Phasha v Minister of Police

Sixteen applicants, all employees of Makhado Municipality and members of SAMWU, sued the Minister of Police for damages arising from alleged unlawful arrest and detention during a protected strike on 23 August 2011. Three applicants also claimed damages for assault. An agreement had been reached between the municipality and SAMWU regarding picket rules, requiring workers to gather at the workshop and follow authorized routes. On 23 August 2011, due to delays in announcing the authorized route, approximately 400 workers walked towards the civic centre but were blocked by police under Captain Kroucamp. The workers returned to the workshop. An incident occurred resulting in the arrest of the eleventh applicant (Hlongwane). After the workers dispersed, police witnesses testified that approximately 30 workers proceeded to the civic centre, started fires, and created chaos, leading to the arrest of fourteen applicants. The applicants denied any unrest occurred and claimed their arrests were unlawful and some were assaulted. The magistrate's court dismissed all claims, finding for the respondent. The High Court dismissed the appeal.

• Whether the trial court's factual findings rejecting the applicants' evidence and accepting the respondent's evidence were made without material misdirection and were correct
• Whether special circumstances existed to merit the granting of special leave to appeal to the Supreme Court of Appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013
• Whether the arrests were lawful under s 40(1)(a) and s 40(1)(b) of the Criminal Procedure Act 51 of 1977
• Whether the applicants were unlawfully arrested and detained
• Whether certain applicants were assaulted by police officers

The application for special leave to appeal was dismissed with costs.

An appellate court is bound by the factual findings of the trial court unless they were affected by material misdirection or the appellate court is convinced that they were wrong. Special leave to appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013 requires the establishment of special circumstances, which would generally be present where: (a) the intended appeal raises a substantial point of law; (b) the matter is of great importance to the parties or of great public importance; or (c) the prospects of success are so strong that refusal of leave to appeal would probably result in a manifest denial of justice. Where an intended appeal raises only factual issues and the prospects of success are poor, with no substantial point of law or matter of great importance, special circumstances do not exist to merit the granting of special leave to appeal. Arrest without warrant is justified under s 40(1)(a) of the Criminal Procedure Act 51 of 1977 for an offence committed in the presence of the arresting officer, and under s 40(1)(b) where there is reasonable suspicion that a person has committed an offence such as public violence.

The court observed that on the evidence for the respondent, approximately 30 persons acting in concert disturbed the public peace by littering and starting several fires at the main entrance to municipal offices at about 13h00 in windy conditions. The court noted that it could hardly be disputed that these circumstances would give rise to at least a reasonable suspicion that the participants had committed the offence of public violence. The court also made observations about the improbabilities in the applicants' evidence, including that the police witnesses would have had to fabricate evidence about unrest that did not occur, and the failure to produce medical evidence despite claims of brutal assault and hospital treatment. The court noted material contradictions between allegations in letters of demand and particulars of claim compared to testimony, for which no acceptable explanation was given. These observations, while supporting the conclusion on prospects of success, go beyond what was strictly necessary for the decision to refuse special leave to appeal.

This judgment reinforces the principles governing applications for special leave to appeal to the Supreme Court of Appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013. It confirms that special circumstances are required, generally involving substantial points of law, matters of great importance, or very strong prospects of success that would result in manifest denial of justice if leave is refused. The case illustrates the high threshold for appellate interference with trial court findings of fact, emphasizing that appellate courts are bound by such findings unless there was material misdirection or the appellate court is convinced the findings were wrong. The judgment also demonstrates the application of s 40(1)(a) and s 40(1)(b) of the Criminal Procedure Act 51 of 1977 regarding arrests without warrant in the context of public order policing during industrial action. It highlights the importance of credible evidence, particularly medical evidence in assault cases, and the need for consistency between pleadings and testimony.