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[2022] ZAGPJHC 480
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Minister of Police and Another v Khele (41848/2018) [2022] ZAGPJHC 480 (25 July 2022)
IN
THE HIGH COURT OF SOUTH-AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: 41848/2018
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES / NO
REVISED.
25/07/2022
IN
THE MATTER BETWEEN:
MINISTER
OF
POLICE
FIRST APPELLANT /
DEFENDANT
NATIONAL
DIRECTOR OF
SECOND APPELLANT /
PUBLIC
PROSECUTION
DEFENDANT
AND
LUNGISANI
KHELE
RESPONDENT /
PLAINTIFF
JUDGMENT
Strijdom
AJ
1.
In this matter the applicants seek leave to
appeal to the Full Court of the High Court, Gauteng Local Division,
against the whole
of the judgement granted by me on 1 June 2022, in
favour of the respondent/plaintiff with costs against the 1
st
and 2
nd
applicants/defendants.
2.
This application is opposed by the
respondent/plaintiff.
3.
In broad terms the following are the major
grounds of appeal:
IN
RE ARREST
3.1.
The court should have found that the arresting
officer Sgt Sibeko read the police docket in which the other two
female suspects
were arrested for possession of suspected stolen
goods and that the respondent/plaintiff was implicated on the crime
of theft.
3.2.
The court should have found that the arresting
officer based his suspicion on reasonable grounds and that the arrest
was lawful
and justified.
3.3.
The court should have found that the arresting
officer exercised his discretion rationally within the ambit of
section 40(1)(b)
of the CPA 51 of 1977.
IN
RE DETENTION
3.4.
The court should have found that the arrest was
lawful and since the arrest was lawful the subsequent detention was
also lawful.
IN
RE MALICIOUS PROSECUTION
3.5.
The court should have found based on the Police
docket, the arrest statement and evidence of Sgt Sibeko there was
reasonable cause
to prosecute the respondent/plaintiff.
IN
RE QUANTUM ARREST AND DETENTION
3.6.
The court should have found that the award of
R150 000.00 for arrest is excessive and shockingly high.
3.7.
The court should have found that the award of
R150 000.00 for detention is shockingly high.
IN
RE QUANTUM MALICIOUS PROSECUTION
3.8.
The court should have found that the amount of
R100 000.00 for malicious prosecution is excessive and
shockingly high.
4.
Section 17(1)
of the
Superior Courts Act, 10 of
2013
provides that:
‘
LEAVE TO APPEAL:
17(1)
Leave to appeal may only be given where the judge of judges concerned
are
of the opinion that –
(a)(i) the appeal would
have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgements
on the matter under consideration;
(b) the
decision sought on appeal does not fall within the ambit of section
(16)(2)(a); and
(c) where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead
to a just and prompt resolution of
the real issues between the parties.’
5.
What the test of reasonable prospects of success
postulates is a dispassionate decision based on the facts and the law
and that
the Court of Appeal would reasonably arrive at a conclusion
different to that of the trial court.
6.
In order to succeed therefore the applicant must
convince the court on proper grounds that he has prospects of success
on appeal
and that these prospects are not remote but have a
realistic chance of succeeding.
7.
More is required to be established than that
there is a mere possibility of success, that the case is arguable on
appeal or that
the case cannot be categorised as hopeless.
8.
In respect of all the grounds of appeal raised,
my judgement dealt with the facts and law as presented by the parties
and how the
court arrived at each conclusion on the contentions
raised by the parties.
9.
On all these issues when the facts and the law
were examined there is in my view no sound rational basis for the
conclusion that
there are prospects of success on appeal.
10.
In the result the following order is made:
10.1.
Leave to appeal is dismissed with costs.
STRIJDOM
JJ
ACTING
JUDGE OF THE HIGH COURT
OF
SOUTH AFRICA
GAUTENG,
LOCAL DIVISION
JOHANNESBURG
DATE
OF APPLICATION:
9 JUNE 2022
DATE
OF JUDGEMENT:
25 JULY 2022
ATTORNEYS
OF APPLICANTS: STATE ATTORNEY, JOHANNESBURG
ATTORNEYS
FOR RESPONDENT: KUBAYI ATTORNEYS, KEMPTON PARK