About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 87
|
|
Blose v Ethekwini Municipality (20053/2014) [2015] ZASCA 87 (29 May 2015)
Links to summary
SUPREME COURT OF APPEAL
OF SOUTH AFRICA JUDGMENT
Not
Reportable
CASE
NO: 20053/2014
In
the matter between:
NICHOLUS
THEMBOKWAKHE
BLOSE
APPELLANT
and
ETHEKWINI
MUNICIPALITY
RESPONDENT
Neutral
citation:
Blose v Ethekwini
Municipality
(20053/14)
[2015] ZASCA 87
(29 May 2015).
Coram:
Mpati P, Maya, Pillay, Zondi JJA and Van der Merwe AJA
Heard:
06 May 2015
Delivered:
29 May 2015
Summary:
Magistrate‟s court – civil proceedings –
application by plaintiff to reopen case in terms of rule 28(11) of
Magistrates‟
courts rules - discretion of presiding officer –
such discretion to be exercised judicially.
ORDER
On
appeal from:
KwaZulu-Natal High
Court, Pietermaritzburg (D Pillay J and Chili AJ sitting as court of
appeal)
1
The appeal is upheld with costs.
2
The order of the court below is set aside and substituted with the
following:
'(a)
The appeal is upheld, with costs.
(b)
The order of the magistrate is set aside.
(c)
The matter is remitted to the magistrate in order to hear further
evidence from the plaintiff relating to proof
of compliance with the
provisions of
s 3(1)
(a)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
and
thereafter to come to a judgment afresh.‟
JUDGMENT
Pillay
JA (Mpati P, Maya, Zondi JJA and Van der Merwe AJA concurring)
[1]
This appeal, with the leave of this court, is against the judgment of
the KwaZulu- Natal High Court, Pietermaritzburg (D Pillay
J and Chili
AJ). The appellant instituted action against the respondent for
damages in respect of alleged unlawful arrest, search
and detention
in the magistrate‟s court for the district of Durban. I will,
for the sake of convenience, hereinafter refer
to the appellant as
„the plaintiff‟ and the respondent as „the
defendant‟ – as they were in the trial
court.
[2] On 17 July 2009 at
Botanic Gardens Road, Durban, a minor collision between a motor
vehicle and a motor cycle occurred causing
a traffic jam. While Mr
Sandy McCutcheon (McCutcheon), the driver of the motor vehicle, was
assisting the injured motor cyclist,
the passenger in a BMW
motor vehicle which was part of the traffic being held up, approached
him, allegedly threatened him and
then assaulted him. The passenger
thereafter hastily left the scene and got into the BMW motor vehicle
which immediately sped off.
Moments later members of the Durban
Metropolitan Police Service (the police) employed by the defendant
arrived on the scene. McCutcheon
made a report to them. He was also
able to point out the BMW motor vehicle to them as it was still
within sight. The plaintiff
was the driver of the BMW motor vehicle
at the material time.
[3]
The police then gave chase and caught up with the BMW motor vehicle
at the intersection of Moore and Cleaver Roads. The occupants,
Mr
Ndokweni and the plaintiff, were requested to step out of the vehicle
and were both asked to put their hands on the roof of
their motor
vehicle. When this occurred, the police found a firearm sticking out
of the waistband of Ndokweni. Another firearm
was also found in the
compartment of the driver‟s door. Neither the plaintiff nor the
passenger was able to produce a license
for either of the firearms.
There seems to be a dispute about that but it does not require
determination and in view of the order
made in this appeal, it would
in any event be unwise to comment thereon. The firearms were
confiscated and the plaintiff and his
passenger were arrested,
handcuffed and detained in the police vehicle. They were subsequently
dealt with at the Berea Police Station,
Durban. The plaintiff was
released from there after a few hours.
[4]
The plaintiff's action, which was commenced by summons issued on 25
January 2010, was defended. The defendant initially pleaded
to the
claim on or about 31 May 2010. On 6 July 2011, the defendant amended
its plea. Whilst there is no indication in the record
as to what
process was followed in amending the plea, counsel for the plaintiff
confirmed that proper notice of intention to amend
the plea
in
terms of Rule 55A of the Magistrates‟ Courts Rules
[1]
was served
on the plaintiff, who
did
not
object
to
the
proposed
amendment.
In
fact,
the
amendment
included
inter
alia,
what
amounted
to
a
withdrawal
of
an
admission
that
s
3(1)
(a)
of
the
Institution
of Legal Proceedings Against Certain Organs of State Act 40 of 2002
(the Act)
had
been
complied
with. It is
also not
clear
from
the
record
which
procedures
were
employed to give effect to the said withdrawal.
[5]
As regards the withdrawal of the admission that s 3(1)
(a)
of
the Act had been complied with, Mr Quinlan, who appeared for the
defendant at the trial and in this court was unable to shed
light as
to whether the magistrate had granted leave to withdraw the admission
or not. In relation to whether a party can simply
withdraw an
admission, especially, as in this case, a material one, he submitted
that it was never raised in the trial court, in
the court below nor
in the plaintiff's heads. He had thus not done any research on the
point.
[6]
It is true
that there was no objection to the proposed amendment. However where
a
withdrawal
of
a
prior
admission
is
sought,
the
party
seeking
the
withdrawal
should
make
a
substantive
application
in
regard
thereto,
explaining
under
oath,
that
the
admission
was
an
error,
the
circumstances
under
which
the
error
was
made
and
satisfying
the court that the withdrawal of the admission will not prejudice the
other party (normally the plaintiff).
[2]
It seems no such procedure was
followed. It is however unnecessary
to delve into
this issue in light of the conclusion I have arrived
at in this
judgment.
[7]
The trial proceeded on the basis that the amendment had been
effected. After both parties had tendered evidence and closed their
respective cases, Mr Quinlan argued that the plaintiff had not proved
compliance with the provisions of s 3(1)
(a)
of the Act.
He submitted that the defendant should thus be absolved from the
instance with costs. S 3(1)
(a)
of the Act reads as follows:
'3
Notice of intended legal proceedings to be given to organ of
state
.
(1)
No legal proceeding for the recovery of debt may be instituted
against an organ of state unless –
(a)
the creditor has given the organ of state in question notice in
writing of his or her intention to institute the legal proceedings
in
question;‟
Mr
Ndlovu, for the plaintiff, then applied to reopen the plaintiff‟s
case in order to merely submit a copy of a letter which
constituted
proof of compliance with s 3(1)
(a)
of the Act. [8] Mr
Quinlan strongly objected and opposed the application to reopen the
plaintiff's case. The magistrate,
in dealing with the application
stated:
'The
considerations that usually fall to be weighed when the Court has to
consider an application of this nature are generally five
fold.
Firstly the reason why the evidence was not led timeously, secondly
the degree of materiality of the evidence, thirdly the
balance of
prejudice, fourthly the general need for finality in judicial
proceedings and fifthly the stage that the particular
litigation has
reached.'
[9]
The magistrate briefly dealt with each of the factors she had
tabulated. It is not necessary to deal with each of them in this
judgment. I will deal with two only. It is trite that in considering
an application to reopen a party‟s case, the court has
a
discretion in making such a decision. This is what Mr Quinlan
emphasised. He argued that in the circumstances, this court was
not
entitled to interfere with that decision.
[10]
In magistrates‟ courts, leave to adduce further evidence –
leave to reopen a case – is governed by Rule 28(11)
of the
Magistrates‟ Courts Rules which reads as follows:
'Either
party may, with the leave of the court, adduce further evidence at
any time before judgment; but such leave shall not be
granted if it
appears to the court that such evidence was intentionally withheld
out of its proper order.'
As
was stated in
Mkwanazi
v Van der Merwe & another
,
[3]
'The
discretion under Rule 28(11) must be exercised judicially, upon a
consideration of all relevant factors, and in essence it
is a matter
of fairness to both sides.'
[11]
The magistrate‟s whole approach to the question of reopening
the plaintiff‟s case was flawed. Most significantly,
in the two
paragraphs where she dealt with the issue of prejudice, she clearly
misconstrued the notion thereof.
[12]
I think it is necessary to quote portions of her judgment to
illustrate this. In one instance she said the following:
„
As
far as prejudice is concerned, it is prejudice to the applicant if
the application is refused and prejudice to the respondent
if the
application is in fact granted.
In
Coetzee
v Jansen
1954 (3) SA 173
it was stated that:
“
Generally
a party will not be allowed to adduce further evidence if, having the
evidence at his disposal, he deliberately elects
not to put it before
the Court because he is of the opinion that it is unnecessary.”
As
far as the first point is concerned, that is the issue as to why the
evidence was not before the Court timeously, in the case
before me
the reason itself is not really clear. As I‟ve indicated
supra
the plaintiff had argued that the defendant should have raised it
as a point
in limine
. But as will be recalled, this is neither
here nor there. After the notice was placed in dispute, the plaintiff
bore the onus of
proof of that particular notice.‟
In
another instance she went further and stated:
'As
far as prejudice is concerned, clearly there is prejudice. If the
application to reopen the plaintiff‟s case is allowed
and
thereby the [s 3(1)
(a)
] notice to be handed in to the record,
clearly there is prejudice to the defendant in the matter and,
likewise, if the Court refuses
the application, there is prejudice to
be borne by the plaintiff in this matter.'
[13]
As is apparent, she merely mentioned that both parties were at risk
of prejudice depending whether the application to lead
further
evidence was granted or not. She seemed to measure this aspect as
against the final outcome of the case rather than what
was ultimately
procedurally fair to the parties. She therefore failed to balance the
issue of prejudice. Had she done so properly
and judicially - as she
was required to do - she would have found that the defendant was at
no risk of prejudice at all. The failure
to balance possible
prejudice to either of the parties ignored any notion of fairness
required to make the decision. In this case,
to have refused the
introduction of further evidence was extremely prejudicial to the
plaintiff. On the other hand, there is not
one iota of evidence or
suggestion that the defendant would have been prejudiced by allowing
the plaintiff‟s case to be reopened
as was conceded by Mr
Quinlan. In my view this was a misdirection by the magistrate
resulting in an improper exercise of her discretion.
[14]
Secondly, she paid lip service to the need to bring the case to a
final conclusion. In this regard she said the following:
'As
far as the need for finality in judicial proceedings is concerned, in
principle there is no bar to align the reopening of a
case even after
judgment is reserved. In the particular case before me, but for the
defendant bringing the issue of a [s 3(1)
(a)
] notice to the
plaintiff, it is certainly arguable that the plaintiff would not have
addressed such deficiency at all and the Court
in all probability
would have granted judgment on the evidence as it stood before the
Court in the absence of evidence relating
to the [s 3(1)
(a)
]
notice.'
As
was the case with all the rest of the factors, she gave no
explanation as to why she thought this factor would militate against
granting the plaintiff the opportunity to adduce further evidence.
Nobody could doubt that granting the application would not extend
the
life of the trial by any significant period or at all. It would
merely be a matter of handing in the document which proved
delivery
of the notice as intimated by Mr Ndlovu. This would not entail any
amendment of pleadings and the notice itself would
be self
explanatory. The failure to deal with this aspect properly was also a
misdirection and resulted in an improper exercise
of the magistrate‟s
discretion.
[15]
It
ought
to
be
noted
that
the
purpose
of
the
requirement
envisaged
in
s
3(1)
(a)
of
the
Act
is
clearly
not
to
non-suit
a
litigant
but
rather
to
place
the
organ
of
state
concerned
in a position to assess the claim as described by Didcott J in
Mohlomi
v
Minister
of
Defence.
[4]
The
magistrate
ought then
to
have
allowed
the
further
evidence to
be adduced instead of committing the aforementioned misdirections. Mr
Quinlan
was
constrained
to concede
that the
magistrate
had
misdirected
herself in
this
regard
and
therefore
did
not
exercise
her
discretion
properly.
The
court
of
appeal was
thus at large to revisit the issue and come to its own decision.
[5]
[16]
The court below found that the refusal of the plaintiff‟s
request to reopen the proceedings was not appealable.
It reasoned
that in applying to reopen the plaintiff‟s case, Mr Ndlovu
sought an indulgence and that the magistrate had applied
her mind in
exercising her discretion judiciously when refusing the plaintiff‟s
request to do so.
[17]
As was illustrated in the aforegoing, the magistrate did not exercise
her discretion properly and judiciously. This seemed
to have escaped
the court below. It failed to properly analyse the approach of the
magistrate in considering the application to
reopen the plaintiff‟s
case. If it had, it would have come to a different conclusion since
it would have found that the magistrate
had clearly not exercised her
discretion judicially. This, in my view, is a misdirection on the
part of the court below and this
court is therefore at large to
interfere with its decision.
[18]
Generally the achievement of justice should not be hampered by
excessive adherence to printed form of legislation without regard
to
its significance and what it seeks to accomplish. The aforegoing, in
my view, represents compelling and pragmatic reasons why
the appeal
should succeed and the plaintiff ought to be afforded an opportunity
to lead further evidence.
[19]
In the result, I would make the following order: 1 The appeal is
upheld with costs.
2
The order of the court below is set aside and substituted with the
following:
'(a)
The appeal is upheld, with costs.
(b)
The order of the magistrate is set aside.
(c)
The matter is remitted to the magistrate in order to hear further
evidence from the plaintiff relating to proof
of compliance with the
provisions of
s 3(1)
(a)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
and
thereafter to come to a judgment afresh.'
R PILLAY
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT:
Mr S Tsangarakis
Instructed by:
Thami Ndlovu &
Company, Durban
Matsepes, Bloemfontein
FOR
RESPONDENT:
Mr P D Quinlan
Instructed by:
Linda Mazibuko &
Associates, Durban
Symington & De Kok,
Bloemfontein
[1]
The relevant parts of
Rule 55A
read as follows:
„
(1)(a)
any party desiring to amend a pleading or document (other than an
affidavit) filed in connection with any proceedings,
must notify all
other parties of his intention to amend and shall furnish the
particulars of the amendment;
(b)
. . .
(2)
The notice referred to in sub-rule (1) shall state that unless
written objection to the proposed amendment is delivered
within 10
days of delivery of the notice of amendment, the amendment will be
effected.‟
[2]
L T C Harms
Civil
Procedure in Magistrates’ Courts
Service
Issue 34 (1997) at B–540;
Bellairs
v Hodnett
&
another
1978(1) SA 1109 (A) at 1150 - 1151.
[3]
Mkwanazi
v Van
der Merwe & another
1970
(1) SA 609
(A) at 616B.
[4]
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC) para 9.
[5]
Director
of
Public
Prosecutions
(KwaZulu Natal) v Henry & others
(305/07)
[2008] ZASCA 63
(29 May
2008);
Minister
of Safety & Security v Sibiya
[2005]
JOL 15401
(T).