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[2026] ZAGPPHC 683
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Khadambi and Another v Minister of Police and Another (28090/26; 28091/26) [2026] ZAGPPHC 683 (11 June 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CONSOLIDATED CASE
NUMBERS: 28090/26 AND 28091/26
CASE NO: 28090/26
(1)
REPORTABLE:
YES
/NO
(2) OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
SIGNATURE
DATE
11 June 2026
In
the matter between:
FH
KHADAMBI
1
ST
APPLIACANT
TK
VALOYI
2
ND
APPLICANT
And
MINISTER
OF
POLICE
1
ST
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
ND
RESPONDENT
This
judgment was prepared and authored by the Judge whose name is
reflected and is electronically circulated 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
11 June 2026
JUDGMENT
ENGELBRECHT AJ
1.
Before this
Court came two applications for default judgment, on behalf of Mr
Tshikane
Dennis Valoyi (Mr Valoyi) and Mr Frans Humulani Khadambi (Mr
Khadambi)
respectively
(the
Default Applications). In both Default Applications, the
respondents are the Minister of Police (Police Minister) and
the
National Director of Public Prosecutions (NDPP), who are the
defendants in separately instituted claims for damages for alleged
unlawful arrest and detention, and malicious prosecution.
[1]
I refer to the Police Minister and the NDPP as “
the
Defendants”
.
2.
It is necessary at the outset to record the basis
upon which the Default Applications were brought.
2.1.
In the notices of motion, it is recorded in both
instances that the applicants “
obtained
an order to compel the Respondent in terms of Rule 41A as read with
Mediation Directive Protocol of the 22 April 2025 of
this Division”
,
that “
the Respondent …
failed, refused and/or neglected to comply with the Order of 11
November 2025”
, and that the
applicant in each case “
therefore
becomes entitled to approach this court for an Order as in the
particulars of claim and to strike the defence of the Respondents”
.
Against the backdrop of the recordal, the relief claimed is for an
order holding the Defendants liable for the damages suffered
by
Messrs Khadambi and Valoyi as a result of their alleged unlawful
arrest, detention and malicious prosecution.
2.2.
In the founding affidavits in each case, it is
alleged that the Defendants failed to file notices of intention to
defend and that,
despite follow-up, nothing was done, leaving the
applicants with no option but to bring the Default Applications in
December 2025.
The remainder of the founding affidavits is devoted to
a discussion of the merits of Messrs Khadambi and Valoyi’s
claims.
Notwithstanding the background reference in the notices of
motion to orders issued by His Lordship Mr Acting Justice Brand
(Brand
AJ), which allow for default applications to be made in the
event of non-compliance with those orders, the founding affidavits
make no mention of the orders, nor is a case of non-compliance with
those orders pleaded in either case.
3.
The content of Default Applications assumes
significance in light of
the facts.
4.
It is indeed so that, in October 2025, Messrs
Khadambi and Valoyi
were moved to bring applications to compel compliance with the
Mediation Protocol (the Compelling Applications).
This was on the
premise that the Defendants had not replied to the Rule 41A notices
issued on their behalf. The Compelling Applications
were not opposed,
but on 4 November 2025 the Defendants served their replies to the
Rule 41A notices, consenting to mediation.
It is not known whether
this fact was brought to Brand AJ's attention when the Compelling
Applications were argued before him.
What
is
known is that he
issued identical orders in the following terms:
“
1.
The Respondent is declared delinquent because of its default in
failing to engage in Mediation in terms of the Mediation
Directive
and Protocol of 22 April 2025 (and its revision) and that it failed
to refer the matter to mediation in terms of Rule
41A.
2.
The Respondent is ordered to comply with its obligations to refer the
matter to Mediation in terms of Rule
41A within 15 (fifteen) days of
service of this order.
3.
In the event that the Respondent fails to comply as ordered in
paragraph 2 above, the Applicant shall be excused
from engaging in
mediation and be forthwith entitled to obtain a default judgment date
and seek:
3.1
An order striking out the Defense of the Respondent.
3.2
An order granting relief in terms of the particulars of claim.
4.
The Respondent must pay the costs of this application on a Party and
Party scale B.”
5.
In rule
6(5)(d)(iii) notices served in response to the Default Applications,
the Defendants asserted, in the case of Mr Valoyi,
that the
Compelling Application had been premature, and in the case of Mr
Khadambi, that the Compelling Application ought not to
have been
granted in circumstances where the reply to the rule 41A notice had
been filed prior to the issue of the order compelling
compliance.
These arguments ought to have been raised before Brand AJ or, the
Defendants ought to have invoked available
procedures rescission or
appeal) to have the orders set aside. An order stands until it
is set aside by a court of competent
jurisdiction. Until that
moment, it must be obeyed, even if incorrectly granted.
[2]
6.
In those circumstances, if Messrs Khadambi
and Valoyi came to the
conclusion that the orders of Brand AJ had not been complied with, it
was fully open to them to seek enrolment
on the default roll as
envisaged in the orders, and to have explained the basis upon which
they contended that the orders
had not been complied with. The
Defendants would not have been entitled to rely on any defence that
attacked the Brand AJ
orders.
7.
But that is not what happened.
8.
As I have indicated, the premise of the applications
as set out in
the founding affidavits was the Defendants’ failure to file a
notice of intention to defend,
not
non-compliance with the
Brand AJ orders.
8.1.
In the case of Mr Khadambi, a default application based on that
premise
cannot be sustained. A notice of intention to defend was
indeed filed on 5 July 2022, followed by a plea on 18 December 2022,
well
before the application before me was launched on 10 December
2025.
8.2.
In Mr Valoyi’s case, it is true that no notice of intention to
defend was issued prior to the launch of the current Default
Application, but it was indeed filed on 13 February 2026.
Pursuant
to a notice of bar, the plea was filed on 15 April 2026.
In other words, the basis advanced for the grant of default
judgment
in the founding papers no longer prevailed by the time the
application came before me.
9.
The upshot of this is that, in the case of
Mr Khadambi, the factual
basis for the Default Application relied on in the founding affidavit
simply did not exist at the time
the application was launched.
In the case of Mr Valoyi, rule 19(5) of the Uniform Rules assumes
significance: it provides
that a notice of intention to defend may be
delivered after an application for default is launched, but before
default judgment
has been granted, in which case all that a plaintiff
is entitled to is costs.
10.
Faced with the absolute defence that the case made out in the
founding affidavits provided no basis for the grant of judgment by
default, counsel for Messrs Khadambi, in particular, sought
to
persuade me that the Default Applications ought nonetheless to be
granted on the basis of non-compliance with the Brand AJ orders.
They cannot.
10.1.
In any
application, the case for relief must be made out in the founding
affidavit.
[3]
Recording a
prior order in the notice of motion does not constitute the
presentation of evidence that can be relied on to
found relief.
10.2.
Even if the content of the notice of motion could be relied on, the
notices of motion
in the present case simply record that the orders
were obtained in the Compelling Applications, and then assert a
failure, refusal
and/or neglect to comply. Nothing is said at
all about what the orders meant in the circumstances, and why there
was non-compliance.
The basis for the asserted non-compliance is not
provided, and no facts are brought forward to sustain the bold
claim. Of
course, in the answering affidavits, highlight that,
even before the matters came before Brand AJ, a reply to the Rule 41A
notice
had been filed. The orders nonetheless compelled
compliance with “
obligations to refer the matter to
mediation in terms of rule 41A”
. What are those
obligations? In what way were they breached? Since no
case was pleaded, no answer to these necessary
questions was
provided. It is not for this Court to speculate, to analyse the
Mediation Protocol, and to draw conclusions
about what the Defendants
might have been required to do, which they did not do, when the
applicants did not put up a version.
The applicants had to make
out their case; the Court only serves the function of adjudication.
11.
There is a further problem. In both cases, the Court
has now
been presented with draft orders seeking a separation of merits and
quantum
, postponement of the
quantum
determination, and
an order confined to a declarator that the Defendants are liable for
100% of the damages suffered as a result
of the alleged unlawful
arrest, detention and malicious prosecution. What this
highlights is that the procedure followed
was completely the wrong
one.
11.1.
Rule 31(2)(a) provides that:
“
Whenever in an
action the claim or, if there is more than one claim, any of the
claims is not for a debt or liquidated demand and
a defendant is in
default of delivery of notice of intention to defend or of a plea,
the plaintiff may set the action down as provided
in subrule (4) for
default judgment and the court may, after hearing evidence, grant
judgment against the defendant or make such
order as it deems fit.”
11.2.
Default judgment by way of application, as contemplated in rule 31(5)
is only available
where each of the claims is for a debt or
liquidated demand.
11.3.
An action for damages for unlawful arrest and detention, and for
malicious prosecution,
is a delictual claim for unliquidated
damages. It is not a debt or other liquidated amount. The
proposed draft orders
underscore this fact, because they recognise
that the calculation of quantum needs to be done separately. This
means that, even
if there had been a default as complained of
(failure to file a notice of intention to defend), the actions ought
to have been
set down on the default trial roll for the trial court
to receive evidence.
11.4.
Default judgment cannot be sought piecemeal, in respect of portions
of a claim in the
manner that was sought to be done here.
11.5.
It would have been no different if the default judgment had been
properly sought on the
basis of the Brand AJ orders. The orders
spoke of obtaining a “
default judgment date”
,
ostensibly referring to a set-down on the trial default roll, not an
application for default judgment to be heard on the opposed
motion
roll. This is the only way in which the order can be
understood, given the content of paragraph 4.9.3.2 of the Mediation
Protocol of April 2025, which entitles an aggrieved party to “
enrol
the matter on the Default Judgment roll”
.
12.
Given this analysis, there is no need to address the Defendants'
remaining grounds for opposition raised in response to the Default
Applications. The Default Applications fall to be dismissed.
13.
All that remains is the issue of costs.
14.
Mr Toma, appearing for the Defendants, characterised the litigation
as a “
comedy of errors”
. But this is no
comedy. It is a tragedy. It is a tale of Defendants who, at
various stages, simply did not comply with
their obligations,
standing in the way of the progression of the matter. It is a
story in which valuable Court time was wasted
on arguments over
non-compliance with the Mediation Protocol, rather than engaging in
mediation in accordance with the Mediation
Protocol's intention to
resolve matters without Court intervention, where possible. And
ultimately, it is a chronicle of
two individuals whose legal
representatives invoked an improper procedure and otherwise committed
serious errors. This Court
cannot but grant the costs order
sought by the Defendants in the case of Mr Khadambi. Although
Mr Valoyi would ordinarily
be entitled to costs, given that the
notice of intention to defend was only filed after the default
application, this Court must
take note of the wrong procedure that
was followed. The best way to balance the default and the use
of wrong procedure is
for each party to pay its own costs in respect
of Mr Valoyi’s application.
15.
A
final word is apposite.
The
Defendants' success in thwarting the Default Applications for the
reasons I have given should be no cause for celebration.
As
the Constitutional Court explained in
Kirland
:
[4]
“
there
is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with
rights. Government is not an indigent or bewildered litigant,
adrift on a sea of litigious uncertainty, to whom the
courts must
extend a procedure-circumventing lifeline. It is the
Constitution’s primary agent. It must do right,
and it
must do so properly”
.
[5]
It is shocking that the Defendants have repeatedly failed to comply
with their obligations.
I
was told from the Bar that the Defendants are now in receipt of the
curricula
vitae
of mediators proposed by the applicants. It is my hope that the
mediation option will now swiftly be exhausted and, if it
fails, that
the matters can proceed to trial.
16.
In light of the foregoing, I make the
following orders:
In case number
28090/2022
The application is
dismissed with costs, including the costs of counsel on Scale B.
In case number
28091/2022
1.
The application is dismissed.
2.
Each party shall bear its own costs
3.
The application is dismissed.
4.
Each party shall bear its own costs
M ENGELBRECHT
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA
APPEARENCES
FOR
THE APPLICANT: ADVOCATE VAN RYNEVELD
INSTRUCTED BY: MASHAO
ATTORNEYS
FOR THE RESPONDENT:
ADVOCATE TOM
INSTRUCTED BY: THE
STATE ATTORNEY
[1]
Messrs
Khadambi and Valoyi, both Tshwane Metro Police Officers, together
with other colleagues, had been arrested on allegations
of assault
and theft in October 2021. They were prosecuted, but, after various
postponements, the charges were withdrawn on 9
May 2022.
[2]
Clipsal
Australia (Pty) Ltd v GAP Distributors
2010 (2) SA 289
(SCA) paras 21 – 22, and the authorities there
cited.
[3]
Setlogelo
v Setlogelo
1914 AD 221
at 227 – 228.
[4]
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
2014
(3) SA 481 (CC).
[5]
Kirland
at
para 82. Emphasis supplied.