Kunene and Others v Minister of Police

On 7 August 2013, Ayanda Irvin Kunene (first appellant) was shot by members of the South African Police Service (SAPS) in Soweto, leaving him paraplegic. He issued summons against the Minister of Police claiming R39 million in damages. The matter was allocated to Mr Mphephu at the State Attorney's office, headed by Mr Lekabe (second appellant). On 6 February 2017, when the matter came to trial, Mr Lekabe appeared for the Minister and unexpectedly conceded the merits of the case, instructing Mr Kajee (third appellant), an advocate, to represent the Minister. A consent order was granted directing the Minister to compensate Mr Kunene for proved damages. On 28 February 2018, at the quantum trial, Mr Kajee and the State Attorney tendered payment of R34,077,000 without obtaining authority from SAPS or the Minister. This included R3.5 million for an additional claim of unlawful arrest and detention that was improperly added after the merits were settled. An order to this effect was granted on 2 March 2018. SAPS and the Minister were not informed of these proceedings or given opportunity to provide instructions. The Minister then sought rescission of both orders on grounds that the State Attorney had no authority to conclude the settlement agreements and that the conduct was tainted by fraud and irregularities.

• Whether the rescission order granted by the high court was appealable
• Whether the State Attorney had ostensible authority to bind the Minister in settlement agreements concluded without authorization
• Whether the principle of legality limited the ostensible authority of the State Attorney
• Whether the settlement agreements and consequent court orders should be rescinded on grounds of fraud, irrationality, and illegality
• Whether personal costs orders against the second and third appellants were justified

The appeal was dismissed with costs against the second and third appellants on an attorney and client scale, including costs of two counsel where employed. The rescission of both court orders (dated 6 February 2017 and 2 March 2018) was upheld. The high court's order that the matter be allocated an expedited trial date was implicitly affirmed.

The binding legal principles established are: (1) The ostensible authority of the State Attorney to bind the State in settlement agreements is subject to the constitutional principles of legality and the rule of law; (2) Where a State Attorney acts irrationally, fraudulently, and contrary to express instructions in a manner that subverts the administration of justice, the State cannot be bound by such conduct, notwithstanding ostensible authority; (3) The State Attorney's office is an organ of state as defined in section 239 of the Constitution, exercising public power and performing public functions under the State Attorney Act, and is therefore bound by the principle of legality; (4) The principle of legality requires that public power be exercised rationally, with a rational relationship between the exercise of the power and the purpose for which it was given; (5) Settlement agreements that include claims not pleaded and not forming part of the lis between the parties are impermissible and taint the entire agreement; (6) Courts will not grant their imprimatur to orders obtained through fraudulent conduct that subverts constitutional principles; (7) Rescission orders are appealable where they have final effect, such as where firm findings of fraud are made and personal costs orders are granted.

The Court made several non-binding observations: (1) The approach to determining whether an order is appealable has become increasingly flexible and pragmatic, directed more to what is appropriate in the particular circumstances rather than technical classification; (2) The quality of Mr Kajee's legal work was poor, with evidence of cut-and-paste plagiarism and inflated charges; (3) There were suspicious irregularities in Mr Kajee's appointment and invoicing, including invoices submitted before his official appointment and a pattern of inflated charges; (4) While the high court found no evidence connecting Mr Kunene's legal representatives to the fraudulent conduct, they must have known that the bizarre post-settlement amendment adding a new cause of action was impermissible in law; (5) Mr Lekabe's dishonourable attempt to shift blame to Mr Mphephu was rejected as contradicted by text message evidence and other facts; (6) The Court noted that in Kruizenga, the question whether the broad mandate of the State Attorney may be limited was left open, and this case now addresses that question.

This judgment is significant for several reasons: (1) It clarifies that the ostensible authority of the State Attorney is not unlimited and must be exercised within the bounds of legality and rationality; (2) It affirms that the State Attorney's office is an organ of state bound by the constitutional principle of legality and the rule of law; (3) It establishes that public servants acting fraudulently and irrationally cannot bind the State, even where ostensible authority might otherwise apply; (4) It demonstrates that courts will not give their imprimatur to orders obtained through fraudulent conduct that subverts the administration of justice; (5) It reinforces that the principle of legality requires a rational relationship between the exercise of public power and the purpose for which it was given; (6) It provides guidance on when rescission orders are appealable despite being interlocutory in nature; (7) It confirms that personal costs orders against legal practitioners are justified where their conduct is egregiously inappropriate, dishonest, or amounts to an abuse of process. The judgment strengthens the constitutional control over the exercise of public power and protects the State from being bound by unauthorized, irrational, and fraudulent conduct by its officials.