Maqala v Minister of Police (1418/2020) [2021] ZAFSHC 346 (7 October 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case No: 1418/2020

In the matter between:

TSHIDISO DANIEL

MAQALA

APPLICANT

And

MINISTER

OF POLICE

RESPONDENT

CORAM: NEKOSIE, AJ

HEARD ON: In terms of Section 19A of the Superior Court Act 10 of 2013 the parties elected to submit heads of argument for consideration of the application by the Judges in chambers.

JUDGMENT BY: NEKOSIE, AJ

DELIVERED ON: 7 October 2021

[1] This is an application for leave to appeal against the whole order and judgment of this Court of 11 December 2020 in case number 4480/2020. The application is opposed.

[2] The grounds on which leave to appeal is are sought are the following:

“1. The Honourable Court erred in finding that the applicant's particulars of claim only disclose causes of action for unlawful arrest and unlawful detention;

2. The Honourable Court erred by failing to hold and/or consider that the applicant has an alternative claim based on malicious arrest and/or imprisonment, being a species of and/or a remedy analogous to malicious prosecution, and/or malicious prosecution against the respondent;

3. The Honourable Court erred in upholding the respondent's special plea of prescription in respect of the damages arising from the unlawful arrest;

4. The Honourable Court erred in dismissing the applicant's "claim", rather than granting the applicant an opportunity to apply for condonation in terms of Act 40 of 2002, to the extent that that the applicant failed to give the requisite notice to the respondent in terms of section 3 of Act 40 of 2002 and after finding that the applicant's claim for damages arising from unlawful detention stands to be determined;

5. The Honourable Court erred by dismissing the applicant's "claim" with costs.”

[3] I commence with what is required for the applicant to succeed with the application for leave to appeal. Leave to appeal is governed by Section 17 of the Superior Courts Act 10 of 2013 (the Act). Subsection 17(1)(a) reads as follows:

“(1) Leave to appeal may only be given by where the judge or judges concerned are of the opinion that-

(a)(i) the appeal would have a reasonable prospect of success;

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;”

[4] In the unreported decision of the Mont Chevaux Trust v Tina Goosen[1], it was held that:

"It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden V Cronwright and others, 1985(2) SA 342 (T) at 343. The use of the word 'would' in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against."

[5] The Mont Chevaux decision was cited with approval by Chesiwe J in the matter of K2011148986 (South Africa) (Pty) Ltd v State Information Technology Agency (Soc) Ltd[2]. The applicant thus faces a higher and stringent threshold in terms of the Act[3]. They must convince this court on proper grounds that there are reasonable prospects of success on appeal[4].

Ground 1 and 2[5]

[6] The aspect on whether the particulars of claim included a claim for malicious prosecution was dealt with in paragraph 12 of the judgment. I will elaborate on what I have pronounce by pointing out that the applicant sort to rely on the on the inclusion of the phase “and/or malicious” in paragraph 3.2 of the Particulars of Claim for his submission that a claim for malicious prosecution. When looking at the context in which it is stated, it clearly and at best, refers to malicious arrest. None of the other essential requirements for a claim based on malicious prosecution as a cause of action have been pertinently pleaded. It cannot be expected from a court to infer what the causes of action of a plaintiff is. The pleadings should be clear and unambiguous.

[7] The reference to Thompson and Another v Minister of Police[6] does not assist the applicant because comprehensive reading of the judgment does not support the submission, particularly in relation to the manner in which the different causes of action should be pleaded. It is for instance not alleged that the respondent set the law in motion against the plaintiff. Furthermore, nothing is mentioned in the particulars of claim about the prosecution of the applicant, save to say that Captain Mbhele gave false evidence during the bail application which prolonged the applicant`s detention.

[8] The submission that malicious arrest as referred to in the particulars of claim is analogous to malicious prosecution is a futile attempt to cast the proverbial fishnet in the hope of classifying, what is ordinarily two distinct causes of action, under one.

Ground 3

[9] The aspect of prescription was comprehensively dealt with in the judgment in in paragraphs 4 to 11 and warrants no further elaboration.

Ground 4

[10] The applicant acknowledged and conceded that he failed to comply with the provisions of section 3 of Act 40 of 2002 in that he failed to give notice to the respondent of his intention to claim for damages for unlawful arrest and detention.

[11] The applicant made no attempt to address the non-compliance after receiving the special plea of the respondent. He chose not to launch an application for condonation and argued the special pleas without leading any evidence to give the court insight into his non-compliance.

[12] The applicant is submitting that the court should first have dispensed with the issue of prescription before it was necessary to decide whether an application for condonation should be launched.

[13] It is a well-known and established principle that condonation should be sort as soon as a party realises that it is required.[7] The applicant`s aforementioned submission flies in the face of this principle. The delay in bringing an application for condonation is a ground for dismissing the application for condonation.[8] In this case the application was not delayed, the applicant simply did not make any attempt to bring an application for condonation.

[14] The two special pleas are not enjoined to each other and therefore there was no reason to hold off on the application for condonation as submitted by the applicant.

Ground 5

[15] In light of the fact that the judgment went against the applicant there is in my view why the proverbial spoils should not go to the victor.

[16] Consequently in light of the above I find that the appeal have no reasonable prospect of success and there exist no other compelling reason why the appeal should be heard.

[17] Therefore I would make the following order:

ORDER

1. The application is dismissed with costs.

2. Costs to include those incurred by employment of Counsel

N.M. MBHELEC. NEKOSIE, AJ

On behalf of the Applicant: Adv HJ Van der Merwe

Ms O Van Tonder

Symington De Kok Inc

BLOEMFONTEIN

On behalf of the Respondent: Adv GJM Wright

Instructed by:

State Attorney

[1] Mont Chevaux Trust v Tina Goosen Unreported, LCC case no LCC14R14 dated November 2014.

[2] K2011148986 (South Africa) (Pty) Ltd v State Information Technology Agency (Soc) Ltd 2021 JDR 0273 (FB) at para 4-5

[3] Notshokovu v S (157/15) [2016] ZASCA 112 (7 September 2016) at para 2

[4] MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016) at para 16

[5] I use the applicant`s numbering for ease of reference.

[6] Thompson and Another v Minister of Police 1971(1) SA 371 (E)

[7] Minister of Agriculture and Land Affairs v CJ Rance 2010(4) SA 109 (SCA) at [39]

[8] Madinda v Minister of Safety and Security v De Witt 2009(1) SA 457 (SCA)