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[2019] ZAGPPHC 105
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MEC For Social Development Gauteng Provincial Government and Another v Leslie In re: Bredenkamp v MEC For Social Development Gauteng Provincial Government and Another (92415/2016) [2019] ZAGPPHC 105 (28 March 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE No:
92415/2016
28/3/2019
In
the matter between:
THE
MEC FOR SOCIAL DEVELOPMENT
GAUTENG
PROVINCIAL GOVERNMENT
First Applicant
HEAD
OF DR FABIAN AND FLORENCE
RIBEIRO
CENTRE
Second Applicant
and
GORDON
LESLIE
Respondent
In
re:
the action
between:
GORDON
LESLIE BREDENKAMP
Plaintiff
And
THE
MEC FOR SOCIAL DEVELOPMENT
GAUTENG
PROVINCIAL GOVERNMENT
First Defendant
THE
HEAD OF DR FABIAN AND FLORENCE
RIBEIRO
CENTRE
Second Defendant
JUDGMENT
TOLMAY
J:
[1]
This
is an application for rescission of a judgment granted in favour of
the Respondents on 15 May 2017 against the Applicants.
The Applicants
brought this application in terms of the provisions of Rule 31(2)
(b), alternatively 42(a) further alternatively
the common law. The
Applicants also seek condonation for the non-compliance with the 20
days' time limit, within which an application
needs to be brought in
terms of Rule 31(2)(b).
[2]
The
Respondent sued the Applicants for damages resulting from a veld
fire, which the Respondent says originated on the grounds of
the Dr
Fabian and Florence Ribeiro Centre ("the Centre"). After
the Applicants failed to file a notice of intention to
defend, the
Respondents enrolled a default judgment application and the Court
granted an amount of R1 546 645-28 as damages.
[3]
The
summons was served on the Applicants on 30 November 2016, together
with three other summonses, one of which related to the same
veld
fire, which occurred on 16 September 2015 and two others, to a veld
fire that occurred on 8 November 2015.
[4]
The
Applicants were late in the filing of their replying affidavit and
brought a condonation application. Respondent did not oppose
this
condonation application.
[5]
The Applicants filed this application for rescission of the default
judgment on 4
July 2017.
THE
DEFAULT
[6]
It
is common cause that the summons was served on the Applicants on 30
November 2016. It must be noted that at that point the Respondent
was
represented by Morajane and Du Plessis Attorneys. However Bredenkamp
Attorneys represented Respondent in the rescission application,
Mr
Bredenkamp is the son of the Respondent. Mr Bredenkamp is also the
deponent to the affidavit in the rescission application and
not the
Respondent himself. It appears from the file, which was in a rather
sorry state, that the default application was filed
by Bredenkamp
attorneys, but I could find no notice of withdrawal from Marojane and
Du Plessis Attorneys. The Respondents enrolled
the matter and should
have ensured that the file was properly prepared for the hearing.
[7]
On
1 December 2016 the summons together with the three summonses
previously referred to, were emailed by Mr Bredenkamp, to Mr Nel,
at
the State Attorney, who in a previous similar matter, was the
attorney of the Applicants. After Mr Nel did not respond to the
email, an email was sent to him on 4 December 2016, by Mr Bredenkamp,
informing him that the summonses were uploaded to a Dropbox.
On 6
December 2016, Mr Nel requested that the summonses be emailed to him,
as the Dropbox apparently took too long to open. The
summonses were
emailed to Mr Nel on the same day. On 11 January 2017 Mr Bredenkamp
phoned Mr Nel and reminded him to enter appearance
to defend. Mr Nel
requested a week to do so. The time to enter appearance to defend
expired on 14 December 2016. Subsequent to
this the default judgment
was granted on 15 May 2017. It is important to note that during the
period before the default application,
Mr Bredenkamp did not hold
instructions from the Respondent It is not clear at which point Mr
Bredenkamp became the attorney of
the Respondent and when Marojane Du
Plessis Attorney withdrew as attorneys for the Respondent, if they
ever did.
[8]
On
16 May 2017, a day after default judgment was granted an intention to
defend was delivered. On 26 May 2017 an inspection
in
loco
was arranged, but this was
according to Mr Bredenkamp cancelled by Mr Nel. On 31 May 2017 Mr
Bredenkamp, in an email enquired from
Mr Nel whether he intended to
conduct an inspection in
loco.
On
2 June 2017 an inspection
in loco
was
conducted by Mr Nel and two advocates. Mr Bredenkamp stated that two
eyewitnesses were made available for an interview. Mr Bredenkamp
alleged that Mr Nel interviewed only one of them.
[9]
On 19 June 2017 Mr Nel requested copies
of the court documents from Mr Bredenkamp, as he experienced
difficulty in locating the
court file. On 21 June 2017 Mr Bredenkamp
in an email indicated his willingness to provide Mr Nel with the
documents as requested.
On 4 July 2017 the Respondent received the
rescission application.
[10] The
Applicants explained that the intention was always to defend the
action, but that they failed to
deliver the notice of intention to
defend for the following reasons:
1.
The
Second Applicant, who was the head of the two facilities at the
centre forwarded the summons to the legal department of the
First
Applicant in order for them to deal with it.
2.
According
to the director of legal services of First Applicant, a file was
opened and the matter was allocated to one of the employees
in the
office, this employee resigned, on or about 15th January 2017. It is
important to note that the employee was not identified.
This employee
apparently failed to file a notice of intention to defend. There was
no indication on the papers of who took over
the duties of this
unnamed employee. The paucity of information from the Applicants
points to a lackadaisical approach by officials
in the legal
department of the Applicants in dealing with their duties.
[11]
The
legal department say they became aware of the default judgment on 15
May 2017, which is the day on which the default judgment
was granted.
[12]
Mr
Bredenkamp launched a scathing attack on Mr Nel personally and
accused him of grossly negligent conduct and a dereliction of
his
duties. Mr Nel explained that the legal department of the Applicants
initially had to deal with the summons, more specifically
in filing a
notice of intention to defend, or instructing an attorney to do so.
No such instructions were given to him, before
17 May 2017. As a
result he was not mandated to act on behalf of the Applicants in this
matter.
[13]
Mr
Nel had to get instructions from the Applicants before he could act.
As he held no instruction prior to this date, there was
no legal
obligation on him to take any steps on behalf of the Applicants. It
is however regrettable that Mr Nel did not at the
very least informed
Mr Bredenkamp of the fact that he did not have instructions from the
Applicants and that his hands are tied.
[14]
As
already stated Mr Bredenkamp was not the attorney for the Respondent,
when the summons was issued, it is also unclear from which
point he
acted on behalf of the Respondent. It is not clear when he took over
as attorney, nor why he deposed to the affidavit
in the rescission
application and not the Respondent himself. The fact that he is the
son of the Respondent might have brought
him too close to the fire.
It is often not advisable for someone to act on behalf of a family
member, as the lines between one's
personal and professional duties
could easily get blurred.
[15]
It
was argued on behalf of the Applicants that Mr Bredenkamp was at all
times aware of the fact that the Applicants were going to
defend the
action, as this was clear from his interaction with Mr Nel. Despite
this Mr Bredenkamp from 11 January 2017 onwards
never again
communicated with Mr Nel and proceeded to take default judgment.
Although it was not suggested that there was an obligation
on Mr
Bredenkamp to notify Mr Nel, it was argued that in the light of their
communication prior to this, one would have expected
Mr Bredenkamp to
have alerted Mr Nel to the fact that Respondent was going to proceed
and obtain default judgment.
[16]
Although Mr Nel was forewarned and knew about the summons, the
summons was not formally served on the
office of the State Attorney.
Mr Nel was also in the invidious position that he did not hold
instructions at that point and only
obtained instructions on 17 May
2017, after default judgment was granted. Although one could
legitimately argue that Mr Nel could
have made an effort to attend to
the matter, he had no legal obligation to do so, as he did not
receive instructions from the Applicants.
The crux of the matter is
that from a legal and procedural vantage point, two attorneys were
communicating about a matter in which
neither one held any
instructions from the parties. Legally neither one of them was
entitled to act on behalf of the litigants,
when the summons was
issued and served. In this regard I am of the view that both
attorneys could and should have acted with more
circumspection.
[17]
There
is however no excuse for the blatant failure in Applicants' legal
department. Unfortunately, this type of ineptitude has become
rather
common in matters concerning the state. To just blame an unnamed
employee, who allegedly resigned, is to say the least,
unsatisfactory
and it does not bode well for the effective running of the legal
department of the Applicants.
[18]
Whether
the explanation for the default and the delay in bringing the
application is reasonable, must be weighed in the broader
context of
the case and as a result one must look at the defences raised, before
pronouncing on whether the explanation should
be accepted.
THE
DEFENCES RAISED
[19]
The Applicants raised several defences,
but due to the conclusion that I reached I only deem it necessary to
deal with the defence
raised relating to the merits of the claim
itself. The Applicants claim that the fire did not originate or
re-ignite within the
facility under the control of the Applicants. An
affidavit is attached by a Mr Gous, who was an employee of Second
Applicant and
who was a member of the fire team at the centre. He was
also, according to Applicants, an eyewitness to the fire.
[20]
He said that on 17 September 2015 he was
at work at the mens' facility of the centre, when he was alerted to a
fire approaching
the womens' facility. Members of the fire team were
then dispatched to the womens facility. While they were approaching,
he could
see that there was a fire to the northern side of the
facility, spreading towards them, as the wind was blowing in their
direction,
which was in a southerly direction in relation to the
fire.
[21]
After they arrived and positioned
themselves, in order to prevent the fire from spreading, the wind
changed direction and the fire
started spreading in an easterly
direction, to where the property of the Respondent is situated. He
said that Tshwane municipality
cut firebreaks at both the male and
female facilities of Second Applicant approximately three months
earlier, but he doubted whether
any firebreak could have prevented
the spreading of the fire, as the wind was very strong.
[22]
He said that, on his arrival at the
women's facility, he saw that the fire was also on the adjacent
property to the northern side.
He categorically denied that the fire
originated or re-ignited in the facility. He said that the fire
undoubtedly came from the
property adjacent to property 482 JR, from
the northern side and then spread to the property of the Respondent.
[23]
Mr Bredenkamp took issue with Mr Gous's
version, and attached Google images to the answering affidavit, on
which the point, where
he alleged the staff of the centre allegedly
gathered and burned their refuse, and where the fire originated, was
indicated. A
video clip, showing burning refuse at a staff residence
at the centre, and taken by Mr Bredenkamp's brother on 13
September2015,
was attached. The fire that caused the damage occurred
on 17 September 2015 and the video clip cannot prove conclusively
that this
resulted in the fire that occurred on 17 September 2017. Mr
Bredenkamp also attached photographs taken by himself on 11 July 2017
to prove that the grass around the male and female facilities had not
been cut.
[24]
He also attached emails to Mr Nel and
the Applicants in which he complained about the Applicants lack of
proper fire prevention
and the hazard of potential fires spreading
from Applicants' premises.
[25]
In this instance the Applicants have an
eyewitness, who stated that the fire did not originate or re-ignite
at the centre. From
the above it is clear that the dispute can only
be properly ventilated in open court, when evidence, is led and the
witnesses,
are subjected to cross-examination. No inferences
regarding credibility can be drawn on the evidence presented on
affidavit.
[26]
The Google images standing on their own
cannot, without supporting evidence proof that the fire originated or
re-ignited from within
the facility on the relevant day, nor can the
video clip, previously referred to. ·
[27]
The Applicants raised some other
defences,
inter alia
their
duty of care, statutory duty, whether the First Applicant was the
owner and/or in occupation or control of the property and
whether the
quantum
was
properly proven, during the default judgment application. Due to the
conclusion I reached I did not deem it necessary to deal
with these
defences and the court hearing the matter can deal with these
defences if the Applicants persist with them.
APPLICATION
OF THE FACTS TO THE LEGAL PRINCIPLES
[28]
The
Applicants brought their application based on Rule 31(2)(b),
alternatively Rule 42(a), further alternatively the common law.
There
exists no basis on which it could be argued that this application
falls under Rule 42(a), as there is no evidence that the
judgment was
erroneously sought or granted in the absence of the Applicants. As a
result only Rule 31(2)(b) and the common law
principles are relevant.
[29]
Rule
31(2)(b) requires that a rescission application be brought within 20
days of the application coming to the knowledge of the
Applicants,
under the common law it should be brought within a reasonable time.
[30]
The
application should accordingly have been brought on, or before 14
June 2017, but was only filed on 4 July 2017. Whether condonation
should be granted must be considered, taking into account all the
relevant facts and circumstances of the case.
[31]
In
an application for rescission of judgment good cause must be shown,
as well as a serious intention to proceed with the case
[1]
.
It is trite that to show good cause, a reasonable explanation must be
given for the default, be bona fide and must show that the
Applicants
have a
bona fide
defence
to the claim
[2]
.
However these requirements are not exhaustive and the Court has
a very wide discretion
[3]
.
[32]
While
a Court may well decline to grant relief, where the default has been
wilful or due to gross negligence, it cannot be accepted
that the
absence of wilful default and/or gross negligence in relation to the
default is an essential criterion or an absolute
prerequisite, for
the granting of relief
[4]
.
[33]
In
Silber v Owen Wholesalers (Pty)
Ltd
[5]
it was held that in order to
establish that one was not in wilful default, all that is required is
that the reasons for default
are set out in a manner, which is
sufficiently full to enable the Court to understand how it really
came about and to assess the
Applicants conduct and motives.
[34]
In
De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
[6]
,
The following was stated:
" An application for
rescission is never simply an enquiry whether or not to penalise
a
party for his
failure to follow the rules and procedures laid down for civil
proceedings in our courts.
The
question is, rather, whether or not the explanation for the default
and any accompanying conduct by the defaulter, be it wilful
or
negligent or otherwise. gives rise to the probable inference that
there is no bona fide defence and hence that the application
for
rescission is not bona fide. The magistrate's discretion to rescind
the judgment of his court is therefore primarily designed
to enable
him to do justice between the parties.
He should exercise that discretion by balancing the interests of the
parties, bearing in mind the considerations referred to in
Grant v
Plumbers (Pty) Ltd (Ibid) and HOS Construction (Pty) Ltd v Wait
(Ibid)
and
also any prejudice which might be occasioned by the outcome of the
application. He should also do his best to advance the good
administration of justice. In the present context this involves
weighing the need, on the one hand, to uphold the judgments of
the
courts which are properly taken in accordance with accepted
procedures and, on the other hand, the need to prevent the possible
in justice of a judgment being executed where it should never have
been taken in the first place, particularly where it is taken
in
a
party's
absence without evidence and without his defence having been raised
or heard".
[35]
However,
when the head of a government department, litigates, it should
conduct itself in such a manner as to avoid unnecessary
delays and
cost orders. The Applicants in this matter failed abysmally in their
duty to act with due diligence and by doing so
wasted tax payers
money, by causing unnecessary litigation. As already stated the
Applicants employees' conduct is inexcusable.
[36]
It
has been held in
Mnandi Property
Development
[7]
that the requirement of 'good cause'
cannot be held to be satisfied unless there is evidence, not only of
the existence of a substantial
defence but, in addition, to a
bona
fide
defence, a presently held
desire, on the part of the Applicant to actually raise the defence
concerned in the event of the judgment
being rescinded. In this
instance the notice of intention to defend was filed immediately
after the default judgment was granted.
An inspection
in·
loco
was held. There was a search
for the court file and a request to Mr Bredenkamp to supply copies of
the documents. Mr Nel obtained
copies of the court documents from Mr
Bredenkamp on 21 June 2017. On 4 July 2017 the application for
rescission was filed. These
are all indicators of a desire by the
Applicants to raise the defence proffered by them.
[37]
An
applicant in a rescission application need not show a probability of
success on the merits, it suffices if it demonstrates a
prima facie
case in the sense of setting out averments which, if established at
the trial, would entitle the Applicant to the relief
asked for. The
Applicant need not deal fully with the merits of the case.
[8]
[38]
In
the matter of
RGS Properties (Pty)
Ltd v Ethekwini Municipality
[9]
the court stated that it is not
seized with evaluating the merits of the alleged bona fide defence
proffered by the applicant for
rescission, but the nature of the
defence advanced, must not be such that it prima facie amounts to
nothing more than a delaying
tactic on the part of the applicant.
[39]
The
affidavit filed by the eyewitness sets out a
bona
fide
defence and it is not for this
court to pronounce on the prospects of success of the Applicants at
this stage, but it is clear that
the Applicants .demonstrated a
prima
facie
case.
CONCLUSION
[40]
In
the light of all the circumstances of the case I am of the view that
despite the Applicants' gross negligence in dealing with
this matter
timeously, the rescission application should succeed and condonation
should be granted for the failure to bring the
application within the
required 20 days as the requirements of Rule 31(2) (b) were met.
[41]
When
the delay is considered with due regard to the defence raised I am of
the view that the judgment should be rescinded, but Applicant
should
pay the costs of the application.
[42]
The following order is made:
1.
Condonation
is granted for the late filing of the replying affidavit and the
failure to launch the application within the time limits
prescribed
in Rule 31(2)(b).
2.
The
default judgment granted on 15 May 2017 under case number 92415/2016
is rescinded and set aside.
3.
The
Applicants are ordered to pay the costs of the Respondent jointly and
severally, the one paying, the other to be absolved, which
costs will
include the costs of two counsel.
R
G TOLMAY
JUDGE
OF THE HIGH COURT
HEARD
ON:
28-2-2019
DATE
OF ORDER:
28-3-2019
DATE
OF JUDGMENT:
APPLICANT'S
ATTORNEY:
STATE ATTORNEY
APPLICANT'S
COUNSEL:
ADV MMW VANZYL (SC)
ADV
C SEVENSTER
RESPONDENT'S
ATTORNEY: BREDENKAMP
ATTORNEYS
RESPONDENT'S
COUNSEL:
ADV RM ROBINSON (SC)
ADV
B BROWN
[1]
Herbstein & Van Winsen: The Civil Practice of the High Court of
South Africa, 5
th
ed; Cilliers, Loot s & Nel p 715
(Herbstein & Van Winsen)
[2]
Grant v Plumbers (Pty) Ltd 1949(2) SA 470 (O) at 476
[3]
Herbstein & Van Winsen supr a, p 715 vtnt 98
[4]
Saravia Construction (Pty) Ltd v Zululand Electrical and Engineering
Wholesalers (Pty) Ltd 1975(1) SA 612 D at 615. See also
Zealand v
Milborough 1991(4) SA 836 at 838 (E)
[5]
1954(2) SA 345 (A) at 353 (A)
[6]
1994 (4) A 705 (El at 711E - I, See also Mnandi Property Development
CC v Benmore Development CC
1999 (4) SA 46
2 (W) at 465, Harris v
Absa Banks Limited, t/a Volkskas 2006 (4) SA 527 (T)
[7]
Ibid
at 464H- I.
[8]
Sanderson Technitool (Pty) Ltd v intermenua (Pty) Ltd
(1980)
2 All SA 475
(W) at 477.
[9]
2010 (6) SA 572
(KZD) at 575H • 576D.