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[2026] ZAGPJHC 933
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Minister of Police v Mogale (2018/20995) [2026] ZAGPJHC 933 (20 August 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 2018/20995
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: No
(3)
NOT REVISED
In the matter between:
MINISTER
OF POLICE
Applicant
and
MOGALE NAMEDI
LIONEL
Respondent
Heard:
17 August 2026
Delivered:
20 August 2026
JUDGMENT
Yacoob, J:
1.
The power to rescind an order in specific
circumstances is an exception to the general rule that a court is
functus officio
once
it has pronounced on a matter. That general rule is essential to the
finality and certainty which themselves are necessary
elements of the
Rule of Law. However, like any other rule, it cannot be applied
inflexibly as that may lead to injustice. Rescission
is therefore
permitted in limited circumstances.
2.
The applicant seeks rescission of an order
obtained by the respondent in the default judgment court, awarding
him R500 000
damages for unlawful arrest, detention and assault.
The applicant relies on Rule 42(1)(a) of the Uniform Rules of Court,
alternatively
the common law.
3.
Mr Mogale was arrested on Sunday 19
November 2017 and detained until the next morning, when he was
released on bail. Charges against
him were subsequently dropped. He
alleges also that he was assaulted.
4.
After Mr Mogale’s action was
instituted, he obtained an order striking the applicant’s
defence due to non-compliance
with the rules of court. Thereafter, on
19 June 2025, the order referred to above was obtained on a default
basis, after notice
of set down had been served on the office of the
State Attorney. The order was served by email on the State Attorney
on 1 July
2025 and served physically on 14 July 2025.
5.
The State Attorney’s undisputed
version in explanation of its client’s default and of any delay
before instituting the
rescission application is that the attorney
who was seized with the matter left the employ of the State Attorney
on 30 August 2024
and that no attorney was actively managing the
matter. The attorney who deposed to the founding affidavit in support
of the rescission
was allocated the matter on 01 September 2025. The
application was then instituted on 30 October 2025.
6.
It is, in my view, clear that the
application was instituted within a reasonable time for the purposes
either of Rule 42(1)(a) or
the common law, neither of which impose a
specific time limit, but both of which require the application to be
brought within a
reasonable time. A reasonable time, of necessity,
must be determined in the context of each case.
7.
I
am also satisfied that the explanation establishes that the default
was not deliberate. This distinguishes this case from the
primary
authority on which the respondent sought to rely, that is,
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State and Others
,
[1]
since
in that case the applicant for rescission deliberately opted not to
appear before the court.
8.
The requirements for rescission under Rule
42(1)(a) are that the order must have been erroneously sought or
erroneously granted
in the absence of any party affected thereby.
9.
For purposes of the Rule, the absence of
the party affected must not be as a result of a deliberate decision
to participate in proceedings.
As set out above, I am satisfied that
the applicant’s failure to appear was not deliberate.
10.
The
applicant contends that the order was erroneously granted because the
court was unable to consider the applicant’s argument,
particularly on what the appropriate quantum of the award would be.
It contends that as a result, the award is too high. Essentially,
the
applicant’s contention is that the order was wrong. This is not
the sort of error that falls within the ambit of the
Rule.
[2]
11.
It
is then necessary to consider whether the applicant has made out its
case in terms of the common law. In terms of the common
law, an
applicant for rescission of a judgment granted in default must show
good cause. This includes giving a reasonable explanation
for the
default, and that there is a bona fide defence with some prospects of
success.
[3]
12.
An
application in terms of the common law must be brought within a
reasonable time. This depends on the context of the particular
case.
The Constitutional Court in
Ekurhuleni
City v Rohlandt Holdings CC and Others
[4]
commented
that, although there is no prescribed time period, a starting point
or guide would be the 20 days referred to in Rule
21(2)(b) of the
Uniform Rules. Although counsel for the respondent suggested
otherwise, this is not a ruling that 20 days is the
definitive
reasonable period for purposes of review under the common law. It is
simply a starting point.
13.
I have already accepted that the
applicant’s explanation for default is reasonable, and that the
application is brought within
a reasonable time. The same facts are
relevant to both elements, in the circumstances of this case, and
there was no need for the
applicant to repeat them with reference to
each ground pleaded. The questions to be determined are whether the
application is made
bona fide
and whether there is a
bona fide
defence.
14.
It is the respondent’s contention
that the application is made simply for the purpose of delaying
payment. However, it would
not be appropriate for the applicant, as
an organ of state, to simply pay an amount that,
prima
facie
at least, appears to be
excessive.
15.
I am satisfied both that the application is
made
bona fide
and that there is a
bona fide
defence, as the amount awarded does not seem
consistent with the evidence apparently before the court. The
respondent does not make
any allegations in his answering affidavit
as to what was submitted to the court and what was before the court.
In those circumstances
this court is limited to the papers and the
contents of the file. My view is that the award is higher than may
have been expected
and had the applicant been present, and presented
proper argument with regard to the evidence and comparative awards,
it is probable
that the award would have been lower.
16.
I am satisfied that the applicant has
established grounds for rescission under the common law, and that my
discretion should be
exercised in the applicant’s favour.
17.
The relevant portion of the judgment being
set aside, any execution is automatically precluded. There is no need
to make an order
in that regard. There is no evidence of any warrant
of execution that may need to be set aside.
18.
However, with regard to costs, it is
indubitable that the default was due to a failure of the office of
the State Attorney to ensure
that all matters it was seized with were
given proper attention. The respondent should not have to bear the
burden of costs for
that failure. I am satisfied that the applicant
should, notwithstanding its success, bear the costs of the
application on an attorney
and client scale.
19.
I make the following order:
1.
The order of the court in this matter on 19
June 2025 in respect of damages awarded is rescinded and the award of
R500 000
is set aside.
2.
The issue of quantum is referred back to
the trial court for proper determination.
3.
The applicant is to pay the costs of this
application on an attorney and client scale.
S YACOOB
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
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 email and by uploading it to
the electronic file of this matter on
CaseLines/ Courtonline.
The date for hand-down is deemed to be 20 August 2026.
For the
Applicant:
Ms JD Mabelane
Instructed
by:
The State Attorney, Johannesburg
For the
Respondent: Mr BM
Khumalo
Instructed
by:
HC Makhubele Inc
[1]
[2021] ZACC 28
;
2021 (11) BCLR 1263
(CC); 2021 JDR 2069 (CC).
[2]
Seale v
Van Rooyen NO and Others; Provincial Government, North West Province
v Van Rooyen NO and Others
2008
(4) SA 43
(SCA) at [18].
[3]
See
Zuma
(above) at [71] and the authorities there referred to.
[4]
2025 (1) SA 1
(CC).