfully reviewed that decision in the High Court. The High Court set aside the magistrate’s order and ordered the Director of Public Prosecutions to pay costs, finding that the State had caused confusion by failing to clarify that it did not intend to call the psychologist as an expert witness. The DPP appealed only against the adverse costs order.

The appeal was dismissed with costs, and the costs order made by the High Court against the State was upheld.

The case confirms and applies the settled principle governing appellate interference with costs orders in South African law. It underscores the duty of prosecuting authorities to act with clarity and fairness in criminal proceedings and demonstrates that failure to do so may justify an adverse costs order, even against the State.