Minister of Police v Lulwane

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Notyesi AJ
• Judgment Date: 09 May 2023
• Citation: 2023 JDR 1492 (ECM)
• Hearing Date: 25 April 2023
• Docket Number: 429/2020
• Court: Eastern Cape Division

Notyesi AJ:

Introduction:

[1]

Approximately twenty months ago, calculating from 17 September 2021, Justice Khampepe, writing a majority judgment on behalf of Justices of the Constitutional Court, remarked—

'Like all things in life, like the best times and the worst of times, litigation must, at some point, come to an end . . . .' [1]

2023 JDR 1492 p2

Notyesi AJ

[2]

In these proceedings, the Minister of Police is asking this Court to rescind an order and judgment which was granted in favour of Mr Mnyamezeli Lulwana, on 27 January 2022, awarding him damages in the amount of R450 000. That was a sequel to his arrest and detention which had spanned from 8 to 19 February 2019. The Minister is relying upon the provisions of Uniform rule 42 [2] and alternatively, the common law. The Minister is contending that the order of 27 January 2022 was erroneously sought and erroneously granted in favour of Mr Lulwana. In the alternative, the Minister contends that the rescission application should succeed under common law for the reason that there is a good cause to do so.

[3]

Mr Lulwana submitted otherwise. In his counter submissions, Mr Lulwana contended that the order of 27 January 2022, was properly granted and that it was not erroneously sought and erroneously granted. He further contended that there is no good cause shown for the rescission of the order and that the application for rescission is launched solely to delay the execution of the judgment.

The parties:

[4]

For the sake of convenience, the parties shall be referred to as simply the 'Minister' and 'Mr Lulwana'. The Minister is the defendant in the main action and Mr Lulwana is the plaintiff.

Issues:

[5]

The questions to be decided are whether—

(a)

the Minister has made out a case under Uniform rule 42(1); or

(b)

the common law; and

(c)

the costs of the application.

2023 JDR 1492 p3

Notyesi AJ

Background:

[6]

The litigation history between the parties is troubling. On 8 February 2019, Mr Lulwana was arrested and detained by the members of the South African Police Service. He was arrested on allegations that he had committed an offence of kidnapping. He was detained at Ngqeleni Police Station. He remained in custody until released on bail on 19 February 2019. The charges were subsequently withdrawn against Mr Lulwana on 25 September 2020.

[7]

On 5 February 2020, Mr Lulwana caused summons to be issued against the Minister for unlawful arrest and detention. The summons was served upon the Minister on 28 July 2020. An appearance to defend was entered on behalf of the Minister by the State Attorney on 5 August 2020. No plea was filed thereafter, prompting Mr Lulwana's legal representatives to file a notice of bar. There was no response to the notice of bar. An application for default judgment was brought against the Minister. On 6 October 2020, the parties agreed to uplift the bar and extend the time period within which the Minister must file the plea. The agreement was made an order of court. A plea was filed.

[8]

Following the filing of the plea, pleadings were closed. There was no replication. Mr Lulwana's attorneys issued discovery notices under Uniform rule 35. The notices were served upon the State Attorney who acted on behalf of the Minister. There was non-compliance with the discovery notices. An application to compel was launched on behalf of Mr Lulwana. On 9 February 2021, an order to compel discovery under rule 35 was granted against the Minister.

[9]

The Minister failed to comply with the order of 9 February 2021. Mr Lulwana's legal representatives launched an application to strike the defence of the Minister. On 11 May 2021, an order was granted striking out the defence of the Minister. On 18 November 2021, the legal representatives of Mr Lulwana, applied for the allocation of a date for hearing of default judgment and the matter was allocated for hearing on 26 January 2022. The notice of application for allocation of a date of the default judgment was served upon the office of the State Attorney.

2023 JDR 1492 p4

Notyesi AJ

[10]

The notice of set down for the hearing of the default judgment was also served upon the offices of the State Attorney on 18 November 2021. The notices bear the receiving stamp of the State Attorney. The matter was rolled over on 26 January 2022 for hearing on 27 January 2022.

[11]

On 27 January 2022, Mr Lulwana attended court and a default judgment was applied for both merits and quantum. The evidence of Mr Lulwana was led at the hearing of the default judgment and whereafter submissions were made to court. After hearing evidence, the Presiding Judge granted an order in the following terms—

(a)

The defendant is liable for damages suffered by the plaintiff resulting from his unlawful arrest and detention from 08 – 19 February 2019 at Ngqeleni Police Station.

(b)

The defendant shall pay to the plaintiff, within thirty (30) days from the date of this judgment an amount of R450 000-00 (four hundred and fifty thousand) for damages suffered by the plaintiff resulting from his unlawful arrest from 08-19 February 2019.

(c)

These damages award shall attract interest at the prescribed legal rate calculated from the date of this judgment to date of payment.

(d)

The defendant shall pay the costs of this default judgment.

[12]

Demands for payment of the judgment debt yielded naught and that prompted Mr Lulwana's legal representatives to obtain a writ of execution. On 18 October 2022, the writ was served upon the State Attorney.

[13]

On being alerted about the writ, the State Attorney prepared the present rescission application of the judgment. The papers, according to the notice of motion, were prepared by the State Attorney on 18 October 2022 and served upon Mr Lulwana's attorneys on 20 October 2022.

[14]

In response, Mr Lulwana's attorneys served and filed their notice to oppose on 27 October 2022. Mr Lulwana's answering affidavit was served and filed on 18 November 2022.

2023 JDR 1492 p5

Notyesi AJ

[15]

Realising that the Minister was not filing a replying affidavit, on 23 January 2023, Mr Lulwana's attorneys applied for the date of hearing of the rescission application. On 8 March 2023, the matter was allocated a date for hearing on 26 April 2023.

[16]

On 9 March 2023, the Minister's legal representatives served and filed their replying affidavit. There was no condonation application. Again, on 25 April 2023, the Minister's legal representatives filed the Minister's heads of argument and practice directives. The heads of argument were accompanied by an application for condonation.

The Minister's contentions

[17]

In the founding papers and oral submissions, the Minister contended that the application is brought in terms of Uniform rule 42(1)(a) and (b) and in the alternative, the application is founded on common law. According to the Minister, the order of 27 January 2022 was erroneously sought and erroneously granted on the basis that there was no evidence placed before the Presiding Judge when she issued the order. This is set out in the founding affidavit as follows:

'The pleadings of the respondent have no evidence and/or expert reports in relation to the quantum and it would be in the interest of fairness and justice for a balance account or presentation by both parties in relation to quantum to be presented which will no doubt be of assistance to the court.' [3]

[18]

The Minister has no qualms with the order of 11 May 2021. The Minister accepts that the defence was properly struck out. The Minister does concede that he has no defence on the merits and that the arrest and detention of Mr Lulwana was unlawful. The Minister is challenging the order of 27 January 2022. In this regard, it is contended in the founding papers and oral submissions, that the order was erroneously sought and erroneously granted. The submission is predicated on the grounds that the Presiding Judge failed to consider the lack of evidence to substantiate the claim of damages. In other words, the Minister contended that there was no evidence placed before the Presiding Judge and therefore, the order should be rescinded.

2023 JDR 1492 p6

Notyesi AJ

[19]

In advancing the alternative relief under common law, the Minister submitted that there is an explanation for the inaction of the Minister until the date of the grant of the judgment on 27 January 2022.

[20]

According to the Minister's attorneys, the docket relevant to the arrest of Mr Lulwana was missing. It was only found on 28 March 2021. The deponent to the founding affidavit of the Minister, Ms Zandile Ndukwana, perused the docket and could not find the details of Mr Lulwana. She returned the docket to the police for further information. Subsequent thereafter, she could not attend the matter due to the extreme workload and excessive claims handled by the office of the State Attorney. She then took leave and only returned to work in January 2022.

[21]...