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2024
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[2024] ZAECMHC 83
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Minister of Police v Ngoyo (Leave to Appeal) (5341/2018) [2024] ZAECMHC 83 (5 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION: MTHATHA)
Case No: 5341/2018
In the matter between:
MINISTER
OF
POLICE
Applicant
and
MALWANDE
NGOYO
Respondent
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
BROOKS J
[1]
This is an application for leave to appeal against the judgment and
order delivered
and issued by this court on 14 November 2022.
[2]
The application for leave to appeal should have been filed by 5
December 2022.
It was delivered only on 9 February 2024, just
over fourteen months out of time. Of necessity, the application
for leave
to appeal is accompanied by an application for condonation
for the late filing of the application for leave to appeal.
[3]
Both applications are opposed. They are dealt with by a single
exchange of founding,
answering and replying affidavits. In my
view the merits of each should be considered in conjunction with each
other.
[4]
The applications are supported by a founding affidavit deposed to by
a member of the
professional staff in the office of the State
Attorney, Mthatha. It is apparent therefrom that she joined
that office on
18 September 2023 and took over the management of the
file pertaining to this matter from Mr Mzileni, the attorney who had
handled
it prior to, during and after the proceedings that gave rise
to the judgment and order that are the subject of these
applications.
The judgment and order pertain to the merits of
the claim brought by the respondent.
[5]
The deponent noted from the file that the
matter was enrolled for the determination of the
quantum
of damages payable by the applicant to the respondent. The
trial date was 17 October 2023. She saw that there was no
request for instructions and no instructions noted from the
applicant. She was unable to determine if and when General
Billet,
the provincial head of the Legal and Policy Service of the
applicant, had been notified about the judgment or order. She
approached a supervisor. He requested a list of required expert
witnesses. She provided this on 4 October 2023.
She later
learnt from a candidate attorney that her supervisor had been in
communication with General Billet, seeking instructions
for the
appointment of an intermediary. There was no response from
General Billet and the date of the trial on quantum was
fast
approaching. An intermediary was appointed without any
instructions from General Billet. The respondent was assessed
by experts a week before the trial date.
[6]
On the trial date, the matter was postponed to 16 November
2023 to allow the applicant time to file the reports of his expert
witnesses.
These were filed on 14 February 2024, after the
filing of the application for leave to appeal.
[7]
The deponent sent a memorandum to General
Billet wherein counsel for the applicant had made a recommendation on
the issue of
quantum.
On
6 November 2023 General Billet rejected the
memorandum and gave instructions “to appeal the judgment.”
[8]
On 22 November 2023 further instructions
were received to appoint senior counsel and the deponent set about
attending to the satisfaction
of the internal tender requirements for
the briefing of senior counsel. It is apparent that senior
counsel was only appointed
and formally instructed on 2 February 2024
to draft the application for leave to appeal.
[9]
A brief confirmatory affidavit was deposed
to by the candidate attorney. A similar affidavit was deposed
to by General Billet.
Neither affidavit places any information
before the court relating to the date upon which General Billet
became aware of the existence
of the judgment and order.
[10]
It is remarkable that no affidavit was
obtained from the applicant himself.
[11]
It is also remarkable that no affidavit was
obtained from Mr Hanise, the senior member of the office of the State
Attorney, Mthatha,
who was involved during the trial on the merits
and under whose supervision the file would have remained thereafter.
[12]
No affidavit was obtained from Mr Mzileni,
although he works in the office of the State Attorney in East
London. In the circumstances,
there is no information placed
before the court to explain the delay from 14 November 2022 up to 18
September 2023.
[13]
An important fact emerges from the
answering affidavit deposed to by the
curator
ad litem
who was appointed to assist
the respondent with his action. This fact is that on 20
September 2023 the applicant paid the
legal costs due to the
respondent. Those costs were identified in a bill of costs that
had been prepared pursuant to the
judgment and order in favour of the
respondent and had been taxed by the taxing master. The
observation made in the answering
affidavit is that the payment of
the taxed costs payable to the applicant demonstrated unequivocal
conduct that demonstrated that
the applicant has acquiesced in the
judgment and order and thereby perempted his right to appeal against
it.
[14]
In
Gentiruco
AG Firestone SA (Pty) Ltd
,
[1]
Trollip JA stated as follows:
“
The
right of an unsuccessful litigant to appeal against an adverse
judgment or order is said to be perempted if he, by unequivocal
conduct inconsistent with an intention to appeal, shows that he
acquiesces in the judgment or order.”
[15]
To
the payment of the costs due signifying acquiescence one may add the
steps taken to prepare for the trial on
quantum
before General Billet rejected counsel’s memorandum on
quantum
and gave instructions to “appeal the judgment.”
Such conduct may be equated to the conduct on the part of the
President that was found by the full court to amount to peremption of
his right to appeal in
President
of the Republic of South Africa v Public Protector
.
[2]
[16]
In the replying affidavit, the correctness
of these conclusions is simply denied.
[17]
In my view, the simple denial in the
replying affidavit is insufficient to meet satisfactorily the
allegations made on behalf of
the respondent to support the
conclusion that the applicant had perempted his right to appeal
against the judgment and order.
At the very least one would
have expected General Billet to file an affidavit dealing with the
circumstances surrounding the payment
of the costs due to the
respondent with sufficient explanation to render inappropriate the
conclusion that the applicant had thereby
perempted his right to
appeal. No such affidavit was filed.
[18]
The unavoidable conclusion reached is that no explanation has been
given by the applicant or
General Billet, who is responsible for
giving instructions on behalf of the applicant, for the delay of
fourteen months beyond
the date upon which an application for leave
to appeal against the judgment and order should have been filed.
Partial explanation
has been given by the current professional in the
office of the State Attorney, Mthatha, for the delay between 18
September 2023
and 9 February 2024. It is partial in that it
cannot speak for the relevant circumstances known only to General
Billet and
surrounding the all important issues of knowledge of the
judgment and order. Only he knows why he gave instructions on
behalf
of the applicant to seek leave to appeal against the judgment
and order only on 6 November 2023 and he has remained silent on the
point.
[19]
Although the application for condonation is woefully deficient, it is
incumbent upon the court,
in the interests of justice, to consider
also the prospects of success in the contemplated appeal.
[20]
The combined summons in the matter was
issued on 12 October 2018 and served on the applicant on 16 October
2018. Therein the
respondent claimed damages arising from an
incident on 2 June 2015 when he was shot in the head by a member of
the South African
Police Services who was on duty at the time.
The claim was met with two special pleas. The first alleged
that the respondent
had not complied with the provisions of
section
3(2)(a)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002
. The second alleged that the
respondent’s claim prescribed on 2 June 2018 prior to the
service of the summons on the
applicant.
[21]
The first special plea was abandoned by
counsel for the applicant who appeared in the trial on the merits.
In such circumstances,
it does not call for further comment when
considering the prospects of success in the contemplated appeal.
[22]
The second special plea was not included in the initial plea that was
filed on 18 June 2020.
It was introduced in an amended plea
that was filed on 7 November 2022. It finds expression as
follows:
“
7.
In his particulars of claim the plaintiff makes the following
allegations:
‘
3.
On or about 02 June 2015 and at or near Kutela Village, Mount Alyiff,
the plaintiff was shot on the forehead with live ammunition
by a
member of the South African Police Service whose identity is to the
plaintiff unknown.
5. As a result of the
shooting, the plaintiff:
5.1 Was hospitalized for
a period of two months;
5.2 Had to undergo
further medical treatment;
5.3 Will suffer a loss of
income;
5.4 Suffered a loss of
amenities of life and will suffer further loss of amenities of life;
5.5 Experienced pain and
suffering, will experience further pain and suffering and is
disfigured.’
8. It is therefore
apparent from the above averments that the debt arising from the
delict from the alleged shooting fell due on
the 02 June 2018,
alternatively the plaintiff’s cause of action was complete on
the 02 June 2018. (sic)
9. Plaintiff’s
summons was served on the defendant on 15 October 2018, which is more
than 3 years after the date on which
the claim arose.
10. In
the premises, plaintiff’s claim has prescribed in terms of
section 11
of Act 68 of 1969, as amended, and is therefore
unenforceable.”
.
[23]
The undisputed evidence from the respondent revealed that the bullet
that struck him in the forehead
put him in a comatose state. He
spent two months in hospital. When he was discharged from
hospital he was unable to
speak and was suffering from neurocognitive
impairment.
[24]
An application had been brought under the same case number for the
appointment to the respondent
of a
curator-ad-litem
. It
was not opposed by the applicant and Advocate Mdeyide was appointed
as
curato-ad-litem
to the respondent. The medical
reports that were used in support of that application and were
accepted by the court that heard
the application and can not be
ignored. They reveal that the respondent had sustained a severe
traumatic brain injury which
resulted in him having residual slurred
speech requiring a speech therapist and neurocognitive impairment.
[25]
The wording of the second special plea is very specific. In the
result it is restricted
to an allegation that on 2 June 2015 the
respondent had knowledge of all the facts that he would have to prove
in order to succeed
in a claim for damages. The undisputed
evidence reveals that this could not have been the case. The
severe traumatic
brain injury that produced a comatose state, months
of hospitalisation, cognitive impairment and slurred speech militates
unequivocally
against such a position. There is no alternative
wording to the second special plea and it could only fail on the
facts.
See
Truter
and Another v Deysel
[3]
and Links v MEC for Health Northern Cape Province.
[4]
[26]
Even if the second special plea is capable of interpretation that the
respondent’s claim
had prescribed somewhere between 2 June 2018
and the date of service of the summons upon the applicant, no
evidence was placed
before the court to support such a conclusion.
[27]
It follows that I am of the view that there are no prospects of
another court coming to a different
conclusion on the second special
plea.
[28]
Both counsel referred the court to the decision of the Constitutional
Court in
Grootboom
v National Prosecuting Authority and Another
[5]
where the following is stated:
“
In
this court, the test for determining whether condonation should be
granted or refused is the interests of justice. If it
is in the
interests of justice that condonation be granted, it will be
granted. If it is not in the interests of justice
to do so, it
will not be granted. The factors that are taken into account in
that inquiry include:
(a)
the length of the delay;
(b)
the explanation for, or cause for, the
delay;
(c)
the prospects of success for the party
seeking condonation;
(d)
the importance of the issue(s) that the
matter raises;
(e)
the prejudice to the other party or
parties; and
(f)
the effect of the delay on the
administration of justice.”
[29]
In
Melane
v Santam Insurance Co. Ltd
[6]
the
court held as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are
the degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily
these facts
are interrelated: they are not individually decisive, for that would
be a piecemeal approach incompatible with a true
discretion, save of
course that if there are no prospects of success there would be no
point in granting condonation. Any
attempt to formulate a rule
of thumb would only serve to harden the arteries of what should be a
flexible discretion. What
is needed is an objective
conspectus
of all facts. Thus a slight delay and a good explanation may
help to compensate for prospects of success which are not strong.
Or the importance of the issue and strong prospects of success may
tend to compensate for a long delay. And the respondent’s
interest in finality must not be overlooked.”
[30]
In
Van
Wyk v Unitas Hospital
[7]
the
Constitutional Court held that:
“
An
applicant for condonation must give a full explanation for the
delay. The explanation must cover the entire period of the
delay. Moreover, the explanation must be reasonable.”
[31]
In
South
African Revenue Service v Commision for Concilliation, Mediation and
Arbitration and Others
[8]
the Constitutional Court confirmed that the court has a discretion to
overlook peremption if it is in the interests of justice
to do so.
[32]
Upon a consideration of all the relevant factors in this matter, the
legal principles set out
in the preceding paragraphs as well as the
relevant facts in the matter, the court concludes as follows.
No explanation has
been given by the applicant, and by a senior
member of staff of the office of the State Attorney, Mthatha, and a
limited explanation
has been given by others in respect of only a
portion of what is a considerable period of delay in lodging an
application for leave
to appeal. The prospects of success in
the contemplated appeal are negligible. The respondent has a
keen interest in
finality in the matter and steps have been taken by
both parties towards the finalization of the
quantum
leg of
the trial. No acceptable basis has been laid for this court to
overlook the peremption of the applicant’s right
to appeal by
his acquiescence in the costs order issued pursuant to the impugned
judgment and his preparation for the trial on
quantum.
[33]
The following order will issue:
1. The application for
condonation for the late filing of the application for leave to
appeal referred to in paragraph 2 of this
order is dismissed with
costs, such costs to include the costs of two counsel where two
counsel were so employed.
2. The application for
leave to appeal against the judgment and order of this court issued
on 14 November 2022 is dismissed with
costs, such costs to include
the costs of two counsel where two counsel were so employed.
RWN BROOKS
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicant
Adv
L Haskins
Instructed
by:
The
State Attorney
94
Sissons Street
Fortgale
Mthatha
For
the Respondent:
Adv
L Mthimkhulu
Instructed
by:
Cingo
Attorneys
c/o
Mkata Attorneys
77
Nelson Mandela Drive
MTHATHA
Date
heard:
25
October 2024
Date
delivered
05
November 2024
[1]
1972
(1) SA 589
(A) at 600 A – B.
[2]
2018
(2) SA 100
(GP) at 143 F – 146 H.
[3]
2006(4)
SA 168 (SCA) para 16.
[4]
2016(4)
SA 414 (CC) para 31.
[5]
2014
(2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC) para 50.
[6]
1962
(4) SA 531 (A) 532 C – E.
[7]
2008
(2) SA 472 (CC) 477 E – F.
[8]
2017
(1) SA 549
(CC) paras 24 – 28.