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2023
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[2023] ZAFSHC 294
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Minister of Police and Another v Mofokeng and Others (3953/2019) [2023] ZAFSHC 294 (24 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no:
3953/2019
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In
the matter between:
THE
MINISTER OF POLICE
1
st
Applicant
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
2
nd
Applicant
And
THIEHO
WILLIAM MOFOKENG
1
st
Respondent
JACOB
SAOANA LETUKA
2
nd
Respondent
MAQAESA
OSIAH SEHLAKO
3
rd
Respondent
TLADINYANE
DAVID TLALE
4
th
Respondent
CORAM:
MTHIMUNYE AJ
HEARD ON:
21 JULY 2023
DELIVERED ON:
24 JULY 2023
JUDGMENT BY:
MTHIMUNYE, AJ
This judgement was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and time
for hand-down is deemed to be 13:00 on 24 July 2023
Introduction
[1]
This
is an application for leave to appeal the whole judgment handed down
by this court on 24 August 2022 to the Full Bench of this
Division
alternatively the Supreme Court of Appeal. The judgement was in
respect of a delictual claim for unlawful
arrest, unlawful
detention and malicious prosecution respectively. and I found in
favour of the Respondents in the following terms:
“
1. The
claim in respect of the First Plaintiff is postponed sine die.
2. The
defendants shall pay to the plaintiff’s the following amounts
as compensation:
3.
Second
Plaintiff
3.1.
An
amount of R1 300 000.00 (One Million Two Hundred Rand) for
the entire period of detention.
3.2.
An
amount of R250 000.00 (Two Hundred and Fifty Thousand) for
malicious prosecution.
4.
Third
Plaintiff
4.1.
The
third Plaintiff, an amount of R1 400 000.00 (One Million
Four Hundred Rand) for the entire period of detention.
4.2.
An
amount of R250 000.00 (Two Hundred and Fifty Thousand) for
malicious prosecution
5.
Fourth
Plaintiff
5.1.
An
amount of R1 400 000.00 (One Million Four Hundred Rand) for
the entire period of detention.
5.2.
An
amount of R250 000.00 (Two Hundred and Fifty Thousand) for
malicious prosecution
6.
The defendants shall pay interests at the applicable legal rate on
the said amount from 14 (fourteen) days
from
the date of judgment t
o the date of payment.
7.
The defendants shall pay the plaintiffs’ agreed or taxed
costs, including costs of Counsel, travel and accommodation
for 4 days”.
[2] At the onset of
the hearing, this court was ceased with an issue that arose between
the parties in respect of the alleged
late filing of the applicant’s
application for leave to appeal. The Applicants’ Counsel
informed the Court that the
Respondents had raised an issue that the
Applicants papers were filed out of time but stated that the
Applicants believe they were
within the prescribed time limits.
[3] The
Respondent’s Counsel insisted that this application was filed
out of time and therefore the Applicants should
have brought an
application for condonation, in the absence of which the Applicants’
papers are not properly before court
and should be struck off the
roll. It is noteworthy that the Respondents raised this issue in a
letter written to the Applicants’
attorneys of record on 19
th
September 2022 i.e. four days after the Applicants had filed their
papers. The Applicants on one hand submitted that in terms of
their
calculation they hold a view that the application was filed within
the prescribed 15 days and therefore there was no need
to bring an
application for condonation.
[4] It follows then
that before even considering the application for leave to appeal,
this Court has to answer the question
of whether or not the
Applicants’ papers were filed out of time. If the question is
answered in the affirmative, it would
not be necessary for this Court
to consider the application for leave as it would not be properly
before court. However, if the
question is answered in the negative,
the Applicants would indeed be correct in submitting that there was
no need for a condonation
application.
[5] Applications
for leave to appeal are governed by
Rule 49 (1) of the Uniform
Rules of Court
which provides as follows:
“…
(b)
When leave to
appeal is required and it has not been requested at the time of the
judgment or order, application for such leave
shall be made and the
grounds therefore shall be furnished within 15 days after the date of
the order appealed against.
…”
[6] In terms of
this Rule, applications for leave to appeal must be filed within 15
days from the date of the assailed judgment
or order. The
determination this court is ceased
with
necessitates a calculation of the
dies
and I turn now to do so. The starting point is section 4 of the
Interpretation Act,33 of 1957
which provides as follows:
“
When
any particular number of days is prescribed for the doing of any act,
or for any other purpose, the same shall be reckoned
exclusively of
the first and inclusively of the last day, unless the last day
happens to fall on a Sunday or on any public holiday,
in which case
the time shall be reckoned exclusively of the first day and
exclusively also of every such Sunday or public holiday.”
[7] Prior to the
reckoning of day and for purposes of completeness, it is necessary to
clarify what a court day for purposes
of the Rules is. A court day is
defined in the Uniform Rules as:
“
a day that is
not a public holiday, Saturday or Sunday and only courtdays shall be
included in the computation of any time expressed
in days prescribed
by these Rules or fixed by any order of court”.
[8] The assailed
judgment was handed down on 24
th
August 2022. The
Applicants served and filed its notice for leave to appeal on 15
th
September 2023. It is clear from a simple calculation of the
dies
excluding
weekends and in line with the
Interpretation Act
that the Applicants filed their notice on
the 16
th
day, which is a day out of the prescribed time.
As stated above, the Respondents brought this late filing to the
attention of the
Applicants on 19 September 2022 i.e. four days after
the Applicants had filed their notice. The Applicants chose not to
bring a
condonation application.
[9] During his
address, Counsel for the Applicants argued that if the court finds
that the Applicants filed out of time, the
court should not be
‘mechanical’ as the delay is only one day. It is trite
that condonation falls within the discretion
of the court. The test
for condonation is the interests of justice and in determining this,
the court must, in the exercise of
its discretion, consider a number
of factors, one of which is the degree of lateness (length of the
delay). Ordinarily, a
court would grant such condonation if the
delay was not long and caused no prejudice to the other party and it
would be in the
interest of justice to do so.
[10] The dilemma
this court finds itself in is that there was no condonation
application brought before this court to consider.
Although the
granting of condonation is in the discretion of the court as
articulated in
Grootboom
v National Prosecutions Authority & Others
[1]
,
in the absence of an application, a court cannot consider factors
that it would ordinarily be expected to consider in exercising
its
discretion. I deem it prudent to state that despite giving the
Applicants’ Counsel an opportunity to take instructions
and
adjourning court for this purpose, the Applicant insisted that it
filed within time and would not bring an application for
condonation.
[11] It follows
therefore that the next question this court must answer is whether or
not a court can grant condonation for
non-compliance with the Rules
when same is not asked for. I hold a view that in the absence of an
application, it would be improper
for this court to consider
condonation. In this view, I am guided by the
obiter
dictum
in
SA
Transport and Allied Workers Union & Another v Tokiso Dispute
Settlement an Others
[2]
,
where the court held:
“…
where
the steps constitute a jurisdictional step, a time-limit, and the
party is out of time, then, in the absence of an application
for
condonation, a court cannot come to the party’s assistance…”
Simply
put, in my view, in the absence of a condonation application, there
is no discretion to exercise.
Consequently,
I make the following
Order
:
1.
The application for leave to appeal is struck from the roll with
costs.
D.P. MTHIMUNYE
Appearances:
For
the Applicants
:
Adv
L Bomela
Bloemfontein
Society of Advocates
Instructed
by
Office
of the State Attorney
Bloemfontein
For
the Respondents :
Adv
C Zietsman
Pretoria
Society of Advocates
Instructed
by
Loubser
Van Wyk Inc
c/o
Jacobs Fourie Inc.
[1]
ZACC 37; 2014(2) SA 68 (CC); 2014 (1) at para 20 & 35
[2]
2015(36) ILJ 1841 (LAC) at para 19