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[2022] ZAECQBHC 30
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Uithaler v Minister of Police and Another (97/2021) [2022] ZAECQBHC 30 (6 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
Case
No.: 97/2021
In
the matter between:
DARRYL
NATHAN
UITHALER
Applicant
and
THE
MINISTER OF
POLICE
First Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent
JUDGMENT IN AN
APPLICATION FOR LEAVE TO APPEAL
ZIETSMAN
AJ:
[1]
This is an application for leave to appeal
the judgment of this court dismissing applicant’s application
for condonation in
terms of section 3(4) of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002 (“the
Act”).
[2]
It
is by now trite that leave to appeal may only be given where the
court is of the opinion that the “appeal would have a
reasonable prospect of success”, or when there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[1]
[3]
Applicant relies on 21 grounds of appeal.
The grounds may, for ease of consideration, be summarised as follows.
The first relates
to the finding that applicant failed to show good
cause.
[4]
The second concerns the finding that
applicant’s constitutional rights were read to him since it is
common cause that he signed
the notice of rights. The third, that the
court erred in finding that the reasons for the delay were not fully
explained.
[5]
With regard to good cause, applicant
contends that the court misdirected itself by only criticising
applicant for not attaching
various statements to his founding
affidavit and not placing a copy of the docket before court. Also,
that the warning statement
made by applicant did not amount to an
exculpatory statement and that the factual allegations with regard to
prospect of success
were, according to applicant, not challenged by
the respondents.
[6]
Applicant elected not to attach the
statements on which he relied. Applicant did so at his own peril.
This was once again raised
in argument, however, once again,
applicant’s counsel conceded that the trial bundle (which would
have included the statements)
did not form part of the record.
[7]
Applicant contends that the factual
allegations relating to prospects of success were not challenged by
the respondents, however
this is not borne out by the papers filed on
behalf of the respondents. Applicant applied for condonation and the
onus was on him
to show good cause, as is required in terms of the
provisions of section 3(4)(b)(ii). Applicant cannot rely on the
respondents’
failure to challenge allegations, which is in any
event not the case, to prove that he has satisfied the requirements
as set out
in section 3(4)(b) of the Act.
[8]
I agree with the respondents’ counsel
that a court of appeal will be equally left in the dark as to the
prospects of success
on the merits and will be expected to resort to
speculation and conjecture.
[9]
With
regard to the notice of rights, applicant contends that the court
erred in failing to “
draw
a distinction between the legal requirement that applicant’s
constitutional rights had to be read to him at the time
of his arrest
directly from the arresting officer’s pocket book, which is
unchallenged by the first respondent, from the
constitutional rights
which were required to be read to applicant later at the Police
Station, as per the notice of rights
.”
[2]
Applicant further contends that he was “
instructed
to sign the notice of rights without it being explained to him
”.
[10]
Applicant’s
counsel submitted that what is meant by the above, is that applicant
had to be informed of the reasons for his
arrest and that he had to
be informed of his constitutional rights. In this regard applicant’s
counsel referred to the judgments
of
Mothibedi
v Minister of Safety and Security and Another
,
[3]
Small
v Smith
[4]
and
Minister
van Veiligheid en Sekuriteit v Rautenbach
.
[5]
These judgments do not assist applicant.
[11]
It is in common cause that applicant signed
the notice of rights, wherein the reason for his arrest is embodied.
I am not persuaded
that a court of appeal will interfere with this
finding.
[12]
Lastly, applicant contends that the reason
for the delay were fully explained. However, during argument
applicant’s counsel
conceded (correctly so) that the entire
period of delay was not explained.
[13]
As was submitted by the respondents’
counsel, applicant was obliged to explain what had transpired in the
six-month period
between 29 January 2018, when the cause of action
arose in respect of his arrest and initial detention, and 28 July
2018 when the
notice was due (“the first period”), and
the six-month period between 30 October 2018, when the cause of
action arose
in respect of his further detention, and 29 April 2019
when the notice was due (“the second period”). No
explanation
whatsoever was given for the delay in respect of the
first period. Applicant’s explanation only commences after his
release
and, consequently, after the first period. It was further
submitted that the explanation in respect of the second period also
only
commences, with his return from Cape Town in July 2019, which is
after the expiry of the second period.
[14]
I am not convinced that there exists any
reason to conclude that the finding that the delay was not
sufficiently explained is incorrect,
or that it should be interfered
with on appeal.
[15]
Having considered all of the above, I am of
the view that there are no reasonable prospects that a court of
appeal will come to
a different conclusion on any of the grounds
raised, or that there is some other compelling reason why the appeal
should be heard.
There is no reason why costs should not follow the
result.
[16]
In the result, the application for leave to
appeal is dismissed with costs.
T.
Zietsman
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
applicant:
Adv. M. du Toit,
instructed by Peter McKenzie Attorneys, Gqeberha
For
the respondents: Adv. A. Barnett, instructed
by the State Attorney, Gqeberha
Date
heard:
24 June
2022
Date
delivered:
6 September 2022
[1]
Section
17(1)(a) of the Superior Court’s Act 10 of 2013.
[2]
Notice
of application for leave to appeal at para 9.
[3]
(1680/2009)
[2013] ZAECMHC 17 (6 September 2013) at paras 24 to 27.
[4]
1954
(3) SA 434
(SWA) at 438 E – F.
[5]
(368/95)
[1996] ZASCA 11
(13 March 1996) at par 29.