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[2023] ZAECMHC 20
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Minister of Police v Lulwane (429/2020) [2023] ZAECMHC 20 (9 May 2023)
FLYNOTES:
CIVIL PROCEDURE – Default judgment – Rescission –
Award of damages for unlawful arrest and detention
–
Minister contending that evidence or expert reports on quantum had
been lacking – Plaintiff having given evidence
–
Notice of set down had been served on State Attorney – Poor
explanation provided for inaction – No satisfactory
explanation for failure to attend court – Rescission not
sustainable under common law or Uniform Rule 42(1) –
Application dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
REPORTABLE
Case
No: 429/2020
In
the matter between:
MINISTER
OF POLICE
APPLICANT
and
MNYAMEZELI
JOHN LULWANE
RESPONDENT
JUDGMENT
Notyesi
AJ
Introduction
[1]
Approximately twenty months ago, calculating from 17 September 2021,
Justice Khampepe, writing
a majority judgment on behalf of Justices
of the Constitutional Court, remarked—
‘
Like all things in
life, like the best times and the worst of times, litigation must, at
some point, come to an end . . ..’
[1]
[2]
In these
proceedings, the Minister of Police is asking this Court to rescind
an order and judgment which was granted in favour of
Mr Mnyamezeli
Lulwana, on 27 January 2022, awarding him damages in the amount
of R450 000. That was a sequel to his arrest
and detention which
had spanned from 8 to 19 February 2019. The Minister is relying upon
the provisions of Uniform rule 42
[2]
and alternatively, the common law. The Minister is contending that
the order of 27 January 2022 was erroneously sought and erroneously
granted in favour of Mr Lulwana. In the alternative, the Minister
contends that the rescission application should succeed under
common
law for the reason that there is a good cause to do so.
[3]
Mr Lulwana submitted otherwise. In his counter submissions, Mr
Lulwana contended that the
order of 27 January 2022, was properly
granted and that it was not erroneously sought and erroneously
granted. He further contended
that there is no good cause shown for
the rescission of the order and that the application for rescission
is launched solely to
delay the execution of the judgment.
The
parties
[4]
For the sake of convenience, the parties shall be referred to as
simply the ‘Minister’
and ‘Mr Lulwana’. The
Minister is the defendant in the main action and Mr Lulwana is
the plaintiff.
Issues
[5]
The questions to be decided are whether—
(a)
the Minister has made out a case under Uniform rule 42(1); or
(b)
the common law; and
(c)
the costs of the application.
Background
[6]
The litigation history between the parties is troubling. On 8
February 2019, Mr Lulwana
was arrested and detained by the
members of the South African Police Service. He was arrested on
allegations that he had committed
an offence of kidnapping. He was
detained at Ngqeleni Police Station. He remained in custody until
released on bail on 19 February
2019. The charges were subsequently
withdrawn against Mr Lulwana on 25 September 2020.
[7]
On 5 February 2020, Mr Lulwana caused summons to be issued against
the Minister for unlawful
arrest and detention. The summons was
served upon the Minister on 28 July 2020. An appearance to defend was
entered on behalf of
the Minister by the State Attorney on 5 August
2020. No plea was filed thereafter, prompting Mr Lulwana’s
legal representatives
to file a notice of bar. There was no response
to the notice of bar. An application for default judgment was brought
against the
Minister. On 6 October 2020, the parties agreed to uplift
the bar and extend the time period within which the Minister must
file
the plea. The agreement was made an order of court. A plea was
filed.
[8]
Following the filing of the plea, pleadings were closed. There was no
replication. Mr Lulwana’s
attorneys issued discovery notices
under Uniform rule 35. The notices were served upon the State
Attorney who acted on behalf of
the Minister. There was
non-compliance with the discovery notices. An application to compel
was launched on behalf of Mr Lulwana.
On 9 February 2021, an order to
compel discovery under rule 35 was granted against the Minister.
[9]
The Minister failed to comply with the order of 9 February 2021. Mr
Lulwana’s legal
representatives launched an application to
strike the defence of the Minister. On 11 May 2021, an order was
granted striking out
the defence of the Minister. On 18 November
2021, the legal representatives of Mr Lulwana, applied for the
allocation of a
date for hearing of default judgment and the matter
was allocated for hearing on 26 January 2022. The notice of
application for
allocation of a date of the default judgment was
served upon the office of the State Attorney.
[10]
The notice of set down for the hearing of the default judgment was
also served upon the offices of the State
Attorney on 18 November
2021. The notices bear the receiving stamp of the State Attorney. The
matter was rolled over on 26 January
2022 for hearing on 27 January
2022.
[11]
On 27 January 2022, Mr Lulwana attended court and a default judgment
was applied for both merits and
quantum
. The evidence of Mr
Lulwana was led at the hearing of the default judgment and whereafter
submissions were made to court. After
hearing evidence, the Presiding
Judge granted an order in the following terms—
(a)
The defendant is liable for damages suffered by the plaintiff
resulting from his unlawful arrest
and detention from 08 –
19 February 2019 at Ngqeleni Police Station.
(b)
The defendant shall pay to the plaintiff, within thirty (30) days
from the date of this judgment an
amount of R450 000-00 (four
hundred and fifty thousand) for damages suffered by the plaintiff
resulting from his unlawful
arrest from 08-19 February 2019. (c)
These damages award shall attract interest at the prescribed legal
rate calculated from the
date of this judgment to date of payment.
(d) The defendant shall pay the costs of this default judgment.
[12]
Demands for payment of the judgment debt yielded naught and that
prompted Mr Lulwana’s legal representatives
to obtain a writ of
execution. On 18 October 2022, the writ was served upon the State
Attorney.
[13]
On being alerted about the writ, the State Attorney prepared the
present rescission application of the judgment.
The papers, according
to the notice of motion, were prepared by the State Attorney on 18
October 2022 and served upon Mr Lulwana’s
attorneys on 20
October 2022.
[14]
In response, Mr Lulwana’s attorneys served and filed their
notice to oppose on 27 October 2022. Mr
Lulwana’s answering
affidavit was served and filed on 18 November 2022.
[15]
Realising that the Minister was not filing a replying affidavit, on
23 January 2023, Mr Lulwana’s attorneys
applied for the date of
hearing of the rescission application. On 8 March 2023, the matter
was allocated a date for hearing on
26 April 2023.
[16]
On 9 March 2023, the Minister’s legal representatives served
and filed their replying affidavit. There
was no condonation
application. Again, on 25 April 2023, the Minister’s legal
representatives filed the Minister’s
heads of argument and
practice directives. The heads of argument were accompanied by an
application for condonation.
The
Minister’s contentions
[17]
In the founding papers and oral submissions, the Minister contended
that the application is brought in terms
of Uniform rule 42(1)
(a)
and
(b)
and in the alternative, the application is founded on
common law. According to the Minister, the order of 27 January
2022
was erroneously sought and erroneously granted on the basis that
there was no evidence placed before the Presiding Judge when she
issued the order. This is set out in the founding affidavit as
follows:
‘
The pleadings of
the respondent have no evidence and/or expert reports in relation to
the quantum and it would be in the interest
of fairness and justice
for a balance account or presentation by both parties in relation to
quantum to be presented which will
no doubt be of assistance to the
court.’
[3]
[18]
The Minister has no qualms with the order of 11 May 2021. The
Minister accepts that the defence was properly
struck out. The
Minister does concede that he has no defence on the merits and that
the arrest and detention of Mr Lulwana was
unlawful. The Minister is
challenging the order of 27 January 2022. In this regard, it is
contended in the founding papers and
oral submissions, that the order
was erroneously sought and erroneously granted. The submission is
predicated on the grounds that
the Presiding Judge failed to consider
the lack of evidence to substantiate the claim of damages. In other
words, the Minister
contended that there was no evidence placed
before the Presiding Judge and therefore, the order should be
rescinded.
[19]
In advancing the alternative relief under common law, the Minister
submitted that there is an explanation
for the inaction of the
Minister until the date of the grant of the judgment on 27 January
2022.
[20]
According to the Minister’s attorneys, the docket relevant to
the arrest of Mr Lulwana was missing.
It was only found on 28
March 2021. The deponent to the founding affidavit of the Minister,
Ms Zandile Ndukwana, perused the docket
and could not find the
details of Mr Lulwana. She returned the docket to the police for
further information. Subsequent thereafter,
she could not attend the
matter due to the extreme workload and excessive claims handled by
the office of the State Attorney. She
then took leave and only
returned to work in January 2022.
[21]
She returned from leave and uplifted the court file on 5 May 2022.
She instructed counsel to provide a legal
opinion in the matter. The
counsel advised that there should be consultation before the opinion
can be given. The members of the
police were not available for
consultation. The consultation only took place on 11 October
2022.
[22]
Subsequent to consultation, the counsel advised that the defence in
the main regarding the arrest and detention,
would fail for the
reasons that the investigating officer did not obtain a warrant of
arrest. The arrest and detention of the plaintiff
was accordingly
conceded to be unlawful. It was on that basis that the order striking
the defence was not contested.
Mr
Lulwana’s contentions
[23]
On behalf of Mr Lulwana, it was contended that the application
brought by the Minister does not meet the
requirements set out in
Uniform rule 42 and that the Minister failed to show good cause for
the judgment to be rescinded under
common law. The contention, on
behalf of Mr Lulwana in this regard, was that the Minister has not
given a good explanation for
the failure to oppose the application
for default judgment. According to Mr Lulwana, the application for
default judgment was properly
served and that evidence was led at the
hearing of the application. The Presiding Judge satisfied herself
with the case that was
presented. She gave an
ex tempore
judgment after hearing evidence and submissions on behalf of Mr
Lulwana. Therefore, it is incorrect to insinuate that the judgment
was erroneously sought and erroneously granted.
The
Minister’s rescission in terms of Uniform rule 42(1)
[24]
Uniform rule 42(1) provides:
‘
(1)
The court may, in addition to any other powers it may have,
mero
motu
or upon the application of any party affected, rescind or
vary:
(a)
an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
an order or judgment in which there is ambiguity, or a patent error
or omission, but only to the extent
of such ambiguity, error or
omission;
(c)
an order or judgment granted as the result of a mistake common to the
parties.’
[25]
Rule
42(1)
(a)
empowers the court to rescind an order erroneously sought or
erroneously granted in the absence of the party seeking rescission
provided that such party is affected by such order or judgment. The
prerequisite factors for granting rescission under this rule
are the
following: (a) the judgment must have been erroneously sought or
erroneously granted; (b) such judgment must have been
granted in the
absence of the applicant; and (c) the applicant’s rights or
interest must be affected by the judgment. Once
those three
requirements are established, the applicant would ordinarily be
entitled to succeed,
cadit
quaestio
.
He is not required to show good cause in addition thereto.
[4]
The Constitutional Court has affirmed these principles. The
Constitutional Court confirmed that Uniform rule 42 is an empowering
provision for the court to rescind the judgment.
[26]
In
Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public
Sector
Including Organs of State and Others
, the Constitutional
Court said—
‘
It should be
pointed out that once an applicant has met the requirements for
rescission, a court is merely endowed with a discretion
to rescind
its order. The precise wording of rule 42, after all, postulates that
a court “may”, not “must”,
rescind or vary
its order – the rule is merely an “empowering section and
does not compel the court” to set aside
or rescind anything.
This discretion must be exercised judicially.’
[5]
[27]
The
discretion conferred under rule 42 is a narrow one. In
Mutebwa
v Mutebwa and Another
,
[6]
the court held—
‘
Although
the language used in Rule 42(1) indicates that the Court has a
discretion to grant relief, such discretion is narrowly
circumscribed. The use of the word “may” in the opening
paragraph of the Rule turns to indicate circumstances under
which the
Court will consider a rescission or variation of the judgment,
namely, that it may act mero motu or upon application
by an affected
party. It seems to me that the Rulemaker could not have intended to
confer upon the Court a power to refuse rescission
in spite of it
being clearly established that the judgment was erroneously granted.
The Rule should, therefore, be construed to
mean that once it is
established that the judgment was erroneously granted in the absence
of a party affected thereby, a rescission
of the judgment should be
granted. In
Tshabalala and Another v Peer
1979 (4) SA 27
(T),
Eloff J adopted this interpretation and said at 30D:
“
The Rule
accordingly means – so it was contended – that, if the
Court holds that an order or judgment was erroneously
granted in the
absence of any party affected thereby, it should without further
enquiry rescind or vary the order. I agree that
it is so, and I think
that strength is lent to this view if one considers the Afrikaans
test which simply says that: “Die
Hof het benewens ander magte
wat hy mag he, die reg om . . .”
See
also
Bakoven Ltd v G J Howes (Pty) Ltd
.’
Was
the order granted in the Minister’s absence?
[28]
The notice of set down for the default judgment was served upon the
Minister’s attorneys on 18 November
2021. The acknowledgement
of receipt stamp bears confirmation of receipt of the notice of set
down. In the founding papers, there
is no complaint that there was no
service of the papers prior to the hearing of the application for
default judgment. In these
circumstances, the Minister was aware that
the default judgment is set down and that an application would be
sought and, if the
court is satisfied, granted. I may add that the
Minister’s legal representatives were also served with the
application for
the allocation of a date of hearing. Uniform rule
42
(a)
exists to protect litigants whose presence was precluded
or in instances where notice of proceedings to a party is required
and
judgment is granted against such party in his absence without
notice of the proceedings having been given to him, such judgment
is
granted erroneously.
[29]
In these proceedings, the Minister is not contending that he was not
aware of the proceedings of 27 January
2022 when the judgment was
granted and therefore, it cannot be contended that the judgment was
sought erroneously in his absence.
Was
the order erroneously sought and erroneously granted?
[30]
The Minister had contended that the order of 27 January 2022 was
granted without hearing evidence. This contention
turns out to be
inaccurate and made without supporting facts, for the reason that the
evidence of Mr Lulwana was led and the court
only granted the order
after such hearing of evidence. In this regard, the Minister did not
dispute the allegations of Mr Lulwana
that he gave evidence. The
contentions of the Minister were predicated on speculative
allegations, which are contained in the founding
affidavit. I do
quote the relevant paragraphs of the founding affidavit:
‘
The pleadings of
the respondent have no evidence and / or expert reports in relation
to quantum and it would be in the interest
of fairness and justice
for a balanced account or presentation by both parties in relation to
quantum to be presented which will
no doubt be of assistance to the
court.’
[7]
[31]
It is well to remember that the deponent of the founding affidavit
had earlier predicated the case of the
Minister on these allegations—
‘
The submission is
that this order was erroneously granted alternatively there was an
omission to take into consideration the lack
of evidence placed
before the court and the following grounds are submitted for
consideration . . ..’
[32]
In response to the Minister’s allegations, Mr Lulwana had
averred—
‘
I deny that there
is no evidence or expert reports in relation to my quantum, save to
say this Honourable Court granted the order
in question after inter
alia the Court heard my evidence in relation with my personal
circumstances and bad condition in custody.’
[33]
The Minister’s replying affidavit simply fails to respond to
the above detailed answer proffered by
Mr Lulwana on the allegation
that evidence was led and instead, in the reply, the deponent to the
replying affidavit makes a bare
denial. In this regard, I do quote
the response as appearing in the replying affidavit:
‘
The
contents hereof is denied and the respondent is put to proof
thereof.’
[34]
I accept Mr Lulwana’s version and found credence in his
allegations for the reason that, in his particulars
of claim, he had
asked damages in the amount of R700 000 and the court granted
him a sum of R450 000 for the unlawful
arrest and detention over
a period from 8 to 19 February 2019. I have no doubt that the court
had exercised its discretion on the
presented facts and evidence in
this regard. The Minister, in the founding affidavit, has not
suggested that the amount awarded
to Mr Lulwana, was excessive
and that the court did not exercise its discretion.
[35]
For the above reasons, I come to the conclusion that the judgment was
not erroneously sought and erroneously
granted and the result is that
the rescission under rule 42 must fail.
Rescission
under common law
[36]
As an
alternative to rule 42(1), the Minister pleads rescission on the
basis of the common law, in terms of which an applicant is
required
to prove that there is ‘sufficient’ or ‘good cause’
to warrant rescission. There is ample authority
on what good cause
means. Good cause depends on whether the common law requirements for
rescission are met, which requirements
were espoused in
Chetty
v Law Society, Transvaal
.
[8]
The requirements for the rescission of a default judgment are twofold
– first, the applicant must furnish a reasonable and
satisfactory explanation for its default and secondly, it must show
that on the merits it has a bona fide defence which prima facie
carries some prospect of success. Proof of these requirements are
taken as showing that there is sufficient cause for an order
to be
rescinded. A failure to meet one of them may result in refusal of the
request to rescind.
[9]
[37]
This application is woefully lacking in any form of explanation.
There is no explanation for the Minister’s
inaction from 18
November 2021 up until the judgment was granted on 27 January 2022.
The explanation for the inaction provided
on behalf of the Minister
is profoundly poor and should not be accepted. In a total conspectus,
the impression that must be gathered
about the Minister’s case,
is that, from the inception, it was carelessly and clumsily handled
by the office of the State
Attorney. The litigation history in this
matter is unsatisfactory. I draw the inference from the following—
(i)
The saga commenced on 8 July 2020 when summons was received by the
State Attorney;
(ii)
A notice of appearance to defend was filed and thereafter the drama
characterised
by a state of neglect and carelessness unfolded;
(iii)
A notice of bar was ignored and that resulted in a court order dated
6 October 2020
for the enforcement of delivery of the plea;
(iv)
The discovery notices under Uniform rule 35 were ignored and that
resulted in the issuing
of an order to compel on 6 February 2021;
(v)
On 11 May 2021, the Minister’s defence in the main action was
struck out for
the reasons that there was a continued non-compliance
with the order compelling the discovery under Uniform rule 35;
(vi)
The notice of allocation for a date of hearing of the default
judgment was served upon
the State Attorney on 18 November 2021 –
there was no response nor explanation for the non-response to the
notice;
(vii)
The notice of set down for the hearing of the default judgment was
served upon the State Attorney
on 18 November 2021 – there was
no response nor explanation for the absence in court on 27 January
2022;
(viii)
Whilst the default judgment was granted on 27 January 2022, the
application for rescission was only
launched on 18 October 2022 after
a threat of execution against the Minister;
(ix)
Mr Lulwana served the answering affidavit on 18 November 2022;
(x)
Once the rescission application was launched, the Minister, again,
became supine and
filed no replying affidavit nor took steps to
pursue the rescission application;
(xi)
On 23 January 2023, Mr Lulwana’s legal representatives applied
for a date in the
opposed motion court for the hearing of the matter;
(xii)
A notice of set down was served upon the Minister’s legal
representatives on 8 March
2023 after the date was allocated by
the Registrar;
(xiii)
The Minister’s replying affidavit was only delivered on 9 March
2023; and
(xiv)
The applicant’s heads of argument was only filed on the date of
hearing on 26 April 2023.
[38]
I have no doubt in my mind that with the state of affairs highlighted
above, the case was negligently handled
on behalf of the Minister and
there is simply no satisfactory explanation for the state of affairs
and the failure to attend court
when the judgment was granted.
[39]
The deponent to the Minister’s founding affidavit, merely
contended that:
‘
During the time
that I had perused the docket and eventually transmitted same to
client, the file was not attended to due to the
extreme workload and
excessive claims as against the offices of the state attorney. I was
never made aware of any court orders
as against the applicant and
during the December shut down. I was on leave from my work duties.
Upon my return in January of 2022,
I was advised that a further
application had been served and that a court order had been
obtained.’
[40]
I have found no explanation about the Minister’s response
covering the period between 18 November 2021,
when the notice of set
down for hearing of the default judgment was served and 27 January
2022, when the judgment was granted.
There is simply paucity of
information about the Minister’s action or his legal
representatives from the date of receipt
of the notice of set down
and the date of hearing of the application for default judgment. In
these circumstances, there can be
no satisfactory explanation.
[41]
The deponent to the Minister’s founding affidavit made another
startling allegation, which, on its
own, shows that the matter was
carelessly and negligently handled. She avers, in the founding
affidavit—
‘
I then attended at
court and uplifted the court file and on 5 May 2022, I requested
counsel to provide a legal opinion in the matter
based on the fact
that my preliminary perusal of the docket initially did not indicate
the name and/or details of the accused.’
[42]
In my view, the assertion made by the deponent shows that whilst she
returned from her holiday on an undisclosed
date in January 2022, she
allowed three months to pass by without taking any action about this
matter. If the deponent was a diligent
legal practitioner, she would
have observed that a default judgment was granted on 27 January 2022
and immediately, take steps
to remedy the situation.
[43]
I am also not satisfied that the Minister has established a bona fide
defence that would entitle him, irrespective
of the poor explanation
to a rescission of the judgment of 27 January 2022. The averments
made in the founding affidavit shows
no defence of whatsoever nature.
The deponent avers:
‘
The consultation
provided much needed information regarding the entire arrest and
detention of the respondent and as such, the defence
in the main
regarding the arrest and detention may fail as the investigating
officer did not obtain a warrant of arrest for the
respondent, it was
the respondent who presented himself at the SAPS for questioning when
he was arrested.’
[44]
I may well add that during oral submissions, it was conceded, on
behalf of the Minister, that Mr Lulwana’s
arrest and detention,
was indeed unlawful. The Minister also did not challenge the award of
damages in an eloquent manner. The
rescission application was merely
founded on the basis that there was no evidence placed before the
Presiding Judge when the order
sought to be rescinded was granted.
This has already been demonstrated to be incorrect and inaccurate
submissions.
[45]
For the above reasons, I conclude that the Minister has no bona fide
defence to Mr Lulwana’s claim.
The application was launched to
delay the execution of the judgment. I am fortified in this regard by
the conduct of the Minister’s
legal representatives. A writ of
execution was served on 18 October 2022 and the application for
rescission was immediately prepared
and served on 20 October 2022.
Once the application was served, the Minister’s legal
representatives, completely lost interest
in the application for
rescission. Mr Lulwana’s legal representatives had to champion
the hearing of this application, taking
initiatives to apply for the
date of hearing and prepare the file.
[46]
It should be borne in mind that the discretion to rescind the
judgment must always be exercised judicially
and is primarily
designed to enable courts to do justice between the parties. ‘Good
cause’ means that:
‘
(a)
The defendant has a reasonable explanation for the default. Wilful
default is normally fatal but
gross negligence may be condoned.
“Wilful” default in this context connotes knowledge of
the action and its legal consequences
and a conscious decision,
freely taken to refrain from entering an appearance, irrespective of
the motivation.
(b)
The application is
bona fide
and not made with the mere
intention to delay the plaintiff’s claim.
(c)
The defendant can show that he has a
bona fide
defence to the
plaintiff’s claim and that he has a
bona fide
intention
to raise the defence if the application is granted.
The
court may also take into account the prejudice to the parties. The
bona
fide
defence needs to be established
prima
facie
only and it is not necessary to deal fully with the merits of the
case or to prove the case. It is sufficient to set out the facts,
which if established at the trial, would constitute a good defence.
The defence must have existed at the time of the judgment.
The court
has a wide discretion in evaluating “good cause” in order
to ensure that justice is done between the parties.
A good defence
can compensate for a poor explanation and
vice
versa
.’
[10]
[47]
In my view, the Minister’s application simply fails at all
levels and therefore, the Minister is not
entitled to rescission
under the common law as well. This Court is unable to exercise its
discretion and grant the rescission application
on the facts
presented.
[48]
I need to remark about the founding affidavit submitted on behalf of
the Minister. The affidavit is slovenly
drawn and the allegations are
inelegantly set out. It lacks material allegations which are
necessary to sustain relief for the
grant of a rescission
application. Some reliefs sought in the notice of motion, are not
supported in the founding affidavit. I
do consider as well the
history of litigation on behalf of the Minister in this matter, such
history shows the mismanagement of
the case. I have noted the
complaint by the deponent of the affidavit that there is an overload
of work within the office of the
State Attorney. I also accept that
the State Attorney is faced with a high volume of litigation,
however, the state of affairs
reflected in this case, cannot be
allowed.
[49]
I must point out, though, that the counsel, who appeared for the
Minister in this matter, is not responsible
for the drafting of the
papers. The counsel had informed this court, at the commencement of
the hearing, that she was only briefed
at the last moment for
appearance. I must commend Ms
Mashiya
who appeared for the
Minister at the last moment, she presented a well-structured
submission and her submissions were mostly helpful.
She was
meticulous in her presentation.
[50]
It was brought to my attention, during the hearing that the papers
were prepared by the office of the State
Attorney without the
involvement of counsel or their senior attorneys. It may well be that
the papers were prepared under pressure,
more so that there was a
threat of execution. The intention may have been to halt the pending
execution. Even if it is so, that
should not be an excuse for
carelessness.
[51]
I may pin hope and faith that great care would be taken in the
future.
Conclusion
[52]
For all the reasons stated above, the application for rescission
should fail. The general rule that costs
should follow the results
would apply. I have not been persuaded differently. The application
must fail with the Minister to pay
the costs.
Order
[53]
In the result the following order is made:
(1) The
application for rescission of the judgment is dismissed with costs.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the Applicant:
Ms
Z N Mashiya
Attorneys
for the Applicant:
The
State Attorney
Mthatha
Counsel
for the Respondent:
Mr
Mqokozo
Attorneys
for the Respondent:
B
Qakumbana Inc Attorneys
Mthatha
Date
Heard:
25/04/2023
Date
Delivered:
09/05/2023
[1]
Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State and Others
[2021] ZACC 28
;
2021 (11) BCLR 1263
(CC) para 1.
[2]
Uniform rule 42 reads:
‘
(1)
The court may, in addition to any other powers it may have,
mero
motu
or upon the application of any party affected, rescind or
vary:
(a)
An order or judgment erroneously sought or erroneously granted in
the absence of
any party affected thereby;
(b)
an order or judgment in which there is an ambiguity, or a patent
error or omission,
but only to the extent of such ambiguity, error
or omission;
(c)
an order or judgment granted as the result of a mistake common to
the parties.
(2)
Any party desiring any relief under this rule shall make application
therefor upon
notice to all parties whose interests may be affected
by any variation sought.
(3)
The court shall not make any order rescinding or varying any order
or judgment unless
satisfied that all parties whose interests may be
affected have notice of the order proposed.’
[3]
Para 23.6 of the founding affidavit at 12 of the record.
[4]
Mutebwa
v Mutebwa and Another
2001
(2) SA 193
para 15-16;
Hardroad
(Pty) Ltd v Oribi Motors (Pty) Ltd
1977
(2) SA576 (W) at 578G;
De
Sousa v Kerr
1978 (3) SA635 (W).
[5]
Above n 1 para 53.
[6]
Mutebwa
v Mutebwa and Another
2001
(2) SA 193
(TkH) para 17.
[7]
Para 23.6 of the founding affidavit at 12 of the record.
[8]
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) at 765A-E.
[9]
Above n 1 para 71.
[10]
Civil Procedure in the Superior Courts, Issue 54: Harms, B-206(2).