IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO : 010552/2023
In the matter between:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
PROVINCIAL DIRECTOR OF PUBLIC PROSECUTIONS
and
GAVIN DYKES KRUGER
In re the matter between:
GAVIN DYKES KRUGER
and
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
PROVINCIAL DIRECTOR OF PUBLIC PROSECUTIONS
PETER STAUDE
MURRAY HECTOR MUNROE
MICHAEL EDWARD DEIGHTON
RORY EDWARD WILKINSON
KAMLASAGRIE SINGH
SAMANTHA SHUKLA
First Applicant
Second Applicant
Respondent
Applicant
First Respondent
Second Respc;mdent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Coram:
Heard:
Judgment:
The following order Is granted:
ReddiAJ
04 June 2025
18 July 2025
ORDER
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The application for leave to appeal is dismissed with costs, such costs to include the
costs occasioned by the employment of two counsel on scale C .
JUDGMENT
REDDIAJ
Introduction
[1] This is an opposed application for leave to appeal the order I granted on 23
December 2024, declaring invalid and setting aside the First Applicant's decision, in
tenns of s 2(4) of the Prevention of Organised Crime Act, 1998 (POCA), to authorise
the Respondent's prosecution on a charge in tenns of s 2(1)(e) of POCA.
[2] Mr VS Notshe appeared for the Applicants in the main and the present
applications, while Mr J Marais appeared for the Respondent on both occasions. Both
counsel and I arranged for the application for leave to appeal to be heard on 02 May
2025 in Durban. However, the matter could not proceed on the agreed date as the file
went missing and had to be reconstructed. I am grateful to the Respondent's attorneys
for completing the tedious task of reconstructing the file. The application was later
heard on 04 June 2025, in Pietennaritzburg, where I acted from 19 May 2025 to 20
June 2025. I am most grateful to Mr Notshe and Mr Marais for agreeing to argue this
matter in Pietermaritzburg.
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Basis of the application for leave to appeal
[3] In the notice of application for leave to appeal, dated 27 January 2025, the
Applicants indicate that they are seeking leave to appeal the whole of the judgment
and order delivered on 23 December 2024 on the following six grounds of fact and
law:
That the court a quo had:
(i) failed to properly apply the applicable test regarding the First Applicant's
decision, to wit, whether she had the powers that she exercised and whether
she had exercised them for the purposes for which they were conferred;
(ii) ignored the fact that the legislature had not designated any procedure or
requirements for exercising that power. Therefore, the existence of a
watertight case is not a requirement for the authorisation of a prosecution
by the First Applicant;
(iii) went beyond the test for rationality and traversed the reasonableness test;
(iv) overlooked that POCA seeks the essentials of the charge. It requires the
authorisation of a charge, which is a valid charge if it contains all the
essentials;
(v) should have considered that the provisions of s 2(2) of POCA are still
subject to the safeguards of a fair trial; and
(vi) There is a reasonable prospect of success on appeal.
I shall consider each of these grounds shortly.
Requirements of leave to appeal
[4] The rationale for needing litigants to obtain leave to appeal was set out in
Dexgroup (Pty) Ltd v Trustco Group lntemational (Pfy) Ltd, 1 where Wallis JA said this:
'The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources
are not spent on appeals that lack merit.'
1 Dexgroup {Pty) Ltd v Trustco Group International (Pty) Ltd 2013 (6) SA 520 (SCA) para 24.
4
[5] Leave to appeal from a decision of a High Court is governed bys 17(1) of the
Superior Courts Act 10 of 2013 (the Act), which provides the following:
'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;
(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a);
and
(c) where the decision sought to be appealed does not dispose of all the issues in the
case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.'
At the core of s 17(1)(a) lies the requirement of the applicant having to demonstrate
that, should the application be granted, there is a reasonable likelihood that another
court would arrive at a different decision. Alternatively, proof of some compelling
reason countenancing the appeal must be proffered. Absent either of these discrete
requirements, there would be no basis to grant leave.
(6) Before the Act came into force, the test in an application for leave to appeal
was whether there were reasonable prospects that an appeal court might conclude
differently from that of the lower court. The advent of the Act has modified the test and,
arguably, raised the threshold for granting leave to appeal.2
[7] In Ramakatsa and Others v African National Congress and Another,3 the
Supreme Court of Appeal (SCA) referred to what it had said in Caratco (Pty) Ltd v
Independent Advisory (Pty) Ltd, 4 that even if the court is unconvinced that there are
prospects of success, it must nevertheless explore if there is a compelling reason to
entertain the appeal. According to the SCA, compelling reasons would Include an
important question of law or a subtle matter of public importance that may impact future
important question of law or a subtle matter of public importance that may impact future
2 Public Protector of South Africa v Speaker of the National Assembly and Others [2022) ZA WCHC 222 para 14.
3 Ramakatsa and Others v African National Congress and Another 9[2021) JOL 49993 (SCA) para 10.
4 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (2020) ZASCA 17; 2020 (5) SA 35 {SCA).
5
disputes. But, Ramakatsa also embraced what had been expressed in Caratco, that
'here too the merits remain vitally important and are often decisive'. 5
[8] Ultimately, Ramak~tse has clarified that if a reasonable prospect of success is
established, leave to appeal should be granted. Likewise, leave should be granted if
there are other compelling reasons why the appeal should be heard. However, the
prospects of success must not be remote, and the applicant must show that there
exists a sound, rational basis for the conclusion that there are prospects of success.6
The application
[9] The facts of this matter bear brief mention. In July 2022, the respondent, a
chartered accountant, was charged with the third to eighth respondents in the High
Court of South Africa, KwaZulu-Natal Division, Durban, on 26 counts, including a
charge of contravening s 2(1)(e) of POCA . The allegations against the respondent
were linked to his role as the engagement partner in Deloitte & Touche, the company
appointed to render audit services to Tongaat Hulett Developments (Pty) Ltd (THD)
and Tongaat Hulett Limited (THL) for the ~nancial years 2015 to 2018.
[1 O] The charge under POCA alleges that the respondent and the third to eighth
respondents had participated in the conduct of an enterprise and received or retained
property derived, directly or indirectly, through a pattern of racketeering activities
conducted within THL or THD via the acts of fraud listed in counts 3 to 21 of the
indictment.
[11] The respondent contended that the First Applicant's decision to issue the s 2(4)
POCA authorisation was irrational as it was based on information that did not allow for
her to objectively conclude that reasonable and probable cause existed that he had
committed the alleged racketeering acts of which he is accused. My analysis of the
5 Ibid, para 2.
6 Ramakatsa and Others v African National Congress and Another 6(2021) JOL 49993 (SCA) para 10. See also
MECfor Health, Eastern Cape v Mkhitha and Another [2016) ZASCA 176 para 17, and Fairtrade Tobacco
Association v President of the Republic of South Africa (21688/2020) ZAGPPHC 311 (24 July 2020) at para 6.
6
. matter led me to conclude that the First Applicant's decision to issue the POCA
authorisation had been irrational.
Grounds of appeal
(12] I turn now to the first ground on which I am alleged to have erred. The
Applicants contend that I did not properly apply the applicable test in determining
whether the First Applicant had had the powers she exercised and whether she had
exercised them for the purposes they had been conferred.
[13] This contention is without basis, as even a cursory reading of my judgment
would indicate that I viewed rationality as the constituent component of the
assessment. Moreover, supported by the authority of Scalabrini Centre, Cape Town &
Others v Minister of Home Affairs & Others7 and Democratic Alliance v President of
the Republic of South Africa & Others, 8 the judgment also specified that ignoring
relevant factors and considering incorrect material or the unfair presentation of such
material were shortcomings in the decision-making process that would render the First
Applicant's decision irrational.9
[14] The legal principles articulated above are commonplace, well-established in our
law, and ubiquitous and, consequently, need no further re-examination or
reconsideration by another court.
(15] With these fundamental principles being the foundation of my analyses,
concluded that the principle of legality would be offended if the information on which
the First Applicant based her decision were to be misleading or incorrectly represented
the available evidence.10 This is a logical corollary to my application of the basic
principles. The approach adopted in the context is incontrovertible.
1 Scalabrini Centre, Cape Town & Others v Minister of Home Affairs & Others 2018 (4) SA 125 SCA .
8 Democratic Alliance v President of the Republic of South Africa & Others 2013 (1) SA 248 (CC).
9 Paragraphs 27 and 28 of the judgment.
10 Ibid at para 29.
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[16) The Applicants' second ground of appeal alleges that the court required the
existence of a watertight case for the authorisation of a prosecution by the First
Applicant, despite the legislature not having designated any procedure or
requirements for exercising that power. I have difficulty with this ground as nowhere in
the judgment is there any suggestion that the court set as a prerequisite for
establishing rationality the existence of a watertight case. On the contrary, the
judgment referred with approval to the helpful advice provided by Gorven J's statement
in Booysen v Acting National Director of Public Prosecutions and Others, 11 regarding
not setting any requirement for the level of disclosure or the detail necessary for a
rational decision.12
[17) The third ground of appeal the Applicants raise is that in assessing whether the
s 2(4) of POCA authorisation was valid, I went beyond the test for rationality and
traversed the reasonableness test. This ground, too, is baseless. In the initial review
proceedings, the Applicants' counsel had submitted that the Respondent was
attacking the reasonableness and not the rationality of the First App1icant's decision.
This argument was rejected by the court a quo, which, in the process, confirmed that
rationality and not reasonableness must be assessed when looking at the decision
maker's actions.13
[18] The fourth and fifth grounds of appeal are linked and will be dealt with together.
The Applicants contend that the court a quo 'overlooked that POCA seeks the
essentials of a valid charge (sic).' It requires the authorisation of a charge, which 'is a
valid charge if it contains all the essentials.' They contend further that the court a quo
should have considered that the provisions of s 2(2) of POCA are still subject to the
safeguards of the fairness of the trial.
(19) Nothing more needs to be said about these two grounds, but that both are non
issues which conflate the question of the trial's fairness w ith the issuing of the
issues which conflate the question of the trial's fairness w ith the issuing of the
authorisation. The Respondent's challenge related to the First Applicant's decision to
issue a s 2(4) authorisation when there was no rational basis. The Applicants, by
11 Booysen v Acting National Director of Public Prosecutions and Others 2014 (2) SACR 556 (KZD) para 38.
u See paragraph 58 of the judgment.
13 See paragraphs 61- 63 of the judgment.
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raising the essentials of a charge and the s 2(2) fair trial safeguard, seem to have
adopted the position that the First Applicant's decision-making can be without
circumspection so long as the fairness of the trial is protected. This approach is
objectionable and does not align with the established legal principles.
[20] The Applicants' Notice of leave to Appeal indicates that they seek to appeal on
both legal and factual grounds. However, a close reading of the notice reveals that the
grounds relied on are solely legal or have the semblance of being such. I say this
because the Notice seems to focus more on non-issues instead of directly raising
issue with the legal principles relied on by the court a quo.
[21) Respondent's counsel submitted that there can be no appeal on the legal
principles based on the unassailable position adopted by the court concerning the
applicable principles. Therefore, the application of the principles to the evidence would
be the sole determinant of the leave application. The court agrees.
[22) However, the Applicants have not engaged with the facts. Respondent's
counsel submitted that the reason for this failure seems self-evident: no factual
disputes arose and the approach adopted by the court a quo, on the facts, was
demonstrably justified in the absence of any meaningful factual disputes.
[23) Listed below are my factual findings, which have been summarised in the
Respondent's heads of argument as follows:
(a) not only was there a paucity of evidence to indicate back-dating, but such evidence
as there was indicated that the Respondent, himself, had enquired about the
availability or whereabouts of Sale Agreements;
(b) the First Applicant's inference of a conspiracy arising from neutral remarks in the
minutes, was not justified;
(c) that reliance upon the THD recognition criteria was plainly wrong;
(d) that the information before the First _Applicant contained no evidence to indicate
(d) that the information before the First _Applicant contained no evidence to indicate
any kind of special relationship between the Respondent and Tongaat Hulett
employees;
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(e} that the Applicants did not meet the threshold to find that there was a type of
conspiracy as contemplated in the Act;
(f) that there was no challenge to the factual circumstances relied upon by the
Respondent to demonstrate that the Respondent wanted to hide anything from the
internal and external audit teams;
(g) that the First Applicant had made no attempt to explain how she had arrived at her
decision, something which she could clearly not justify on the basis of inaccurate,
misleading and incorrect information in the White Report;
(h) that prima facie it was hard to fathom the basis of the First Applicant's decision,
and that became even more difficult in the absence of a basic explanation by her.
[24) The First Applicant's approach to dealing with these facts was a terse statement
that she had authorised the prosecution and had relied on the Memorandum in doing
so. This is hardly adequate in the circumstances.14
[25] The factual findings were the premise for my conclusion that it is impossible to
find a decision to be anything but irrational where it was founded on misleading and
inaccurate evidence.
[26) The correctness of my approach, in investigating the means that led to the First
Applicant's decision to issue the s 2(4) POCA authorisation, finds support in the
decisions of the SCA and the Constitutional Court. In Scalabrini Centre, Cape Town &
Others v Minister of Home Affairs & Others, 15 for instance, the SCA said this:
'As the Constitutional Court has explained, a failure to take into account relevant
considerations in the process of making a decision can render it irrational where: ( 1) the factors
are relevant; (2) the failure to consider the material concerned is rationally related to the
purpose for which the power was conferred; and (3) ignoring relevant facts is of a kind that
colours the entire process with irrationality and thus renders the final decision irrational.'
14 See paragraphs 57, 59, 61 and 63 of the judgment.
14 See paragraphs 57, 59, 61 and 63 of the judgment.
15 Scalabrini centre, Cape Town & others v Minister of Home Affairs & Others 2018 (4) SA 125 SCA, para 51.
10
In Democratic Alliance v President of the Republic of South Africa & Others, 16 Yacoob
ADCJ emphasised the importance of evaluating the means used to achieve the
purpose when he said the following:
'The conclusion that the process must also be rational in that it must be rationally related to
the achievement of the purpose for which the power is conferred, is inescapable and an
inevitable consequence of the understanding that rationality review is an evaluation of the
relationship between the means and the ends. The means for achieving the purpose for which
the power was conferred must include everything that is done to achieve the purpose. Not
only the decision employed to achieve the purpose, but also everything done in the process
of taking that decision, constitute the means towards the attainment of the purpose for which
the power was conferred.'
[27] Yacoob ADCJ stated further that a failure to consider relevant material
constitutes part of the means to achieve the purpose for which the power was
conferred. 'If that failure had an impact on the rationality of the entire process, then the
final decision may be rendered irrational and invalid by the irrationality of the process
as a whole.'17
[28] According to the learned acting deputy chief justice, deciding the issue
necessitated a three--stage enquiry by the court faced with an executive decision which
ignored certain factors.18 The enquiry involves a consideration of: (i) whether the
factors ignored are relevant; (ii) whether the failure to consider the material concerned
(the means) is rationally related to the purpose for which the power was conferred;
and (iii) if the answer to (ii) is negative, whether ignoring the relevant factors taints the
entire process with irrationality, so rendering the final decision irrational.19
[29] Based on the issues that needed consideration, my analysis in the present
matter revealed that the memorandum on which the First Applicant relied, contained
matter revealed that the memorandum on which the First Applicant relied, contained
information that was misleading, inadequate and inaccurate. The memorandum was
the instrumentality of the rhyme and rhythm test and gave support to it. However,
16 Democratic Alliance v President of the Republic of South Africa & Others 2013 (1) SA 248 (CC), para 36.
17 Ibid at para 39.
18 Ibid.
li Ibid.
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because it was patently misleading, the memorandum called for the consideration of
something more by the First Applicant when deciding whether to issue the s 2(4)
authorisation. The reason is self-evident: the factors which demanded further
consideration were of such relevance and significance that ignoring them coloured the
First Applicant's decision-making process with irrationality, thus rendering her final
decision irrational.
[30] Based on the provisions of s 17(1) of the Superior Courts Act, 2013, for leave
to be obtained, an applicant must demonstrate that the envisaged appeal would have
a reasonable prospect of success or that there is some compelling reason why the
appeal should be heard. The applicant must, therefore, discharge a meaningful onus.
(31) In weighing the grounds of appeal indicated in the Notice of Appeal against the
preceding discussions, it is clear that the Applicants have not mounted any
consequential challenge to the well-established legal principles applied by the court a
quo. In addition, they have failed to address the facts. Their focus has been elsewhere,
leading to a failure to discharge the meaningful onus which vested in them.
[32] Having dispassionately considered my judgment and having given due
consideration to the parties' submissions, I am not persuaded that any basis exists to
justify granting the Applicants' application for leave to appeal.
Order
[33) As the result, the following order shall issue:
The application for leave to appeal is dismissed with costs, such costs to
include the costs occasioned by the employment of two counsel on scale C.
REDDI AJ
CASE INFORMATION
APPEARANCES :
First and Second Applicants' Counsel: VS Notshe SC
SCele
First and Second Applicants' Attorney: The State Attorney (KwaZulu-Natal)
Respondent's Counsel:
Respondent's Attorneys:
Mr MP Pilley (Snr. Ass. State Attorney)
6th Floor, Metlife Building
391 Anton Lembede Street
Durban
Email: ManoPillay@justice.gov.za
LungiDlamini@justice.gov.za
Tel: (031) 365 2535/59
Ref: 119/25311/23/K/P10
J Marais SC
WLombard
Norton Rose Fulbright South Africa Inc
3 Pencarrow Crescent, Pencarrow Park
La Lucia Ridge
Durban
Email:
Craig.Woolley@nortonrosefulbright.com
Laura.Steele@nortonrosefulbright.com
Tel: (031) 582 5814
Ref: KRU124/CW
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