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 339
|
|
Cau v Minister of Police and Others (32962/2011) [2014] ZAGPPHC 339 (9 June 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 32962/11
DATE:
9 JUNE 2014
In
the matter between:
C.P.
CAU
……………………………………………………………………........…….....
APPLICANT
And
THE
MINISTER OF POLICE
…………………………............…………….
FIRST
RESPONDENT
COMMISSIONER
OF POLICE
………………………………….............
SECOND
RESPONDENT
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
………………………………………………..............…..
THIRD
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
…………………………………………...............……..
FOURTH
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
This Court on the 23 May 2014 dismissed the applicant’s
application for condonation of the late delivery of his notice of
intended proceedings against the respondents as required in terms of
the Institution of Legal Proceedings against Certain Organs
of State
Act 40 of 2002.
[2]
The applicant now seeks leave to appeal to the Supreme Court
of Appeal alternatively the Full Bench of this Division against the
whole of the judgment and order referred to herein above.
[3]
The grounds upon which leave to appeal is sought are that this
court erred by failing:
3.1
to take into consideration the extremely good prospects of
success on the merits of the matter, bearing in mind that the
applicant
was incarcerated for a period of 47 months and then
released after all the charges were withdrawn against him. The
respondents
did not oppose the application for condonation;
3.2
to take into consideration that the period that the applicant
was out of time with his letter of demand in terms of Act 40 of 2002
was not inordinate;
3.3
to
consider the matter in accordance with the approach advocated in
Melane v Santam Insurance Co Ltd.
[1]
3.4
to hold that the inordinate
delay transpired before the application for condonation was launched
when this is not a criterion.
3.5
to consider that in terms of the
maxim lex non cogit ad impossibilia, prescription had not run against
the applicant in respect
of the arrest for so long as he was being
detained. The applicant was released.
[4]
It was submitted on behalf of the applicant, inter alia, that
in respect of the third and fourth respondents, the court should have
granted condonation because there were no opposing papers filed on
their behalf. It was further submitted that the applicant’s
claim against these two respondents had not prescribed. It was
submitted that the applicant’s cause of claim is premised
on
the failure of the prosecution to properly apply its mind and
withdrew the charges against the applicant much earlier than was
done. In support of this contention reliance was made on the matter
of Minister of Police v Du Plessis
2014 (1) SACR 217
(SCA) at 225.
[5]
It is common cause that the applicant was arrested on 14
th
April 2005. He was in custody since then, and appeared at court on
several occasions until when his case was withdrawn on the 9
the
March 2007. In the matter of Minister of Police v Du Plessis 2014
(1) SACR 217 (SCA) at 225 it was held that: “[28]
Once an
arrestee is brought before a court, in terms of s50 of the Criminal
Procedure Act 51 of 1977 (CPA), the police’s
authority to
detain, inherent in the power of arrest, is exhausted. In this regard
see
Minister of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA)
(2011 5 (5) SA 367
;
[2011] 2 ALL SA 157)
para 42.
As pointed out by Campbell AJ in the court below, before the court
makes a decision on the continued detention of an arrested
person
comes the decision of the prosecutor to charge such a person. A
prosecutor has a duty not to act arbitrarily. A prosecutor
must act
with objective and must protect the public interest.” Therefore
the applicant's claim against the first and second
respondents, if
the arrest was at all unlawful, would be for the first few hours of
detention until his first appearance at court.
Beyond the first
appearance, his claim can only be against the third and fourth
respondents. It stands to reason that the substantial
damages
suffered by the applicant, if any, can only be claimed against the
third and fourth respondents.
[6]
It
is trite that the consideration in an application for leave to appeal
is whether there are reasonable prospects of success on
appeal. Vide
Botes and Another v Nedbank Ltd
[2]
et Pharmaceutal Society of SA v Minister of Health
[3]
[7]
It
needs repeating that the applicant was arrested on 14
th
April 2005. He appeared at court on several occasions and eventual
released when the charges were withdrawn against on the 9
th
March 2009. He only saw his attorney on the 21
st
June 2010 (15 months after his release). The notice of intention to
institute an action was only served upon the respondents in
August
2010 (17 months after his release). He issued and served summons upon
the respondents in June 2011 (24 months after his
release); He
approached this court for condonation only in 2014 (five years after
his release.). This court found that there was
an inordinate delay on
the part of the applicant and was also not satisfied with the
explanation proffered.
[8]
Once
the applicant was released, assuming ( without deciding this issue),
that his incarceration lent itself to the maxim lex non
cogit ad
impossibilia, however, after his release on the 9
th
March 2009 this maxim no longer applied
[4]
.
[9]
In
the matter of Shaik and Others v Pillay and Others
[5]
Nicholson J held that:
“
[8]
It is also important to remember what was said in
Commissioner
for Inland Revenue v Burger
1956
(4) SA 446
(A) at 449G where Centlivers CJ remarked that:
Whenever
an applicant realises that he has not complied with a Rule of Court
he should, without delay, apply for condonation.”
[9]
The Supreme Court of Appeal has pointed out that an unacceptable
explanation remains just that, whatever the prospects of success
on
the merits. Chetty v Law Society, Transvaal
1985
(2) SA 756
(A) at 768B- C. “
[10] The courts have
held that the greater the degree of delay the less are the prospects
of success regardless of the strength
of the grounds upon which the
appeal is premised; vide Van Wyk v Unitas Hospital (Open Democratic
Advice Centre as Amicus Curiae)
[6]
also Immelman v Loubser
[7]
.
I am of the view that there are no reasonable prospect that another
court would condone a delay of five years, as in casu.
[10]
It
brooks no argument that the incarceration of the applicant for 47
months violated his rights to dignity (s10), to liberty (s12
(1)(a)
7(b), to a speedy ( 35 (3)(d)), as guaranteed in the Bill of Rights.
However, the legislature deemed it appropriate that
where a person
seeks compensation for the violation of any of his rights by an organ
of the State, he must comply with the provisions
of Act 40 of 2002.
The mere fact that the third and fourth respondents are not opposing
the application is no licence to an aggrieved
party to march into
court without compliance of the basic requirements. An inordinate
delay of five years, would course more prejudice
to the respondents,
in my view, because it might be difficult for the respondents to
trace their necessary witnesses. I am further
of the view that it
would not be in the interest of the administration of justice, in the
circumstances, and that therefore leaves
to appeal, in the exercise
of my discretion should be refused
[8]
.
[12] With regard to
costs, I take note of the fact that the applicant is an indigent
Mozambican who had come to work in the mines
in this country. The
founding affidavit in the main application was deposed to by his
attorney. The probabilities are that the
applicant is back in his
country of origin and difficult to access. The probabilities are that
he has no assets in this country,
which the respondents could have
attached to recoup its costs from. It would serve no purpose to
burden the applicant with further
costs of this application for leave
to appeal, which might not be recovered by the respondents. In the
exercise of my discretion,
in the circumstances I deem it appropriate
not to grant costs in favour of the respondents and against the
applicant.
[11]
In the premises the application for leave to appeal is
dismissed.
N .M.MAVUNDLA
JUDGE OF THE
COURT
DATE OF HEARING
: 03 / 06 /2014
DATE OF JUDGEMENT
: 09 / 06 / 2014
PLAINTIFF’S
ATT : R T TSHIFURA ATT C/O BARES & BASSON ATT
PLAINTIFF’S
ADV : ADV T.P KRUGER
DEFENDANT’S
ATT : STATE ATTORNEY
DEFENDANT’S
ADV : ADV D MTSWENI
[1]
1962(4)
SA 531 (A) at 532.
[2]
1983
(3) SA 27 (AD)at28C.
[3]
2005
(3) SA 231
(SCA) at 237
.
[4]
Lombo
v
African
National Congress
2002
(5) SA 668 (SCA).
[5]
2008
(3) SA 59
(N) at 62.
[6]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at 477A-B.
[7]
1974
(3) SA 816
at 824B-C.
[8]
Vide
e Thekwini Municipality v ingonyama Tmst
2014
(3) SA 240
(CC) at 246 para [24].