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[2022] ZAECMHC 46
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Minister of Police v Mnukwa and Others (CA38/2021) [2022] ZAECMHC 46 (8 November 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MTHATHA)
CASE NO.: CA38/2021
Matter heard on: 21
October 2022
Judgement delivered
on: 08 November 2022
In the matter between: -
MINISTER OF
POLICE
Appellant
and
NIKI
MNUKWA
1
st
Respondent
VUSUMZI
JEME
2
nd
Respondent
BULELANI
MABHUNGA
3
rd
Respondent
JAMA PHILLIP
NAKUMBA
4
th
Respondent
SIYAVUYA
MTIKRAKRA
5
th
Respondent
XOLILE
MNGCINWA
6
th
Respondent
ZUKISANI ADDAM
PITA
7
th
Respondent
THE SHERIFF, KING
WILLIAM’S
TOWN
8
th
Respondent
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED.
JUDGMENT
SMITH
J:
[1]
This is an appeal against the judgment of the Flagstaff Magistrate’s
Court, delivered on 26 February 2021,
and dismissing the appellant’s
application for rescission of the default judgment obtained by the
first to seventh respondents
(the respondents) on 24 January 2020.
[2]
Before I consider the merits of the appeal, I must first deal with
the appellant’s application
for an order condoning the late
prosecution of the appeal and reinstating the lapsed appeal.
[3]
It is common cause that the appellant initially failed to prosecute
the appeal timeously. He applied for condonation
and on 9 November
2021, Govindjee J granted an order reinstating the appeal and
requiring the appellant to prosecute it within
30 days from the date
of the order. The appellant, however, again failed to prosecute the
appeal within the timeframe stipulated
in that order. He eventually
only prosecuted the appeal on 25 May 2022, some five months out of
time. He now again applies for
the reinstatement of the lapsed
appeal. I must also mention that the appellant had given notice of an
application to be made on
21 October 2022, the day of the hearing of
the appeal, for an order condoning the late noting of the appeal.
However, that application
was in respect of the same issue that
served before Govindjee J and was consequently redundant. I mention
that abandoned application
merely because it may have certain costs
implications for the appellant.
[4]
The founding affidavit in support of the application for condonation
and reinstatement of the appeal was attested to by Ms Lizalise
Mbalekwa, an attorney employed by Notyesi Attorneys.
[5]
Ms Mbalekwa explains that she had been under the impression that she
had effectively prosecuted the appeal
by filing a ‘Notice of
Prosecution’ on 15 December 2021. She had become aware of this
oversight and realised the need
to bring an application for
condonation and reinstatement of the lapsed appeal when the matter
was raised by myself on 19 October
2022.
[6]
While the respondents initially opposed the application for
condonation, at the hearing of the appeal Mr
Bodlani
SC, who
appeared on their behalf, confirmed that they had withdrawn their
opposition. He stated, however, that the respondents
persisted with
their contention that the appellant must be held responsible for the
costs of both applications.
[7]
The following are the legal principles which underpin applications
for condonation. The standard for considering
an application for
condonation is the interests of justice. This will depend on the
facts and circumstances of each case. Factors
which the court must
take into account are, inter alia: the nature of the relief sought;
the extent and cause of the delay; the
effect of the delay on the
administration of justice and other litigants; the reasonableness of
the explanation for the delay;
the importance of the issues to be
raised in the contested appeal; and the prospects of success. (
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as amicus
curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC))
[8]
In granting the condonation we took into account that the application
was unopposed; that the appellant raised important
issues regarding
the rather generous sum of damages and the exorbitant interest rate
awarded by the presiding magistrate; and that
the extent of the delay
was not so serious so as to cause any prejudice to the respondents
which cannot be cured by a costs order.
[9]
I now turn to consider the merits of the appeal. The material facts
are briefly as follows. During December
2015, the respondents issued
summonses against the appellant for damages arising out of their
alleged unlawful arrest and detention.
Even though the claims arose
from the same incident, the respondents instituted separate actions,
each claiming damages in the
sum of R200 000, and ancillary
relief. The appellant subsequently successfully applied for the
matters to be consolidated.
[10]
The appellant instructed the firm of Chitwa Sikunyana & Partners
through the Mthatha State Attorney’s
office. The former duly
filed appearances to defend and pleas on his behalf.
[11]
On 28 September 2020, the Commander of the South African Police
Services (SAPS) Civil Litigation Command
Centre, Colonel Mbeki,
learned that warrants of execution had been issued in respect of all
the matters, pursuant to the judgment
obtained on 24 January 2020. It
was only then that he had become aware for the first time that the
respondent had obtained judgment
in the sum of R200 000 each, and
interests at the rate of 5%, compounded monthly. He eventually spoke
with Ms Sikhunyana, who told
him that she had left the practice after
she was appointed as a magistrate. She had informed the State
Attorney accordingly and
also advised the respondents’
attorneys that all further processes should be served on the former.
[12]
Colonel Mbeki thereafter approached the State Attorney’s office
where he spoke with one Ms Shumane.
Although she could not explain
how it came about that the respondents were allowed to obtain
judgement against the appellant without
his knowledge, she told him
that the State Attorney’s office had been plagued by serious
institutional problems, to the extent
that there had been
intervention by the National Office.
[13]
On 15 October 2020, the SAPS requested the State Attorney to instruct
Mvuso Notyesi Attorneys to act on their
behalf. Immediately after
their engagement, Notyesi Attorneys wrote to the respondents’
attorneys, requesting them to agree
to rescission of the default
judgment. When the latter refused, the application for rescission was
instituted on 20 November 2020,
some two months after the appellant
had become aware of the default judgment.
[14]
Although the application for rescission was purportedly
founded on the provisions of Magistrates’
Court rule 49(8),
read with section 36(
1
)(
b
) of the Magistrates’
Court Act, 32 of 1944, namely that the judgment was void
ab
origine
or obtained by fraud or mistake, the appellant also
relied on Rule 49(1). To succeed with an application under the latter
rule,
he was required to bring the application within a period of 20
days from the date he had become aware of the default judgment and
show good cause by establishing: (a) a reasonable and satisfactory
explanation for the default; (b) that the application is bona
fide
and not made with the sole intention of delaying the respondents’
claims; and (c) that he has a bona fide defence –
which carries
some prospect of success - to the respondents’ claims. (
Zuma
v Secretary of the Judicial Commission of Enquiry into allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
organs of State and Others
[2021] ZACC 28)
[15]
Mr
Bodlani
submitted that the magistrate was precluded from
adjudicating the rescission application in terms of rule 49(1) since
it was filed
outside the 20 day period prescribed by that rule and
the appellant did not apply for condonation. The respondents had
raised that
point squarely in their answering affidavit, and instead
of grasping the opportunity to apply for condonation for the late
filing
of the rescission application, the appellant asserted that he
had in any event also relied on rule 49(8) and accordingly had one
year within which to lodge the application. The unfortunate
consequence of that stance for the appellant is that the application
for rescission in terms of rule 49(1) was not properly before the
magistrate and he consequently had to stand or fall by the averments
intended to bring him within the ambit of section 36(1)(b) of the
Magistrate’s Court Act. He was therefore required to establish
that the order was either void
ab origine
or had been obtained
by fraud or mistake common to the parties. There has not been any
suggestion on the papers that the default
judgment was obtained by
fraud or because of a common mistake. Mr Malala, who appeared for the
appellant also did not advance such
an argument. The only issue which
therefore remains for determination is whether the order was void
ab
origine
.
[16]
In my view the appellant has not made out a case for rescission on
the basis that the default judgement was
void
ab origine
, as
contemplated by section 36(
1
)(
b
) of the Magistrates’
Court Act. In
Tődt v Ipser
1993 (3) SA 577
(AD), at 587
A-D, Grossskopf JA said that ‘[t]he difficulty is that in our
law the tendency is against holding that judgments
are void.
According to our common law authorities judgments are void in only
three types of cases - where there has been no proper
service, where
there is no proper mandate or where the court lacks jurisdiction’.
[17]
The appellant contended that the judgment is a nullity because: (a)
the respondents did not comply with pre-trial
procedures before
setting the matter down; (b) the magistrate failed to hear oral
evidence; and (c) the magistrate awarded interest
at a rate which is
contrary to the provisions of the
Prescribed Rate of Interest Act, 55
of 1975
. In my view none of these factors renders the judgment void
ab origine
.
[18]
As mentioned, the magistrate has ordered the appellant to pay
interest at the rate of 5% per month, in effect 60%
per annum. Not
only is this rate preposterously exorbitant, but it is also illegal.
The prevailing interest rate prescribed by
the Minister of Justice in
terms of the
Prescribed Rate of Interest Act is
7,5% per annum. In
terms of
section 2A
of that Act, the amount of every unliquidated
debt as determined by a court of law bears interest at the prescribed
rate. However,
the magistrate’s misdirection in this regard,
while it may constitute a ground of appeal, does not render the order
void
ab origine
.
[19]
The fact that a pre-trial conference was not held before the matter
was set down also does not have the effect
of rendering the order
void
ab initio
. Section 54 of the
Magistrate’s Court Act provides that ‘the court may at
any stage in any
legal proceedings in its discretion
suo motu
or upon the request in writing of either party, direct the parties or
their representatives to be appear before it in chambers
for a
conference to consider certain issues in order to shorten
proceedings. In this matter there has not been any such request
from
either party, neither has the magistrate directed that such a
conference should be held.
[20]
There was also nothing irregular about the magistrate’s
decision to accept evidence by way of affidavit.
Rule 32(2) provides
that where a defendant does not appear at the time appointed for the
trial of an action, judgment may be given
against him or her, with
costs, ‘after consideration of such evidence, either oral or by
affidavit, as the court deems necessary’.
The magistrate
accordingly had a discretion to accept evidence by way of affidavit.
[21]
It is indeed unfortunate that the appellant elected not to apply for
condonation for his failure to bring the rescission
application
within the 20 day period prescribed by rule 49(1). The explanation
for his failure to appear on the trial date was,
in my view,
eminently reasonable. The functionary who attested to the supporting
affidavit in the rescission application, namely
Colonel Mbeki,
explained that the appellant had been under the impression, at all
material times, that the State Attorney and the
attorneys’ firm
instructed by them had done everything they were supposed to do to
defend the claims. This was not an unreasonable
assumption in the
circumstances.
[22]
The appellant has also established a bona fide defence to the
respondents’ claims. Colonel Mbeki said
that the arresting
officer had a reasonable suspicion that the respondents had committed
a Schedule 1 offence, namely the theft
of fuel. That assertion is
consonant with the appellant’s pleaded case. In addition, there
are also reasonable prospects
that a court of appeal would interfere
with the damages awarded to the respondents because it is exorbitant
and in conflict with
damages awarded by this Court in comparable
cases.
[23]
And as mentioned, the interest rate ordered by the magistrate was in
conflict with the provisions of the
Prescribed Rate of Interest Act.
This
was such a glaring and fundamental error that one would have
expected the magistrate to correct it
suo motu
in terms of
section 36(1)(
c
) of the Magistrate’s Court Act. It
seems, however, that even though it was brought to his attention, he
was oblivious to
the implications of that order. He appeared to have
been of the erroneous view that the order was competent because the
respondents
had included a prayer for such relief in their
particulars of claim.
[24]
Even though we are concerned that the outcome of this appeal will
allow such a fundamentally flawed judgment to
stand, we are mindful
of the fact that the appeal is not against the order granted on 24
January 2021, but against the magistrate’s
refusal to rescind
it. Regrettably, we are not at liberty to interfere with the damages
award, no matter how exorbitant and disproportionate
it may be.
However, those portions of the order dealing with interest, both in
respect of the amount of damages and the costs,
are patently wrong
and should not be allowed to stand. While it may perhaps have been
preferable to remit the matter to the magistrate
to allow him the
opportunity to correct the errors in terms of section 36(1)(
c
),
one cannot be certain that this will happen. I am therefore of the
view that this court has a duty to correct those obvious errors
in
order to avoid the waste of public funds through usurious interest
orders.
[25]
Insofar as costs are concerned, I am of the view that both parties
have been successful to some extent.
It is consequently only fair
that they should bear their own costs. The appellant’s
attorneys were, however, undeniably remiss
in their failure to
appreciate what constituted proper prosecution of the appeal. It is
also only fair that the appellant should
pay the respondents’
costs in respect of the condonation application. This will include
whatever costs the respondents had
incurred in respect of the
abandoned application for condonation, which was effectively a
repetition of the application that served
before Govindjee J.
[26]
In the result the following order issues:
1)
The appellant’s failure to prosecute the
appeal timeously is condoned and the lapsed appeal is reinstated.
2)
The appeal succeeds to the following extent:
2.1.
Paragraphs 2 and 4 of the order granted on 24 January 2020 are hereby
set aside and replaced with the following
orders:
‘
2. Interest on the
said amounts at the prevailing legal rate, 14 days from the date of
judgment to the date of payment;
4. Interest on taxed
costs at the prevailing legal rate, 14 days from date of
allocatur
to date of payment.’
3)
The parties shall bear their own costs.
4)
The appellant must pay the respondents’
costs in respect of the condonation application, including the
abandoned condonation
application dated 25 September 2022.
JE
SMITH
JUDGE
OF THE HIGH COURT
I
agree
D.
POTGIETER
JUDGE
OF THE HIGH COURT
Appearances:
For
the Appellant
: Mr. L. Malala
:
Mvuzo Notyesi Inc.
2
nd
Floor, Old
TH Madala Chambers
14 Durham Street
MTHATHA
(Ref: L. Malala)
Counsel
for the 1
st
-7
th
Respondents
: Adv.
A.M. Bodlani SC.
:
Linyana & Somacala Inc.
c/o Manitshana Tshozi
Attorneys
Delville Road
MTHATHA
(Ref. B. Linyana)