REPUBLIC OF SOUTH AFRICA
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iN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A2025-081938
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3), REVISED: NO
y I.
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ATE SIGNATURE
In the matter between:
VINCENT GEORGE SMITH Applicant
And
TREVOR HILLS (CURATOR BONIS) First Respondent
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Second Respondent
JUDGMENT —- APPLICATION FOR LEAVE TO APPEAL
MUDAU, ADJP:
[1] | made an order dismissing the application for leave to appeal with costs, with
reasons to follow. This is pursuant to a dismissed application for the release of
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appealed against. What the test of reasonable prospects of success suggests is
a detached decision, based on the facts and the law, that a court of appeal could
reasonably conclude differently from that of the trial court. (see Smith v S 2012
(1) SACR 567 (SCA) at para 7, in which it stated:
: “In order to succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those prospects
are not remote but have a realistic chance of succeeding. 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 “.
[6] This court highlighted in the main judgment, which is repeated for convenience,
that the Curator pointed out significantly, that: “{T]he applicant's income and
expenses as disclosed by him have increased exponentially between the period
May 2023 to March 2025. The applicant has failed, however, to provide a
declaration of the increase in his income and/or expenses or supporting
documents in support of this increase”. This allegation was not challenged as
there was no reply to the affidavit.
{7] Counsel for the applicant submitted that failure to file a replying affidavit was
merely a mistake.
[8] It was submitted on behalf of the applicant that this Court erred in reading into
the clear provisions of Section 26 (6) of POCA that the applicant must make a
full declaration of his assets and liabilities. The applicant contends on the
authority of the minority judgment in National Director of Public Prosecutions v
Firan 2013 (1) SACR 429 (CC) para 55 that, section 26(6) contains two
requirements only and provides that the high court may order provision of legal
expenses -— ‘.../f the court is satisfied that the person whose expenses must be
provided for has disclosed under oath all his or her interests in property subject
to a restraint order and that the person cannot meet the expenses concerned out
of his or her unrestrained property.’
[9] But as Rogers J stated in Van Heerden and Another v National Director of Public
Prosecutions and Another (16910/11) [2015] ZAWCHC 96 (22 June 2015) at
para 50, “The court's discretion in terms of s 26(6) can only be exercised if it is
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satisfied (i) that the person whose expenses must be provided for has disclosed
under oath all his or her interests in property subject to a restraint order; and
(ii) that the person cannot meet the expenses concerned out of his or her
unrestrained property. These jurisdictional facts differ in formulation from those
laid down in s 44(2) of POCA. In particular, s 26(6) does not state that the person
must have submitted a sworn and full statement of all his or her assets and
liabilities; what he must fully disclosed under oath are all his or her interests in
property subject to a restraint order. However, and because the court must also
be satisfied that the person cannot meet the expenses in question from
unrestrained property, a full disclosure of unrestrained property is necessarily
required. Furthermore, a court is unlikely to be able properly to exercise its
discretion under s 26(6) unless it also has full information concerning the
person’s liabilities”.
[10] The application for leave to appeal is wholly unmerited.
Order
The order dismissing the application for leave to appeal with costs stands.
,;P MUDAU ADJP
JUDGE THE HIGH COURT
JOHANNESBURG
APPEARANCES
Counsel for the Applicants: Adv. Cronje Kriel
Instructed by: BDK Inc.
Counsel for the 1st Respondent: No appearance
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