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[2021] ZAECPEHC 65
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Kulati v Minister of Police (2459/2017) [2021] ZAECPEHC 65 (14 December 2021)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
NOT
REPORTABLE
Case
No:2459/2017
OLWETHU
KULATI Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
Mfenyana
AJ
Introduction
[1] The
defendant seeks leave to appeal to the Full Bench of this Division
against the judgment and order of the
court handed down on 18
February 2020. The notice of application for leave to appeal states
that leave is sought against the said
judgment in so far as it
relates to the detention of the plaintiff from 13h00 on 15 April to
17 April 2017. However in the heads
of argument filed on behalf of
the defendant, it is stated that leave to appeal is sought against
the whole judgment (facts and
the law). From the reading of the
papers, it is clear that all contentions raised are in respect of the
plaintiff’s detention
for the period aforestated. In this
judgment, the parties are referred to as in the main action.
[2] The
defendant also seeks condonation for the late filing of the
application for leave to appeal. The application
for leave to appeal
is premised on the contention that this court erred on various
grounds more fully set out in the notice of
application for leave to
appeal. I do not intend dealing with the grounds of appeal
individually, save where necessary, and will
confine this judgment to
those which for some reason or another, warrant specific mention. For
good order, it is befitting that
I first deal with the application
for condonation before dealing with the application for leave to
appeal.
[3] Both
applications are not opposed by the plaintiff.
Condonation
[4] In
the affidavit filed in support of the application for condonation,
deposed to by Ms Leonie Sharlene Hart
(Ms Hart), the circumstances
and the basis for the condonation sought are set out thus:
That the application is
launched by the defendant for his ‘alleged non-compliance with
the time periods’ set out in
Rule 49(1)(b). Ms Hart states that
having received the judgment on 8 February 2020, she finalised the
application for leave to
appeal on 28 February 2020. She thought that
she had posted the application for service and filing, but this
turned out not
to be the case. She states that she was working
without a secretary for a year as her secretary had retired in 2018.
When a new
secretary commenced in December 2019 it soon became
apparent that she could not cope with work-related stress and was
booked off.
She was ultimately allocated a secretary at the end of
March 2020. She was herself under a lot of work pressure and had to
consult
a wellness practitioner to help her cope. Soon thereafter a
lockdown was imposed due to the Covid-19 pandemic. Lockdown
regulations
were later relaxed, but her office was only attending to
urgent matters through to June 2020. She also suffered a physical
injury
at home leading to her being booked off from 23 May to 26 June
2020. It was not until 8 June 2020 while she was attending at the
offce that she received a copy of the plaintiff’s bill of costs
and only realised at that stage that she had not served or
filed the
application for leave to appeal which should have been filed by no
later than 8 March 2020. She immediately filed the
application on 8
June 2020. She contends that the period of lockdown from 26 March
2020 until 1 June when their offices reopened
should be taken into
account by this court, in considering the application for
condonation.
[4] She
avers that the application for leave to appeal enjoys good prospects
of success, moreso in view of the
great public interest this matter
enjoys in light of there being two potentially conflicting judgments
on the same issue. She
further contends that
Malisha,
in
which Crouse AJ ruled contrary to the judgment of this court was
later confirmed by the SCA. Thus the defendant avers that there
is
good cause for the delay in filing the application for leave to
appeal, and that another court seized with the same facts may
come to
a different conclusion.
[5] In
dealing with what an applicant in an application for condonation
needs to demonstrate, the Supreme Court
of Appeal in
Mlaudzi
v Old Mutual Life Assurance
[1]
,
held:
‘
What calls for an
explanation is not only the delay in the timeous prosecution of the
appeal, but also the delay in seeking condonation.
An appellant
should, whenever he realises that he has not complied with a rule of
this court, apply for condonation without delay.
A full, detailed and
accurate account of the causes of the delay and their effects must be
furnished so as to enable the court
to understand clearly the reasons
and to assess the responsibility. Factors which usually weigh with
this court in considering
an application for condonation include the
degree of non-compliance, the explanation therefor, the importance of
the case, a respondent’s
interest in the finality of the
judgment of the court below, the convenience of this court and the
avoidance of unnecessary delay
in the administration of justice.”
[6] In
my view the defendant has offered adequate explanation for the delay,
which explanation covers the whole
period of the non-compliance.
Contrary to the defendant’s assertion in his application for
condonation, the non-compliance
is not merely alleged, but actual. It
is also worth noting that the plaintiff opted not to press ahead with
his opposition in respect
of the condonation, having filed a
withdrawal of his intention to oppose the application on 9 December
2020. It seems to me that
the withdrawal of the opposition by the
plaintiff was prudent and well considered. Despite some lapse at one
point or another,
on the part of the defendant, it appears that there
had always been a genuine intention to comply with the Rules of this
Court.
In those circumstances, I am persuaded that good cause exists
for condoning the late filing of the application for leave to appeal
and that it would be in the interests of justice that condonation is
granted.
Application
for leave to appeal
[7] The
next issue for consideration is whether, having granted condonation,
the defendant should be granted leave
to appeal to the Full Bench of
this Division.
[8] In
his notice of application for leave to appeal, the defendant states
that the only issue of contention is
the detention of the plaintiff
from 13h00 on 15 April to 18 April 2017. In this regard he contends
that the Court erred in various
respects, and in particular in not
having regard to the evidence of the defendant’s two witnesses,
to the effect that the
plaintiff was arrested over the Easter long
weekend and thus taken to court on the next court day following the
48- hour period
prescribed by law.
[9] The
defendant further contends that the respondent was informed of his
rights by Mr Allers, including his right
to apply for bail, and the
respondent opted not to exercise this right, and ‘speak
in court’. As such, the applicant
contends that there was
therefore no need for Kwitshi to ask the respondent about bail, after
having regard to the docket which
indicated that the respondent had
chosen to ‘speak in court’.
[10] As
far as the evidence of Mr Allers goes, the defendant contends that
the court erred in not having regard
to the evidence that there is a
problem of drug abuse in the area and the impact thereof on the
community, the role of the SAPS
in fighting the scourge and their
experience and observations in witnessing users strating small and
ultimately selling drugs.
[11] In
respect of these grounds of appeal, I must hasten to state that any
reference in the judgment as well as
in the evidence presented by the
defendant’s witnesses, in particular, Allers, to the effect
that the plaintiff was found
to be in possession of mandrax, is only
in relation to the suspicion entertained by Allers at the point of
arresting the plaintiff.
This is indeed what informed his decision to
arrest the plaintiff. That suspicion was not taken much further
following the plaintiff’s
arrest as no laboratory results were
received to confirm that suspicion. This leads to a further
suggestion by the defendant, that
the court did not view possession
of drugs in serious light. I do not consider the defendant’s
submission in this regard,
to be warranted. While the seriousness of
drug abuse cannot be overstated, it is not for the court to tailor-
make the evidence
to suit either of the parties when no evidence had
been adduced. The plaintiff was subsequently released without
appearing in court.
Even further, what presented before the court for
determination, was not the merits of a charge against the plaintiff,
but the
lawfulness or otherwise of his arrest. This submission is
therefore misplaced. To that extent, there is no merit to this
ground.
[12] In
relation to section 59 of the Criminal Procedure Act, the defendant
contends that the court erred in finding
that section 59A does not
require an accused person to make representations or application to
be released on bail as the possession
of mandrax is an offence listed
in Part II of Schedule 2 and as a result of which the plaintiff could
not be released on bail by
a member of the SAPS in terms of section
59(1)(a). It is not in contention that the police have no authority
to release an accused
person in relation to an offence listed in Part
II of Schedule 2. The issue at hand is not whether the police should
have granted
bail but whether or not there was an obligation on them
to refer the matter to the prosecutor for bail. However, the
defendant’s
main contention appears to be in relation to the
issue of whether there was a duty on the police to facilitate the
release of the
plaintiff on bail, in the absence of a request from
him.
[13] In
terms of section 17(1) of the Superior Courts Act
[2]
(the Act)
“
Leave to appeal
may only be given where the judge or judges concerned are of the
opinion that the appeal would have a reasonable
prospect of success;
or there is some other compelling reason why the appeal should be
heard, including conflicting judgments on
the matter under
consideration…”
[14] The
relevant question in considering this application is whether the
applicant has satisfied the stringent
test set out in the Act in
respect of leave to appeal, which requires some degree of certainty
that another court would find in
his favour. He must show a sound and
rational basis for that conclusion and not merely that his case is
not hopeless and has a
possibility of success.
[3]
I am of the view that on the narrow issue as enumerated above, the
defendant has shown such basis and established a reasonable
prospect
of success.
Conclusion
[15] There
seems to be conflicting views between this judgment and the judgment
in
Malisha on
the narrow issue of whether or not the police
had a legal obligation to contact the prosecutor, in the absence of a
request from
the plaintiff to be released on bail. This is an issue
which would require reflection by another court moreso in view of the
fact
that
Malisha
has been confirmed by the SCA. There needs
to be certainty on this issue to create harmony within the judgments
handed down in
this Division. To the extent that there is a conflict
between the judgment of this court and the judgment in
Malisha
,
the appeal must succeed.
Order
[16] In
the result I make the following order:
(a)
The application for condonation is granted.
(b)
Leave to appeal is granted to the Full Bench of this Division.
(c)
Costs shall be costs in the appeal.
S.
M. MFENYANA
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Plaintiff: No
appearance
Counsel
for the Defendant: Ms
A Rawjee
Instructed
by: The
State Attorney, Port Elizabeth
Date
Heard: 10
September 2021
Date
Delivered: 14
December 2021
[1]
2017
(6) SA 90
SCA at 101 at para 26
[2]
Act
10 of 2013
[3]
S
v Kruger
2014 (1) SACR 647
(SCA) at para [2]