C N v I G R (D6383/2024) [2025] ZAKZDHC 49 (28 October 2025)

• Constitutional law – s 179(5)(d) – scope of NDPP’s review powers – applies to review of decisions by DPPs/prosecutors, not to NDPP’s own reconsideration. • Criminal procedure – decision to prosecute – not administrative action under PAJA; failure to comply with constitutional/statutory hearing requirements reviewable under legality. • Civil procedure – motion proceedings – Plascon‑Evans rule; courts must not decide disputes of fact on probabilities from affidavits. • Judicial conduct – limits of judicial decision‑making; avoid gratuitous findings against non‑parties. • Costs – striking out irrelevant scandalous allegations may attract attorney‑and‑client costs and costs of three counsel.

Constitutional law — Children’s rights — Section 28(2) paramountcy principle — Sentencing — Duties of court where offender is primary caregiver — Need to ascertain caregiver status, consider child’s best interests independently, weigh and secure alternative care — Correctional supervision as community-based alternative — Section 28 limited by section 36 balancing.

Motion proceedings — referral to oral evidence or trial (Rule 33(8)/Uniform Rule 6(5)(g)) — respondent unable to file affidavits must explain evidence sought, why not in affidavit form, and show reasonable grounds that defence will be established; exceptional remedy to prevent fishing expeditions. Restitution/contract — alleged cancellation for fraud — hearsay and unsupported valuation challenges insufficient to vitiate contracts on papers. Condonation — unexplained delay and weak prospects require strong merits to succeed; costs consequences for improper or prolix applications.

* Civil procedure — Leave to appeal — Section 17(1)(a) Superior Courts Act 10 of 2013 — test requires reasonable prospect that another court "would" differ — high threshold. * Re-presentation of issues decided in main application insufficient to obtain leave to appeal. * No arguable point of law or compelling reason demonstrated — leave refused with costs.