Minister of Police v Kunene and Others (25544/2018) [2018] ZAGPJHC 664 (15 August 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 25544/2018

In the matter between:

THE MINISTER OF POLICE Applicant

and

AYANDA IRVIN KUNENE 1st Respondent

NKOSI GUSTAV LEKABE 2nd Respondent

MINISTER OF JUSTICE AND CORRECTIONAL

SERVICES 3rd Respondent

HASSAN EBRAHIM KAJEE 4th Respondent

THE SHERIFF, PRETORIA CENTRAL 5th Respondent

J U D G M E N T

MUDAU, J:

[1] This is an application that Part A hereof be heard as a matter of urgency as envisaged in Rule 6 (12) of the Uniform Rules of Court, that the writ of execution issued against the applicant on 1 June 2018 be stayed pending the outcome of the rescission application

(Part B) and/or any subsequent appeal processes that may follow the rescission application as well as other ancillary relief. The matter was heard on 24 July 2018 on which occasion I directed that counsel for the applicant file written heads overnight, but none were filed.

[2] The issue whether the matter should be enrolled and heard as an urgent application is governed by the provisions of Rule 6 (12) of the Uniform Rules which allows this court to dispense with the forms and service provided for in the rules and dispose of the matter at such time and place, in such manner and in accordance with such procedure as it seems meet.

[3] On 7 February 2017 this court (per Tsoka ADJP) and by consent of the parties, granted an order directing the applicant (the defendant in the main action) to compensate the first respondent (the plaintiff in the main action) for all the proved and/or agreed damages arising from the “unlawful assault” perpetrated upon the first respondent on 7 August 2013 by members of the SAPS who were employees of the applicant. Subsequently, on 15 February 2018 the first respondent amended his particulars of claim in an apparent attempt to also include damages for unlawful arrest and detention which according to the applicant, was never pleaded nor could have been conceded to on 7 February 2017.

[3] On 2 March 2018 this court (per Matojane J) and by consent based on a stated case granted an order in terms of which the applicant was directed to pay the sum of R34 077 000, 00 (thirty four million and seventy seven thousand rand) to the first respondent arising from “delictual damages and contumelia” sustained by the first respondent as a result of an unlawful shooting incident and “his subsequent unlawful arrest and detention”. The applicant avers that on 28 February 2018 Brigadier Beukes had raised a query with the second respondent which the latter ignored, upon receipt of a memorandum from the second respondent drafted by the fourth respondent in which the merits were conceded.

[4] The above court orders are the subject of a pending rescission application (Part B) to be heard on 27 August 2018. According to the applicant, their instructing lawyer (second respondent) and counsel who represented the applicant (fourth respondent) did not have any authority to concede the liability claim regarding the merits on 7 February 2017 due to the fact that express written instruction was given to the second respondent to defend the claim instituted by the first respondent which renders the settlement agreement null and void. According to the applicant, the instruction was given on the basis that the applicant has valid and bona fide defences based on the facts that led to the shooting incident and the alleged claim for unlawful arrest and detention. Accordingly, the applicant contended that the concession made by the second and fourth respondents was totally irrational against the backdrop of the objective facts regarding the matter.

[5] According to the applicant, the second respondent was informed by way of an email dated 19 March 2018 that in terms of the SAPS’

Delegation of Authority, only the National Commissioner of the SAPS has the power to authorize a settlement on such a high quantum.

Accordingly, it stands to reason that only the National Commissioner of the SAPS has the power to concede merits in this matter. A follow-up email dated 23 March 2018 was also sent to the second respondent. In response to these emails, the state attorney,

Johannesburg addressed a letter dated 15 March 2018 received by Lieut. Col. Jama who deposed to the founding affidavit, to the effect that the matter was on 28 February 2018 finalized by way of a stated case as instructed by the head of office (the second respondent).

[6] On 6 June 2018 a Writ of execution was served on the applicant. Subsequently, the applicant received an opinion from senior counsel as to how to proceed with the matter as this involves other organs of state. Consequently, a formal inter-governmental dispute in respect of the unauthorized settlement of the matter by the state attorney was launched against the third respondent (the Department of Justice and Constitutional Development).

[7] The applicant is equally concerned that, clearly, the fourth respondent only received written instructions on 14 February 2018;

some two weeks prior to the trial date of 28 February 2018, as supported by the instruction letter marked “FA 22”.

However, if one has regard to the invoices billed to the state attorney by the fourth respondent, he commenced to charge for more

than 60 days in succession, from 18 December 2017, for his perusal and opinion at a rate of R2500 per hour under circumstances where he clearly did not consult with the members of the SAPS who were in attendance at court when the matter was settled.

[8] Initially the first respondent’s attorneys gave an undertaking not to proceed with the execution of judgment process for 30 days as at 6 June 2018. However, on 3 July 2018 the applicants’ attorneys addressed a letter to the first respondent’s

attorneys requesting a further undertaking in that regard pending the outcome of the rescission application as per annexure “FA 24”. The applicants’ attorneys warned the first respondent’s attorneys that in the absence of a written undertaking not to proceed with the execution process they will have no other option but to bring an urgent application for the stay of the writ pending the finalization of the rescission application.

[9] The first respondent’s attorneys failed to respond to the request and accordingly did not give the required undertaking. The notice of motion regarding this urgent application was issued on 10 July 2018. Service was effected on the first respondent’s

lawyers Mafate Inc. Attorneys by way of an email. Service was effected on the second respondent per email as well (Klekabe@justice.gov.za). Similarly, service on the third respondent was by way of email; however the third respondent filed notice to abide. Service on the fourth respondent was also by way of email at kajeehassan@yahoo.com. The second and fourth respondents did not file any answering affidavits. At the hearing of this matter, the second respondent was however in attendance.

[9] In opposing this application the first respondent avers the applicant has delayed in launching these proceedings. The first respondent contended that the applicant has failed to make out a case for dispensing with the time periods and forms as well as service set out in the Uniform Rules of Court including the practice manual. The first respondent further contended that it was unreasonable for the applicant to afford itself a period in excess of seven days to prepare this application and only then afford the first respondent a period of three days within which to respond given the fact that the applicant, on its own version, was aware since 28 February 2018 of its liability under the court order.

[10] The first respondent sought indulgence, which was granted, for filing their answering papers late. According to the first respondent,

requests were made on 9 May 2018 and on 30 May 2018 for payment of the quantum court order. It is the first respondent’s case that, urgency if any, is self-created. However, in the event that the matter is considered urgent by this court the first respondent seeks condonation for the late filing of the answering affidavit which I granted.

[11] I am obliged to consider the circumstances of this matter. The delay in launching the urgent proceedings, it would seem to me, was because the applicant was attempting to collect more relevant facts with regard hereto. The crucial aspect is that if the matter were to follow the ordinary course in accordance with the rules, the applicant is unlikely to be afforded substantial redress in due course as the Writ would have been executed. In the circumstances I am satisfied that the matter is urgent to have been enrolled and heard as an urgent application.

[12] With regard to the relief sought in Part A of the notice of motion, the first respondent contended that this application must be seen by the court for what it is – an attempt to buy time which in this case, constitutes an abuse of court process. Execution is the process of the court and the court has an inherent jurisdiction to control its own process subject to the Rules of Court (see Graham v Graham 1950 (1) SA 655 (T) and Strime v Strime 1983 (4) SA 850 (C) at 852A). Rule 40A of the Uniform Rules provides that:

“The court may suspend the execution of any order for such period as it may deem fit”.

However, the inherent discretion to suspend the execution of an order must be exercised judiciously (Whitfield v Van Aarde 1993 (1) SA 332 (E) at 337F). In this case I am inclined to disagree with the contentions made on behalf of the first respondent.

[13] It has been held that, in certain circumstances, the court could, in the determination of the factors to be taken into account in the exercise of its discretion under this Rule borrow from the requirements for the granting of an interlocutory interdict. The requirements being that the applicant must show (a) that the right which is the subject of the main action in which he or she seeks to protect by reason of the interim relief is clear or, if not clear, is prima facie established that are open to some doubt; (b) that if the right is only prima facie established, there is a well-grounded apprehension of is irreparable harm to the applicant if the interim relief is not granted and he or she ultimately succeeds in establishing his right; (c) that the balance of convenience favours the granting of interim relief ; and (d) that the applicant has no other satisfactory remedy (see also Gois t/a Shakespeare’s Pub v Van Zyl 2011 (1) SA 148 (LC) at 155H-156B as well as Firm Mortgage Solutions (Pty) Ltd v ABSA Bank LTD 2014 (1) SA 168 (WCC) at 170F-G).

[14] The allegations made by the applicant in support of its application, are not only serious, but are made against officers of the court. The underlying causa of the judgment debt is vehemently contested by the applicant. The silence of the second and fourth respondents in the face of these damning allegations to my mind is telling. Importantly, this involves allegations of apparent collusion or fraudulent conduct involving millions of public monies. I purposefully refrain from commenting on the merits or otherwise of the pending rescission application since am not seized with the matter. However, in my prima facie view, the applicant has prospects of success.

[15] The urgent application to stay the writ of execution was triggered by the failure by the first respondent to give an undertaking to not execute the order. The undertaking was sort urgently failing which the applicant cautioned that he will have no further option but to bring this urgent application and as indicated above, on 3 July 2018. The application to stay the Writ of execution under these circumstances is completely justified. The balance of convenience favours the applicant. The first respondent was ill advised to oppose this application under these circumstances. It follows that costs must follow the result.

[16] In the result I make the following order:

ORDER:

Pending the final determination of the application in Part B of the notice of motion dated 9 July 2018 the writ of execution issued against the applicant on 1 June 2018 is stayed pending the outcome of the rescission application(s).

The first respondent is to pay the costs of this application.

________________________________________

T P MUDAU

JUDGE OF THE HIGH COURT

APPEARENCES:

Applicant’s Counsel: Adv. Van Rhyn Fouché

Instructed by: Gildenhuys Malatji Inc.

Respondents’ Counsel: Adv. M. Patel and

Adv. F.F.Docrat

Instructed by: Mafate Inc. Attorneys

Date heard: 24 July 2018

Date delivered: 15 August 2018

[PD1]I believe his name is ‘Kgosi’.