REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 005245/2025
(1) REPOR TABLE : YES / N O
(2) OF INTERES T TO O THER JU DGES : YES /NO
(3) RE VISE D : YES /NO
3 October 2025
DATE
In the matter between:
LUKHANYO BRUCE MATTHEWS CALATA
ALEGRIA KUTSAKA NYOKA
BONAKELEJACOBS
FATIMA HARON MASOET
TRYPHINA NOMANDLOVU MOKGATLE
KARL ANDREW WEBER
KIM TURNER
LYNDENE PAGE
MBUSO KHOZA
NEVILLE SELING
NOMBUYISELO MHLAULI
SARAH BIBI LALL
SIZAKELE ERNESTINA SIMELANE
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
Eighth Applicant
N inth Applicant
Tenth Applicant
Eleventh Applicant
Tw elfth Applicant
Thirteenth Applicant
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2
SINDISWA ELIZABETH MKONTO Fourteenth Applicant
STEPHANS MBUTI MABELANE Fifteenth Applicant
THULI KUBHEKA Sixteenth Applicant
HLEKANI EDITH RIKHOTSO Seventeenth Applicant
TSHIDISO MOTASI Eighteenth Applicant
NOMALI RITA GALELA Nineteenth Applicant
PHUMEZA MANDISA HASHE Twentieth Applicant
MKHONTOWESIZWE GODOLOZI Twenty-First Applicant
MOGAPI SOLOMON TLHAPI Twenty-Second Applicant
FOUNDATION FOR HUMAN RIGHTS Twenty-Third Applicant
and
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Second Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Third Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent
MINISTER OF POLICE Fifth Respondent
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN
POLICE SERVICE Sixth Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be __ October 2025.
JUDGMENT
JANSE VAN NIEUWENHUIZEN, J
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Introduction
[1] This application concerns the plight of family members of freedom fighters who
were brutally tortured and murdered during the apartheid era. Their search for justice
has been a long and odious one.
[2] The applicants’ journey commenced on 21 March 2003, being Human Rights
Day, with the release of the Truth and Reconciliation Committee’s final report. The
report highlighted the imperative need for “a bold prosecution policy” in cases where
amnesty was not granted to the perpetrators of apartheid era atrocities.
[3] Twenty-two years later, the applicants are still waiting for justice to be served.
The lack of will to prosecute the perpetrators, led to the launching of the main
application.
[4] Due to events that unfolded subsequent to the launching of the main
application, the first and second respondents brought an application for the
postponement, alternatively, stay of the relief sought in the main application pending
the outcome of the Commission of Inquiry’s inquiry into the delay in the prosecution of
the apartheid era perpetrators.
Main application relief
[5] In order to place the postponement/ stay application in context, it is apposite to
have regard to the relief claimed in the main application, namely:
1. Declaring the conduct of the first to sixth respondents in unlawfully
refraining and/or obstructing the investigation and/or prosecution of
apartheid-era cases referred by the Truth and Reconciliation
Commission (TRC) to the National Prosecuting Authority (the TRC
cases), or to otherwise unlawfully abandon or undermine such cases to
be:
1.1 a violation of the rights of applicants, and more generally the families
of victims and survivors of apartheid -era crimes ( the families ), to
equality, dignity and the right to life and bodily integrity in terms of
sections 9, 10, 11 and 12 of the Constitution, Act 108 of 1996 ( the
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Constitution);
1.2 inconsistent with the constitutional values set out in section 1(a) and
the rule of law as enshrined in section 1(c) of the Constitution;
1.3 inconsistent with the principles, values and obligations arising from
the Promotion of National Unity and Reconciliation Act, 34 of 1995
read with the postscript to the Constitution of the Republic of South
Africa Act 200 of 1993 (the Interim Constitution);
1.4 in breach of the duties and obligations contained in the Constitution,
the National Prosecuting Authority Act 32 of 1998 and the South
African Police Service Act 68 of 1995 to investigate and prosecute
serious crime, and not to interfere with legal duties of prosecutors
and law enforcement officers; and
1.5 inconsistent with South Africa’s international law obligations in terms
of sections 231 to 233, read with section 39(b), of the Constitution.
2. The payment of constitutional damages by the first respondent for
purposes of affirming constitutional values, vindicating the rights of the
applicants and families and deterring future interference in the following
amounts:
2.1 R115 261 625.00 (one hundred and fifteen million, two hundred and
sixty-one thousand, six hundred and twenty -five Rands) over a five-
year period for purposes of enabling families and organisations
supporting families to advance truth, justice and closure by assisting
them to pursue investigations and research, inquests, private
prosecutions and related litigation;
2.2 R8 000 000.00 (eight million Rands) over a five -year period for
purposes of enabling families and organisations supporting families
to play a monitoring role in respect of the work of the policing and
justice authorities charged with investigating and pros ecuting the
TRC cases; and
2.3 R44 000 000.00 (forty-four million Rands) over a ten -year period for
purposes of enabling families and organisations supporting families
to pursue commemoration, memorialisation and public education
to pursue commemoration, memorialisation and public education
activities around the TRC cases, including the holding of public
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events, publishing of books and making of documentaries.
3. If the order in prayer 2 is granted, the legal representatives of the
applicants are ordered to cause a Trust to be established within three (3)
months of this order, in accordance with the provisions of the Trust
Property Control Act 57 of 1998, to hold and disburse such funds in
furtherance of the purposes set out in prayers 2.1 to 2.3.
4. Declaring the failure and/or refusal by the second respondent (the
President) to establish a commission of inquiry into the suppression of the
investigation and prosecution of the TRC cases (the decision) to be:
4.1 inconsistent with his constitutional responsibilities under section
84(2)(f) read with sections 1(c), 7(2), 83(b) and 237 of the
Constitution, and
4.2 a violation of the families of victims and survivors of apartheid -era
crimes’ rights to equality, dignity and the right to life and bodily
integrity of the victims in terms of sections 9, 10, 11 and 12 of the
Constitution.
5. Reviewing and setting aside the President’s failure and/or refusal to
appoint a commission of inquiry as described in prayer 4 above.
6. Directing the President to:
6.1 promulgate in the Government Gazette, within thirty (30) calendar
days of this order, the establishment of a commission of inquiry in
terms of section 84(2)(f) of the Constitution, which commission of
inquiry shall be headed by a sitting or retired judge designated by the
Chief Justice, and shall be tasked to inquire into:
6.1.1 whether, why, and to what extent and by whom, efforts or
attempts were made to influence or pressure members of the
National Prosecuting Authority and/or the South African Police
Service to stop investigating and/or prosecuting the TRC cases;
6.1.2 whether any members of the National Prosecuting Authority
and/or the South African Police Service improperly colluded
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with such attempts to influence or pressure them; and
6.1.3 to make recommendations flowing from its conclusions, for
actions to be taken by organs of state, including prosecutions
to be instituted against persons found to have acted unlawfully
in:
(a) attempting to influence or pressure members of the
National Prosecuting Authority and/or the South African
Police Service to stop investigating and/or prosecuting the
TRC cases, and/or
(b) colluding with or succumbing to such attempts;
6.2 to make the provisions of the Commissions Act 8 of 1947 applicable
to the abovementioned commission of inquiry in the aforesaid
proclamation in the Government Gazette.
7 In respect of prayers 1 to 3 of this application, the respondents, and any
other party who opposes this relief, are ordered to pay the applicants’
costs.
8 In respect of prayers 4 to 6 of this application, the second respondent and
any other party who opposes this relief, are ordered to pay the applicants’
costs.
9 Further and/or alternative relief.
Postponement/ stay application
[6] Save for the postponement/ stay of the main application, the first and second
respondents pray for the reinstatement of the notices of intention to oppose delivered
and subsequently withdrawn by all the respondents in the main application. The
reinstatement only pertains to the relief claimed in prayers 1, 2. 3 and 7 in the notice
of motion. The relief is not opposed by the applicants, and an order in terms of prayer
1 of the notice of motion is granted.
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First and second respondents’ case
[7] On or about the end of May 2025, the President appointed a Commission of
Inquiry to investigate allegations of whether efforts or attempts were made to stop the
investigation and prosecution of the Truth and Reconciliation cases. The terms of
reference of the Commission are broad and are set in the Schedule to the
Proclamation, to wit:
“1. The Commission must, in relation to the period since 2003, inquire into, make
findings, report on and make recommendations concerning the following, guided by the
Constitution, relevant legislation, policies and guidelines-
1.1. whether, why, and to what extent and by whom, efforts or attempts were
made to influence or pressure members of the South African Police Service
or the National Prosecuting Authority to stop investigating or prosecuting
TRC cases;
1.2. whether any members of the South African Police Service or the National
Prosecuting Authority improperly colluded with such attempts to influence
or pressure them; and
1.3. whether any action should be taken by any organ of State, including
possible further investigation to be conducted or prosecutions to be
instituted, where appropriate, of persons who may have acted unlawfully
by-
1.3.1 attempting to influence or pressure members of the South African
Police Service or the National Prosecuting Authority to stop
investigating or prosecuting TRC cases; or
1.3.2 members of the South African Police Service or the National
Prosecuting Authority colluded with or succumbed to attempts to
influence or pressure such members to stop investigating or
prosecuting TRC cases; and
1.4. whether, in terms of law and fairness, the payment of any amount of
constitutional damages to any person is appropriate.”
[8] The first and second respondents submit that the appointment of the
Commission of Inquiry addresses the relief claimed in prayers 4, 5 and 6 of the notice
of motion and delivers the relief sought in those prayers.
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[9] According to the first and second respondents, the broad scope of the
Commission’s inquiry will also address the relief claimed in prayers 1, 2 and 3 of the
notice of motion. The first and second respondents advanced various reasons in
support of their stance, to wit:
9.1 the Commission will hear and consider evidence on interference and
collusion, and a conclusion of the unlawfulness of the interference and
collusion can only properly be made thereafter;
9.2 the Commission will also hear and consider evidence from all potential
parties relevant to damages and on the appropriate form/s that damage
should take form.
[10] The first and second respondents contend that the relevant facts on interference
and collusion in the applicants’ TRC cases are not set out in the founding affidavit and
cannot be established on the papers in motion proceedings.
[11] The respondents are, furthermore, unable, at this stage, to respond
meaningfully to the allegations contained in the founding affidavit without the facts
relevant to interference and collusion.
[12] Insofar as a postponement, alternatively, a stay of proceedings as a remedy is
concerned, Mr Bruinders SC, counsel for the first and second respondents, readily
agreed that a stay of proceedings is, in the circumstances, the more appropriate
remedy. The first and second respondents submit that the interest of justice favors a
stay, because, inter alia;
12.1 To run two parallel processes in different forums, would be:
12.1.1 inconvenient and unfair to the parties and to the public interest that
favors certainty and clarity over ambiguity and contradiction;
12.1.2 expensive and result in a duplication of costs.
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12.2 our law avoids multiple proceedings to determine the same facts, because
findings by two forums on the same facts are undesirable;
12.3 where one forum is the motion court, and the other a Commission with full
powers to investigate and inquire into the facts, it would be even more
undesirable for both to make findings on the same facts; and
12.4 it would be sensible and practical to stay the application to allow the
Commission to complete its investigation and inquiry into interference,
collusion and the appropriateness and fairness of constitutional damages,
before the High Court is asked to make findings of unlawfulness or to
award constitutional damages.
Applicants’ case
[13] The applicants oppose the relief and maintain that they have a right under law
and the Constitution to have their application for a declarator and their claim for
constitutional damages determined by a court.
[14] The applicants pointed out that the Commission will only have the power to
make recommendations to the second respondent, the President, which
recommendations will only be made at the end of the inquiry. Although, in terms of the
proclamation, the Commission’s proceedings are supposed to run for six months, past
practice has shown that similar proceedings run much longer than the time contained
in the proclamation and are likely to take much longer to complete.
[15] The recommendations of the Commission will not be binding and may be
rejected or ignored by the President. Should the Commission recommend payment of
damages, and the recommendation is accepted by the President, the President has
no power to direct payment of constitutional damages of the sort claimed in the
application absent legislation authorizing him to do so or an order of court directing him
to do so.
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[16] Parliament has the power to enact a Bill authorizing the payment of
constitutional damages of the sort claimed herein. Parliament may not agree to such a
Bill and if it agrees, it is extremely unlikely that the introduction of the Bill into Parliament
will be completed within a year. Even if, and when a Bill is enacted, the applicants may
still not be satisfied with the arrangements enacted by Parliament. In the result, a stay
of this matter to achieve the aforesaid would, without any justification, amount to a
needless delay in finalizing the matter and will not be in the interests of justice.
[17] Irrespective of the findings and recommendations of the Commission, the court
will have to determine the dispute between the applicants and respondents on the
evidence contained in the applicants’ papers and on the law. Furthermore, it will be
improper of the Court not to consider the present dispute independently based on the
evidence properly before court. In any event, factual decisions, findings or conclusions
of a court, or other body such as the Commission, are not binding on another court,
nor are they admissible in its proceedings.
[18] Insofar as the first and second respondents contend that the applicants’ have
not made out a case for the violation of constitutional rights, it is for the court, having
considered the evidence and applying the law, to reach such a conclusion.
Legal Framework and submissions
[19] In terms of section 173 of the Constitution, a court has the power to regulate its
own proceedings. In exercising this power, a court may order a stay of proceedings if
it is in the interests of justice to do so.1 Whether it is in the interests of justice to order
a stay of proceedings depends on the facts of each case. It is, however, informative to
have regard to authorities dealing with the stay of proceedings.
[20] The first and second respondents relied on two authorities in support of their
[20] The first and second respondents relied on two authorities in support of their
submission that a stay of the proceedings will be in the interests of justice. In
Caesarstone Sdot-Yam Ltd v The World of Marble & Granite 2000 CC and Others,2
the appellant instituted an action in Israel against the respondents for breach of an
1 See: Mokone v Tassos Properties CC and Another 2017 (5) SA 456 (CC) (“Mokone”).
2 2013 (6) SA 499 (SCA).
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agency agreement. Some months later, the respondents instituted a similar action
against the appellant in Cape Town, and the appellant raised a plea of lis pendens,
praying that the action be stayed pending the determination of its action in Israel. The
parties in the different actions differed, and the court could only uphold the lis pendens
plea in respect of some of the parties.
[21] In respect of the other parties, the court stayed the proceedings on the following
basis:
“[49] The only sensible way in which to address the problem is for the court also to
stay the proceedings as against the remaining members of the Sachs family, not on the
basis of lis pendens, but in the exercise of its inherent powers to regulate its own
procedures. Once the Israeli proceedings are complete and a final judgment has been
given it will be open to them, together with WOMAG and Mr Oren Sachs, to resume the
Western Cape action. Whether any question of res judicata or abuse of process will
then arise will depend on the outcome of the Israeli action. It may then be necessary to
resolve the interesting question raised, but not decided, in para [43] above. In addition,
if any party to that action seeks to relitigate issues already dealt with in Israel the court
will no doubt be called upon to decide whether that constitutes an abuse of process in
accordance with the cases mentioned by Milne J and discussed in paras [46] and [47]”.
[22] The action was stayed on the basis that it was vexatious and frivolous, and an
abuse of process to seek to relitigate a matter that had already been determined in
another action.
[23] In casu, there are no parallel court proceedings. The risk that some or all of the
issues will be relitigated simply does not exist.
[24] In Mokone, the dispute centred around a right of pre-emption that was contained
in a lease agreement between Ms Mokone, as lessee, and Tassos, as lessor. During
the subsistence of the lease agreement, Tassos sold the leased property to Blue
the subsistence of the lease agreement, Tassos sold the leased property to Blue
Canyon. Ms Mokone brought an application in the High Court seeking a declarator that
Tassos was in breach of the right of pre-emption, cancellation of the sale and reversal
of the transfer of the leased premises.
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[25] The issues in dispute were separated in the High Court, and the court only had
to determine whether the right of pre-emption had been extended when the lease was
extended. The remainder of the issues were postponed indefinitely. The High Court
held against Ms Mokone and, later, the Supreme Court of Appeal refused leave to
appeal. The matter proceeded to the Constitutional Court. In the meantime, Blue
Canyon obtained an eviction order against Ms Mokone in the Magistrates’ court.
Special leave to appeal being refused by the Supreme Court of Appeal, the matter
similarly proceeded to the Constitutional Court.
[26] In respect of the question whether the eviction proceedings should be stayed
pending the finalisation of the High Court action, the court held as follows:
“[70] In the litigation pending before the High Court, Ms Mokone has pleaded that the
purchaser, Blue Canyon, knew of the existence of the right of pre-emption before it took
transfer of the leased premises. If that is indeed so, the purchaser's ownership obtained
upon transfer to it may well be assailable. It seems unjust to require Ms Mokone to be
uprooted and her business brought to a halt or destroyed in circumstances where the
purchaser might not have been an innocent player when it purchased or took transfer
of the leased premises. The interests of justice dictate that the eviction proceedings be
held in abeyance pending finalisation of the action in which Ms Mokone is seeking to
enforce the right of pre-emption.” (footnotes omitted)
[27] In the result, pending litigation was put on halt because an issue in dispute in
the application still had to be finally determined in a pending action. In casu, the issues
to be decided in this application do not depend on any finding or recommendation
made by the Commission of Inquiry.
[28] The applicants’, in turn, referred to two types of cases in which an order to stay
proceedings has been granted by our courts, to wit:
proceedings has been granted by our courts, to wit:
28.1 a request for a stay of proceedings pending finalisation of another set of
court or arbitration proceedings (local or foreign), the outcome of which
will affect the outcome of the proceedings sought to be stayed;3 and
3 See, inter alia: SA Human Rights Commission v Standard Bank of SA Ltd 2023 (3) SA 36 (CC) at para 29.
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28.2 a request for a stay of proceedings pending finalisation of an administrative
decision, the outcome of which will affect the outcome of the proceedings
sought to be stayed.4
Discussion
[29] In terms of section 34 of the Constitution, the applicants have a right to have
their dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial
tribunal or forum. The applicants have exercised their constitutional rights by launching
the main application, requesting the court to resolve their dispute with the respondents
by application of the law.
[30] A stay of these proceedings will delay the finalisation of the litigation in this court.
The authorities referred to above held, in general, that a stay of proceedings in one
action will be justified if the same issue/s will be finally determined in an action in
another court, by arbitration or by an administrative decision that is binding.
[31] In casu, the findings and recommendations by the Commission of Inquiry will
not be binding on the court and will not be dispositive of any of the disputes between
the parties in the main application. In the result, the authorities relied upon by the first
and second respondents to justify the stay of proceedings are not applicable, and do
not justify a stay of the main application.
[32] The question then arises whether there is another basis on which the interests
of justice will be served if the main application is stayed. The applicants are entitled
and have a right to have their dispute finally determined. The applicants have been
denied this right for more than twenty years. It is understandable that the applicants,
some of whom are elderly, are eager to find closure and to put the matter to rest. It is
rather ironic that the Government, who is the sole cause for the delay, wants this court
to sanction yet a further indefinite delay without being able to point to any tangible
to sanction yet a further indefinite delay without being able to point to any tangible
benefit that will be achieved by the delay.
4 See, inter alia: Ftck Consultants CC and Others v Shoprite Checkers Ltd 2004 (2) SA 504 (T).
[33] I am of the view that the interests of justice w ill not be served by the granting of
a stay of proceedings, and the application stands to be dism issed.
Costs
[34] Costs should follow the result, w hich cost order w ill include the costs of two
counsel. I am satisfied that the ma tter is of sufficient complexity to w arrant the costs of
counsel on scale C .
1. The application is dism issed.
2. The first and second respondents are ordered to pay the costs, w hich costs
include the costs of two counsel on scale C .
Date heard: 6 August 2025
Date delivered: 3 October 2025
APP EARANCES :
For the App licants:
Instructed by:
For the First and Second Responden ts:
N JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv C haskalson SC
Adv H Varney
Adv M Musandiw a
Adv L Brighton
Webber Wentzel
Adv TC Bruinders SC
Adv I de Vos
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Instructed by: The State Attorney
For the Third and Fifth Respondents: Adv Moroko SC
Adv T Tsagae
Instructed by: State Attorney
For the Fourth Respondent: Adv M Gwala SC
Adv N January
Instructed by: State Attorney