The applicant, the Director of Public Prosecutions (DPP), seeks to review a decision of the first respondent, a regional magistrate, which decision was to grant a discharge of the second respondent (the accused) in a criminal case pursuant to the provisions of s 174 of the Criminal Procedure Act (CPA).

Despite earlier decisions allowing the DPP to appeal such a decision of a magistrate the representative of the DPP did not rely on an appeal procedure by it but on a review only. The DPP submitted and accepted that a court’s finding in an application for discharge at the end of the State’s case in terms of s 174 of the CPA is an interlocutory order and not appealable. Although the refusal to grant a discharge may not be appealable on this basis, it does not follow that the granting of a discharge is also of an interlocutory nature. Whether this position is correct in law need no consideration as the DPP’s only lis with the accused is whether the decision of the magistrate to grant the discharge is reviewable.