IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO: 2109/2018 
 (1)    REPORTABLE:  NO
(2)    OF INTEREST TO OTHER JUDGES:  NO 
(3)    REVISED
DATE 28/08/2024
  SIGNATURE
In the matter between:
THABANG MOGOROSI			PLAINTIFF	 

AND

THE MINISTER OF POLICE		FIRST DEFENDANT

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS		SECOND DEFENDANT
_______________________________________________________________________

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
_______________________________________________________________________

CORAM: LANGA J: 

Introduction and Concise Facts
[1]	This is an application for leave to appeal the order granted by this court on 12 July 2024 dismissing the Plaintiff’s claim. The Plaintiff, Mr Thabang Mogorosi, instituted an action for damages for unlawful arrest and detention as well as malicious prosecution against the Minister of Police and the National Director of Prosecution respectively.
 
[2]	The damages claim arises out of the arrest of the Plaintiff on 12 August 2017 by a police officer on charges of rape. He was subsequently detained in the holding cells for 3 days and further at Modderbee Correctional facility for 57 days until he was released on bail on 10 October 2017. It is further common cause that the charges against him were eventually withdrawn by the prosecution on 27 February 2018. The Plaintiff contended that the employees of the First and Second Defendant’s wrongfully arrested, detained and prosecuted him. At the conclusion of the trial the court dismissed the claim with costs.

Applicable legal principles
[3]	Applications for leave to appeal are now governed by the provisions of Section 17(1) of the Superior Courts Act 10 of 2013 which provides as follows:

“17 Leave to appeal
(1) 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

(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.”

[4]	It is trite that the test in such applications has changed substantially from the test ordained in terms of the repealed Supreme Court Act 59 of 1959.  The current standard is captured succinctly in the case of The Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others LCC14R/2014, (3 November 2014) at para 6 in which the Court stated that “the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act and that in terms of the former test the question was whether or not there 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 343H. The use of the word “would’ in the new statute is indicative of a measure of certainty that another will differ from the court whose judgment is sought to be appealed against.”

[5]	This position has since been confirmed in other Divisions of the High Court and it is therefore evident that the current section is now more burdensome than its predecessor. Smith J in the Valley of the Kings Thaba Motswere (Pty) Ltd [2016] ZAECGHC 137 (10 November 2016) acknowledged the new standard created by section 17 but added that the contextual construction of the phrase “reasonable prospect of success’ still requires of the Judge, whose judgment is sought to be appealed against, to consider, objectively and dispassionately, whether there are reasonable prospects that another court may well find merit in argument advanced by the losing party.”

[6]	In Hunter v Financial Services Board 2017 JDR 0941 (GP) it was held that leave to appeal may only be granted if the court of first instance is of the opinion that the appeal would have reasonable prospects of success or is arguable. There must therefore be merit in the Applicant’s argument in support of the application for leave to appeal and the Applicant must satisfy the court that the appeal would, not might, have reasonable prospects of success either on facts or the law. Furthermore, the peremptory provisions of Rule 49 (1) (b) require a litigant in an application of this nature to clearly and succinctly set out the grounds of appeal in unambiguous terms. Songono v Minister of Law and Order 1996 (4) SA 384.

The Applicant’s grounds of appeal
[7]	The Applicant in essence contends that the court erred in not finding that the First Defendant failed to discharge the onus to prove that the arrest and detention of the Plaintiff was unlawful. Although more than ten grounds of appeal appear from the notice, some however are interlinked. They can best be summarised as follows:

1. 	That the court erred in holding that the Defendants pleaded the material facts to ground their defences and by concluding that they were entitled to lead evidence;

2.	That the court erred in concluding that where section 40(1)(b) of Act 51 of 1977 is relied upon, it is sufficient for the defendants to plead only the jurisdictional facts and that these constitute material facts;

3.	That the court erred in rejecting the version of the Plaintiff which was not challenged and accepting that of the arresting officer.

4.	That the court erred in finding that the prosecutors proceeded with the prosecution of the Plaintiff on the basis of the sworn statement made by the complainant and that they were satisfied that the State had a solid case against the accused; 

5. 	The court erred in finding that the J88 report strengthens that case of rape against the Plaintiff whereas in fact the doctor reported that there was no indication that the complainant was ever vaginally penetrated.

6. 	That the court erred in finding that the Plaintiff failed to prove that he was prosecuted without any reasonable cause and that there was no animus injuriandi on the part of the prosecutors.	 

[8]	I must state from the onset that almost all the grounds of appeal in this leave to appeal constitute a rehash of the issues which were argued and dealt with comprehensively at the trial. I will therefore not deal therewith again in this application. Suffice it to say that the Defendants presented solid evidence on their defence.
 
[9]	Concerning the contention that the First Defendant failed to make the material allegation in the plea, this was also comprehensively dealt with and rejected. The First Defendant raised the section 40(1)(b) jurisdictional factors on which their defence is predicated. The First Defendant did not rely on any other defence which would have called for further facts in addition to the jurisdictional facts pleaded.   

[10]	It must further be stated here that the contention that the defendants were not entitled to lead evidence is also incorrect and not supported by the facts in this case. The evidence adduced by the Defendants was based on their defence and there was therefore no reason why they could not be allowed to lead evidence. 

[11]	Concerning the J88 medical report, it is not correct as is now alleged by the Plaintiff, that the doctor who examined the complainant stated that there was no evidence that the complainant was sexually penetrated and that she was surprised that anyone could suggest that the complainant was raped. She simply did not give such evidence. The J88 report, if anything, could not take the matter further save to state that the complainant’s private parts were tender to palpitation.

[12]	It is trite as stated above that for leave to appeal to be granted in terms of section 17(1), the Applicant must prove that another court would come to a different conclusion from this court’s decision. The test is stringent and leave to appeal cannot be granted willy nilly. In Mothuloe Incorporated Attorneys v Law Society of the Northern Province and Another (213/16) [2017] ZASCA 17 (22 March 2017) para [18] the Supreme Court of Appeal made the following remarks which are important in the determination of an application for leave to appeal: 

“… It is important to mention my dissatisfaction with the court a quo’s granting of leave to appeal to this court. The test is simply whether there are any reasonable prospects of success in an appeal. It is not whether a litigant has an arguable case or a mere possibility of success. Section 17(1) of the Superior Courts Act 10 of 2013 provides that:

‘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

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

This court has in the past bemoaned the regularity with which leave is granted to this court in respect of matters not deserving its attention. (See Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC & others 2003 (5) SA 354 (SCA) para 23.) This is one case where leave to appeal should have been refused for lack of reasonable prospects of success.” (my emphasis).

[13]	In the final analysis, I find that there is no merit in this application. The requirements of section 17 of the Superior Court Act have not been met in this case. No meritoriuos ground of appeal as conteplated in the section have been raised by the Applicant. The Applicant has consequently not demonstrated that the appeal has any reasonable prospects of success. This application therefore stands to be dismissed. 

Order
[14]	In the result I make the following order:

The application for Leave to Appeal is dismissed with costs on Scale B of Rule 69(7) of the Uniform Rules of Court. 

MBG LANGA
JUDGE OF THE HIGH COURT

Appearances:
For the Applicants:					Advocate LP Mkize SC
Instructed by:						Mkize Attorneys, Delmas
For the Respondent:					Advocate M Raphahlelo
Instructed by:						State Attorney, Pretoria
Date heard:				23 August 2024
Date delivered:				28 August 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 28 August 2024 at 12h00.