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[2022] ZAGPJHC 899
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Minister of Police v Simon (02554/2014) [2022] ZAGPJHC 899 (7 November 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 02554/2014
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: NO
DATE: 07.11.2022
In
the matter between:
MINISTER
OF
POLICE
Applicant
and
SIBEKO
SIPHO
SIMON
Respondent
JUDGMENT
(Leave to Appeal
Application)
Delivered:
By transmission to the parties via email and
uploading onto Case Lines the Judgment is deemed to be delivered. The
date for hand-down
is deemed to be 02 November 2022.
SENYATSI J:
[1] On 19
November 2021 I handed down judgment in favour of the respondent, Mr
Sipho Simon Sibeko for wrongful arrest
and ordered the applicant,
Minister of Police to pay Mr Sibeko R550 000 in damages.
[2] The
Minister filed leave to appeal the
quantum
of the award made.
[3] The
judgment has been and criticised by the applicant and leave to appeal
has been noted based on the following
grounds: -
3.1. The
court erred when it held that the detention of Mr Sibeko at the
hospital was for three weeks without considering
the circumstances
that resulted in the three weeks stay in hospital;
3.2. The
court erred by his exercising its discretion rationally and
objectively when it ordered the Minister to pay
Mr Sibeko R550 000;
3.3. The
court failed to consider the recent judgment from the
Constitutional
Court in Mahlangu & Another v. Minister of Police
2021 (2)
SACR 595
(CC) which decision was handed down on 14 May 2021;
3.4. The
court erred in not assessing the award using any comparable decisions
as a guide which is a well-established
principle, courts to award a
fair award since the Minister operates on public funds which should
be accounted for at all reasonable
times;
3.5. The court
erred when it did not consider relevant factors regard being had to
the detention of Mr Sibeko. The applicant
contends that the
respondent was coached right in front of court and that the judgment
is silent of the respondent being coached;
3.6 The
court erred when it considered that Mr Sibeko was psychologically
affected when there was no evidence from
any expert in this regard;
3.7 The
court erred when it did not objectively consider the evidence of Mr
Sibeko to a single witness not collaborated
by any other witness or
documentary evidence to support his case;
[4] The issue
to be determined is whether the applicant for leave to appeal has
made out a case for the court to consider
the application favourably.
[5] Leave to
appeal is evaluated in terms of
section 17(1)
of the
Superior Courts’
Act No10 of 2013
which provides as follows:
“
(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)
the decision sought to 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.”
[6]
Our courts have had the opportunity to interpret the meaning of
section 17
of the Act in so far as it relates to the test to be
applied when considering leave to appeal. In
MEC
Health, Eastern Cape v Mkhita & Another
[1]
the court held as follows:-
“
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There
must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[7] In this
case, there has not been any challenge to the treatment meted out by
the police to Mr Sibeko when he was
chained to his hospital bed for a
period of three weeks. It is irrelevant whether his hospitalisation
had anything to do with the
members of the South African Police
Services. The respondent’s evidence on how his privacy was
violated when he had to shower
with his legs chained was serious
enough to warrant it being addressed however it remained unchallenged
by the applicant
[8] In
regards to the discretion exercised to grant the award as the court
did, I hold a view that the discretion
was judicially
exercised.
[9]
Consequently, I am of the view that the grounds raised in the
application do not meet the requirements as prescribed
in
section 17
(1) and would not succeed in appeal. Therefore, the application for
leave to appeal must fail.
ORDER
[10] The following order
is made:
(a)
Application for leave to appeal is refused
with costs.
SENYATSI ML
Judge of the High
Court of South Africa
Gauteng Local
Division, Johannesburg
REPRESENTATION
Judgment reserved:
22
August 2022
Date of Judgment:
7
November 2022
Appellant’s
Counsel: Adv.
N Nharmuravate
Instructed by:
The
State Attorney
Respondent’s
Counsel: Adv. T
Tshabalala
Instructed by:
Houghton
Harper Inc.
[1]
(1221/15)
[2016] ZASCA 176(25 November 2016)
at para 17