About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 419
|
|
Bhima v State (33643.2016) [2016] ZAGPPHC 419 (26 May 2016)
REPUBLIC OF SOUTH AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 33643/2011
DATE: 31 MAY 2016
In the matter
between:
JATHEEN SHIMA
APPLICANT
and
THE STATE
RESPONDENT
J U D G M E N
T
KUBUSHI,J
[1] The applicant (the plaintiff in the trial court), seeks leave
to appeal to the full
bench of this court, alternatively, to the Supreme Court of
Appeal, against the
entire judgment I granted on 1 March 2013, under case number
33643/2011.
[2] The applicant filed
his application for leave to appeal out of time and at the
commencement of the hearing of this matter his
counsel applied for
condonation. The application for condonation was not opposed. I
granted the application.
[3] At the trial, the
applicant was claiming damages against the respondent (the defendant
in the trial court) for being unlawfully
assaulted, ridiculed and
verbally abused by members of the South African Police Service
(SAPS). I was in my judgment not satisfied
that the applicant had on
the preponderance of probabilities shown that he was assaulted by the
members of SAPS. I, in that regard,
found that the applicant failed
to demonstrate a higher probability value than the respondent and
ordered absolution from the instance.
[4] The applicant
is relying on various grounds of appeal in his application for leave
to appeal. The main ground, as is argued
by his counsel before me, is
that I erred in my finding that the applicant did not, on a balance
of probabilities, satisfy me that
he was assaulted by members of
SAPS.
[5] Based on this ground, counsel for the applicant's submission is
that there are prospects of success in the appeal in that another
court may, after evaluation of the facts of the case, come to a
different conclusion.
[6] Despite the
reasons for my findings which have been extensively set out in my
judgment, I am of the view that since I decided
the issues purely on
credibility findings based on the probabilities as I saw them, there
are reasonable prospects that another
court may find differently on
such probabilities and, possibly, find in favour of the respondent
rather than the applicant. Leave
to appeal should on that basis be
granted.
[7] Application
for condonation is granted and leave is accordingly, granted to the
applicant to appeal to the Full Court of this
Division only on the
ground of appeal argued before me.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
'
APPEARANCES:
HEARD ON THE: 26 MAY 2016
DATE
OF JUDGMENT :
31
MAY
2016
APPLICANT'S
COUNSEL:
ADV.
N.F
DE
JAGER
APPLICANT'S
ATTORNEYS:
BARNARD&PATEL
INC
RESPONDENTS'
COUNSEL:
ADV.
M MANALA
RESPONDENTS'
ATTORNEY: STATE
ATTORNEY