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2023
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[2023] ZAFSHC 287
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Tolaone v Minister of Police - Leave to Appeal Judgment (433/2019) [2023] ZAFSHC 287 (21 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 433/2019
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
TSHIDISO
PAUL TOLAONE
PLAINTIFF
and
THE
MINISTER OF POLICE
DEFENDANT
LEAVE TO APPEAL
JUDGMENT
HEARD
ON
:
THE PAPERS AS PER THE HEADS OF
ARGUMENT, FILED ON 17 MARCH 2023 AND 29 MARCH 2023 RESPECTIVELY.
BEFORE:
CHESIWE, J
DELIVERED
ON:
This
judgment was handed electronically by circulation to the parties’
representatives by email. The date and time for hand-down
is deemed
to be at 13h00 on 21 July 2023.
[1]
The Applicant seeks leave to appeal in
terms of section 16(1)(a)(i), read with section 17(2)(a) of the
Superior Court Act 10 of
2013 (the Superior Courts Act), wherein the
Applicant applied for leave to appeal to the full bench of this
Division alternatively
to the Supreme Court of appeal, against the
whole order of the judgment granted on 13 January 2023.
[2]
Grounds of the application for leave to
appeal are listed in the Notice for leave to appeal and will
therefore not be repeated herein.
[3]
The Respondent, (Defendant in the main
action) filed a notice for application for leave to cross-appeal. The
Respondent’s
contention is that there is reasonable prospects
of success in the cross-appeal. The Respondent further filed an
application for
the late filing of the leave to cross-appeal that
same be condoned.
[4]
In terms of the provisions of section 17(1)
of the Superior Courts Act, leave to appeal may only be granted if
the judge concerned
is of the opinion that:
The appeal would have
reasonable prospect of success or if there is some compelling reasons
why leave should not be granted;
The decision sought on
appeal does not fall within the ambit of section 16(2)(a) of the Act;
Where the decisions
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.
[5]
In
an unreported decisions of
Mont
Chevaux Trust v Tina Goosen
[1]
,
Bertelsmann J said the following:
“
It
is clear that the threshold for granting leave to appeal against
judgment of a high court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion…The
use of the word “would” in the new statute indicates a
measure of certainty that another court would different from
the
court whose judgment is sought to be appeal against.”
[6]
The
Mont
Chevaux
decision was cited with approval in the matter of
Mototo
v Free State Gambling and Liquour Authority
[2]
, where Daffue J at paragraph
5 said:
“
There
cannot be no doubt that the bar for granting leave to appeal has been
raised. The use by the legislature of the word only
emphasised supra
is a further indication of a more stringent test.”
[7]
The
Court in
Smith
v State
[3]
, dealt with the question of
what constitutes reasonable prospects of success and stated as
follows:
“
What
the test of reasonable prospect of success postulates is a
dispassionate decision based and the facts of the law that a Court
of
appeal would 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 a mere probability of success, that the case
is arguable on
appeal or that the case cannot be categorised as hopeless. These
must, in other word, be a sound rational basis
for the conclusion
that these are reasonable prospects of success on appeal”
[8]
The Applicant’s contention that the
court erred in accepting the complainant’s identification of
the Respondent (Plaintiff),
which identification was not reliable nor
satisfactory as it was based only on the sneakers, the height and
built of the Plaintiff.
The Respondent contends that the court ought
to have dismissed the claim with costs as the court had found in
favour of the Respondent
(Defendant) that the arrest was lawful.
[9]
Having considered the submissions made by
the Applicant, in my view there is reasonable prospects and that
another court may come
to a different conclusion.
[10]
In considering the condonation application,
the court has a discretion to be exercised judicially upon a
consideration of all the
facts and in essence, it is a question of
fairness for both parties. In the unreported judgment of
MD
Marais v The Minister of Safety and Security and MEC of Roads and
Transport
, Case (1521/2010), Jordaan J
held that:
“
Any
explanation is not ordinarily regarded as acceptable only because it
is full explanation. That full explanation must be acceptable
as
well.”
[11]
The Applicant’s Legal Representative
in founding affidavit gave a full explanation of the delay and such
full explanation
and in my view is acceptable. Thus the late filling
of the cross-appeal is condoned.
[12]
Having accepted and granted the late filing
of the cross-appeal as well as Respondent being granted tis leave to
appeal, it therefore
follows that the Applicant be granted leave to
cross-appeal as another court may come to a different conclusion.
[13]
Accordingly, both applications ought to be
granted.
Order
1.
Leave to appeal the judgment and order
granted on 13 January 2023 is granted to the full bench of this
Division;
2.
Leave for an application to cross-appeal
the judgment and order granted on 13 January 2023 is granted to the
full bench of this
Division;
3.
That the late filing of the leave to
cross-appeal condonation is granted;
4.
Costs in both applications will be costs in
the appeal.
S. CHESIWE, J
On
behalf of the Applicant:
Adv.
L R Bomela
Instructed
by:
State
Attorney
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
M S Mazibuko
Instructed
by:
Mokhomo
Attorneys
BLOEMFONTEIN
[1]
LCC
14R/2014 3 November 2014.
[2]
(4629/2015)
[2017] ZA FSHC 8 June 2017
[3]
2012
(1) SACR 567
(SCA) at para [7]