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[2020] ZAGPPHC 31
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National Director of Public Prosecutions and Others v Moloko (32378/2016) [2020] ZAGPPHC 31 (25 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 32378/2016
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Applicant
and
MOLOKO
BEVAN
KABELO
Respondent
JUDGMENT
Sardiwalla
J
Introduction
[1]
The applicant
applied for reasons in terms of Rule 49(1)(c) pursuant to an order
that I handed down on 5 November 2019 dismissing
the application for
leave to appeal. The applicant also seeks condonation of its failure
to bring the application for leave to
appeal in the time period
required. The application for leave to appeal was against part of the
order, appealing against the claim
of malicious prosecution only.
[2]
In
the interest of brevity evidence led before the court a quo will not
be repeated in this judgment in any great detail unless
material to
the conclusions reached.
Background
[3]
On the 10 June 2015, the respondent was
arrested in terms of S40 (1) (b) of the CPA by Constable Abel
Sibanyoni and Sergeant Rebecca
Mathlolokwgane when they received a
complaint that a person was being attacked by a community mob. At the
scene they were informed
that the respondent had allegedly robbed and
attacked the complainant. He was accosted by the complainant’s
husband whilst
he was walking. Notwithstanding his explanations, the
respondent was subsequently arrested on suspicion of armed robbery
only as
there was insufficient evidence to charge him with attempted
rape.
[4]
In
due course the respondent was arraigned and after several appearances
was released on 5 November 2015 on a Section 174 discharge
as the
prosecution failed to prove its case against the plaintiff.
[5] On 7 August 2019 the
respondent
instituted action against the appellants for damages sustained as a
result of what was alleged to be an unlawful arrest
and malicious
prosecution. After hearing the parties,
I
handed down the following order:
1.
The defence of unlawful arrest is dismissed;
2. The defence of malicious prosecution is upheld;
3. The Plaintiff is entitled to such damages as he may
be able to prove he sustained due to the malicious prosecution by
Defendant;
and
4. The Defendants are to pay the costs of this
trial.
[6] On 5 November 2019 the applicant
brought an application for leave to appeal, appealing against my
finding of malicious
prosecution. I dismissed the application with
costs for the reasons provided below.
The
legal framework and evaluation on condonation applications
[7] Condonation is
not a mere formality and is not to be had “merely for the
asking”.
[1]
What is required is an explanation not only of the delay in the
timeous prosecution but also the delay in seeking condonation for
non-compliance.
[2]
The applicant must show that he or she did not willfully
disregard the timeframes provided for in the Rules of Court.
[3]
He
or she is obliged to satisfy the court that there is sufficient or
good cause for excusing them from compliance.
[4]
[8]
Condonation may be refused where there has been a flagrant breach of
the rules especially where no adequate
explanation is proffered.
[5]
The applicant
should
convince the court to exercise its discretion in its favour.
[9] An
application for condonation should be brought without delay and as
soon as possible once an applicant
realizes that it has not complied
with a rule of court.
[6]
And it is not to say where non-compliance was due entirely to the
neglect of the applicant’s attorney, condonation will be
granted.
[7]
[10]
In the
Mulaudzi
case
the Supreme Court of
Appeal set out the factors to take into account when considering an
application for condonation:
“
A full, detailed and
accurate account of the causes of the delay and their effects must be
furnished so as to enable the Court to
understand clearly the reasons
and to assess the responsibility.
[8]
Factors which usually weigh with this court in considering an
application for condonation include the degree of non-compliance,
the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment of the court
below, the
convenience of this court and the avoidance of unnecessary delay in
the administration of justice.
[9]
[11] In the earlier case of
Melane v Santam
Insurance Co Ltd
[10]
the then Appellate Division explained the broad approach to be
adopted in such an enquiry:
“
In deciding whether
sufficient cause has been shown, the basic principle is that the
Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated; they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus of all
the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are
not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s
interest in
finality must not be overlooked.”
[12] The preceding judgment indicates that
these factors should be considered cumulatively so the court can
determine
whether sufficient cause has been shown to grant
condonation. However, for purposes of convenience, they are briefly
set out individually
below.
Degree of lateness
[13]
Judgment
was delivered on 7 August 2019
.
In the current application
, the
application for leave to appeal by the applicant was brought outside
the fifteen (15) day period prescribed in Rule 49(1)(b)
of the
Uniform Rules of Court and was only served on 11 September 2019. This
is nearly a month after the judgment was delivered.
The explanation for the delay
[14] The applicant is
required to provide a “full, detailed and accurate account of
the causes of the delay and
their effects … It must be obvious
that, if the non-compliance is time-related then the date, duration
and extent of any
obstacle on which reliance is placed must be
spelled out.”
[11]
There must be an explanation for the entire period of the delay.
[12]
[15] The applicant explains
that she only became aware of the judgment on 22 August 2019 when a
notice of taxation was delivered
to her office. She subsequently
requested a copy of the judgment. The applicant’s entire cause
is based on the fact that
their attorney did not know that the
judgment was delivered and therefore could not have been reasonably
expected to be aware of
the proceedings against them in order to
challenge same.
[16] I must however respectfully
disagree with the applicants. Even if the version of the applicants’
is to be accepted, which
in my respectful opinion cannot stand to be
true, that they only became aware of the judgment on 22 August 2019
this does not explain
why or if their attorney made an attempt at any
stage to contact the respondent’s attorney’s or the Court
to establish
when the judgment was expected to be delivered. Further
it is a standard practice of this court to notify parties when a
judgment
is to be delivered, requesting that all parties be present
and written copies are given to the parties for further proceedings
that may arise such as an application for leave to appeal.
The applicants have not alleged that her attorney did
not receive a notification and request by this court that the
judgment was
being delivered on 7 August 2019. It is the applicants’
sole version that their inability to challenge any of the actions
against them was due to the negligence of their attorney. It is
apparent from the reasons proffered by the applicants’ that
their explanation is lacking in detail, and does not account for the
delay.
Prejudice to the fourth respondent and his interest
in the finality of the judgment
[17] One must not lose sight of the interest
of the respondent in this matter specifically in the finality of the
judgment.
I am of the view that the respondent has already suffered
undue prejudice as he was first arrested in June 2015 and that he has
not received any substantial redress after 5 years. This court is
aware that the applicants aver that it was always their intention
to
apply for an application for leave to appeal but it cannot be said
that there will be no prejudice suffered by the respondent
by
accepting this application.
Avoidance of unnecessary delay in the administration
of justice
[18] The administration of justice requires
that matters be dealt with efficiently and without delay. Whilst it
is in
the interests of justice that the matter be heard, the court is
also aware that the applicant has shown a flagrant disregard for
the
court rules and processes without any reasonable explanation for the
delay. This itself goes against the interests of justice.
The
applicants allege that it is merely 9 days late in filing this
application, which is in fact incorrect, it is 11 days late
in filing
its applicant.
Prospects of success and importance of the case
[19] A court must assess
the prospects of success unless the other facts, considered
cumulatively, are such that it
makes the application for condonation
“obviously unworthy of consideration”
[13]
.
This would be in instances of flagrant breaches of the rules,
especially where there is no acceptable explanation for the breach.
[20] As already recorded
above, if there are no prospects of success there would be no point
in granting condonation;
a slight delay and a good explanation may
help to compensate for prospects of success which are not strong; and
the importance
of the issue and strong prospects of success may tend
to compensate for a long delay.
[21] The time delay of approximately 11 days
is not so
egregious
(meaning
please) but the explanation is so unsatisfactory or incomplete that
condonation should be refused out of hand. However,
it is in
the interests of justice in the circumstances of this case, to not
refuse condonation without first considering the prospects
of
success, the importance of the case, and whether there is some other
compelling reason for the appeal to be granted, which I
will do so
below.
Leave
to appeal
[22] With that background it is appropriate now
to consider Section
17(1)
of the Superior
Courts Act 10 of
2013,which
provides the test for an appeal 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...”
[23] In considering the provisions of
s 17(1)
(a)
(ii) of the Superior Courts Act which provide
that leave to appeal may be granted, notwithstanding the Court’s
view of the
prospects of success, where there are nonetheless
compelling reasons why an appeal should be heard. There is
established jurisprudence
in this Court that where an appeal has
become moot the Court has a discretion to hear and dispose of it on
its merits.
[24] The merits of the appeal remain vitally
important and will often be decisive. Furthermore, where the purpose
of the
appeal is to raise fresh arguments that have not been
canvassed previously before the Court, consideration must be given to
whether
the interests of justice favour the grant of leave to appeal.
It has frequently been said by the Constitutional Court that it is
undesirable for it as the highest court of appeal in South Africa to
be asked to decide legal issues as a court of both first and
last
instance. That is equally true of this Court. But there is another
consideration. It is that if a point of law emerges from
the
undisputed facts before the court it is undesirable that the case be
determined without considering that point of law. The
reason is that
it may lead to the case being decided on the basis of a legal error
on the part of one of the parties in failing
to identify and raise
the point at an appropriate earlier stage.
[14]
But the court must be satisfied that the point truly emerges on the
papers, that the facts relevant to the legal point have been
fully
canvassed and that no prejudice will be occasioned to the other
parties by permitting the point to be raised and argued.
[15]
[25] The only ground of appeal is against my
finding of malicious prosecution. The applicant submits that I erred
in
finding that the applicant acted without reasonable and probable
cause. That the applicant had an honest belief that the facts
available at the time constituted an offence and that a reasonable
person could have concluded that the respondent was guilty of
an
offence. Further that it was not necessary for weapons to be found or
to have exhibits in a matter in order to secure a conviction.
The
prosecutor was of the opinion that there was a prima facie case based
on her version that the witness testimonies did
not contradict each
other and therefore did not deem it necessary to investigate the
discrepancy relating to what the respondent
was wearing as the
complainant was adamant that the respondent was the perpetrator. The
applicant contended that the fact that
there was an honest belief
that the respondent was guilty should be enough to exclude the
absence of reasonable and probable cause.
The fact that the
respondent was acquitted does not prove that the applicant acted with
malice.
Malicious prosecution
[26]
The requirements
for a successful claim for malicious prosecution as
set
out by the Court in
Minister for Justice
and Constitutional Development v Moleko
[16]
para 8 were restated in
Rudolph
& others v Minister of Safety and
Security
& another
[17]
para 16:
“
(a) that the
defendants set the law in motion (instigated or instituted the
proceedings);
(b) that the
defendants acted without reasonable and probable cause;
(c) that
the defendants acted with malice (or animo injuriandi); and
(d) that the
prosecution has failed.”
See
also
Moaki
v Reckitt & Colman (Africa) Ltd
1968
(3) SA 98
(A);
Relyant Trading
(Pty)
Ltd v
Shongwe
[2007]
1
All SA 375
(SCA).
[27]
It is not in
dispute in this matter that the first applicant instituted the
criminal
proceedings against the respondent and
that those proceedings were terminated in his favour. What the first
applicant is challenging
is this court’s finding that its
decision to prosecute the respondent was without
reasonable cause and malicious. Counsel for the first applicant
submitted that
in order for malice to be established the applicants
must have foreseen the possibility that they were acting wrongfully
but nevertheless
continued to act. Counsel referred the court to the
case of
Minister of Justice and
Constitutional Development v Moleko
[18]
.
[28]
The Court in
Beckenstrater v Rottcher and Theunissen
[19]
set out the
test for
“
absence
of
reasonable and probable cause”
as follows:
“
When it is alleged that a defendant had no
reasonable cause for prosecuting, I understand this to mean that he
did not have such
information as would lead a reasonable man to
conclude that the plaintiff had probably been guilty of the offence
charged; if,
despite his having such information, the defendant is
shown not to have believed in the plaintiff’s guilt, a
subjective element
comes into play and disproves the existence, for
the defendant, of reasonable and probable cause.”
[29]
The test contains both a
subjective and objective element which means
that
there must be both actual belief on the part of the prosecutor
and that that belief must be reasonable in the
circumstances
(J Neethling, JM Potgieter & PJ
Visser
Neethling’s Law of
Personality
(2
ed,
2005) at 176).
[30]
In my view it
is common cause that there was no probable cause to
prosecute
the respondent because the respondent was discharged in terms of
section 174 of the Act. Applying the above test, a reasonable
person
in the position of the applicants would have taken further steps to
investigate the discrepancies in the witness’s
versions
relating to what the respondent was wearing. The applicants’
averment that the complainant was adamant that the
respondent was the
perpetrator cannot be sustained. If this was the only test or measure
to be applied in prosecuting persons who
committed offences then the
prosecution would usurp the role the judiciary in determining the
basis of an accused’s person’s
guilt, not to mention it
would create an opening for the public to abuse the court processes
and many innocent people may be unjustly
imprisoned. This is
definitely a possibility the applicants should have foreseen, applied
their minds to that further investigations
were required before
enrolling the matter. At the very least it should have been a
precautionary measure against any issue of mistaken
identity that may
arise. This is also a possibility that the applicants should have
foreseen. Therefore, the applicants could not
have had an honest
belief that the respondent was guilty of an offence without first
taking those steps and the applicant failed
to take those steps.
Needless to say that respondent was discharged on the basis that the
prosecution failed to prove its case.
The only conclusion that one
can therefore arrive is that prosecution of the respondent was
malicious and without probable cause.
[31]
Accordingly, I
order as follows:
1.
The applicant's
failure to bring the application within the time prescribed by Rule
49(1)(b) is granted.
2.
The application
for leave to appeal is refused.
3.
The applicant is
ordered to pay the costs of the application on an attorney and own
client scale including the cost of counsel.
SARDIWALLA
J
JUDGE OF
THE HIGH COURT
APPEARANCES
Date of
hearing
: 05 NOVEMBER 2019
Date of
judgment
: 25 FEBRUARY 2020
Plaintiff’s
Counsel
: Adv.: M Mthombeni
Plaintiff’s
Attorneys
: Nobela Attorneys
Defendant’s
Counsel
: Adv.: B Nodada
Defendant’s
Attorneys
:
State Attorney
[1]
Uitenhage Transitional Local
Council v South African Revenue Service
2004
(1) SA 292 (SCA)
at
para [6].
[2]
Mulaudzi
v
Old
Mutual Life Assurance Company (South Africa) Limited
2017 (6) SA 90
(SCA) at para [26].
[3]
Shabalala v Goudine Chrome
(Pty) Ltd and Another, unreported, case no: M 342/2016, Northwest
Provincial Division, Hendricks J,
2 November 2017, at para [3].
[4]
Erasmus v Absa Bank Ltd and
Others, unreported, case no: A/982/13, Gauteng Provincial Division,
Pretoria, Full bench per Potteril
J, at para [11].
[5]
Erasmus supra at para [11].
[6]
Mulaudzi supra at para [26].
[7]
See Darries v
Sheriff, Magistrate’s Court, Wynberg and Another
1998 (3) SA
34
(SCA) at 40I—41D.
[8]
Uitenhage
Transitional Local Council supra at para [6].
[9]
At para [26].
[10]
1962 (4) SA 531
(AD) at 532 B—E.
[11]
Uitenhage Transitional Local
Council supra
at para
[4].
[12]
See
Darries
supra
at
41A
[13]
Mulaudzi supra
at para [34]
[14]
Van Rensburg v Van Rensburg &
andere
1963 (1) SA 505
(A) at 510 A-C. The approach has been
endorsed by the Constitutional Court. CUSA v Tao Ying Metal
Industries & others (CCT
40/07)
[2008] ZACC 15
;
2009 (2) SA 204
(CC) para 68.
[15]
Fischer & another v
Ramahlele & others (203/2014)
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA) paras 13 and 14.
[16]
[2008] 3
All
SA 47 (SCA)
[17]
2009
(5)
SA 94 (SCA)
[18]
supra
[19]
1955
(1)
SA 129
(A) at
136A-B