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[2024] ZAFSHC 261
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MEC for the Free State Department of Police, Roads and Transport v L.J.DT and Others (4312/2021) [2024] ZAFSHC 261 (22 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 4312/2021
In
the matter between
MEC
for the Free State Department of Police,
APPLICANT
Roads
and Transport
And
L[…]
J[…] D[…] T[…]
FIRST
RESPONDENT
M[…]
D[…] T[…]
SECOND
RESPONDENT
L[…]
J[…] D[…] T[…] N.O,
THIRD
RESPONDENT
(In
his capacity as the biological father and
Guardian
Of I[…] C[…] D[…] T[…])
Neutral
citation: MEC for the Free State Department of Police, Roads and
Transport
Coram:
Gusha AJ
Heard:
2 August 2024
Delivered:
This judgment was handed down and released to
SAFLII. The date for hand-down is deemed to be 22 August 2024.
Summary:
Leave to appeal – application for leave to
appeal the judgment and order granted on 12 February 2024 –
issue to be decided
– whether the appellant has reasonable
prospects of success on appeal.
ORDER
The
application for leave to appeal is dismissed with costs on scale B.
JUDGMENT
[1]
This is an application for leave to appeal
to the full bench of this Division against the whole judgment I
delivered on 12 February
2024 (the judgment) wherein I found in
favour of the respondents on the merits. Aggrieved by that, the
applicants on 7 March 2024
filed a notice of application for leave to
appeal. The application is opposed by the respondents.
[2]
I interpose here to remark that, by the
aforementioned date, my erstwhile acting stint had come to an end.
The matter was accordingly
allocated to the Honourable Van Zyl J. On
22 July 2024 I was, however, once more appointed as an Acting Judge
of this Division.
Pursuant thereto, the application was reallocated
to me on 29 July 2024.
[3]
As
per the applicant’s notice of application for leave to appeal,
the judgment is assailed on a number of grounds which are
fully set
out in the aforementioned notice.
[1]
Truncated the applicant avers that the court erred on a number of
factual and credibility findings it made. The assailed judgement
deals extensively with the aforesaid aspects.
[2]
[4]
The
test for an application for leave to appeal is now settled.
[3]
Section 17 of the Act states:
‘
Leave
to appeal
17. (1) Leave to appeal
may only be given where the judge or judges concerned are of the
opinion that—
(a)
(i) the appeal would have a reasonable prospect of
success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within
the ambit of section 16(2)
(a)
;
and
(c)
where the decision sought to be appealed does not
dispose of all the issues in the case, the appeal would lead to a
just and prompt
resolution of the real issues between the parties.
[5]
With the advent of s 17 of the Act, the threshold for granting leave
to appeal is now elevated
to an applicant satisfying the court that
there is a reasonable prospect of success and not merely a
possibility of success in
the appeal. It has been held that the use
of the word ‘would’ in the new Act denotes a measure of
certainty that another
court will differ from the court whose
judgment is assailed.
[4]
[6]
In
Smith
v S
[5]
the court held that:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.’
[6]
(Footnotes omitted.)
[7]
The parties have filed comprehensive written submissions in support
and in opposition
of the application, largely restating the evidence
led during the trial and essential advancing similar arguments
traversed during
trial, for that reason I shall not repeat same
herein.
[8]
The grounds raised in the notice of appeal center largely on the
evaluation of the
evidence as well as its probative value and have
already been traversed and comprehensive reasons therefor given in
the assailed
judgment. In view of the factual and credibility
findings made in the judgment and the settled principles of our law
with regards
thereto I hold the view that the application for leave
to appeal ought to fail as there are no reasonable prospects of
success.
[7]
[10]
In the circumstances, I make the following order:
The application for leave
to appeal is dismissed with costs on scale B.
NG
GUSHA, AJ
Appearances
On
behalf of the Applicants:
Adv.
T.L. Manye
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
H.J. Van Der Merwe
Instructed
by:
Symington
De Kock Attorneys
BLOEMFONTEIN
[1]
Pages
1-4 paras 13 of the applicant’s notice of appeal.
[2]
Pages
8-12 of the judgment.
[3]
Cook v
Morrisson and Another
[2019] ZASCA 8
;
2019 (5) SA 51
(SCA) para 8;
MEC
for Health, Eastern Cape v Mkhitha and Another
[2016] ZASCA 176
paras 16-18.
[4]
The
Mont Chevaux Trust v Tina Goosen & 18 others
2014 JDR 2325 (LCC),
Matoto
v Free State Gambling and Liquor Authority
[2017] ZAFSHC 80
,
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance
[2016] ZAGPPHC 489.
[5]
Smith
v S
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) para 7.
[6]
Ibid para 7.
[7]
Mashongwa
v Pasenger Rail Agency of South Africa
[2015] ZACC 36
,
City
of Cape Town v Mtyido
(1272/2022)
[2023] ZASCA 163
(1 December 2023).