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[2019] ZAECMHC 38
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Sigonya v Minister of Police (342/2017) [2019] ZAECMHC 38 (11 July 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO.: 342/2017
In
the matter between:
KOKELA
SIVUYISE YANGA
SIGONYA
Applicant
And
MINISTER OF
POLICE
Respondent
JUDGMENT
JOLWANA J
[1] On 22 May 2019 I
dismissed plaintiff’s claim for damages claimed in respect of
an alleged unlawful arrest and detention.
The applicant now
applies for leave to appeal against the whole of my judgment.
[2] In the main there are
two grounds for the application for leave to appeal. The first
one is that I erred in accepting
the evidence of the defendant’s
witness, sergeant Baca because in her evidence, so the submission
goes, she had contradicted
her own statement which she had made
shortly after the arrest. I do not intend to deal with any of
the alleged contradictions
in her evidence. I am of the view
that doing so would serve no purpose as I would be regurgitating the
reasons for my judgment.
I must point out that despite the
alleged contradictions, perceived or real, there was a rational basis
for the arrest and detention.
[3] As I understand the
legal position a witness is not expected to give evidence that is
beyond reproach. In
S v Sauls
1981(3) SA 172 (AD) at 180
E-F Diemot JA made the following salutary remarks with which I
respectfully agree:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness.
The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether, despite the fact that there are short comings or defects
or contradictions in the testimony he is satisfied that the
truth has
been told.”
[4] The second ground of
the application for leave to appeal is that the defendant’s
plea was a bare denial and as such defendant’s
evidence should
have been rejected as it was not pleaded. The relevant portion
of the defendant’s plea is couched as
follows:
“
2
Ad paragraphs 3, 4 and 5:
Save admitting the arrest
and detention for possession and/or dealing in dagga, the remainder
of the contents of these paragraphs
is denied as if specifically
traversed the plaintiff is put to proof thereof”.
[5] This ground of appeal
is amplified in the applicant’s heads of argument in which it
is submitted that
section 40(1)(h)
of the
Criminal Procedure Act 51
of 1977
should have been specifically pleaded. Besides the fact
that no authority is referred to by the applicant in his heads of
argument for the submission that the law which, in this case, is
section 40(1)(h)
of the
Criminal Procedure Act should
have been
pleaded, I have two other fundamental difficulties. The first
one is that I understand
Rule 22
to be requiring facts, not law, to
be pleaded. While the inelegance of the drafting of the plea is
evident, it cannot be
denied that the facts on which the plaintiff
was arrested as would enable the plaintiff to know what the
defendant’s defence
is, are pleaded. Those facts are that
the plaintiff was arrested for possession and/or dealing in dagga.
The second
difficulty is that Rule 22(5) of the Uniform Rules of
Court provides that:
“
If
the defendant fails to comply with any of the provisions of subrules
(2) and (3), such plea shall be deemed to be an irregular
step and
the other party shall be entitled to act in accordance with rule 30.”
[6] It is so that the
plaintiff did not take any action envisaged in Rule 30 of the Uniform
Rules of Court during pleading stage.
His counsel also never
raised any issue even during the opening address about the difficulty
the plaintiff had with the defendant’s
plea.
[7] Despite the
inelegance of the plea as it is currently formulated, on the facts of
this case, I do not think that it should have
led to the defendant
not being allowed to give the evidence that the defendant did.
I cannot see how the plaintiff was or
could have been prejudiced
during trial. In fact no objection was raised on behalf of the
plaintiff when sergeant Baca testified
during trial. She
testified and was cross-examined in the normal way.
[8] The test for an
application for leave to appeal is trite and was recently restated in
by the full court in
Nceba Tyhulu v The State
(1173)
[2019]
ZASCA 51
(1 April 2019) as follows:
“
[5]
The issue to be determined at this stage is whether the appeal should
have been granted by the High Court and not the appeal
itself.
As a result, the test to be applied is whether there is a reasonable
prospect of success in the envisaged appeal
rather than whether the
appeal ought to succeed. In order to succeed, therefore, the
appellant must convince this court on
proper grounds that he has
prospects of success on appeal and that those prospects are not
remote but have a realistic chance of
succeeding.”
[9] During argument I was
referred to the case of
City of Tshwane Metropolitan Municipality
v Afriforum and Another
2016 (6) SA 279
CC para 83 in which the
Constitutional Court said:
“
It
is by now settled law that the operative standard for determining
whether leave to appeal should be granted is “the interests
of
justice”. That the order is temporary is not in itself
determinative of whether the interests of justice call for
leave to
appeal to be granted. A number of cases in this Court have
enumerated a collection of non-exclusive factors that
need to be
considered when determining the interests of justice.”
[10] In
City of
Tshwane Metropolitan Municipality v Afriforum
the Constitutional
Court was not changing and did not change the legal position of
determining whether leave to appeal in general
should be granted from
what we know as aptly articulated in
MEC for Health Eastern Cape v
Mkhitha
(1221/2015)
[2016] ZASCA 176
(25 November 2016) in which
Scheepers AJA summarized the threshold for the granting of a leave to
appeal. The learned Acting
Judge of Appeal said in
Mkhitha
:
“
[16]
Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is
a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts
Act 10 of 2013
makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have reasonable prospect of success; or there is some other
compelling reason why it should be heard.
[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.”
[11] The above test and
standard remains the legal position on an application for leave to
appeal. In order to determine what
is in the interests of
justice in each case the same standard and criteria as articulated in
MEC for Health v Mkhitha
is applied. To the extent
that it was submitted on behalf of the applicant, that there is a new
standard based on
City of Tshwane v Afriforum
, I do not think
so. The interests of justice will always and has always been
paramount, in general. What the Constitutional
Court did was to
clarify that it can no longer be the determining factor whether the
order is temporary or final. The interests
of justice will be
and are the operative standard even if the order appealed against is
temporary.
[12] On the facts of this
matter I am not convinced that the applicant has realistic prospects
of success on appeal. Therefore
the application for leave to
appeal must fail.
[13] In the result the
following order will issue:
1. The
application for leave to appeal is dismissed with costs.
__________________
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Applicant: S.M. LUZIPO
Instructed by: M.K.
MAJAVU & ASSOCIATES
MTHATHA
Counsel for Respondent:
J.J. BEMBE
Instructed by: STATE
ATTORNEY
MTHATHA
HEARD ON: 10 JULY 2019
DELIVERED ON: 11 JULY
2019