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[2011] ZAGPPHC 44
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Minister of Safety and Security v Mashiya (A834/2009) [2011] ZAGPPHC 44 (1 April 2011)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
Case No: A834/2009
DATE:01/04/2011
In
the matter between:
THE
MINISTER OF SAFETY AND
SECURITY
...............................................
APPELLANT
............
..............................................
And
L.
D.
MASHIYA
.................................................................................................
RESPONDENT
…
......................................................................................................
(Plaintiff
in the court a quo)
JUDGMENT
MAVUNDLA,
J;
[1]
The respondent issued summons at the magistrate court in the district
of Highveld Ridge held at Evander under case number 4048/2007
on 30
May 2007. The claim was for damages, against the 1st defendant, who
being vicariously liable, for payment of the sum of R92,
567, 71 in
respect of special damages arising from an alleged assault upon him
by the 2n and 3rd defendant.
[2]
The summons was duly served upon the State Attorney on 20 August
2007. There was no appearance to defend entered on behalf of
the
defendants. On the 8 November 2007 default judgment in the amount of
R42 567, 71 together with interest at 15.5% per annum
plus attorney
and client costs was granted against the defendants.
[3]
The plaintiff, who I shall henceforth refer to as the appellant on 10
May 2009 brought an application for the condonation of
the late
filing of the application for rescission of the judgment of 8
November 2007 in terms of Rule 60(5). The magistrate dismissed
this
application with costs to be taxed on attorney and client scale. The
appellant is appealing this latter decision.
[4]
The following is common cause: The plaintiff remitted a letter of
demand dated 22 January 2007 to the Provincial Commissioner
Mpumalanga as required in terms of Act 40 of 2007. The Provincial
Commissioner of Mpumalanga responded per letter dated 15 May
2007
advising that the matter has been referred to the State Attorney
Pretoria and will be attended to by Mr. B Mlangeni whose
reference
number is 2286/2007/Z50.
[5]
Mr. Mlangeni, directed a letter dated 23 October 2007 to the
Provincial Commissioner of Mpumalanga inquiring whether summons
was
served at their offices. The respondent's attorney forwarded copies
of previous correspondence from his offices to the State
Attorney
regarding this matter per letter dated 17 December 2008. In response
to this letter the State Attorney stated that their
original file
cannot be traced, nor is it reflected on the list of files that were
being handled by Mr. Mlangeni, which required
urgent attention, and
advising of the fact that judgment was obtained on 8 November 2007.
Mr. Mlangeni resigned from the 1st defendant's
employ at the end of
May 2008.
[6]
The offices of the State Attorney were in disarray and no trace of
the file pertaining to this matter could be traced. As late
as during
December 2008 and January 2009 the respondent's attorneys of record
were requested to supply the State Attorney's offices
with copies of
the pleadings in this matter and informed that it could not be found
in the list of files that were handled by Mr.
Mlangeni and handed
over to Mr. T Chauke who took over the former's files.
[7]
It is common cause that the magistrate in his judgment dismissing the
application for condonation found that Mr. Mlangeni on
25 March 2008
inquired from the clerk of the court in Evender whether judgment was
granted or not. The clerk of the court, on 2
April 2008 responded to
Mr. Mlangeni's inquiry, and advised that judgment was granted on 8
November 2007. The magistrate accepted
that it may be so that the
current attorney may have only come to know during January 2009 of
the fact that judgment was granted
in November 2007. The magistrate
concluded that that does not negate that the offices of the State
Attorney was made aware of the
judgment on 2 April 2008. The
magistrate further accepted the fact that the State Attorney's
offices were in disarray as the result,
inter alia, of Mr. Mlangeni's
resignation. He further found that there was no explanation why Mr.
Mlangeni did not bring the application
for rescission within 20 days
as required by the rules. The magistrate further found that the
offices of the State Attorney "had
been at fault to which no
bona fide excuse could be or has been offered."
[8]
It needs mention that there was appearance on behalf of the
respondent during the hearing of the appeal, although an affidavit
opposing the application for rescission was filed. I have however not
lost sight of the respondent's opposing affidavit.
[9]
In casu, Rule 49 of the Magistrate's Court Act No 32 of 1944 requires
that an application for rescission should be brought within
20 days
upon becoming aware of the judgment. This Rule requires the applicant
to "show good cause" or satisfy the court
that there is
"good reason" to rescind. In the matter of Mutebwa v
Mutebwa
1
1
Jafta J (as he then was) referring to Rule 31(2)(b) stated that the
Rule requires that the applicant, upon whom the onus rests:
"(a)
...must give a reasonable and acceptable explanation for his/ her
default;
... must prove that the application
for rescission is bona fide and not made with the intention of
merely delaying plaintiff's
claim; and
...
must show that he/ she has a bona fide defence to the plaintiffs
claim." Vide Mnandi Property Development CC v Benmore
Development CC
2
.
[10]
Jafta J (as he then was) in the same matter (supra) also cited with
approval the matter of Sanderson Technitool v Intermenua
3
where Coetzee J referred to the matter of Grant v Plumbers (Pty) Ltd
4
where it was stated, inter alia, that: "An applicant, who claims
relief under this Rule, should comply with, inter alia, the
following
requirements. His application must be bona fide and not made with the
intention of merely delaying plaintiff's claim.
It is sufficient if
he makes out a prima facie defence in the sense of setting out
averments, which if established at the trial,
would entitle him to
the relief asked for. He need not deal fully with the merits of the
case or produce evidence that the probabilities
are actually in his
favour. See also Brown v Chapman
1938 TPD 320
at 325."
[11]
The question of condonation is a matter of the discretion of Court.
The court must have regard to all the circumstances and
the
explanation proffered for the default and the delay in taking
appropriate steps to comply with the Rules of the Court. The
applicant must put at least something which will sufficiently justify
the court in holding in the exercise of its discretion that
sufficient cause has been shown justifying the relief sought to be
granted. The court need not have regard to all the circumstances
if
it is of the view that there was gross negligence on the part of the
applicant. However, to find bona fides, it is not necessary
for an
applicant to satisfy the court that he has a good defence. It
suffices if he bona fide believes that he has a good defence
which
requires to be pursued in court; vide Evander Catereres (Pty) Ltd v
Potgieter
5
[12]
In the matter of Cavalinias v Claude Neon Lights S.A. Ltd
6
the Appeal Court said:
"
In Silber's case it was also decided that even if good cause is shown
it is still in the discretion of the magistrate to
grant or refuse
relief (p. 352).
As
this is a case involving fault of the litigant's attorney it is
necessary to consider the cases bearing on that. In Rose and
Another
v Alpha Secretaries Ltd
7
Tindal JA said:
It
seems to me undesirable to attempt to frame a comprehensive test as
to the effect of an attorney's negligence on his client's
prospects
of obtaining relief under sub-rule (2), or to lay down that a certain
degree of negiigence will debar the client and
another degree will
not. It is preferable to say that the court will consider all the
circumstances of the particular case in deciding
whether the
applicant has shown something which justifies the court in holding in
the exercise of its discretion that sufficient
cause for granting
relief has been shown."
[13]
Remissness on the part of the attorney, in certain circumstances will
not be condoned, vide Sallojee and Another NNO v Minister
of
Community Development
8
.
However, a weak explanation seen against a strong defence may be
accepted and condoned by the Court, vide Smith v Saambou Bank
Ltd
9
.
[14]
in exercising its discretion, the Court must not only look at the
explanation regarding the remissness, but also the degree
of
non-compliance, the strength of the applicant's case and its
prospects of success on trial, and balance the respective interest
of
the parties; vide National Union of Metalworkers of SA v Jumbo
Products CC
10
;
Beria v Raphaely-Weiner and Othern
11
;
Ferriera v Nthsingiia
12
;
Dariies v Sheriff, Magistrate's Court, Wynberg, And Another
13
.
[15]
In casu, the reason for the defendants in not having entered an
appearance to defend is attributable to firstly the fact that
Mlangeni who was handling the matter subsequently resigned from the
State Attorney's office. The resignation was during May 2008.
The
second reason is the disarray that prevailed at the offices of the
State Attorney during that period. Thirdly the attorney
who took over
that matter subsequent to Mlangeni's resignation only came to know of
the default judgment during January 2009.
[16]
In the matter of Rennie v Kamby Farm (Pty) Ltd
14
the Appeal Court said: "It has been pointed out (Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others
1985 (4) SA 773
(A) at 789C) that the Court is bound to make an
assessment of the petitioner's prospects of success as one of the
factors relevant
to the exercise of the Court's discretion unless the
cumulative effect of the other factors in the case is such as to
render the
application for condonation obviously unworthy of
consideration.." vide Mnandi Property Development CC v Benmore
at Development
15
.
[17]
In casu, the defence proffered on behalf of the appellant during the
application for condonation, was that the respondent was
on the
relevant day of the alleged assault physically assaulting and
verbally abusing his girlfriend. When the third defendant
attempted
to ascertain what the reason for the altercation was, the respondent,
for no apparent and justifiable reason punched
the 3rd defendant on
his face with his fist. He had to be subdued as he also resisted
arrested.
[18]
Indeed the police would be within the parameters of the law when they
have to use reasonable force to subdue a person resisting
lawful
arrest. It would seem, in my view, that the defendants had a bona
fide defence, which on trial might succeed, it however
does not
appear from the reasons of the magistrate in refusing the application
for condonation, that it was taken into consideration.
The stronger
the prospect of success of the defence, taken together with all other
factors, should be a strong influence to sway
the balance of the
scale in favour of the applicant.
[19]
Once the magistrate accepted that there was disarray on the offices
of the State Attorney as the result of Mr. Mlangeni's resignation,
the magistrate misdirected himself in holding that there was no good
explanation for not bringing the application much earlier.
Once the
magistrate accepted the explanation that, Mr. Mlangeni resigned and
still expects an explanation why Mlangeni did not
bring the
application earlier was, in my view, a misdirection. Whatever Mr.
Mlangeni did or did not do could only be gleaned from
the missing
file. This explanation that the file is missing is a good explanation
in my view.
[20]
The State Attorney per letter dated 8 January 2009 annexure SMD 6
paginated page 34 informed the respondent's attorney that
the file
has not as yet been traced and requesting whether any evidence had
been led and requesting copies of pleadings. The affidavit
relied
upon for the application was deposed to and commissioned on 30
January 2009. There is merit in the submission of Mr. Moosa
that once
the knowledge of the judgment came to the attention of the State
Attorney in January 2009; steps were immediately taken
to bring the
application within 20 days. The rest of the earlier period can be
ascribed to the fact that the file could not be
traced and Mr.
Mlangeni had resigned. In my view, in these circumstances, the
magistrate should have exercised his discretion in
favour of the
appellant.
[21]
Further, it was quite correctly submitted on behalf of the appellant
that the magistrate in awarding costs on attorney and
client scale in
the default judgment misdirected himself because that was not pleaded
in the respondent's case. Further, there
was no notice to the
appellant that such costs order would be sought against it. I am in
agreement with this submission
[22]
In the premises I am of the view that the appeal should be upheld.
Since there was no appearance on behalf of the respondent
to oppose
the appeal, I am of the view that the appellant should carry its own
costs.
[23]
In the result I propose that the following order should be made:
ORDER
1.
That the appeal is upheld and the order of the magistrate
In
the district Highveld Ridge held at Evander delivered on 7 May 2009
under case number 4048/2007 is set aside and substituted
with the
order set herein below under order 3.
2.
That each party shall bear its own costs of this appeal;
3.
"1. That condonation for the late filing of the application
for rescission is granted.
4.
That the default judgment granted against the defendants on 8 May
2007 is set aside;
5.
That the costs of this application, shall be costs in the cause."
N.W.
MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
R.
D. CLAASSEN
JUDGE
OF THE HIGH COURT
DATE
HEARD : 29 MARCH 2011.
JUDGMENT
DELIVERED : 1 APRIL 2011.
APPELLANT
ATT : STATE ATTORNEYS OFFICE PRETORIA
APPELLANT
ADV : MR. E.I MOOSA
RESPONDANT
ATT : D.D. MASANGO
RESPONDANT
ADV : NO APPEARNCE
1
1
2001
(2) SA 193
(Tk HC) at 197D-198A.
2
1999
(4) SA 462
(WLD)at465 A-B.
3
1980
(4) SA 573
(W) at 575H-576A
4
1949
(2) SA 470
(0) at 476.
5
1970
(3) SA 312
(TPD) at 316G-317A.
6
1965
(2) SA 649
at G-652 A.
7
1947
(4) SA511 (AD)atp.519
.
8
1965
(2) SA 135
(A) at 141C-H.
9
002
(6) SA 346
(SECLD) at 349B-E
.
10
[1996] ZASCA 87
;
1996
(4) SA 735
(AD) at 741F-G
11
[1997] ZASCA 59
;
1997
(4) SA 332
(SCA) at 337 D-E.
12
1990
(4) SA 271
(A) AT 281c-282A.
13
1998
(3) SA 34
(SCA) at 41 C-D.
14
1989
(2) SA 124
(A) at 131H.
15
(supra
465 A-l).