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[2022] ZAGPJHC 577
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Nkosi v The Regional Magistrate,Boksburg and Another (17383/2019) [2022] ZAGPJHC 577 (19 August 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
17383/2019
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED. No
In the matter
between:
NKOSI
SIBUSISO
ISAAC
Applicant
and
THE
REGIONAL MAGISTRATE, BOKSBURG
1
st
Respondent
THE
NAATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
2
nd
Respondent
JUDGMENT ON
LEAVE TO APPEAL
MALUNGANA AJ
[1]
On 15 August
2022, the applicant brought an application for leave to
appeal to the Supreme Court of Appeal (SCA) alternatively to the Full
Court
of this division, against the order/judgment of this Court,
which I handed down on 07 April 2021.The facts of the case are
comprehensively
set out in the judgment of the 7
th
April
2022, and same need not repeated in any detail herein.
[2]
Section 17 (1) of the Superior Court Act 10 of 2013 (‘the
Act’) provides,
in relevant part, as follows:
“
17. (1)
Leave to appeal may only be given where the judge or 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
judgments on the matter under consideration;
(b)
…
(c)
….”
[3]
It follows from the provision in s 17 (1) (a)(i) of the Act that
leave to appeal may
only be granted where the judges concerned are of
the opinion that the appeal would have reasonable prospects of
success. Various
courts have considered this provision, which
essentially entails that there exists a reasonable prospect that
another court would
arrive at the different finding and order from
that rendered in the judgment against which the appeal is being
sought.
[4]
Upon due consideration of the issues raised in the grounds for leave
to appeal, and the
arguments presented by counsel for the parties at
the hearing, and having dispassionately considered the judgment, we
are of the
view that the appeal would have a reasonable prospect of
success.
[5]
The applicant is presently on bail, pending the outcome of the
application for leave
to appeal. The applicant seeks an extension of
his bail pending the outcome of the appeal process. The respondent
does not oppose
such application. There are no considerations that
militate against the grant of an extension of bail.
[6]
In the premises, the following order is made:
ORDER
1.
Leave to appeal to the Full Court of this Division is granted.
2.
The applicant’s bail is extended pending the outcome of the
appeal to the Full Court
in the Gauteng Division, held at
Johannesburg.
MALUNGANA PH
Acting Judge of the High Court,
JOHANNESBURG
I AGREE, and IT IS SO ORDERED.
MAIER-FRAWLEY J
Judge of the High Court of South
Africa, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
Caselines and release to SAFLII. The date and time for hand-down is
deemed to be have been at 10h00 on 19 August 2022.
Date
of hearing: 15 August 2022
Date
of Judgment: 19 August 2022
APPEARANCES:
Counsel for the
Appellant:
Advocate EA GUARNERI
Instructed
by:
Legal Aid South Africa
Counsel for the Second Respondent:
Advocate C E
Britz
Instructed by:
Office of the National Director of Public
Prosecutions