About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 19
|
|
Minister of Police v Kritzinger (HCAA 09/2018) [2019] ZALMPPHC 19 (10 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: HCAA 09/2018
10/5/2019
In the matter between:
MINISTER OF
POLICE
APPELLANT
and
JACOBUS FREDERICK
KRITZINGER
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal against the judgment and order granted by Kgomo J,
dismissing with costs the Appellant’s
application for the
rescission the judgment and order granted by MG Phatudi J, dismissing
with costs an application brought by
the Appellant for the rescission
of a default judgment granted in favour of the Respondent against the
Appellant by Raulinga J.
The appeal to the Full Court of this
Division is with leave of the Supreme Court of Appeal after Kgomo J
dismissed the Appellant’s
application for leave to appeal.
[2]
For the sake of convenience, the default judgment granted by
Raulinga
J on 8 September 2014 will hereinafter be referred to as the
default
judgment
.
The application for rescission before Phatudi J on 10 August 2016
will hereinafter referred to as the
first
rescission application
and the application for rescission before Kgomo J on 6 February 2017
will hereinafter be referred to as the
second
rescission application
.
[3]
On the 26 June 2013 the Respondent instituted an action for damages
against the Appellant in this Court
in which the Respondent sought
judgment against the Appellant in the amount of R 600 000.00
together with the interest and
costs. The Respondent’s claim
against the Appellant was based on the fact that the Respondent was
unlawfully arrested without
a warrant by a member of the South
African Police Services, acting within the course and scope of his
employment as a policeman
in the South African Police Services, for
being in possession of stolen goods namely copper and aluminum.
The
Respondent alleged in the particulars of claim that he was released
on bail, seven and half hours after being arrested and the
criminal
case was provisionally withdrawn against him on the 4 November 2011
when he attended Court.
[4]
On the 4 July 2013 the combined summons was served at 7
th
Floor, Wachthuis, 231 Pretorius Street, Pretoria allegedly being the
place of employment of the Appellant upon a certain Ms R A
Setlani
(Legal Services) as envisaged in terms of Uniform Rule 4(1)(a)(iii).
[5]
On the 25 August 2014 the Respondent filed a request for default
judgment with the Registrar of this Court,
which application for
default judgment was enrolled for hearing on the 8 September 2014 at
10H00. The Appellant had not entered
an appearance to defend the
action against him. The Notice of Set Down of the default judgment
for the 8 September 2014 was not
served on the Appellant but only
filed with the Registrar of this Court. On the 8 September 2014
Raulinga J granted the default
judgment. Raulinga J did not hear
evidence in regard to the quantification of the Respondent’s
claim against the Appellant
and relied on a damages affidavit which
had been filed by the Respondent.
[6]
On the 26 June 2015 the Appellant instituted the first rescission
application. The Respondent opposed
the first rescission application
on the 1 July 2015 and delivered his answering affidavit on the 17
July 2015. On the 26 May 2016
the Appellant delivered the Notice of
Set Down of the rescission application for hearing on the 10 August
2016. On the 10 August
2016 Phatudi J dismissed with costs the first
rescission application on the basis that the Appellant was in default
by not appearing
at the first rescission application.
[7]
On the 2
nd
September 2016 the Appellant instituted the
second rescission application in terms whereof the Appellant sought
an order rescinding
and setting aside the first rescission
application by Phatudi J and the default judgment granted by Raulinga
J. The second rescission,
which was opposed by the Respondent, was
enrolled for hearing on 6 February 2017 and after argument was
dismissed with costs by
Kgomo
J.
[8]
The Appellant’s application for leave to appeal
against the order and judgment of Kgomo J was dismissed
with costs by
Kgomo J on the 12 May 2017. It is to be noted that the Appellant
failed to appear in Court on that day and the dismissal
order was
granted in default. On the 29 May 2018 the Supreme Court of Appeal
granted the Appellant leave to appeal to the Full
Court of this
Division against the judgment and order of Kgomo J.
Issues
to be determined
[9]
The issues to be determined in this appeal are:
9.1.
Whether Kgomo J erred in dismissing with costs the Appellant’s
application for the
rescission of the judgment and order granted by Phatudi J on 10
August 2016.
9.2. Whether
the Appellant was entitled to have the order granted by Phatudi J
rescinded in terms of Rule 42(1)(a) or
common law.
9.3. Whether
the default judgment granted by Raulinga J on 8 September 2014 falls
to be rescinded in terms of Rule 42(1)(a)
or Rule 31(2)(b).
Appeal against
judgment and Order of Kgomo J i.e
Second Rescission
[10] When
Kgomo J dismissed the second rescission application, the learned
Judge did not deal with the first rescission
application at all. The
learned Judge was enjoined to hear and determine the first rescission
application, on its merits, and thereafter
should have considered the
rescission application to set aside the default judgment. The
Appellant sought to rescind and set aside
the order granted by
Phatudi J in the first rescission application in terms of the
provisions of Uniform Rule of Court 42(1)(a)
and / or the common law.
This second rescission
application was set down for hearing on 6 February 2017 and after
hearing argument, the second rescission
application was dismissed
with costs by Kgomo J.
[11]
If regard is had to the contents of the judgment by Kgomo J, it is
respectfully hard to understand and comprehend
the reasons and basis
upon which he dismissed the second rescission. Kgomo J made a finding
that the second rescission application
and subsequent order granted
by Phatudi J was not in the absence of the Appellant and therefore
subject to an appeal and not an
application for rescission of
judgment. This in my view is a misdirection.
[12]
If Kgomo J had correctly and properly had regard to the contents of
the Appellant’s founding and supplementary
founding affidavits,
it would have been clearly apparent to the learned Judge that when
Phatudi J granted the order dismissing
the first rescission
application, neither the Appellant nor his legal representative were
in Court and accordingly the only finding
that the learned
Judge could have made in this regard was to the effect that the order
of Phatudi J had been granted in the
absence of the Appellant and his
legal representative.
[13] Having
made a finding that the order of Phatudi J was made in the presence
of the Appellant’s legal representative
and not in default,
Kgomo J made a finding that a rescission application was not the
appropriate remedy for the Appellant to file
but that the Appellant
should have noted an appeal against the order of Phatudi J. The
learned Judge erred in this regard. Accordingly
the appeal against
the judgment and order of Kgomo J should succeed.
Appeal
against judgment and Order of Phatudi J i.e First rescission
[14]
It is common cause that Phatudi J, when dismissing the first
rescission application, did not have regard to nor
consider the
merits of the first rescission application. It is further common
cause that the Respondent’s legal representative
did not
address argument to Phatudi J on the merits of the first rescission
application. It is apparent that Phatudi J dismissed
the first
rescission application due to the fact that neither the Appellant nor
his legal representative appeared at the hearing
on 10 August 2016.
In fact Phatudi J’s order was granted in the absence of the
Appellant and his legal representative and
it therefore constitutes a
default judgment. The order was not a final order and in the premises
it was not appealable and was
capable of being rescinded by the Court
that granted it
[1]
.
[15]
The facts upon which the Appellant sought to rescind the order
granted by Phatudi J are set out hereunder.
[16]
The first rescission application was set down for hearing on 10
August 2016. On Friday the 5
th
of August 2016 the Appellant’s attorney’s served a notice
of removal from the roll dated the 4
th
of August 2016 which notice was served on the Respondent’s
attorneys. The Respondent’s attorneys never objected to
the
removal of the first rescission application from the roll. The
aforesaid notice was filed with the Registrar on Monday the
8
th
of August 2016.
[17]
The reasons why the Appellant sought to remove the first rescission
application from the roll was that the Court
file had not been
properly indexed and paginated, the Appellant’s supplementary
affidavits and amended notice of motion and
heads of argument and
practice note had not been served and filed and the Respondent’s
heads or argument and practice note
had not been served on the
Appellant’s attorneys. The application was accordingly in the
Appellant’s view not ripe
for hearing as there had not been
compliance with certain practice directives of this Court.
[18]
On the date that the first rescission application had been set down
for hearing, namely the 10
th
of August 2016, the attorney for the Respondent attended Court to
proceed with the hearing of the application. The legal representative
of the Appellant was not in attendance when the application was
called before Court. The Appellant’s Counsel did not
attend Court on that date as he had been advised that the first
rescission application had been removed from the roll by notice.
The
legal representative of the Respondent requested the Court to dismiss
the application and the Court granted the dismissal order
with costs.
[19]
It i
s
not apparent from the record whether the Court was informed that the
matter had been removed from the roll by notice or whether
such
notice of removal was filed of record in the Court file. In my view
the order for dismissal of the rescission application
was erroneously
granted. A judgment is erroneously granted if there existed at the
time of its issue, a fact of which the Court
was unaware, which would
have precluded the granting of the judgment and which would have
induced the Court, if aware of it, not
to grant the judgment
[2]
.
[20] An order
erroneously sought and / or erroneously granted in the absence of an
affected party falls to be rescinded
in terms of Rule 42(1)(a) of the
Uniform Rules of Court.
Rule
42(1)(a) provides that:
“
The
Court may, in addition to any 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.”
[21]
The
law governing an application for rescission of judgment under Uniform
rule 42(1)(a) is trite. The Applicant must show that the
default
judgment or order had been erroneously sought or erroneously granted.
If the default judgment was erroneously sought or
granted, a Court
should, without more, grant the order for rescission
[3]
.
It is not necessary for a party to show good cause under the
subrule
[4]
. Generally a judgment
is erroneously granted if there existed at the time of its issue a
fact which the Court was unaware of, which
would have precluded the
granting of the judgment and which would have induced the Court, if
aware of it, not to grant the judgment
[5]
.
[22]
As already stated above, it is common cause that Phatudi J’s
order dismissing the first rescission application
with costs was
granted in the absence of the Applicant and / or his legal
representative. Phatudi J’s order was erroneously
sought and /
or erroneously granted as it was clear both to the Respondent’s
legal representative and Phatudi J at the time
when he dismissed the
first rescission application, that the Appellant still intended to
proceed with the application but had only
removed same from the roll.
The learned Judge should therefore not have dismissed the application
but should have simply struck
the application from the roll because
of non-appearance of the Appellant and / or his legal representative.
[23] For all
of the aforesaid reasons, Kgomo J should have found that the order
granted by Phatudi J dismissing the
first rescission application with
costs was erroneously sought and / or erroneously granted and
therefore falls to be rescinded
and set aside in its entirety.
Rescission
of default judgment by Raulinga J
[24]
It is trite that the High Court has the inherent power to protect and
regulate its own process if it is in the
interest of justice to do
so
[6]
. Having upheld the appeal
in respect of the second rescission application and setting aside the
order of Phatudi J in respect of
the first rescission application, it
is our view that it will be in the interest of justice that the
rescission of the default
judgment granted by Raulinga J be
considered by this Court in order to avoid further delay in the
finalization of the case by the
Court
a
quo
.
[25]
The rescission and setting aside of the default judgment granted by
Raulinga J was brought in terms of the provisions
of Rule 42(1)(a)
alternatively in terms of Rule 31(2)(b). As stated above when
considering the first rescission application, an
order erroneously
sought and / or erroneously granted in the absence of an affected
party falls to be rescinded in terms of Rule
42(1)(a).
In
casu,
it
is common cause that the order granted by Raulinga J was granted in
the absence of the Appellant.
[26]
In general terms, a judgment is erroneously granted if there existed
at the time of its issue, a fact of which
the Court was unaware,
which would have precluded the granting of the judgment and which
would have induced the Court, if aware
of it, not to grant the
judgment
[7]
.
[27] The
Appellant relies on the following grounds in his contention that the
default judgment was erroneously sought
and / or granted:
27.1. That the service of
the summons and particulars of claim on the Appellant was improper.
The Sheriff’s return of service
indicates that summons was
served at the place of employment of the Appellant at Wachrhuis
Pretoria, upon Ms R A Setlani. Firstly,
the said address is not the
place of employment of the Appellant and secondly it is not competent
in terms of the Rules to serve
a summons on the place of employment
of a Minister. Rule 4(9) provides that in every proceeding in which a
Minister in his official
capacity is the defendant or respondent, the
summons are served on the Office of State Attorney situated in the
area of jurisdiction
of the Court from which the summons has been
issued.
In the
circumstances there has not been compliance with Rule 4(9) when the
summons was purportedly served on the Appellant.
27.2. In terms of section
5(1)(b) of the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002 any process
by which legal proceedings
are instituted against the Minister of Police may be served on the
National Commissioner of South African
Police Services or the
Provincial Commissioner of the South African Police Services.
Needless to say that
in casu
the summons was not served
in this manner.
27.3.
Section 2(2)
of the
State Liability Act 20 of 1957
provides that a plaintiff must, within
seven days after a summons instituting proceedings and in which the
executive authority
of a department is cited as a nominal defendant,
serve a copy of that summons on the State Attorney. The aforesaid
provisions of
the
State Liability Act are
peremptory and failure to
comply with same renders the service of summons defective.
[28]
In my view if Raulinga J had been aware of the aforesaid defects in
regard to the service of the summons, the learned
Judge would not
have granted the default judgment on 8 September 2014. Accordingly
the default judgment was erroneously sought
an / or granted and falls
to be rescinded in terms of
Rule 42(1)(a).
[29]
Rule 31(2)(b)
provides that a defendant may, within 20 days after he
or she has acknowledge the judgment, apply to Court upon notice to
the plaintiff,
to set aside such judgment and the Court may, on good
cause shown, set aside the default judgment upon such terms as it
seems meet.
The requirements for an application for rescission under
this sub rule are trite and have been stated to be as follows
[8]
:
29.1.
The applicant must give a reasonable explanation for the default,
which default must not be willful;
29.2.
The application must be
bona
fide
and not be made with the intention of delaying the plaintiff’s
claim;
29.3. It must be shown
that there is a
bona fide
defence.
[30]
It is common cause that he summons in this matter was not served at
the Office of State Attorney, National Commissioner
of Police or
Provincial Commissioner of Police. By virtue of this fact the
institution of the action did not come to the knowledge
of the State
Attorney and the other two offices. In the premises, it cannot be
said that the Appellant was in willful default in
not delivering a
notice of intention to defend the Respondent’s action against
him.
[31]
It is apparent that if regard is had to the facts as set out in the
affidavits filed in the first rescission application,
(for the sake
of brevity I need not repeat the facts) the Appellant has a
bona
fide
defence
to the Respondent’s claim against him. This is so in the sense
that it is sufficient if a
prima
facie
defence is made out by setting out averments which, if established at
the trial, will entitle the defendant to the relief asked
for. The
defendant need not deal fully with the merits of the case and produce
full evidence that the probabilities are actually
in his favour.
[32]
The Respondent’s claim against the Appellant is based on the
fact that the Respondent was unlawfully arrested
without a warrant by
a member of the South African Police Service for being in possession
of stolen goods, namely copper and aluminum,
and as a result of his
unlawful detention, suffered damages in the amount of R 600 000.00.
[33] The
Appellant has raised a defence based on
section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
which provides that a peace officer
may, without a warrant, arrest any person who he reasonably suspects
of having committed an
offence referred to in Schedule 1. The offence
of receiving stolen property knowing it to be stolen is an offence
referred to in
Schedule 1.
A further defence which
the Appellant has against the Respondent’s claim is the fact
that the amount awarded in terms of the
default judgment, namely R
600 000.00, can never be justified on any basis, let alone
on the facts as set out in the
damages affidavit filed with the
request for default judgment.
Costs
[34]
Legal costs normally follow the event and the costs order is in the
discretion of the Court. In this case the Appellant
has been
successful in his applications for rescission as well as on appeal
but we are of the view that the Appellant should be
deprived of his
legal costs due to the lackadaisical manner in which he conducted the
litigation.
[35] It was
only after almost a year that the Appellant filed his first
rescission application. When the application
was already set down and
was to be argued on 10 August 2016 before Phatudi J, the Appellant
without consultation with the Respondent’s
attorney removed the
matter from the roll. Among the reasons for removal of the
application from the roll was the Appellant’s
failure to index
and paginate the Court file and file heads of argument. The dismissal
of the application on 10 August 2016 gave
rise to the second
rescission application.
[36] A
belated second rescission application was argued before Kgomo J on
the 6 February 2017. After the dismissal of
the second rescission
application by Kgomo J, the Appellant served and filed an application
for leave to appeal. The Appellant
and / or his legal representative
failed to attend Court on 12 May 2017 to argue the application for
leave to appeal. Consequently
this application was dismissed with
costs.
The Appellant then
approached the Supreme Court of Appeal for a special leave to appeal
which was granted on 29 May 2018.
[37] In its
judgment granting the Appellant leave to appeal to this Court, the
Supreme Court of Appeal on page 5 of
the judgment remarked:
“
Although
the appellant’s procedural failures have been
deplorable
they
are not such as to warrant the refusal of condonation (my
underlining).”
I
cannot agree more.
In the circumstances it
is only fair and just that the Appellant should be deprived of the
costs in respect of the first and second
rescission applications as
well as the costs of appeal. The costs in respect of the first and
second rescission applications should
be the costs in the course.
Order
[38] The
appeal succeeds and the following orders are made:
1.
The appeal against the judgment and order of Kgomo J is upheld.
2.
The order granted by Kgomo J on 6 February 2017 dismissing with costs
the Appellant’s application
for rescission of the judgment and
order by Phatudi J on 10 August 2016 is set aside in its entirety and
replaced with the following
order:
2.1. The
judgment and order granted by Phatudi J on 10 August 2016 is
rescinded and set aside in its entirety.
2.2. The
default judgment granted in favour of the Respondent against the
Appellant by Raulinga J on 8 September 2014
is rescinded and set
aside in its entirety.
3.
The costs in respect of the application for
the rescission of default judgment, including the costs
in respect of
the applications before Phatudi J and Kgomo J shall be costs in the
course.
4.
Each party shall pay his own costs of the appeal.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
G
C MULLER
JUDGE
OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
L
G P LEDWABA
ACTING
JUDGE OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 18
April 2019
Judgment
delivered on
: 10 May 2019
For
the Appellant
: Adv. S.P Pincus SC
Adv.
C Kwinda
Instructed
by
: State Attorney
Polokwane
For
the Respondent
: Mr N
Bosman
Instructed
by
: Bosman Attorneys
Polokwane
[1]
Pitelli v Everton Gardens Projects CC
2010 (5) SA 171
(SCA) at para
27
[2]
See Rossitter & Others v Nedbank Ltd 96/2014
(2015) ZASCA 196
at
para 16
[3]
Bakoven Ltd v G J Howes (Pty) Ltd
1992 (2) SA 466
E at 471G
[4]
National Pride Trading 452 (Pty) Ltd v Media 24 Ltd 2010 (6) SA
(ECP0 at 597I – 598B
[5]
Erasmus: Superior Court Practice 2 ed (Revision Service 1, 2005) Vol
2 at D1 – 567
See also Naidoo v Matlala NO
2012 (1) SA 143
(GNP) at 153 C
[6]
Section 173 of the Constitution of the Republic of South Africa,1996
[7]
Rossiter & Others v Nedbank Ltd (96/2014) ZASCA 196 (1 December
2015) at para 16
[8]
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) [2003] 2 ALL SA 113 (SCA)