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[2023] ZAFSHC 372
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Minister of Police and Another v Mokoena - Appeal (A60/2023) [2023] ZAFSHC 372 (9 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
Reportable
Case
no.: FS/BHM/RC/60/2021
High
Court Appeal no.: A60/2023
In
the matter between:
THE
MINISTER OF POLICE
First
Appellant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Second
Appellant
and
TEBOHO
CONSOLATION MOKOENA
Respondent
CORAM:
Loubser, J
et
Opperman, J
HEARD
ON:
2 October 2023
DELIVERED
ON:
9 October 2023. This judgment was handed
down in court and electronically by circulation to the parties’
legal
representatives
via
email and released to SAFLII on 9
October 2023. The date and time of hand-down is deemed to be 15h00 on
9 October 2023
JUDGMENT
BY:
Opperman, J
SUMMARY:
Late filing of application for rescission –
substantive
application for condonation in the regional court
JUDGMENT
[1]
Compliance
with the Rules of Court is vital in all litigation. This is more
conspicuous in the lower courts that are so - called
“creatures
of statute”. The case that lies before this court on appeal was
tainted with a tendency by the appellants
to disregard the rules of
process. It caused, among others, an order
[1]
that was granted by default against them in the regional court.
[2]
On 5 April 2022 the appellants served an application
for rescission
of the default judgment on the respondent. The application was mainly
attacked by the respondent due to its lateness
and that the
affidavits used to promote the case for the appellants, were not
proper in law.
[3]
On
2 March 2023 the application was brought before the court below and
without a substantive application for the lateness of the
application; the court admitted the matter onto the roll. On the main
application, as can be gleaned from the transcribed record,
[2]
the magistrate ordered as follows:
The
main application, therefore, it is difficult to deal with it without
going into the details of the application for rescission
but based on
the submissions that had been brought before me, it is DISMISSED.
[4]
In his written reasons for the judgment dated 23 March
2023, there
was no order on the main application. The magistrate made the
following order:
[8]
The following order is made:
The
first, second and forth in lime (sic) are dismissed.
The
third point in limine is upheld.
[5]
It
seems that the application for rescission was dismissed based on the
third point
in
limine
that
was upheld. The third point
in
limine
is
described by the court
a
quo
to
be that: “The documents purporting to be the founding affidavit
and confirmatory affidavits were attacked. The basis was
that they
were not properly commissioned.”
[3]
[6]
Reading of the record however shows that the beginning
and the end;
the core of this appeal, lies in the first point
in limine
that was taken by the respondent
a quo.
This issue now also
became the first ground of appeal in the cross appeal by the
respondent; it is the lateness of the application
for rescission, the
lack of a substantive application for condonation and the alleged
illegal admission of the matter onto the
roll
a quo
. The
matter should not have been on the roll and the rest of the case
could not have been, lawfully so, adjudicated.
[7]
I pause for a moment to depict more of the background
of the case.
1.
The respondent instituted action against the
appellants for damages
in the amount of R400 000.00 based on unlawful arrest, detention and
on malicious prosecution.
2.
The respondent was charged with the rape of
a minor child, aged 14
years at the time of the alleged incident.
3.
The appellants did serve their notice of intention
to defend the main
action. A notice of bar subsequently followed. The appellants’
plea was due on 21 September 2021. The
respondents hereafter informed
the appellants that no plea has been received and that an application
for default judgment will
follow.
4.
The notice of set down for the application
for default was served on
1 December 2021. On 9 December 2021 default judgment was granted
against the appellants.
5.
Apparently, the appellants did not receive
the requisite knowledge
that the respondent intended to proceed to seek default judgment.
There was an alleged agreement between
the parties that the bar would
be uplifted in exchange for consent to condone the non-compliance
with Act 40 of 2002.
6.
The appellants only became aware of the default
judgment on 5 March
2022 when the attorney acting on behalf of the appellants received
the email with the attached order and warrant
of execution.
7.
The default judgment order was only served
on the offices of the
first appellant and not the attorneys for the appellants nor the
second appellant. Counsel for the respondent
could not explain their
questionable conduct on this issue when they addressed us during the
appeal. Notwithstanding, they obtained
a warrant of execution.
8.
The appellant went on to endeavour, by way
of their application for
rescission on sworn affidavit, to show good and sufficient
cause as to why the default judgment
should be set aside and explain
the reasons for the default.
9.
The respondent denied the allegations made
by the appellants in their
recission application and based their opposition of the application
by denying good cause and raising
four points
in limine
:
1.
Failure to request an extension of time as
provided for in rule
60(5)(a) of the Magistrates’ Court Rules;
2.
lack of
locus standi
on behalf of the second applicant
(appellant);
3.
the founding affidavit and the confirmatory
affidavits failed to meet
the requirements of an affidavit therefore, the rescission
application is not supported by an affidavit
and the application
stood to be dismissed; and
4.
the appellants had not disclosed a
bona fide
defence,
essentially that no good cause has been shown by the appellants to
justify the rescission of the default judgment.
5.
In addition, the respondent contended that
no case had been made out
for reliance on section 36 of the Magistrates' Court Act for the
rescission of the judgment.
10.
The appellants filed a replying affidavit dealing, in particular
with
the points
in limine.
11.
Only the points
in limine
were argued on 2 March 2023 and a
determination on the matter was made without the merits having been
argued.
12.
The ground for appeal by the appellants is now that the magistrate
erred in upholding the third point
in limine
that the founding
and confirmatory affidavits fail to meet the requirements of an
affidavit. The Magistrate, according to the appellants,
misapplied
the principle articulated and applied in
Absa Bank Limited v Botha
NO and Others
2013 (5) SA 563
(GNP) and made erroneous statements
and inferences.
13.
The cross appeal is that the court below erred in dismissing
the
first, second and fourth points
in limine
as contained in the
respondent’s opposing affidavit and they take the matter
further to now demand that the order as to costs
on a party and party
scale, had to include costs of counsel in terms of rule 33(8) of the
Magistrates’ Court Rules including
the costs accompanied with
the preparation and drafting of the heads of argument that was
submitted during the hearing.
[8]
It
is accepted as proven and trite that the order granted in default
came to the knowledge of the legal representative of the appellants
on 5 March 2022. They then proceeded to serve,
via
email,
[4]
a notice of motion in application for the rescission of the default
judgment on the legal representative of the respondent. This
was on 5
April 2022;
21
days
after
they learned of the existence of the default judgment.
[9]
A confirmatory affidavit by one W Sangweni attached to
the
application was not signed nor commissioned. An attempt was made to
rectify the mistake when the same affidavit signed and
commissioned
on 11 April 2022, was send to the respondent’s attorney.
[10]
Essential is that it is not known to this court when the application
for rescission
was served and filed on the regional court itself; if
ever. The notice of motion that is at pages 51 to 53 of the Appeal
Bundle
before this court, does not show any official stamp or
indication that it was indeed filed and served on the Clerk of the
Court:
Bethlehem.
[11]
Rule 49 of the Rules Regulating the Conduct of the Proceedings of the
Magistrates'
Courts of South Africa that was promulgated in 2018,
dictates that:
49
Rescission and variation of judgments
(1)
A party to
proceedings in which a default judgment has been given, or any person
affected by such judgment,
may within 20 days after obtaining
knowledge
of the judgment
serve and file an application to
court, on notice to all parties to the proceedings,
for a
rescission or variation of the judgment and the court may, upon good
cause shown, or if it is satisfied that there is good
reason to do
so, rescind or vary the default judgment on such terms as it deems
fit: Provided that the 20 days' period shall not
be applicable to a
request for rescission or variation of judgment brought in terms of
subrule (5) or (5A). (Accentuation added)
(2)
It will be presumed
that the applicant had knowledge of the default judgment
10 days
after the date on which it was granted, unless the applicant proves
otherwise.
(3)
Where an application
for rescission of a default judgment is made by a defendant
against
whom the judgment was granted, who wishes to defend the proceedings,
the application must be supported by an affidavit
setting out the
reasons for the defendant's absence or default and the grounds of the
defendant's defence to the claim.
(4)
Where an application
for rescission of a default judgment is made by a defendant
against
whom the judgment was granted, who does not wish to defend the
proceedings, the applicant must satisfy the court that he
or she was
not in willful default and that the judgment was satisfied, or
arrangements were made to satisfy the judgment, within
a reasonable
time after it came to his or her knowledge.
(5)
(a)
Where a plaintiff in whose favor a default judgment was granted has
consented
in writing that the judgment be rescinded or varied, either
the plaintiff or the defendant against whom the judgment was granted,
or any other person affected by such judgment, may, by notice to all
parties to the proceedings, apply to the court for the rescission
or
variation of the default judgment, which application shall be
accompanied by written proof of the plaintiff's consent to the
rescission or variation.
(b)
An application referred to in paragraph
(a)
may
be made at any time after the plaintiff has consented in writing to
the rescission or variation of the judgment.
(5A)
(a)
Where a judgment debt, the interest thereon at the rate granted in
the judgment
and the costs have been paid in full, a court may, on
application by the judgment debtor or any other person affected by
the judgment,
rescind that judgment.
(b)
The application contemplated in paragraph
(a)
—
(i) must
be made on a form corresponding substantially with
Form
5C
of
Annexure 1;
(ii) must
be accompanied by an affidavit with annexures providing reasonable
proof that the judgment debt, the
interest and the costs have been
paid; and
(iii) must
be served on the judgment creditor not less than 10 days prior to the
hearing of the application.
(6)
Where an application
for rescission or variation of a default judgment is made
by any
person other than an applicant referred to in subrule (3), (4) or
(5), the application must be supported by an affidavit
setting out
the reasons why the applicant seeks rescission or variation of the
judgment.
(7)
All applications for
rescission or variation of judgment other than a default
judgment
must be brought on notice to all parties, supported by an affidavit
setting out the grounds on which the applicant seeks
the rescission
or variation, and the court may rescind or vary such judgment if it
is satisfied that there is good reason to do
so.
(8)
Where the rescission
or variation of a judgment is sought on the ground that
it is void
from the beginning, or was obtained by fraud or mistake, the
application must be served and filed within one year after
the
applicant first had knowledge of such voidness, fraud or mistake.
(9)
A magistrate who of
his or her own accord corrects errors in a judgment in
terms of
section 36(1)
(c)
of the Act shall, in writing, advise the
parties of the correction.
[Rule
49 substituted by GN R632 of 22 June 2018 with effect from 1 August
2018.]
[12]
Section 36(1) of the Magistrate’s Court Act 32 of 1944 empowers
the court:
(a)
to rescind or vary any judgment granted by
it in the absence of the person against whom
that judgment was
granted;
(b)
to rescind or vary any judgment granted by it
which was void from the beginning (
ab origine
), or which was
obtained by fraud or by mistake common to the parties;
(c)
to correct patent errors in any judgment in
respect of which no appeal is pending; and
(d)
to rescind or vary any judgment in respect of
which no appeal lies. If a plaintiff in whose favor
a default
judgment has been granted has consented in writing that the judgment
be rescinded or varied, a court must rescind or
vary such judgment on
application by any person affected by it.
[13]
It is peremptory to:
1.
Apply for rescission within 20 days after the
default judgment came to the relevant parties’ knowledge.
2.
Until an extension of time has been granted (under
rule 60(5)(a)) the court may not entertain a late application
for rescission.
3.
The computation of the time is in terms of rule
2(2): “A Saturday, Sunday or public holiday shall not, unless
the contrary
appears, be reckoned as part of any period calculated in
terms of these rules.”
4.
The application must be served and filed
to
the court
; not just served
via
email on the respondent; served and filed at the
court with notice to all parties to the proceedings within 20 days of
knowledge.
The subrule now explicitly provides that the applicant
must “serve and file” his application within the
prescribed
period. It does not mean that the application must come
before the court during the period.
[14]
Rule 60(5)(a), that is also peremptory, states that:
Any
time limit prescribed by these rules, except the period prescribed
in
rule
51(3)
and
(6)
,
may at any time, whether before or after the expiry of the period
limited, be extended —
(i)
by the written consent of the opposite party; and
(ii)
if such consent is refused,
then by the court on application
and on such terms as to costs and otherwise as it may deem fit.
(Accentuation added)
[15]
Jones and Buckle with reference to case law
[5]
had the following to say about the application:
1.
If a litigant is out of time and his opponent
refuses to grant him an
extension in writing, he must make a substantive application to court
for an extension.
2.
Without such substantive application before
it, the court is debarred
from entertaining any application for rescission or reopening which
is out of time.
3.
A litigant who asks for an indulgence should
also act with reasonable
promptitude, be scrupulously accurate in his statement to the court,
and other neglectful acts in the
history of the case are relevant to
show his attitude and motives.
[16]
Rule 55(4)(a)(i) provides that interlocutory and other applications
incidental to pending proceedings
must be brought on notice
corresponding substantially with Form 1C of Annexure 1, indicating a
date assigned by a registrar or
clerk of the court or as directed by
a magistrate before whom the matter is to be heard. The notice must
be supported by affidavits
if facts need to be placed before the
court. Copies of the notice and all annexures thereto must be served
upon every party to
whom notice is to be given.
[17]
The appellant denied being out of time and dismissed any
non-compliance with the rules on the issue.
It is a trite fact that
they sent the notice of motion for the rescission application on the
21
st
day after they obtained knowledge of the default
judgment
via
email to the respondent. If, for a moment, it is
accepted that they are right, and they were not late; they did not
serve and file
with the court. The appellants are then still in the
wrong and continued their defiance of the rules of court. To add
insult to
injury, one of the affidavits attached to the application
was not signed and commissioned.
[18]
The appellants were late when they served their application on the
respondent; they did not file an
application in terms of rule 60(5).
The court
a quo
, as bound by the rules promulgated in terms of
statute, did not have a discretion to allow the matter onto the roll
without a substantive
application; it is debarred from doing so. The
impression of the court
a quo
where he deemed himself to have
complied with the rules by noting that: “As indicated, both
parties were given an opportunity
to address the Court and they did
so at length.”, is patently wrong and not in accordance with
the law. This was not an application
in terms of the law.
[19]
The application for rescission was unlawfully allowed onto the roll
of the court and unlawfully adjudicated
upon. The obvious consequence
that must be regarded is the effect of this error on the adjudication
of the other points
in limine
. Whether the founding and
confirmatory affidavits were legally competent or not becomes
irrelevant and the issues were illegally
adjudicated. The costs order
that serves on cross appeal, also so. These orders must however, for
the sake of legal certainty,
be set aside.
[20]
The result is that all the orders of the court
a quo
must be
set aside. Costs must follow the cause. The respondent was successful
on the unlawful admission of the application onto
the roll.
[21]
ORDER
1.
The appeal succeeds with costs on the basis
that the court
a quo
failed to apply rule 49(1) read with rule 60(5)(a)(ii) of the
Magistrates’ Court Rules as promulgated in terms of the
Magistrate’s Court Act 32 of 1944 and that
the application for rescission was unlawfully allowed onto the roll
and subsequently
entertained and adjudicated.
2.
The orders of the court
a quo
that the main application is
dismissed, that the first, second and fourth points
in limine
are dismissed and the third point
in limine
is upheld; are set
aside.
3.
The third ground of appeal within the cross
appeal on the issue of
costs is dismissed.
M
OPPERMAN, J
I
concur
P
LOUBSER, J
APPEARANCES:
Appellants:
I
MACAKATI
Instructed
by:
State
Attorneys, Bloemfontein
Respondent:
LA
VISSER
Instructed
by:
Loubser
Van Wyk Inc
Lynnwood
Pretoria
c/o
Jacobs Fourie Inc.
Bloemfontein
[1]
At
page 50 of the record.
“
IT
IS ORDERED THAT
The
request for judgment by default against the Defendant is granted as
follows:
1.
Payment of the Capital amount claimed in respect
of claim A in the sum of R 250 00.00.
2.
Payment of the Capital amount claimed in respect
of claim B in the sum of R150 000.00.
3.
Costs on an attorney and client basis to be
taxed.
4.
Interest on the amounts claimed at the rate of 7%
per annum from 23 March 2021 until date of final payment.”
[2]
Page 38/234 at lines 18 to 21.
[3]
Page 5/172 at [6].
[4]
At page 93 of the record.
[5]
The
Civil Practice of the Magistrates' Courts in South Africa
(Volume
I and II), 55 Applications, RS 28, 2021 Rule-p55-1 to RS 33, 2023
Rule-p55-38, Juta,
Jutastat.juta.co.za/nxt/gateway.dll?f=templates&fn=default.htm&vid=Publish:10.1048/Enu
on 5 October 2023. (In Volume II the cut-off date for reported cases
is 30 April 2023. This service includes the amendments to
the rules
under GN R3371 of 5 May 2023 with effect from 9 June 2023 and GN
R3399 of 12 May 2023 with effect from 19 June 2023.).