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[2019] ZAFSHC 128
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Nkuna and Others v Ekurhuleni Metropolitan Municipality and Others (5039/2018) [2019] ZAFSHC 128 (26 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION, BLOEMFONTEIN
Case
No.:
5039/2018
In
the matter between:
WILLY
THULANI
NKUNA 1
ST
APPLICANT
JABULANI
WILLIAM MKHWANAZI 2
ND
APPLICANT
LUCKY
SIFISO
SIBIYA 3
RD
APPLICANT
and
EKURHULENI
METROPOLITAN MUNICIPALITY 1
ST
RESPONDENT
THE
MINISTER OF
POLICE 2
ND
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS 3
RD
RESPONDENT
JUDGMENT
BY
:
I VAN
RHYN AJ
HEARD
ON: 26 JULY 2019
DELIVERED:
26 JULY 2019
[1]
This is an application for leave to appeal against part of a judgment
delivered by myself on 29 April 2019. The applicants seek
leave to
appeal to the Supreme Court of Appeal, alternatively to the full
bench of this court. During argument, Mr Mene applied
for leave to
appeal to the full bench of this court.
[2]
The applicants are of the opinion that in respect of their claim for
the unlawful arrest and assault, I erred in finding that
their
reliance on the provisions of Section 13(1) (a) of the Prescription
Act
No 68 of 1968
is misplaced.
Furthermore my finding that the special plea by the respondents
pertaining to the prescription of these claims, is
sound and should
succeed, is also under scrutiny.
[3]
In respect of the claim relating to the unlawful detention of the
applicants it is argued that I erred by placing the onus on
the
applicants with regard to a special plea of prescription. The
applicants contend that the finding that, due to a lack of
particulars
regarding any bail application and information placed
before the magistrate by the arresting officers of the first and
second respondents,
and the possibility of holding the arresting
officers liable for detention as discussed in the De Klerk v Minister
of Police
[1]
case, I somehow reversed the onus resting on the respondents. I do
not follow the argument.
[4]
Unlawful arrest and detention infringes the right to bodily freedom,
a concept recognized in the Roman Law and by our courts
as entrenched
in the Bill of Rights s 12(1) (a) and (b) of the Constitution.
Therefore the applicants’ right to vindicate
their
well-established common law remedy such as their delictual claims for
damages for unlawful arrest, detention and assault
perpetrated by all
or some of the respondents, must be protected. In the Constitutional
Court’s judgment in Zealand v Minister
for Justice and
Constitutional Development
[2]
the principle was affirmed that the onus rests upon the Minister to
justify an arrested person’s loss of liberty.
[5]
At this stage the only question I had to consider was whether the
applicants complied with the three criteria in
s 3(4)(b)
of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
i.e. that the debt has not been extinguished by
prescription (at issue in this case); that good cause exists for the
creditor’s
failure; and that the organ of state has not been
unduly prejudiced. The court has a discretion to condone the
non-compliance of
the notice in terms of the provisions of
s 3
of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
.
[6]
The reasons for the costs order against the applicants are further
grounds of appeal.
[7]
On behalf of the applicants it is contended that there is a
reasonable possibility that another court may interpret the facts
and
legal principles pertaining to the application for condonation and
the question and finding as to the costs differently and
that the
appeal would thus have a reasonable prospect of success.
[8]
I agree with the applicants that such a possibility does exist.
[9]
Leave is therefore granted to the applicants to appeal to the full
Bench of this court. Costs to be costs in the appeal.
It
is so ordered.
______________
I.
VAN RHYN, AJ
On
behalf of Applicant: Adv B.S. Mene
Instructed
by
SMO
Seobe Attorneys
BLOEMFONTEIN
On
behalf of 1
st
Respondent: Adv L.J. Leeuw
M
Neale Attorneys
c/o
Rossouws Attorneys
BLOEMFONTEIN
On
behalf of 2
nd
Respondent: Adv L.R. Bomela
State
Attorney
BLOEMFONTEIN
[1]
(329/17)
[2018] ZASCA 45
(28 March 2018)
[2]
Zealand v
Minister for Justice and Constitutional Development
[2008] ZACC 3
;
2008 (4) SA 458.