IDGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORIA)
In the matter between:
MINISTER OF POLICE
CAPTAIN GLORIA SEGOPOTSO
and
ITUMELENG LUCAS TLADI
CASE NO: A279/2023
(1) RE PORTABLE: NO .
(2) OF INTE R EST TO OT H E R JUDGES: NO
(3) REVISED.
S IGNATU R E
First Appellant
Second A ppellant
Respondent
Summary: The Respondent claimed payment of some Rl 5 million together with
interest in respect of his previous employment in the South African
Police Service. The employment contract lasted from September
2003 until May 2012 when it was terminated at the respondent's
instance. The claim is for damages allegedly suffered by the
respondent pursuant to an alleged breach of contract by the Police
by not, inter alia, having provided the respondent with sufficient
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training as a crime prevention officer. The appellants' defence to this
claim was struck out by the court a quo due to alleged non
compliance with a compelling order obtained by the respondent to
provide further and better discovery in terms of Rule 35(3). On
appeal it was found that the appellants had substantially complied
with the compelling order and that the striking-out order was, in the
circumstances of the case, inappropriate.
ORDER
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order in the court a quo whereby the appellants' defence in the main
action was struck out, is set aside and the defence of the appellants is
reinstated.
3 The respondent is ordered to pay the costs of the application for striking
out the appellants' defence, including the costs of two counsel.
JUDGMENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation lo the parties' legal representatives by email and by uploading it to
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the electronic file of the matter on Caselines. The date of the handing-down is
deem ed to be ...... July 2025.
DAVIS,ADJP
Introduction
[l] On 24th January 2023 Shabalala AJ, sitting as a court of first instance,
struck out the defence of the Minister of Police and a certain captain Gloria
Segopolo to an action in which Mr. Tladi was the plaintiff (the main action). The
aforementioned defendants now appeal that order with leave of the court a quo.
Mr. Tladi is the respondent in the appeal.
[2] The basis upon which the court a quo had struck out the defence was the
alleged non-compliance by the appellants with a previous order which compelled
them to make further and better discovery as contemplated in Rule 35(3). The
principal opposition to the striking-out application was that there had been
substantive compliance with the compelling order.
The nature of the claim in the court a quo
[3] In his particulars of claim the respondent pleaded that he had entered into
a contract of employment as a police officer on 19 September 2003. He further
pleaded that he had expected to be employed as a crime prevention officer and
that would be issued with a firearm. He further pleaded that the South African
Police Service had failed to provide him w ith necessary mentorship, had failed to
provide him with a firearm to execute his "contractual duties succinctly" and had
failed to pay him a monthly salary. He had therefore been forced to terminate his
contract during May 2012. As a consequence, the respondent claimed that he had
suffered damages. These involved suffering emotional and associated
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consequences and a loss of income. After a number of amendments to his
pleadings, the total loss claimed amounted to over R 15 million.
[4] Apart from denying the breaches of contract in a series of amended pleas,
the appellants inter alia raised the issue of jurisdiction. The respondent had
pleaded that the alleged termination of the contract was as a result of an unfair
labour practice which resulted in a constructive dismissal. The appellants pleaded
that, in those circumstances, the claim fell within the jurisdiction of the Labour
Court. This issue was not repeated in the latest amendment to the plea and need
not be considered as a factor in this appeal, despite it having featured in the
respondent's heads of argument.
[5] In respect of the merits, the appellants admitted that the respondent had
applied for the position of a student constable at the SAPS training college in
Pretoria during the second half of 2003. They further admitted that he was
employed from 19 September 2003 and that a written contract of employment
had been entered into.
[ 6] The appellants further pleaded that during the course and scope of the
respondents employment, which he himself had terminated on 4 May 2012, he
had not conducted himself with honesty, impartiality, respect and accountability
in that: ( 1) he was charged with reckless and negligent driving during August
2006 under case number CAS45 /08/20006 in respect of which he had paid an
admission of guilt fine; (2) he contravened standing orders 21 and 48 as well as
regulation 20D by intentionally or negligently damaging or causing loss to state
property by shooting his firearm and was subsequently served with a final written
warning in terms of regulation 11 of the South African Police Service Discipline
Regulations 2006 and (3) that he had contravened Regulations 20F and 20J and
was subsequently charged with misconduct on at least six occasions in respect of
which details have been provided in the plea.
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[7] The appellants' plea also went on to state that since the respondent had
elected to terminate his employment , he was no longer entitled to claim the
benefits deriving from the employment contract and insofar as he has claimed any
non-patrimonial damages, those were unsubstantiated and accordingly denied.
The issue of further and better discovery
[8] After the parties had made discovery, the respondent served a notice in
terms of Rule 35(3) on the appellants on 1 October 2018.
[9] The appellants made a supplementary discovery on 27 March 2019, but
despite this, the respondent on 28 March 2019 obtained an order by Voster, AJ
compel ling the appellants to make such further and better discovery.
[ 1 O] On 25 April 2019, the appellants again made yet a further discovery by
means of a supplementary discovery affidavit.
[11] The respondent thereafter and pursuant to a pre-trial conference, on 6
August 2019 served a list of inquiries on the appellants in which he inter alia
requested them to produce certain specified documents listed in the notice in
terms of Rule 35(3). As a consequence hereof the appellants made a further
supplementary discovery by means of a discovery affidavit which was served on
the respondent on 26 August 2019.
[ 12] Despite the above, the respondent proceeded to launch an application on
23 August 2019 to have the appellants' defence struck out. In their answering
affidavit, the appellants indicated that they had on multiple occasions made
further and better discovery and that they have discovered all the documents
which they had in their possession.
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The judgment in the court a quo
[ 13] After having succinctly dealt with the history of the matter as well as the
terms of the compelling order, the learned Judge referred to Rule 35(7) and found
as follows: "Rule 35(7) applies only where there has been a failure to comply
with sub rules J to 6 for it refers to failure to give discovery as aforesaid. This
brings me to the question of when did failure to comply commence ? In my view
failure to comply started ten days calculated after service of the court order on
the respondents. The court order was served on the respondents on 10 July 2019.
The respondents had 10 days in which to comply with the court order until the
date of the hearing of the matter on 29 January 2020. The respondents had not
complied with Rule 35(3) as per the court order ordering them to do so. Rule
35(7) dictates this Court has a discretion whether to order compliance or to strike
out. On the facts of the present matter, this Court has already ordered compliance
and the respondent failed to comply. This leaves the Court with the discretion to
strike out the respondents' defence". This was the sum total of the Court's
reasoning pursuant to which the defence was struck out.
Applicable principles
[14] Rule 35(3) Provides as follows: "If any party believes that there are in
addition to documents or tape recordings disclosed aforesaid, other documents,
including copies thereof or tape recordings which may be relevant to any matter
in question in possession of any party thereto, the former may give notice to the
latter, requiring him to make the same available for inspection in accordance with
sub-rule (6) or to state on oath within 10 days that such documents are not in his
possession, in which event he shall state their whereabouts if known to him".
[15] Rule 35(7) then further provides as folJows: " If any party fails to give
discovery as a fores aid or having been served with a notice under sub-rule (6)
discovery as a fores aid or having been served with a notice under sub-rule (6)
omits to give notice of a time for inspection as aforesaid or fails to give inspection
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as required by that sub-rule, the party desiring discovery or inspection may apply
to court, which may order compliance with this rule and failing such compliance,
may dismiss the claim or strike out the defence".
[16] The Appellants argued that they have, in addition to their initial discovery,
made supplementary discoveries on 27 March 2019, 25 April 2019 and 26 August
2019. They have further, on oath confirmed that they do not have any other
documents than those requested in the Rule 35(3) notice in their possession. The
appellants therefore pleaded that they have substantially complied with the
compelling order and they expressly denied that they had recklessly disregarded
any of their discovery obi igations.
[ 1 7] Once the appellants have complied with the compelling order, then it
follows that the respondent would not have been entitled to an order as
contemplated in Rule 35(7). Insofar as the respondent might argue that the
supplementary discoveries were not timeously made or that the documents
discovered did not go as far as he wanted them to go, or that insufficient
indications have been given where such other documents may be located, one has
to weigh up the extent of such non-compliance against the prejudice to be suffered
by the appellants should their defence be struck out.
[ 18] In Wilson v Afrikaanse Pers Publikasies (Edms) Bpk 1 the following was
stated: "The striking of the defendant's defence is an extremely drastic step which
has the consequences that the action goes forward for a trial as an undefended
matter. In this case, if the orders were granted, it would mean that a trial court
would eventually hear this action without reference to the justification which the
defendant has pleaded and which it might conceivably be in a position to es tab/ ish
by evidence. I am accordingly of the view that this very grave step will be resorted
1 1971 (3) SA 455 (T) at 426-2463
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to only if the court considers that the defendant has deliberately and
contemptuously disobeyed its order to furnish particulars".
[19] It is further trite that, in considering an application to strike a defence, the
court exercises a discretion which must be exercised judicially on a proper
consideration of al 1 relevant circumstances.
[20] One of the most relevant circumstances is the consequences of a striking
out order in that it deprives a litigant of an entrenched right to a fair trial and a
Constitutionally guaranteed right of access to a court of law to have a dispute
adjudicated.
[21] In considering an application for striking a defence, other relevant factors
will include the reason and extent of the alleged non-compliance, whether the
defaulting party has recklessly disregarded his or her obligations, whether the
defaulting party's case appears to be hopeless, whether the defaulting party does
not seriously intend to proceed with the defence to trial and the prejudice to the
respective parties2.
[22] In the heads of argument delivered on behalf of the respondent in the
appeal, various and extensive, extraneous issues were canvassed but nowhere was
the argument advanced with any supporting evidence or conviction that the
respondent w ould be unduly prejudiced if the defence is not struck out. In fact,
all that will happen if the appeal succeeds, is that the respondent will have to
2 MEC, Department of P ublic Wo rks and others v lkam a A rchitects and others 2022(6) SA 276 (EC B) at paras
[l 8J to (I 91; H elen Su=m an Foundation vJudicial Service Co mm ission 20 I 8(4) SA l(CC) at para (79); SA Scoltish
Finance Co rporation Ltd v Smith l 966(3)SA 629(T) at 634; Evander caterers (Pty}ltd v Potgieter 1970(3)SA
3 l 2(T) at 317; Thornhill v Ge rhardt l 979(2)SA I 092(T) at I 096-7: Sm ith NO v Brumm er NO J 954(3)SA 352(0)
at 357 and Pw co LTd v TV & Radio G uarantee Co mp any (Pry)Ltd 1984(1)SA 443(W ).
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prove both the merits of his case and the quantum of his alleged damages at a
trial.
[23] It is clear both from the judgment in the court a quo and the judgment by
which leave to appeal was subsequently granted, that the court a quo had
insufficiently considered the relevant circumstances, nor has it weighed up the
possible prejudice to the respective parties. The court a quo has therefore failed
to exercise its discretion in a judicial manner and this court is now obliged to do
so.
[24] Having weighed up all the relevant factors referred to above and the nature
of the claim and the extensive quantum involved, as well as the clearly indicated
serious intention of the appellants to contest the matter, we find that it was
inappropriate for the court to have struck out the appellants' defence.
Accordingly, the appeal should succeed.
[25] Regarding the issue of costs, it is trite that costs should follow the event
unless there are exceptional circumstances. In this case, we do not find any such
exceptional circumstances in fact, it appears to us that in both proceeding with
the application for striking out and in opposing the appeal, the respondent was
acting unreasonably. His attitude to these aspects of the litigation is also evinced
by the reverting to language such as the following ( quoting from paragraphs 3 .13
and 3.14 of the heads of argument): "This appeal is seriously very destructive,
woeful, irrational, a waste of judicial resources, generally time-consuming,
prejudicial to the respondent, and the appearance of dragging th;s matter using
state resources (taxpayer's funds) at the expense of the public. In submission, it
is re.'lpectfully submi tted that the appellants' above mentioned repeated and
unlawful conduct in violation of the Constitution coupled with their blatant
disregard of an existing court order constitutes such conduct that this Hon ourable
Court should display Us displeasure by dismissing the appeal and ordering them
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to pay the costs of this appeal on the scale as between attorney and client··. We
shall not go as far as awarding costs on a punitive scale, but find that costs should
include that of two counsel and should follow the success of the appeal and the
ultimate success in the opposition to the striking-out application.
Order:
[26] In the premises. We make the following order:
1 The appeal is upheld with costs, including the costs of two counsel.
2 T he order in the court a quo whereby the appellants' defence in the
m ain action was struck out, is set aside and the defence of the
appellants is reinstated.
3 The respondent is ordered to pay the costs of the application for
striking out the appellants' defence, including the costs of two
counsel.
I agree
DAVI S
Judge of the High Court
Gauteng Division, Pretoria
GQIBISA-THUSI
Judge of the High Court
Gauteng Division, Pretoria
I agree and it is so ordered.
Date of Hearing: 11 June 2025
Judgment delivered: 29 July 2025
APPEARANCES:
For the Appellants:
Attorney for the Appellants:
For the Respondent:
Attorney for the Respondent:
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ff. MNOKO
~udge of the High Court
Gauteng Division, Pretoria
Adv T.W.G Bester SC with
Adv D .M Kekana
Moshoue Monyayi Attorney, Pretoria
Adv T Moloi with Adv P Sinthumule
State Attorney, Pretoria