REPUBLIC  OF  SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG    DIVISION,  PRETORIA	
CASE NO: 33643/2011
DATE: 31 MAY 2016
In the matter between:

JATHEEN SHIMA	APPLICANT

and

THE STATE	RESPONDENT

J U D G M E N T

KUBUSHI,J

[1] The applicant (the plaintiff  in the  trial  court),  seeks  leave to  appeal to the full
 bench of this court, alternatively, to the Supreme Court of Appeal, against the
 entire judgment  I granted on 1 March 2013,  under case number   33643/2011.

[2] The applicant filed his application for leave to appeal out of time and at the  commencement of the hearing of this matter his counsel applied for  condonation. The application for condonation was  not opposed.   I granted the application.

[3] At the trial, the applicant was claiming damages against the respondent (the defendant in the trial court) for being unlawfully assaulted, ridiculed and verbally abused by members of the South African Police Service (SAPS).  I  was  in  my judgment not satisfied that the applicant had on the preponderance of probabilities shown that he was assaulted by the members of SAPS. I, in that regard, found that the applicant failed to demonstrate a  higher  probability  value  than  the  respondent and ordered  absolution from the instance.

[4] The applicant  is  relying  on  various  grounds  of  appeal  in  his  application for leave to appeal. The main ground, as is argued by his counsel before me, is that I erred in my finding that the applicant did not, on a balance of probabilities, satisfy me that he was assaulted  by members of  SAPS.

[5] Based on this ground, counsel for the applicant's submission is that there are prospects of success in the appeal in that another court may, after evaluation of the facts of the case, come to a different  conclusion.

[6]   Despite the  reasons for  my findings  which  have  been  extensively  set  out  in my judgment, I am of the view that since I decided the issues purely on credibility findings based on the probabilities as  I saw  them,  there  are  reasonable prospects that another court may find differently on such probabilities and,  possibly,  find  in favour of the respondent rather than the applicant. Leave to appeal  should  on that basis be granted.

[7] Application for condonation is granted and leave is accordingly, granted to the applicant to appeal to the Full Court of this Division only on the  ground  of appeal argued before me.

E.M. KUBUSHI

JUDGE  OF THE  HIGH COURT

'      .

APPEARANCES:

HEARD ON THE

DATE OF JUDGMENT APPLICANT'S COUNSEL APPLICANT'S ATTORNEYS RESPONDENTS' COUNSEL RESPONDENTS'  ATTORNEY

4

: 26 MAY 2016

: 31 MAY 2016

: ADV. N.F DE JAGER

: BARNARD&PATEL INC

: ADV. M MANALA

: STATE ATTORNEY