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[2023] ZAECMKHC 29
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African Paper Products (Pty) Ltd and Another v Director of Public Prosecutions: Eastern Cape and Another (Leave to Appeal) (250/2020) [2023] ZAECMKHC 29 (9 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 250/2020
In
the matter between:
AFRICAN
PAPER PRODUCTS (PTY) LTD
First Applicant
VISHAL
DEVRAJ SEEBRAN
Second Applicant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS:
First Respondent
EASTERN
CAPE
THE
REGIONAL MAGISTRATE COMMERCIAL
Second Respondent
CRIMES
COURT, PORT ELIZABETH
MR
CLAASEN
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
BANDS
AJ:
[1]
The applicants seek leave to appeal against the whole of this court’s
judgment and order granted in favour of the respondents, delivered on
31 October 2022.
[2]
The test to be applied in applications of this
nature finds legislative expression in
section 17 of the
Superior Courts Act, 10 of 2013 (“
the Act
”), which
provides that leave to appeal may only be granted where the judge
concerned is of the opinion that the appeal would
have a reasonable
prospect of success, or that there is some other compelling reason
why the appeal should be heard, including
conflicting judgments on
the matter under consideration.
[3]
The applicants bring their application in terms of section
17(1)(a)(i)
of the Act only.
[4]
The Supreme
Court of Appeal has on more than one occasion had the opportunity to
consider what constitutes a reasonable prospect
of success, which is
stated to be as follows:
[1]
“
What the test
of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words,
be a sound, rational
basis for the conclusion that there are prospects of success on
appeal.
”
[5]
It is against this backdrop that this application is adjudicated.
[6]
The applicants rely on six grounds of appeal, each of which are dealt
with below.
First
and third grounds of appeal
[7]
The applicants’ first and third grounds of appeal take issue
with
the legal principles applied by the court to the facts of the
matter. More particularly, the applicants contend that: (i)
“
the court’s finding was influenced by the wrong
application of jurisprudential principles arising in different areas
of the
law to the criminal proceedings before it
”; and (ii)
“
the court took an impermissible view of what constituted a
gross irregularity and impermissibly applied arbitration and labour
review
jurisprudence to the exercise of the discretion required of it
in terms of section 22 of the Act
”.
[8]
The
applicants lose sight of the fact that the principles relied upon by
this court in paragraphs [31] to [35] of the judgment,
with reference
to
Telecordia
Technologies Inc v Telkom SA Ltd
[2]
and
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
constitute a restatement of the law distilled in
Ellis
v Morgan; Ellis v Desai
[4]
and
Goldfields
Investments Ltd and Another v City Council of Johannesburg and
Another
,
[5]
in that if a complaint is against the result of the proceedings, the
appropriate remedy is by way of appeal; whereas, if the method
of the
proceedings is attacked, the remedy is to bring the matter in
review.
[6]
This is settled
law.
[9]
Paragraphs [19] to [29] of the court’s judgment deal
extensively
with the further legal principles, insofar as they are
applicable to the facts of the present matter, and more particularly,
which
govern the court’s power to interfere with unterminated
proceedings in a lower court, inclusive of criminal law proceedings,
and need not be repeated herein.
[10]
On a proper application of the law to the facts of the present
matter, and for the reasons
set out in this court’s judgment, I
do not think that there are reasonable prospects that another court
will come to a different
conclusion.
Second
and sixth grounds of appeal
[11]
The applicants’ second and sixth grounds of appeal pertain to
this court’s
finding that the grounds of review relied upon by
the applicants are directed at the result of the proceedings in the
Commercial
Crimes Court and not with the method thereof. The
applicants’ grounds for review, which are set out in paragraph
31
of the applicants’ founding papers and are repeated in
paragraph [16] of this court’s judgment, were previously dealt
with by me, contextually, and speak for themselves.
[12]
In any event, at paragraphs [39] to [41] of the judgment, I set out
as follows:
“
[39]
Even if I am incorrect in this conclusion, whether or not the
applicants are satisfied with the result of
the objection
proceedings, there can be no doubt that the second respondent
considered the applicants’ grounds of objection
and applied his
mind thereto in deliberating the issues before him. This much
is clear from a reading of the ruling in question.
There is
nothing from the second respondent’s reasons from which it is
apparent that his mind was not in a state to enable
him to try the
matter fairly or that his conduct prevented a fair trial of the
issues.
[40]
I am not persuaded that the applicants have shown the presence of any
of the grounds referred
to in
section 22
of the
Superior Courts Act;
nor have
they demonstrated that there are circumstances to satisfy
this court that absent an intervention at this stage, grave injustice
may result, such as to materially prejudice the applicants, which
could not, in due course be corrected on review or appeal.
I
deal with this in greater detail below.
[41]
Accordingly, the applicants’ application for review in medias
res, must, on either of these
additional grounds, meet the same
fate.
”
[13]
Detailed reasons for my above findings are contained in paragraphs
[41] to [63] of this
court’s judgment. If regard is had
to such reasons, I am of the view that there are no reasonable
prospects that another
court will come to a different conclusion.
Fourth
and fifth grounds of appeal
[14]
The applicants’ fourth and fifth grounds of appeal, broadly
stated, pertain to the
court’s finding that the second
applicant had sufficient details of the forgery charges against him
in circumstances “
where the State had failed to identify
him
as the person who forged the document
.”
[15]
The issue of
actus reus
, as well as the legal principles
pertaining to the requirements of a charge sheet; the purposes
therefor; and what is required
of the state at the relevant stage of
the proceedings, was dealt with by me in paragraphs [52] to [59] of
the court’s judgment.
I further dealt with the clear
wording of the charge sheet in question, read together with the
preamble thereto; the state’s
answer to the request for
particulars; and the applicants’ contention that the charges do
not disclose an offence.
In short, the conclusion arrived at by
me in paragraph [59] is as follows:
“…
it is
clear from the unambiguous terms contained in the charge-sheet that
the State has nailed its colours to the mast and relies
solely on the
personal liability of the second applicant. It cannot be
gainsaid that the second applicant has sufficient
detail to (i)
inform him of the nature of the charges against him; (ii) enable him
to answer thereto; and (iii) properly mount
his defence. There
can be no question that the second applicant is not at risk of a
trial by ambush or prejudiced in his
preparations for trial.
Whether the State will, in due course, be in a position to prove its
case on the evidence available
to it, which evidence is not within
the particular knowledge of this court, is not for this court to
determine. I am not
at liberty, at this stage of the
proceedings, to draw an inference concerning the strength or weakness
of the State’s case
from the prosecutor’s inability to
furnish particulars.
”
[16]
I am accordingly of the view that there are no reasonable prospects
that another court
will come to a different conclusion in respect of
the applicants’ fourth and fifth ground of appeal.
Conclusion
[17]
In the result, I am of the view that there exists no reasonable
prospect of success in
the contemplated appeal. Given the
nature of these proceedings, I am of the view that each party should
be ordered to pay
their own costs. Accordingly, the following
order shall issue:
1.
The applicants’ application for leave to appeal is dismissed.
2.
Each party is to pay their own costs.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
I
agree:
M
LOWE
JUDGE
OF THE HIGH COURT
Appearances:
For
the Applicants:
J.P
Broster
Instructed
by:
Pather
& Pather Attorneys c/o Nolte Smit Attorneys
51A
High Street, Makhanda
For
the First Respondent:
N.L.
Ntsepe
Instructed
by:
The
State Attorney c/o Yokwana Attorneys
10
New Street, Makhanda
Coram:
Lowe
J
et
Bands AJ
Date
heard:
8
March 2023
Delivered:
9
March 2023
[1]
S
v Smith
2012
(1) SACR 567
(SCA) para 7.
Maphana
and Another v S
(174/2017)
[2018] ZASCA 8 (1 March 2018).
Ramakatsa
and Others v African National Congress and Another
(724/2019)
[2021] ZASCA 31 (31 March 2021) at para 10.
[2]
2007
(3) SA 266 (SCA)
[3]
2008
(2) SA 24
at para [265].
[4]
1909 TS 576.
[5]
1938 TPD 551.
[6]
See also:
Snyders
v De Jaager
2016 (5) SA 218
(SCA) at 222F-J.
See
also: DE van Loggerenberg,
Erasmus, Superior Court Practice
Vol
2 (Juta), Second Edition, [service 4, 2017] at A2-123; and [service
7,2018] at A2-133.