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[2010] ZAECPEHC 69
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National Director of Public Prosecution v Mniki (2190/2009) [2010] ZAECPEHC 69 (1 November 2010)
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Cases No: 2190/2009
In the
matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
….....................................
Applicant
and
BONSILE
MICHAEL MNIKI
…...............................................................................
Respondent
In re:
A red Opel
Kadette DNG 846 EC
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
NEPGEN,
J
[1] The applicant seeks leave to appeal against the judgment and
costs order made in this matter. As I understand the original
Notice
of Application for Leave to Appeal, such leave was initially sought
on the basis that there was a reasonable prospect that
a court of
appeal would find that I erred in failing to hold that the motor
vehicle in question was an instrumentality of the offence
of which
the respondent, on his own version, was guilty. However, sometime
thereafter the applicant gave notice of his intention
to seek leave
to appeal on the further ground that I erred in accepting the
respondent’s version of the circumstances under
which he came
to be in possession of the carcasses in question. The introduction of
this additional ground of appeal was not opposed
on behalf of the
respondent. I accordingly granted an amendment to the Notice of
Application for Leave to Appeal, resulting in
the addition of this
further ground.
[2] As pointed out in my judgment in this matter, the undisputed
facts are capable of giving rise to the inference that the respondent
had been engaged in illegal hunting of wild game. After dealing with
the respondent’s version, I concluded that, there having
been
no request that the matter be referred for the hearing of oral
evidence, the matter should be decided on the respondent’s
version. According to the notes I made at the time, this was accepted
on behalf of the applicant. However, as is apparent from
my judgment
(para [9]), it was also argued that it did not really matter whether
the respondent had illegally hunted the buck.
Mr Van Der Linde, who
appeared on behalf of the applicant in this application, submitted
that because of this it would seem that
there was some confusion and
that the applicant should not be bound by a concession which might
have been made inadvertently.
[3] It was argued before me that if a robust approach is adopted
another court could come to the conclusion that the respondent
had in
fact hunted the buck. This would undoubtedly be so if there was no
explanation as to why the dogs were in the vehicle. There
is such an
explanation, but Mr Van Der Linde contended that it is vague in a
number of respects and therefore unsatisfactory. Whether
I agree or
not is irrelevant at this stage, as the question that must be
answered is whether there are reasonable prospects that
another court
may come to such a decision. After having considered the matter
carefully, I have come to the conclusion that such
prospects do
exist. Accordingly the applicant should be granted leave to appeal on
the additional ground raised at the hearing.
[4] Had the application proceeded on the basis of what was set out in
the original Notice of Application for Leave to Appeal, I
would have
concluded that there were not reasonable prospects that another court
would hold that the vehicle was an instrumentality
of the offence
which the respondent, on his version, had committed. However, as the
whole question of the vehicle being an instrumentality
of the offence
of hunting may arise if the respondent’s version is not
accepted, I consider it inappropriate to limit the
grounds upon which
the applicant may appeal against my judgment.
[5] It was common cause that leave to appeal should be granted to the
Full Bench of this Division. The parties were also in agreement
that
the costs of this application should be costs in the appeal.
[6] I accordingly make the following order:
The applicant is granted leave to appeal to the Full Bench of this
Division against the whole of my judgment in the above matter.
The costs of this application are to be costs in the appeal.
J J NEPGEN
JUDGE OF THE HIGH COURT