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[2023] ZAKZPHC 82
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Ndlovu v Minister of Police (AR241/2022) [2023] ZAKZPHC 82 (18 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR241/2022
In
the matter between:
SIYABONGA
NDLOVU
APPELLANT
and
MINISTER
OF
POLICE
RESPONDENT
Coram
:
Mossop J and Singh AJ
Heard
:
18 August 2023
Delivered
:
18 August 2023
ORDER
On
appeal from:
Durban Regional Court (sitting as the court of first
instance):
1.
Condonation for the late delivery of the
appeal is refused with costs.
2.
The appeal is struck from the roll.
JUDGMENT
Mossop
J (Singh AJ concurring)
:
[1]
On 7 June 2014, the appellant was shot by a
member of the public, who I shall refer to as ‘the
complainant’, who believed
that the appellant had robbed him of
his banking card whilst the complainant was attempting to perform a
transaction at an automatic
telling machine (ATM) in Mobeni, Durban.
The appellant was subsequently pursued by the complainant and was
shot by him. The South
African Police Services (SAPS), and an
ambulance, were summoned to the scene and the appellant was arrested
and removed to King
Edward VIII Hospital where he remained for some
six weeks recovering from his injury. For a portion of that time, he
was guarded
by members of the SAPS and secured to his bed to prevent
him from leaving both his bed and the hospital. The appellant never
appeared
in court for some unexplained reason and ultimately the
criminal offence for which he was arrested was withdrawn.
[2]
The appellant chose to sue not the
complainant who shot him, but rather the Minister of Police. He
claimed in his particulars of
claim that he was unlawfully arrested
and detained by members of the SAPS at King Edward VIII Hospital. To
this the respondent
pleaded, in an amended plea, that the SAPS
members involved in the arrest of the appellant had a reasonable
suspicion that the
appellant had committed a Schedule 1 offence,
namely attempted murder and attempted armed robbery. Thus, so it was
pleaded, the
arrest of the appellant was justified and lawful in
terms of section 40(1)
(b)
of the Criminal Procedure Act 51 of 1977 (the Act).
[3]
On 26 March 2021, the appellant’s
claim against the respondent was dismissed in the Durban Regional
Court. It is against this
decision that the appellant brings this
appeal. In furtherance of this appeal, on 7 April 2021, the
appellant’s attorneys
requested the regional magistrate to
provide reasons for his judgment. On 17 May 2021 those reasons were
provided. The appeal,
however, was only noted on 27 July 2022, some
14 months later.
[4]
Rule 51(3) of the Magistrates’ Court
Rules provides as follows:
‘
An
appeal may be noted within 20 days after the date of a judgment
appealed against or within 20 days after the registrar or clerk
of
the court has supplied a copy of the judgment in writing to the party
applying therefor, whichever period shall be the longer.’
From the brief narration
of facts referred to above, it is apparent that this appeal was not
noted within 20 days of the regional
magistrate delivering his
reasons.
[5]
The appellant has brought an application
that seeks to condone his delay in noting this appeal. The
appellant’s explanation
for not bringing this appeal timeously
encompasses a large variety of factors. They range from the
appellant’s attorney not
attending the trial in the regional
court and therefore not being ‘familiar’ with what
transpired at the trial, to
a delay in obtaining the trial
transcripts. Interspersed with these allegations are further
allegations that the counsel instructed
by the appellant’s
attorney contracted Covid-19. So severe was the unidentified
counsel’s encounter with Covid-19,
that she developed problems
with her finger joints and ‘typing and working on my documents
became difficult’. Compounding
this unfortunate state of
affairs, was that no other counsel could be located who was prepared
to work at the low rates quoted
by the afflicted counsel. Added to
these reasons was a further smorgasbord of social issues:
‘…
the
Pandemic, loss of economy due to looting, the exaggerated rise in the
cost of living and the latest floods made placing my attorneys
in
funds almost impossible.’
However, from this
extract it appears that the true reason for the appellant’s
delay begins to emerge, namely a lack of funds.
[6]
The
condonation application is not overburdened with dates.
That
having been said, in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and others
,
[1]
the court held that:
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay. The mere
listing of significant events which took place during the period
in
question without an explanation for the time that lapsed between
these events does not place a court in a position properly
to assess
the explanation for the delay. This amounts to nothing more than a
recordal of the dates relevant to the processing of
a dispute or
application, as the case may be.’
[7]
It is, nonetheless, appropriate to mention
the few dates that are provided by the appellant in his condonation
application. The
commencement point must be the regional magistrate’s
reasons for his judgment which, as previously stated, were delivered
on 17 May 2021. The next date mentioned by the appellant is ‘in
or around October 2021’, five months later, when the
transcripts were allegedly received by the appellant’s attorney
from the transcribers. In ‘early January 2022’,
the
appellant’s attorney attempted to contact counsel. ‘Sometime
in the latter part of January early February’
a brief was
‘dropped off’ with counsel. No further dates are
mentioned. The final date that can be accepted is the
date of service
of the appellant’s notice of appeal, namely 27 July 2022
because there is a stamp on that document signifying
receipt thereof
by the respondent’s attorneys. This court is asked to accept
that these brief, scattered islands of facts
are sufficient to
justify condonation being granted. For it cannot seriously be
disputed that the time limits imposed for the noting
of an appeal
have egregiously been exceeded.
[8]
A
court has a discretion to grant condonation.
[2]
Court rules are not immutable and are not always cast in stone. They
exist
to
provide a framework to be employed in the conducting and expeditious
resolution of litigation. Where court rules are not complied
with
such non-compliance may, in appropriate cases, be condoned upon an
adequate explanation being provided. In
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
,
[3]
the Constitutional Court expressed itself as follows on the issue of
condonation:
‘
This
court has held that the standard for considering an application for
condonation is the interests of justice. Whether it
is in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this enquiry
include but are not limited to the nature of the relief sought,
the extent and cause of the delay, the effect
of the delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.’
(Footnote omitted.)
[9]
The Constitutional Court went on to say:
‘
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable.’
[4]
[10]
The
grant or refusal of condonation is not a mechanical process but one
that involves the balancing of often competing factors.
Accordingly,
‘
very
weak prospects of success may not offset a full, complete and
satisfactory explanation for a delay; while strong prospects
of
success may excuse an inadequate explanation for the delay (to a
point)’
.
[5]
A combination of an inadequate explanation and poor prospects of
success would hold limited prospects of condonation being granted.
It
is into that latter category that this application falls, in my view.
[11]
It is by now well-established that an
applicant for condonation, particularly where the delay is
significant, must provide a full
explanation with regard to the time
which has elapsed, and the steps taken to bring the matter to court.
The appellant has not
given a full and complete explanation for the
delay in progressing his appeal. The entire period of delay covers
some 14 months,
but very little specific detail is provided regarding
those months of delay. Insofar as there may have been difficulties
acquiring
the transcript of proceedings, dates and actions taken by
the appellant’s attorney and responses received from the
transcriber
should have populated the condonation affidavit, but they
do not. No explanation at all is provided for the period after
receipt
of the transcript until January 2022, when attempts were
apparently made to contact counsel. Difficulties with the health of
counsel
are mentioned without confirmation by counsel of those facts
alleged. The allegations are thus hearsay in the mouth of the
appellant.
Large chunks of time are simply glossed over. General
societal issues are raised, presumably as a sop for any inadequacies
in the
appellant’s version. In short, the explanation provided
is vague and unsatisfactory.
[12]
In
addition, the appellant appears not to have brought the condonation
application at the earliest opportunity available to him.
[6]
A delay in seeking condonation must itself be explained.
[7]
Given the difficulties that the appellant allegedly immediately faced
concerning the acquisition of the record, it must have been
patently
obvious to him and his attorney, almost from the moment that the
regional magistrate provided his reasons, that he would
not be able
to adhere to the prescribed time limits. He ought at that early stage
to have sought condonation but did not do so.
[13]
As
was stated in
Van
Wyk
:
‘
There
is an important principle involved here. An inordinate delay
induces a reasonable belief that the order had become unassailable.
… A litigant is entitled to have closure on
litigation. The principle of finality in litigation is intended
to allow parties to get on with their lives. After an
inordinate delay a litigant is entitled to assume that the losing
party has accepted the finality of the order and does not intend to
pursue the matter any further.’
[8]
[14]
The appellant mentions in his condonation
application that his prospects of success on appeal are ‘more
than favourable’
but says no more than that. I shall consider
those prospects in greater depth.
[15]
The complainant was attempting to perform a
transaction at an ATM, when the appellant allegedly intervened and
informed him that
the machine was defective and that the bank card
should be inserted into the ATM in a particular fashion. The
appellant then grabbed
hold of the card being held by the complainant
and somehow slipped it into the cuff of his shirt. The appellant
allegedly, nonetheless,
convinced the bewildered complainant that he
had inserted the card into the ATM and urged the complainant to enter
his pin code
into the machine, which the complainant in his confusion
then did. After the code had been inserted, the appellant fled and
was
hotly pursued by the complainant. He still had the complainant’s
bank card, and he now knew his pin code. As he pursued the
appellant,
the complainant noticed a motor vehicle slowly driving along the road
next to which they were running. The motor vehicle
was proceeding in
the same direction that the appellant and the complainant were
running. Running next to the driver’s side
of the motor vehicle
was a third person with a firearm. The third person fired at
the complainant and the appellant allegedly
turned to face the
complainant and also fired at him. The third person then got into the
motor vehicle. The complainant fired back
at the appellant with his
firearm and hit him. The appellant then attempted to get into the
motor vehicle through the left rear
passenger door but fell and was
left lying in the road where the complainant found him and held him
until the SAPS arrived. The
motor vehicle left the scene with the
third person inside. The complainant found his ATM card with the
appellant. Upon the arrival
of the SAPS members at the scene, the
complainant explained his version of events and then deposed to an
affidavit in which he
again repeated those allegations under oath.
The appellant was consequently arrested and taken to King Edward VIII
Hospital.
[16]
There was no evidence to gainsay the
presence of the motor vehicle or the active involvement of the third
person in the events.
The fact that the third person involved himself
in the events is a strong indication that the appellant was part of a
scheme to
rob unsuspecting persons at the ATM. And it allays any
doubts that may exist about the identity of the person who attempted
to
rob the complainant: that person was the person who was shot and
who tried to get into the motor vehicle. There can be no other
explanation for the involvement of the third person other than that
he was interceding to assist the appellant to escape from the
complainant.
[17]
There was also nothing to gainsay the fact
that the complainant informed the SAPS under oath what had allegedly
happened. Indeed,
the appellant’s legal representative himself
introduced the complainant’s sworn statement as an exhibit
whilst he was
cross-examining the complainant. The affidavit was thus
before the court a quo and revealed that it had been deposed to by
the
complainant at 10h20 on the day of the incident. According to the
content of that affidavit, the incident had occurred at 10h15.
The
affidavit was accordingly deposed to almost immediately after the
incident occurred.
[18]
The respondent relied upon the provisions
of section 40(1)
(b)
of the Act in resisting the appellant’s claim. That section
reads as follows:
‘
(1)
A peace officer may without warrant arrest
any person-
(a)
…
(b)
whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from lawful
custody;’
The
offence of robbery appears in Schedule 1.
[19]
In
Duncan
v Minister of Law and Order
,
[9]
it
was held that the following jurisdictional facts must exist before
the power confirmed by section 40(1)
(b)
of the Act may be invoked:
(a)
the arrestor
must be a peace officer;
(b)
the arrestor
must entertain a suspicion;
(c)
the suspicion
must be that the person arrested committed an offence referred to in
Schedule 1 of the Act; and
(d)
this suspicion
must be formed and held on reasonable grounds.
[20]
As
to the test to be applied,
Duncan
explains that the test is an objective one
:
‘
[a]nd
it seems clear that the test is not whether a policeman believes that
he has reason to suspect, but whether, on an objective
approach,
he in fact has reasonable grounds for his suspicion.’
[10]
What
section 40(1)
(b)
requires is suspicion and not certainty.
[11]
[21]
I am mindful of the fact that the arresting
officer was not called to testify in the court a quo. A reason was
advanced for this
by the investigating officer who testified at the
trial: the arresting officer was a Constable Nora Ndlovu who,
subsequent to arresting
the appellant, had retired from the SAPS and
her whereabouts were unknown to him.
[22]
When the SAPS arrived at the scene, they
were confronted with the appellant lying injured as a result of being
shot by the complainant.
The complainant testified that he told the
SAPS members what had happened. He was then asked to immediately make
a written statement
under oath, which he did at the scene. That
statement included his version of events. The SAPS members thus had
the complainant’s
sworn version of events, the recovered bank
card, and the fact of the wounding of the appellant upon which to
form a view. In my
view, the reasonable grounds required by the SAPS
members to arrest the appellant without a warrant of arrest were
satisfied.
[23]
It
therefore appears to me that the appellant has weak prospects of
succeeding on the merits of the appeal.
To
grant condonation in the absence of a satisfactory explanation after
such an inordinate delay in progressing the appeal would
undermine
the principle of finality and cannot be in the interests of justice.
It seems to me that the appropriate order in the
circumstances is to
strike the matter off the roll.
[12]
[24]
It
is trite that ‘
[t]he
general rule in matters of costs is that the successful party should
be given his costs, and this rule should not be departed
from except
where there be good grounds for doing so’.
[13]
No
such grounds exist in this matter.
[25]
I would accordingly propose the following
order:
1.
Condonation for the late delivery of the
appeal is refused with costs.
2.
The appeal is struck from the roll.
MOSSOP
J
I
agree:
SINGH
AJ
APPEARANCES
Counsel
for the applicants:
Ms S
Naidu
Instructed
by:
M E
Lengolo - Buthelezi Attorneys
Suite
410, 4
th
Floor
Salmon
Grove Chambers
407
Anton Lembede Street
Durban
Counsel
for the respondent:
Ms S
B R Lushaba
Instructed
by:
State
Attorney
6
th
Floor, Metlife Building
391
Anton Lembede Street
Durban
Date
of argument:
18
August 2023
Date
of Judgment
18
August 2023
[1]
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and others
(2010)
31 ILJ 1413 (LC) para 13.
[2]
PAF
v SCF
[2022]
ZASCA 101; 2022 (6) SA 162 (SCA) para 15.
[3]
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
Amicus Curiae)
[2007]
ZACC 24
;
2008 (2) SA 472
(CC) para 20.
[4]
Ibid
para 22.
[5]
Valor
IT v Premier, North West Province and others
[2020] ZASCA 62
;
2021 (1) SA 42
(SCA) para 38. See also
United
Plant Hire (Pty) Ltd v Hills and others
1976 (1) SA 717
(A) at 720E-G;
Darries
v Sheriff, Magistrate’s Court, Wynberg, and another
1998 (3) SA 34
(SCA) at 40H-41E.
[6]
Commissioner
for Inland Revenue v Burger
1956
(4) SA 446
(A)
at 449G-H.
[7]
Mulaudzi
v Old Mutual Life Assurance Co (South Africa) Ltd and others
[2017] ZASCA 88
;
2017 (6) SA 90
(SCA) para 26.
[8]
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
Amicus Curiae)
[2007]
ZACC 24
;
2008 (2) SA 472
(CC) para 31.
[9]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A)
at 818G-H.
[10]
Ibid
at 814D-E.
[11]
Mabona
and another v Minister of Law and Order and others
1988
(2) SA 654
(SE) at 658H-I.
[12]
Muller
v Sanlam
[2016]
ZASCA 149
;
SA
Express Ltd v Bagport (Pty) Ltd
[2020] ZASCA 13; 2020 (5) SA 404 (SCA).
[13]
D
E van Loggerenberg
Erasmus:
Superior Court Practice
(RS
21, 2023) at D5-8.