REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NUMBER: 2018/34951
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
12.06.23

							     
In the matter between:

THE NATIONAL COMMISSIONER OF POLICE
SOUTH AFRICAN POLICE SERVICE                                                            First   Applicant

THE DIRECTOR OF PUBLIC PROSECUTIONS
NATIONAL PROSECUTION AUTHORITY                                                  Second Applicant
  
and

ZOLANI KALI			 					                  Respondent

_________________________________________________________________________

JUDGMENT
_________________________________________________________________________

WANLESS AJ

Introduction

[1]	This is an application by the NATIONAL COMMISSIONER OF POLICE, SOUTH AFRICAN POLICE SERVICES (“the First Applicant”) and the NATIONAL DIRECTOR OF PUBLIC PROSECUTION (“the Second Applicant”) for the rescission of what is described in the Notice of Motion and the Founding Affidavit as a judgment granted by default in favour of one ZOLANI KALI, adult male (“the Respondent”) against both Applicants on the 18th of July 2022.

[2]	The application is instituted in terms of the provisions of subrule 42(1)(a) of the Uniform Rules of Court.  However, at the hearing of this application, Counsel for the Applicants also sought to rely on the common law.

[3]	As is clear from the application papers before this Court the order sought to be set aside was not a judgment by default but an order granted in the absence of the Applicants striking out their defence to an action instituted by the Respondent, as is more clearly set out hereunder.  

The facts 

[4]	The relevant facts which are either common cause or cannot seriously be disputed by either party in this matter are as follows:

4.1	During 2018 the Respondent issued and served summons upon the Applicants whereby he commenced an action for unlawful arrest and detention together with malicious prosecution.  The action was defended;

4.2	On the 5th of May 2022, Twala J granted an order compelling the Applicants to comply with the Respondent’s rule 37(1) notice within ten days of the service of that order;

4.3	The Applicants did not comply therewith;

4.4	The Applicants did serve and file a notice in terms of rule 28 amending their Plea;

4.5	As a result of the failure of the Applicants to comply with the order of Twala J the Respondent’s attorneys served a notice in terms of rule 30A upon the State Attorney and thereafter set the matter down (with notice to the Applicants) for the striking out of the Applicants’ defence in the action;

4.6	On the 18th of July 2022, Dlamini J granted an order (in the absence of the Applicants) striking out their defence as a result of the Applicants failing to comply with the order of Twala J.  

The grounds for rescission 

[5]	The grounds proffered by the Applicants in support of the rescission of the order by Dlamini J in terms of subrule 42(1)(a) is that the order was erroneously granted since the Applicants had amended their Plea and as such “…this would obviously change both parties’ approach towards the pre-trial conference and both parties would have to prepare accordingly.”

[6]	The absurdity of the aforegoing only has to be stated to be understood. This is particularly so in light of the difficulty the Respondent had experienced in getting the Applicants to convene a rule 37 conference and the fact that the action had been instituted as far back as 2018.  Moreover, the Applicants fail to provide any details whatsoever to substantiate or support this broad allegation. This is the only factor upon which the Applicants rely in support of the application for rescission. Clearly, it fails to satisfy the requirements of subrule 42(1)(a). The order was procedurally and substantively correct in all material respects.

[7]	As to the late reliance on the common law, as conceded by Counsel for the Applicants when pressed, the Applicants did not set out any grounds for good cause in their founding affidavit to give this Court any reason, at all, to come to their assistance.  Furthermore, the order was granted on 18 July 2022 and their application appears only to have been issued on or about the 24th of August 2022.  

Conclusion 

[8]	In light of the aforegoing the application for rescission cannot succeed and must be dismissed, with costs. As to the scale of those costs, this Court raised the issue with the Counsel for the Applicants as to why the Applicants should not be ordered to pay the costs on a punitive scale. The only submission in that regard was the difficulty experienced by the State Attorney to consult with State witnesses.

[9]	Regrettably, the aforegoing is not a valid reason for litigating in this fashion and failing to protect the national fiscus. One can only hope that this vastly improves when the matter goes to trial on the issue of the quantum of the Respondent’s claims. The Respondent had asked for punitive costs in the Respondent’s Heads of Argument, so the Applicants were well aware of the risk undertaken by continuing with this application which had no prospects of success.

[10]	Despite the aforegoing this Court, in the exercise of its general discretion, finds that the costs should be paid by the Applicants on the party and party scale.  

Order

[1]	This Court makes the following order:
 
1.	The application is dismissed;
 
2.	The First Applicant and the Second Applicant are to pay the costs of the application, jointly and severally the one paying the other to be absolved.    

						_____________________________
						B.C. WANLESS
					Acting	Judge of the High Court
						Gauteng Division, Johannesburg 

Heard:			30 May 2023 
Ex Tempore:		06 June 2023
Transcript:		           12 June 2023

Appearances:

For Applicants:		A Bleki
Instructed by:		State Attorney

For Respondent:		I Nwakodo
Instructed by:		Ogbede Attorneys