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2023
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[2023] ZAFSHC 475
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Makhele v Minister of Police and Another (2617/2021) [2023] ZAFSHC 475 (4 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 2617/2021
In
the matter between:
TSHIDISO JACOB
MAKHELE
and
MINISTER OF
POLICE
THE NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Applicant
First
Respondent
Second
Respondent
CORAM:
PR CRONJÉ, AJ
HEARD
ON:
8 SEPTEMBER 2023
DELIVERED
ON:
04 DECEMBER 2023
JUDGMENT
BY:
P R CRONJÉ, AJ
[1]
The Applicant seeks leave to appeal against the Judgment of Mphama
AJ, delivered on
13 February 2023. The Applicant’s cause
of action, in respect of the First Respondent only, was that the
arrest of
the Applicant by members of the SAPS and the subsequent
detention was unlawful. The Applicant’s claim was dismissed,
with
costs.
[2]
It is common cause that the test for interference by a Court of
Appeal is set out
in Section 17 of the Superior Courts Act, which
inter alia
provides that leave to appeal may only be given
where the Court is of the opinion that the appeal
would
have
reasonable prospects of success or that there is some other
compelling reason why the appeal should be heard, including
conflicting
decisions on the matter under consideration. Both
these tests are not easily overcome. The Applicant concedes
such.
[3]
One of the points of criticism is that the Court
a quo
did not
make any credibility findings. It is trite that a Court does
not have to deal with each fact or observation in the
Judgment.
The fact that the Court
a quo
did not make any credibility
finding/s is not determinative of the success of an application for
leave to appeal. The primary
test that a Court has to apply is
whether the party seeking relief has discharged its onus on a balance
of probabilities.
Although credibility may play a role in that
finding, it in itself, does not imply that the onus is discharged.
[4]
What I understand from the Applicant’s argument is that no
version as to a second
police vehicle was placed to the Applicant.
However, one has to consider whether in the chain of events, such a
vehicle -
whether present or not - played a material part in the
chain of events leading to the arrest and detention of the
Applicant.
To the extent that the Court
a quo
did not,
or erroneously came to conclusions in respect of the version
about the second vehicle, it cannot on itself be destructive
of the
First Respondent’s version and evidence. Support for this
can be found in Principles of Evidence, 2
nd
Edition, PJ
Schwikkard et al (2002), page 513.
[5]
The Applicant argues that the question whether the Applicant ran away
on the First
Respondent’s version, or whether he did not, in
itself does not answer the critical question. The critical
question,
in my view, is whether the Police received a complaint
during the early hours of 2 December 2020 and whether it was an
offence
for which the Applicant could immediately be arrested without
having obtained a statement by the Complainant.
[6]
The Applicant’s submissions in respect of a timeline may,
depending on the matter
seen as a whole, be of relevance and in some
instance also determinative. In this matter, it does not appear
to me that this
is one of those cases.
[7]
The Applicant’s Replying Heads of Argument to the First
Respondent’s Heads
of Argument addresses the point that it is
important to determine whether witnesses of a party corroborate each
other or others
in all respects. In my view this too is not
necessarily determinative of where the truth lies or what the central
issue for determination
is.
[8]
The Applicant relies on
De
Klerk v Minister of Police
[1]
where it was held:
“
[11]
What is clear is that the arresting officer relied on the statement
by the complainant and the J.88
only, when she made the decision to
arrest. Clearly, seen objectively, that was insufficient.
The arresting officer
failed to investigate further the circumstances
…
”
[9]
The facts in that case, however, vastly differed from the matter
before the Court
a quo
. In the
De Klerk
matter the
alleged offense was
assault,
whether the wound was inflicted intentionally or whether it came
about accidentally during the scuffle. The nature and
the seriousness
of the wound was never investigated. The arresting officer wrongly
assumed that the assault was committed with
intent to do grievous
bodily harm and that the offence is listed in Schedule 1. Arrest
without a warrant in these circumstances
was not lawfully
permissible.
Rape, however, is listed in Schedule 1 and
5 of the CPA.
[10]
The
De
Klerk
matter went to the Constitutional Court
[2]
and the appeal was upheld. However, the Constitutional Court dealt
with legal causation and not with the lawfulness of the arrest
itself. It constrained itself to De Klerk being held in custody for
various remands whilst bail was not in issue.
[11]
The Court, in my view, approached the matter correctly in paragraph
[24] of the Judgment. The
Court applied the correct test in
respect of arrest. Offences contained in Schedule 1 and 5 are
serious offenses. I
did not understand the Applicant’s
approach and argument in this application for leave, to the effect
that the Court erred
in respect of the summation provided for in
paragraph [25] of the Judgment.
[12]
Having considered the Judgment of the Court
a quo,
the Heads
of Argument and argument before me, I am of the view that there is no
reasonable prospect that another Court would come
to a different
conclusion. I therefore make the following order:
ORDER:
1.
The application for leave to appeal is dismissed with costs.
P
R CRONJé, AJ
On
behalf of the Applicant:
Adv
C ZIETSMAN
Jacobs
Fourie INC
Bloemfontein
On
behalf of the Respondents:
Adv
K MOTSHABI
State
Attorney
Bloemfontein
[1]
2018 JDR 0544 (SCA)
[2]
De Klerk v Minister of Police (CCT 95/18) [2019] ZACC 32; 2019 (12)
BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC)
(22
August 2019) paras [11] [33] [63]