Nkosilathi Ncube v The State and Magistrate D. Malunga N.O.

The applicant faced two counts of armed robbery before the Regional Court. The trial was set to start on 9 May 2022. On that date, the applicant made an application to compel the State to furnish him with police running diaries for specific periods, video footage from Access Finance Bureau De Change, and statements of fingerprint experts. The trial court dismissed this application. The applicant then filed an application for review under HC 957/22 and simultaneously launched an urgent chamber application seeking a stay of the criminal trial pending the review application.

• Whether the High Court should interfere with unterminated proceedings of a lower court
• Whether the review application had prospects of success sufficient to warrant a stay of criminal proceedings
• Whether the trial court's refusal to order disclosure of video footage, police diaries, and expert statements constituted a gross irregularity or was clearly wrong
• Whether the draft order in the review application was competent

The urgent chamber application for a stay of criminal proceedings was dismissed. No written reasons were requested by the parties, but the court provided them nonetheless to clarify the decision.

Superior courts should be very slow in interfering with unterminated proceedings of lower courts, with exceptions only for gross irregularity or clearly wrong decisions causing serious prejudice that cannot be corrected by other means. A stay of criminal proceedings pending review will only be granted where the review application has prospects of success. In review applications, the High Court has no power to make consequential orders substituting the trial court's decision; it can only set aside or correct the proceedings or decision complained of. Review applications cannot be used as a mechanism to derail or delay criminal trials where no substantial injustice has been demonstrated.

The court noted that it had observed from counsel's submissions that the application was being used to derail or stall the start of the trial, which influenced the decision to deliver an ex tempore judgment to facilitate the commencement of the criminal trial. The court also commented that even if the requested materials were in the State's possession, issues of evidence are within the jurisdiction of the trial court, and the High Court should not interfere with such matters during ongoing proceedings. The court acknowledged the tension in commenting on the review application's merits while determining the stay application, but justified this as necessary to assess prospects of success.

This case reinforces important principles regarding superior court interference with ongoing lower court proceedings and the requirements for staying criminal trials pending review applications. It clarifies the limited scope of review relief available from the High Court, emphasizing that review applications cannot be used to obtain consequential orders compelling production of evidence. The judgment serves as authority against using review applications as delaying tactics in criminal proceedings and establishes that a stay will only be granted where the review application has realistic prospects of success based on gross irregularity or clearly wrong decisions.