Kunene and Others v Minister of Police

Mr Ayanda Irvin Kunene was shot by members of the South African Police Service (SAPS) on 7 August 2013, rendering him paraplegic. He instituted a delictual damages claim of approximately R39 million against the Minister of Police. The matter was handled by the State Attorney’s Johannesburg office. Without proper consultation or authority from SAPS or the Minister, senior officials in the State Attorney’s office conceded liability on the merits in February 2017 and later, in March 2018, conceded quantum in the amount of R34 077 000, including damages for unlawful arrest and detention that had not formed part of the original merits order. Both settlements were made orders of the Gauteng Division of the High Court. The Minister later sought rescission of both orders, alleging that the State Attorney and counsel acted without authority, irrationally, and in a manner tainted by fraud and illegality. The High Court rescinded both orders. The appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed. The rescission of both High Court orders of 6 February 2017 and 2 March 2018 was upheld. Costs were awarded against the second and third appellants on an attorney-and-client scale, including the costs of two counsel where employed.

This case clarifies that while the State Attorney generally enjoys ostensible authority to bind the State in litigation, such authority is limited by the principle of legality and the rule of law. It confirms that courts will not uphold settlement agreements or court orders that are tainted by illegality, fraud, or conduct that subverts the administration of justice, even where innocent litigants may be prejudiced. The judgment strengthens judicial oversight over State litigation and reinforces accountability within the office of the State Attorney.