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2024
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[2024] ZAECMHC 72
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Philasande v Minister of Police and Another (Leave to Appeal) (2388/2017) [2024] ZAECMHC 72 (1 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No.: 2388/2017
Reportable:
YES/NO
In
the matter between:
KINASE
PHILASANDE
Applicant
and
MINISTER
OF
POLICE
First Respondent
THE
NATIONAL DIRECTOR OF
Second Respondent
PUBLIC
PROSECUTIONS
JUDGMENT-
APPLICATION FOR LEAVE TO APPEAL
Cengani-Mbakaza
AJ
Introduction
[1]
This is an application for leave to appeal to the Full Court against
specific parts
of my judgment and order dated 07 November 2023 (a
judgment a
quo).
The order reads:
‘
[78]
In the result, the following order is made:
1.
The plaintiff’s claim for unlawful arrest and detention against
the 1
st
defendant from the period 12 to 15 November 2015
succeeds.
2.
The 1
st
defendant is liable to compensate the plaintiff a
sum of R175 000 (One hundred and seventy five thousand rand) for
damages
arising out of unlawful arrest and detention from the period
12 to 15 November 2015.
3.
The defendant shall pay interest at the legal rate on the said amount
from 14 days from the date of judgment to the date of payment.
4.
The plaintiff’s claim against the 1
st
and the 2
nd
defendants arising out of a detention from the period 16 November
2015 to 20 February 2016 is dismissed
5.
The defendant is ordered to pay costs of this action.’
[2]
For clarity and consistency, the parties will be referred to, as they
were in the
judgment a
quo.
A brief summary of facts leading
to the application for leave to appeal is necessary. On 12 November
2015, the plaintiff was arrested
and detained by the members of the
South African Police Service on a charge of murder, classified under
Schedule 1 and 6 offences
in terms of the Criminal Procedure Act 51
of 1977 (CPA). He was brought to court as soon as it was
reasonably possibly to
do so. Subsequently, the Magistrate ordered
his further detention from 16 November 2015 to 26 February 2016. On
26 February 2016,
he was granted bail. Ultimately, the public
prosecutor acting through the powers granted by the
National
Prosecuting Authority Act 32 of 1998
, decided to withdraw the charges
against him.
[3]
It is common cause that a teacher at the Efata School for the Blind
was tragically
murdered. The plaintiff was implicated in the commission of the
offence by the warning statements of his co-suspects
namely Khimbili
and Danti who were deaf and mute. Although an interpreter was
utilised to obtain the warning statements, the accuracy
of the
information obtained was not verified through the interpreter.
Notably, the arresting officer was not the same police officer
who
obtained the warning statements. Basically, the arrest of the
plaintiff was predicated on a chain of hearsay evidence rendering
the
information unreliable.
[4]
In the
judgment
a
quo,
I
acknowledged that the standard of reasonableness that must be applied
by police officers when arresting a suspect is very low.
However, I
found that this particular case stands as one where the arresting
officer should have taken steps to verify the quality
of the
information before making the arrest. Essentially, they should have
exercised their discretion objectively. Following extensive
deliberation and careful consideration, I found that the first
defendant was liable for the damages resulting in the plaintiff’s
arrest and detention from 12 to 15 November 2015.
[5]
The present application for leave to appeal focuses solely on the
detention period
16 November 2015 to 26 February 2016. The plaintiff
still holds the second defendant (the NDPP) jointly liable with the
first defendant
for the unlawful detention implying that both
defendants were equally legally responsible for the damages incurred.
The
application for condonation
[6]
On 02 April 2024, the plaintiff filed an application for condonation
of the later
launching of the application for leave to appeal. This
was necessary because the application for leave to appeal issued on 5
March
2024, fell outside the 15-day period specified by the Uniform
Rules of Court considering that the judgment was delivered on 7
November
2023. The application is opposed by the defendants.
[7]
The plaintiff’s case revolves around his claim of being unaware
of the judgment
due to his temporary relocation to the Western Cape
Province, resulting in lost contact with his legal representatives
and misplacement
of his cellular phone. Essentially, the plaintiff
asserts that these unforeseen circumstances led to his delayed
knowledge of the
judgment. He avers that upon learning of the
judgment, he promptly instructed his legal representative to appeal.
The plaintiff
submits that these factors provide a reasonable
explanation for the delay, accounting for the entire period.
[8]
Mr Mhlawuli, the plaintiff’s legal representative, argues that
he has demonstrated
reasonable prospects of success on appeal due to
the controversial issue at hand, which has been debated in various
courts.
Furthermore, two judgments from the same division based
on identical facts, have reached conflicting conclusions on the same
issue.
He further argues that this judgment contradicts a
Constitutional Court judgment on the same aspect.
[9]
The requirements for the application for condonation are well
settled.
[1]
In their set of the
answering affidavits, the defendants have not refuted the plaintiff’s
claims regarding his lack of awareness
of the judgment. This implies
that the defendants are questioning the validity or credibility of
the plaintiff’s story, rather
than addressing the core issue of
whether the plaintiff was informed about the judgment in a timely
manner. Having carefully considered
the circumstances and the
parties’ submissions, I find that the explanation given by the
plaintiff is reasonable to excuse
the default. This decision is
further motivated by the need to ensure that substantial justice is
served.
The
application for leave to appeal
[10]
An application for leave to appeal is regulated by Section 17 of the
Superior Court’s Act
[2]
(the Superior Court’s Act) which provides as follows:
‘
17.
Leave to appeal
(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 reasonable prospects of success; or
(ii)
there is some compelling reason why the appeal should be heard,
including conflicting judgments on the same matter under
consideration…………’
[11]
In opposing the application for leave to appeal, the defendants cited
various authoritative precedents
that elucidate the applicable test
for granting leave to appeal. Following the Superior Court’s
Act, the possibility of another
court having a different view no
longer forms part of the test. The precedent that authorisation for
appeal should be based on
the possibility of another court reaching a
different conclusion is no longer tenable. There must be a sound,
rational basis for
the conclusion that that there are reasonable
prospects of success.
In
Four Wheel Drive v Rattan N.O
[3]
,
the following was held by Schippers JA (Lewis JA, Zondi JA, Molemela
JAand Mokgohloa AJA) concurring,
‘
[34]
There is a further principle that the court a
quo
seems to have over looked- leave to appeal should be granted only
when there is ‘a sound, rational basis for the conclusion
that
there are prospects of success on appeal’. In the light of its
findings that the Plaintiff failed to prove locus standi
or the
conclusion of the agreement, I do not think that there was a
reasonable prospect of an appeal to this court succeeding that
there
was a compelling reason to hear the appeal. In the result the parties
were put though the inconvenience and expense of an
appeal without a
merit.’
[12]
In the instant matter, the plaintiff filed a six- page document
expressing the grounds of appeal.
Rather than addressing each ground
individually, I deem it sufficient to note that all the issues raised
in the notice of appeal
were thoroughly examined and adjudicated upon
in the judgment
a
quo.
[4]
[13]
Moreover, the
conditio
sine qua non
test
and legal causation, as correctly articulated in the judgment
a
quo
[5]
,
underpinned the dismissal of the plaintiff’s claim regarding
his detention subsequent to the court appearance. It is well
established that there is no universally applicable criterior for
legal causation, as its determination depends on the specific
circumstances of each case.
[6]
[14]
It is acknowledged that the plaintiff was arrested with Mr Simphiwe
Mabokela, who later instituted
separate legal proceedings against the
Minister of Police under case number 3587/2020. Although Mr Mhlawuli
asserts that the
Mabokela
case is on all fours with the
instant matter, a critical analysis discloses distinct differences
rendering the two cases dissimilar.
It is essential to recognise that
courts exercise autonomy in evaluating the credibility of witnesses
and assessing the probabilities
and improbabilities of a case, guided
by their independent judgment and discretion. Consequently, due to
the distinguishing factors,
identical outcomes cannot be anticipated.
Therefore, the contention that the judgments are conflicting within
the same division
on the same issues, and that the law has been
applied inconsistently, lacks substance.
[15]
As previously noted,
there
is no cookie-cutter criterion for legal causation.
[7]
In
his heads of argument, Mr Mhlawuli acknowledges that the plaintiff’s
continuous detention was ordered by the court pursuant
to the
relevant legislation, which mandates detention until the plaintiff
demonstrates exceptional circumstances which in the interest
of
justice permits his release. I agree with his concession in this
regard.
[16]
Conversely, he contends that there was no evidence presented as to
why the Magistrate was never
informed of the shortcomings in the
state’s case. With respect, Mr Mhlawuli has overlooked certain
pivotal aspects of this
case. During her testimony, the Public
Prosecutor clarified that the plaintiff was implicated on a schedule
6 offence. She indisputably
explained that a prima-facie case was
established, meeting the lower threshold of likelihood rather than
proof beyond reasonable
doubt. As a result, further investigation was
justified and a possibility of converting one of the suspects into a
section 204
witness
[8]
was
warranted. Notably, Mr Mhlawuli overlooks the plaintiff’s
significant concessions during vigorous cross-examination by
Ms
Nhantsi, counsel for the second defendant. These concessions reveal
that: the postponement allowed the plaintiff and his co-accused
to
obtain legal aid attorney, a sign language interpreter was necessary
(as he also exhibited himself as a mute person) and further
the
Magistrate’s availability was a factor in the postponement.
[17]
Consequently, through cross-examination the plaintiff effectively
conceded that his post-appearance
detention could not be attributed
to the second defendant. The fact that the Department of Justice
bears the responsibility for
securing the services of a sign language
interpreter remains uncontested. Given the plaintiff’s
self-description as a mute
person, the availability of a sign
language interpreter was indispensable for the bail hearing to
proceed, as it was the only means
to facilitate his effective
communication and participation.
[18]
Upon proper consideration of the facts presented, the remand orders
by the Magistrate constituted
a
novus actus intervenes
.
Therefore, it is evident that there is no causal link between the
plaintiff’s initial arrest and detention by the first
defendant
and his subsequent detention following the court appearance.
Furthermore, considering the plaintiff’s concessions,
as well
as the lack of causal link, the second defendant cannot be held
liable for the harm resulting from the plaintiff’s
continued
detention following the court appearance. Upon careful
consideration of the facts and the submissions from all
the parties,
I conclude that there are no reasonable prospects of success on
appeal. Accordingly, the application for leave to
appeal must fail.
Order
[19]
The following order shall issue:
1.
The application for leave to appeal is dismissed.
2.
The plaintiff shall pay
costs in accordance with Scale ‘A’ as contemplated
in
terms of Rule 67A read with Rule 69 of the Uniform Rules of Court.
N
CENGANI-MBAKAZA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES:
For
the Plaintiff:
Mr SR
Mhlawuli
SR
MHLAWULI & ASSOCIATES
Applicant's
attorney
Suites
318 & 325, ECDC Building
MTHATHA
For
the Defendants:
THE
STATE ATTORNEY
No 94
Sisson Street
Fortgale
MTHATHA
Date
Heard:
06
and 21 June 2024
Date
Delivered:
01
October 2024
[1]
In
Uitenhage
Traditional Local Council v South African Revenue Services
[2003] ZASCA 76
, The court held, ‘One would have hoped that
many admonitions concerning what is required of an applicant in a
condonation
application would be the knowledge among practitioners
who are entrusted with the preparation of appeals to this Court:
condonation
is not to be had merely for the asking; a full detailed
and accurate account of the causes of the delay and their effects
must
be furnished as to enable the Court to understand clearly the
reasons and assess the responsibility. It must be obvious that if
the non-compliance is time-related then the date, duration and
extent of obstacle on which reliance is placed must be spelled
out’.
[2]
Act 10 of 2013.
[3]
2019(3) SA 451 SCA.
[4]
The evaluation of the evidence on the issues at hand is found in the
judgment
a quo
from pages 23-27.
[5]
At page 24 para 63, the court referenced to
De
Klerk v Minister of Police
2020 (1) SACR 1
CC and concluded that there was no evidence to
establish a causal link between the actions of the defendants’
members and
the consequences at issue.
[6]
See S v Mokgethi 1990(1) SA 32 A
[7]
See Mokgethi’s matter at footnote 4 above.
[8]
Section 204 of the CPA allows a witness who may be implicated in a
crime to testify against other accused persons in exchange
for
indemnity from prosecution.