Summary of Judgment

1. Introduction

This was an application for leave to appeal brought in the High Court of South Africa, Northern Cape Division, Kimberley. The applicants were Charles Buys, Andries Buys, Conrad Buys, Gordon Buys, and Louis Mossel, and the respondents were the Minister of Police and the Head of the Hawks, South African Police Service.

The application for leave to appeal was directed against the entirety of an earlier judgment and order granted by Snyders AJ on 21 April 2017, in which the court dismissed the applicants’ main application and ordered that each party pay its own costs. The present judgment (delivered on 23 June 2017, after a hearing on 20 June 2017) determined whether leave to appeal should be granted, and if so, on which grounds.

The underlying dispute (as it emerged from the leave to appeal judgment) concerned the lawfulness/justification for the seizure of items by the police authorities and the applicants’ attempt to obtain relief, including relief referenced to section 31 of the Criminal Procedure Act 51 of 1977. The leave to appeal proceedings focused on whether the applicants had demonstrated reasonable prospects of success on appeal in relation to the findings made in the April 2017 judgment.

2. Material Facts

The court had previously made an order on 21 April 2017 dismissing the applicants’ application, with each party to pay its own costs. The applicants then sought leave to appeal against that outcome to the Full Court of the Northern Cape Division, alternatively to the Supreme Court of Appeal.

The applicants’ grounds of appeal were presented in a notice of motion supported by affidavits. They also listed eleven impugned findings said to constitute errors, contending that these produced reasonable prospects of success on appeal. The court did not set out each alleged error in detail, noting that doing so would be unnecessarily prolix.

From the court’s summary, the grounds of appeal relevant to the decision on leave were grouped as follows. First, grounds 1 to 3 were directed at the court’s prior finding that the respondents had discharged the onus by providing objective facts supporting a reasonable belief justifying seizure of the items. Secondly, grounds 5, 6, and 7 concerned the court’s prior finding that the applicants had failed to make out a case under section 31 of the Criminal Procedure Act 51 of 1977.

A further ground (ground 4) was described as an alleged finding that the failure by the Asset Forfeiture Unit to bring forfeiture proceedings counted against the applicants. Another ground (ground 9) was described as an alleged finding that the second respondent did not exist. Additional grounds (grounds 8, 10, and 11) related to the court’s prior reasoning and order on costs.

During argument in the leave to appeal proceedings, counsel for the applicants, Mr Schreuder, conceded that grounds 4 and 9 were based on the applicants’ subjective feelings and did not form part of the April 2017 judgment. In addition, the applicants’ contention about ground 9 was treated by the court as a misconstruction: the earlier judgment had not held that no such unit as “the Head of the Hawks” existed, but had merely recorded why the applicants had abandoned relief against the second respondent.

As to the costs-related grounds, counsel conceded that the applicants were not prejudiced by the costs order. The court further recorded that an appeal court could in any event make an appropriate costs order when hearing the appeal.

3. Legal Issues

The central legal question was whether the applicants satisfied the statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, namely whether the appeal would have a reasonable prospect of success or whether there was some other compelling reason to grant leave, subject to the additional requirements referenced in section 17(1).

This was primarily a question of application of law to the circumstances of the case, specifically the application of the leave to appeal standard to the various challenged findings in the earlier judgment. It also involved an evaluative determination of whether particular grounds genuinely arose from the judgment (as opposed to being misconstrued or subjective), and whether any challenge to the costs order had practical significance given the concessions made.

Although the applicants relied on National Director of Public Prosecutions v Freedom Under the Law in relation to the legal effect of a withdrawal under section 6(a) of the Criminal Procedure Act 51 of 1977, the leave to appeal judgment treated that reliance as part of the applicants’ attempt to support their grounds (particularly those emphasised in argument), rather than as a distinct issue requiring a final pronouncement on the merits of the underlying dispute.

4. Court’s Reasoning

The court approached the matter through the framework set by section 17(1) of the Superior Courts Act 10 of 2013. It recorded that leave to appeal may only be granted if the judge is of the opinion that the appeal would have reasonable prospects of success or there exists a compelling reason, and also if the decision does not fall within the ambit of section 16(2)(a), with an additional consideration where the appealed decision does not dispose of all issues.

In explaining the meaning of “reasonable prospects of success”, the court relied on S v Smith 2012 (1) SACR 567 (SCA). The judgment emphasised that the test requires a dispassionate assessment of whether a court of appeal could reasonably reach a different conclusion. It highlighted that something more is required than a mere possibility of success; the prospects must be realistic and based on a sound, rational basis.

Applying this standard, the court concluded that the applicants did have reasonable prospects of success on the grounds corresponding to the earlier findings about the respondents having discharged the onus (the “objective facts” and “reasonable belief” justification for seizure), and on the grounds concerning the applicants’ failure to make out a case under section 31 of the Criminal Procedure Act 51 of 1977. In the judge’s assessment, these grounds met the threshold that another court could reasonably come to a different conclusion.

By contrast, the court was not persuaded that there were reasonable prospects of success on the remaining grounds. Two of those grounds (those described as grounds 4 and 9) were dealt with briefly because applicants’ counsel accepted that they reflected subjective impressions rather than findings actually made, thereby undermining them as appeal grounds.

The court also addressed the misconception underpinning the complaint about the existence of the second respondent. It clarified that the earlier judgment did not contain the finding attributed to it; it merely recorded why the applicants abandoned relief against the second respondent. This reasoning treated the ground as failing at the level of accurately identifying what was decided, rather than raising a substantive appealable issue.

On costs, the court noted the concession that the applicants were not prejudiced by the costs order and added that, in any event, an appeal court could make an appropriate order on costs when determining the appeal. This supported the conclusion that the costs-related grounds did not justify leave to appeal.

5. Outcome and Relief

The court granted leave to appeal to the Full Court (as contemplated) on certain specified grounds, namely those set out in the applicants’ papers as paragraphs 9.1, 9.2, 9.3, 9.5, 9.6, and 9.7 of the affidavit of Charles Buys dated 6 May 2017.

The court refused leave to appeal on the grounds set out as paragraphs 9.4, 9.8, and 9.9 of that affidavit.

The costs of the application for leave to appeal were ordered to be costs in the appeal.

Cases Cited

Songono v Minister of Law and Order 1996 (4) SA 384 (E).

National Director of Public Prosecutions v Freedom Under the Law 2014 (4) All SA 147 (SCA).

S v Smith 2012 (1) SACR 567 (SCA).

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1) and section 16(2)(a).

Criminal Procedure Act 51 of 1977, section 31 and section 6(a).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

Leave to appeal was granted only in respect of those grounds on which the court was satisfied that there were reasonable prospects of success, namely the grounds addressing the earlier findings on the sufficiency of objective facts supporting a reasonable belief for seizure, and the earlier findings concerning the failure to make out a case under section 31 of the Criminal Procedure Act 51 of 1977.

Leave to appeal was refused in respect of the remaining specified grounds, including grounds treated as not reflecting findings actually made (being subjective or misconstrued) and grounds directed at costs where lack of prejudice was conceded and where the appeal court could address costs in any event.

Costs of the leave to appeal application were ordered to stand over as costs in the appeal.

LEGAL PRINCIPLES

The statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013 requires that the judge be satisfied that the appeal would have a reasonable prospect of success, or that there exists some other compelling reason to grant leave, together with the further statutory qualifications referenced in section 17(1).

The test for “reasonable prospects of success”, as applied from S v Smith 2012 (1) SACR 567 (SCA), requires a dispassionate assessment of whether a court of appeal could reasonably reach a different result. A mere possibility of success is insufficient; there must be a sound, rational basis for concluding that the prospects of success are realistic and not remote.

A proposed appeal ground must engage with an actual finding made in the judgment sought to be appealed. Grounds that are based on subjective perceptions or a misreading of what was decided do not provide a proper foundation for leave to appeal.

Where the complaint concerns costs, concessions bearing on prejudice and the appeal court’s ability to make an appropriate costs order may affect whether there are reasonable prospects of success on that aspect in an application for leave to appeal.