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[2022] ZAFSHC 127
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National Director of Public Prosecutions v Mlamleli (3679/2020) [2022] ZAFSHC 127 (25 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3679/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
And
SARAH
MMATAWANA
MLAMLELI
Respondent
In
the matter between:
SARAH
MMATAWANA
MLAMLELI
Applicant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
1
st
Respondent
GERHARD
GELDENHUYS
N.O
2
nd
Respondent
In
re:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
NTHIMUTSI
MOKHESI
1
st
Defendant
MAHLOMOLA
JOHN MATLAKALA
2
nd
Defendant
PHEAGANE
EDWIN
SODI
3
rd
Defendant
BLACK
HEAD CONSULTING(Pty)
Ltd
4
th
Defendant
DIAMOND
HILL TRADING 71(Pty)
Ltd
5
th
Defendant
605
CONSULTING SOLUTIONS (Pty)
Ltd
6
th
Defendant
SELLO
JOSEPH SYDNEY
RADEBE
7
th
Defendant
MASTERTRADE
232 (Pty)
Ltd
8
th
Defendant
ABEL
KGOTSO
MANYEKI
9
th
Defendant
ORI
GROUP (Pty)
Ltd
10
th
Defendant
THABANE
WISEMAN
ZULU
11
th
Defendant
SARAH
MATAWANA
MLAMLELI
12
th
Defendant
MAREDI
BERNARDINE SUSAN
MOKHESI
1
st
Respondent
KHOMBISILE
ZULU
2
nd
Respondent
BASE
PROPERTY HOLDINGS (Pty) Ltd
3
rd
Respondent
MASEKO
DOROTHY
MOBU
4
th
Respondent
LIKEMO
FAMILY
TRUST
5
th
Respondent
LIATILE
MACHOANE
MOKHESI
6
th
Respondent
MONAMELA
KATLEHO
MOKHESI
7
th
Respondent
KEKELETSO
REABETSOE
MOKHESI
8
th
Respondent
TLAKS
FAMILY
TRUST
9
th
Respondent
DINEO
KELEBOGILE
MATLAKALA
10
th
Respondent
KHAUTA
AARON
MALOKA
11
th
Responden
This
judgement was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand-down is deemed to be 11:00 on 25 February
2022.
RULING ON THE
APPLICATION FOR LEAVE TO APPEAL
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED
ON:
25 FEBRUARY 2022
[1]
The applicant, seeks leave to appeal to the Full Court of this
Division, alternatively
the Supreme Court of Appeal the whole of the
judgment granted by this court on 2 November 2021 in which the
application for rescission
brought by Ms Mlamleli was granted and the
final restraint order was set aside. In the remainder of the order
thus granted the
provisional order was extended against Ms Mlamleli.
[2]
Section 17(1)
of the
Superior
Courts Act 10 of 2013
sets out the test to be applied in an
application for leave to appeal. It provides as follows:
“
Leave to appeal may only be given where the judge or judges
concerned are of the opinion that:
(a)(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal
should be heard
,
including conflicting judgments on the matter under
consideration.”
[3]
Section 17(1)
clearly sets out that an applicant seeking leave to
appeal is required to convince the court that there is a reasonable
prospect
of success and not merely a possibility of success in the
appeal. In
Democratic
Alliance v President of the Republic of South Africa and Others
[1]
the Full Court held as follows:
“
The test as now
set out in
s17
constitutes a more formidable threshold over which an
applicant must engage than was the case. Previously the test was
whether
there was a reasonable prospect that another court might come
to a different conclusion. See, for example,
Van Heerden v
Cronwright and Others
1985(2) SA 342 (T) at 343 H. The fact that
the
Superior Courts Act now employs
the word ‘would ‘as
opposed to ‘might ‘serves to emphasise this point. As the
Supreme Court of Appeal said
in Smith v
S 2012(1)
SACR 567 (SCA) at
para 7;
‘
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.’
This dictum serves
to emphasise a vital point: Leave to appeal is not simply for the
taking. A balance between the rights of the
party which was
successful before the court a quo and the rights of the losing party
seeking leave to appeal need to be established
so that the absence of
a realistic chance of succeeding on appeal dictates that the balance
must be struck in favour of the party
which was initially
successful.”
[4]
In this application for leave to appeal it is contended by the NDPP
that the rescission
was granted in terms of the common law when, in
restraint matters made under Prevention of Organised Crime Act 121 of
1998(POCA)
are concerned, it is the provisions pertaining to
rescission in POCA alone which are applicable.
[5]
Ms Mlamleli brought her application for rescission under the common
law and set out
in detail in her application why she was entitled for
the relief sought. It is so that under POCA, there is a specific
section
dealing with rescission of judgment, namely section 26(10).
In the application for rescission for judgment the NDPP contended
that
Ms Mlamleli failed to disclose to the court appointed curator
bonis the existence of an Absa account in her names in which the sum
of R963 393. 78 stood to her credit. It was thus contended that
that she did not handle herself in a bona fide manner and
her
application was thus not bona fide.
[6]
In
National
Director of Public Prosecutions v Phillips and Others
[2]
the
court held as follows:
“
To sum up, a
High Court which grants a restraint order in terms of s26(1) of the
Act has no inherent jurisdiction to rescind the
order. Subject to one
exception its power to do so is circumscribed by the Act and is
limited to the grounds set forth in s25(2)
an s26(10). The exception
is the existence of one or other of the recognised common law grounds
for rescission which must have
existed when the restraint order was
granted.”
[7]
In my view the court in Phillips does not say that rescission of
judgment cannot be
brought under the common law although that should
happen under exceptional circumstances. In this regard the court held
that those
circumstances may be in situations where judgment is
founded on fraud, common mistake and the doctrine of
instrumentum
noviter repertum
(the coming to light of as yet unknown
documents). Having regard to the facts of this case, section 26(10)
of POCA and the Phillips
decision I am of the view that another court
may come to different decision to the one granted by this court. I
accordingly make
the following order:
Order
1.
The applicant is granted leave to appeal to
the Full Court of this Division;
2.
The costs of application shall be costs in
the appeal.
P.E. MOLITSOANE, J
For the
Applicant
The State Attorney
BLOEMFONTEIN
(REF:
619/20200863/P16M)
For the Respondent:
Matlho Attorneys
Instructed by:
BLOEMFONTEIN
(REF: MD
MATLHO/MLA14/0001)
[1]
(21424/2020) [2020] ZAGPPHC 326(29 July 2020) paras [4] – [5].
[2]
[2005]
1 AII SA 635 at para 23.