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[2023] ZAECMKHC 69
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Minister of Police and Another v Gqada (CA 68/2022; 1542/2017) [2023] ZAECMKHC 69 (23 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: CA 68/2022
ECGH: 1542/2017
In the matter between:
MINISTER OF
POLICE First
Appellant
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS Second
Appellant
and
THEMBANI
GQADA Respondent
JUDGMENT
MBENENGE JP
[1]
Foundational to this appeal is an order by the court
a quo
dismissing, with costs, the appellants’ application to be
absolved from the instance. The appeal serves before this Court
with
the leave of the court
a quo
and emanates from an action
instituted by the respondent against the first appellant for
malicious arrest and detention, and for
malicious prosecution against
the appellants.
[2]
In pursuit of his defence to the action, the first appellant pleaded
that the arrest had been lawful and not
malicious, it having been
sanctioned by
section 40(1)
(b)
of
the
Criminal Procedure Act 51 of 1977
;
[1]
the arrest of the respondent had been based on a reasonable suspicion
that the respondent had committed murder, an offence referred
to in
Schedule 1 to the Act. Apropos the malicious detention claim, the
first appellant pleaded that the respondent had been charged
with a
Schedule 5 offence,
[2]
with the
result that the Magistrate’s Court had been obliged to detain
the respondent until he adduced evidence establishing
that releasing
him from custody would be in the interests of justice; the
respondent’s detention subsequent to his first
appearance in
court had been a sequel to the exercise of the court’s
discretion and was thus unassailable.
[3]
Both appellants pleaded that, based on information contained in the
relevant police docket, there was a
prima facie
case on the
strength of which the respondent could be prosecuted.
[4]
At the hearing before the court
a
quo
,
the respondent adduced evidence in support of the claims. Upon
closure of the respondent’s case, the appellants, being of
the
view that the respondent had failed to adduce sufficient evidence
upon which a reasonable court might grant judgment in the
respondent’s favour, applied to be absolved from the
instance,
[3]
which was opposed
by the respondent. On behalf of the appellants, the court
a
quo
was urged ‘to dismiss this application “with costs”’.
The respondent argued to the contrary, urging that
‘the court
absolve the respondents [from the instance] “with cost[s]”’.
From a reading of the record, nothing
more on the issue of costs was
debated. The application was dismissed
[4]
‘with costs’.
[5] The
appellants thereupon applied for leave to appeal,
inter alia
,
on the ground that the court
a quo
‘erred in dismissing
the [a]pplicants’ application to be absolved with a costs order
against them’.
[6] The
application for leave to appeal was granted ‘with costs’.
In its reasons subsequently handed
down, the court
a quo
acknowledged that an order dismissing an application for absolution
from the instance is not appealable because it does not bring
finality to the proceedings, but reasoned that the appellants should
be granted leave to appeal ‘since exceptional circumstances
exist to justify the matter to be considered by a full bench’.
[7] In
arriving at its conclusion, the court
a quo
said:
‘
[5]
Mr
Mnyani
contended that I erred in awarding costs against the respondent in
dismissing their application for absolution and in linking that
award
to an incorrect identification and application of principles
regarding the burden of proof in relation to claims for malicious
arrest.
[6]
In dismissing the application for absolution, I relied on the
submission of the respondent (plaintiff) regarding
his claim for
unlawful and malicious arrest and prosecution against the first
applicant. In the instance of unlawful arrest, the
burden to justify
the arrest shifts to the defendant.
[7]
Despite the argument directed at unlawful and malicious arrest, the
claim the plaintiff instituted was in
respect of malicious arrest. In
such cases, the full onus rests on the plaintiff. Since I accepted
the argument as presented in
resisting the application for
absolution, I erred. The award of costs followed on that basis and
was thus equally granted in error.’
[8]
Uniform
rule 49(4)
requires a notice of appeal to state two things:
(a) the part of the judgment or order appealed against; and (b) the
particular
respect in which the variation of the judgment or order is
sought.
[9]
On the authority of
Leeuw
v First National Bank
,
[5]
this Court is entitled to make findings in relation to ‘any
matter flowing fairly from the record’.
[10] The appellants
did not prosecute the appeal timeously. They now seek leave of this
Court to condone the delay and reinstate
the appeal which lapsed by
operation of law. The application is not opposed, as indeed an
acceptable explanation for the delay
of approximately 32 days has
been tendered. The explanation boils down to this: the transcribers
struggled to obtain records of
the proceedings. They initially
advised the appellants’ attorney of record in one of many
telephone calls that, according
to the Registrar, the recordings were
required by the presiding judge. Eventually, all the records for the
relevant days were secured
and the transcript was produced. Resulting
from this delay, it became impractical to deliver the relevant notice
to prosecute the
appeal without the records, hence such delivery was
made 32 days later.
[11]
Considering the prospects of success and all other relevant
factors,
[6]
it is in the
interests of justice to grant condonation and to reinstate the
appeal.
[12] In my view,
and regard being had to matters flowing fairly from the record, the
two issues that are dispositive of this
appeal are, first, whether
the order of the court dismissing the application for absolution from
the instance is appealable and,
secondly, whether the cost order in
the application for leave to appeal by the court
a quo
was
correct.
[13]
The first issue is capable of speedy resolution. The test for an
appealable judgment or order was succinctly stated by
Harms AJA, in
Zweni
v Minister of Law and Order
of
the Republic of South Africa
,
[7]
as follows:
‘
[F]irst,
the decision must be final in effect and not be susceptible of
alteration by the Court of first instance; second, it must
be
definitive of the rights of the parties; and, third, it must have the
effect of disposing of at least a substantial portion
of the relief
claimed in the main proceedings.’
[14]
Section
16(2)
(a)
(i) of the
Superior Courts Act 10 of 2013
is of
relevance. It provides:
‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
[15]
The test in
Zweni
is easier stated than applied, hence in
Cronshaw
and Another v Coin Security Group (Pty) Ltd
[8]
the question regarding when a decision is ‘interlocutory’,
and thus not appealable, or ‘final’, and thus
appealable
is ‘a question that has vexed the minds of eminent lawyers for
many centuries, and the answer has not always been
the same. The
question is intrinsically difficult, and a decision one way or the
other may produce some unsatisfactory results’.
[9]
[16]
The common law test for appealability has since been denuded of its
somewhat inflexible nature. Unlike before, appealability
no longer
depends largely on whether the order appealed against has final
effect or is dispositive of a substantial portion of
the relief
claimed in the main application. All of this is now subsumed under
the constitutional ‘interest of justice’
threshold.
[10]
[17] In light of
the principles set out above, the question to be posed and answered
is whether an order refusing absolution
from the instance is
appealable.
[18]
As far as I could have ascertained, the position relative to the
refusal of an application for absolution from the instance,
which is
quintessentially interim in nature, has remained unchanged. In the
words of Satchwell J, in
Sparks
v Sparks
,
[11]
‘[a]n order of absolution is ordinarily not decisive of the
issue raised, it decides nothing for or against either party’.
[19]
It is trite that a judgment given and an order made by a court
refusing an application to absolve a defendant from the
instance is
not the final refusal of specific relief. The reason for this is not
far to seek: the refusal amounts to no more than
a direction or
ruling that the case should proceed.
[12]
[20]
In
Liberty
Group Limited t/a Liberty Life v K & D Telemarketing and
Others
[13]
Ledwaba
AJA cited, with approval, the remarks made by Lord De Villiers CJ in
Steytler
v Fitzgerald
[14]
that ‘[the refusal] to grant absolution from the instance on
the application of the defendant is purely interlocutory and
has not
the effect of the definitive sentence, in as much as the final word
in that suit has still to be spoken’.
[21] In the instant
matter, after absolution from the instance had been refused, the
appellants approached the court
a quo
seeking leave to appeal,
which was not the appropriate step to take, because an order refusing
to absolve a litigant from the instance
is a mere ruling with no
practical effect or result.
[22] In terms of
section 16(2)
(a)
(ii) of the
Superior Courts Act, save
under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs. In my view, no exceptional
circumstances justified a departure from the general
rule. For
reasons to be made clearer hereunder, not even the pronouncement on
costs amounted to exceptional circumstances justifying
such
departure.
[23]
The court
a
quo
conflated the incidence of the onus of proof applicable to a claim
for malicious arrest, which is different from that applicable
to a
claim based on unlawful arrest and where the burden to justify the
arrest rests on the arrestor.
[15]
That, however, is a different issue altogether, with no bearing on
whether an order refusing absolution from the instance is appealable.
The impugned order, in so far as it dismisses the application for
absolution from the instance, ought to stand.
[24] On behalf of
the appellants, it was argued that this Court is at large to consider
whether
,
on the facts of this case
,
absolution should nevertheless be granted. I disagree. We are being
invited to consider the merits of a case that has yet to be
finalised
by the court
a quo
. The action deserves of being remitted to
the court
a quo
; it is seized of the matter. At the resumed
hearing, it will still be available to the appellants to elect either
to close their
case and, once more, apply for absolution from the
instance or for judgment in their favour. The appellants could also
lead evidence
before closing their case, whereafter the question will
be whether on all the evidence before it judgment should be granted
for
the respondent or the appellants, or whether absolution from the
instance should be ordered with an appropriate order of costs.
[25] Therefore, the
order of the court
a quo
refusing absolution from the instance
is not appealable.
[26]
The next question is whether costs should have been awarded in favour
of the respondent when absolution from the instance
was refused.
Generally speaking, given that the refusal of absolution is a mere
interlocutory ruling, costs in such an instance
stand over for
determination at the conclusion of the trial. It is trite law that an
order for costs resulting from a wrong exercise
of discretion or
which was influenced by wrong principles and arrived at in a manner
that could not reasonably be made by a court
properly directing
itself to all the relevant facts and principles is liable to be set
aside.
[16]
[27] There is no
doubt that the costs order under discussion, too, was granted
erroneously. From a reading of the judgment
on the application for
leave to appeal, the court
a quo
conceded as much. The same
error was committed in making costs follow the result of a successful
application for leave to appeal.
The parties have agreed, correctly
so in my view, that this Court should exercise its inherent power and
have it set aside.
[28]
The appellants have attained partial success in that the costs order
in the application for absolution from the instance
is demonstrably
liable to be set aside. The respondent has also attained success, to
the extent that the order refusing absolution
from the instance is
extant. Where both parties have achieved partial success in an
appeal, the court may order each party to pay
its own costs of
appeal.
[17]
That is the way to
go in this case.
[29] I, therefore,
grant the following order:
(1)
The appellants’
failure to timeously prosecute the appeal against the order of the
court
a quo
dismissing the appellants’ application for absolution from the
instance is hereby condoned, with no order of costs.
(2)
The appeal is
hereby reinstated.
(3)
The appeal
against the dismissal of the application for absolution from the
instance at the end of the respondent’s case is
dismissed.
(4)
The appeal
against the order directing the appellant to pay the costs of the
application referred to in paragraph 3 of this order
is upheld.
(5)
The costs order
of the court
a
quo
is set
aside and substituted with the following:
‘
The
costs of the application for absolution from the instance, if any,
shall stand over for determination at the conclusion of the
trial.’
(6)
The order of the
court
a quo
granting the application for leave to appeal with costs is varied so
as to reflect that the costs shall be costs in the appeal.
(7)
Each party shall
pay their own costs of the appeal.
(8)
The matter is
remitted to the court
a
quo
for it
to deal with the matter further.
S M MBENENGE
JUDGE PRESIDENT OF THE
HIGH COURT
BLOEM J:
I agree.
G H BLOEM
JUDGE OF THE HIGH
COURT
RONAASEN AJ:
I agree.
O H RONAASEN
ACTING JUDGE OF THE
HIGH COURT
Appearances
Counsel for the
appellants :
M
Mnyani
Instructed by
: The
State Attorney
Gqeberha
C/o
Yokwana Attorneys
Makhanda
Attorney for the
respondent :
M
Pangwa
Instructed
by :
Caps Pangwa and Associates
Mthatha
c/o
Mili Attorneys
Makhanda
Heard
on :
15 May 2023
Delivered
on :
23 May 2023
[1]
The Act.
[2]
Murder.
[3]
The test set out in
Gordon
Lloyd Page and Associates v Rivera and Another
2001 (1) SA 88
(SCA) at 92E-G as formulated in
Claude
Neon Lights (SA) Ltd v Daniele
1976 (4) SA 403
(A) at 409G-H is:
‘
[N]ot
whether the evidence led by the Plaintiff established what would
finally be required to be established, but whether there
is evidence
upon which a Court applying its mind reasonably to such evidence,
could or might (not should, nor ought to) find
for the plaintiff.’
[4]
Much
as I prefer ‘refused’, ‘dismissed’ and
‘refused’ have the same effect. (
Purchase
v Purchase
1960 (3) SA 383
(N) at 385A.
[5]
[2009] ZASCA 161
;
[2010] 2 All SA 329
(SCA);
2010 (3) SA 410
(SCA)
para 5.
[6]
Namely,
t
he
degree of non-compliance (and lateness), the importance of the case,
the respondent’s interest in the judgment’s
finality,
the court’s convenience and avoidance of delays in the
administration of justice (
United
Plant Hire (Pty) Ltd v Hills and Others
1976(1) SA 717 (A) at 720E-G).
[7]
[1992] ZASCA 197
;
1993 (1) SA 523
(A) at 531H-533E; also see
Government
of the Republic of South Africa and Others v Von Abo
[2011] ZASCA 65
;
2011 (5) SA 262
(SCA);
[2011] 3 All SA 261
(SCA)
para 17, where the court held:
‘
It
is fair to say that there is no checklist of requirements. Several
considerations need to be weighed up, including whether
the relief
granted was final in its effect, definitive of the rights of the
parties, disposed of a substantial portion of the
relief claimed,
aspects of convenience, the time at which the issue is considered,
delay, expedience, prejudice, the avoidance
of piecemeal appeals and
the attainment of justice.’
[8]
[1996] ZASCA 38
;
1996 (3) SA 686
(SCA);
[1996] 2 All SA 435
(A) at
690D-E.
[9]
Also see
Minister
of Safety and Security and Another v Hamilton
2001 (3) SA 50
(SCA) para 4, where Cameron JA stated that the
question of which judgments, orders and rulings are appealable ‘has
presented persisting complexity’.
[10]
City of
Tshwane Metropolitan Municipality v Afriforum and Another
[2016] ZACC 19
;
2016 (9) BCLR 1133
(CC);
2016 (6) SA 279
(CC) para
40.
[11]
1998 (4) SA 714
(W) at 721F.
[12]
Levco
Investments v Standard Bank of South Africa Ltd
1983
(4) SA 921
(AD) at 928.
[13]
(2020) ZASCA 41.
[14]
1911 AD 295
at 304.
[15]
In
Newman
v Prinsloo and Another
1973
(1) SA 125
(W) at127H-128A, the distinction between wrongful arrest
and malicious arrest was explained as follows:
‘
Stated
shortly, the distinction is that in wrongful arrest, or false
imprisonment, as it is sometimes called, the act of restraining
the
plaintiff’s freedom is that of the defendant or his agent for
whose actions he is vicariously liable, whereas in malicious
arrest
the interposition of a judicial act, between the act of the
defendant and the apprehension of the plaintiff, makes the
restraint
on the plaintiff's freedom no longer the act of the defendant but
the act of the law. The importance of the distinction
is that, in
the case of wrongful arrest, neither malice nor absence of
justification need be alleged or proved by the plaintiff,
whereas in
the case of malicious arrest it is an essential ingredient of the
plaintiff's cause of action, which must be alleged
and proved by
him, that the defendant procured or instigated the arrest by
invoking the machinery of the law . . ..’
[16]
Compare
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
[2015]
ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR, 199
(CC) para 88.
[17]
Distillers
Corporation (SA) Ltd and Stellenbosch Farmers Winery Group Ltd
1979
(1) SA 532
(T) at 539;
Southern
Brake Co (Pty) Ltd v Assembly and Construction Electrical (Pty) Ltd
1981 (1) SA 572
(N) at 577 (no order as to costs of appeal);
National
Association of Broadcasters v South African Music Performance Rights
Association and Another
[2014] ZASCA 10
;
[2014] 2 All SA 263
(SCA);
2014 (3) SA 525
(SCA)
para 78.