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This judgment has been handed down remotely and shall be circulated to the parties by
way of email / uploading on Caselines. The date of hand down shall be deemed to be 12
May 2025 .
ORDER
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1. Leave to appeal is granted to the Full Court of this Division.
2. Costs will be costs in the appeal.
JUDGMENT
________________________________________________________________
Bam J
Introduction
1. This is an application for leave to appeal the judgment and order of this court
of 1 October 2024. The applicant wishes to appeal the order . Her grounds of
appeal are set out in her Notice of Application for Leave to Appeal (Notice ).
The grounds may be summarized thus:
(i) This court erred / misdirected itself in finding that the applicant’s vehicle
is an item that falls within the purview of section 20 of the Criminal
Procedure Act, CPA; and
(ii) That the requirements of section 22 of the CPA had been met in the
circumstances.
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2. In furtherance of the first ground of appeal, the applicant submits that the court
failed to recognize that the respondents relied on information obtained from
nameless people without proof that the vehicle was used in the commission
of the offence.
3. The respondents are opposing the application. They submit that the court
correctly found that the issue whether the applicant’s vehicle had been used
in the commission of an offence is common cause between the parties. They
further submit that the requirements of section 22 had been met and
accordingly no misdirection occurred.
4. I refer to the parties as they were in the original proceedings. In this regard,
the applicant refers to Ms Mtakati; the respondent s remain the same .
Applicable legal principles
5. Applications for leave to appeal are governed by Section 17 (1) (a) (i) and (ii).
The subsections state that leave to appeal may only be granted where the
judge or judges are of the view that the appeal would have prospects of
success or where there are some other compelling reason s as to why the
appeal should be heard . A compelling reason includes an important question
of law or a discreet issue of public importance that will have an effect on future
disputes .’ 1 ‘A mere possibility of success, an arguable case or one that is not
1 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA) (25
March 2020) .
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hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal .’ 2
Merits
6. The present application is not merely concerned with spoliation and the legal
principles thereto, it impacts the rights guaranteed in the Bill of Rights . I am
thus minded to grant leave to appeal to the Full Court of this Division .
Order
1. Leave to appeal is granted to the Full Court of this Division.
2. Costs will be costs in the appeal.
—————
N.N BAM J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, GAUTENG
DIVISION , PRETORIA
Date of Hearing : 09 May 2025
Date of Judgment: 12 May 2025
2 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016) .
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Appearances :
Counsel for the Applicant : Adv M.A Da Silva SC (Ms)
Instructed by: T Noah & Sons Inc
c/o Mngqing o Attorneys
Pretoria
Counsel for the Respondent s: Adv K Mondlane
Instructed by: State Attorneys
Pretoria