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IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
CASE NO: 3295/2022
In the matter between:
NATIONAL DIRECTOR OF PUBLIC PROSECUTION
Applicant
And
JACOBUS GERHADUS FOURIE 1
st Respondent
VETVEE BOERDERY (PTY) LTD 2
nd Respondent
In re: A john Deer 6225 tractor with registration number HJT […] 2 trailers seized on
24 and 26 March 2022 and held under Vrede CAS 897/03/2022
IN AN APPLICATION FOR FORFEITURE OF PROPERTY ORDER IN TERMS OF
SECTION 48 OF THE PREVENTION OF ORGANISED CRIME ACT NO 121 OF
1998
HEARD ON: Matter disposed of without oral hearing in terms of section19(a) of the
Superior Court Act 10 of 2013.
___________________________________________________________________
JUDGMENT BY: MHLAMBI, J
___________________________________________________________________
DELIVERED ON: 24 DECEMBER 2024
APPLICATION FOR LEAVE TO APPEAL
___________________________________________________________________
Introduction
2
[1] This is an opposed application for leave to appeal against the whole judgment
which I granted on 25 April 2024 when the applicants ’ forfeiture application was
dismissed with costs. The grounds of appeal are stated as follows:
1. That the honourable court erred.
1 .1 In finding that the Applicant failed to prove that the railway line
was not res derelictae, the Respondents had a duty to submit
evidentiary evidence of this fact. Transnet in an affidavit claimed
ownership of the railway line, which negates the defence of res
derelictae.
1 .2 In failing to provide reasons why the evidence of Transnet
regarding its ownership over the railway line was rejected.
1.3 In finding that the railway line was abandoned.
1 .4 In finding that the Respondents by moving the railway line 200
metres away from its original location meant that there was no
intention to permanently deprive the owner of ownership.
1 .5 In finding that there was insufficient evidence on the papers to
make a finding on the issue of the ownership of the railway line.
1 .6 In failing to call for oral evidence in circumstances, where the
court deemed it necessary to have done so for the determination
of ownership.
1 .7 In disregarding the fact that forfeiture proceedings are application
proceedings that are prescribed by Prevention of Organised
Crime Act 21 of 1998 (POCA) as opposed to proceedings where
the Applicant has an election between proceeding by way of an
application or action.
1 .8 In failing to accept that the evidence supported the possibility of
conviction on competent verdicts listed in schedule 1 of POCA.
3
1 .9 In failing to make a ruling on the servitude that existed over the
farm where the railway line ran.
1 .10 In failing to consider that a public servitude is not subject to
prescription.
1 .1 1 In using the criminal law standard of beyond reasonable doubt to
conclude on the charges instead of the civil standard.
1 .12 In failing to consider the Respondents' failure to obtain permission
from Transnet before removing the railway line.
1.13 In failing to consider the fact that the railway line once uprooted
and removed, could not be reinstalled, thus making its removal
and deprivation of its use permanent.
1.14 In finding that for the property to constitute an instrumentality of
offences, it had to be adapted, where there is case law to the fact
that the manner in which a property is used can make it an
instrument of an offence.
2. That another court could reasonably have come to a different conclusion
than the one reached by the Court a quo; and
3. That the Applicant has reasonable prospects of success on appeal.
[2] Section 17(1)(a) of the Superior Courts Act provides that leave to appeal may
only be given where the judge concerned is of the opinion that the appeal
would have a reasonable prospect of success or there is some other
compelling reason why the appeal should be heard including conflicting
judgments on the matter under consideration.
[3] All the grounds in the application for leave to appeal and the arguments in the
applicant’s heads of argument have been succinctly dealt with in the judgment.
The issues raised in the heads of argument are grouped under the headings
ownership of the railway lines, res derelictae and abandonment; intention to
permanently deprive Transnet, oral evidence, Chapter 6 P OCA Proceedings,
4
Schedule 1 P OCA offences, an instrumentality of an offence referred to in
Schedule 1. The applicant then concluded that there was a reasonable
prospect of success on appeal to the full bench.
[4] The applicant submitted in its heads of argument that should the appeal court
find that the rail lines were the property of Transnet, then it will be called to find
that there was an intention by the first respondent to permanently deprive
Transnet of the rail lines because the respondents’ defence of res derelictae
and abandonment clearly showed that the first respondent intended to
appropriate the rail lines for his use. 1 The transportation of the rail lines was
insignificant. The fact that the first respondent claimed res derelictae and
abandonment, albeit wrongly, showed that he intended to deprive Transnet of
ownership permanently.
2
[5] The respondent pointed out, and correctly so, that it was common cause, even
assuming that Transnet owned the derelict pieces of the rail line, which was
disputed, Transnet had failed to exert its ownership in the property for 30 years
and abandoned the rail line. The applicant deliberately withheld from the court
D/W/O Van Zyl’s affidavit that these railway lines were still on the farm when he
visited the scene sometime after the alleged commission of the crime.
[6] The applicant contended that ‘finding lack of ownership led to the courts finding
that no schedule 1 offences were committed. It is the applicants view that that
finding was wrong in law and that the appeal c ourt will certainly come to a
different decision. Should that be the case, then the appeal court will likely find
that schedule 1 POCA offences were committed and in particular theft, damage
to essential infrastructure or their competent verdict of malicious injury to
property which is a schedule 1 POCA offence or even attempted theft.’
3 No
such finding was made in the judgment.
1 Para 13.
2 Para 14.
3 Para 19.
5
[7] Having considered the application as a whole, I am of the view that t here is no
reasonable prospect that a court of appeal would come to a different
conclusion. The application for leave to appeal should fail.
[8] I, therefore, make the following order:
ORDER:
The application for leave to appeal is dismissed with costs which shall include the
employment of counsel on scale C.
_________________
MHLAMBI, J
On behalf of the applicant: Adv. L Manye
Instructed by: State Attorney
11
th Floor, Fedsure Building
Charlotte Maxeke Street
Bloemfontein
On behalf of the respondents: Adv. M Kolbe SC
Instructed by: Honey Attorneys
Honey Chambers
Northridge Mall
Kenneth Kaunda Road
Bloemfontein