- The Minister of Police must pay wasted legal costs because a scheduled quantum trial could not go ahead.
- The State Attorney ignored three emails from State counsel before finally letting Godisoane Goodboy Serima’s legal team know more than five weeks later.
- Although the delay drew criticism, the High Court ruled that it did not justify imposing a punitive costs order.
The Minister of Police has been ordered to pay wasted legal costs after the State’s lawyer was unavailable to conduct Godisoane Goodboy Serima’s quantum trial and the State Attorney waited more than five weeks before notifying Serima’s legal team.
Acting Judge M Wessels handed down the ruling in the High Court in Mahikeng in Serima v Minister of Police, where the only issue before the court was who should bear the costs of postponing the trial.
The quantum hearing had been scheduled for 5 May 2026 after Deputy Judge President DJ Djaje ordered on 25 August 2022 that the issues of merits and quantum be separated. In that order, the Minister of Police was found liable for all of Serima’s agreed or proven damages arising from his unlawful assault, arrest, and detention.
State attorney ignored three emails
The Registrar allocated the trial date on 27 November 2025. Serima then served his notice of set down on 7 January 2026. On 13 March 2026, counsel for the Minister, identified in the judgment only as Mrs Williams, emailed the State Attorney to say she would not be available on the trial date and asked that the matter be removed from the roll. She sent reminder emails on 16 March and again on 15 April.
The judgment notes that the State Attorney did nothing in response to any of these three emails. Only on 23 April 2026, more than five weeks after the first email, did the State Attorney notify Serima’s attorneys by forwarding counsel’s email, incorrectly describing it as correspondence from their client.
Serima’s attorneys replied on 28 April that they were ready to proceed with the trial. On 30 April, the State Attorney asked for a postponement because counsel was unavailable and suggested that the issue of costs be put aside for now. Serima agreed to a postponement only if the Minister paid the wasted costs on the party-and-party scale. The State Attorney did not respond to that proposal.
Court rejects minister’s arguments
When the matter came before Acting Judge Wessels on 5 May 2026, both parties agreed the trial could not proceed, and the court granted a postponement by agreement. The only dispute was who should pay the wasted costs.
Counsel for Serima, identified in the judgment only as Mr Maree, argued that the postponement happened entirely because the defendant failed to ensure counsel would be available and because the State Attorney took so long to communicate the problem.
He pointed out that Serima had completed all necessary trial preparations, including filing the trial bundle, serving expert notices, and filing a Rule 38(2) application on 23 April 2026.
The judgment notes that the Minister did not file any opposing papers to the Rule 38(2) application. Mrs Williams argued that Serima shared some responsibility since the Rule 38(2) application was only filed five court days before the hearing and no pre-trial conference had been held.
Acting Judge Wessels rejected both arguments. The judge found that the defendant had never asked for a postponement because of the Rule 38(2) application and that the real reason for the postponement was counsel’s unavailability.
The court also held that Rule 37(8) does not put the responsibility to arrange a pre-trial conference only on the plaintiff and said that, in any event, such a conference would not have solved the problem of counsel’s unavailability.
The postponement was necessary because the defendant’s counsel would not be available on the allocated trial date, Acting Judge Wessels said.
The judge added that the plaintiff did not contribute materially to the postponement and that the defendant bears sole responsibility.
Delay criticised, but punitive costs refused
Acting Judge Wessels said the State Attorney’s conduct gives cause for concern. The judge pointed to the five-week delay before telling Serima that counsel was unavailable, the incorrect description of the internal email, and the failure to address Serima’s proposal on costs.
The judge also noted that the Minister only offered to pay party-and-party costs when the matter was argued in court. Serima asked for an attorney-and-client costs order, saying the conduct deserved a punitive costs order. The court declined.
Acting Judge Wessels found that while the State Attorney’s conduct was dilatory and unreasonable, it did not involve dishonesty, malice, or a deliberate attempt to prejudice Serima. It was passive and poorly communicated, rather than improper, the judge said.
The court ruled that the conduct did not reach the threshold for a punitive costs order and that party-and-party costs were appropriate.
Order
The High Court postponed the quantum trial to a date still to be set. The Minister of Police was ordered to pay Serima’s wasted costs caused by the postponement on the party-and-party scale.
This includes counsel’s Scale B fees for attending court on 5 May 2026 and all reasonable preparation related to that trial date. The Rule 38(2) application was postponed to be decided on the new trial date.
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