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
>>
2014
>>
[2014] ZAGPPHC 9
|
|
Ackerman and Others v Minister of Safety and Security and Another (2327/2005(b)) [2014] ZAGPPHC 9 (29 January 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 2327/2005(B)
DATE:
29 JANUARY 2014
In
the matter between:
W
A ACKERMAN
………………………………………………………………………
..
1
st
APPLICANT
A
S ACKERMAN
………………………………………………………………………
.
2
nd
APPLICANT
J
E ACKERMAN
………………………………………………………………………
.
3
rd
APPLICANT
M
GEISLER
………………………………………………………………………
.…..
4
TH
APPLICANT
And
MINISTER
OF SAFETY AND SECURITY
……………………………....…………
1
st
RESPONDENT
NATIONAL
COMMISSIONER OF THE POLICE SERVICES
……………....……
.
2
nd
RESPONDENT
JUDGMENT
MAVUNDLA J;
[1]
This is an application
for leave to appeal against the judgment of this court delivered on 4
October 2013, dismissing the claims
of the applicants for their
alleged unlawful arrest and damages suffered as the result.
[2]
It is trite that the
question of granting or refusal of leave to appeal is a matter of the
discretion of the court. The applicants
must persuade the court that
there are reasonable prospect of another court coming to a different
conclusion to that arrived at
by the trial court.
[3]
The grounds upon which
leave to appeal is sought, are fully detailed in the applicants’
notice for leave to appeal. I deem
it not necessary, for purposes of
this judgment, to chronicle these herein. It suffices to state that
the applicants’ chagrin
against the dismissal of their claims
was, inter alia, the trial court’s finding that the
respondents’ witnesses were
credible and accepting their
evidence and finding otherwise as to the applicants. They also
contended that the court misdirected
itself in several respects by,
inter alia, making conclusions or assumptions premised on untendered
evidence and also by concluding
that the restriction of the movement
of 2nd applicant by means of handcuffing of his hands did not amount
to arrest.
[4]
It was common cause that
the issue in this matter was whether there was a reasonable suspicion
on the part of the police to arrest
the applicants. It was conceded
on behalf of the applicants that the reasonable suspicion on the part
of the police was triggered
by the information supplied by the
informant. It was also common cause that the said informant was the
daughter of the first and
second applicants.
[5]
With regard to what
transpired at the applicants’ place, was canvassed through the
evidence of the applicants and the respondents.
The trial court,
being steeped in the atmosphere of the court in which the evidence
was canvassed, made credibility findings and
preferred the evidence
of the respondents to that of the applicants. It is trite that a
court of appeal is reluctant to interfere
with credibility findings
of a trial court. In my view, there are no reasonable prospects that
the credibility findings of the
trial court would be interfered with
on appeal.
[6]
The applicants further
contended that the court misdirected itself in making inferences and
conclusions on evidence which was not
lead. In this regard it was
contended by the applicants that the trial court’s conclusion
that the purposes of the large
quantity of used condoms was to enable
the third applicant to count the number of men customers who were
service by the fourth
applicant, was not supported by any evidence
and therefore amounted to a misdirection.
[7]
It was common cause that
a large quantity of used condoms was found in the bedroom of the
third and fourth applicants. Various explicit
photos of the fourth
applicant as well as material showing prices for certain sexual acts
were also found at the premises and bedroom
of the third and fourth
applicants. The explanation of the applicants regarding the reason
for the presence of the large quantity
of used condoms was rejected
by the court. The court inferred from the aforesaid facts that the
purpose of keeping the large quantity
of used condoms was to enable
the third applicant to count the number of men who were sexually
serviced by the fourth applicant.
In my view, a court is at large to
make inferences from the totality of undisputed facts and the
rejection of the version of any
of the parties. In the circumstances
of this case, I am not persuaded that there was any misdirection in
the inference and conclusion
arrived at by this court. I am also of
the view that there are no reasonable prospects of success of the
appeal on the alleged
ground of misdirection.
[8]
It was further contended
by the applicants that the court misdirected itself in not evaluating
the evidence it would have arrived
at a different conclusion with
regard to the veracity and credibility of all the witnesses and would
have rejected the version
of the respondents and accepted that of the
applicants. The witness whose evidence it is complained of that the
court did not evaluate,
was that of the ADT security officer who came
after the event. The contention that his evidence would have assisted
in corroborating
the evidence of Mrs Fouche loses sight of the fact
that the court evaluated the evidence of the last mentioned witness
and made
credibility findings thereon as such consideration of the
ADT office would not have assisted the applicants in the final
determination
of the matter. In my view, there was no misdirection on
the part of the court nor are there any reasonable prospects of
success
on appeal on this point.
[9]
I am therefore of the
view that, in the total conspectus of this case, and for the reasons
stated herein above, there are no reasonable
prospects of success on
appeal. In the premises in the exercises of my judicial discretion, I
am of the view that leave to appeal
should be refused and the
application be dismissed with costs.
[10]
In
the result the following order is made:
(i)
The
application for leave to appeal is dismissed with costs.
(ii)
The
applicants are jointly and severally, the one paying the other to be
absolved, ordered to pay the costs of the application.
MAVUNDLA
N.M.
JUDGE
OF THE HIGH COURT
DATE OF HEARING: 19 DECEMBER
2013
DATE OF JUDGMENT: 29 JANUARY
2014
APPLICANT’ COUNSEL :
ADV J. HOLLAND-MUTER
Instructed by POTGIETER
PENZHORNN TAUTE INC
RESPONDENTS’COUNSEL:
ADV. K.M. MOKOTEDI
Instructed by STATE ATTORNEYS
(PRETORIA)