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2024
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[2024] ZAFSHC 321
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Moletsane v Minister of Police and Another - Leave to Appeal (1058/2021) [2024] ZAFSHC 321 (19 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 1058/2021
In
the matter between
THATO
MOLETSANE
APPLICANT
and
MINISTER
OF POLICE
FIRST
RESPONDENT
DIRECTOR
OF NATIONAL PROSECUTIONS
SECOND
RESPONDENT
Neutral
citation: XXX
Coram:
Chesiwe J
Heard:
Heard on the papers as per the directive to file heads of
argument on 12 July 2024 and 19 July 2024 respectively.
Delivered:
This judgment was handed down in open court and
electronically by circulation to the parties’ representatives
by email and
released to SAFLII. The date and time for hand-down is
deemed to be 13h00 on 12 September 2024.
Summary:
Application
for leave to appeal – unlawful arrest, detention and
prosecution - test to be applied – full court of the
Free State
Division of the High Court.
ORDER
The
Applicant is granted leave to appeal to the Full Court of this
Division against the whole judgment granted on 30 May 2024.
Costs
shall be costs in the appeal.
JUDGMENT
Chesiwe
J
[1]
The applicant seeks to leave appeal to the Full Court of this
division, alternatively, the Supreme Court of Appeal against the
whole of the judgment and orders granted on the 30 May 2024.
The application is opposed by the first and second respondents.
[2]
The main ground for the application is premised in that the
court erred in not finding that the applicant’s arrest and
detention
was unlawful, and the subsequent prosecution was malicious.
Furthermore, that the trial proceedings record was not made available
to the applicant by the respondent’s attorneys, nor to the
court after the trial was concluded. However, such records
were
eventually made available.
[3]
In terms of the provisions of s 17(1) of the Superior Court’s
Act 10 of 2013 leave to appeal may only be granted if the judge
concerned is of the opinion that:
a.
The appeal would have reasonable prospects of success or if there
is
some compelling reasons why leave should be granted;
b.
The decision sought on appeal does not fall within the ambit of s
16(2)
(a)
of the Act;
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.
[4]
This
court in the unreported case of
Matoto
v Free State Gambling and Liquor Authority and Others
[1]
said the following:
‘
There can be no
doubt that the bar for granting leave to appeal has been raised.
Previously, the test was whether there was a reasonable
prospect that
another court might come to a different conclusion. Now, the use of
the word “would” indicate a measure
of certainty that
another court will differ from the court whose judgment is sought to
be appealed against.’
[2]
[5]
In
MEC for
Health, Eastern Cape v Mkhitha and Another
[3]
the court held as follows:
‘
[16]
Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is
a reasonable
prospect of success. Section 17(1)
(a)
of the Superior Court
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the
opinion that the appeal would
have a reasonable prospect of success or there is some other
compelling reason why it should be heard.
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There
must be sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’
[6]
In the main application, this court was called upon to
adjudicate upon the unlawful arrest and detention of the
applicant as
well as the malicious prosecution. The applicant
in the application for leave to appeal stated some of the erroneous
findings
which the court made.
[7]
Indeed,
in an application for leave to appeal, the court is called to
consider its own judgment and considering all the facts of
the
applicable case, whether another court will come to a different
conclusion. The invidious position the court find itself
in is
to consider granting or not to grant leave to appeal one of its own
judgments.
[4]
[8]
The issues raised in these grounds, entail a revisit to the
seriously contended issues in which the applicant contends that
another
court may deal with them differently. In an application for
leave to appeal, the applicant is not precluded to revisit the issues
provided that the court is satisfied that there is a reasonable
prospect that the factual matrix would receive a different
interpretation
by another court. I am therefore of the considered
view that the applicant would have reasonable prospects of success on
appeal.
Order
[9]
I accordingly make the following order:
1.
The Applicant is granted leave to appeal to the Full Court of this
Division against the whole judgment granted on 30 May 2024.
2.
Costs shall be costs in the appeal.
Appearances
For
the Applicant:
Adv.
C Zietsman
Instructed
by:
Jacobs
Fourie Inc.
Bloemfontein
For
the First and Second Respondents:
Adv.
N Phakama
Instructed
by:
State
Attorney
Bloemfontein
[1]
Matoto
v Free State Gambling and Liqour Authority and Others
[2017]
ZAFSHC 80.
[2]
Ibid para 5.
[3]
MEC for
Health, Eastern Cape v Mkhitha and Another
[2016]
ZASCA 176.
[4]
R v
Balloi
1949 (1) SA 523
(A) at 524-525.