Minister of Safety and Security v Lolwane and Others (22638/2002) [2017] ZAGPPHC 965 (19 December 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 22638/2002

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED.

19/12/2017

In the matter between:

MINISTER OF SAFETY AND SECURITY Applicant/Defendant

and

T L LOLWANE First Respondent/First Plaintiff

W M LOLWAN Second Respondent/Second Plaintiff

J RAMOTHIBE Third Respondent/Third Plaintiff

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

Rautenbach AJ

1. This is an application for leave to appeal against this Court's Judgment, orders 1 and 2 by the Court which was handed down by the Court on the 1st December 2016.

2. The orders appealed against is the orders declaring that the Applicant (then Defendant) was liable to the First, Second and Third Respondents in regards to the shooting accident.

3. At the outset as pointed out in my Judgment, the onus to justify the shooting by the Applicant's employees always rested on the Minister of Safety and Security.[1]

4. I had the opportunity of observing apart from listening to all the witnesses that gave evidence in Court.

5. As I have pointed out in my Judgment, I did not summarise the evidence of the Plaintiffs in the matter and if there were any contradictions in their evidence, it was of a minor nature. They impressed me a credible witnesses and their version of the events was quite simple claiming that the attack on them was not provoked.

6. I had to consider the evidence of the witnesses called on behalf of the Minister for State and Security and I have pointed out in my Judgment that three witnesses were called in this regard. I have pointed out that I did not believe the evidence of the witness of Pele and that her evidence could safely be rejected as far as the shooting incident is concerned.

7. As far as the evidence of the Policeman Ramakatsa and Montshiwagae were concerned, there were aspects in their evidence that were wholly unsatisfactory.

8. As I have pointed out it was only during the trial that it became apparent, on their version, that the Second Plaintiff was armed with a panga. This very important aspect of evidence was never recorded in the initial statements taken by the Police. A further aspect that was wholly unbelievable was the fact that the two Policemen explained that they did not claim the said panga for purposes of any investigation that may have followed despite the fact that people were injured through live shots that were fired.

9. I have also pointed out other improbabilities as for instance differences in evidence as between one or two groups or groups from both sides attacking the said Policemen.

10. It was pointed out in the application for leave to appeal that there was no evidence that a third plaintiff was injured.

11. The record will bear me out that the Third Respondent was slightly injured in that he was hit very slightly by a bullet that was aimed at or that was intended for the Second Plaintiff. In the circumstances my finding was that the Minister was liable for the injuries so suffered. I am not of the view that this is an important matter in this case. If he suffered any damages, they were negligible and almost of no consequence.

12. In the Notice of Appeal it was pointed out that I failed in making a negative finding as against the fact that Counsel for the Plaintiffs never put their versions to the Respondent's witnesses.

13. I do not believe that the authorities quoted in support of .the Applicant/Defendant, supported the Defendants case in the trial at all. I am further not of the view that the authorities quoted by the Respondents is applicable in the current matter.

14. In my view it would be a senseless exercise after the Plaintiff has led its evidence in all its detail, the Defendants' representatives and/or witnesses knowing in detail what the evidence was before cross-examination starts to still put the Plaintiff's versions to the Defendants.

15. It makes no sense for the Plaintiff in such circumstances to repeat everything a witness might have said during his evidence in chief. This principle of one party that intends to put before a Court evidence is required to put that version to the party applies almost only in circumstances where a party is cross-examined for instance witnesses of the Plaintiff but where the defence did for instance completely fail to put very important aspects of its defence to the Plaintiff not giving such Plaintiff an opportunity to deal with this evidence still to be adduced.

16. During the application for leave to appeal certain Judgments were pointed out to me in regard to the raising of the bar in respect of applications to appeal in general. The first application in this regard was a Judgment by Bertelsmann J[2] in the Land Claims Court supported by Hughes J in another matter and also supported by a Full Bench decision in this Division wherein the Honourable Judge Bertelsmann stated:

"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."

17. These remarks were made in respect of the New Supreme Court Act of 2013 and specifically Section 17 thereof. Hughes J of this Division also held that the bar has been lifted with specific reference to the words "a Court may only grant leave".

18. There is also a Full Bench decision of this Division which refers with approval to Bertelsmann J's Judgment.[3]

19. In my view such an approach may require from a Judge to admit that he was probably wrong in some aspect of his Judgment before refusing Judgment. However it is not necessary for me to express my opinions in this regard.

20. When I apply the test for leave to appeal in this case, both on the so-called Bertelsmann approach or on the old approach, my view is still, no matter which approach I follow there are no reasonable prospects of success in any appeal that might be granted to the Applicant in this application for leave to appeal.

21. The application is thus dismissed with costs.

______________________

J G Rautenbach

Acting Judge of the High Court

Gauteng Division

Pretoria

[1] Mabaso v. Felix 1981 (3) SA 855 (A).

[2] J Mont Chevough Trust (IT2012) (28) v. Tina Goosen and 18 Others (LCC)

[3] See: Acting National Director of Public Prosecutions and Others v. Democratic Alliance In Re: Democratic Alliance v. Acting National

Director of Public Prosecutions and Others at para 25. (19577/09) (2016) ZAGBBHC489 (24 June 2016) the Judgment by His Lordship Mr Justice Ledwaba. Her Ladyship Ms Justice Pretorius and Her Lordship Ms Justice Mothle.