Ngcatu Kunsani v Minister of Police and Others

On 22 July 2022, the plaintiff instituted an action against the defendants seeking damages for alleged assault by SAPS members. The plaintiff claimed that on an unspecified date, SAPS members visited his home, accused him of possessing unlicensed firearms and dagga, and subsequently assaulted him. The defendants filed a plea on 28 September 2022 denying the allegations. Pleadings were closed on 23 August 2023. The plaintiff served a Rule 35(1) notice requesting discovery of documents within 20 days. Although the defendants complied on 4 September 2023, the plaintiff believed that other relevant documents, specifically an inquest docket, were withheld. Despite reminders and a further notice on 18 October 2023 (with the 10-day period for discovery elapsing on 1 November 2023), the defendants failed to disclose the inquest docket. The plaintiff then launched this interlocutory application to compel discovery of the inquest docket.

• Whether the defendants are obliged to discover documents in the possession of IPID under Rule 35(3) of the Uniform Rules of Court
• Whether IPID should have been joined as a party to the proceedings or whether its non-joinder constitutes a defect
• Whether the defendants have been misjoined in the discovery application
• Whether the plaintiff has established a cause of action for the discovery application
• The interpretation of 'in control of' for purposes of Rule 35(3) discovery obligations

The court dismissed the defendants' points of law and ordered: (1) The defendants to serve their reply to the plaintiff's Rule 35(3) notice dated 2 October 2023 within 10 days from the date of delivery of the order; (2) The defendants to pay the costs of the application, jointly and severally, on Scale B as contemplated under Rule 67A read with Rule 69 of the Uniform Rules of Court.

The binding principles established are: (1) Under Rule 35(3), 'in control of' means the party has possession of the documents, access to obtain them, or the power to produce or obtain them; (2) Parties cannot avoid discovery obligations by claiming documents are held by third parties if they have control or access to those documents; (3) IPID's independent investigative role regarding police conduct does not create an employer-employee relationship with SAPS members or confer control over them - SAPS members remain employees under the Minister of Police's control; (4) The Minister of Police is vicariously liable for unlawful acts committed by SAPS members in the course and scope of their duties, making the Minister the proper defendant in such matters; (5) IPID does not have a direct and substantial interest in civil proceedings arising from alleged SAPS misconduct and need not be joined as a party; (6) The assessment of relevance of documents to be discovered lies with the requesting party, not the party resisting discovery; (7) Courts favour granting access to documents necessary for a litigant to fully present their case, in accordance with the constitutional right to a fair trial.

The court made non-binding observations that: (1) The defendants' shift from initial compliance to claiming lack of control over further discovery documents raised suspicions about the sincerity of their argument and suggested potential technical manoeuvring, which courts ordinarily discourage; (2) Joining IPID as a party to civil litigation arising from its investigations could create a potential conflict of interest where IPID's independence might be compromised by being both investigator and litigation party; (3) The roles played by SAPS and IPID must not be conflated - IPID plays an investigative role in addressing crimes committed by SAPS members, while SAPS, under the Minister's oversight, is mandated to combat crime generally. The court also referenced the principle of subsidiarity raised by the defendants but did not make definitive findings on its application in this context.

This case clarifies important principles regarding discovery obligations under Rule 35(3) of the Uniform Rules of Court, particularly the meaning of documents 'in control of' a party. It establishes that parties cannot avoid discovery by claiming documents are held by third parties if they have the power to obtain or produce them. The judgment also clarifies the distinct roles of IPID and SAPS in the constitutional framework, confirming that IPID's independence in investigating police misconduct does not affect the Minister of Police's vicarious liability for SAPS members' actions or relieve the defendants of their discovery obligations. The case reinforces the principle that the right to a fair trial includes adequate access to relevant documents for case preparation, and that courts will not permit technical manoeuvring to defeat legitimate discovery requests.