Minister of Safety and Security v Sibiya

• Judge: Terblanche AJ
• Judgment Date: 17 June 2004
• Citation: 2004 JDR 0375 (T)
• Docket Number: A1102/03
• Hearing Date: 17 June 2004
• Court: Transvaal Provincial Division

Terblanche AJ:

1

The Appellant, the Defendant in the Court a quo, appeals against the judgment and the order granted by the Magistrate Nzikaze in terms whereof the Court a quo gave judgment in favour of the Plaintiff against the Defendant for payment of the amount of

2004 JDR 0375 p2

Terblanche AJ

R63 420.00 plus interest at a rate of 15,5% per annum from 26 March 2002 to date of payment and costs.

2

The Appellant appeals against, firstly, the refusal by the Court a quo to grant the Defendant a postponement of the matter on 2 April 2003 and secondly against the quantum of the award.

3

The Respondent, the Plaintiff in the Court a quo, claimed damages flowing from an alleged unlawful arrest and detention by the South African Police.

4

The Plaintiff was arrested on a charge of contempt of court and detained for a period of approximately three days. The charge against the Plaintiff was withdrawn by the Public Prosecutor on 11 March 2002. The Plea delivered by the Defendant is, to say the least, strange and is to the effect that the Plaintiff was not arrested. The attorney representing the Plaintiff before the Court a quo, Mr Bosman, informed the Court that he acted for the Plaintiff in the criminal case and that the Defendant's Plea had obviously been drawn without proper instructions.

5

The Plaintiff testified and his evidence is to the effect that he was arrested at midnight on 26 October 2001. He was detained until 29 October 2001 when he was granted bail. He subsequently

2004 JDR 0375 p3

Terblanche AJ

appeared in Court on a number of occasions. The proceedings eventually terminated in his favour when the Public Prosecutor withdrew the charges against him.

6

At the hearing Mr Mtshweni, on behalf of the Defendant, applied for a postponement on the basis that he had just been briefed and had not been able to get the contents of the file.

7

Mr Bosman outlined the case history to the Court a quo and emphasised that it was the second request for a postponement by the Defendant. It appears from Mr Bosman's address that the Defendant's attorneys, the State Attorney, did not prepare for the trial and only instructed Mr Schoeman to apply for a postponement. Mr Schoeman was not available and Mr Mtshweni was briefed for the Defendant on behalf of the State Attorney to apply for a postponement.

8

Mr Bosman argued that somebody at the office of the State Attorney had not done his work and he also outlined the prejudice that the Plaintiff would have suffered in the event of a second postponement of the matter.

9

He also pointed out that as a person cannot be arrested for contempt of court without a warrant of arrest, the Defendant was

2004 JDR 0375 p4

Terblanche AJ

merely delaying the evil day by seeking d postponement necessitated by the State Attorney's negligence to properly instruct somebody to appear for the Defendant at the trial.

10

In reply, Mr Mtsweni for the Defendant, did not dispute Mr Bosman's statements relating to Mr Schoeman and his address amounted to little more than staking the reason why he personally was not prepared to proceed with the trial. He agreed that there was gross negligence on the part of the State Attorney.

11

The Magistrate exercised his discretion to refuse the postponement. The granting of a postponement is a discretionary matter. It appears that the learned Magistrate carefully considered the application for a postponement and he carefully applied his mind to the matter. A Court of Appeal can interfere with a lower court's...