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2021
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[2021] ZAGPPHC 114
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Malgas and Others v Minister of Justice and Correctional Services (73418/16) [2021] ZAGPPHC 114 (24 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 73418/16
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:24/02/2021
In
the matter between:
PETER
THEMBEKILE MALGAS
First Plaintiff
ALFRED
DISCO BIYELA
Second Plaintiff
BOSWELL
JOHN MHLONGO
Third Plaintiff
and
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
Defendant
LEAVE
TO APPEAL JUDGMENT
BAQWA
J:
INTRODUCTION
1.
Section 17 (1) of the Supreme Courts Act No. 10 of 2013 (the
Act)
provides:
“
Leave
to appeal may only be given where the judges concerned are of the
opinion that:
-
(a)
(i) the appeal would have
a
reasonable
prospect
of success; or
(ii)
there is some compelling reason why the appeal should be heard,
including conflicting judgments on the matter under
consideration”
2.
In
the matter of
Alves
v
LOM
Business
Solutions
(Pty)
Ltd
and
Another (GSJ)
[2011]
ZAGP JHC:
2012
91)
SA 399
(GSJ):
[2011] 4
ALL
SA
490
(par
1)
Willis J (as he then was) said the following:
“
[1]
The plaintiff has claimed damages by way of action. He has alleged
that the
defendants were negligent in preparing the
transcript for his appeal hearing resulting in his having to spend
a
further, unnecessary period of incarceration. According to
counsel and the attorneys for the parties this is, as far as they
have
been able
to ascertain, the first case of its
kind. I too
am
unaware of any claim of such
a
nature having been brought before. The second defendant
is
the Minister of Justice and Constitutional
Development who has been nominally cited as the
member
of the National Executive with overall responsibility for the
administration
of justice in this country.
”
3
.
The
paucity of legal authority regarding the legal issues raised in this
case and the comments of Willis J in the Alves decision
quoted above,
are such that another Court might view such issues differently from
this Court and on that basis I have come to the
conclusion below.
4. Having
listened to Counsel for both parties and having considered the
submissions in their heads of argument I am satisfied that the
application for leave has a reasonable prospect of success.
ORDER
In
the circumstances I make the following order:
4.1
Leave to appeal is granted to the Full Court of the Gauteng
High
Court.
4.2
Costs to be costs in the appeal.
SELBY
BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
Matter
Heard On
: 23 February 2021
Judgment
Reserved On
: 23
February 2021
Judgment
Delivered On
:
24 February 2021
APPEARANCES:
Counsel
for the Plaintiffs
:
Adv. Adv D Thaldar
Attorneys
for the Plaintiffs
:
Gildenhuys Malatji Inc.
Counsel
for the Defendant :
Adv Shakoane [SC]
Attorneys
for the Defendant : The
State Attorney