Ntombela v Minister of Police (23541/2018) [2024] ZAGPJHC 1218 (22 November 2024)
The court found that the applicant had made out a proper case for leave to appeal. Although the applicant withdrew his application for condonation, which was central to the dismissal of his claim for wrongful arrest and detention, there remain prospects of success on appeal regarding whether a proper case was made...
Source-derived case information.
- Citation
- [2024] ZAGPJHC 1218
- Parties
- Applicant: Bongani Ntombela; Respondent: Minister of Police
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 23541/2018
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim and Upholding of Special Plea
- Outcome
- Leave to appeal to the full bench of this court is granted.
- Judges
- Francis
- Legal Topics
- Condonation, Special Plea, Leave to Appeal, Wrongful Arrest, Unlawful Detention
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bongani Ntombela
Applicant
Minister of Police
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim and Upholding of Special Plea
Legal Issues
- 1 Whether the applicant has made out a proper case for leave to appeal.
- 2 Whether there are reasonable prospects of success on appeal regarding the special plea and condonation.
- 3 Whether the withdrawal of the condonation application was fatal to the applicant's claim for wrongful arrest and detention.
Ratio Decidendi
The court found that the applicant had made out a proper case for leave to appeal. Although the applicant withdrew his application for condonation, which was central to the dismissal of his claim for wrongful arrest and detention, there remain prospects of success on appeal regarding whether a proper case was made out for not pursuing condonation. The issues raised in the application for leave to appeal were previously addressed in the judgment, but the court was persuaded that the matter warrants consideration by a higher court.
Court Disposition
Leave to appeal to the full bench of this court is granted.
Orders
- The application for leave to appeal to the full bench of this court is granted.
- Costs are costs in the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 23541/2018
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
22 November 2024 EJ Francis
In the matter between:
NTOMBELA, BONGANI Plaintiff and MINISTER OF POLICE Defendant
JUDGMENT
FRANCIS J
1. This is an opposed application by the applicant for leave to appeal to the full bench of this court, alternatively to the Supreme Court of Appeal against the whole of my judgment and order, delivered on 22 March 2024. This was after I had upheld the defendant’s special plea and had dismissed the plaintiff’s claim for wrongful arrest and detention as a result of his failure to have applied for condonation. Each party were ordered to pay its own costs.
2. The applicant has raised 12 grounds for leave to appeal contained in his application for leave to appeal dated 3 April 2024. It is unnecessary to repeat those grounds for leave to appeal. I had found that the plaintiff should have applied for condonation which he initially did but then withdrew it on the first day of the hearing. But for the withdrawal of the application for condonation I would have found that the plaintiff’s arrest and detention was unlawful.
3. The parties were instructed to file heads of arguments and were informed that the application for leave to appeal would be decided on the documents that were so filed. These were duly filed.
4. I do not deem it necessary to deal with the grounds for leave to appeal since I have dealt with all of the issues that is raised in my comprehensive judgment.
5. The applicant’s application for leave to appeal is brought in terms of the provisions of section 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 (the Superior Courts Act). The aforesaid section provides that leave to appeal may only be given where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success and that there is a compelling reason why the appeal should be heard including conflicting judgments on the matter under consideration.
6. The applicant has raised nothing new in his application for leave to appeal. All the issues that he has raised were dealt with by me in my judgement. It is unclear why the applicant had abandoned his application for condonation. Ultimately the appeal centres around the special plea which is linked to the application for condonation. The applicant has some prospects of success on whether a proper case was made out for him not to pursue the issue of condonation.
7. I am persuaded that a proper case has been made out by the applicant for leave to appeal.
8. Costs are costs in the appeal.
9. In the circumstances the following order is made:
9.1 The application for leave to appeal to the full bench of this court is granted.
9.2 Costs are costs in the appeal.
HIGH COURT JUDGE
GAUTENG LOCAL DIVISION
FOR PLAINTIFF: D MOODLIYAR INSTRUCTED BY LEON JJ VAN RENSBURG ATTORNEYS FOR DEFENDANT: R E MAGONGWA INSTRUCTED BY STATE ATTORNEY, JOHANNESBURG DATE OF JUDGMENT: 22 NOVEMBER 2024
This judgment was handed down electronically by circulation to the parties’ and/or parties’ representatives by email and by being uploaded to caselines. The date and time for hand-down is deemed to be 10h00 on 22 November 2024.