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[2014] ZAGPPHC 326
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Chauke v Minister of Safety and Security (45779/2009) [2014] ZAGPPHC 326 (23 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case no
45779/2009
Date: 23 May 2014
In the matter
between:
MZAMANE JIM
CHAUKE
.....................................................................................................
APPLICANT
and
MINISTER OF
SAFETY AND
SECURITY
......................................................................
RESPONDENT
Date of Ruling:
23 May 2014
RULING:
APPLICATION FOR LEAVE TO APPEAL
A VAN NIEKERK AJ
[1] This is an
application for leave to appeal against a judgment delivered by this
court on 28 August 2013, when the court dismissed,
with costs, three
claims by the plaintiff against the defendants. The claims related
respectively to the alleged unlawful arrest
of the applicant, and the
loss of income, stock and cash.
[2] The
application for leave to appeal was filed five days late. The
applicant has sought condonation by way
of an application filed on 14
May 2014, the day before the application was scheduled to be heard
(The application was set down
ultimately to be heard on 20 May 2104.)
In response to the application, the defendants field a notice in
terms of Rule 30 A, contending
that the application for condonation
was served on the respondent only on 19 May 2014 and that the
application had not been set
down for hearing. In so far as the
merits of the application for condonation are concerned, the
applicant’s attorney avers
that after receipt of the judgment,
he sought instructions from the applicant who at that stage had not
settled counsel’s
outstanding account. A letter to that effect
was addressed to the applicant on 19 September 2013. Instructions
were thereafter
forthcoming, and the application for leave to appeal
was filed on 27 September 2013, being five days late.
[3]
I do not intend to deal at any length with the respondent’s
Rule 30 A notice. The history of this matter post the delivery
of
judgment appears to be unclear. It was apparently set down for
hearing on 13 November 2013 before the Deputy Judge President.
On
that date, the application was postponed
sine
die,
and
thereafter enrolled, as I have indicated, on 20 May 2014. (I was
advised of the existence of the application only during April
2014.)
The applicant could proffer no explanation for the service of the
application for condonation only on 19 May 2014. However,
the merits
of the application were fully canvassed during argument, and I do not
intend to further delay this matter by upholding
technical points,
only for the sake of technicality. In my view, the period of the
delay is not significant, and the explanation
for the delay not
unreasonable. On this basis, condonation for the late filing of the
main application stands to be granted.
[4] The facts of the
applicant’s claim are set out in the judgment, and I do not
intend to repeat them here. In essence, the
applicant contends that
in so far as the court found that the respondent had established a
reasonable suspicion that the applicant
was guilty of an offence, the
court erred to the extent that Zulu testified that a member of the
liquor board ought to have accompanied
the police on a planned raid,
and that the information to confirm the truthfulness of the suspicion
was readily available. This
submission overlooks the evidence of
Nkahle, the arresting officer, who testified that both he and Baloyi,
the officer who accompanied
him, had been appointed as inspectors in
terms of the Liquor Act and had received training in that regard. It
also overlooks the
evidence to the effect that the basis of the
suspicion formed by Baloyi was the applicant’s inability to
explain how he had
acquired the permit, and the applicant’s
inexplicable failure to put the explanation that he says he gave to
Nkahle in cross-examination.
[5]
In so far as the applicant submits that the court erred by failing to
establish that the arresting officer exercised a proper
discretion in
addition after forming a reasonable suspicion that the permit
proffered by the applicant was false, this submission
overlooks the
specific finding made in paragraph 22 of the judgment that Nkahle has
exercised his discretion rationally. Whether
or not Nkahle had done
so is a matter to be determined from the evidence - in essence, the
court is not entitled to interfere unless
the decision fell outside
of the band of decisions to which a reasonable decision-maker could
come on the available material. As
Minister
of Safety and Security v Sekhoto
2011
(5) SA 367
(SCA) makes clear, the exercise of the discretion may not
be
mala fide,
or
from ulterior motives, or in circumstances where the decision maker
has failed to apply his or her mind to the matter. The evidence
presented on behalf of the respondent in the present instance clearly
satisfied these requirements.
[6] I did not
understand applicant’s counsel to seek to extend this
application to the court's findings regarding the applicant’s
claims for losses he alleges to have suffered consequent on his
arrest. Submissions were made in the present instance without the
benefit of a transcribed record. The record will confirm the poor
quality of the applicant’s evidence, which was vague and
often
riddled with contradictions. The applicant’s failure to call
his wife, who was present in court and a key witness to
his version
of events, is similarly inexplicable.
[7] For these
reasons, I am not persuaded that another court might reasonably come
to a different conclusion. The application stands
to be dismissed.
I make the following
order:
1. Leave to appeal
is refused, with costs.
ANDRE VAN NIEKERK
ACTING JUDGE OF
THE HIGH COURT