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[2009] ZAGPPHC 12
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Minister of Safety and Security v Scott and Another (1552/05) [2009] ZAGPPHC 12 (19 March 2009)
I
N THE HIGH
COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
Case
No: 1552/05 Date heard: 18/03/2009
Date of judgment
:
19/03/2009
NOT REPORTABLE
In the matter between:
MINISTER OF SAFETY AND SECURITY APPLICANT
and
JACO SCOTT
1
ST
RESPONDENT
SCOTTCO (PTY) LTD 2
ND
RESPONDENT
JUDGMENT
DU PLESSIS J:
I gave judgment in this matter on 15 June 2007.
Some eighteen months later, in December 2008 the defendant filed an
application
for leave to appeal. That application and an
application to condone the late filing of the leave to appeal
application are now
before me.
Senior Superintendent Mudau deposed to the
founding affidavit of the condonation application. She is a member
of the SAPS attached
to the provincial legal office. In the course
of her employment she handled this matter on behalf of the defendant.
In summary,
her explanation for the delay in bringing the
application for leave to appeal is that consecutive attorneys
attached to the office
of the State Attorney did not carry out
instructions to pursue the application for leave o appeal. In
addition, while she was
on maternity leave, a senior officer of the
SAPS had to deal with the matter in her absence. He too did not do
his work. In cases
involving government departments, one must bear
in mind that one is dealing with huge organisations and that it is
not always possible
for them to adhere to time limits. An
explanation that a delay of about 17 months was due to civil servants
not doing their work
is, however, not to be accepted lightly as an
excuse. But the question whether condonation should be granted is
one that must
be answered after due consideration of the explanation
for the delay and of the merit of the application for leave to appeal
itself.
I turn to consider the merit of the application for leave to
appeal.
In the
principal case
the plaintiffs claimed damages arising from the alleged unlawful
arrest of the first plaintiff. It was not in issue
that Sergeant
Rhamaphakela of the SAPS arrested the first plaintiff. The sergeant
testified that he arrested the first plaintiff
for being in
possession of a firearm while under the influence of liquor. At the
time of the arrest, however, that was not an
offence. The relevant
offence was handling a firearm while under the influence of liquor.
On Rhamaphakela’s evidence, that
this court accepted, the first
plaintiff did not handle the firearm in his presence. It followed,
this court held, that the defendant
did not prove that the arrest was
lawful.
This court rejected the first plaintiff’s
evidence. It nevertheless held that even if one has regard to the
first plaintiff’s
rejected version, the arrest was still
unlawful. On his version the first plaintiff also did not handle the
firearm.
In the notice of application for leave to appeal the defendant
contends that this court misdirected itself by basing its finding
as
to the lawfulness of the arrest on the plaintiff’s rejected
evidence. The contention is, with respect, based on an incorrect
reading of the judgment. In the judgment, as I have pointed out
above, the primary finding was based on the evidence presented
by the
defendant. It was then pointed out that even on the rejected
version, the arrest was unlawful.
Mr Shakoane for the defendant argued that the
arrest was lawful as there were sufficient grounds for Rhamaphakela
reasonably to
suspect that the first plaintiff had handled a firearm
while under the influence of alcohol. The difficulty with the
argument
is that Rhamaphakela did not say that he had such a
reasonable suspicion nor did he say that that is why he arrested the
first
plaintiff. Counsel’s argument therefore raises the
following question: Can an arrest be lawful if the arresting officer
states that he arrested on an invalid ground, but there are objective
facts to show that another ground for arrest existed. That
question
was not debated before me during the trial. It is a question that, I
believe should be debated and decided. There is
in my view a
reasonable prospect that a court of appeal may at least on that
question find in favour of the defendant.
Having due regard to the inter-relationship between the defendants
explanation for the delay to bring this application and the
prospects
on appeal, I do not think that this is a case where the doors of the
court should be closed on the defendant’s
right to appeal.
The following order is made:
The defendant’s late filing of the application for leave to
appeal is condoned.
The defendant is ordered to pay the costs of the application for
condonation.
Leave to appeal to the full bench of this division of the High Court
is granted.
The costs of the application for leave to appeal shall be costs in
the appeal.
B.R. du Plessis
Judge of the High Court
On behalf of applicant: State Attorney
8
th
Floor, Bothongo Heights
167 Andries Street
Pretoria
Adv. G. Shakoane
Adv. K. Mokotedi
On behalf of Respondent: J.P. Venter Attorneys
976 Duncan Street
Brooklyn
Pretoria
Adv. B.P. Geach