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[2019] ZAKZPHC 79
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Provincial Commissioner KwaZulu-Natal and Another v Acclam Investments CC (AR580/2018, 1929/16) [2019] ZAKZPHC 79 (3 December 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL CASE NO:
AR580/2018
CASE
NO: COURT A QUO 1929/16
In
the matter between:
PROVINCIAL
COMMISSIONER KWAZULU-NATAL
Appellant
SOUTH
AFRICAN POLICE SERVICES
(Defendant in the Court
a
quo
)
and
ACCLAM
INVESTMENTS
CC
Respondent
(Plaintiff
in the Court
a
quo
)
Coram:
Seegobin J et Khuzway AJ
ORDER
(a)
The appeal is upheld with costs.
(b)
The order of the court
a quo
is set aside and is replaced with
the following:
‘
(i)
The default judgment granted against the applicant on 28 July 2017 is
hereby rescinded.
(ii)
The applicant/defendant is granted leave to defend the action.
(iii)
The costs are reserved for decision by the trial court.’
JUDGMENT
SEEGOBIN
J
[1]
This is an appeal against the judgment and order of the Magistrates
Court, Durban,
delivered on 29 June 2018 refusing an application by
the appellant for rescission of a default judgment granted against it
on 28
July 2017.
[2]
The relevant facts are the following:
2.1
On 6 March 2016 at approximately 16h20 a collision occurred at or
near Hosking Street, Glencoe,
KwaZulu-Natal, between the respondent’s
vehicle, a Toyota Corolla 1.4D and a motor vehicle bearing
registration marks [….],
being a police vehicle driven by one
S A Zulu.
2.2
On the basis that the said S A Zulu was acting in the course and
scope of his employment
with the appellant
alternatively
as
agent furthering the interest of the appellant, the respondent
instituted action against the appellant out of the Magistrates
Court,
Durban, claiming damages in the sum of R54 050-30. The
respondent alleged that the sole cause of the collision was
the
negligent driving of the said SA Zulu at the time.
2.3
The summons was served at the offices of the Provincial Commissioner
of the South African
Police Service on 19 July 2016.
2.4
No appearance to defend was filed and accordingly on 28 July 2017
default judgment was granted
against the appellant for payment of the
amount claimed together with interest and costs.
2.5
On becoming aware of the default judgment the appellant, through the
Office of the State
Attorney (KwaZulu-Natal), instituted its
application for rescission on 28 September 2017 in terms of Rule 49
of the Magistrate’s
Court rules.
2.6
The founding affidavit in support of the application was deposed to
Mr M Pillay, an attorney
employed in the office of the State
Attorney.
2.7
In the founding affidavit Mr Pillay records that the file in the
matter was allocated to
him on 27 September 2016. This presumably
occurred as a result of a letter of demand that was served by the
respondent’s
attorneys on the Office of the Provincial
Commissioner of the South African Police Service in Durban at the
time.
2.8
In his response to the letter of demand Mr Pillay informed the
respondent’s attorneys
that since the versions of the two
drivers were mutually destructive any action instituted will be
defended.
2.9
Mr Pillay further records that the first time he had sight of the
summons in the matter
was when it was emailed to him on 15 September
2017. He immediately prepared an appearance to defend. On the same
day, however,
the respondent’s attorneys served a notice in
terms of the State Liability Act Amendment Act 14 of 2011 in terms of
which
the appellant was informed that default judgment had been taken
against it on 28 July 2017 and that the judgment amount remained
unpaid. This was the first time that Mr Pillay became aware that
default judgment had been taken against the appellant.
2.10 Mr
Pillay averred that the summons in the matter was never served on the
‘Minister’ (being the
Minister of Police) in this
instance.
2.11 In
setting out the appellant’s defence to the action Mr Pillay
records that the appellant has a
bona fide
defence to the
respondent’s claim in that the sole cause of the collision was
the negligent driving of the respondent who
was negligent in one or
more of the respects set out in paragraph 10 of the affidavit. He
further alleged that the appellant intended
raising a special plea of
jurisdiction against the respondent. He averred finally that the
appellant had a valid counterclaim against
the respondent as the
appellant’s vehicle was damaged in the accident.
2.12 In
opposing the application the respondent averred that the appellant
had failed (a) to furnish an explanation
why it was not in wilful
default; (b) to file a notice to defend and that default judgment was
granted approximately seven (7)
months later; (c) to explain what
transpired after summons was served and that the allegations in
paragraph 10 of the founding
affidavit were hearsay and; (d)
that, insofar as the issue of jurisdiction was concerned, it averred
that the appellant’s
address falls within the jurisdiction of
the Durban Magistrates Court.
[3]
On the record the following facts are either common cause or not
seriously disputed:
3.1
The collision in question occurred at Glencoe, KwaZulu-Natal.
3.2
The proceedings were instituted in the Magistrates Court, Durban.
3.3
The Office of the Provincial Commissioner of the South African Police
Service was cited
as the defendant.
3.4
The issue relating to the applicability of the relevant provisions of
the State Liability
Act 20 of 1957 (‘the Act’) was
pertinently raised and argued before the court
a quo.
3.5
The summons was never served on the Office of the State Attorney.
[4]
Magistrates Court Rule 49(3) provides:
‘
Where an application for
rescission of a default judgment is made by a defendant against whom
the judgment was granted, who wishes
to defend the proceedings, the
application must be supported by an affidavit setting out the reasons
for the defendant’s
absence or default and the grounds of the
defendant’s defence to the claim.’
[5]
Placing strong reliance on the provisions of section 2 of the Act, Mr
D D Naidoo on
behalf of the appellant contended that the default
judgment was, in any event, void
ab origine
in view of the
fact the wrong party, namely, the Office of the Provincial
Commissioner and not the Minister of Police was sued
in the matter. I
deal with this aspect first.
[6]
Section 2 of the Act provides that:
‘
2.
Proceedings to be taken
against executive authority of department concerned
(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.’
[7]
In terms of section 2 of the Act it seems that in the case of a
national or provincial
department, the political head of the
department is cited in a representative capacity. In the case of a
national department the
responsible Minister is cited in his/her
representative capacity. In the present instance it would seem to me
that the responsible
Minister is the ‘Minister of Police’
and not the Provincial Commissioner as cited herein.
[1]
For this reason and the fact that the summons was never served on the
office of the State Attorney, I will assume, without deciding
the
issue, that the default judgment was in any event void
ab
origine
..
The judgment of the court
a
quo
whilst accepting that the relevant provisions of the Act were argued
on behalf of the appellant, does not deal with this issue
at all. At
paragraph 22 of the judgment, however, the learned magistrate makes
the following odd statement without really applying
her mind to the
argument advanced by the appellant on the relevance and applicability
of the
State Liability Act:
‘
In
so far as the applicant has
maintained that the incorrect entity has been sued, and that summons
ought to have been served on the
State Attorney,
it
remains for the respondent to decide on the way forward
.’
[my emphasis]
[8]
Secondly, a preliminary defence concerning the issue of jurisdiction
was never really
considered by the court
a quo
. A simple
analysis of the facts giving rise to this claim establishes that the
claim falls outside the jurisdiction of the Durban
Magistrates Court.
The respondent herein seems to have relied on the provisions of s 2
8
(1) (a) of the Magistrates Court Act 32 of 1944 which provides as
follows:
’
28. Jurisdiction in respect of
persons
(1)
Saving any other jurisdiction
assigned to a court by this Act or by any other law, the persons in
respect of whom the court shall,
subject to subsection (1A), have
jurisdiction shall be the following and no other:
(a)
any person who resides, carries
on business or is employed within the district or regional division;
(b)
…
. ‘
[9]
It would seem to me that the respondent’s reliance on s 28 (1)
(a) flows from
its incorrect assumption that it is the provincial
commissioner who is legally liable for any of the respondent’s
damages.
This is clearly wrong when one has regard to the relevant
provisions of the Act as set out above. In my view, the special plea
of jurisdiction would have reasonable prospects of success.
[10]
As far as the appellant’s defence is concerned, whilst the
learned magistrate accepted
that Mr Pillay was entitled to depose to
the founding affidavit on behalf of his client, she nonetheless finds
that the source
of his information was not disclosed and that such
information is accordingly hearsay. I disagree entirely. In my view,
once it
is accepted that Mr Pillay was fully mandated to speak on
behalf of his client, it must be accepted that he does so with all
facts
at his disposal. As I pointed out already, at the very outset
when Mr Pillay responded to the letter of demand he made it very
clear that the matter would be defended having regard to the mutually
destructive versions presented by the respective drivers.
Later in
his affidavit, he went further and set out the specific grounds of
negligence that would be relied upon. In my view these
grounds
evidence a
bona fide
and valid defence that can only be tested
once all the evidence has been led.
[11]
In all the circumstances I consider that the court
a
quo
was
clearly wrong in its overall finding that the appellant had failed to
make out a proper case for rescission in terms of Rule
49 of the
Magistrates Court Rules. A magistrate’s discretion to rescind
the judgment of his or her court is ordinarily designed
to do justice
between the parties. That discretion can only be exercised by
balancing the interests of the parties and also any
prejudice that
might be occasioned by the outcome of the application.
[2]
In my view, a court is ordinarily duty bound to do its best to
advance the administration of justice than to place unnecessary
obstacles in its path. As pointed out by Jones J in
De
Witts Auto Body Repairs
,
‘
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
injustice 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 and heard.’
Order
[12]
In the result, the following order is made:
(a)
The appeal is upheld with costs.
(b)
The order of the court
a quo
is set aside and is replaced with
the following:
‘
(i)
The default judgment granted against the applicant on 28 July 2017 is
hereby rescinded.
(ii)
The applicant/defendant is granted leave to defend the action.
(iii)
The costs are reserved for decision by the trial court.’
SEEGOBIN
J
I
agree
KHUZWAYO AJ
APPEARANCES:
FOR THE
APPELLANT:
D D Naidoo
(instructed by State
Attorney (KwaZulu-Natal, Durban)
FOR THE
RESPONDENT:
Vaishna Singh
(instructed by Chapman
Dyer Incorporated)
DATE
OF HEARING:
11 October 2019
DATE
OF JUDGMENT:
22 November 2019
[1]
Jayiya v Member of the Executive Council for Welfare, Eastern
Cape Provincial Government and Another
(264/02)
[2003] 2 All SA
223
(SCA) (31 March 2003) at paragraph 5
Minister van Polisie en
‘n Ander v Gamble en ‘n Ander
1979 (4) SA 759
(AD)
at 759 F-
G Mhlongo and Another NO v Minister of Police
1977
(2) SA 800
(AD) at 803 D-E
[2]
De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
1994 (4) SA 705
€ at 711 E-G