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 402
|
|
Molokwane v Minister of Police and Others (Reasons) (96760/2015) [2021] ZAGPPHC 402 (9 June 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 96760/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHERS
REVISED:
9 JUNE 2021
In the matter between:
MOLOKWANE,
SAMUEL
PLAINTIFF
AND
MINISTER OF
POLICE
FIRST
DEFENDANT
CHABALALA, GEZANI
M
SECOND DEFENDANT
CHAUKE,
SELLO
THIRD DEFENDANT
DANTI,
SIMPHIWE L
FOURTH DEFENDANT
REASONS
Van
der Schyff J
[1]
On 7 June 2021, after having heard argument
and after considering written submissions filed by both parties, I
granted an order
dismissing the special pleas raised by the
defendants, with costs. I undertook to provide written reasons
substantiating the order.
[2]
The plaintiff issued summons against the
four defendants. The first defendant raised two special pleas. The
parties agreed that
the special pleas be determined by way of a
stated case without the hearing of oral evidence. In the event that
the special pleas
were to be dismissed, the trial was set down to
continue immediately. The Acting Deputy Judge President approved the
arrangement.
[3]
The defendants pleaded that the plaintiff
has failed to make out a cause of action as:
i.The
plaintiff failed to serve the summons on the State Attorney within 5
days of service thereof on the first defendant as provided
for in
section 2(2)(a)
of the
State Liability Act, 20 of 1957
('SLA');
[1]
ii.The
plaintiff failed to serve the summons on the National Commissioner as
provided for in terms of
s 5(1)(b)(ii)
of the Institution of Legal
Proceedings Against Certain Organs of the State Act, 40 of 2002
('Act 40 of 2002');
iii.In
the alternative (and in the second special plea), the defendants
plead that the plaintiff's claim has prescribed as the summons
was
not served on the State Attorney within three years from 8 February
2014.
[4]
The plaintiff disputes that -
i.It
is a peremptory requirement to serve on the National
Commissioner under the circumstances;
ii.A
failure to serve on the Office of the State Attorney in terms of s
2(2) of the SLA would vitiate the proceedings or nullify
the summons.
The plaintiff disputes that his claim has prescribed.
[5]
The timeline agreed upon by the parties
that is relevant for the determination of the stated case is the
following:
i.The
cause of action arose on 8 February 2014;
ii.A
notice in terms of s 3 of Act 40 of 2002 was delivered, outside the
period prescribed in s 3 of Act 40 of 2002, on 10 April
2015;
iii.The
plaintiff issued a combined summons under case number 96760/25 on 2
December 2015;
iv.The
summons was served on the first defendant on 4 December 2015 at '7
th
Floor Wachthuis 231, Pretorius Street, Pretoria, 001 being the
principal place of business of MINISTER OF POLICE, a copy of the
Combined Summons was served upon MRS PS MLAMBOPHETHE (LEGAL CLERK) of
MINISTER OF POLICE';
v.On
4 March 2016, in the absence of a notice of intention to defend, the
merits and quantum of the plaintiff's claim were separated,
and
default judgment was granted in respect of the merits of the action
on the basis that the plaintiff was entitled to recover
100% of his
proven or agreed damages. The quantum determination was postponed
sine die
(the Basson J order;);
vi.The
order was served on the first defendant on 22 March 2016;
vii.On
26 March 2018, the plaintiff issued an application for default
judgment in respect of the quantum;
viii.The
application for default judgment in respect of the quantum was served
on the Office of the State Attorney on 23 August
2018 together with a
notice of set down for 10 September 2018, a notice of intention to
amend the particulars of claim, the amended
particulars of claim, and
the Basson J order;
ix.The
application for default judgment in respect of the quantum was served
on the first defendant at SAPS, 7
th
Floor Wachthuis, 231 Pretorius Street, Pretoria on 24 August 2018;
x.On
29 August 2018, the Office of the State Attorney delivered a notice
of intention to oppose the default judgment application
in respect of
the quantum;
xi.On
6 September 2018, the State Attorney delivered an application seeking
an order to stay the application for default judgment
pending the
rescission of Basson J's order;
xii.On
14 January 2019, the plaintiff issued an application for condonation
for the late delivery of the s 3 notice, in terms of
s 3(4) of Act 40
of 2002;
xiii.On
15 January 2019, the s 3(4) application was served on the defendants
care of the Office of the State Attorney;
xiv.On
26 June 2019, condonation was granted [by Mtati AJ] as sought in the
s 3(4) application;
xv.On
25 November 2019, the Basson J order was abandoned by the plaintiff
as contemplated in terms of Uniform Rule 41(2);
xvi.On
13 December 2019, the Office of the State Attorney delivered a notice
of intention to defend the action on behalf of all
the defendants;
xvii.On
3 September 2020, the defendants delivered an amended plea to the
plaintiff's particulars of claim and raised the two special
pleas.
The
parties' submissions
[6]
Both
counsel filed written heads of argument. In substantiating the two
special pleas of (i) non-service in accordance with s 2
of the SLA
and non-compliance with s 5(1)(b)(ii) of Act 40 of 2002, (ii) and
prescription, the defendants' counsel submitted that
the relevant
statutory provisions must be interpreted in accordance with the
prevailing principles of statutory interpretation.
The defendants
submitted that s 2(2) of the SLA did not require service on the
Minister. The address and entity where service was
to be effected in
terms of the SLA when proceedings were instituted against a state
department's executive authority, was the State
Attorney. The
defendants' counsel submitted that the methods of service are in
general prescribed in the Uniform Rules of Court
and
in
casu
prescribed by statute. When the peremptory method of service is not
complied with, it will have specific consequences, rendering
the
service ineffective and a nullity. To date, the summons had not been
served on the State Attorney. A defendant is not
engaged in
litigation until service has been effected. It was not sufficient
that the State Attorney received notification of the
proceedings but
was not served with the summons. Because the court does not have the
power to condone non-compliance with a statutory
prescript, the
non-service resulted in the plaintiff's claim having prescribed.
Defendants' counsel submitted that
Rauwane
v The MEC for Health of the Gauteng Provincial Department,
[2]
a judgment relied upon by the plaintiff, was wrongly decided and is
distinguishable from the present matter. It is distinguishable
because, in
Rauwane,
the summons was served on the State Attorney, albeit 15 days after
the time prescribed in the SLA.
In
casu,
the matter only came to the attention of the State Attorney 4 years
and 6 months after the incident, 3 years and 8 months after
summons
was issued, and 3 years and 5 months after default judgment was
granted on the merits. It is not the summons but the subsequent
proceedings that are null and void. The mere fact that neither the
SLA nor Act 40 of 2002 provide an express consequence for failing
to
comply with the provisions relating to service does not mean that the
provisions can be ignored and that non-compliance will
have no
effect. Defendants' counsel submitted that Mtati AJ's order did not
finally dispose of the question of proper and effective
service on
the defendant.
[7]
The
plaintiff contended that the purpose of s 5(1)(b)(ii) of Act 40 of
2002 and s 2(2) of the SLA is to ensure that the State Attorney
receives notice of all the legal proceedings instituted against an
organ of state. Act 40 of 2002 does not provide for consequences
in
respect of a failure to comply with s 2(2) thereof, neither does the
SLA provide any consequence for a failure to comply with
s 2(2)
thereof. Counsel submitted with reference to
Rauwane
v The MEC for Health of the Gauteng Provincial Department
[3]
that the purpose of Act 40 of 2002 and the SLA has been met in that
the legal proceedings have been duly brought to the attention
of the
State Attorney, who had been instructed to defend the action on
behalf of the defendants. The first defendant did not allege
any
prejudice. Non-compliance with s 2(2) of the SLA did not result in
the summons or the subsequent proceedings being nullified.
[4]
The plaintiff pleads that the defendants have received proper notice
of the institution of the action and was effectively served
with the
summons. Counsel submitted with reference to
Moela
v Shoniwe
[5]
that the court can condone non-compliance with peremptory statutory
prescripts. In the result, the argument goes, the defendant's
special
plea regarding service is without merit, alternatively, it is of a
dilatory and procedural nature and does not constitute
a defence to
the plaintiff's claim. Plaintiff's counsel submitted that the issue
of prescription was finally pronounced on when
the court considered
and granted the s 3(4) condonation application, and in the result,
the special plea is
res
judicata.
Discussion
[8]
This case requires, by means of statutory
interpretation, the balancing of rights. On the one hand, the
plaintiff's right to hold
the state to account for an alleged
infringement of the guaranteed right to physical freedom [and bodily
integrity] and on the
other hand, the first defendant's right to be
served with court process in accordance with legislative prescripts.
Legal Framework
[9]
Three
statutory provisions, and Rule 4 of the Uniform Rules of Court, must
be considered when the two special pleas are considered.
Although the
defendants distinguished between two special pleas, both boil down to
the effect of the plaintiff not having served
the summons on the
Office of the State Attorney when the action was instituted or at
least before the prescription period expired.
I will only focus
on the provisions of the relevant statutes as they stood at the time
when the service of the summons was
effected. It is trite that
amendments to statutes and the uniform rules will not be regarded to
have retroactive effect unless
expressly determined by the
legislature.
[6]
[10]
The starting point of the discussion is s
15(1) of the Prescription Act, 68 of 1969 ('the
Prescription Act'):
'The
running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt'.
[11]
This matter concerns the phrase 'service on
the debtor.' It is common cause that the Minister of Police, the
first defendant, is
the debtor concerned. The claim is for delictual
damages. This inevitably means that both the SLA and Act 40 of 2002
apply.
[12]
Section 1 of the SLA provides:
'Any
claim against the State, which would, if that claim had arisen
against a person, be the ground of an action in any competent
court,
shall be cognizable by such court, whether the claim arises out of
any contract lawfully entered into on behalf of the State
or out of
any wrong committed by any servant of the State acting in his
capacity and within the scope of his authority as such
servant.'
[13]
Section 2 of the SLA, after being amended
by Act 14 of 2011, but prior to being amended by Act 8 of 2017,
determined:
'(1) In any action or
other proceedings instituted by virtue of the provisions of section
1, the executive authority of the department
concerned must be cited
as nominal defendant or respondent.
(2)
The plaintiff or applicant, as the case may be, or his or her legal
representative must, within seven days after a summons or
notice
instituting proceedings and in which the executive authority of a
department is cited as nominal defendant or respondent
has been
issued, serve a copy of that summons or notice on the State
Attorney.'
[14]
The Long Title of Act 40 of 2002 reads:
'To
regulate the prescription and to harmonise the periods of
prescription of debts for which certain organs of state are liable;
to make provision for notice requirements in connection with the
institution of legal proceedings against certain organs of state
in
respect of the recovery of debt; to repeal or amend certain laws; and
to provide for matters connected therewith.'
Section
5(1) of Act 40 of 2002, after its amendment by Act 11 of 2013
but prior to amendment by Act 8 of 2017, provided:
'(1)(a) Any process by
which any legal proceedings contemplated in section 3(1) are
instituted, must be served in the manner prescribed
by the rules of
the court in question for the service of process.
(b) Despite paragraph
(a), any process by which any legal proceedings contemplated in
section 3(1) are instituted and in which the-
(i) …
(ii) Minister for Safety
and Security is the defendant or respondent, may be served on-
(aa) the National
Commissioner of the South African Police Service as defined in
section 1 of the South African Police Service Act,
1995 (Act No. 68
of 1995); or
(bb) the Provincial
Commissioner of the South African Police Service as defined in
section 1
of the
South African Police Service Act, 1995
, of the
Province in which the cause of action arose; or
(iii)
…
[15]
Before its amendment in 2017, Rule 4(9) of
the Uniform Rules of Court determined that:
'In
every proceeding in which the State, the administration of a province
or a Minister, Deputy Minister or Administrator in his
official
capacity is the defendant or respondent, the summons or notice
instituting such proceedings may be served at the Office
of the State
Attorney situated in the area of jurisdiction of the court from which
summons or notice has been issued: ….'
[16]
If
s 15
of the
Prescription Act is
viewed
in isolation, service on the Minister of Police would have sufficed
to interrupt prescription. The defendants, however,
attack the
'effectiveness' of the service solely because service was not
effected on the State Attorney, and adds the startling
proposition
that the service on the Minister of Police is of no concern due to
the cumulative effect of the provisions of
s 2(2)
of the SLA and
s
5(1)(b)(ii)
of Act 40 of 2002.
[17]
I do not read either s 2(2) of the SLA or s
5(1) of Act 40 of 2002 to limit effective service of process by which
legal proceedings
against the State are initiated, excluively to
service on the State Attorney. At first glance, the two provisions
seem to be contradictory.
Section 2(2) of the SLA required service on
the State Attorney, while s 5(1) of Act 40 of 2002 required service
in the manner prescribed
by the rules of a court. However, although s
2(2) prescribed that such process had to be served on the State
Attorney within seven
days of the process being issued, it did not
restrict or prohibit other ways of effective service on the Minister.
Moreover, the
rules of court did not, at the time, prescribe any
manner of service when legal proceedings were instituted against the
State.
The rules provided that process could ('may') be served on the
State Attorney, it was not mandatory. When read in this context,
the
tension that seems to exist between the two statutes is difused.
[18]
Section (2)(2) of the SLA can also not be
read to mean that a plaintiff's claim would prescribe if the summons
was not served on
the State Attorney within 7 days of being issued.
Such a reading would be inconsistent with the constitutionally
protectect
right of access to courts. Section 2(2) of the SLA and
Rule 4(9) resonated with Rule 4(1)(aA) that provides –
'Where
the person to be served with any document initiating application
proceedings is already represented by an attorney of record,
such
document may be served upon such attorney by the party initiating
such proceedings.'
[19]
I don’t focus on s 5(1)(b)(ii) of Act
40 of 2002, because as it read at the time, it did not burden a
plaintiff with
any additional procedural requirements. It merely
provided an additional recipient on whom, or address where, process
could be
served if the defendant was the Minister of Safety and
Security.
[20]
Meyer
J held in
Akshardham
(Pty) Ltd v JSR 108 Investments CC and Others
[7]
that a distinction must be drawn between the situation where
proceedings commenced without notice or where the initiating document
such as the summons was served incorrectly. The process will be void
and may be disregarded or set aside where proceedings have
begun
without any notice because the subsequent proceedings are null and
void. However, subsequent proceedings where the summons
was served
incorrectly are not void but may be voided. The summons may be set
aside as an irregular step.
In
casu,
it
cannot be said that the service on the first defendant was incorrect.
It can, at most, be said that where a plaintiff did not
utilise the
concession provided for in Rule 4(9) to serve summons on the State
Attorney instead of on the Minister, the legislature
required a
further step, namely that the process through which the legal
proceedings were initiated also had to be brought to the
attention of
the Ministers' assigned legal representative, the State Attorney, by
service thereof on it. Section 2(2) did not have
the effect of
substituting the Minister as a defendant with the State Attorney or
joining the State Attorney as a party to the
proceedings. The
Minister remained the debtor. Non-service on the State Attorney, as
it was required in terms of s 2(2) of the
SLA, at most constituted an
irregular step and not a nullity. It is trite that there is a clear
distinction in our law between
juristic acts that constitute a
nullity and those constituting an irregularity. Where the irregular
step is not rectified, the
consequence of non-service on the State
Attorney would be that default judgment cannot be granted in favour
of the plaintiff, and
where it was granted, it would constitute a
ground for rescission.
In
casu,
the 'irregular step' of non-service within seven days of the summons
being issued on the State Attorney became moot when the
State
Attorney formally joined the proceedings as the defendants' legal
representative and exchanged pleadings with the plaintiff's
attorney,
and participated in pre-trial conferences. The defendants did not
make out a case on the papers that they were prejudiced
by the
non-service on the State Attorney. Prejudice is to be determined on a
case-by-case basis and on the facts set out in the
parties’
affidavits.
[21]
I agree with Mahalelo J in
Rauvane
that the purpose of s 2(2) of the SLA
is to ensure that the State Attorney obtains notice, or is informed,
of all the legal proceedings
instituted against an organ of state, by
being served with the summons. Where the summons was timeously served
on the Minister,
which is not disputed, prescription was interrupted.
[22]
As for the fact that the State Attorney was
not served with the documents by the sheriff, cognisance should be
taken that Rule 4(1)(a)
restricts the necessity of service by the
sheriff to service of process initiation proceedings with Rule 4A
providing for service
of any subsequent documentation. Where the
Minister was already served with the summons, effective service on
the State Attorney
need not be effected through the sheriff. As
stated, the State Attorney duly represented the defendants as the
matter proceeded
after the notice of default judgment regarding
quantum was served on it. In the result, I am of the view that the
two special pleas
stand to be dismissed. I therefore need not deal
comprehensively with the plaintiff's claim that the issue of
prescription is
res judicata
,
although a valid point is raised that the court already found that
the claim had not prescribed when the condonation application
in
terms of s 3(4) of Act 40 of 2002 was granted.
[23]
In considering the stated case, I noted
that although the plaintiff abandoned the default judgment on the
merits, the application
for rescission was never brought to fruition.
I raised this point with the parties after the defendants' counsel
argued in reply
that the defence of
res
judicata
cannot stand. Counsel
submitted that the issue of prescription was not argued before a
court because the rescission application
was not moved. It became
apparent that although the application for rescission was served on
the plaintiff, and the plaintiff filed
an answering affidavit and
counter application seeking condonation in terms of s 3(4) of Act 40
of 2002, the defendants never enrolled
the rescission application for
hearing. The defendants' legal representative did, however, after the
plaintiff abandoned the default
judgment, took part in the exchange
of pleadings and pre-trial meetings. I provided counsel with the
opportunity to provide written
submissions on this point.
[24]
Plaintiff's
counsel submitted with reference to the unreported judgment of
Boruchowitz J in
Body
Corporate of 22 West Road South v Ergold Property Number 8 CC
[8]
that a judgment has legal consequences until it is set aside and
requested the court to set the judgment aside. Counsel urged the
court to take note of the content of the notice in terms whereof the
plaintiff abandoned the default judgment.
[25]
Defendants'
counsel submitted with reference to applicable case law
[9]
that a judgment, whether granted by default or otherwise, has
important legal consequences and stands until it is set aside by
the
court. He stressed the unilateral nature of abandonment. He submitted
that once the judgment had been abandoned, the rescission
application
fell away, and the plaintiff cannot revive the rescission
application. The plaintiff can also not apply for the default
judgment to be rescinded in the present proceedings, as there is no
rescission application before the court.
[26]
Plaintiff's
'Notice in terms of Rule 41(2)' is instructive. The plaintiff
unequivocally stated that the defendant is desirous of
defending the
action, that the plaintiff agreed to rescission of the default
judgment, but that the action is still pending and
has not finally
been adjudicated. The defendants are opportunistic if they want to
rely on their non-action in finalising the rescission
application to
render the matter
res
judicata.
Due
to the abandonment, specifically, the terms in which the plaintiff's
abandonment was coached, I am of the view that
inter
partes
the default judgment has no effect. The constitutional court
explained in
S
v Molaudzi
:
[10]
'[32] Since res judicata
is a common-law principle, it follows that this court may develop or
relax the doctrine if the interests
of justice so demand. Whether it
is in the interests of justice to develop the common law or the
procedural rules of a court must
be determined on a case-by-case
basis. Section 173 [of the Constitution] does not limit this power.
It does, however, stipulate
that the power must be exercised with due
regard to the interests of justice. Courts should not impose
inflexible requirements
for the application of this section. Rigidity
has no place in the operation of court procedures.
[33] This inherent power
to regulate process does not apply to substantive rights but rather
to adjectival or procedural rights.
A court may exercise inherent
jurisdiction to regulate its own process only when faced with
inadequate procedures and rules in
the sense that they do not provide
a mechanism to deal with a particular scenario. A court will, in
appropriate cases, be entitled
to fashion a remedy to enable it to do
justice between the parties. This court held in South African
Broadcasting Corp Ltd: 'The
power in s 173 vests in the judiciary the
authority to uphold, to protect and to fulfil the judicial function
of administering
justice in a regular, orderly and effective manner.
Said otherwise, it is the authority to prevent any possible abuse of
process
and to allow a court to act effectively within its
jurisdiction.'
[34]
The power in s 173 must be used sparingly otherwise there would be
legal uncertainty and potential chaos. In addition, a court
cannot
use this power to assume jurisdiction that it does not otherwise
have.' (footnotes omitted) (Emphasis supplied)
[27]
Sutherland
J writing for in a Full Court in
Firstrand
Bank Ltd t/a First National Bank v Fondse and Another
,
[11]
explained:
'[30] The heart of the
Molaudzi
judgment is that when confronted with a substantial
injustice that would result from the application of
Res Judicata
and the absence of an 'effective alternative remedy' [at [39])
res
judicata
should be relaxed to prevent injustice.
…
[31]
The prominent issue is whether an abandonment of a judgment per se,
or if not per se under what peculiar circumstances, would
be proper
grounds upon which to relax the application of
res
Judicata
, if at all.'
[28]
On the facts of this case,
res
judicata
should be relaxed to prevent
injustice. The plaintiff's notice of abandonment clearly indicated
that the default judgment was abandoned
because the defendant wanted
to defend the action, but that the action remained pending. The facts
are indeed novel and unique.
The defendants' subsequent participation
in the legal proceedings is indicative that both parties accepted
that a trial court would
in future adjudicate the dispute.
Inter
partes
there exists no order that is of
any consequence.
[29]
As for costs, I find no reason to deviate
from the general principle that costs follow cause.
E van der Schyff
Judge
of the High Court, Gauteng, Pretoria
Delivered:
These reasons are handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
Counsel for the
Plaintiff:
Adv. JP van den Berg SC
With:
Adv. T Cooper
Instructed by:
Adams & Adams
Counsel for the
respondent:
Adv. HC Janse van Rensburg
Instructed
by:
State Attorney
Date of the
hearing:
7 June 2021
Reasons provided
on:
8 June 2021
Revised:
9 June 2021
[Revisions
in paras. 2 and 23]
[1]
It
must be pointed out that, as indicated below, at the time when the
summons was served s 2(2) of the SLA did not contain a sub-section
(a) and reference was made to a period of seven days.
[2]
Unreported
decision of the High Court of South Africa, Gauteng Local Division,
Johannesburg under case number 14/19009 dated 27
August 2018.
[3]
Unreported
decision of the High Court of South Africa, Gauteng Local Division,
Johannesburg under case number 14/19009 dated 27
August 2018.
[4]
Rauwane
at par [10].
[5]
2005
(4) SA 357
(SCA)
[6]
S
v Mhlungu ad Others
[1995] ZACC 4
;
1995
(3) SA 867
(CC) para [65];
Raumix
Aggregates (Pty) Ltd v Richter Sand CC and Another
2020 (1) SA 623 (GJ).
[7]
(3128/17)
[2019] ZAGPJHC 323 (16 September 2019) para [12].
[8]
2014
JDR 2258 (GJ).
[9]
Inter
alia,
Jacobson
v Havenga t/a Havenga
2001
(2) SA 177
(T),
Clipsal
Australia (Pty) Ltd v GAP Distributors
2010 (2) SA 289
SCA and
West
Road South, supra.
[10]
2015
(2) SACR 341 (CC)
[11]
(A5027/2016)
[2017] ZAGPJHC 184 (23 June 2017).