Minister of Police v Abrams (1857/2022) [2025] ZANWHC 101 (12 June 2025)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION MAHIKENG

CASE NO: 1857/2022

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

MINISTER OF POLICE

APPLICANT

and

ABRAM ABRAMS

RESPONDENT

CORAM: REDDY ADJP

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 12 JUNE 2025 at 10h00.

ORDER

(i) The application for condonation is granted.

(ii) The application is dismissed with costs.

JUDGMENT

REDDY ADJP

Introduction

[1] The interlocutory application before this Court engages with a rudimentary principle of whether the applicant, the Minister of Police, (the defendant in the main action), has made a proper case for the upliftment of bar as evinced in Rule 27 of the Uniform Rules of Court, (the rules).The respondent, Mr Abram Abrams, (the plaintiff in the main action) opposes the application. For purposes of brevity the parties will be referred to by the appellations as cited in the main action.

Condonation

[2] Afore, a consideration of the merits of the application, the question of condonation must be considered. The defendant requests that the failure to comply with the order of court dated 2 October 2023 be condoned.

[3] On 2 October 2023, the plaintiff’s action was set down as a default hearing. Surprisingly, a legal representative appeared on behalf of the defendant. Mongale AJ who was seized with the action, ordered, (i) that the matter be postponed to 5 March 2024, (ii) that the defendant is ordered to bring its application for the upliftment of the bar on or before 1 December 2023, and, (iii) that the defendant is ordered to pay the plaintiff’s costs occasioned by the postponement, including all reservations costs of the plaintiff’s expert witness as determined by the Taxing Master, such costs to be on a party -and-party scale.

[4] The defendant failed to cohere with the order of Mongale AJ. By 1 December 2023, the application for the upliftment of bar had not been delivered. On 4 March 2024, the application for the upliftment of bar was delivered.

[5] The defendant now seeks an order for the condonation for the non-compliance with the order of Mongale AJ and an order uplifting the bar, to deliver a plea within five (5) days of the granting of this order.

[6] The condonation application is unopposed. The principles that govern an application for condonation are trite. See: Melane v Santam 1962 (4) SA 531 (A) at 532C – F, Steenkamp and Others v Edcon Limited [2019] 11 BLLR 1189 (CC). Under the circumstances, the failure to have complied with the order of court dated 2 October 2023 is condoned.

Background facts

[7] On 10 August 2022, plaintiff instituted an action under the Lex Aquilia predicated on his unlawful arrest and unlawful detention. To this end, summons was delivered in terms of the rules. On 15 September 2022, the defendant entered an appearance to defend. On 13 October 2022 the dies induciae for the filling of a plea, exception, notice to strike out with or without a counter claim lapsed. No pleading was delivered after the delivery of the notice of intention to defend.

[8] Resultantly, on 18 October 2022, the plaintiff caused a notice of bar to be delivered. The prescribed timeline as set out in the notice of bar expired on 25 October 2022. The latter procedural step triggered no reaction from the defendant. What followed was the defendant becoming ipso facto barred. The defendant has been under bar since 26 October 2022. On 4 March 2024, the defendant delivered this application for the upliftment of bar which loosely calculated was seventeen (17) months after being ipso facto barred.

[9] During this hiatus the plaintiff amended his particulars of claim.

[10] The defendant contends that on receipt of the summons a vigilant search for the docket bearing Ottosdal CAS 29/01/2021 was launched. This proved to be unsuccessful. Due to the absence of a digital system to track and trace the dockets, several police stations were physical visited to locate same. This proved to be another setback.

[11] During February 2024, it was discovered that the plaintiff was linked to several dockets apart from the Ottosdal one. On 19 February 2024, Warrant Officer Kubu made available the Ottosdal docket. The following day, same was delivered to the State Attorney. On 21 February 2024, a consultation with the appointed counsel was confirmed which was to be held on 27 February 2024.

[12] The defendant submitted that the application for the upliftment of the bar ought to have been delivered on or before 1 December 2023. The application is forty- five (45) days late. In the computation, of the latter period the dies between 15 December 2023 to 16 January 2024 are excluded. In terms of this calculation the period is not excessive and unreasonable.

[13] The fulcrum of the defendant’s motion is best encapsulated by extrapolating from the founding affidavit. It reads:

PROSPECTS OF SUCCESS

“28. I submit that the Respondent is alleged to have committed several criminal offences in the North West Province. There are several cases dockets opened from the period of 2019 to 2022 against the Respondent. The case numbers are as follows: 42/09/2019, 39/01/2021,

176/01/2021 and 104/10/2020 respectively.

29. I further submit that on all cases, the Respondent was charged with robbery with aggravating circumstances and possession of unlicensed firearm. The Respondent and his co-accused are running a syndicate around the North West Province wherein the Respondent advertise on social media platforms that he is selling cars.

30. When the potential customers respond to the advert the Respondent then arrange a viewing and test driving of the vehicle, when the victims arrives, the Respondent would pounce on them at gun point and rob them of their belongings such as cell phones. In other circumstances, the Respondent would demand that the victims transfer money into his bank account.

31. I submit that the South African Police Services statistics reported 26 567 crimes in the province between October 2022 to December 2022.

32. I further submit that the Respondent has committed robbery with aggravating circumstances, which is the unlawful and intentional forceful removal and appropriation in aggravating circumstances of movable tangible property belonging to another,

33. The interest of justice requires that such perpetrators on these kind of offences must be held accountable.

34. I further submit that the Respondent cases are joined in one case and he is appearing in Klerksdorp Court for various cases relating to Robbery.

PREJUDICE TO APPLICANT

35. The applicant will not in any way be prejudiced by this condonation application. The respondents, on the other hand, and if condonation is not granted, will suffer irremediable prejudice in the form of being deprived of an opportunity to properly address all the contentions raised by the applicant.

36. It would be in the interests of justice to grant condonation and upliftment of bar as the applicant had given adequate explanation for the delay.

37. I submit that there are prospects of success in the main matter considering the various offences committed by the Respondent.

[14] In answer the plaintiff refuted that the defendant had made out a case for the relief sought either on fact or law. The defendant made an informed decision not to file a replying affidavit. Resultantly, the averments made by the respondent were not defended with any enthusiasm. The legal effect of same I will return to shortly.

Submissions by defendant

[15] Adv Kwanaite with reference to Smith, N.O. v Brummer, N.O. and Another 1954 (3) SA 352 (O) at para 358, Academic and Professional Association v Pretorius NO and Others (2008) 29 ILJ 318 (LC) at para 17-18 and Brummer v Gorfil Brothers (Pty) Ltd [2000] ZACC 3; 2000 (2) SA 837 (CC) claimed that the fundamental requirements that navigate rule 27 had been met. Regarding the fact-based enquiry, Adv Kwanaite declared that factors outside the control of the defendant caused the delay in the application for the upliftment of the bar from being delivered.

[16] Adv Kwanaite continued that it is in the interests of justice that this application be granted as the amount claimed by the plaintiff is sourced from an organ of state. Therefore, all funds had to be properly accounted for to avert irregular expenditure. Should this application be dismissed without the defendant filing a plea, this will cause irregular expenditure.

[17] This application, Adv Kwanaite continued is founded on good faith. There is a real prospect of success in the main action as the plaintiff is alleged to have committed several offences within this jurisdiction. In this regard, Adv Kwanaite placed much store on Gaosholelwe and Others v Pieman’s Pantry (Pty) Ltd 2009 30 ILJ at para 27 where the following was posited:

“a consideration of prospects of success merely implies a determination of the likelihood or chance of success when the main case is heard.”

[18] Further, Adv Kwanaite underscored that in Seatlholo and Others v Entertainment Logistics Service (2011) 32 ILJ (LC) at para 24 the court held:

“the test is whether the applicants would succeed in the main action if the facts pleaded by them in their condonation application were established at trial. Equally so, the prospects of success do not entail an applicant having to prove on a balance of probabilities

that he or she would succeed when the merits of the case are heard.”

[19] Significantly, Adv Kwanaite concluded that the plaintiff was arrested in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977. To this end, the plaintiff was charged with robbery and the possession of a firearm without a license.

Submissions by plaintiff

[20] Adv Smit contends that the defendant has not given any evidence as what its defence might be. Moreover, the allegations that the plaintiff has committed several offences is not a defence to plaintiff’s cause of action. It also does not show good cause or that the defendant has a bona fide defence. Adv Smit avowed that the brandishing of several police CAS numbers relating to case dockets is of no relevance if it presents no nexus to the plaintiff. Notably, the defendant neglects to ventilate on what basis the arrest of the plaintiff was founded.

[21] Adv Smit continued that on an overall assessment of the defendant’s founding affidavit it is apparent that the defendant is not acting bona fide. Simply put, Adv Smit asserted that notwithstanding all the relevant notices having been served on the Office of the State Attorney no explanation was forthcoming explicating the inaction. Significantly, the delay has not been sufficiently explained. The ineluctable conclusion so Adv Smit postulated from the fissures in the defendant’s application was that it was simply another systematic delay.

[22] Regarding prejudice Adv Smit claims that given the inordinate delay on the part of the defendant, the prejudice is self-evident.

The law and analysis thereof

[23] It is peremptory for a defendant to satisfy the requirements for the upliftment of bar which should be predicated on good cause being shown. Good cause is a two-stage enquiry first, the defendant must put forward a satisfactory explanation for the delay. It was held in this regard that the defendant must at least furnish an explanation in full for his default comprehensively such that the court should be able to determine his motives. See: Silber v Ozen wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A.

[24] Second, the defendant must show he has a bona fide defence. In Smith, N.O. V Brummer, N.O. And Another 1954 (3) SA 352 (OPD), Brink J stated that good cause will be constituted as follows :

“In an application for removal of bar the Court has a wide discretion which it will exercise in accordance with the circumstances of each case. The tendency of the Court is to grant such an application where: (a) the applicant has given a reasonable explanation of his delay; (b) the application is bona fide and not made with the object of delaying the opposite party’s claim; (c) there has not been a reckless or intentional disregard of the Rules of Court; (d) the applicant’s action is clearly not ill-founded, and (e) any prejudice caused to the opposite party could be compensated for by an appropriate order as to costs; The absence of one or more of these circumstances might result in the application being refused”.

[25] In Ingosstrakh v Global Aviation Investments (Pty) Ltd and Others (934/2019) [2021] ZASCA 69 (4 June 2021) t para 21 it was held that: “[G]enerally, the concept of ‘good cause’ entails a consideration of the following factors: a reasonable and acceptable explanation for the default; a demonstration that a party is acting bona fide; and that such party has a bona fide defence which prima facie has some prospect of success. Good cause requires a full explanation of the default so that the court may assess the explanation.”

[26] The primary vehicle in motion proceedings are affidavits. There are customarily three sets of affidavits in motion proceedings, namely a founding affidavit, an answering affidavit, and a replying affidavit. A party who wishes to file any other affidavit may only do so with leave of the court. See: Standard Bank of SA Ltd v Sewpersadh 2005 (4) SA 148 (C) at 153G–H.

[27] The filing of further affidavits is permissible within strict circumstances. The test to be applied was set out in In Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (1) SA 161 SCA at para 11, where it was held that Rule 6(5)(e):

“establishes clearly that the filing of further affidavits is only permitted with the indulgence of the court. A court, as arbiter, has the sole discretion whether to allow the affidavits or not. A court will only exercise its discretion in this regard where there is good reason for doing so.”

[28] In James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D-H, the following was postulated as regards the filing of affidavits:

“It is in the interests of the administration of justice that the well-known and well-established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from the Court: he must both advance his explanation of why the affidavit is out of time and satisfy the Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received.”

[29] Given the impact of affidavits, it is peremptory that the utmost care is taken to fully set out the case on whose behalf the affidavit is filed. Unquestionably, this Court is seized with an application on motion. This application fell to be decided in accordance with the principle laid down in Plascon- Evans Paints v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A) at 634E -635C, (the Plascon Evans principle). In terms of that principle, an applicant who seeks final

relief in motion proceedings must in the event of a dispute of fact, accept the version set up by his or her opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers. Isedor Skog N.O. & Others v Koos Agullus & Others (797/2021) [2023] ZASCA 15; [2023] 2 All SA 631 (SCA); 2024 (1) SA 72 (SCA) (20 February 2023) para 18, Wightman t/a JW Construction v Headfour and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA); [2008] All SA 512 (SCA) para 12.

[30] Secondary to the regurgitation of the law, the factual matrix in an application in terms of rule 27 is indispensable to an applicant attaining the imprimatur of a court to uplift the bar which would pave the way for the delivery of a plea. Cutting aside the verbiage, the defendant’s affidavit is scant of primary facts. To this end, the defendant fails to address substantive issues which forms the centre of this application.

[31] This is illustrated by the following. A notice of intention to defend was delivered on 15 September 2022. The rules proscribe that the defendant has twenty (20) days to deliver a plea. The timeline for the delivery of the defendant’s plea lapsed on 13 October 2022. The defendant contends that on receipt of the summons, ‘I started searching for the docket at the Potchefstroom SAPS however, I could not locate the docket. I then called other several police stations around the North West Province still with no success.’

[32] What the defendant conveniently skirts, are the timelines which are critical to the issue of good cause. Absent is an indication of the date on which the summons was received. Service of the summons was affected on 17, 18 and 19 August 2022. There is no indication on which of these dates or a further applicable date that the summons was received. As posited in Ingosstrakh, the defendant must address the hiatus between the delivery of a notice of intention to defend and being ipso facto barred. The defendant did not.

[33] Moreover, from August 2022, the defendant parachutes to January 2023 and contends that “on or about January 2023, I went to several police stations around the North West Province in search of the docket as there are no digital systems in place to locate the docket. I still could not find the docket.’

[34] This submission is devoid of logic. Tellingly, it erodes the bona fides of the defendant. It served no purpose to have traipsed the length and breathe of this Province when the plaintiff was arrested and detained in Potchefstroom under Ottosdal CAS 39/01/2021. This much is clear from the notice in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of the State Act, 40 of 2002 wherein, it was posited that, ‘On or about 13 April 2021 at Potchefstroom Police Station, our client was arrested without a warrant, by Mr. Tigele, Mr Kubu and Mr. Rakhate of the South African Police Services. Our client was then detained at the police cells, at the Potchefstroom Police Station and later at the Potchefstroom Prison. Our client appeared in the Ottosdal Magistrates Court numerous times during his detention….’

[35] The defendant in broad strokes indicates that several police stations were visited but makes no mention of whether the Ottosdal Police Station was included amongst these. Significantly, the dates and names of the various police stations as well as police officers that were engaged as far as it relates to this matter remain undescribed and nameless. Appositely, the defendant fails to indicate with sufficient particularity why random police stations were identified for this rudderless exercise. The facts that made the invocation of this decision a prudent one are lacking. The defendant opportunely fails to elucidate why in August 2022 when the summons was received the various responsible officers in the area command were not engaged for the tracing of the case docket.

[36] Notably, the defendant has not set out a bona fide defence. An exposition of the law pertaining to motion proceedings has been dealt with in this judgment. An exercise in repetition is not warranted. In paragraph 26 of the defendant’s written heads states as follows:

‘It is submitted that the Respondent was lawfully arrested in terms of Section 40(1)(b) of the Criminal Procedure Act of 1977. The Respondent was charged with Robbery and possession of firearm. It is further submitted that the Respondent cases are joined in one case for various related to Robbery.’

[37] Section 40(1) (a) of the Criminal Procedure Act 51 of 1977 provides that a peace officer may without a warrant, arrest any person who commits or attempts to commit any offence in his presence. The fissure in the defendant’s application is that this defence is not contained in the defendant’s founding affidavit. The defendant’s defence is the following:

28. I submit that the Respondent is alleged to have committed several criminal offences in the North West Province. There are several case dockets opened from the period 2019 to 2022 against the Respondent. The case numbers are as follows: 42/09/2019, 39/01/2019, 176/01/2021 and 104/10/2020 respectively.

29. I further submit that on all cases, the Respondent was charged with robbery with aggravating circumstances and possession of unlicensed firearm. The Respondent and his co-accused are running a syndicate around North West Province wherein the Respondent advertise on social media platforms that he is selling cars.

30. When the potential customers respond to the advert the Respondent then arrange viewing and test driving of the vehicle, when the victims arrives, the Respondent would pounce on them at gun point and rob them of their belongings such as cell phones. In other instances, the Respondent would demand that the victims transfer the money into his bank account. …’

[38] There is no bona fide defence that has been raised. In Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426 A-D the following principles are to be applied in assessing whether a bona fide defence has been raised:

‘Where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summons, or combined summons, are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the Court enquires into is: (a) whether the defendant has 'fully' disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is both bona

fide and good in law. If satisfied on these matters the Court must refuse summary judgment, either wholly or in part, as the case may be. The word 'fully', as used in the context of the Rule (and its predecessors), has been the cause of some Judicial controversy in the past. It connotes, in my view, that, while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence.’

[39] On a liberal reading of the defendant’s founding affidavit there is no adherence to the principles enunciated in Maharaj in so far as it relates to a bona fide defence. Peculiarly, the defence raised in written argument is not analogous to the facts in the founding affidavit. That leads to the ineluctable conclusion that the defendant has not ventilated a bona fide defence. All these lacunas could have been gainsaid by simply attaching a plea to the defendant’s founding affidavit.

[40] The defendant has not provided, (i) a reasonable and acceptable explanation for the delays, (ii) has not demonstrated that it is acting bona fide and (iii) does not have a bona fide defence. The overall presentation of the defendant’s application has been tardy.

[41] The defendant has approached this Court under the misconception that an application premised in terms of rule 27 is simply there for the taking. Apart from the lack of salient primary facts, the defendant elected not to file an answering affidavit. In my view, this is a clear indication of the languid approach of the defendant, notwithstanding the obvious legal ramifications. Included in this melting pot, the defendant has intentionally refrained from filing innumerable confirmatory affidavits. In the circumstances the defendant has not made out a case for the relief sought.

Conclusion

[42] In respect of costs, there is no basis to deviate from the usual order that costs follow the result.

Order

[43] In the premises I make the following order:

A. REDDY

ACTING DEPUTY JUDGE PRESIDENT OF

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

For the Applicant

Advocate R. Kwanaite

Instructed By

Office of the State Attorney

Defendant’s Attorney

First Floor, East Gallery

Mega City, Complex

For the respondent : Advocate D Smit

Instructed By

Nienaber & Wissing Attorneys

4204 Palmer Cresent

Leopard Park

Mahikeng

Date judgment reserved: 24 March 2025

Date judgment handed down: 12 June 2025