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[2026] ZAGPPHC 193
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Minister of Police v Andries (A60/2024) [2026] ZAGPPHC 193 (23 March 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: A60/2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date:
23 March 2026
E
van der Schyff
In
the matter between:
The
Minister of
Police
Appellant
and
Thure
Mzondile
Andries
Respondent
JUDGMENT:
Coram:
Van der Schyff J (Millar J
et
Retief J concurring)
Context
[1]
On 21 October 2022, the Gauteng High Court
found in favour of the plaintiff, Mr. Thure. It held the Minister of
Police (the Minister)
liable for damages flowing from Mr. Thure’s
unlawful arrest and detention. The court held that the Minister is
liable for
Mr. Thure’s incarceration following his first
appearance in court, at which his bail application was denied. It is
common
cause that Mr. Thure was in jail for two years and one month
before the charges against him were withdrawn for lack of evidence,
and he was released. The court
a quo
awarded general damages of R2 million. Following the dismissal of a
late application for leave to appeal, the Minister sought special
leave from the Supreme Court of Appeal. On 8 September 2023, the SCA
granted special leave. The notice of appeal was, however,
only filed
on 21 February 2024, by which time the appeal had lapsed by operation
of law. This court is now seized with an application
for condonation
to extend the period of twenty days for the filing of the notice of
appeal after the receipt of the order from
the Registrar of the
Supreme Court of Appeal. Although it is not explicitly included in
the prayers in the condonation application,
the applicant ultimately
seeks reinstatement of the appeal. It is trite law that an
application for reinstatement can only be granted
upon good cause
shown.
[2]
Against this background, it is no
exaggeration to state that the court was flummoxed when, at the
commencement of proceedings, counsel
for the applicant sought a
postponement from the bar. No substantive postponement application
was filed. Counsel submitted that
he only received his brief on 13
March 2026, less than a week before the set-down date. The
application for postponement was vehemently
opposed. Absent any
evidence justifying such an indulgence, the application for
postponement was summarily dismissed.
[3]
Notwithstanding the failure to file heads
of argument in the condonation application, the applicant’s
counsel was provided
with an opportunity to address the court.
Constrained by the extreme lateness of his instructions, counsel
could do little more
than implore the court to entertain the appeal
in the interests of justice, citing the substantial quantum of public
funds at stake.
The application for
condonation
[4]
In the founding affidavit, the applicant’s
attorney explains that the office of the State Attorney,
Bloemfontein, transmitted
the SCA’s order via email on 20
October 2023. She contends that this correspondence did not come to
her attention when she
observed the order on the CaseLine’s
file on 6 February 2024. She contacted her colleague at the
Bloemfontein Office, who
informed her that the order had been emailed
to her. Upon further investigation, she discovered that the email
went “onto
a trail of spams emails”
(sic)
on
her side. As far as the merits of
the appeal are concerned, it was merely stated in the affidavit that
the appellant refers to
the notice of appeal, as if it were
specifically repeated, and submits that it has a prospect of success
on appeal, or that arguable
points have been raised that need to be
fully ventilated.
[5]
The respondent opposes the application,
contending that the applicant has failed to demonstrate good cause.
The respondent’s
attorney highlights the lack of technical
evidence regarding the spam filter issue, noting that, since the same
national department
of justice employs the sender and recipient,
their server architecture should, in theory, preclude such an
occurrence. The respondent
challenged the appellant’s attorney
to provide details of any “prior evidence of an occurrence
wherein the same incident
has taken place, and what was done to
resolve the problem. The respondent’s attorney took issue with
the fact that no confirmatory
affidavit by the other officials to
whom the email was sent was filed, nor was there any confirmation
that the Bloemfontein Office
was subsequently contacted after the
order was uploaded to the CaseLine file in February 2024. The
respondent highlighted that
the appellant did not address the merits
of the appeal in the affidavit filed in support of the condonation
application.
[6]
The appellants then delivered a replying
affidavit. I pause to note that the replying affidavit was not
uploaded to the CaseLine’s
file. The file is, in any event, in
complete disarray, rendering navigation difficult.
[7]
In reply, the appellant’s attorney
states: “… the appellant’s condonation application
should be approached
on the basis that the respondent has in fact not
demonstrated any substance, whatsoever, in his opposition.” The
misconception
that a court will approach a condonation application
from the viewpoint that a respondent must demonstrate substance in
its opposition
shall be revisited in the discussion below.
[8]
Despite having been invited to provide
evidence that the email containing the SCA-order landed in the spam
section of the appellant’s
attorney’s mailbox, no proof
was uploaded. The applicant relied on the SCA-order as sufficient
proof of prospects of success
in the appeal.
Discussion
[9]
The application for condonation was brought
on motion. It is well-established that the affidavits filed by
parties must contain
not only the necessary averments to obtain the
relief sought, but also the evidence to substantiate the averments.
For this reason,
it is not sufficient for an applicant in a
condonation application to merely aver that good cause exists for the
granting of condonation.
The applicant must provide the necessary
evidence, the facts and proof thereof where necessary, upon which the
court can conclude
that good cause indeed exists for the granting of
condonation.
[10]
In
United
Plant Hire (Pty) Ltd v Hills and Others
1976 (1) SA 717
(A) 720E-G, the following well-known principles were
established:
“
It
is well established that in considering applications for condonation
the court has a discretion to be exercised judicially upon
a
consideration of all facts and that in essence it is a question of
fairness to both sides. In this inquiry relevant considerations
may
include the degree of non-compliance with the rules, the explanation
therefor, the prospects of success on appeal, the importance
of the
case, the respondent’s interest in the finality of his
judgment, the convenience of the court and the avoidance of
unnecessary delay in the administration of justice. These factors are
not individually decisive but are interrelated and must be
weighed
one against the other; thus, a slight delay and good explanation may
be held to compensate for prospects of success which
are strong.”
[11]
The
Constitutional Court subsequently held in
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[1]
that
an applicant for condonation must give a full explanation for the
delay, which must not only cover the entire period of the
delay but
must also be reasonable.
[12]
This court operates on the premise that the
parties’ attorneys are officers of the court. Consequently, a
high premium is
placed on their credibility. If an attorney attests
under oath that an email landed up in a spam folder, this court
accepts it
– to do otherwise would affect the functioning of
the courts at its core. However, acceptance of an explanation for a
delay
does not equate to a finding of reasonableness. Other important
questions remain unanswered: who was the primary recipient to whom
the email from the Bloemfontein office was addressed, as the deponent
to the condonation application was merely cc-ed on the email,
and
what was his or her role in this matter and in the prosecution of the
appeal? Why did the attorney not check the spam folder
frequently if
there was an indication of unread mail in the folder, as there
inevitably must have been? What steps were taken between
6 February
2024 and 21 February 2024 when the existence of the SCA-order was
noted, and the notice of appeal and condonation application
were
filed?
[13]
The unanswered questions render the State
Attorney’s explanation for the delay inadequate. It renders the
explanation sparse
and lacking in particularity. Whether it will
prove to be fatal for the condonation application can only be
considered in conjunction
with other factors such as prejudice to the
opposing party and the latter’s interest in the finality of his
judgment and
the applicant’s prospects of success on appeal.
[14]
I find it inexplicable that a party that
must establish a
bona fide
intention to proceed with an appeal seeks the postponement of the
application on the day the matter is set down to be finally
determined, without having filed a substantive postponement
application. The applicant seems to approach this litigation in a
very
lackadaisical manner. From the onset of the proceedings in the
court
a quo
,
there seems to have been a lack of commitment. The record reflects
that discovery was not done adequately. This directly affected
the
quality of the evidence led on behalf of the Minister and culminated
in the court
a quo
’s
finding that the arrest was unlawful, a finding not challenged on
appeal. The application for leave to appeal was filed
late, and
condonation was sought; the court
a quo
refused it, and the SCA subsequently granted it. While again faced
with the need to seek condonation for the late filing of the
appeal
before this court, the applicant did not get its affairs in order and
sought a postponement on the day the matter was to
be heard.
[15]
This laissez-faire approach is to be
weighed against the respondent’s interest in the finality of
his judgment. The respondent
was incarcerated for more than two years
after being unlawfully arrested and has been released because of a
lack of evidence. In
October 2022, he was the successful party in a
delictual claim instituted against the Minister and was awarded R2
million for general
damages. In March 2026, he is still waiting to
benefit from the judgment. The respondent’s interest in the
finality of his
judgment speaks for itself, and the continued
uncertainty occasioned by the applicant’s failure to prosecute
the appeal timeously
results in prejudice to the respondent.
[16]
The
applicant’s prospects of success on appeal have to be
considered in light of the judgments handed down by the
Constitutional
Court in
De
Klerk v Minister of Police
[2]
and
Mahlangu
v
Minister of Police.
[3]
It weighs heavily that the Minister did not appeal the court
a
quo’s
finding that the arrest was unlawful. The Minister seems to be under
the misapprehension that it was for Mr. Thure to prove that
his
continued detention after his first appearance in court, which arose
from an unlawful arrest, was attributable to the members
of the South
African Police. As I read
De
Klerk
and
Mahlangu,
the onus to prove that the detention was lawful rests firmly on the
police, particularly if the preceding arrest was unlawful.
The record
reflects that the investigating officer opposed bail. However, he
never testified as to what transpired at court that
would exonerate
the Minister. On this aspect, prospects of success on appeal
are slim.
[17]
The
Minister also takes issue with the quantum and submitted in the
notice of appeal that the court
a
quo
erred
in making such a substantial award. The assessment of general damages
is inherently discretionary. It is trite that a court
on appeal can
interfere with an award for general damages if the appeal court is of
the view that there was a misdirection or error
committed by the
court
a
quo
,
or a striking disparity between what the trial court awarded and what
the appeal court considers ought to have been awarded,
[4]
or where the trial court’s award lacks a sound basis. The mere
fact that a court on appeal would grant a lessor award is
not enough
to interfere with the court
a
quo
‘s
award. The applicant’s prospects of success have not been
convincingly established.
[18]
If the factors mentioned above are
considered holistically, the applicant has failed to provide a full
and satisfactory explanation
for the delay. The prospects of success
for the applicant are, at best, weak. In these circumstances, the
interests of justice
are not in favour of the granting of
condonation.
Costs
[19]
Costs follow success. To indicate the
court’s displeasure with the way in which the applicant
approached this condonation
application, a punitive cost order is
granted.
ORDER
In
the result, the following order is granted:
1.
The application for condonation is dismissed.
2.
The appeal has lapsed and is struck from the roll.
3.
The Minister of Police is to pay the costs of suit, including
the costs of the appeal on attorney and client scale.
E van der Schyff
Judge of the High Court
I agree
A Millar
Judge of the High Court
I agree
L Retief
Judge of the High Court
Delivered:
This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
If there is a
discrepancy between the date the judgment is signed and the date it
is uploaded to CaseLines, the date it is uploaded
to CaseLines is
deemed the date the judgment is handed down.
For
the applicant:
Adv.
S.K. Lekitima
Instructed
by:
State
Attorney
For
the respondent:
Adv.
M. Tjiana
Instructed
by:
Makapan
Attorneys
Date
of the hearing:
18
March 2026
Date
of judgment:
23
March 2026
[1]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at 477A-D.
[2]
2020
(1) SACR 1 (CC).
[3]
2021 (2) SACR 595 (CC).
[4]
Minister
of Police v Dlwathi
[2016]
JOL 35451
(SCA).