Pelser v Minister of Police (1296/2018) [2025] ZANWHC 70 (4 April 2025)

Reportable: NO Circulate to Judges: NO Circulate to Magistrates: NO Circulate to Regional Magistrates: NO

 

 

 

 

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: 1296/2018

 

In the matter between:-

JAN ADRIAAN PELSER Applicant

and

MINISTER OF POLICE Respondent

 

CORAM: MFENYANA J

 

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 04 April 2025

 

ORDER

The application is dismissed with costs.

 

JUDGMENT

Mfenyana J

 

[1] This is an application for leave to appeal against a judgment I handed down on 29 November 2023 in which I dismissed the plaintiff’s claim with costs. The grounds of appeal are set out in the notice of application for leave to appeal. The application is brought pursuant to the provisions of section 17(1) of the Superior Courts Act which states 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 or other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

…

 

[2] In the notice of application for leave to appeal, the applicant contends that this court erred in fact and in law. In respect of the error/s of fact, the ground/s set out by the applicant are summarily that the court erred:

(a) In finding that the applicant’s rights had been properly explained to him before and after the arrest, and that the notice of rights which the applicant signed, alternatively that the court disregarded the defendant’s default in adhering to the provisions of section 50 of the Criminal Procedure Act¹

(b) In finding that the arresting officer properly exercised his discretion to arrest, and was “seemingly swayed by the arresting officer’s averment that “ I left him a message to come to me on 13/02/2018. He refused to come and I traced him at Blue Ribbon and arrested him.”

 

[3] It is necessary to state that this court made no finding that the applicant’s rights had been properly explained to him. No such reference can be found in the judgment. This ground of appeal further overlooks the fact that what stood for determination by the court was the stated case as formulated and agreed to by the parties. It was never the applicant’s case that the respondent failed to adhere to the procedure set out in section 50 of the CPA.

 

[4] With regard to the second ground of appeal, the court’s finding that the arresting officer properly exercised his discretion in arresting the plaintiff, is a matter of law and not fact. The applicant’s reliance on the words uttered by the arresting officer as a basis for the court’s finding is misguided. In paragraphs, 25, 26, 27, 28, 29 and 30 of the judgment, I set out in detail the basis for the finding. Notably, in paragraph 30 I stated that when the arrest was effected, the arresting officer was at that time, already aware of Mc Todd’s statement that the applicant had run him over with his car,

 

[5] In paragraph 33, I stated that the arrest was not effected in a haphazard way, but that the arresting officer had given some thought to it, after considering not only Mc Todd’s statement, but information from other sources emanating from the investigations he had conducted and the further statements he had obtained. His attempt to have the applicant present himself at the police station is but one of the steps taken by the arresting officer. Singling out this issue and speculating as to the weight attached by the court to it ,is not only misplaced, but also mischievous. There is thus, no merit to these grounds of appeal and they fall to be dismissed.

 

[6] On the applicant’s contention that the court erred in matters of law, such reliance is premised on the following grounds:

(a) that the court misinterpreted the meaning of section 35 of the Constitution and section 50(1)(d) of the CPA.

 

[7] In this regard, the applicant relies on the decision of the erstwhile Appellate Division in Duncan v Minister of Law and Order² for the proposition that the extension of the 48-hour limit is only applicable in cases of arrest on weekends. The question is what should happen where the 48 hours expire outside of ordinary court hours? Section 35(1)(d)(ii) states that in those circumstances the arrested person must be brought before court “no later than the end of the next court day after the expiry of the 48 hours.”

 

[8] In the heads of argument, the applicant maintains that he ought to have been released on Wednesday, 14 February 2018. His reasoning is that he should have been brought before court “not later than the end of the first court day because the 48 -hour period expires outside ordinary court hours.” This is incorrect, and a distortion of the relevant provision which states that an arrested person should be brought before court “not later than the end of the first court day after the expiry of the 48 hours if the 48 hours expire outside ordinary court hours or (the 48 hours expires) on a day which is not an ordinary court day.”

 

[9] Despite the applicant’s distortion, there is no ambiguity about this section. The latter portion on which the applicant appears to be placing further reliance only finds application, (as the section dictates), where the 48 hours expires on a day which is not an ordinary court day, in which event the arrested person would be brought before court on the first court day. That should be the end of the enquiry.

 

[10] The sentiments expressed in paragraph 35 are no more than the dictum by the court and are not essential to the decision reached in this matter. While this may be a lapsus calami on the part of the court, it alone has no bearing on the court’s finding. This is more so if regard is had to the finding that as the 48 hours ‘would have expired at 16h20 on Thursday, which fell outside of the ordinary court hours, the applicant would have been brought before on the first court hour on Friday, 16 February 2018. Likewise, this ground of appeal should fail.

 

[11] I am therefore not able to find that the matter enjoys any reasonable prospect of success on appeal that another court would arrive at a different conclusion.

 

Order

[12] In the result I make the following order:

The application is dismissed with costs.

 

 

 

 

_________________________________

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES:

 

For the applicant : G Labuschagne

Instructed by : Labuschagne Attorneys

Email litigation7@labuschagneatt.co.za

 

For the respondent : G. I Mothibi

Instructed by : State Attorney, Mmabatho

Email : isekgota@justice.gov.za