About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 278
|
|
Minister of Police and Another v Sithole and Others (43093/10) [2021] ZAGPPHC 278 (18 March 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED:
yes
18
March 2021
CASE NO: 43093/10
Hearing
before Rabie J by way of Zoom conference.
In
the matter between
:
THE MINISTER OF
POLICE
First Applicant
THE NATIONAL COMMISIONER OF
THE SAPS
Second Applicant
and
B.P.
SITHOLE
First Respondent
U.M.
MALATJI
Second Respondent
M.J.
SITHOLE
Third Respondent
L.P.
MAKHUBEDU
Fourth Respondent
C.B.
KHUMALO
Fifth Respondent
In re:
B.P.
SITHOLE
First Plaintiff
U.M.
MALATJI
Second Plaintiff
M.J.
SITHOLE
Third Plaintiff
L.P.
MAKHUBEDU
Fourth Plaintiff
C.B.
KHUMALO
Fifth Plaintiff
and
THE MINISTER OF
POLICE
First Defendant
THE NATIONAL COMMISIONER OF
THE SAPS
Second Defendant
JUDGMENT
1.
On 20 July 2010
the respondents, as plaintiffs, instituted a damages claim against
the applicants, as defendants, arising out of
the alleged unlawful
arrest and assault of the plaintiffs by members of the South African
Police Services acting in the course
and scope of their duties.
At the time of the issuing of the combined summons a photocopy of the
summons and particulars
of claim was made. Some time later the
parties noted that on the one summons the Case Number was written in
as 43093/10 while
on the other copy the Case Number was written in as
40937/10.
2.
During the ensuing
years the parties referred in documents relating to the action to
case number 43093/10 but on the odd occasion
also to case number
40937/10. On 3 July 2019 the defendants launched an
interlocutory application which is the application
presently before
this court. In this application the defendants, as applicants, apply
for an order that the proceedings under case
number 43093/2010 be
stayed; that the Legal Profession Council be ordered to investigate
the conduct of the attorneys acting for
the respondent in the matters
under case number 43093/2010 and 40937/2010; and that the costs of
the application be paid de bonis
propriis by the instructing
attorneys and the correspondent attorneys of the plaintiffs.
For ease of reference I shall refer
to the parties as they were cited
in the action proceedings.
3.
In the founding
affidavit, under the heading "Lis Pendens" the defendants
referred to the aforesaid two summonses and
attached the combined
summons under Case number 40937/2010 as annexure NG 1 and the
combined summons under case number 43093/2010
as annexure NG 2.
Both these documents are photocopies and the defendants have not
annexed the original summons and particulars
of claim to the papers.
It was submitted that NG 1 was served on the State Attorney on 23
July 2010 whilst NG 2 was served
on the State Attorney on 2 August
2010.
4.
It is common cause that
NG 1 and NG 2 are exact copies of each other. Or, more
correctly, since NG 1 and NG 2 are both photocopies,
that both are
photocopies of the same original summons and particulars of claim. I
shall refer below to the differences that appear
on these two
documents.
5.
In the founding
affidavit the defendants stated that at a pre-trial held on 15 August
2017 the attorneys of the plaintiff's were
informed of the
duplication of the action and that the summons under case number
43093/2010 is susceptible to a special plea of
lis pendens.
According to the founding affidavit the plaintiff failed to deliver a
notice of withdrawal of the summons under
case number 40937/2010 and
have instead persisted with proceedings under case number
43093/2010. Consequently, so it was
submitted by the
defendants, they had no choice but to approach this Court in the
present application for an order to stay the
proceedings in case
number 43093/2010 pending the finalisation of the action under case
number 40937/2010.
6.
It is appropriate that
I first refer to the two summonses and thereafter to the chronology
of events. Exhibit NG 1, case number
40937/10 and exhibit NG 2, case
number 43093/10, as I have mentioned, are exact copies. The typed
portions are the same.
Furthermore both summonses were signed
on 20 July 2010 by the attorney of the plaintiffs and these
signatures and the dates are
also identical, i.e., the same
photocopy. The photocopies of the documents were clearly made after
the signature had been appended
on the summons. The first difference
between these documents is that Annexure NG 2, case number 43093/10,
was signed by the Registrar
of this Court whilst annexure NG 1, does
not bear his signature. Secondly, under the reference to the State
Attorney stamps occurred
but it is not legible. What is legible is
what appears to be the signature of an employee of the State Attorney
which noted that
the time of the signature was 12h 35. The stamps do
not appear to be the same but the time of 12h35 is the same.
Both summonses
were thus received by the State Attorney on the same
hour and minute. As mentioned, the defendants submitted that NG 1 was
received
on 23 July 2010 and NG 2 was received on 2 August 2010. From
the copies available to me it is not possible to verify this
statement
but in my view not much turns on when NG1 and NG2 had been
received by the State Attorney.
7.
After 10 years it is
not possible to establish what exactly happened. What is clear is
that NG 1 and NG 2 are photocopies of the
same summons and
particulars of claim signed by the plaintiff's attorney and not two
separate actions instituted by the plaintiffs
against the defendants.
The two documents were furthermore, as mentioned, signed only once by
the plaintiffs' attorney and only
one of them, NG 2, was signed by
the Registrar. Furthermore, both documents bear a note indicating
that the documents were served
on the State Attorney at the exact
same hour and minute. The particulars of claim are also clearly
photocopies of the same
documents.
8.
The only real
difference in the two sets of pleadings, i.e. NG 1 and NG 2, is the
case number written in by hand at the top of the
first page of the
respective summonses. How that came about and who the person or
persons responsible for these two numbers, were,
is impossible to
establish. Neither of the attorneys who presently represent the
parties was involved during the initial
stages of the process, except
for the plaintiff's instructing attorney. That attorney has no
knowledge of any case under
case number 40937/10.
9.
I should add at this
stage that after the launching of the present application the
attorney of the plaintiffs approached the office
of the Registrar and
established that NG 2, i.e. case number 43093/10, is indeed the
correct case number for the action between
the parties as it appears
in the records of the Registrar. Case number 40937/10 (NG1)
exists in the records of the Registrar
of this Court but had been
allocated to a different case between different parties. According to
the records of the Registrar case
number 40937/10 (NG 1) is the case
number allocated to an action between Nedbank Limited and a certain
R. Buys. Against these
facts it is quite significant that only
NG 2, i.e. the summons in case number 43093/10 had been signed by the
Registrar of this
Court. There can thus be no doubt that
somebody had erroneously written the wrong case number on one of the
copies of the
summons namely NG 1. I shall revert to this issue again
below.
10.
It is the defendants'
case in the present application that the first summons served was
NG1, i.e. case number 40937/10 and that,
consequently, the
proceedings under NG 2, i.e. case number 43093/10, should be stayed
pending the finalisation of the action under
case number 40937/10.
11.
It is appropriate to
now deal briefly with the history of events and in that regard I
shall only refer to certain salient features
thereof.
Subsequent to the service of NG 1 and NG 2 during July and/or August
2010, the defendants delivered their notice
of intention to defend
and indicated the case number to be that of NG1 namely case number
40937/10.
12.
I have indicated
above that it is obvious that two case numbers had erroneously been
written on the front page of the two photocopies
of the same summons
in the same case, i.e NG 1 and NG 2. This error was picked up
by Mr Paul Cavanaugh of the State Attorney
and in a letter dated 22
September 2010 from him to the attorney of the plaintiffs, he noted
the following:
"Finally,
I have in my possession two High Court case numbers in the present
Sithole matter and wish to enquire where the case
number 43093/10
originates, as the parties and particulars are precisely the same,
but the latter case number was only served on
this office on 2 August
2010."
13.
In a letter dated 28
September 2010 the erstwhile attorney of record of the plaintiffs
responded to the aforesaid letter, inter
alia, as follows:
"With
regard to the different case numbers, the correct case number is
43093/10. The incorrect case number which is 49034/10
(sic)
originated from the notice to defend that we received from your
office. We suspect it was a typing error on the part of your
secretary."
14.
This letter supports
the plaintiffs' version that their attorney had at all times been
unaware of the existence of NG 1 i.e. case
number 40937/10, which was
the case number allocated to the matter of Nedbank Limited versus R.
Buys. Furthermore, the letter
shows unequivocally that the
correct case number for the action between the parties was 43093/10
as written on the summons marked
NG 2 and signed by the Registrar of
this Court. The summons NG 1 bearing case number 40937/10, (which is
the case number of the
Nedbank Limited versus R. Buys matter), and
unsigned by the Registrar, was clearly an erroneous document which,
having regard to
its case number, was not and could not have intended
to embody a summons and particulars of claim in an action between the
plaintiffs
and the defendants.
15.
On 29 September 2010 Mr
Cavanagh replied as follows to the attorney of the plaintiffs:
"I
take note of the case number you consider to be the correct one".
16.
This letter by Mr
Cavanagh brought the whole saga of the "phantom" summons
and particulars of claim (NG 1) bearing case
number 40937/10, to an
end. The parties were ad idem that there was only one case
between them and that was the case under
case number 43093/10 as set
out in NG2.
17.
Confirmation of the
fact that the issue of the "phantom" summons and
particulars of claim (NG 1) bearing the wrong case
number 40937/10,
had been laid to rest, is to be found in the fact that all the
further documents exchanged between the parties
in the action, except
for a few exceptions, reflected the case number 43093/10. The
minutes of the pre-trial conference held
on 5 August 2016 also does
so. This conference was attended by Mr Govender, the deponent to the
defendants' founding affidavit
in the present application. In the
minute of the pre-trial conference not a word was mentioned about the
existence of another action
under case number 40937/10 and/or the
possibility of a plea of lis pendens or a stay of proceedings. The
only inference to be drawn
is that this was so because by then both
parties knew that there was only one case pending between the parties
and that was the
case under case number 43093/10. That was also the
case number which appeared on the minutes of the pre-trial
conference.
18.
Almost a year later and
in a letter dated 11 August 2017 by Mr Govender to the plaintiffs'
attorney, he wrote the following in the
last paragraph of the letter:
"3.
Finally: The summons issued under Case number 40937/2010 was served
on
the State Attorney on 23 July 2010. Thereafter a summons under a
different Case number 43093/2010 was served on the Office of the
State Attorney on 2 August 2010. The latter summons is an exact copy
of the first summons.
3.1
From the further notices and pleadings delivered it appears the
matter proceeded
under Case number 43093/2010. We advise that unless
you have prove that the initial summons have been withdrawn the
defendant reserves
the right to amend their plea and raise a special
plea of Lis Pendens." (sic)
19.
Mr Pearton, the
plaintiffs' attorney, who had not represented the plaintiffs at the
time when Mr Cavanagh represented the State
Attorney, responded in a
letter dated 6 September 2017, inter alia, as follows:
"Please
urgently provide our offices with a copy of the purported summons
under case no 40937/2010 as referred to in your attached
letter.
20.
Mr Govender did
not reply to this letter.
21.
On 21 September 2017 Mr
Pearton again wrote to Mr Govender of the State Attorney stating the
following:
"Please
urgently revert on my email below".
22.
Again Mr Govender
ignored this request.
23.
On 30 July 2018 Mr
Pearton wrote another letter to Mr Govender in which he, inter alia,
dealt with the purported case under case
number 40937/10. The
relevant part of this letter reads as follows:
"
4. Your offices continues
to refer to another summons which you allegedly have
in your
possession. Despite various requests you have refused to provide same
to our offices in order to verify the veracity of
your allegation.
5.
It is our view that the second case number you refer to in your
letter
originated through an error on the side of your predecessor
(before he retired) and was elucidated upon in correspondence between
your offices and that of JM Masombuka Attorneys in September 2010.
Your offices and your counsel have vowed to provide our offices
with
the alleged second summons and you have not done so to date hereof.
You are continuing to delay the matter due to your refusal
to produce
something that is clearly on your version of events in your
possession and readily available.
6.
Our offices would have expected you to attach such a document to the
letter in order to place the plaintiffs in a position to withdraw
same had it been done contrary to their instructions or without
their
knowledge by their attorney. This would have been the collegial thing
to do as you were at all times aware that our offices
entered
appearance on behalf of the plaintiffs as the correspondent attorneys
in 2016, well after the alleged second summons was
served, or the
dispute in respect of the alleged second summons arose. In any event,
how can the defendants claim to have suffered
prejudice if both
summons are in the specific practice of the same State Attorney,
taken over from the same predecessor and currently
in possession of
the defendants' counsel?"
24.
Mr Govender again
ignored the aforesaid requests.
25.
On 3 July 2019 Mr
Pearton wrote another letter to Mr Govender in another attempt to
resolve the issue. It is clear that at
this point Mr Pearton
had become quite desperate and framed his letter in very strong terms
and threatened Mr Govender with serious
action should he continue to
ignore the issue.
26.
It appears, as I
have mentioned, that since the time that Mr Cavanagh of the State
Attorney and the plaintiffs' attorney had resolved
the issue of the
erroneous summons, i.e. NG 1, the parties have exchanged papers and
correspondence under case number 43093/2010.
Consequently,
since 2010, i.e., for the past 11 years the defendants had not
defended themselves in respect of a case with case
number 40937/10
and except for the phantom summons, no pleadings had been filed, and
except for a few exceptions, no documents
had been filed and no
proceedings had been conducted under that case number. In my
view nothing turns on the fact that certain
notices had from time to
time referred to the erroneous case number. It is surely not
unknown that an author of a notice
or a letter would often simply
take a document from the office file to establish the case number.
Being unaware of the erroneous
"phantom" case number which
had made its appearance from time to time, an author can hardly be
blamed for this mistake.
What is clear is that neither of the
parties ever regarded the case with number 40937/10 as an action
between the parties.
27.
Approximately one week
before the plaintiffs filed their answering affidavit in the present
application, the plaintiffs served a
Notice of Withdrawal of Summons
under case number 40937/2010. This notice reads as follows:
"KINDLY
TAKE NOTICE that the Plaintiffs hereby withdraws the summons, if
found to be validly served and existing, under the
above case number
and only in respect of the above persons."
28.
This notice of
withdrawal and especially the wording thereof, reinforces the fact
that there was not and had never been a second
action between the
parties. It also reflects the fact that Mr Govender had failed to
present the original or a copy of NG1 to the
defendants' attorney.
The plaintiffs were clearly aware of the dilemma that they cannot
simply withdraw a case with a case number
which had not been
allocated to the case in which they were the parties.
29.
The aforesaid was the
correct course of action to be taken by the plaintiffs' attorneys.
After all, they could hardly withdraw a
case with a different case
number in which they had no interest. To do so would have had the
result that a case between unknown
parties was withdrawn without the
knowledge of such parties.
30.
In my view it is not
necessary to refer further to the submissions made on behalf of the
respective parties. It is clear that NG
1 was a photocopy of the
original summons and particulars of claim onto which somebody,
probably a person in the office of the
Registrar of this Court, had
written a wrong case number. The case number written on NG 1 was in
fact the case number which had
been allocated by the Registrar to a
different case between different parties.
31.
There were consequently
never two actions which had been instituted by the plaintiffs and
this was realised at a very early stage
by Mr Cavanagh, the State
Attorney appearing on behalf of the defendants and the attorney on
behalf of the plaintiffs. They made
short shrift of the difficulty by
agreeing that NG 1 could be ignored as erroneous and that the action
between the parties would
proceed in terms of NG 2 under case number
43093/10. They had dealt with the difficulty of the wrong case
number on a copy
of the summons, which probably originated in the
office of the Registrar, without incurring any significant costs for
their clients,
if any. That was the proper manner to deal with the
difficulty which had arisen.
32.
Since there was never a
pending lis between the parties other than the action embodied in NG2
under case number 43093/10, that had
been the understanding of the
parties for almost 6 years until Mr Govender came onto the scene and
wanted to make something of
the summons in NG 1. If Mr Govender
had studied his file he would probably have discovered the letters
between his predecessor,
Mr Cavanagh, and the attorney of the
plaintiffs wherein the issue of the wrong case number on a copy of
the summons had been put
to bed.
33.
In these circumstances
the defendants' application was totally misconceived. It was
submitted on behalf of the plaintiffs
that the application should
also be dismissed for the reason that the issue of lis alibi pendens
is not something which could be
the subject of an interlocutory
application but is a dilatory plea which should be pleaded in a
defendant's Plea and adjudicated
by the court hearing the action.
34.
In the light of my
findings above that there had in reality never been a second action
between the parties with the result that
one action between the
parties should be stayed, it is not necessary to make a finding as to
whether motion proceedings are appropriate
to decide the issue of lis
alibi pendens.
35.
However, should I be
wrong in my earlier findings I find that the application of the
defendants should in any event be dismissed
for the reason that it is
not appropriate to institute motion proceedings in circumstances like
the present. In casu a defence
of lis alibi pendens has not
been pleaded in case number 43093/2010 and such a defence is thus not
a triable issue on the pleadings.
In my view the motion court
could hardly be expected to consider the stay of an action if such a
defence had not been pleaded.
This is not a matter where an
abuse of the process of the Court can be alleged.
36.
Furthermore, the
defence of lis alibi pendens, if properly pleaded, is a matter within
the discretion of the trial court and in
respect of which the trial
court has a discretion as to whether an action brought before it
should be stayed pending the decision
of another action or process
previously brought between the same parties, for the same cause and
in respect of the same subject
matter, or whether it is more just and
equitable or convenient that the action should be allowed to proceed.
The plea of lis alibi
pendens is a dilatory plea which must be
adjudicated by the trial court in the exercise of it judicial
discretion. In exercising
its discretion considerations of fairness
and convenience are fundamentally important. Cf Van As v
Appollus & andere
1993(1) SA 606 (C) and the authorities therein
cited.
37.
In respect of costs the
defendants moved for costs to be paid on an attorney and client scale
by the attorneys of the plaintiffs.
The plaintiffs moved for the cost
to be paid on an attorney and own client scale by Mr Govender and the
defendants. In my
view the court should show its displeasure
with the manner in which the case had been conducted on behalf of the
defendants. I
have already referred to the fact that a proper
awareness of the contents of the attorney's file and more
specifically the fact
that the issue of the wrong case number had
already been resolved, would have prevented the application. This
Court must also frown
upon the failure of the defendants' attorney to
respond to the requests of the plaintiffs' attorney when it was clear
that he desperately
wanted to resolve the new issue mentioned by the
defendants' attorney. Inter alia for these reasons a punitive order
for costs
against the defendants is justified. Costs of senior
counsel would also be justified.
38.
I have considered
whether an order for costs de bonis propriis should in addition be
made. The submissions in this regard on behalf
of the plaintiffs are
not altogether without merit but on a conspectus of all the facts and
circumstances I am of the view that
such an order should not be made.
39.
In the result, the
following order is made:
1.
The application is dismissed.
2.
The applicants are ordered, jointly and severally, to pay the
defendants' costs
of the application which cost shall be on the scale
of attorney and own client and which costs shall include the cost of
Senior
Counsel.
C.P. RABIE
JUDGE OF THE HIGH COURT
18 March 2021
Attorneys for
Applicant:
Gildenhuys Malatji
Inc jpearton@gminc.co.za
Attorneys for
Respondent:
State Attorney
N Govender
NeGovender@justice.gov.za
Adv M Botma
mbotma@law.co.za