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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:   33740/14

Not reportable

Not of interest to other judges

Revised.

9/11/2017

In the matter between:

MINISTER OF POLICE                                                                                         Applicants

and

MIKE NCUBE                                                                                                     Respondent

LEAVE TO APPEAL: JUDGMENT

 

MOLAHLEHI, J:

[1] This is an urgent application for leave to appeal against the decision of this court made on 23 August 2017, in terms of which judgment was entered in favour of the respondent. The applicant was consequently ordered to pay the respondent the sum of R90 000,00 for the unlawful arrest and detention of the respondent.

[2] The applicant having conceded to the merits, the only issue that remained for consideration was the amount of damages to be awarded to the respondent. The applicant in this respect raised several grounds of leave to appeal which I do not deem necessary to repeat in this judgment as the same appears in the notice of application which serves as part of the record. The essence of the applicantion is that this court in awarding the respondent the sum of damages, as it did, exercised its discretion improperly and unfairly.

[3] Counsel for the applicant emphasised that this court erred in not taking into account the following factors:

a. The respondent is a young person;

b. The period spent gaol;

c. His social standing;

d. He was not subject to negative publicity in the arrest;

e. There was no malice on the part of the police when they effected the arrest;

f.  The respondent was alone in the police van when he was taken to the police station.

[4] The test to apply when considering an application for leave to appeal is set out in s 17 of the Superior Courts Act of 2013. The authorities are in agreement that although the legislature has incorporated the common law test into the legislation, it has however placed the standard much higher than it previously was.

[5] The requirement to apply a standard higher than the common law test in the consideration of leave to appeal in terms of s 17(1) of the Superior Courts Act of 2013 is attributed to the use of the word “would” and not “might” in the subsection. In The City of Cape Town v Sanral unreported judgment of Western Cape High Court case number 6165/12  28 August 2014 at paragraph 5) the court said:

“[5] Section 17(1) of the Superior Courts Act provides: Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

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

(b)  (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; (b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and (c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties. Paragraphs (a), (b) and (c) of s 17(1) operate conjunctively to posit the requirements that must be satisfied. It is only the requirement stated in paragraph (a) that allows for some latitude. It may be satisfied in either of the ways contemplated in subparagraphs (i) and (ii). But in all cases, satisfaction of the requirements stated in all three of the paragraphs appears to be required. It is plain that the object is to limit the circumstances in which the High Court as a court of the first instance may grant leave to appeal against any of its decisions.”

[6] The question of whether there is prospect that the applicant would succeed on appeal in this matter has to be assessed in the context where the decision challenged is based on the exercise of discretion. In this regard, it is trite that the appeal court will not readily interfere with the exercise of the discretion in awarding damages unless it is shown that there is “substantial variation” or “striking disparity” between what the trial court awarded and what the appeal court considers ought to have been awarded.    

[7] In Trenton Construction (Pty) Limited v Industrial Development Corporation of South Africa  Limited and Another[1], in dealing with discretion based judgement on appeal said: 

“[88] When a lower court exercises  discretion in the true sense, it would ordinarily be inappropriate for an appellate court to interfere unless it is satisfied that this discretion was not exercised—

“judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.”

An appellate court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the lower court.”

[8] The Constitutional Court in dealing with the appealability of discretion based judgment in Ferris and Another v  First Rand Bank Ltd,[2] said:

“an appellate court may interfere with the exercise of a discretionary power by a lower court only if that had not been properly exercised. This would be sought if the court has exercised the discretionary power capriciously, was moved by a wrong principle of law or an incorrect appreciation of the facts, not brought its unbiased judgment to bear on the issue, or had not acted for substantial reasons.”

[9] In the present matter the court in awarding the damages in favour of the respondent reasoned as follows:

“In my view, there is no doubt that the plaintiff in the present matter suffered humiliation and trauma as a result of the unlawful arrest. As alluded to above he was arrested in front of his neighbours and patrons of the bar. The arrest was not only unjustifiable but also unreasonable when regard is had to the offer which was made by the hotel manager for the police to watch CCTV footage relating to the incident which was the basis for the complaint of the patron and which apparently formed the basis for the police to effect the arrest. It is apparent that the footage was offered to assist them in formulating discretion whether or not to arrest the plaintiff.”

[10] In my view, considering the judgment as a whole and in particular the above reasoning I am not persuaded that this court did not apply the correct principle of the law to the facts and circumstances of this case. In arriving at the conclusion that a fair and equitable compensation for the respondent was R90 000,00 the court took into account the totality of the facts and the circumstances of the case.

[11] In light of the above, I am of the view that the applicant has failed to make out a case for leave to appeal.

Order

[12] In the premises, the applicant’s application for leave to appeal is dismissed with costs.

 

____________________

E Molahlehi

Judge of the High Court of South Africa; Johannesburg

 

Representation:

For the Applicant: The State Attorney

For the Respondent: Mr. D Bessinger

Instructed by: Bessinger Attorneys

Heard on:  26 October 2017

Delivered on:  9 November 2017

 

[1] [2015] ZACC 22 at paragraphs 87 to 88) the SCA

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