Maleka and Another v Minister of Police and Another (35655/2018) [2021] ZAGPJHC 531 (13 October 2021)

Maleka and Another v Minister of Police and Another (35655/2018) [2021] ZAGPJHC 531 (13 October 2021)

The court held that the respondents are not the custodians of the criminal proceedings record, which is kept by the court itself. The applicants could obtain the transcript directly from the clerk or registrar of the court upon payment of the required fee. The application to compel the respondents to provide the record was deemed unnecessary and an abuse of the court process. The court dismissed the application with costs, finding that Rule 35(3) does not apply when the requested document is not in the possession or custody of the party from whom it is sought.

Citation
[2021] ZAGPJHC 531
Parties
Applicant: Bongani Maleka; Applicant: Mmeli Mbatha; Respondent: Minister of Police; Respondent: The National Director of Public Prosecutions
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 October 2021
Case Number
35655/2018
Procedural Posture
Civil Application / Application to Compel Discovery
Outcome
Application dismissed with costs.
Judges
Senyatsi ML
Legal Topics
Discovery of Documents, Rule 35, Abuse of Process
Civil Procedure Discovery of Documents Rule 35 Abuse of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Bongani Maleka

Applicant

Mmeli Mbatha

Applicant

Minister of Police

Respondent

The National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Application / Application to Compel Discovery

Legal Issues

  1. 1 Whether the respondents can be compelled to provide the criminal proceedings transcript under Rule 35(3).
  2. 2 Whether the respondents are custodians of the criminal court record.
  3. 3 Whether the application to compel is an abuse of court process.

Ratio Decidendi

The court held that the respondents are not the custodians of the criminal proceedings record, which is kept by the court itself. The applicants could obtain the transcript directly from the clerk or registrar of the court upon payment of the required fee. The application to compel the respondents to provide the record was deemed unnecessary and an abuse of the court process. The court dismissed the application with costs, finding that Rule 35(3) does not apply when the requested document is not in the possession or custody of the party from whom it is sought.

Court Disposition

Application dismissed with costs.

Orders

  • The application to compel delivery of documents in terms of Rule 35(3) is dismissed with costs.