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[2018] ZAGPPHC 707
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Maseko and Another v Minister of Police (62925/2014) [2018] ZAGPPHC 707 (16 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
CASE NO: 62925/2014
16/3/2018
In
the matter between:
VUYANI
BOLDWIN
MASEKO
1
st
Plaintiff
KHANYI
MOKGOSI O.B.O ZANGI MOKGOSI
2
nd
Plaintiff
And
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
MIA,
AJ
[1]
The applicant (plaintiff in the main action) seeks default judgment
in respect of
a claim for damages in the total amount of R1000 000.00
plus interest arising from the alleged unlawful arrest and detention
of
the first and second applicants for a period of five (5) hours at
the Vosloorus Police Station on 9 September 2011. Before dealing
with
the application for default judgment I am required to deal with an
application by the defendant in the main action requesting
:
1.1
That the late filing of the applicant's
plea to the respondent's particulars of claim be condoned;
1.2
That the barring of the applicant to
file a plea to the respondent's particulars of claim be removed;
1.3
That the applicant be ordered to pay the
costs of this application on an unopposed basis.
[2]
I will refer to the parties as they are cited in the main action. The
plaintiff opposed
the application for condonation. I propose to deal
with the background facts to the application for condonation before
dealing
with the application for default judgment.
[3]
The deponent to the founding affidavit for the application for
condonation, Ms Amanda Gxogxa,
joined the State Attorney's office on
1 July 2015. She was required to take over the files of a colleague
Ms Puso who resigned
on 31 August 2015. At that stage the defendant
had already been barred from delivering its plea. Her perusal of the
file indicated
that summons was issued on 25 August 2014 and served
on the State Attorney on 28 August 2014. The attorney allocated to
deal with
the matter was a Mr Maponya. A notice of intention to
defend was filed on 2 October 2014. The plea was due on 29 October
2015.
The plea was not filed. On 11 December 2014 the plaintiff
served a notice of bar. The notice of bar did not come to the
attention
of Mr Maponya. Mr Maponya filed a notice in terms of Rule
30A on 15 January 2015. Mr Maponya left the office of the State
Attorney
Pretoria for a senior position in Mafikeng on 31 January
2015. Ms Puso then took over the file. It appears that no further
action
was taken until she resigned on 31 August 2015.
[4]
When Ms Gxogxa took up her appointment she took over 500 files and
had to determine the
status of each of the files. She realised there
was a notice of bar in the present matter and enquired whether there
was a default
judgment. She received no response. She noted that
there was an application for condonation for the late filing of a
notice in
terms of section 3 of Act 40 of 2002. On 10 September 2015
she received instructions to bring an application to remove the bar
and to defend the matter. Her instructions were that there was no
record of the minor child being arrested which necessitated her
pursuing the defendant's defence herein. She made attempts to
communicate with the attorney to reach agreement on the issue of
the
late filing of the plea. On 6 October 2015 an application for default
judgment was received.
[5]
The plea is late by a period of
approximately one year. Both state attorneys who previously dealt
with the matter have since left
the office of the State Attorney.
There are no affidavits filed by Mr Maponya or Ms Puso explaining why
the plea was not filed
timeously. When Ms Gxogxa took over the matter
progress commenced in the matter resulting in the present application
for condonation
to get the issue of the bar to pleading lifted.
[6]
In terms of Rule 27(3) the court may,
condone any non-compliance with the rules where the applicant has
shown good cause. This discretion
must be exercised judicially having
regard to the facts of each case and being fair to both sides. Where
there is a slight delay,
a good explanation may compensate for weak
prospects of success. The persuasiveness of any factor will vary
according to the circumstances,
including the particular rule that
has been infringed. The court will also consider in each matter
whether good or sufficient cause
has been shown for the relief
sought. Inherent in the inquiry into good cause is whether the
application is
bona fide
and
this includes the applicant's prospects of success.
[7]
Of the factors relevant to the prospects
of success is the degree of non-compliance
[1]
. In the present instance there was a delay of more than 12 months.
Ms Lupuwana submitted that the State Attorney's office was
extremely
under resourced and dealt with many matters and was flooded with
similar claims for wrongful arrest or detention. The
first state
attorney believed a Rule 30A notice was applicable and it appeared
that Ms Puso who resigned had not attended to the
matter. Mr Roodt
however had furnished instructions.
[8]
She
submitted further that the court had to consider the prospects of
success and having regard to the amount of the award requested
in the
amount of R500 000 per litigant the prospects of success for the
plaintiff were not good in view of the period of detention
being five
hours. In the alternative she submitted that on this basis at least
the applicant ought to be afforded the opportunity
to challenge the
merits with regard to the amounts. This contributed to the prospects
of success of the applicant in the application
for condonation.
[9]
Ms Lupuwana submitted further that the
respondent did not pursue the matter with any haste and thus the
application for condonation
ought to be granted to afford the parties
the opportunity to ventilate the issues fully before the court. She
referred to the decision
in
Wright v
Morgan
1958(3) SA 731 at 734 where
the court per Potgieter J, stated
"I do not think that the
attorneys are guilty of any negligence in being unable to have all
that done within 24 hours and being
only one day late. Although
therefore I have no doubt that the two sets of attorneys were
negligent (if applicant's allegations
are true), I cannot find that
their negligence reached such a degree of culpability as to debar
their client from relief and I
come to this conclusion because there
is no automatic bar as notice to plead must first be served before
defendant is barred from
pleading. I was of opinion, therefore, that
defendant was entitled to relief."
[10]
She referred also to
Service
Motor Supplies (1956) Pty Ltd v Fouche and Another
1960(3)
SA 672 (W) where the Court held that, as the request for particulars
involved the lifting of the bar, that the applicant
was entitled to
apply for an extension of time within which to plead. Although the
applicant had not shown sufficient cause for
indulgence, the court
held since the applicant was entitled to certain of the particulars,
the Court should avoid delay and further
costs and order such
legitimate particulars to be given with leave to the applicant to
file a replication and plea in reconvention.
[11]
In addition to the quantum the defendant
delved into the merits and submitted that the mere decision not to
prosecute by the State
was no indication that there was no cause for
the police officers to act to arrest the plaintiff. There was also no
record of arrest
of the minor child and thus there was the dispute
about whether the minor had been arrested. There was prejudice to the
public
purse with the high incidence of such claims and there was no
further prejudice to the plaintiff's who had not pursued the matter
with haste.
[12]
Mr Biyana appearing for the plaintiff
submitted that the defendant had not shown good cause for condonation
and upliftment of the
bar. On the issue of the reasons for the delay
there was an inordinate delay of over a year. There was no affidavit
from either
Mr Maponya or Ms Puso explaining the reasons for the
delay. He conceded however that the litigants could not be punished
for the
delay on the part of the attorney. He submitted that there
was no defence against the claim on behalf of the minor child. Even
though there was a dispute, the photographs attached were clear and
the State would experience difficulty resisting this claim.
He
therefore requested that the matter proceed with regard to the minor
child. He submitted further that the regulation attached
to the
National Road Traffic Act prohibited being a pedestrian on a national
road but did not did not specify a penalty for the
offence. It
certainly did not warrant an arrest in the circumstances.
[13]
In
Road
Accident Fund v Britz obo Britz (76318/2013) [2017] ZAGPPHC 762
(3
November 2017) the court stated at paragraph [11]
"It is clear from Rules 30
and 27 that time limits and abridging thereof is central to the
Rules. The role of the Rules in
the litigation process must therefore
be placed in context. The Rules are formulated to govern procedural
matters in the litigation
process within specified time limits. They
are meant to bring matters to a point where an executable order can
be given by a competent
court in an expeditious manner. The Rules are
designed to remove the burden of regulating procedural matters from
the Court. The
rules are meant for the Court and not the Court for
the rules. The common law jurisdiction of the high court further
allows a high
court to govern its own procedures and with Rule 27, to
condone non-compliance with any of the rules. The time limits
provided
for in the Rules are, therefore, not inflexible. However, in
interpreting the Rules of Court, Schreiner JA in
Trans-African
Insurance
Co.
Ltd v Maluleka
1956 (2) SA 273
(A)said:
"No doubt parties and their
legal advisers should not be encouraged to become slack in the
observance of the Rules, which are
an important element in the
machinery for the administration of justice. But on the other hand
technical objections to less than
perfect procedural steps should not
be permitted, in the absence of prejudice, to interfere with the
expeditious and, if possible,
inexpensive decision of cases on their
real merits."
[14] In
considering the application for condonation I am mindful of the delay
but it is evident that there
is no
male fide
intention to
delay the proceedings. Rather the defendant seeks to deal with the
real merits of the matter. In considering whether
there is real
prejudice to the plaintiffs I have considered the period of time that
has passed and that they have not necessarily
pursued the claim with
haste. The defendant has been candid with this court with regard to
the delay and the reasons therefore.
There is an increase in the
number of claims for damages as a result of unlawful arrest. It is
not appropriate that such matters
be dealt with by way of default
judgment especially where the defendant challenges certain aspects on
the merits. In such circumstances
and where the public purse is
affected condonation which allows the merits of the matter to be
ventilated is in the interests of
justice. Certainly on the monetary
value claimed there appears to be reasonable prospects of success
especially as the attorney
for the plaintiff requested default
judgment for the amount of R150 000 instead of the R500 000 claimed
and conceded that the amount
was within the discretion of the court.
[15]
I put to Mr Biyana that there were
certain issues regarding the detention of the minor child which ought
to be put before the court
in determining the amount. He conceded
this aspect. It is trite that the interests of justice require that
all issues pertaining
to a matter be ventilated fully. It is not
desirable that a matter be dealt with in a piece meal fashion as
requested and that
default judgment be granted in respect of one of
the plaintiffs and postponed in respect of the other in the event
that condonation
is granted. It is desirable that all parties be
given the opportunity to state their case as comprehensively as
possible. In view
hereof the defendant has shown that there is good
cause why condonation be granted and the bar be lifted to enable the
defendant
to file its plea.
[16]
In
view of my decision to grant condonation and the consequent relief
flowing there from it is appropriate to postpone the application
for
default judgment.
[17]
The
plaintiff is seeking condonation for non-observance of court
procedure and thus is an seeking the indulgence of the Court. The
length of the delay is also a lengthy delay. The applicant also
failed to file affidavits of the attorneys dealing with the matter
prior to Ms Gxogxa attending to the matter. In view hereof I am of
the view that they should pay for the costs of the application.
ORDER
[18]
For the reasons above the following
order is made:
1.1
The
late filing of the defendant's plea to the plaintiff's particulars of
claim is condoned;
1.2
The
barring of the defendant's filing of a plea to the plaintiff's
particulars of claim is removed;
1.3
The defendant is to file its plea within
15 days from the grant of this order;
1.4
The defendant is ordered to pay the
costs of this application.
1.5
The application for default judgment is
postponed sine die
S
C MIA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
On
behalf of the applicant
:
Adv LL
Biyana
Instructed
by
: Legal
Aid South Africa
On
behalf of the respondent
:
Adv T
Lupuwana
Instructed
by
: The
State Attorney, Pretoria
Date
of hearing
: 26
February 2018
Date
of judgment
: 16
March 2018
[1]
Gumede v Road Accident Fund
2007 (6) SA 304
(C);
Beweging
vir Christelik-Volkseie Onderwys v Minister of Education
[2012]
2 All SA 462
(
SCA);
Subramanian v Standard Bank Ltd
(20131
JOL 30321
(KZP) at [12].