THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 260/2020
In the matter between:

AYANDA IRVIN KUNENE                                                    FIRST APPELLANT
KGOSI GUSTAV LEKABE                                                 SECOND APPELLANT
HASSAN EBRAHIM KAJEE                                                  THIRD APPELLANT

and

THE MINISTER OF POLICE                                                                   RESPONDENT

Neutral citation:
Kunene and Others v Minister of Police (260/2020) [2021]
ZASCA 76 (10 June 2021)
Coram:
DAMBUZA, MOCUMIE and SCHIPPERS JJA and EKSTEEN and
MABINDLA-BOQWANA AJJA
Heard:
18 March 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be at 10h00 on 10 June 2021.
Summary:
Civil procedure – rescission of compromise agreements made
orders of court – State Attorney’s ostensible authority – State Attorney conceding
merits and tendering quantum against the Minister of Police – grounds for
rescission of compromise agreements under common law are only fraud, justus
error or any other just cause – compromise agreements must also be grounded

on the principles of legality and the rule of law which outweigh ostensible
authority - where the conduct of the State Attorney results in the subversion of
the administration of justice – court orders embodying underlying compromise
agreements rescinded.

______________________________________________________________
ORDER
______________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Keightley
J, sitting as court of first instance): judgment reported sub nom Minister of Police
v Kunene and Others [2020] 1 All SA 451 (GJ)
The appeal is dismissed with costs against the second and third appellants; on
an attorney and client scale, which include the costs of two counsel where so
employed.

______________________________________________________________
JUDGMENT
_______________________________________________________________
Mocumie
JA
(Dambuza
and
Schippers
JJA
and
Eksteen
and
Mabindla- Boqwana AJJA concurring)

[1] This case concerns the rescission of two court orders granted consequent
to settlement agreements concluded by the State Attorney on behalf of the
respondent, the Minister of Police (the Minister), and the first appellant’s legal
representatives. In terms of the first order, granted on 6 February 2017 by the
Gauteng Division of the High Court, Johannesburg per Tsoka ADJP, the Minister
was directed to compensate the first appellant, Mr Ayanda Irvin Kunene
(Mr Kunene), for all the proved and/or agreed damages arising from an unlawful
assault on him by members of the South African Police Service (SAPS) on
7 August 2013. The second order, granted by the same court (Matojane J) on
2 March 2018, directed the Minister to pay R34 077 000 as damages suffered by
Mr Kunene as a result of the unlawful arrest, detention and assault on him by the
police.

[2] The Minister then approached the high court in July 2019 seeking an order
to rescind both court orders on the basis that the State Attorney had no authority
to conclude the underlying settlement agreements. The matter came before

Keightley J. This appeal is against her judgment, in terms of which she rescinded
the two court orders. The appeal is with the leave of the high court.

[3] The facts which form the background to the dispute are largely
common cause. On 7 August 2013 Mr Kunene was shot by members of SAPS
near Pick and Pay, along Mabalane Street, Senaoane in Soweto. As a result of
the incident, he sustained serious injuries which rendered him a paraplegic. In
September 2015, he issued summons against the Minister, claiming damages in
the amount of R39 million. The summons was served on the State Attorney’s
office, Johannesburg. At that time, Mr Kgosi Gustav Lekabe, (Mr Lekabe) the
second appellant, was the Head of that office. He allocated the matter to Mr
Dovhani Mphephu, (Mr Mphephu) one of the attorneys employed in that office.

[4] In a letter dated 13 October 2015, Mr Mphephu informed SAPS’
Legal Division about the action. On 20 October 2015, Colonel Charlene
Blackman Britz (Colonel Britz) of SAPS, responded as follows:
‘1.4 The South African Police Service accepts full liability for legal costs in this matter.
However, should the defence entail the necessity to appoint a correspondent or to brief
counsel, please liaise with this office about the nature and tariff of fees of the
correspondent/counsel prior to appointing them in order to obtain the written requisite
authorization from this Department in terms of Treasury Regulation 12.2.11
1.5 In the interim, proof of quantum, if outstanding, must be obtained from the Plaintiff
and forwarded to this office for a decision regarding the fairness and reasonableness of
the claim.’
Colonel Britz then requested that SAPS be kept informed, well in advance, of the
developments in the matter, including, the dates of consultation and trial dates,
and that they be provided with copies of all the pleadings. That, however, never
happened. Instead, the Minister’s plea (which included a special plea) was
drafted and filed by the State Attorney, without consultation with any member of
the SAPS.

1 This is premised on the ‘Treasury Regulations, GN R225, GG 27388, 15 March 2005’ issued in
terms of s 76 of the Public Finance Management Act 1 of 1999. (Own footnote added.)

[5] During the days preceding the trial date, Mr Mphephu suggested to
Mr Kunene’s attorneys that the case was not ready for trial and that it should be
postponed; a suggestion that was firmly rejected by the latter. On the morning of
6 February 2017, the matter served before Tsoka ADJP for trial. Mr Lekabe
appeared on behalf of the Minister. Mr Kunene’s attorneys moved two
interlocutory applications, which were opposed by Mr Lekabe. In the first
application Mr Kunene sought an order for separation of the merits from the
quantum, in terms of Uniform Court Rule 33(4). The second application was for
condonation of Mr Kunene’s non-compliance with s 3 of the Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002. Both applications
were granted.

[6] The aspect of the amount of damages to be awarded was reserved for a
trial date, which was to be agreed upon between the parties. While the matter
stood down for allocation to a trial judge (on 6 February 2017), Mr Lekabe did a
volte face. He approached Mr Kunene’s legal representatives and conceded the
merits of the case.

[7] When the matter resumed in the afternoon, after 14h00, Mr Kunene’s
attorney approached Tsoka ADJP, together with an advocate, the third appellant,
Mr Hassim Ebrahim Kajee (Mr Kajee), who had in the interim been instructed by
Mr Lekabe to appear for the Minister, and advised that the parties had reached
agreement on the merits. Tsoka ADJP directed Mr Kajee to record his name on
the written agreement, in the place of Mr Lekabe. Thereafter, an order was
granted by consent in accordance with the settlement agreement.

[8] In terms of that order, as I have said, the Minister undertook to
compensate Mr Kunene for his proved (or agreed) damages arising from the
assault perpetrated upon him on 7 August 2013, by members of SAPS’.2 The
matter was thereafter adjourned and set down for trial on 28 February 2018, for
the adjudication of the quantum of damages.

2 The issue around whether Tsoka ADJP granted the order on 6 or 7 February is cleared by the
record which reflects that the proceedings before Tsoka ADJP were on 6, and not 7, February.
The date of 7 February was accepted by all as a typo.

[9] By letter dated 14 February 2018, Mr Moshabane Christopher Mafiri
(Mr Mafiri), of the State Attorney’s Office, who had evidently replaced
Mr Mphephu, briefed an advocate, Mr Mthetwa, to provide a legal opinion
(to the Minister) on the quantum of Mr Kunene’s damages. In the same letter
Mr Mafiri stated that ‘Adv Kajee will be the leader in this matter’. Mr Kajee
thereafter furnished an opinion on the quantum of damages, which was received
the day before the trial was due to commence.

[10] On 16 February 2017, Mr Mafiri wrote to SAPS Legal Division, advising
that Mr Mphephu was no longer with the office of the State Attorney. Thereafter,
on 22 February 2017, Lt Colonel Daluxolo Wycliff Jama (Lt Colonel Jama), the
Provincial Commander of SAPS Legal Division, inquired, by e-mail, from the
State Attorney’s Office as to the outcome of the court hearing of 6 February 2017.
In response, Mr Mafiri ignored the substance of the inquiry and merely advised
that he was now handling the file.

[11] At some stage, between the granting of the first court order
(6 February 2017) and the trial date for the determination of quantum
(28 February 2018), Mr Kunene sought to amend his particulars of claim by
adding a claim for damages resulting from his unlawful arrest and detention on
the same day of his assault by members of SAPS. In a pre-trial minute, dated
15 February 2018, it is recorded that the Minister conceded Mr Kunene’s claim
for damages for unlawful arrest and detention. Mr Kajee and Mr Mafiri are
recorded as having represented the Minister at that pre-trial conference.

[12] When the matter came to trial on quantum before Matojane J, on
28 February 2018, Mr Kajee again represented the Minister, on Mr Lekabe’s
instructions. Mr Mafiri was also in attendance. The parties’ legal representatives
concluded a further settlement agreement, without obtaining authority from their
client, SAPS or the Minister. Matojane J instructed the parties to prepare a stated
case.

[13] In the stated case, apart from setting out the background to Mr Kunene’s
claim, the parties recorded that ‘the Minister had conceded “that [he] was not in
a position to dispute the truth and correctness of the factual basis and findings

(opinions) expressed by the experts for whom [the Minister had] no
counterparts.”’ They recorded furthermore, that the Minister had tendered
payment of the amount of R34 077 000 as damages. Included in the settlement
amount were damages in the amount of R3 500 000 for Mr Kunene’s additional
claim of unlawful arrest and detention.

[14] Matojane J postponed the matter in order to reflect on the stated case.
Only after the adjournment did Mr Lekabe first transmit the opinion, which he had
received the previous day from Mr Kajee, to Brigadier Denise Beukes
(Brig Beukes). As it turned out, the tender made on behalf of the Minister, in
respect of the quantum of damages, had been based on that legal opinion.

[15] On 2 March 2018 Matojane J granted an order in terms of which the
Minister was directed to pay R34 million to Mr Kunene for damages which he
had suffered as a result of the shooting by the members of SAPS.

[16] On 15 March 2018, Mr Mafiri tersely wrote to Lt Colonel Jama, advising
of the proceedings of 28 February 2018 as follows:
‘We confirm that this matter was on trial on the 28th February 2018.
The matter proceeded to court and was finalized by way of a stated case as instructed
by the head of our office.
Kindly find attached herein the following:

Stated Case

Draft Order
We trust you find the above in order.’
In terms of the order, the Minister was to pay the approved amount within 30 days
thereof.

[17] On 19 March 2018, Brig Beukes requested an urgent report on the
developments in the matter. She did not receive any response. On
23 March 2018, she followed up with another email, requesting the identity of the
person who had authorised the concession to the merits of the matter. It appears
that there was no response to this request.

[18] It is against this background that the Minister approached the high court
seeking that the two orders, granted on the back of the settlements, be
rescinded. Essentially, the Minister’s case for rescission of the orders was that
Mr Lekabe and Mr Kajee never had any authority to concede Mr Kunene’s claim
and the Minister and the police were never aware of their actions. The Minister
highlighted that Mr Lekabe acted irrationally, against express instructions, not
bona fide and his conduct and that of Mr Kajee in making the concessions were
motivated by corruption.

[19] The latter allegation was founded on certain alleged irregularities in the
manner in which Mr Lekabe and Mr Kajee had conducted themselves. Mr Kajee’s
sudden appearance in court, on behalf of the Minister, on the first day of trial,
was surprising, to say the least. He explained it as ‘doing a favour’, presumably
for Mr Lekabe, who had asked him to attend court. It later turned out that he
started invoicing the office of the State Attorney in relation to this case two
months prior to his appointment. As the high court found, his irregular invoices
were paid by the State Attorney, with Mr Lekabe’s approval as the only person
in that office who held both the authority to appoint counsel and to approve
payments. Disturbingly, Mr Lekabe insisted that Mr Kajee was appointed on
15 December 2017, despite the fact that he (Mr Lekabe) had recorded in the
register of briefed counsel that he was appointed on 14 February 2018.

[20] Furthermore, the high court considered that the quality of Mr Kajee’s work
was poor. It had traces of information probably belonging to a document from
which he had cut and pasted the advice on quantum, that he had prepared for
the Minister. His invoices showed a pattern of inflated charges. He charged for
two day’s work in respect of perusing each expert report filed in the matter, at
R2 500 per hour, with each day seven hours long.

[21] In opposing the application, Mr Kunene’s main contention was that the
Minister was bound by acts performed by Mr Lekabe, in the exercise of his
ostensible authority as the State Attorney, even if it could be found that his
conduct was tainted by fraud. It was also submitted on his behalf that the Minister
had no bona fide defence to Mr Kunene’s claim.

[22] Mr Lekabe denied all the allegations of impropriety made against him. He
denied that he attended court on 6 February 2017 and that he concluded the
settlement agreement with Mr Kunene’s attorneys. He supported the
submissions by Mr Kunene’s legal representatives that his actions were
authorised in terms of s 3 of the State Attorney Act 56 of 1957 (the State Attorney
Act). He denied the allegations of an improper or corrupt relationship between
himself and Mr Kajee and protested that, on the facts, no fraud was proved.
Mr Kajee echoed the same sentiment. Mr Lekabe however, could not dispute the
gross impropriety of the concession to additional damages for unlawful arrest
and detention.

[23] The high court accepted Mr Kunene’s contentions, and that of
Mr Mphephu, that it was, in fact, Mr Lekabe who concluded the settlement
agreement on 6 February 2017 on the Minister’s behalf. The court also found
that Mr Lekabe facilitated the unauthorised tender of a payment of R34 million to
Mr Kunene. It rejected Mr Lekabe’s version that he had attempted to contact
Brig Beukes to obtain instructions on the quantum. It found that public interest
demanded that the imprimatur of the court should not be given to the orders that
were tainted by fraud. It rescinded both court orders, and, to mitigate the impact
that would result from the matter going to trial, it ordered that the matter be
allocated an expedited trial date.

[24] The central issue to be determined in this appeal is whether the high court
was correct to rescind and set aside the orders and underlying compromise
agreements granted on 6 February 2017 and 2 March 2018 respectively. But
first, there is the anterior issue raised by this Court as to whether the order is
appealable.

[25] At the hearing of the appeal it was submitted, on behalf of the Minister,
that the rescission order was not appealable. Because of the conclusion I have
reached on this issue it is unnecessary to consider the matter at length. I may
just state that, with the recent developments in our law, an inquiry into the
question whether an order of court is final in effect, and whether it disposes of a
substantial portion of the relief sought, no longer depends on mere technical

classification thereof. Recently, in National Director of Public Prosecutions v
King3 this Court pronounced on the issue as follows:
‘[W]hile the classification of the order might at one time have been considered to be
determinative of whether it was susceptible to an appeal the approach that has been
taken by the courts in more recent times has been increasingly flexible and pragmatic.
It has been directed more to doing what is appropriate in the particular circumstances
than to elevating the distinction between orders that are appealable and those that are
not to one of principle.’ (Emphasis added.)

[26] In this case, although the effect of the order of the high court is that
Mr Kunene still has a full opportunity to present his case at a trial, the matter is
appealable because firm findings of fraud were made against the second and
third appellants, as the basis for the rescission, and personal costs orders were
made against them. So, while orders for rescission of judgment would ordinarily
not be appealable, the effect in this case is final. I am therefore in agreement
with the submission that the interests of justice permit that an appeal be allowed.
The rescission order granted by the high court is therefore appealable.4

[27] As to the merits of the appeal, it is trite that a judgment or order may be
set aside at common law on any of the traditional grounds on which
restitutio in integrum would be granted, such as fraud, justus error or some other
just cause (iusta causa). The question is therefore whether, in this case, any one
of these grounds exist for the Minister to resile from the compromise agreements
concluded.

3 National Director of Public Prosecutions v King [2010] ZASCA 8; 2010 (2) SACR 146 (SCA);
2010 (7) BCLR 656 (SCA); [2010] 3 All SA 304 (SCA) para 51. See also Tshwane City v Afriforum
and Another [2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279 CC para 40.
4 The test of irreparable harm must take its place alongside other important and relevant
considerations that speak to what is in the interests of justice, such as the kind and importance
of the constitutional issue raised; whether there are prospects of success; whether the decision,
although interlocutory, has a final effect; and whether irreparable harm will result if leave to
appeal is not granted. It bears repetition that what is in the interests of justice will depend on a
careful evaluation of all the relevant considerations in a particular case. See Philani-Ma-Afrika
and Others v Mailula and Others [2009] ZASCA 115; 2010 (2) SA 573 (SCA); [2010] 1 All SA
459 (SCA) and International Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) para 53.

[28] This Court stated, in Slabbert v MEC for Health and Social Development
of Gauteng Provincial Government,5 that ‘[w]hen a compromise is embodied in
an order of court the order brings finality to the lis between the parties and it
becomes res judicata’. And in Eke v Parsons,6 the Constitutional Court cautioned
that:
‘This in no way means that anything agreed to by the parties should be accepted by a
court and made an order of court. The order can only be one that is competent and
proper. A court must thus not be mechanical in its adoption of the terms of a settlement
agreement. For an order to be competent and proper, it must, in the first place “relate
directly or indirectly to an issue or lis between the parties”. Parties contracting outside
of the context of litigation may not approach a court and ask that their agreement be
made an order of court. . . .’ (Footnotes omitted.)

[29] Much reliance was placed, by the appellants, on the judgment of this Court
in MEC for Economic Affairs, Environment and Tourism, Eastern Cape v
Kruizenga and Another; 7 in which it was held that the State Attorney has
ostensible authority to bind a client at a pre-trial conference convened in terms
of rule 37 of the Uniform Rules, even where the effect of the agreement is to
settle an opposing party’s claim. Somewhat similar to this case, in Kruizenga the
dispute related to agreements which the State Attorney had concluded with the
respondents at two rule 37 pre-trial conferences, without the consent of the client.
The minutes of the first conference showed that the State Attorney had conceded
the merits of the plaintiff’s claim, with the result that all that remained for
determination by the court was the issue of the quantum of damages claimed.
An order was granted by the court accordingly. Subsequently the Minister
launched an application to rescind that court order and the underlying
admissions.

[30] Having considered the relevant principles in AJ Kerr The Law of Agency8,
together with a number of judgments of this and other courts, this Court in
Kruizenga said at para 20:

5 Slabbert v MEC for Health and Social Development of Gauteng Provincial Government
(423/2016) [2016] ZASCA 157 para 7.
6 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 25.
7 MEC for Economic Affairs, Environment and Tourism: Eastern Cape v Kruizenga and Another
[2010] ZASCA 58; 2010 (4) SA 122 (SCA); [2010] 4 All SA 23 (SCA).
8 A J Kerr The Law of Agency 3ed (1991) at 149.

‘I accept that, in this matter, by agreeing to the settlement the State Attorney not only
exceeded his actual authority, but did so against the express instructions of his principal.
As opprobrious as this conduct was, I cannot see how this has any bearing on the
respondent’s estoppel defence. The proper approach is to consider whether the conduct
of the party who is trying to resile from the agreement has led the other party to
reasonably believe that he was binding himself. Viewed in this way it matters not whether
the attorney acting for the principal exceeds his actual authority, or does so against his
client’s express instructions. The consequence for the other party, who is unaware of
any limitation of authority and has no reasonable basis to question the attorney’s
authority, is the same. That party is entitled to assume, as the respondents’ did, that the
attorney who is attending the conference clothed with “an aura of authority” has the
necessary authority to do what attorneys do at a rule 37 conference – they make
admissions, concessions and often agree on compromises and settlements. In the
respondent’s eyes the State Attorney quite clearly had apparent authority’.
(Footnotes omitted.)

[31] An extraordinary distinguishing factor in this case is the irregular addition
of a further cause of action in the form of the claim for unlawful arrest and
detention, subsequent to the settlement of the case on the merits, and in respect
of which no order of court was obtained. While the high court concluded that
there was no evidence connecting Mr Kunene’s legal representatives to the
fraudulent conduct of Mr Lekabe and Mr Kajee, there is no reasonable basis on
which it can be found that they (Mr Kunene’s legal representatives) were
unaware of the illegality of the bizarre post settlement amendment, to which the
State Attorney had agreed.

[32] Mr Kunene’s legal representatives must have known that such absurd
augmentation of the cause of action after settlement of the merits, which in the
order of 6 February 2017, was confined to damages for ‘unlawful assault’, was
impermissible in law. The order of 2 March 2018 however, included damages for
‘unlawful arrest and detention’ in the amount awarded for general damages. This
cause of action was not pleaded, did not ‘relate . . . to an issue or lis between the
parties’, 9 and thus could never have been conceded in the merits order of
6 February 2017. On this aspect the question of ostensible authority on the part

9 Eke v Parsons op cit fn 7 para 25.

of the State Attorney does not even arise. The irregularity/illegality in the
concession and the consequent compromise tainted both the orders made in
relation to the merits and the quantum of Mr Kunene’s claim. This factor alone
justified rescission of both court orders.

[33] There is no doubt that the judgment of this Court, in Kruizenga, remains
the correct exposition of the law on the ostensible authority of the State Attorney.
However, when Mr Kunene’s attorney could not have reasonably thought that
the State Attorney had the authority to make the concessions he did, the
protection afforded by ostensible authority was not available to him. This
however, was not the ground on which the high court’s rescission order was
based.

Principle of Legality
[34] Part of the Minister’s case before the high court was that Mr Lekabe and
Mr Kajee’s conduct was irrational and ‘required judicial overview with reference
to the principle of legality’. The high court agreed and was of the view that the
powers of the State Attorney were limited by the constitutional principle of the
rule of law. It will be recalled that in Kruizenga, this Court left open the question
whether the broad mandate of the State Attorney may be limited.

[35] After considering the relevant judgments of this Court and the
Constitutional Court10 on ostensible authority, the high court said:
‘Applying the above principles to the present case it is immediately apparent that absent
particular circumstances pointing to considerations of legality and the rule of law, the
Minister would be bound by the State Attorney’s concession on the merits and the tender
of R34 077 000 on the quantum . . . .’
It considered that the Minister could not be bound by the illegal acts of Mr Lekabe
and Mr Kajee (individually or jointly).

[36] The judge reasoned that Mr Lekabe and Mr Kajee had subverted the
administration of justice. They had acted contrary to the best interests of their
client, the Minister, and had denied him the opportunity to properly defend the

10 Makate v Vodacom Ltd [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) para
48 citing Lord Denning in Hely-Hutchinson v Brayhead Ltd and Another [1968] 1 QB 549 (CA).

matter or to settle it on a rational basis. Their conduct was inconsistent with the
rule of law and the principle of legality. Consequently, the Minister could not be
bound by the compromises concocted by them. This is a case where
public interest demanded that the imprimatur of the court should not be given to
the orders that were made.

[37] On appeal, counsel for the appellants submitted that the issues could be
adequately determined on precedent and it was unnecessary to invoke the
constitutional principle of legality and that there was no basis on which the
principle applied. It was disputed that the State Attorney performed
public functions or that it was an organ of state. Even if it was an organ of state,
so it was contended, Mr Lekabe was ‘not exercising a public power when he
conceded liability – he was just doing what attorneys do, whether they represent
the State or a private party’. Then it was contended that the ‘rule of law, in the
context of this case, should have meant nothing more than the application of the
Kruizenga principles relating to ostensible authority’.

[38] These contentions are however incorrect. The powers and functions of
the State Attorney are conferred by statute. Section 3(1) of the the State Attorney
Act11 provides that:
‘The functions of the offices of the State Attorney shall be the performance in any court
or in any part of the Republic of such work on behalf of the Government of the Republic
as is by law, practice or custom performed by attorneys, notaries and conveyancers.
Likewise, s 3(3) reads:
‘Unless the Minister of Justice and Constitutional Development otherwise directs, there
may also be performed at the offices of State Attorney like functions in or in connection
with any matter in which the Government or such an administration as aforesaid, though
not a party, is interested or concerned in, or in connection with any matter where, in the
opinion of a State Attorney or of any person acting under his or her authority, it is in the
public interest that such functions be performed at the said offices.’

[39] Most recently, this Court in Zuma v Democratic Alliance and Another 12
dismissed an appeal against the order of a Full Bench in terms of which it

11 Section 3 amended by s 35 of Act 93 of 1962 and substituted by s 3 of Act 13 of 2014.
12 Zuma v Democratic Alliance and Another (1028/2019) [2021] ZASCA 39 (13 April 2021).

reviewed and set aside a decision by the State Attorney to authorise payment of
personal legal costs incurred by the former President of the Republic of South
Africa in his criminal prosecution and related matters. That decision was set
aside on the basis that the State Attorney had no power to do so under s 3(1) or
s 3(3) of the State Attorney Act, and Mr Zuma was ordered to repay the funds
received.

[40] Furthermore, the employment of State Attorneys is governed by the
provisions of the Public Service Act 104 of 1994. When the impugned orders
were granted, Mr Lekabe was in the employment of the Department of Justice
and Correctional Services as Head of the State Attorney’s Office.

[41] It is thus beyond question that the State Attorney’s Office is an institution
that exercises public power or performs public functions in terms of legislation.
Those powers and functions are sourced in the State Attorney Act. The high court
was thus correct to hold that the Office of the State Attorney is an organ of state
as defined in s 239 of the Constitution,13 and that it was bound by rule of law and
the principle of legality. The Constitutional Court has said that ‘the exercise of
public power is always subject to constitutional control and to the rule of law, or
. . . more specifically, the legality requirement of our Constitution’.14

[42] In Affordable Medicines Trust and Others v Minister of Health and
Others15 the Constitutional Court held:
‘Our constitutional democracy is founded on, among other values, the “[s]upremacy of
the constitution and the rule of law . . .
. . . The exercise of public power must therefore comply with the Constitution, which is
the supreme law, and the doctrine of legality, which is part of that law. The doctrine of
legality, which is an incident of the rule of law, is one of the constitutional controls

13 Section 239 of the Constitution, in relevant part, reads:
‘organ of state means –
(a) . . .
(b) any other functionary or institution –
(i) . . .
(ii) exercising a public power or performing a public function in terms of any legislation,
. . . . ’
14 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2006 (11) BCLR
1255 (CC); 2007 (1) SA 343 (CC) para 29.
15 Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC);
2005 (6) BCLR 529 (CC) paras 48 and 49.

through which the exercise of public power is regulated by the Constitution. It entails
that both the legislature and the executive “are constrained by the principle that they
may exercise no power and perform no function beyond that conferred upon them by
law.” In this sense the Constitution entrenches the principle of legality and provides the
foundation for the control of public power.’ (Footnotes omitted.)

[43] The principle of legality thus serves to ensure that a public power or
function is exercised to achieve the purpose for which it was given in the
empowering provision or on the information before the organ of state.16 And the
principle of legality, which is an incident of the rule of law, is a mechanism to
ensure that the State, its organs and its officials do not consider themselves to
be above the law in the exercise of their functions, but remain subject to it. In the
context of the principle of legality, rationality is a ‘minimum threshold the
requirement applicable to the exercise of all public power by members of the
executive and other functionaries’,17 and requires a rational relationship between
the exercise of the power or function and the purpose for which it was given.18

[44] There can be no dispute that the two court orders granted in favour of
Mr Kunene (6 February 2018 and 2 March 2019) were founded on Mr Lekabe’s
irrational decisions. As the high court correctly held, Mr Lekabe inexplicably
refused the proposal by Mr Mphephu, on two occasions, that counsel be
appointed to deal with the matter, contrary to the express instruction of SAPS.
He was the only person in the State Attorney’s Office with the authority to appoint
an advocate. Instead of doing so, he made sure that he retained the file, with the
result that Mr Mphephu attended a pre-trial meeting without it. Then Mr Lekabe,
who had not been handling the file and had not attended the pre-trial meeting,
appeared before Tsoka ADJP and initiated the settlement of the case without
any authority to do so. Not only that, he unlawfully authorised Mr Kajee to attend
court to finalise the compromise agreement on the merits. All of this, contrary to
clear and consistent instructions by SAPS as to the Minister’s stance on the
matter.

16 C Hoexter; Administrative Law in South Africa 2ed at 357-358.
17 Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of
South Africa 2000 (2) SA 674; 2000 (3) BCLR 241 para 90.
18 C Hoexter op cit fn 19 at 358.

[45] Mr Lekabe’s denial of his involvement in the proceedings of
6 February 2017 was correctly found to be untrue by the high court. The text
messages exchanged between Mr Mphephu and one of Mr Lekabe’s deputies,
Mr Dhulam on the morning of 6 February 2017, to the effect that Mr Lekabe was
en route to court put paid to Mr Lekabe’s lies.

[46] There was also no credible challenge to the contention that Mr Mphephu
had no authority to appoint counsel and to make concessions of the kind made
in this case. In fact, Mr Kajee’s version that he was requested by Mr Lekabe to
attend court on 6 February 2017, disproves Mr Lekabe’s assertion that
Mr Mphephu tendered the concessions and concluded the settlement
agreement. The recordal of Mr Lekabe’s name on the court orders also firmly
disproved his version. The high court’s finding that it was Mr Lekabe rather than
Mr Mphephu who represented the Minister in court on that day cannot be faulted.
Mr Lekabe’s dishonourable attempt to shift the blame to Mr Mphephu for the
misrepresentations made to Mr Kunene’s attorneys and to court was correctly
rejected by the high court.

[47] The high court thus correctly concluded that Mr Lekabe did not act in
good faith and was intent on subverting the law and his client’s interests. Such
fraudulent conduct is inimical to the rule of law and cannot form a legitimate basis
for the Minister’s liability. No public servant has authority to subvert the
constitutional principles on which the very idea of public confidence is founded.

Costs
[48] Mr Lekabe and Mr Kajee were aggrieved by the personal costs order
granted on a punitive scale of attorney and client by the high court against them.
They made much of the reference by the high court to statements attributed to
them in an application brought by the Johannesburg Society of Advocates
against Mr Kajee for his disbarment. Therein, Mokgoatlheng and Modiba JJ
made uncomplimentary findings against Mr Kajee. The complaint was that the
personal costs orders granted by the high court against them in this case resulted
from its improper consideration of the remarks made by the two judges.

[49] It is trite that costs are ordinarily granted against a legal representative in
exceptional circumstances. In Stainbank v South African Apartheid Museum at
Freedom Park and Another,19 the Constitutional Court held:
‘Although the courts have the power to award costs from a legal practitioner’s own
pocket, costs will only be awarded on this basis where a practitioner has acted
inappropriately in a reasonably egregious manner. However, there does not appear to
be a set threshold where an exact standard of conduct will warrant this award of costs.
Generally, it remains within judicial discretion. Conduct seen as unreasonable, wilfully
disruptive or negligent may constitute conduct that may attract an order of costs de bonis
propriis.’ (Emphasis added.)

[50] The dishonourable conduct by the second and third appellants in this case
is described above, and justified the costs orders granted by the high court. That
the high court viewed their conduct, comprising of lies and abuse of State funds,
as egregious, is clear from its judgment. There is no demonstrable error in the
exercise of its discretion.

[51] In the result, the following order issues.
The appeal is dismissed with costs against the second and third appellants; on
an attorney and client scale, which include the costs of two counsel where so
employed.

______________________
B C MOCUMIE
JUDGE OF APPEAL

19 Stainbank v South African Apartheid Museum at Freedom Park and Another [2011] ZACC 20;
2011 (10) BCLR 1058 (CC) para 52.

Appearances

For 1st Appellant:  J F Mullins SC (with him M Patel and F F Docrat)
Instructed by:
Mafate Inc., Johannesburg
L & V Attorneys, Bloemfontein

For 2nd Appellant:  V Notshe (with him D Brown)
Instructed by:
Skosana Attorneys, Johannesburg
Phatsoane Henny Attorneys, Bloemfontein

For 3rd Appellant:  A Manilall
Instructed by:
Manilall Chunder Attorneys, Durban

Symington De Kok Attorneys, Bloemfontein

For Respondent:
D Joubert SC (with him G Van Rhyn Fouche)
Instructed by:
Geldenhuys Malatji Inc., Johannesburg
Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

4 June 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Kunene and Others v Minister of Police (260/2020) [2021] ZASCA 76 (4 June 2021)
Today the Supreme Court of Appeal (SCA) dismissed the appeal against an order of the Gauteng Division of the
High Court, Johannesburg and ordered the appellants to pay the costs on an attorney and client scale, which
includes the costs of two counsel where so employed.
This case concerns the rescission of two court orders granted consequent to settlement agreements concluded by
the State Attorney on behalf of the Minister of Police. The central issue to be determined was whether the high
court was correct to rescind and set aside the orders and underlying compromise agreements granted on 6 February
2017 and 2 March 2018 respectively.
The SCA held that the High court correctly concluded that Mr Lekabe did not act in good faith and was intent on
subverting the law and his client’s interests. Such fraudulent conduct is inimical to the rule of law and cannot form
a legitimate basis for the Minister’s liability. No public servant has the authority to subvert the constitutional
principles on which the very idea of public confidence is founded. Mr Lekabe, initiated the settlement of the case
without any authority to do so and he unlawfully authorised Mr Kajee to attend court to finalise the compromise
agreement on the merits. All of this, contrary to clear and consistent instructions by SAPS as to the Minister’s
stance on the matter.
The SCA held further that the State Attorney is an organ of state as defined in s 239 of the Constitution, and that
it was bound by rule of law and the principle of legality. The principle of legality is a mechanism that ensures that
the State, its organs and its officials do not consider themselves to be above the law in the exercise of their
functions.
The SCA found that when the impugned orders were granted, Mr Lekabe was in the employment of the
Department of Justice and Correctional Services as Head of the State Attorney’s Office. The Minister could not
be bound by the illegal acts of Mr Lekabe and Mr Kajee (individually or jointly) and the appeal was dismissed
with costs.
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