Smith v Hills and Another (Application for Leave to Appeal) (A2025/081938) [2025] ZAGPJHC 814 (12 August 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 814 | Noteup | LawCite sino index ## Smith v Hills and Another (Application for Leave to Appeal) (A2025/081938) [2025] ZAGPJHC 814 (12 August 2025) Smith v Hills and Another (Application for Leave to Appeal) (A2025/081938) [2025] ZAGPJHC 814 (12 August 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_814.html sino date 12 August 2025 REPUBLIC OF SOUTH AFRICA 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 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]  I 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 funds in terms of s 26 (6) of the Prevention of Organised Crime Act 121 of 1998 ("POCA") for legal expenses from assets which are under restraint for purposes of the applicant's criminal trial due to start.  These are the reasons. [2]  The application for leave to appeal is opposed by the State, the 2 nd respondent. [3]  Section 17(1) of the Superior Court Act 10 of 2013 stipulates that: "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." [4]  It is well established by now that this test is more stringent than the former test for leave to appeal, which required only a view that there was a reasonable prospect that the Court might come to a different conclusion. granting leave to appeal against a judgment of a High Court. The bar has since been raised (see The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others (unreported judgment 2014 JDR 2325 (LCC). The former test, which is no longer the applicable test, was whether leave to appeal should be granted; it was whether a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. [5]  The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be 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 Elran 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 – ‘ ...if 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 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. T P MUDAU ADJP JUDGE OF THE HIGH COURT JOHANNESBURG APPEARANCES Counsel for the Applicants:               Adv. Cronje Kriel Instructed by:                                    BDK Inc. Counsel for the 1 st Respondent:       No appearance Instructed by: Counsel for the 2 nd Respondent:      Ms Suna De Villiers Instructed by:                                    NDPP Date of Hearing:      29 July 2025 Date of Judgment: sino noindex make_database footer start