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[2010] ZASCA 88
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MEC for Safety and Security (Eastern Cape Province) v Mtokwana (339/09) [2010] ZASCA 88; 2010 (4) SA 628 (SCA) ; [2010] 4 All SA 583 (SCA) (31 May 2010)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case no: 339/09
MEC
FOR SAFETY AND SECURITY
Appellant
(EASTERN
CAPE PROVINCE)
and
TEMBA
MTOKWANA
Respondent
______________________________________________________________
Neutral
citation:
MEC
v Mtokwana
(339/09)
[2010] ZASCA 88
(31 May 2010)
CORAM:
Navsa,
Heher and Malan JJA
HEARD:
19
May 2010
DELIVERED:
31
May 2010
SUMMARY: Joinder
or substitution by way of notice of amendment not served on the
intended defendant ─ inappropriate procedure
─ high court
overlooking fundamental principle that an intended defendant or
respondent be informed of an action or any other
court proceedings
against him or her.
______________________________________________________________
ORDER
______________________________________________________________
On
appeal from:
Eastern
Cape High Court, Mthatha (Dawood AJ and Schoeman J sitting as court
of first instance).
1. The application for
leave to appeal is granted.
2. The cost order of the
court below in dismissing the application for leave to appeal is set
aside and the costs of the application
for leave to appeal in this
court and in the court below are costs in the appeal.
3. The appeal is upheld
with costs.
4. The order of the court
below is set aside in its entirety and substituted as follows:
‘
The appeal is
dismissed with costs.’
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA
JA
:
(Heher and Malan JJA concurring)
[1] The
application for leave to appeal in this matter was referred, by
direction of this court, for oral argument in terms of s
21(3)(c)(ii)
of the Supreme Court Act 59 of 1959. The parties were forewarned that
they should be prepared, if called upon, to
address the court on the
merits. We heard argument on the application for leave to appeal and
on the merits.
[2] As
will soon become apparent this matter has followed an unusual path on
its way to this court. The relevant facts appear hereafter.
Temba
Mtokwana, the respondent, instituted action against the appellant,
the Member of the Executive Council for Safety and Security
(the
MEC), Eastern Cape, in the Magistrates’ Court for the district
of Mthatha, seeking to hold the latter vicariously responsible
for
acts perpetrated by members of the South African Police Services (the
SAPS). In his particulars of claim he alleged that on
2 April 1998 at
or near the Mthatha Magistrates’ Court a member of the SAPS
unlawfully and intentionally or negligently set
a dog on him, causing
him to sustain injuries. He claimed damages in a total amount of R97
420.66.
[3] Summons
was issued by the respondent on 9 July 1998. In a special plea filed
in September 1998 the MEC denied that
he
was vicariously liable for the alleged wrongful conduct of members of
the SAPS, stating that the National Minister of Safety and
Security
was the correct person to cite in legal proceedings concerning
members of the SAPS. It was submitted that there had been
a
misjoinder of the MEC and a non-joinder of a necessary and interested
party.
[4] In
an apparent acceptance of that proposition an attempt was made to
remedy the situation by a legal representative acting on
behalf of
the respondent. The attorney representing the respondent followed a
strange procedure. First, an ‘amended summons’
was filed
in June 2004. The amended summons cited the National Minister of
Safety and Security (the Minister) as the defendant
and made no
reference to the MEC. The amended summons was served only on the
attorney acting for the MEC and then filed in court.
[5] Eight
months later, during February 2005 the respondent’s attorney
filed a notice, purportedly in terms of Rule 55A of
the Magistrates’
Court Rules
1
to amend the summons. The notice of amendment reads as follows:
‘
BE
PLEASED TO TAKE NOTICE THAT applicant intends to amend its Summons in
the following terms:-
By
substituting
the Name Member of Executive Council for Safety and Security by
Minister of Safety and Security of Republic of South Africa on
the
face of Summons and Particulars of claim.
In
the subsequent pleadings
Defendant
be regarded as Minister of Safety & Security of the Republic of
South Africa
.
Further
Take Notice that if no written objection has been filed within 10
days therefore the proposed amendment would be deemed
made.’
(My emphasis.)
[6] On 8
March 2005 the respondent’s legal representative once more
filed an amended summons in the same terms as the first.
The notice
of intention to amend and the second amended summons were served only
on the MEC’s attorney. It is uncertain whether,
even at this
point in time, the Minister has any knowledge that he had been
substituted as a party by way of a notice of amendment
and amended
summons, neither of which was served on him.
[7] It
is necessary to record that
a
formal notice of withdrawal of the action against the MEC was never
served on the latter and there was no tender of wasted costs.
[
8] The
attorney who at material times represented the MEC is an attorney in
private practice who appears to have acted in the state
attorney’s
stead, having been instructed to do so by the latter’s office
in Mthatha. His mandate appears to have been
for the specific purpose
of defending the action instituted by the respondent. There is no
indication to the contrary on the record.
[9] The
Magistrate had regard to the manner in which the Minister was ‘sued’
or ‘joined’ by the respondent.
He took into account that
there was nothing to show that the summons or the amended summons had
been served on the state attorney
representing the Minister. He
considered, probably in the light of the special plea and the
subsequent notice of intention to amend,
that the Minister was the
party legally liable and not the MEC. Consequently, he upheld the
special plea of non-joinder and dismissed
the respondent’s
claim with costs.
One
would have thought that that would have been the end of the matter.
It was not.
[10]
The
respondent appealed against the Magistrate’s decision to the
Mthatha High Court. The notice of appeal was served only
on the MEC’s
attorney and indicated the Minister as ‘the defendant’.
Importantly, para 7 of
the notice of appeal reads
as follows:
‘
The
learned Magistrate erred and misdirected herself in finding that the
MEC is not vicariously liable without evidence ever lead.
The
argument was confined on the non joinder of the Minister of Safety
and Security. There was no issue about MEC for Safety and
Security as
a result that there was no evidence ever adduced. It is submitted
that MEC for Safety and Security was held liable
with the wrongful
and unlawful acts by the MEC in the matter of
Manqalaza
v MEC for Safety and Security, Eastern Cape
[2001] 3 All SA 255
(Tk)
.’
2
I will say more about this
passage, later in the judgment.
[11] The
Mthatha High Court (Dawood AJ, Schoeman J concurring), held that the
Magistrate had erred. The appeal was upheld with costs
and the matter
was referred back to the Magistrate ‘for determination on the
merits in respect of the action against the
Minister’. It is
necessary to scrutinise the high court’s reasoning.
[
12] The
high court took into account that there had been no formal
application for joinder
3
and that the respondent had substituted the Minister as a party by
way of an amendment in terms of Rule 55A of the Magistrates’
Court Rules. The following parts of the high court’s judgment
bear repeating:
‘
[6] The
plaintiff utilised the provision of Rule 55A to seek a substitution
of the Minister as the defendant.
[7] The MEC
failed to utilise the provision of 55A (3) to object to the
amendment.
[8] Accordingly
in terms of Rule 55(4) the MEC is deemed to have consented to the
amendment.’
4
[
13] The
reasoning set out above is inherently flawed. It was the Minister who
was entitled to notice in any attempt to include or
substitute him as
a party. It is ironic that the high court held it against the MEC
that he had not objected to the amendment and
reasoned that the MEC
must therefore have consented to the amendment.
[14] The
respondent appears to have accepted that he wrongly sued the MEC. In
the words of his notice of intention to amend he intended
‘substituting’ the Minister for the MEC. He ought rightly
to have withdrawn his action against the MEC and thereafter
have
instituted action against the Minister, taking care to follow the
procedure for service prescribed by the Rules of Court.
That part of
the respondent’s notice of appeal quoted in para 10 above,
evidences some confusion in the respondent’s
thinking. Despite
having ‘substituted’ the defendants the respondent, in
his notice of appeal, appears to consider
that the MEC might still be
liable for the wrongful acts complained of by him. If the respondent
had intended to join the Minister
as a party the proper procedure
would have been to apply to join him as a party in terms of Rule 28
of the Magistrates’ Courts
Rules. In terms of the respondent’s
notice of amendment and the amended summons the MEC was no longer a
party to the
lis
.
In light thereof para 7 of the respondent’s notice of appeal
appears even more strange.
[15] An
apparently intractable problem for the respondent is that by the time
he resorted to the amendment (February 2005), by which
he sought to
substitute the Minister as a party, his alleged claim against the
Minister had already prescribed (the claim arose
in April 1998). It
will be recalled that he had been alerted to the Minister’s
potential liability by way of the special
plea filed in September
1998.
[16] In
coming to the conclusion that the Minister had properly been
substituted as a party by virtue of the amendment, the high
court
relied primarily on
Rosner
v Lydia Swanepoel Trust
1998 (2) SA 123
(W). In that case the trustees of a trust had applied
to amend a summons to substitute the trustees rather than the trust
as the
litigating party. The court in that case held that in essence
the amendment had corrected the misdescription of a party and that
the Magistrate had correctly allowed the amendment. In
Rosner
it was held that there could be not prejudice to the opposing party
as a result of the amendment and that prejudice was a critical
factor
in determining whether or not to allow an amendment. The
Rosner
case is a far cry from the facts of the present case.
[17
] Having
concluded that the amendment had the effect, not of joining the
Minister, but of substituting him as a defendant, the court
below
held that the MEC was no longer a party. It concluded that the MEC
was precluded from arguing that there had been no formal
withdrawal
against him, or that the Minister was not a party to proceedings or
that the action was correctly dismissed by the Magistrate.
[
18]
The appellant ostensibly accepted that he had wrongly sued the MEC
and intended an action against the Minister. Service on
the Minister
of any process to that effect was obligatory. That did not occur. If
what was intended was a joinder of the Minister
─ although all
the indications are to the contrary ─ there ought to have been
a proper and substantiated application
in terms of the rules of court
served on the Minister. Had there been a proper application for
joinder the Minister might very
well have provided numerous grounds
for resisting such an application. Not least of all would have been
the defence of prescription
which, having regard to the chronology
set out above, is startlingly obvious.
[19] The
court
below recognised that it was ‘[a] cornerstone of our legal
system that a person is entitled to notice of the institution
of
proceedings against him’. Dawood AJ accepted that in the
amended summons the Minister was cited ‘care of’
the
state attorney. The learned judge recorded that it was common cause
that service had not been effected on the Minister or the
state
attorney, but rather on the MEC’s attorney. She considered
that the failure to serve the summons on the Minister was
an
‘irregularity’ that could be condoned. In the view of the
court below the fact that the MEC had filed a second special
plea of
prescription was critical to an exercise of its discretion to condone
the irregularity. The plea of prescription had merely,
and correctly
I might add, stated that by the time the first amended summon had
been served, the respondent’s claim against
the Minister had
already prescribed. The MEC prayed that the claim be dismissed on
that basis. The court below reasoned that in
filing such a plea ‘on
behalf’ of the Minister the MEC’s attorney was acting as
the former’s agent. This,
the court reasoned, showed that he
was authorised to accept service on the Minister’s behalf.
[20] With
respect,
the
reasoning and conclusion of the court below, based on the plea of
prescription, represents a quantum leap. In addition, two
issues
appear to be confused. If there had been authority on the part of the
MEC’s attorney to accept service on behalf of
the Minister then
one is not concerned with condonation. Prior to the notice of
intention to amend, the respondent sought to hold
the MEC liable. The
latter was entitled to raise such defences as might be available,
including that the claim, for which another
party was liable, had
prescribed against that party. It does not follow that the raising of
such a plea means that the MEC was
acting as the Minister’s
agent. In addition, the court below erred in inferring the agency of
the attorney from his own acts.
See in this regard
Volkskas
Bank Bpk v Bonitas Medical Aid Fund
[1993] ZASCA 68
;
1993
(3) SA 779
(A) at 789I-J and the cases there cited.
[21] The
court below, whilst expressing the necessity for service on an
intended defendant or respondent, failed to have regard
to the facts
of this case, and to the bewildering steps taken by the respondent
and the bizarre manner in which litigation was
conducted. The
Minister, the party entitled to notice of the action against him, did
not have court process of any kind served
on him.
[22] Against
the background of intention to amend and the amended summons the
Magistrate was entitled to assume that the respondent
accepted that
he had sued the wrong party. For the reasons set out above, the
Magistrate was correct in his conclusion about the
wholly
inappropriate manner in which the respondent had sought to introduce
the Minister as a party. Consequently, the Magistrate
was right in
dismissing the respondent’s claim. The high court was wrong in
overturning that decision.
[23] Before
us there was no appearance for the respondent, costs probably being
the inhibiting factor. Heads of argument on his
behalf had, however,
been filed.
[24] There
is a remaining aspect that requires attention. The court below
excluded the MEC as a party to the
lis
and
substituted the Minister. Initially we were concerned about whether
the MEC had standing in the present proceedings. I am, however,
not
persuaded that those concerns and the foundation on which they were
based are sound.
[25] First,
the MEC was deprived of the substantive success and the cost order in
his favour obtained in the magistrates’
court. The respondent
could not merely by changing the heading on the documents that
required to be filed in prosecuting the appeal,
change the fact that
the MEC was a party to the proceedings and had a very real interest
in the outcome of the appeal. Second,
the respondent’s notice
of appeal itself suggested, albeit confusingly, that he did not
exclude liability on the part of
the MEC should the matter proceed to
be heard on the merits. Third, as I have shown above the substitution
of the Minister was
a nullity. The MEC remained a party to the
proceedings entitled to the order in his favour with costs. Fourth,
the court below
held that the MEC’s attorney could rightly be
regarded as being authorised to be served with court process in the
state attorney’s
stead. This is an issue of considerable
importance to the MEC for the future. He has a real and substantial
interest in whether
that view should prevail. Fifth, the court below
pronounced, incorrectly, as has been shown, on fundamental questions
of notice
to intended defendants, and in the present case with
particular reference to the state attorney and the MEC. The latter
has a very
real interest that the decision does not remain extant as
a precedent in the Province in which he holds office.
[26] For
all the reasons set out above, the following order is made:
1. The
application for leave to appeal is granted.
2. The cost order of the
court below in dismissing the application for leave to appeal is set
aside and the costs of the application
for leave to appeal in this
court and in the court below are costs in the appeal.
3. The appeal is upheld
with costs.
4. The order of the court
below is set aside in its entirety and substituted as follows:
‘
The appeal is
dismissed with costs.’
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: M Tshiki
Instructed
by
Tshiki
& Sons Incorporated Mthatha
Mthembu
& Van Vuuren Bloemfontein
For
Respondent: -
Instructed
by
Messrs
Caps Pangwa and Associates Mthatha
1
Rule 55A(1) of the Rules provides:
‘
Any
party desiring to amend a pleading or document other than an
affidavit, filed in connection with any proceedings, shall notify
all other parties of his intention to amend and shall furnish the
particulars of the amendment.’
2
In
Manqalaza
it was common cause that the policemen involved were employed by the
MEC for Safety and Security, Eastern Cape and that they
had acted
within the course and scope of their employment when effecting the
arrest in question there.
Section 2
of the
State Liability Act 20 of
1957
provides:
‘
(1) In
any action or other proceedings instituted by virtue of the
provisions of section
one
,
the Minister of the department concerned may be cited as nominal
defendant or respondent.
(2) For
the purposes of subsection (1), “Minister” shall, where
appropriate, be interpreted as referring to a member
of the
Executive Council of a province.’
In
the present case it was never suggested that the MEC had been sued
on the basis of
s 2(2)
of the
State Liability Act nor had
it
been contended that the police in question were in the employ of the
MEC.
3
Rule 28(1) of the Magistrates’ Courts’ Rules provides
that the court may on application by a person desiring to intervene
in any proceedings and having an interest therein, grant such person
leave to intervene on such terms as may be just. Rule 28(2)
provides
that the court may, on application by any party to any proceedings,
order that another person shall be added either
as a plaintiff or
applicant or as a defendant or a respondent on such terms that may
be just. Such application must be on notice
and the person to be
added must receive proper notice of the application. See Harms
Civil
Procedure in Magistrates’ Courts
at 3.13 and the authorities cited.
4
The learned judge had Rule 55A(5) in mind, which reads as follows:
‘
If
no objection is delivered as contemplated in subrule (4), every
party who received the notice of the proposed amendment shall
be
deemed to have consented to the amendment and the party who gave
notice of the proposed amendment may, within 10 days after
the
expiration of the period mentioned in subrule (2), effect the
amendment as contemplated in subrule (7).’