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[2022] ZAMPMBHC 30
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Minister of Police v Sibuyi and Another (A52 / 2021) [2022] ZAMPMBHC 30 (12 May 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: A52 / 2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
12
MAY 2022
In
the matter between:
MINISTER
OF POLICE
APPELLANT
and
GIDEON
SIBUYI
FIRST RESPONDENT
THE
SHERIFF: PRETORIA CENTRAL
SECOND RESPONDENT
Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives by email. The date and time for
hand-down
is deemed to be 10H00 on 12 May 2022.
J
U D G M E N T
RATSHIBVUMO
J:
[1]
This is an appeal against an order of the Bushbuckridge District
Court (court
a quo
) dated 27 October 2020 in which the
application for rescission of judgment that was granted against the
appellant was dismissed
with costs. Summons was issued in that court
by the Respondent against the Appellant on 14 November 2017 for
damages emanating
from assault, unlawful arrest and detention
perpetuated by the Appellant’s employees in service of the
South African Police
Services (the SAPS), amongst whom was a certain
Inspector Khoza. The Respondent’s particulars of claim reflect
that this
incident took place within the Kruger National Park
precinct in April 2017, the exact date of which was not mentioned. It
was also
not specified as to where the detention took place and the
duration thereof. A total of R200 000.00 was claimed as damages
suffered by the Respondent.
[2]
The Appellant filed a notice to defend through the State Attorney
and
no plea was filed thereafter. The notice to defend was sent to the
Respondent and to Clerk of the Court via registered post.
This was
also sent to the Respondent by email. When no plea was forthcoming,
the Respondent sent a notice of bar to the Appellant
on 16 February
2018 via an email address provided by the attorney working for the
State Attorney, to whom the matter was allocated,
Mr. E Scharf. On 25
October 2019, and after hearing evidence by the Respondent,
Magistrate Sibuyi granted a judgment by default
in which he awarded
R150 000.00 to the Respondent as damages plus costs. It is this
order that the Appellant sought to have
rescinded before another
Magistrate. This application was dismissed with costs on 27 October
2020. This appeal is against the judgment
dismissing the rescission
application.
[3]
The following background appears from the application before the
court
a quo
. It was only after the Sheriff visited the offices
of the Appellant armed with a warrant of execution that Mr.
Sibanyoni, a legal
officer for the Appellant became aware of the
existence of the default judgment against his employer. He is the one
who deposed
to the founding affidavit in support of the rescission
application. It appears from this affidavit that upon learning of the
existence
of the judgment against the Appellant, he enquired and
found that the attorney to whom the matter was allocated at the State
Attorney,
Mr. E Scharf had left the employ of the State Attorney.
[4]
The file involving this claim was passed over from Mr. Scharf to
Mr.
Caleb, an assistant State attorney. According to his affidavit, the
last document exchanged between Mr. Scharf and the Respondent’s
attorneys was a letter sent to TK Machitele Attorneys, the
Respondent’s attorneys, in which Mr. Scharf questioned if the
Respondent had complied with section 2 of the State Liability Act,
No. 20 of 1957 (the
State Liability Act), by
serving the summons on
the State Attorneys. There was no response to this letter. There was
no other pleading in the file including
the notice of bar or the
judgment. This in essence explained why the rescission application
was only brought on 27 February 2020,
some four months after the
default judgment was granted against the Appellant.
[5]
Mr Sibanyoni’s affidavit also deals with the aspect of a valid
defence against the claim by the Respondent. The Kruger National Park
where the incident is alleged to have taken place, falls
under
Skukuza Police Station. There is no Inspector Khoza working at
Skukuza Police Station. There is furthermore, no record of
the
Respondent being detained at that police station during the month of
April 2017. There is equally no record of a case of assault
being
reported by the Respondent. In essence, the incident that gave rise
to the judgment being granted against the Appellant was
disputed.
[6]
The Appellant submitted before court
a quo
that the default
judgment was granted because the court was under a mistaken belief
that the Respondent had complied with the
State Liability Act and
the
Institution of Legal Proceedings Against Certain Organs of State Act,
No. 40 of 2002, (the
Institution of Legal Proceedings Against Certain
Organs of State Act). It
was submitted that the Respondent failed to
comply with the
State Liability Act in
that he did not serve the
summons on State Attorney offices as provided in the Act.
[7]
It was further submitted that he failed to comply with the
Institution of Legal Proceedings Against Certain Organs of State Act
in
that he did not serve a notice of his intention to institute legal
proceedings against the Appellant in accordance with the Act.
As for
the letter apparently sent by registered post in an attempt to comply
with the
Institution of Legal Proceedings Against Certain Organs of
State Act, the
address to which the letter was posted was unknown to
the Appellant and did not belong to him. It is noteworthy that the
letter
in question was directed to the Office of the Minister of
Police at Private Bag x 922, Pretoria, 0001. The person who posted
the
letter however did not send it to this address. It was posted to
Private Bag x 22, Pretoria, 8001. No reasons were advanced for
this
discrepancy.
[8]
The last submission made on rescission application was that the
quantum awarded for damages was excessive and not in line with the
damages awarded for similar claims by the courts.
[9]
The law.
The
rescission application was premised on Rule 49(8) of the Magistrates’
Court Rules which provides,
“
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.”
[10]
As for the wide discretion that a court has in rescission of a
judgment, one needs
to read Rule 49(1) which provides,
“
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…”
[11]
The
Appellant needed to bring the application within 20 days after
obtaining knowledge of the judgment if he intended to rely on
Rule
49(1) or bring a condonation application for bringing this after the
prescribed period. There was no need for condonation
application
given that the application was based on the provisions in Rule 49(8).
It is much easier to prove that “a good
cause” exists
justifying a rescission of a judgment as its discretion is wider and
the requirements are not exhaustive.
[1]
A good cause includes but not limited to the existence of a
substantial defence.
[2]
As for
judgment granted by mistake, in fraud or
any
other reprehensible or improper conduct which compelled the Court to
come to grant the judgment, this has nothing to do with
the question
of whether the mistake was one of law or one of fact; the question
was merely whether the other party should be permitted
to take
advantage of the mistake.
[3]
The court may still refuse to rescind a judgment which is void
ab
origine
if the party seeking its rescission fails to disclose a
bona
fide
defence.
[4]
[12]
Before the court
a quo
.
In
a one-page judgment, the court
a quo
dismissed the rescission
application citing mainly, the reason that the Appellant was in
wilful default. As for non-compliance
with the
State Liability Act,
the
court
a quo
held that it could not be correct that the
Appellant’s office “was not served or was not aware of
the claim.”
It reached this conclusion based on the steps the
Appellant took in filing a notice to defend the action. It held
further that
the
Institution of Legal Proceedings Against Certain
Organs of State Act advocates
for access to courts and cannot be used
to limit access to courts in circumstances where the Respondent
(referring to the appellant
in this appeal) was aware of the claim.
The court
a quo
further held that the Respondent (the
appellant) lacked a
bona fide
defence and made no elaboration
on its finding in this regard.
[13]
It appears
from the judgment that the court a quo misconstrued the submissions
by the Appellant based on the
State Liability Act and
the
Institution
of Legal Proceedings Against Certain Organs of State Act. It
was not
the Appellant’s submission that it was not aware of the claim.
The submission was that the Respondent was bound to
serve the summons
on both the Appellant and the State Attorney, and not just one of
these institutions. The Institution of Legal
Proceedings Against
Certain Organs of State Act also provides that within six months of
the incident that gives rise to the claim,
the claimant should give
notice of his/her intention to institute a claim on the office of the
Provincial and National Commissioner
of Police.
[5]
Not only did the Respondent fail to send the notice to the correct
postal address of the Appellant, but he failed to notify the
provincial and National Commissioner of Police of his intention to
institute the legal proceedings.
[14]
Failure to
comply with the provisions in the two legislations should not be seen
as a bar from accessing the courts as the court
a
quo
held. If this was the position, there would be no need to apply for
condonation when a party fails to comply with these statutes
and a
good cause exists for non-compliance. The court
a
quo
had
the jurisdiction to hear the condonation if one was brought.
[6]
This however required a substantive application to be brought. In
Minister
of Safety & Security v Jonas NO and another,
[7]
a Magistrate’s decision to condone non-compliance without a
substantive application before her was reviewed and set aside.
[15]
As long as
courts are satisfied that
the
debt has not been extinguished by prescription; that good cause
exists for the failure by the creditor; and that the organ of
State
was not unreasonably prejudiced by the failure to give notice;
condonation should be granted when sought.
[8]
The court
a
quo
made no finding on non-compliance with these two statutes and simply
reached its findings under the presumption that there was
indeed no
compliance on the part of the appellant. The decision it reached
suggests that once summons was served on the Appellant
and a notice
to defend was filed, the Appellant could not raise a defence or
special plea on the non-compliance as it became aware
of the claim
against it. This cannot be the case as the appellant was within its
rights to still raise special pleas of non-compliance
with the
statutes even when on record.
[9]
[16]
I find that
the court
a
quo
misdirected itself when it dealt with the application for rescission
of judgment as though lack of wilful default in the present
case was
a prerequisite for the rescission. It is only ‘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 wilful 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.’
[10]
[17]
Under Rule 49(8), there is no requirement that the applicant should
not be in wilful
default. The applicant needs only to show mistake or
fraud. Even if the Appellant had to show that there was no wilful
default
on its part, it is not clear how the undisputed facts on how
the attorney in the employ of the State Attorney left the employment
and how the file was inherited by a new attorney can constitute
wilful default on the part of the client, the Appellant. In the
same
vein, it is not clear how a defence disputing the arrest and the
detention substantiated by an affidavit confirming that the
person
alleged to have arrested the Respondent does not work for the
Appellant, can be construed as not being a
bona fide
defence.
[18]
I find therefore that the court
a quo
erred in dismissing the
rescission application for the reason that that the Respondent was in
wilful default. The court
a quo
should have found that the
default judgment would not have been granted had that court been
aware that there had not been compliance
with the
State Liability Act
and
the
Institution of Legal Proceedings Against Certain Organs of
State Act and
that no condonation was sought and granted by the
Respondent.
[19]
For these reasons, I would propose the following order:
[19.1] Appeal is upheld
with costs.
[19.2] Then order of the
court
a quo
is hereby set aside and replaced with the
following:
“
The rescission
of a judgment dated 25 October 2019 granted in default is hereby
granted. The Respondent is ordered to pay the costs
of the
application for rescission of the judgment aforesaid
”.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered.
MF
LEGODI
JUDGE
PRESIDENT
MPUMALANGA
DIVISION OF THE HIGH COURT
FOR
THE APPELLANT: : ADV
DD MOSOMA
INSTRUCTED
BY
: STATE
ATTORNEY
:
MBOMBELA
FOR
THE RESPONDENT : TK MACHITELE ATTORNEYS
BUSHBUCKRIDGE
DATE
HEARD
: 29 APRIL 2022
JUDGMENT
DELIVERED : 12 MAY 2022
[1]
Abraham
v City of Cape Town
1995
(2) SA 319
(C) at 321I–J.
[2]
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 352G.
[3]
Otto
en ‘n Ander v Heymans
1971
(4) SA 148 (T).
[4]
Leo
Manufacturing CC v Robor Industrial (Pty) Ltd t/a Robor Stewarts &
Lloyds
2007
(2) SA 1
(SCA) at 4F.
[5]
See
section 4(1)(a)
of the
Institution
of Legal Proceedings Against Certain Organs of State Act.
[6
]
See
Tshisa
v Premier of the Free State and Another
(A6/2009)
[2009] ZAFSHC 119
;
2010 (2) SA 153
(FB) (19 November 2009) where
Musi CJ dismissed a point
in
limine
in which it was argued that the Magistrate lacked the jurisdiction
to hear the application for condonation brought in terms of
t
he
Institution of Legal Proceedings Against Certain Organs of State
Act
>.
[7]
[2013] JOL 30103 (ECG)
[8]
See
Madinda
v Minister of Safety & Security
2008
(4) SA 312 (SCA).
[9]
Minister
of Safety & Security v Jonas NO and another (Supra).
[10]
See
Rule 49(4).