Brown and Another v Director of Public Prosecutions and Others (8045/2008) [2008] ZAWCHC 108 (19 August 2008)
The court found that the applicants failed to show any reasonable prospect that another court would reach a different conclusion than the one previously delivered. The grounds for appeal, as set out in the notices and amplified in argument, did not persuade the court that the judgment was incorrect. Furthermore, the...
Source-derived case information.
- Citation
- [2008] ZAWCHC 108
- Parties
- Applicant: Joseph Arthur Brown; Applicant: Susan Jennifer Brown; Respondent: The Director of Public Prosecutions; Respondent: Directorate of Special Operations (Western Cape); Respondent: The District Control Magistrate (Mr Maku); Respondent: The District Magistrate (Mr Vusi Mhlangu) Cape Town Magistrate Court
- Court
- Western Cape High Court, Cape Town
- Jurisdiction
- South Africa
- Case Number
- 8045/2008
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- Fourie
- Legal Topics
- Leave to Appeal, Reasonable Prospect of Success, Constitutionality Challenge, Criminal Procedure Act Section 43
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Arthur Brown
Applicant
Susan Jennifer Brown
Applicant
The Director of Public Prosecutions
Respondent
Directorate of Special Operations (Western Cape)
Respondent
The District Control Magistrate (Mr Maku)
Respondent
The District Magistrate (Mr Vusi Mhlangu) Cape Town Magistrate Court
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal
Legal Issues
- 1 Whether the applicants have shown reasonable prospects of success on appeal.
- 2 Whether it is appropriate to challenge the constitutionality of Section 43 of the Criminal Procedure Act at this stage.
Ratio Decidendi
The court found that the applicants failed to show any reasonable prospect that another court would reach a different conclusion than the one previously delivered. The grounds for appeal, as set out in the notices and amplified in argument, did not persuade the court that the judgment was incorrect. Furthermore, the court held that the challenge to the constitutionality of Section 43 of the Criminal Procedure Act was raised too late and was not appropriate at this stage of proceedings. Accordingly, the application for leave to appeal was dismissed with costs.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed.
- The applicants are ordered to pay the costs of the application.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOP PROVINCIAL DIVISION) CASE NUMBER: 8045/2008 DATE: 19 AUGUST 2008 In the matter between: 1. JOSEPH ARTHUR BROWN 1st APPLICANT 2. SUSAN JENNIFER BROWN 2nd APPLICANT and 1. THE DIRECTOR OF PUBLIC PROSECUTIONS 1st RESPONDENT 2. DIRECTORATE OF SPECIAL OPERATIONS (WESTERN CAPE) 2nd RESPONDENT 3. THE DISTRICT CONTROL MAGISTRATE (MR MAKU) 3rd RESPONDENT 4. THE DISTRICT MAGISTRATE (MR VUSI MHLANGU) CAPE TOWN MAGISTRATE COURT 4th RESPONDENT JUDGMENT (Leave to Appeal Application) FOURIE, J: The applicants apply for leave to appeal against the whole of the judgment delivered and orders made by me on 2 June 2008. The
application is opposed. It is trite that in an application of this nature, an applicant has to show that it has a reasonable prospect of success on appeal. I have considered the grounds of the intended appeal as set out in the notice of application dated 23 June 2008 as amplified by the amended notice dated 18 August 2008. I have also considered the submissions made on behalf of the parties and in particular too the heads of argument prepared by Mr Khan and handed up today. In my view there is, for the reasons already furnished in my written judgment, no reasonable prospect that another Court will come to a different conclusion than the conclusion to which I had come in my judgment. I should add that as regards the constitutionality of Section 43 of the Criminal Procedure Act, it is in my view not the proper time for applicants, at this belated stage, to challenge the constitutionality of this section. In the result the application for leave to appeal is dismissed with costs. FOURIE, J
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOP PROVINCIAL DIVISION)
CASE NUMBER: 8045/2008
DATE: 19 AUGUST 2008
In the matter between:
1. JOSEPH ARTHUR BROWN 1st APPLICANT
2. SUSAN JENNIFER BROWN 2nd APPLICANT
and
1. THE DIRECTOR OF PUBLIC
PROSECUTIONS 1st RESPONDENT
2. DIRECTORATE OF SPECIAL
OPERATIONS (WESTERN CAPE) 2nd RESPONDENT
3. THE DISTRICT CONTROL
MAGISTRATE (MR MAKU) 3rd RESPONDENT
4. THE DISTRICT MAGISTRATE
(MR VUSI MHLANGU) CAPE TOWN
MAGISTRATE COURT 4th RESPONDENT
JUDGMENT
(Leave to Appeal Application)
FOURIE, J:
The applicants apply for leave to appeal against the whole of the judgment delivered and orders made by me on 2 June 2008. The
application is opposed. It is trite that in an application of this nature, an applicant has to show that it has a reasonable prospect of success on appeal.
I have considered the grounds of the intended appeal as set out in the notice of application dated 23 June 2008 as amplified by the amended notice dated 18 August 2008. I have also considered the submissions made on behalf of the parties and in particular too the heads of argument prepared by Mr Khan and handed up today.
In my view there is, for the reasons already furnished in my written judgment, no reasonable prospect that another Court will come to a different conclusion than the conclusion to which I had come in my judgment. I should add that as regards the constitutionality of Section 43 of the Criminal Procedure Act, it is in my view not the proper time for applicants, at this belated stage, to challenge the constitutionality of this section. In the result the application for leave to appeal is dismissed with costs.
FOURIE, J