Minister of Police v Khoeli (739/2018) [2020] ZAFSHC 26 (19 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 739/2018

In the matter between:-

MINISTER OF POLICE Plaintiff

and

MPHALE ALBERT KHOELI Defendant

CORAM: N. M. MBHELE, J et J J MHLAMBI, J

HEARD ON: 29 NOVEMBER 2019

DELIVERED ON: 19 FEBRUARY 2020

[1] The applicant seeks leave to appeal to the Supreme Court of Appeal the whole order and judgment granted by this court on 26 August 2019.

Background

[2] The respondent is a citizen of Lesotho, arrested on 15 May 2017 and charged for contravention of the provisions of section 32 (1) (m) (iii) of the Animal Diseases Act 35 of 1984 (The Act). 44 cattle (the cattle) were seized from the respondent upon his arrest. On 17 May he paid an admission of guilt fine for contravention of section 32 (1) (m) (iii) of the Act.

[3] On 30 May 2017 the South African Police Service (SAPS) took a decision to declare all the cattle forfeited to the state.

[4] The respondent obtained an order at the Magistrate’s Court on 31 May 2017 to have the cattle returned to him and the applicant

successfully applied to this Court for the review of the Magistrate’s order on 06 November 2017.

[5] On 07 November 2017, 42 of the 44 cattle were sold by the SAPS for an amount of R286 900-00 without the respondent’s knowledge. The respondent learned upon the filing of the applicant’s answering affidavit that two of the 44 cattle died before they could be disposed of.

[6] The respondent approached this court in terms of Rule 53 of the Uniform rules of this court to, inter alia, have the decision to forfeit and dispose of his cattle by the applicant reviewed and set aside. We found in favour of the respondent.

[7] In terms of section 17(1) of the Superior Courts Act 10 of 2013, we must grant leave to appeal if we are of the opinion, amongst others, that the appeal would have reasonable prospects of success.

[8] In S v Smith 2012 (1) SACR 567 (SCA) par 7 the court dealt with the question of what constitute reasonable prospects of success as follows:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. 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. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[9] The application is based on numerous grounds enumerated in the notice of application for leave to appeal. Most of the grounds are a rehash of what was argued before us and dealt with in the judgment. I will not repeat them herein.

[10] The applicant’s contention is that this court erred when it found that the applicant should have invoked the provisions of section 32 (1) read with section 31 (2) of the Criminal Procedure Act 51 of 1977 (CPA) before disposing of the 44 cattle that were seized by the applicant from the respondent in contravention of section 32(1) (iii) of the Animal Disease Act (the cattle). The applicant,

further, contends that we erred when we took into consideration the provisions of section 17 of the Animal Diseases Act when finding in favour of the respondent.

[11] In the main application we were called upon to decide whether the applicant was within its rights to forfeit and dispose of the cattle in the manner that it did and whether the respondent was in terms of the CPA the lawful possessor of the cattle.

[12] The issues raised by the applicant in this application were dealt with in my judgment. I find the submission that the applicant had no duty to account to the respondent on the final destination of the cattle an astonishing one. The submission seeks to suggest that organs of State should do things behind a closed veil and not be held accountable for their conduct. It is clear from how this matter was handled that transparency and accountability remains an ingredient that cannot be dispensed with in public institutions. The fact that nobody kept the record of when and how the two cattle died is an indication that accountability flew out of the window when the Police dealt with this matter. The submission that section 17 of the Animal Diseases Act should not be considered when dealing with this matter fails to appreciate the very purpose of the Act.

[13] Having considered the merits of the application for leave to appeal, we are not persuaded that there would be reasonable prospects of success on appeal.

Conclusion:

[14] Having concluded that none of the grounds of appeal enjoy reasonable prospects of success, whether taken singly or cumulatively, the application for leave to appeal must fail.

[15] The application for leave to appeal is dismissed with costs.

______________

N.M MBHELE, J

I concur

_____________

JJ MHLAMBI, J

On behalf of the Applicant: Adv G Wright

Instructed by: STATE ATTORNEY.

BLOEMFONTEIN

On behalf of the Respondent: Adv Lechoano

Instructed by: MPHAFI KHANG INC ATTORNEYS