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[2016] ZAWCHC 152
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Minister of Police v Murray, Murray v Minister of Police (A81/2016) [2016] ZAWCHC 152 (2 November 2016)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No: A81/2016
Before: The Hon. Mr Justice Binns-Ward
The Hon. Mr Acting Justice Canca
Date of hearing: 28 October 2016
Date
of judgment: 2 November 2016
In
the matters between:
THE
MINISTER OF
POLICE
Appellant
in the first appeal
and
GARTH
LEONARD MURRAY
Respondent
in the first appeal
and
GARTH
LEONARD
MURRAY
Appellant
in the second appeal
and
THE
MINISTER OF
POLICE
Respondent
in the second appeal
JUDGMENT
BINNS-WARD
J (Canca AJ concurring):
[1]
There were two appeals before us in this
matter. They both come from judgments of the Murraysburg
magistrate’s court
and relate to different aspects of the same
case. By arrangement between the parties, sanctioned by the
court, both appeals
were argued at a single hearing. The
registrar has enlisted them both under the same case number.
The first appeal,
in which the Minister of Police is the appellant,
concerns the magistrate’s refusal of an application to rescind
the judgment
for damages granted by default in favour of Mr Murray
in respect of the latter’s claim against the Minister arising
out of his unlawful arrest and detention. The second appeal,
which falls to be considered only in the event of the Minister’s
aforementioned appeal failing, is by Mr Murray against the quantum of
the damages awarded to him by the magistrate. It is
convenient
for the purposes of judgment to refer to the parties as ‘the
Minister’ and ‘Murray’, respectively.
[2]
Dealing with the first appeal. The
application for rescission of the judgment in favour of Murray was
brought in terms of
rule 49 of the Rules of the Magistrates’
Courts. The approach to applications for the rescission of
default judgments
is well-established in principle. The
locus
classicus
on the subject is the
judgment in
Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(O). That judgment was given in respect of an
application under rule 43 of the Orange Free State Provincial
Division of the
Supreme Court, but the approach formulated there
holds good in respect of later iterations of the applicable rules,
including that
which applies in the current matter; viz. the
applicant (a) must give a reasonable explanation of his default (if
it appears
that the default was wilful or due to gross negligence the
court should not come to his assistance), (b) must show that the
application
is bona fide and not made with the intention of merely
delaying plaintiff's claim and (c) must show that there is a bona
fide defence
to plaintiff's claim (it is sufficient if a prima facie
defence is made out; it is not necessary to deal fully with the
merits
of the case and establish that it has good prospects of
success). See
Grant v Plumbers
at 476-7, cited with approval in many subsequent judgments including
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 764I-765F and
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at para. 11.
[3]
The currently applicable rule required the
Minister to show ‘good cause’ for the rescission of the
judgment. Schreiner
JA articulated the indefinable breadth of
that concept in
Silber v Ozen
Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352-3, observing that ‘
The
meaning of ‘good cause’ …, like that of the
practically synonymous expression ‘sufficient cause’
which was considered by this Court in Cairn's Executors v Gaarn,
1912
AD 181
, should not lightly be made the subject of further
definition. For to do so may inconveniently interfere with the
application
of the provision to cases not at present in
contemplation. There are many decisions in which the same or similar
expressions have
been applied in the granting or refusal of different
kinds of procedural relief. It is enough for present purposes
[the
appeal, like the current matter, concerned an application for
rescission of a judgment granted against the defendant in default
of
appearance at the trial of a defended action]
to
say that the defendant must at least furnish an explanation of his
default sufficiently full to enable the Court to understand
how it
really came about, and to assess his conduct and motives.
’
[4]
It has been remarked that some flexibility
is indicated in the exercise of the court’s discretion having
regard to the nature
of the case. So, in
Zealand
v Milborough
1991 (4) SA 836
(SE) at
838D, Jones J, after referring to
Grant
v Plumbers
and
Silber
supra, stated ‘
I would only add
that a measure of flexibility is required in the exercise of the
Court's discretion. An apparently good defence
may compensate for a
poor explanation (Harms Civil Procedure in the Supreme Court 313
(K6)), and vice versa
’; see also
Wright v Westelike Provinsie Kelders Bpk
2001 (4) SA 1165
(C) at para. 57. However, that should not
be misunderstood to suggest that an apparently good defence may
compensate
for a woefully inadequate explanation or an attitude of
inexcusable neglect or indifference in the conduct of its case by the
litigant
applying for rescission.
[5]
The discretion exercised by the court below
in its decision to refuse the Minister’s application for
rescission of the judgment
in favour of Murray involved discretion in
the wide sense of the concept. This court would therefore be
within its powers
to substitute its own decision in place of that of
the magistrate if we were to be convinced that a different order
should have
been made on the basis of the evidence; cf.
Knox
D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 360G-362E and
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
2015 (5) SA 245
(CC) at paras. 82-92. It was nevertheless incumbent on the
Minister to demonstrate that the magistrate’s decision was
wrong because, even when the court of first instance has exercised a
discretion in the wide sense, the appellate tribunal should
guard
against an inclination towards too ready interference.
[6]
Counsel for the Minister submitted that the
magistrate had dismissed the application for rescission simply
because there had been
no affidavit by the employee at the office of
the state attorney who had collected the registered postage item
containing the copy
of the notice of set down sent by Murray’s
attorney in respect of the trial and that the court a quo had been
remiss in not
weighing the broader picture. The judgment is
capable of being read in the manner contended for by the Minister’s
counsel.
My impression though is that the magistrate dismissed
the application because she had formed the impression that the state
had
been grossly negligent. If my perception is well-founded,
she might well have articulated her reasons for holding that opinion
more fully. Because I do not differ from the conclusion reached
by the magistrate, it is convenient to consider the merits
of the
application afresh without having to make a finding that the court
below was misdirected in the exercise of its discretion.
[7]
According to his particulars of claim,
Murray was arrested by the police at 16h05 on Monday, 23 May 2011.
That happened when
he had presented himself voluntarily at the
police station in compliance with an undertaking given to the police
by his mother
earlier that afternoon that he would do so. It
appeared from the evidence in the application for rescission that he
was detained
on a charge of assault with intent to do grievous bodily
harm arising from a complaint laid by his girlfriend. Murray
alleged
that he was unlawfully arrested without a warrant and
thereafter unlawfully detained without due cause in the cells at the
police
station for 67 hours. He claimed compensation in damages
in the sum of R100 000.
[8]
Murray gave notice of his claim to the
Minister on 1 June 2011 in compliance with the requirements of the
Institution of Legal Proceedings
against certain Organs of State Act
40 of 2002. The Minister acknowledged receipt of the claim on 9
June 2011.
[9]
The action was thereafter instituted by
service of the summons on the Minister at the office of the state
attorney on 15 January
2014. The Minister entered an
appearance to defend the action, but failed to deliver his plea
timeously. A notice of
bar in terms of Magistrates’ Court
rule 12 was served on 27 April 2014. Notwithstanding the
notice of bar, Murray
accepted service of the Minister’s plea
more than nine months later on 5 February 2015.
[10]
The
content of the plea was risible having regard to the evidence adduced
by the Minister in support of the application to rescind
the
judgment. Save for admitting the identity of the plaintiff, the
Minister pleaded that he had no knowledge of any of the
facts alleged
by Murray and put him to the proof thereof. It is evident,
however, that the Minister must indeed have been
aware that Murray
had been arrested without a warrant, and that any ignorance about the
circumstances of Murray’s arrest
and detention could only have
been for want of proper use of the statutory opportunity to
investigate the circumstances that is
the object of the imposition on
claimants against the state of the obligation to precede the
institution of proceedings with notice
given in terms of Act 40 of
2002. Notwithstanding the incidence of the onus on the
defendant in cases when an arrest is affected
without a warrant,
[1]
the Minister did not see fit to plead any positive defensive
allegations in opposition to the claim. Those were first
asserted
in support of the application to rescind the judgment, made
only in April 2016.
[11]
By notice served on 10 February 2015,
the Minister was called upon to make discovery in the action.
He did not respond
to the notice.
[12]
Murray set his claim down for trial on 15
June 2015, but the matter did not proceed on that date. The
trial was re-enrolled
for hearing on 2 November 2015. A notice
of set down for that date was emailed to the state attorney on 12
August 2015 (the
parties had agreed that service could be effected by
email) and on the same date a copy of the notice was sent to the
Minister’s
attorney by registered post. An identified
employee of the state attorney collected the registered item.
It apparently
did not make its way into the relevant file.
[13]
There was no appearance for the Minister on
2 November 2015 when the matter was called before the magistrate for
trial. After
hearing the evidence of Murray, the magistrate
gave judgment in his favour on 9 November 2015 and awarded him
R10 000 in damages.
[14]
The attorney in the employ of the state
attorney who had been dealing with matter, Mr C. Buthane,
resigned with effect
from 30 September 2015. He reportedly
declined to make an affidavit explaining whether he received the
notice of set
down, or if not, how that could have happened.
There was no evidence from the person who collected the copy sent by
registered
post as to how she dealt with the item. There was
also no evidence from the attorney at the office of the state
attorney
who took over the file from Mr Buthane.
[15]
The Minister’s counsel argued that
that the Minister had not been at fault. If anyone were to
blame for the Minister’s
failure to appear at the trial, it was
Mr Buthane; and the Minister could not in fairness be prejudiced by
Buthane’s refusal
to make an affidavit. The first that
the Minister knew about the trial date and the judgment that had been
given against
him was when the Legal Administration Officer in the
Legal Department of the South African Police Service at Cape Town was
informed,
on 31 March 2016, that Murray had given notice of his
intention to appeal against the quantum of the award.
Application had
thereafter been made promptly for the rescission of
the judgment. It was emphasised that the affidavit submitted in
support
of the application for rescission disclosed that the Minister
had a cognisable defence; viz. reliance on
s 40(1)(q)
of the
Criminal Procedure Act 51 of 1977
. The essence of the argument
sought to distance the Minister from the unexplained neglect of the
matter by his legal representative
in the office of the state
attorney. The role of the apparently delinquent attorney as the
Minister’s agent was disregarded.
[16]
The
law reports are replete with examples of courts visiting the
negligence of legal representatives on their clients.
[2]
The rationale for the approach is easy to understand. The
conduct of litigation affects all the parties to it, and
also the
judicial system in which it takes place. A litigant chooses its
representative and if it chooses badly or fails
to ensure that its
representative is effectively carrying out its mandate, the resultant
prejudice is something that
it
,
rather than the other litigants and the court system, should bear.
The courts’ approach is not a mechanical one, however;
due
regard is had to the interests of justice on the facts of the given
case in deciding whether or not to be forgiving to the
litigant for
the sins of its legal representative. It is for that reason
that in a case like the current matter the court
exercises its
discretion with regard to all aspects of the case.
[17]
The explanation offered by Minister for his
default in the current matter does not explain his conduct in
relation to Murray’s
claim in the lead-up to judgment being
taken against him. It does not explain why it took more than a
year for his plea to
be filed; why he did not comply with the notice
to make discovery; or why, when the plea was eventually delivered, it
was so vacuous
and evasive. The Minister has not explained why
the defence disclosed in his application for rescission was not
incorporated
in the plea. Did he not give his attorney proper
instructions? If not, why not? If he gave proper
instructions,
why was he content with the plea that was delivered on
his behalf? Did he not consider it and note how deficient it
was?
In the absence of an explanation full enough to address
these obviously pertinent considerations bearing on his conduct in
respect
of the litigation, the court is left with the impression that
the Minister and his legal representative treated the matter with
utter indifference. In such circumstances, it will not avail an
applicant for the rescission of a default judgment to say
‘Only
now that judgment has been given against me, would I like to be given
the chance to take the case seriously’;
cf.
Chetty
v Law Society, Transvaal
supra, at
765D-E.
[18]
These considerations, in addition to the
inadequate explanation for the state attorney’s failure to have
acted on either of
two notices of set down given by Murray’s
attorneys on which the magistrate’s reasons for judgment
focussed, justified
the decision of the court a quo to refuse to
grant the application for rescission. This court would have
made the same determination
had it been seized of the application at
first instance. The first appeal will therefore be dismissed.
[19]
Turning now to Murray’s appeal
against the magistrate’s determination of the quantum of his
damages. Making an
award in general damages entails an exercise
by the trial court of a discretion in the strict or ‘true’
sense of the
word. An appellate court may interfere only if it
is demonstrated that the trial court was materially misdirected in
the
exercise of its discretion. Such misdirection may be
inferred if there is a substantial variation or startling discrepancy
between the award made by the trial court and that which the
appellate court considers appropriate.
[20]
Murray was detained in the cells at the
Murraysburg police station for 67 hours from the time of his arrest
until he was released
on bail when he appeared in court. The
charge against him was later withdrawn when the complainant failed to
come to court
to testify. His detention spanned more than two
full days and three nights, during which time he was the only person
held
in the cell. He conceded that he was properly treated by
the police while he was in detention. Murraysburg is a small
town, and he was therefore acquainted with all the police details on
first name terms. His only complaints were that he was
given
only a single thin blanket that was inadequate to keep him warm in
the prevailing cold wet weather and that his family, who
had brought
blankets for him, were not allowed to see him. He conceded,
however, that he had not asked for an extra blanket.
He also
admitted that he was no stranger to detention, having previously been
held in custody twice before for drunkenness
and assault,
respectively. On those occasions he had been held for one or
two days. He did not, however, have a criminal
record. He
was 22 years old at the time and in employment at a wage of R90 per
day.
[21]
In her reasons for judgment, the magistrate
comprehensively summarised the evidence concerning Murray’s
personal circumstances.
She held that no malice had been proved
in respect his complaint about being given only one blanket because
he conceded that he
had been generally well treated and had not asked
for an extra blanket. That finding cannot be faulted.
[22]
The magistrate recorded that she approached
the question of quantifying the award mindful of dictum of Nugent JA
in
Minister of Safety and Security v
Seymour
2006 (6) SA 320
(SCA) at
para. 20: ‘
Money can never be
more than a crude solatium for the deprivation of what, in truth, can
never be restored and there is no empirical
measure for the loss. The
awards I have referred to reflect no discernible pattern other than
that our courts are not extravagant
in compensating the loss. It
needs also to be kept in mind when making such awards that there are
many legitimate calls upon the
public purse to ensure that other
rights that are no less important also receive protectio
n’.
She made reference to two reported judgments concerning damages
awarded for unlawful arrest and detention, and having
updated those
awards to current value and calculated what they translated to at a
per diem
rate (R3715,08 in the one case and R4437,50 in the other), awarded
Murray a comparatively slightly lesser amount. In fixing
the
award the magistrate had regard to the considerations that, as she
put them, ‘[d]
ie arrestasie en
aanhouding was nie gekenmerk deur buitengewone faktore soos
byvoorbeeld beserings, marteling en fisiese geweld
nie en het Eiser
geen klaarblyklik newe effekte oorgehou as gevolg van die voorval;
inteendeel dit blyk dat Eiser tans ’n
beroep van hoër
aansien bekleë as ten tyde van die voorval.
’
[23]
As evident from the passage in
Seymour
quoted by the court a quo, it is indeed so that there can be no
empirical measure for the damages involved in a claim of this nature,
and thus it is not surprising that the learned judge of appeal was
unable to identify any ‘discernible pattern’ in
the
earlier judgments in such matters to which he had given
consideration. Criticism has been expressed in some quarters
about the conservatism of awards in respect of loss of liberty; see,
for example, T Nkosi, ‘
Balancing
deprivation of liberty and quantum of damages
’,
De Rebus
(April 2013). It has been suggested that low awards fail to
afford proper recognition to the entrenchment of the rights to
dignity and liberty in the Bill of Rights. It is especially
significant therefore that Nugent JA’s
dictum
at para. 20 of
Seymour
,
to which the magistrate rightly had reference, enjoyed the unanimous
endorsement of the Constitutional Court when the learned
judge
recently reiterated it in the course of delivering that court’s
judgment in
Minister of Home Affairs v
Rahim and Others
2016 (3) SA 218
(CC)
(see para. 33).
[24]
It is plain from what has been said thus
far that previous awards provide nothing but a rough guide as to what
might be an appropriate
sum of damages in any case. The facts
of every case and the circumstances and effect of the arrest and
detention on the claimants
are bound to vary. The variations
are infinite, which makes resort to comparability a crude tool that
is useful only to give
the court a broad sense of the appropriate
range within which to work in determining an award.
[25]
We were referred by Murray’s counsel
to a number of previous awards in support of his submission that the
award made to Murray
represented a substantial variation from what he
contended was appropriate. The circumstances in those matters
were starkly
distinguishable. I do not propose to go through
them individually. It will suffice to use one to demonstrate
the point.
Since it was singled out for discussion during
argument, I have chosen the judgment of Plasket J in
Peterson
v Minister of Safety and Security
[2009] ZAECGHC 65 (23 September 2009).
[26]
In
that matter the award for unlawful arrest and detention was R60 000,
with an additional amount of R120 000 having been
awarded for
assault. We were informed that the amount of R60 000 in
2009 would translate to R86 000 in today’s
value.
When making the award the learned judge recorded (at para. 19)
that he had been mindful ‘
of
the fact that the ‘assessment of awards of general damages with
reference to awards made in previous cases is fraught with
difficulty’ and that they should serve as no more than a
‘useful guide to what other courts have considered to be
appropriate
’.
[3]
He then proceeded (at para. 20) to explain his determination of the
amount awarded as follows:
Bearing
that in mind, I proceed to consider the factors relating to the
nature and seriousness of the infringement of the plaintiff’s
rights and the effect on him. The plaintiff is a seasonal fruit
picker who works from time to time in the fruit orchards of the
Boland. He was, when he was arrested, in the privacy of his own home.
He was assaulted and dragged from his home clad only in a
pair of
shorts. This impairment of his dignity was compounded by the fact
that people had gathered outside of his house and they
witnessed his
indignity as he was, in this state of undress, placed in a police van
and driven away. At the police station, his
humiliation continued and
he was placed in a cell. Although it is not clear when precisely he
was provided with the clothes that
Ms Michaels brought for him, he
spent some time in his shorts and nothing more. He was not provided
with a blanket or a mattress
and was forced to sleep on a hard
concrete slab. He was released at 04h00, having spent about eight
hours in custody. He was then
required to walk home. In my view, when
these factors are weighed, together with the malicious, highhanded,
arrogant and brutal
conduct of Sergeant Septoe, an award of
R60 000.00 is justified.
[27]
Without in any way thereby detracting from
the seriousness of the infringement of Murray’s rights, it is
obvious, I would
suggest, that
Peterson
’s
case was strikingly distinguishable on its facts. Murray was
not treated in anything like the cruel, malicious and
demeaning way
that the plaintiff in
Peterson
’s
case was. Had he been, the award of R10 000 would have
impressed as obviously wanting. Just as the learned
judge in
Peterson
’s
case had careful regard to the peculiar circumstances of the arrest
and detention, so too did the magistrate in this matter.
Whilst
the
legal
character of the delict and infringement of basic human rights was
identical in the two cases, the
human
impact differed greatly; a notable disparity in the respective awards
was therefore only to be expected. The disparity is
certainly
not indicative of any misdirection by the magistrate.
[28]
Rahim
’
s
case, mentioned earlier, came to the Constitutional Court on appeal
by the Minister of Home Affairs from a judgment of the Supreme
Court
of Appeal (
Rahim and Others v Minister
of Home Affairs
2015 (4) SA 433
(SCA)). It concerned the unlawful arrest and detention of
asylum seekers. The periods of detention involved varied
between 4 and 35 days. There was no evidence that their arrests
and detention had involved any element of brutality or confinement
in
inhumane conditions. The asylum seekers’ claims for
damages had been dismissed in the High Court, but that decision
was
overturned by the appeal court.
[29]
The appeal court gave judgment on
29 May 2015. It awarded the asylum seekers damages in
amounts varying between
R3 000 and R25 000. Its
reasons for making the awards in those amounts were articulated in
paragraph 27 of
the judgment (per Navsa JA):
The deprivation of
liberty is indeed a serious matter. In cases of non-patrimonial loss
where damages are claimed, the extent of
damages cannot be assessed
with mathematical precision. In such cases the exercise of a
reasonable discretion by the court and
broad general considerations
play a decisive role in the process of quantification. This does not,
of course, absolve a plaintiff
from adducing evidence which will
enable a court to make an appropriate and fair award. In cases
involving deprivation of liberty
the amount of satisfaction is
calculated by the court
ex aequo et bono
. Inter alia the
following factors are relevant:
(i)
circumstances under which the deprivation of liberty took place;
(ii)
the conduct of the defendants; and
(iii)
the nature and duration of the deprivation.
Having regard to the
limited information available and taking into account the factors
referred to, it appears to me to be just
to award globular amounts
that vary in relation to the time each of the appellants spent in
detention. The third appellant spent
the least amount of time in
detention, namely four days. In my view a fair amount to be awarded
to him as compensation would be
R3000. The fifth and fifteenth
appellants spent seven days in prison. In my view a fair amount in
respect of their detention would
be R5000. The fourth appellant spent
8 days in detention. In my view a fair amount in relation to his
detention is an amount of
R6000. The sixth appellant spent 13 days in
detention. In my view a fair amount in relation to his detention
would be an amount
of R8000. The first and eighth appellants spent 16
days in detention. In my view a fair amount for them is R10 000.
The second,
tenth and eleventh appellants spent 18 days in detention.
In my view an amount of R12 000 is appropriate. The fourteenth
appellant
spent 20 days in detention. In my view an amount of R14 000
is adequate. The thirteenth appellant spent 23 days in detention. In
this regard an amount of R16 000 appears proper. The twelfth
appellant spent 26 days in detention. In my view an amount of
R18 000 is satisfactory. The seventh appellant spent 30 day in
detention. An award of R20 000 seems in order. The ninth appellant
spent 35 days in detention. In my view an amount of R25 000 appears
fair.
(Footnotes omitted.)
[30] A
cross-appeal by the asylum seekers against the quantum of the awards
made by the SCA was dismissed by the Constitutional
Court. The
latter court explained its unwillingness to intervene with reference
to the principle that the power of an appellate
court to interfere
with decisions by a court below made in the exercise of a discretion
in true sense of the word is narrowly circumscribed.
[31]
Counsel
did not refer to
Rahim
’s
case in argument. I came across it when noting up
Seymour
in the course of preparing this judgment. Had counsel for the
appellant been aware of the judgments in that matter, he might
not
have been as taken aback as he appeared to be when I suggested to him
during the course of his address that the award in the
current case
did not strike me as startlingly inappropriate. It is true that
he could have cited examples of arguably more
generous awards in
quite closely comparable circumstances,
[4]
but for the reasons discussed, their existence would not be enough,
without more, to demonstrate a material misdirection by the
trial
court in the current matter.
[32]
I am not persuaded that the court below was
in any way misdirected in determining the amount of damages awarded
to Murray.
The second appeal will therefore also be dismissed.
[33]
The following orders are made:
1.
The appeal by the Minister of Police
against the refusal of his application in Murraysburg Magistrate’s
Court case no 2/14
for the rescission of the judgment of that court
against him given on 9 November 2015 is dismissed with costs.
2.
The appeal by Garth Leonard Murray against
the quantum of the damages awarded to him in his action against the
Minister of Police
in Murraysburg Magistrate’s Court case no
2/14 in terms of the judgment of that court dated 9 November 2015 is
dismissed
with costs.
A.G. BINNS-WARD
Judge of the High Court
P. CANCA
Acting Judge of the High Court
[1]
See
e.g.
Zealand
v Minister of Justice and Constitutional Development
[2008] ZACC 3
;
2008 (2) SACR 1
(CC) at paras. 24 and 25.
[2]
See, for example,
the remarks of Trengove AJA in
De
Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1043-4 in respect of the effect of the
failure of a litigant to show sufficient interest in a case in which
the conduct
of their attorneys had been delinquent. After
describing how the appellants’ attorneys (Coligionis and
Lebos) had
let them down, the learned judge proceeded at p.1044B-E:
However,
the appellants to cannot be absolved from blame. They appear to have
manifested a complete disinterest in the conduct
of the case after
the interim settlement on 19 February 1973, and they have not
proffered any acceptable explanation for their
failure to keep in
touch with Coligionis, or with Lebos for that matter, as to the
progress of the proceedings during the three
and a half year period
subsequent to the interim settlement. In this regard I fully agree
with Melamet J's observation …
that the appellants
“
cannot
divest themselves of their responsibilities in relation to the
action and then complain vis-à-vis the other party
to the
action that their agents, in whom they have apparently vested sole
responsibility, have failed them”.
Having
regard to all the relevant facts and circumstances, I am of the view
that, on common law principles, this Court would not
be justified in
exercising its discretion in favour of granting the appellants the
relief sought. They are, as Melamet J correctly
remarked …
“
the
authors of their own problems and it would be inequitable to visit
the other party to the action with the prejudice and inconvenience
flowing from such conduct”.
[3]
The learned judge
quoted from the judgment in
Seymour
supra, at para. 17.
[4]
See,
for example,
Minister
For Safety and Security v Scott and Another
2014 (6) SA 1
(SCA), in which the award of R75 000 by the trial
court was reduced to R30 000 by the SCA. The
circumstances
of the detention in that case were worse, but its
duration was much shorter than in the current case.