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and
THE MINISTER OF POLICE FIRST DEFENDANT
NATIONAL PROSECUTING AUTHORITY SECOND DEFENDANT
JUDGMENT – WRIGHT J
1. In this action, the seven plaintiffs seek damages from the two defendants.
Wrongful arrest followed by unlawful detention and malicious prosecution
are alleged.
2. The action, instituted ten years ago is defended. Amended pleadings have
apparently been filed by both sides.
3. Adv D Cloete appeared for the plaintiffs, assisted in court by Ms M
Nemakanga-Rasodi. Adv PM Seloga appeared for the defendants. Mr
Seloga was assisted in court by Ms MM Tshirado, a candidate attorney with
the State Attorney.
4. It seems that the trial date of today, Monday 16 February 2026 was
allocated by the Deputy Judge President some two years ago. The matter is
set down for two weeks.
5. When the matter was called, Mr Seloga candidly admitted that neither he
nor Ms Tshirado were ready to proceed. Delays in briefing counsel were
blamed. Ms Tshirado helpfully explained that there is a briefing system in
which the State Attorney invites advocates to tender for a brief. Once three
tenders are received, a decision is made. Funds must then be obtained.
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6. The present matter, given the number of witnesses to be called, requires
extensive preparation. The plaintiffs will be called and about five expert
witnesses will be called by them. Mr Seloga, who only came into the matter
last Friday afternoon naturally does not know who he needs to call and he
has not had an opportunity to consult. He has not had sufficient time to
read the many documents on record.
7. After some debate in court, both sides agreed that the matter be
postponed. There is disagreement only on the wasted costs order.
8. Mr Seloga tendered wasted costs, scale A, including those of counsel, for
one day.
9. Mr Cloete sought wasted costs on the attorney and client scale or scale C.
He sought that the wasted costs include those of five experts with whom
he had consulted. He sought also the travelling expenses of three of the
plaintiffs who had come from different parts of the country for the trial.
10. The delay by the defendants in briefing counsel is to be regretted. I
underline that today both Mr Seloga and Ms Tshirado acted honestly and
professionally and did the best they could to assist me in understanding
the defendants’ lack of readiness.
11. However, the plaintiffs are not ready either. The transcripts of the
proceedings in the relevant bail applications have not been discovered nor
are transcripts presently available. It seems that at least part of the
plaintiff’s cases, namely claims for loss of earnings have not been pleaded
in sufficient detail as to comply with Rule 18(10). It appears that the
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plaintiff’s discovery is short, for example as relating to documents relevant
to proving loss of earnings.
12. Even if the defendants had been ready for trial it could not have
proceeded, given the plaintiffs’ lack of readiness.
13. I would hesitate to allow the wasted costs of the plaintiffs’ experts as these
costs relate only to quantum. If the plaintiffs’ claims are dismissed at the
end of the day on their merits, it would be unfair to mulct the defendants
now with those costs which relate only to quantum.
14. In my view however, the tender for costs is insufficient. The defendants
should have notified the plaintiffs earlier of their lack of readiness.
15. It bears mention that this case, from what I know of it, may require at least
five weeks of trial time. Some witnesses may testify in languages other
than English. There is much work to be done by both sides before the
matter becomes trial ready.
ORDER
1. The matter is postponed sine die.
2. Subject to 3 and 4 below, the defendants are jointly and severally to pay the
wasted costs of the plaintiffs.
3. These costs are to be on party and party scale C.
4. Provided these costs relate only to the merits of the case and not to the
question of quantum, the wasted costs include a maximum of five days’
preparation and include those of one attorney and one counsel.
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NoCingo@justice.gov.za