Summary of Judgment

1. Introduction

This was an application for leave to appeal in the High Court of South Africa, Limpopo Division, Polokwane, heard by Bresler AJ and delivered electronically on 21 January 2026 (with the hearing having taken place on 3 November 2025). The applicants for leave to appeal were Kgantsi David Malepa and Paulina Mmapule Malepa, who had been the respondents in the main (forfeiture) application. The respondent to the leave application was the National Director of Public Prosecutions (NDPP), who had been the applicant in the main application.

The procedural history relevant to the leave decision was that, on 16 September 2025, the court had granted the NDPP’s forfeiture application brought in terms of section 48 read with section 50 of the Prevention of Organised Crime Act 121 of 1998 (POCA), together with ancillary relief. The Malepas then sought leave to appeal against that forfeiture order.

The general subject-matter of the dispute at this stage was not the merits of the forfeiture itself in full detail, but whether the applicants met the statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, including whether there were reasonable prospects of success or some other compelling reason why the appeal should be heard. A specific point that emerged in argument concerned the relationship between ordinary principles applicable to motion proceedings and POCA’s direction (in section 50) that findings be made “on a balance of probabilities.”

2. Material Facts

It was common cause, for purposes of the leave application, that the court had previously made a final determination in the main application by granting the NDPP’s forfeiture application in terms of POCA section 48 read with section 50 on 16 September 2025. The present proceedings were directed solely at whether the applicants should be permitted to challenge that decision on appeal to a higher court.

The applicants’ challenge, as framed in the leave papers and argument, included the contention that the court had erred in its evidential findings, including an alleged failure to consider all the evidence filed in the present proceedings and in certain previous withdrawn proceedings. The applicants further contended that the court erred by making findings on a balance of probabilities, contending that motion proceedings are not designed to determine probabilities in the manner associated with trial proceedings.

During the hearing, the court itself raised a legal concern arising from the statutory language of section 50 of POCA, namely whether the express requirement that the court make findings “on a balance of probabilities” could create difficulty or tension when applied in the context of application (motion) proceedings, which ordinarily proceed on affidavit evidence and where disputes of fact are typically treated in accordance with established motion-proceedings principles.

The NDPP opposed leave to appeal and persisted with the submission that the applicants had not demonstrated reasonable prospects of success on appeal and that leave should therefore be refused.

3. Legal Issues

The central legal questions before the court were whether the applicants satisfied the requirements for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, in particular whether (a) the proposed appeal would have a reasonable prospect of success, or (b) there existed some other compelling reason why the appeal should be heard.

A further, more specific legal issue arose in the course of the leave proceedings: whether the statutory instruction in section 50 of POCA to determine matters “on a balance of probabilities” gives rise to a compelling reason for appellate consideration, given the usual approach to factual disputes and evidential assessment in motion proceedings. The dispute at this point therefore primarily concerned a question of law and the application of legal standards to procedure, rather than a re-determination of underlying factual merits on the forfeiture itself (as the judgment on leave focused on the threshold for appellate scrutiny).

4. Court’s Reasoning

The court approached the matter through the statutory framework in section 17(1) of the Superior Courts Act 10 of 2013, which limits the grant of leave to appeal to circumstances where the judge is of the opinion that there is a reasonable prospect of success or some other compelling reason to hear the appeal (with additional requirements not central to the court’s dispositive reasoning in this judgment).

In applying section 17(1), the court relied on the guidance from the Supreme Court of Appeal that leave to appeal is not to be granted lightly and requires more than a mere arguable case. In MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016), the SCA emphasised that an applicant must establish a sound, rational basis for the conclusion that there is a reasonable prospect of success, and that a mere possibility is insufficient. The court also drew on Ramakatsa & Others v African National Congress & Another (724/2019) [2021] ZASCA 31 (31 March 2021), which endorsed the approach that even where prospects of success are not established, the court must still consider whether there exists a compelling reason for the appeal to be heard, including (as discussed with reference to Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA)) the presence of an important legal issue or matter of public importance, while recognising that merits may remain significant to that enquiry.

Against that legal backdrop, the court identified a potential procedural and substantive tension: on the one hand, POCA section 50 directs that findings be made on a balance of probabilities, while on the other hand motion proceedings ordinarily proceed on affidavit evidence and are generally not structured to resolve probabilities in the same manner as oral evidence at trial. The court treated this potential difficulty—namely how a court is to approach and possibly adapt the usual motion-proceedings methodology when POCA requires a balance-of-probabilities finding—as a matter warranting consideration by an appellate court.

The court recorded that the NDPP rejected the suggestion that this tension created a basis for leave, maintaining that there were no reasonable prospects of success. However, the court concluded that the potential difficulty surrounding the determination of balance of probabilities in POCA application proceedings, and the extent to which a court must deviate from normal motion-proceedings principles in that setting, constituted a sufficiently compelling reason for the appeal to be heard. On that basis, the court exercised its discretion to grant leave to appeal to the full court of the division.

5. Outcome and Relief

The court granted leave to appeal to the full court of the Limpopo Division of the High Court, Polokwane against the judgment and order of 16 September 2025 in which the forfeiture application had been granted under POCA.

The court ordered that the costs of the leave-to-appeal application would be costs in the appeal.

Cases Cited

MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016).

Ramakatsa & Others v African National Congress & Another (724/2019) [2021] ZASCA 31 (31 March 2021).

Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA).

Legislation Cited

Prevention of Organised Crime Act 121 of 1998, section 48 and section 50.

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

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, notwithstanding the NDPP’s opposition and the contest about prospects of success, the interaction between POCA section 50’s requirement of proof on a balance of probabilities and the ordinary approach to disputes in motion proceedings raised a sufficiently compelling reason for appellate consideration. Leave to appeal was therefore granted to the full court, with the costs of the leave application to stand over as costs in the appeal.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal may be granted only within the confines of section 17(1) of the Superior Courts Act 10 of 2013, which requires either a reasonable prospect of success or some other compelling reason why the appeal should be heard.

It applied the principle, endorsed by the Supreme Court of Appeal, that the threshold for leave is higher than the existence of a merely arguable case, and that an applicant must demonstrate a sound, rational basis for concluding that success on appeal is reasonably likely.

It further applied the principle that, even if a court is not persuaded that reasonable prospects of success have been established, it must still consider whether there is a compelling reason to hear the appeal, including where a matter raises an important question of law or a discrete issue of broader significance. In this case, the court treated the procedural and evidential implications of POCA’s balance-of-probabilities standard in motion proceedings as such a compelling reason.