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[2023] ZAGPJHC 683
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National Commissioner of Police, South African Police Services and Another v Kali (2018/34951) [2023] ZAGPJHC 683 (6 June 2023)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER:
2018/34951
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
12.06.23
In
the matter between:
THE
NATIONAL COMMISSIONER OF POLICE
SOUTH
AFRICAN POLICE SERVICE
First Applicant
THE
DIRECTOR OF PUBLIC PROSECUTIONS
NATIONAL
PROSECUTION AUTHORITY
Second Applicant
And
ZOLANI KALI
Respondent
JUDGMENT
WANLESS
AJ
Introduction
[1]
This is an application by the NATIONAL
COMMISSIONER OF POLICE, SOUTH AFRICAN POLICE SERVICES (“
the
First Applicant
”
)
and the NATIONAL DIRECTOR OF PUBLIC PROSECUTION (“
the
Second Applicant
”
)
for the rescission of what is described in the Notice of Motion and
the Founding Affidavit as a judgment granted by default in
favour of
one ZOLANI KALI, adult male
(“the
Respondent”
) against both
Applicants on the 18
th
of
July 2022.
[2]
The application is instituted in terms of the
provisions of subrule 42(1)(a) of the Uniform Rules of Court.
However, at the
hearing of this application, Counsel for the
Applicants also sought to rely on the common law.
[3]
As is clear from the application papers before
this Court the order sought to be set aside was not a judgment by
default but an
order granted in the absence of the Applicants
striking out their defence to an action instituted by the Respondent,
as is more
clearly set out hereunder.
The facts
[4]
The relevant facts which are either common cause
or cannot seriously be disputed by either party in this matter are as
follows:
4.1
During
2018 the Respondent issued and served summons upon the Applicants
whereby he commenced an action for unlawful arrest and
detention
together with malicious prosecution. The action was defended;
4.2
On
the 5
th
of
May 2022, Twala J granted an order compelling the Applicants to
comply with the Respondent’s rule 37(1) notice within ten
days
of the service of that order;
4.3
The
Applicants did not comply therewith;
4.4
The
Applicants did serve and file a notice in terms of rule 28 amending
their Plea;
4.5
As
a result of the failure of the Applicants to comply with the order of
Twala J the Respondent’s attorneys served a notice
in terms of
rule 30A upon the State Attorney and thereafter set the matter down
(with notice to the Applicants) for the striking
out of the
Applicants’ defence in the action;
4.6
On
the 18
th
of
July 2022, Dlamini J granted an order (in the absence of the
Applicants) striking out their defence as a result of the Applicants
failing to comply with the order of Twala J.
The grounds for rescission
[5]
The grounds proffered by the Applicants in support
of the rescission of the order by Dlamini J in terms of subrule
42(1)(a) is that
the order was erroneously granted since the
Applicants had amended their Plea and as such “…
this
would obviously change both parties’ approach towards the
pre-trial conference and both parties would have to prepare
accordingly.
”
[6]
The absurdity of the aforegoing only has to be
stated to be understood. This is particularly so in light of the
difficulty the Respondent
had experienced in getting the Applicants
to convene a rule 37 conference and the fact that the action had been
instituted as far
back as 2018. Moreover, the Applicants fail
to provide any details whatsoever to substantiate or support this
broad allegation.
This is the only factor upon which the Applicants
rely in support of the application for rescission. Clearly, it fails
to satisfy
the requirements of subrule 42(1)(a). The order was
procedurally and substantively correct in all material respects.
[7]
As to the late reliance on the common law, as
conceded by Counsel for the Applicants when pressed, the Applicants
did not set out
any grounds for good cause in their founding
affidavit to give this Court any reason, at all, to come to their
assistance.
Furthermore, the order was granted on 18 July 2022
and their application appears only to have been issued on or about
the 24
th
of
August 2022.
Conclusion
[8]
In light of the aforegoing the application for
rescission cannot succeed and must be dismissed, with costs. As to
the scale of those
costs, this Court raised the issue with the
Counsel for the Applicants as to why the Applicants should not be
ordered to pay the
costs on a punitive scale. The only submission in
that regard was the difficulty experienced by the State Attorney to
consult with
State witnesses.
[9]
Regrettably, the aforegoing is not a valid reason
for litigating in this fashion and failing to protect the national
fiscus. One
can only hope that this vastly improves when the matter
goes to trial on the issue of the quantum of the Respondent’s
claims.
The Respondent had asked for punitive costs in the
Respondent’s Heads of Argument, so the Applicants were well
aware of the
risk undertaken by continuing with this application
which had no prospects of success.
[10]
Despite the aforegoing this Court, in the exercise
of its general discretion, finds that the costs should be paid by the
Applicants
on the party and party scale.
Order
[1]
This Court makes the following order:
1.
The
application is dismissed;
2.
The
First Applicant and the Second Applicant are to pay the costs of the
application, jointly and severally the one paying the other
to be
absolved.
B.C. WANLESS
Acting Judge of the High Court
Gauteng Division, Johannesburg
Heard
: 30
May 2023
Ex
Tempore
: 06 June 2023
Transcript
:12
June 2023
Appearances
:
For
Applicants
:
A
Bleki
Instructed
by
:
State
Attorney
For
Respondent
:
I
Nwakodo
Instructed
by
:
Ogbede Attorneys