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2024
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[2024] ZAGPPHC 225
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Radebe v Minister of Police and Another (4843/2021) [2024] ZAGPPHC 225 (11 March 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case No:
4843/2021
Reportable: No
Of interest to other
Judges: No
Revised: No
SIGNATURE
Date: 11/03/2024
In the matter between:
ZAKHELE
RADEBE
Plaintiff
and
THE MINISTER OF
POLICE
1
ST
Defendant
THE PROVINCIAL
COMMISSIONER:
2
ND
Defendant
SOUTH AFRICAN POLICE
SERVICE
JUDGEMENT
– APPLICATION FOR LEAVE TO APPEAL
MOOKI
J
1
The
Court dismissed the plaintiff’s claim that he was arrested
unlawfully. The plaintiff seeks leave to appeal. The grounds
for the
application are in relation to findings by the Court on the law and
findings on the facts.
2
The
plaintiff contends that the Court erred on the law in the following
respects:
2.1
That
the Court shifted the onus of justifying the unlawful arrest on the
plaintiff.
2.2
The Court applied a subjective test, as opposed to an objective test,
in determining the lawfulness of the
arrest.
2.3
The Court failed to satisfy itself that the arresting officer had
reasonable cause to effect the arrest,
in that the arresting officer
must be possessed of objective evidence that warrants the arrest.
3
That the Court erred on the facts in the
following respects:
3.1
That Sergeant Nxumalo, accompanied by Mankge and warrant officer
Mdlalose, went to hospital where Sergeant
Nxumalo was told Gumede had
been admitted.
3.2
There was a reasonable suspicion that the plaintiff had committed the
crime of attempted murder based on:
3.2.1
Mankge, an eyewitness, having identified the plaintiff at the police
station as the person
who stabbed Gumede on 27 October 2018,
3.2.2
Police officers having gone to hospital to verify information given
to them by the eyewitness,
and
3.2.3
Sergeant Nxumalo having confirmed to herself, at the hospital, that
Gumede was injured on the
stomach and that Gumede’s wound had
been dressed.
3.3
The plaintiff was asked for his side of the story before his arrest
and that Sergeant Nxumalo gave undisputed
evidence that warrant
officer Mdlalose was the officer who had exchanges with the
plaintiff.
3.4
The arrest was lawful in that the police had established proper
grounds for their suspicion leading to the
arrest.
4
The plaintiff sought to re-argue the merits
of the case when moving the application for leave to appeal.
This is illustrated
by submissions that:
4.1
The plaintiff was not arrested at the time as mentioned during the
evidence, with reference various documents
in the record.
4.2
The visit by Sergeant Nxumalo and others to the hospital was
irrelevant because the visit occurred after
the plaintiff had been
arrested.
4.3
The Court relied on hearsay evidence, including that Warrant Officer
Mdlalose did not give evidence.
4.4
Warrant Officer Mdlalose, as the officer who arrested the plaintiff,
was the only person who could have given
evidence from which the
Court was to determine whether the police had a reasonable basis to
arrest the plaintiff.
5
A litigant is not permitted to reopen a
case in an application for leave to appeal. The case advanced
during submissions is
at odds, in a number of respects, with the
specified grounds upon which leave to appeal is sought. For
example, it is not
a ground of appeal that:
5.1
The plaintiff was arrested before Sergeant Nxumalo and others went to
the hospital where Gumede had been
admitted.
5.2
Warrant officer Mdlalose was the only officer who could have given
evidence for purposes of determining whether
the arrest was lawful.
5.3
The defendants relied on hearsay evidence.
6
The
bases for the Court’s conclusions are detailed in the
judgement. The Court did not oblige the plaintiff to justify his
arrest. The Court considered evidence advanced on behalf of the
defendants as to why and how the plaintiff got to be arrested.
The
Court found the justification to accord with the law.
7
I
am not persuaded that the Court erred in relation to contentions on
the facts as set-out out in the application. The bases for
the
findings and conclusions by the Court are as detailed in the
judgement.
8
Leave
to appeal may only be granted where the judge is of the view that the
appeal would have a reasonable prospect of success,
or where there is
some other compelling reason.
[1]
The plaintiff has not met the requirements.
9
I make the following order:
9.1
The application is dismissed.
9.2
The plaintiff is ordered to pay costs.
Omphemetse Mooki
Judge of the High Court
Heard on: 31 January 2024
Delivered on: 11 March
2024
For the Plaintiff:
K Mvubu, together with
A Bleki
Instructed by:
Yonela Bodlani
Attorneys
For the Defendants:
T Tshitereke
Instructed by:
The State Attorney,
Pretoria
[1]
Section
17 (1) (a)(i) and(ii) of the
Superior Courts Act 10 of 2013