Summary of Judgment

Introduction

The proceedings concerned an application for condonation and an application for leave to appeal against the whole of a judgment previously delivered by the Free State Division of the High Court, Bloemfontein. The application was determined by Mthimunye AJ, heard virtually on 20 September 2023, and delivered on 22 November 2023.

The applicants were the Minister of Police (first applicant) and the National Director of Public Prosecutions (second applicant). The respondents were Thieho William Mofokeng (first respondent), Jacob Saona Letuka (second respondent), Maqaesa Osiah Sehlako (third respondent), and Tladinyane David Tlale (fourth respondent), who had been plaintiffs in the underlying delictual action.

The procedural history was central to the judgment. The underlying matter was a delictual claim for unlawful arrest, unlawful detention, and malicious prosecution. In the trial, the plaintiffs abandoned the claim for unlawful arrest, and on 24 August 2022 the court granted substantial awards in respect of detention and malicious prosecution to the second, third, and fourth plaintiffs, while the claim of the first plaintiff was postponed sine die due to the first plaintiff having been deceased before the commencement of the trial.

Following that judgment, an application for leave to appeal was previously enrolled but was struck from the roll because it was filed out of time and there was no condonation application before the court, despite the late filing having been raised by the respondents. The present proceedings were a renewed attempt to obtain leave to appeal, now accompanied by an application for condonation for the late filing.

The general subject-matter of the dispute at this stage was therefore procedural and appellate in nature, focusing on whether the applicants should be excused for the late filing of the leave application and, if so, whether they met the statutory threshold for leave to appeal under the Superior Courts Act 10 of 2013, given their intended grounds of appeal relating to prescription, the evidential basis for malicious prosecution, and the quantum of damages.

Material Facts

The material facts were primarily procedural and were treated largely as common cause, save where the parties differed on characterisation (such as whether the applicants were in wilful default and the extent of prejudice).

A judgment in the underlying delictual trial was delivered on 24 August 2022. The court ordered compensation in respect of detention and malicious prosecution for the second, third, and fourth plaintiffs, interest from 14 days after judgment to date of payment, and costs (including counsel’s costs, travel, and accommodation for four days). The first plaintiff’s claim was postponed sine die because the first plaintiff was deceased before the trial commenced.

The applicants’ first attempt to pursue leave to appeal was met with an objection by the respondents that the application was out of time under the rules. The respondents had raised this issue with the applicants in correspondence dated 19 September 2022, but the applicants had not brought a condonation application at that stage. When the issue was raised in court on 21 July 2023, the applicants still did not present an application for condonation and initially maintained that the application was timeous; they later conceded it might be late, contending only by one day. The court satisfied itself that the application was indeed late and, in the absence of condonation, struck the application for leave to appeal from the roll.

In the present application, the applicants sought condonation for late filing. The deponent to the applicants’ founding affidavit, Mr Ganyani Phanuel Chauke, stated that he had laboured under a bona fide error regarding time periods, attributing the mistake to an incorrect interpretation of section 4 of the Interpretation Act 53 of 1957 and counsel’s incorrect interpretation of Rule 49(1). The applicants also attributed the one-day delay to administrative delay in the approval of the decision to appeal by the National Director of Public Prosecutions, resulting in instructions only being obtained on 14 September 2022, with filing occurring on 15 September 2022. The court noted that no confirmatory affidavits were filed from the counsel or officials referred to.

The respondents opposed condonation, asserting that the applicants were in wilful default, including because of the cautionary letter of 19 September 2022. The respondents also relied on the additional delay after the application had been struck from the roll, contending that it caused frustration and prejudice.

On leave to appeal, the applicants’ grounds (as summarised by the court) were that the trial court allegedly failed to have regard to prescription, erred in holding that prescription in respect of detention begins to run only upon release from custody, lacked an evidential basis for the finding of malicious prosecution, and awarded damages allegedly inconsistent with prevailing jurisprudence. The respondents’ opposition included the contention that prescription had not been pleaded in respect of arrest and/or detention and that the quantification of damages fell within the trial court’s discretion.

Legal Issues

The court was required to determine two principal legal questions.

The first issue was whether condonation should be granted for the late filing of the applicants’ application for leave to appeal. This entailed applying the established condonation standard, which involves a discretionary evaluation guided by factors such as the degree of lateness, the explanation, prospects of success, and fairness to both parties. This was primarily a question involving the application of legal standards to procedural facts, with an evaluative assessment of the explanation and the interests of justice.

The second issue was whether leave to appeal should be granted under section 17(1) of the Superior Courts Act 10 of 2013. This required the court to assess whether the appeal would have reasonable prospects of success (or whether some other compelling reason existed). This too was an evaluative determination involving the application of the statutory threshold to the applicants’ proposed grounds of appeal, without deciding the merits of the appeal itself.

Court’s Reasoning

On condonation, the court applied the principle that the governing standard is the interests of justice, and that condonation lies within the discretion of the court, to be exercised judicially upon consideration of all relevant facts. The court relied on Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) for the proposition that condonation is not granted merely for the asking and that the applicant must show sufficient cause. The court further applied the factors articulated in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A), emphasising the interrelated considerations of the extent of lateness, explanation, prospects of success, and importance of the case, while recognising that a lack of prospects may be decisive.

The court considered the degree of lateness to be minimal, namely one day. While noting the absence of confirmatory affidavits supporting the deponent’s account regarding counsel’s error and internal decision-making delays at the NDPP, the court accepted the explanation as reasonable on the averments before it. The court expressly found that the applicants could not be said to have been in wilful default, and characterised the cause of delay as systemic issues rather than neglect by the applicants.

In assessing whether condonation served the interests of justice, the court referred to Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA (CC), applying the approach that condonation should be granted if it is in the interests of justice and refused if it is not. The court linked this assessment to the intended grounds of appeal, indicating that the reasons advanced in support of leave to appeal contributed to the conclusion that condonation should be granted.

On leave to appeal, the court applied section 17(1) of the Superior Courts Act 10 of 2013, emphasising that the test is whether the appeal would have a reasonable prospect of success, not merely that it might. The court cited Democratic Alliance v President of the Republic of South Africa and Others (21424/2020) [2020] ZAGPPHC 326 (29 July 2020), which in turn contrasted the prior approach (including reference to Van Heerden v Cronwright and Others 1985 (2) SA 342 (T)) with the more stringent statutory formulation. The court also relied on Smith v S 2012 (1) SACR 567 (SCA) for the proposition that more is required than a mere possibility of success; there must be a sound, rational basis for concluding that another court would come to a different conclusion.

The court further reasoned that leave to appeal is not automatic and that an appropriate balance must be struck between the rights of the successful party and the unsuccessful party seeking leave, such that the absence of a realistic chance of success should favour the party that succeeded in the court a quo.

Applying these principles, the court did not revisit the merits in detail, but took the applicants’ stated grounds as raising issues which, if accepted by an appellate court—particularly regarding prescription, the justification for a finding of malicious prosecution, and the appropriateness of the damages awarded—could lead to a different conclusion. On that basis, the court concluded that the application for leave to appeal should succeed.

Outcome and Relief

The court granted condonation for the late filing of the application for leave to appeal.

The court granted leave to appeal to the full bench of the Free State Division of the High Court, Bloemfontein.

The court ordered that costs shall be costs in the cause.

Cases Cited

Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC).

Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA (CC).

Democratic Alliance v President of the Republic of South Africa and Others (21424/2020) [2020] ZAGPPHC 326 (29 July 2020).

Van Heerden v Cronwright and Others 1985 (2) SA 342 (T).

Smith v S 2012 (1) SACR 567 (SCA).

Legislation Cited

Interpretation Act 53 of 1957.

Superior Courts Act 10 of 2013.

Rules of Court Cited

Rule 49(1) of the Rules of Court.

Held

The court held that, despite the absence of confirmatory affidavits, the explanation advanced by the applicants for the one-day delay in filing was reasonable on the papers and did not establish wilful default. Having regard to the interests of justice, and considering the factors relevant to condonation, the court exercised its discretion to condone the late filing.

The court further held that the applicants satisfied the threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, in that the grounds advanced—centred on prescription, the basis for the finding of malicious prosecution, and the quantum of damages—were such that another court could come to a different conclusion. Leave to appeal to the full bench was therefore granted, with costs reserved as costs in the cause.

LEGAL PRINCIPLES

Condonation is a discretionary remedy governed by the interests of justice. In exercising the discretion, a court considers interrelated factors including the degree of lateness, the explanation for the delay, prospects of success, and the overall fairness to both sides, with the understanding that condonation is not granted merely for the asking and that a lack of prospects may be decisive.

The test for leave to appeal is determined by section 17(1) of the Superior Courts Act 10 of 2013, which establishes a more stringent threshold than earlier formulations. An applicant must demonstrate that the appeal would have a reasonable prospect of success (or that there is some other compelling reason), requiring more than a mere possibility that another court might differ; there must be a sound, rational basis to conclude that another court would come to a different result.