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INTRODUCTION
[1] The Applicants which are the Plaintiffs in the main act ion seek leave to appeal
the entir e judgement as delivered citing various grounds as set out in their notice
of leave to appeal.
[2] The Respondent which is the Defendant in the m ain application has opposed the
leave sought in that the Applicants have not demonstrated good prospects of
success in line with the provisons of section 17 of the Superior courts Act 10 of
2013 as amended ( the Act).
[3] The parties herein shall remain as cited in main application for the ease of
reference.
GROUNDS FOR LEAVE TO APPEAL
[4] The Plaintiff s have set their grounds for leave to appeal and argue that the
judgement was in error because no sufficient consideration was made on the lawfulness of the arrest and the resultant detention . The charges were withdrawn
therefore there was no case for the Plaintiff s to answer. Alternatively the
judgement failed to take into account the provisions of section 50 (1)(c)(i) of the
Criminal Procedure Act 51 of 1977 in the resultant the detention after the
charges were withdrawn by the complainant was not lawful. The Plaintiff further
raised a ground and argued that the court erred in accepting the evidence on
the charges of kidnapping and intimidation in the absence of any documentary proof in the docket.Therefore by detaining the Plaintiffs the Defendents official
Warrant Officer Dlamini exercised his discreation to arrest the Plaintiffs
irrationally.
[5] The Defend antas are opposed to the application simply because the application
sought has no merit and it does not meet the standard set by section 17 of the
Act as amended. The Defendants argue that even if the complainant withdrew
the c harges under the circumstances , the Plaintiffs bail could not be granted by
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Warrant Officer Dlamini the discreation in that regard was vetsed with
prosecution. Further crucial evidence was led which the Plaintiffs could not rebut
therefore another court will not come to a different finding simply because the Plaintiffs did assault,kidnap and intimidate the complaintnt as per the testimony
ot the Defendants witnesses. The charges laid on the Plaintiffs precluded the
police from granting bail or releasing them.
[6] In terms of section 6 of the Criminal Procedure Act powers to withdraw charges
under the charge/s laid to the Plaintiff s are bestowed to an Attorney General or
any person conducting a prosecution at the instance of the State or any person conducting a prosecution under the terms of Section 8. bestows power to
withdraw a charge. This is the operative law in this regard and Warrant Officer
Dlamini did give an explanation that once he had detained the Plaintiffs he could
not decide upon himself to release them in light the charges. He even went
further to make a telephone call to the prosecutor involved in that district to find out if indeed he could proceed in releasing the Plaintiffs under such
circumstances which he did by reading the contents of the dockect which included the complainants statement to the prosecutor . This was corroborated
and could not be refuted by the Plaint iffs. It is the prosecutor who advised him
that there was no police bail under such circumstances and he could not realease
the Plaintiffs except for presenting before the court despite the withdrawal made.
[7] It is my view that another court will not come to a different finding, simply
because, police bail alternatively a releaseccould not be granted to the Plaintiffs who were charged with assault GBH. It als o does not assist the Plaintiffs that
they could make out a case for not assaulting the complainant.Section 17 of
the Superior Courts Act 10 of 2013 has raised the threshold for the granting of
leave to appeal,leave may now only be granted if there is/are reasonable prospect that the appeal will succeed. The possibility of another court holding a different view no longer forms part of the test. The party applying for leave to
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appeal must demonstrate a sound, rational basis that there are prospects of
success on appeal1.
[8] In MEC Health, Eastern Cape v Mkhitha, the Supreme Court of Appeal held:
"[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 Courts 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.
[9] [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 a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal."
[10] I am not convinced that another court will come to a different finding.
Conclusion
[11] Therefore the following order is made as follow s:
1. The Plaintiffs application for leave to appeal is refused with c osts on scale
“B”.
1 In Four Wheel Drive v Rattan N.O. 2019 (3) SA 451 (SCA), the following was ruled by Schippers JA (Lewis
JA, Zondi JA, Molemela JA and Mokgohloa AJA concurring): “[34] There is a further principle that the court a
quo seems to have overlooked — 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' …