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# South Africa: South Gauteng High Court, Johannesburg
South Africa: South Gauteng High Court, Johannesburg
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[2022] ZAGPJHC 856
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## Saipen v Minister of Police and Another (19387/2018)
[2022] ZAGPJHC 856 (2 November 2022)
Saipen v Minister of Police and Another (19387/2018)
[2022] ZAGPJHC 856 (2 November 2022)
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sino date 2 November 2022
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
CASE
NUMBER: 19387/2018
DATE
OF HEARING: 31 October 2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In the matters between:
MKHIZE SIBONGISENI
SAPIEN
Appellant
and
THE MINISTER OF
POLICE
1
st
Defendant
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
2
ND
Defendant
This
judgment has been delivered by being uploaded to the caselines
profile on 2 November 2022 at 10h00 and communicated to the
parties
by email.
JUDGMENT
IN
APPLICATION FOR LEAVE TO APPEAL
Sutherland
DJP
[1]
This is an application for leave to appeal brought by the defendant,
the Minister
of Police, against a judgment of Victor J, who has
retired, and as a result the application was argued before me.
[2]
Condonation for the late filing of the application was sought.
Although opposed, in
my view condonation is appropriate. The key
issue in the delay was the lapse of time for the judge to give
reasons for the order.
It is inappropriate to be precious about such
applications. The delay is minor. There is no material prejudice.
Thus, Condonation
ought to be granted.
[3]
The order made by Victor J upheld the case of an unlawful arrest and
awarded the plaintiff
damages. The plaintiff had been arrested on a
charge of raping a minor, held for some time and thereafter the
charges were withdrawn.
According to the judgment, ostensibly, the
arrest was a part of a rather inept exercise in which no prior
investigation seemed
to have been undertaken.
[4]
The main thrust of the criticism of the judgment seems to be that
allusions made therein
to the police having erred in not referring
the complaint of rape to a specialised sex crimes unit. Apparently,
it was thought
that this unit would have not have blundered. The
argument advanced seems to centre this criticism as part of the
ratio. In my
view this not the obvious interpretation to cast upon
that part of the judgment. Were it omitted, the outcome would not be
materially
affected.
[5]
The balance of the criticisms related to findings of fact about which
there may be
different opinions, but remain the trial court’s
function to make choices. However, the core common cause fact was the
arrest
and humiliation of a person who was later fully exonerated
once an investigation had been fully carried out.
[6]
In my view another court is unlikely to conclude that the order
should be overturned.
[7]
The application should fail.
The
Order
(1)
Condonation of the late filing of the application
is granted.
(2)
Leave to appeal is refused.
(3)
The applicant for leave to appeal (the Defendant)
shall pay the costs of the respondent’s (Plaintiff) opposition.
Sutherland
DJP
Heard:
31 October 2022
Judgment:
2 November 2022
The
Appellant/s were represented by:
Adv NM Mtsweni
Instructed
by:
Mr Malape – State Attorney
The
Defendant were represented by:
Adv S Vobi
Instructed
by:
Mtumtum Incorporated
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