S v MUTASA 1988 (2) ZLR 4 (SC)

Flynote

Appeal — application for leave to appeal — principles — applicant must show reasonable prospect of success, not merely that he has an arguable case.

Criminal procedure — sentence — Criminal Procedure and Evidence Act [Chapter 59] — s 57I — forfeiture of article by which offence committed — ungraded meat being unlawfully offered for sale — may be declared forfeit.

Headnote

The applicant, a butcher, was found with ungraded and unmarked meat in his butchery. He was subsequently convicted of contravening s 2(1) of the Control of Goods (Distribution of Beef) Regulations S 19 of 1987, which prohibits the selling of ungraded carcasses. The meat was declared forfeit to the State in terms of s 57I of the Criminal Procedure and Evidence Act [Chapter 59] and the applicant was fined. On appeal to the High Court the fine was reduced but the forfeiture order upheld. Application was made to the Supreme Court for leave to appeal against the ruling of the High Court. It was argued inter alia that the forfeiture order was incompetent since the meat was not an article by means of which the offence was committed, nor was it used in the commission of the offence.

Held, dismissing the application, that before the application could be granted it was necessary for the applicant to show a reasonable prospect of success on appeal. If he has such a prospect, leave to appeal should be granted; if not, it should be refused. It is not enough merely to make out a reasonably arguable case.

Held, further, that the meat was the very substance of the offence of which the applicant was convicted; without it the offence could not have been committed. It was, furthermore, more than clear that meat is covered by the phrase "any article" used in s 57I.

Decision of BARON JA in S v Tengende & Ors 1981 ZLR 445 not followed.