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[2012] ZAGPJHC 50
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Minister of Safety and Security v G4S International UK Ltd, In re: G4S International UK Ltd v South African Airways (Pty) Ltd and Others (07/12735) [2012] ZAGPJHC 50 (30 March 2012)
REPORTABLE
SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO 07/12735
DATE:30/03/2012
In the
matter between
THE MINISTER OF SAFETY AND SECURITY
….....................................
APPLICANT
and
G4S INTERNATIONAL UK
LTD
................................................................
RESPONDENT
In re
G4S INTERNATIONAL UK
LTD
........................................................................
PLAINTIFF
and
SOUTH AFRICAN AIRWAYS (PTY)
LTD
.......................................
FIRST
DEFENDANT
AIRPORTS COMPANY OF SA
…..............................................
SECOND
DEFENDANT
GUARDFORCE
INTERNATIONAL
TRANSPORTATION
(PTY) LTD
.....................................................
THIRD
DEFENDANT
KHULANI
FIDELITY SERVICES GROUP (PTY) LTD
............
FOURTH
DEFENDANT
THE MINISTER OF SAFETY AND
SECURITY
.............................
FIFTH
DEFENDANT
and
PROTEA AVIATION (PTY)
LTD
......................................................
FIFTH
THIRD PARTY
J U D G M E N T
VAN OOSTEN J
:
[1] This is an opposed application for the rescission of an order of
this court in terms of which the applicant’s defences
to the
respondent’s claims were struck out. In the action to which
this application is related, the applicant is cited as
the fifth
defendant (the Minister). The action between the respondent (G4S) and
the other defendants, so I have been informed,
has recently become
settled.
[2] For a proper understanding of the issues requiring determination,
it is at the outset necessary to put the present application
in its
proper perspective by firstly, summarising the facts on which the
respondent’s cause of action is based and secondly,
to refer to
the procedural steps that were taken in the action, since summons was
issued in May 2007.
[3] On 25 March 2006 a consignment of US dollar, Euro and Rand
banknotes, belonging to G4S, was stolen in an armed robbery, from
the
apron at the OR Tambo International Airport (the robbery). Within
days of the robbery, a large but undisclosed quantity of
those
banknotes were seized and recovered by members of the South African
Police Service (SAPS). An undisclosed number of the recovered
notes
were taken for safekeeping to the Benoni police station and a total
of at least US$1m in notes were taken to the Booysens
police station.
Of the notes kept at Benoni at least US$1 174 300
and R1 599 950 were stolen from a walk-in safe at the Benoni police
station,
where they had been stored (the Benoni theft). Criminal
investigations by the SAPS revealed that three members of the SAPS,
who
were at the time stationed at Benoni, are implicated in the
Benoni theft, and they were subsequently charged with the theft
thereof.
The charges against them however, were later withdrawn, “due
to the unavailability of key witnesses”. Some of the banknotes
which had been stolen in the Benoni theft were subsequently seized
from the SAPS suspects and their relatives and are now kept
in safe
custody by the SAPS.
[4] The Booysens notes were seized from a suspect in the robbery and
taken to Booysens police station for safe custody. On 30 March
2006
Inspector L Mbonani withdrew them from custody. In the papers before
me it is admitted on the Minister’s behalf that
on 30 March
2006 Mbonani “
withdrew a packet of US$ 100 and R8 700 in
bank notes”
from the Booysens police station, in respect of
which, it is further stated,
“their current whereabouts are
unknown”
(the Booysens theft).
[5] In June 2007 G4S issued summons against the Minister and the
other defendants for the recovery of the losses suffered as a
result
of the robbery. The claim against the other defendants was premised
on their alleged wrongful conduct relating to the robbery.
G4S’s
two claims against the Minister are based on the alleged wrongful
conduct by members of the SAPS, on the facts I have
alluded to,
concerning the Benoni theft (the first claim) and the Booysens theft
(the second claim).
[6] The first claim is premised on delict and on the basis that the
policemen, who were admittedly involved in the Benoni theft,
were
stationed at the Benoni police station and that they were acting in
the course and scope of their employment with the Minister.
In the
alternative it is alleged that other members of the SAPS, stationed
at Benoni police station, negligently failed to prevent
the theft.
[7] The second claim was introduced at a later stage by way of an
amendment to the summons, in March 2010. In the second claim
the
return of the Booysens notes is claimed, and in the alternative,
damages in delict based on the intentional misappropriation
of the
notes by Mbonani, alternatively the negligent failure of the SAPS to
safeguard or recover the Booysens notes.
[8] The Minister filed a plea to the first claim in essence denying
all the material allegations made by G4S. After the close pleadings
a
rule 35 notice requesting discovery of documents, as well as a
request for trial particulars, were served on the Ministers attorneys
of record, being the State Attorney. No response was however
forthcoming. G4S eventually sought and obtained an order against the
Minister to compel discovery and the furnishing of particulars for
trial. The order was duly served on the State Attorney, but
not
complied with. G4S then applied for the striking out of the
Minister’s defences. The following order was granted by
default on 21 September 2010:
“
1.
That the defences by the fifth defendant to each of the following
claims by the plaintiff against the fifth defendant be struck
out in
terms of Rule 35(7) and/or Rule 21(4) of the Rules of this Honourable
Court:
The
plaintiff’s first alternative claim;
The
plaintiff’s second alternative claim (in the alternative to
the first alternative claim);
The
plaintiff’s third alternative claim (in the alternative to
the second and third alternative claims);
2. That the fifth defendant
be ordered to pay the costs of this application.”
[9] The second claim likewise remained unattended to: no plea was
filed within the time allowed by the rules. Warnings and demands
for
delivery of the plea by the attorneys acting for G4S, elicited no
response from the State Attorney. G4S then placed the Minister
under
bar from pleading to the second claim.
[10] Shortly thereafter, on 7 October 2010, an application was made
for rescission of the order striking out the defences, for
the
removal of the bar and leave to plead to the second claim (the first
application). G4S opposed the application. Shortly before
the
application was due to be heard, in March 2011, it was withdrawn. On
4 April 2011 the present application was launched, based
on new
grounds but substantially for the same relief, which, in general
terms, is aimed at granting the Minister leave to re-enter
the fray.
[11] In this application an order is sought in regard to the first
claim, rescinding the order striking out the Minister’s
defence
and granting leave to purge the defaults in respect of which the
orders to compel were made and, in regard to the second
claim, for
the removal of the bar and leave to file a plea within a stated time.
G4S opposes the relief sought on the grounds that
none of the
requirements which are necessary to obtain the relief sought, have
been satisfied.
[12] The application falls to be decided under the court’s
common law power of rescission of default judgments (
De Wet and
Others v Western Bank Ltd
1979 (2) SA 1031
(A)). It is
well-established that in order to succeed the applicant, seeking
rescission, must show “good cause” or
“sufficient
cause”, which encapsulates two distinct essential elements,
firstly, a reasonable and acceptable explanation
for his default and,
secondly, that on the merits a bona fide defence exists (
Chetty v
Law Society Transvaal
1985 (2) SA 756
(A)). The interplay between
the two requirements were somewhat refined in judgments of the
Supreme Court of Appeal: in
Saloojee and Another NNO v Minister of
Community Development
1965 (2) SA 135
(A) 141H, Steyn CJ found
difficulty in justifying condonation, unless there were “strong
prospects of success”, in
Chetty
Miller JA said that the
circumstance of a proposed defence carrying reasonable or good
prospects of success on the merits, might
tip the scale in favour of
the applicant for rescission where the two elements are “finely
balanced”, while in
Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA), Jones AJA (at para
[12]) in passing mentioned that a “weak explanation” may
be cancelled out by a bona fide
defence on the merits, having a “good
prospect of success”. In my view, a balancing exercise
involving the two elements
of “good cause” is unnecessary
and may well lead to artificial results. The court exercises a wide
discretionary power,
influenced by considerations of justice and
fairness, having regard to all the facts and circumstances of the
particular case (
De Wet
1042G;
Cavalinias v Claude Neon
Lights SA Ltd
1965 (2) SA 649
(T)). The weakness of the
explanation or the good or poor prospects of a successful defence are
but factors the court will take
into consideration, together with all
such other factors as may be relevant pertaining to that particular
case, in the exercise
of its discretion.
[13] Against this background I turn now to a consideration of each of
the requirements. No explanation has been tendered for the
State
Attorneys’ inaction. The matter was initially entrusted to Mr
Rambau, who at the time was the senior assistant state
attorney
employed at the office of the State Attorney in Johannesburg. He has
since resigned. For reasons that have not been explained,
Rambau
plainly ignored and in fact abandoned his duties as the legal
representative of the Minister. A long line of notices, requests,
warnings and even court orders were simply disregarded and not
attended to. Rambau deposed to the founding affidavit in the first
application for the setting aside of the striking out order, which,
as mentioned, was later withdrawn. In that application he put
the
blame for the inaction squarely on the shoulders of the police
officials who, according to him, failed to co-operate concerning
repeated requests for information and assistance from his office. Not
a single document in support of these wide ranging allegations
was
however annexed to his affidavit. It is therefore not surprising that
the application was withdrawn. In the present application
Mr Lekabe,
who is the head of the State Attorney’s office in Johannesburg,
is the deponent to the founding affidavit. He
has shifted the blame
to Rambau’s inefficiency and in particular the “reckless
and negligent manner” in which
he had handled the matter. In
argument, Rambau’s behaviour, not without justification, was
labelled as dishonest. In the
meanwhile the State Attorney has lodged
a complaint of professional misconduct against Rambau with the Law
Society of the Northern
Provinces, which is still pending.
[14] Counsel for G4S focussed his attack on the adequacy of the
explanation, on the two directly opposing versions, both tendered
on
behalf of the Minister, which this court is now required to evaluate.
In my view however, the facts openly and fully disclosed
by Mr Lekabe
leaves me with no doubt that Rambau’s inefficiency and
indifference were the direct and sole causes of the inaction.
It has
authoritatively been stated that a litigant cannot be allowed to hide
behind his legal representative’s lack of diligence
as an
excuse for delays or disobeyance of the rules of court (see
Salojee
140H). Counsel for the Minister urged me to have regard to the
nature of the attorney client relationship which exists in legal
matters concerning the State. Organs of state are obliged to avail
themselves of the services of the State Attorney (see s 3 of
the
State Attorney Act 56 of 1957). State departments, such as the SAPS,
do not have the free choice of instructing a particular
legal
representative or the right enjoyed by private litigants of
terminating the mandate of one legal representative and instructing
another. The SAPS is therefore bound to accept that all legal
matters, such as the present, will be dealt with the State Attorney.
Underpinning this particular relationship, in my view, is the trust
placed by not only the SAPS, but other state organs, in the
State
Attorney to properly fulfil its mandate. But it goes further: the
taxpayer also has an interest in these matters, as public
funds are
at risk in matters where damages against the Minister are claimed. It
cannot, generally speaking, be expected from members
of the SAPS to
regularly monitor the State Attorney’s management of legal
matters in which they are or may be involved. In
most instances
members of the SAPS would not even be aware of the pending litigation
as service of the documents commencing legal
proceedings, can and is
effected on a representative of the Minister, including the office of
the State Attorney. These matters
are accordingly left entirely in
the hands of the State Attorney who is required to perform their
duties with the utmost diligence.
[15] At this juncture I consider it necessary to digress and to
address the alarming neglect of duty by the State Attorney that
appears to have become the order of the day in this division. I will
confine the comments I am about to make to cases involving
the State
Attorney that have served before me in the last few weeks. A number
of applications for default judgment against the
Minister appeared on
the unopposed motion court roll. In those matters the summons had
been properly served on the State Attorney,
on behalf of the
Minister. Those cases all involved claims for an alleged wrongful
arrest and detentions by the SAPS. In the absence
of a notice of
appearance to defend by the State Attorney, they were enrolled on the
unopposed motion court roll, for default judgment.
At the last moment
when the matters were called in court, an appearance from or on
behalf of the State Attorney’s office
was made resulting in a
postponement and, of course, unnecessary wasted costs. No explanation
was tendered for the State Attorney’s
non-entry of an
appearance to defend, the plaintiffs always content with a suitable
costs order in their favour. This kind of neglect,
regrettably,
permeated into a large number of unopposed matters appearing on
another section of the motion court roll: applications
against the
Minister to compel discovery of documents or compliance with some
other notice delivered in terms of the rules. Again,
the notices
requesting discovery were duly served on the State Attorney, but the
lack of compliance, despite despatch of a “courtesy
letter”
again demanding compliance, caused them to be launched. In one week
12 such matters served before me. At the hearing
there was an
appearance by or on behalf of the State Attorney. I was informed that
all those matters had become settled in respect
of which draft orders
were handed up for confirmation albeit without any explanation for
the reason for the non-compliance. The
draft orders all provided for
payment of the costs of the applications by the Minister. In the
present matter, as I will deal
with later, a further costs order
against the Minister, is about to follow. These all provide examples
of the unnecessary waste
of public funds due to deteriorating
standards of service and the absence of diligence.
[16] The instances of neglect and the general decline in the
standards of service rendered by the State Attorney’s office,
is a matter of grave concern which needs to be addressed. It cannot
be allowed to endure any longer. An urgent in-depth investigation
by
the authorities concerned, in my view, is necessary. In order to set
the process in motion I have decided to cause a copy of
this judgment
to be forwarded to the Minister of Police, as well as the Minister of
Justice and Constitutional Development. It
is hoped that the flashing
red warning lights which are apparent from what I have set out above,
will encourage an investigation
and correction where necessary, in
order to rectify a state of affairs that is not conducive to the
delivery of justice by a well-established
legal service provider in
the public sector.
[17] To revert to the present application. I am satisfied that the
wilful neglect of Rambau cannot, in the circumstances of this
case,
be held against the Minister. I must not be understood to open the
floodgates of neglect as reason for exoneration in applications
for
condonation. There is a limit beyond which the Minister cannot escape
the State Attorney’s lack of diligence. Exactly
where to draw
the line, will depend on the facts of each particular case. The
possible measures of control and oversight to be
implemented or
reviewed, within the office of the State Attorney, in order to
prevent occurrences of the kind referred to in this
judgment, is
perhaps one of the aspects to be addressed in the investigation I
have proposed.
[18] This brings me to the prospects of success. The facts in support
of the Minister’s defence on the first claim are tersely
set
out, again showing a lack of proper investigation into, and
presentation of the material elements of, the Minister’s
defence. As to how the theft had occurred, in regard to both claims,
preciously little has been disclosed. It is merely stated
that the
recovered notes had been placed in walk-in safes, at the two police
stations, and that at Benoni “the safe was broken
into by
drilling the locks” and at Booysens, that the notes were
“withdrawn” by Mbonani, as I have already alluded
to. The
myriad of unanswered questions and possible inferences arising from
the scarce information, not surprisingly, provided
counsel for G4S
with a number of further strings to his bow.
[19] The pivotal issue on the merits concerns the Minister’s
vicarious liability for the delicts committed by SAPS employees.
In
this regard it is merely stated that witnesses will be called to
prove that those members were off-duty at the time and that
“this
will be evident from the reports of sector commanders who compiled
lists of all police personnel on duty on the night
in question”.
A “Report by Section Commander” at the Benoni police
station has been made available but it evidently
has no relevance to,
nor is it of any assistance in, establishing the names of police
officers or personnel who were on duty on
that particular evening.
[20] The position in our law concerning vicarious liability has
recently been modified and expanded on in two leading Constitutional
Court judgments,
K v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6)
SA 419
(CC);
2005 (9) BCLR 835
(CC) and
F v Minister of Safety and
Security and Others
[2011] ZACC 37
;
2012 (3) BCLR 244
(CC).
A
summary of the legal position as it presently stands, especially in
regard to the so-called deviation cases, is that two questions
need
to be asked, only the second of which is relevant for present
purposes: which is whether a sufficiently close connection between
the wrongful conduct and the wrongdoer’s employment existed (
F
para [50]). The fact that a policeman was off duty, although of
significance, is not decisive. The objects of the police service
stated in s 205(3) of the Constitution include the protection of
property of the inhabitants of the Republic. Counsel for G4S
submitted that the Minister’s denial that the implicated
policemen were not on duty is not enough and that the assumption
that
they could only have acquired the knowledge concerning the notes held
in safe custody, while they were on duty, is sufficient
to show the
necessary connection for finding vicarious liability. In response,
counsel for the Minister contended that G4S has
not made out an
unanswerable case. As I understand the argument, G4S would still be
required, when default judgment is sought,
to prove its case by
adducing the necessary evidence. I agree. In my view the issue
concerning vicarious liability cannot be decided
at this stage of the
proceedings. The tests expounded in
K
that ultimately need to
be addressed, require the consideration of several interrelated
factors on which, at this stage, there exists
either no evidence or
which have not been properly dealt with (see, for example, the
thorough and comprehensive consideration of
the facts of that matter,
in the minority judgment in
F
para
[152]
et seq
).
This likewise applies to the grounds of negligence relied upon by
G4S. I am therefore unable to express any firm views as to
the merits
or demerits of either the claims or the defence raised. Suffice, at
the risk of repetition, to say that G4S, even if
successful in this
application, will still be required to prove its case at the next
procedural step, which would have been a request
for judgment by
default. For all these reasons I conclude that the requirement of
sufficient cause has been satisfied.
[21] Finally, I consider it in the interests of justice and fairness
that the Minister be granted leave to continue in defending
the
claims. The action involves a large amount of money. The recovered
notes were, so it seems, duly safeguarded in a walk-in safe.
The
notes were stolen by members of the SAPS who acted dishonestly and
diverted their duties. The question of vicarious liability
involves
mixed questions of fact and law all of which require proper
ventilation and determination by a court having heard all
the
evidence. In this process the Minister, in my view, remains
intimately involved and he, therefore, should not be barred from
further participation in the proceedings.
[22] As to costs, the opposition to the application was reasonable
and the G4S accordingly is entitled to the costs in respect
thereof.
[23] In the result the following order is made:
Paragraph 1 of
the order of this Court, dated 21 September 2010, striking out the
fifth defendant’s defence to the plaintiff’s
claims, is
rescinded.
The fifth
defendant is granted leave to deliver a response to the plaintiff’s
notice in terms of Rule 35(1), within 10
days of the date of this
order.
The fifth
defendant is granted leave to deliver a reply to the plaintiff’s
request for further particulars for trial,
within 10 days of the
date of this order.
The bar on fifth
defendant’s delivery of a plea on the plaintiff’s
second claim, is removed
The fifth
defendant is granted leave to file a plea on the plaintiff’s
second claim within 10 days of the date of this
order.
The fifth
defendant (applicant in this application) is ordered to pay the
costs of the plaintiff’s (respondent in this
application)
opposition to the application, such costs to include the costs
consequent upon the employment of senior counsel.
_________________________
FHD VAN
OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT : ADV MEMANI
ADV
LUSHABA
APPLICANT’S
ATTORNEYS: THE STATE ATTORNEY
COUNSEL
FOR THE RESPONDENT: ADV MA KRIEGLER SC
RESPONDENT’S
ATTORNEYS: NORTON ROSE SOUTH AFRICA
DATE
OF HEARING: 19 MARCH 2012
DATE
OF JUDGMENT : 30 MARCH 2012