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[2017] ZALMPPHC 31
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Minister of Police v Modiba (HCA23/2017) [2017] ZALMPPHC 31 (27 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCA 23 / 2017
Not
reportable
Not
of interest to other judges
Revised
27/10/2017
In
the matter between:
MINISTER
OF
POLICE
APPELLANT
and
MPHO
MODIBA
RESPONDENT
JUDGMENT
SIKHWARI
AJ
[1]
This is an appeal against the judgment and order of the Magistrate
Court for the district of Tzaneen held at Kgapane, the court
a
quo
,
in terms whereby the appellant’s application for rescission of
judgment was dismissed with costs on attorney and client
scale on 28
February 2017.
[2]
The appellant was the defendant in the main action in the court
a
quo
where the respondent was the plaintiff. The respondent had sued the
appellant for damages arising from a claim for unlawful arrest
when
the respondent was arrested on 5 October 2014 at Ramodumo village by
members of the South African Police Service on allegations
that the
respondent was in possession of a dangerous weapon; to
wit
a
knife. Upon being arrested the respondent gave an explanation that he
was coming from his homestead and he wanted to slaughter
and skin a
cow with that knife.
[3]
After the closing of pleadings, the matter was set down for trial on
the 24 August 2016. The appellant did not appear in court
on that
day. The court a quo granted judgment in favour of the respondent in
the amount of R100 00.00 (hundred thousand rand),
with costs.
[3]
The appellant then approached the court
a
quo
in terms of rule 49 of the rules of the Magistrate Court with an
application for the rescission of the aforesaid judgment. The
court
a
quo
dismissed the application with costs on attorney and client scale.
The appellant’s appeal is directed against the whole judgment
of the court
a
quo
in refusing the rescission application as well as granting the
punitive costs order.
[4]
Appellant’s explanation for the failure to appear in court is
that the file was being handled by a certain attorney in
the employ
of the State Attorney in Pretoria. This attorney was then suspended
due to some disciplinary charges. The aforesaid
erstwhile attorney
left employment without handing over the file to anyone to prosecute
the case further. The appellant became
aware of the default judgment
when the appellant was served with a writ of execution by the
sheriff.
[5]
Rule 49(1) of the Magistrate Court Rules states that “
a
party to proceedings in which a default judgment has been given, or
any person affected by such judgment, may within 20 days after
obtaining knowledge of the judgment serve and file an application to
court, on notice to all parties to the proceedings, for a
rescission
or variation of the judgment and the court may, upon good cause
shown, or if it is satisfied that there is good reason
to do so,
rescind or vary the default judgment on such terms as it deems fit:
Provided that the 20 days’ period shall not
be applicable to a
request for rescission or variation of judgment brought in terms of
surule (5).”
[6]
In the case of
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A)
at
page
353A
it was held that
“
it
is enough for present purposes to say that the defendant must at
least furnish an explanation of his default sufficiently full
to
enable the court to understand how it really came about, and to
assess his conduct and motive”.
[7]
In my view, the explanation of the appellant relating to his failure
to appear in court meets the requirement for showing lack
of willful
default on his part. The appellant has successfully shown that the
failure to appear in court was not out of willful
default on his
part.
[8]
It is trite law that the requirement of ‘good cause’
cannot be held to be satisfied unless there is evidence of
the
existence of a
bona
fide
defence. The
bona
fide
defence does not mean that the appellant must show probability of
success. It will suffice if the appellant may show a
prima
facie
defence or the existence of an issue which is fit for trial
(See
Galp v Tansley NO
1966 (4) SA 555
(C) at page 560B).
[9]
In the case of
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA
1
(SCA)
at para [11], Jones AJA stated that
“…
the
courts generally expect an applicant to show good cause
(a)
by giving a reasonable explanation of his default;
(b)
by showing that his application is made bona fide; and
(c)
by showing that he has a
bona
fide
defence to the plaintiff’s claim which
prima
facie
has some prospect of success
(Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476, HDS Construction
(Pty) Ltd v Wait
1979 (2) SA 298
(E) at 300f-301C, Chety v Law
Society, Transvaal
1985 (2) SA 756
(A) at 764I-765F)
”
[10]
The appellant’s plea in the court
a
quo
was a bare denial disclosing no defence. In the application for
rescission, the appellant relied on
section 40(1)(a)
of the
Criminal
Procedure Act 51 of 1977
, as amended, in order to justify the arrest
and explain his
bona
fide
defence. The appellant further relied on the fact that upon his
arrest the respondent admitted guilt and paid an admission of guilty
fine.
[11]
Section 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
, as
amended, states that “
a
peace officer may without warrant arrest any person who commits or
attempts to commit any offence in his presence”.
[12]
In the circumstances, such a defence is not sustainable in view of
the fact that the respondent was arrested on the 5 October
2014. The
purported admission of guilty fine was paid on the 1 October 2014. It
means that the admission of guilt was paid four
days before the
occurrence of the arrest. The version of the respondent is that he
was arrested on the 5 October 2014 and was released
on warning on the
7 October 2014. The person who allegedly paid the admission of guilty
fine is reflected as one C Modiba, not
the respondent.
[13]
Reliance on
section 40(1)(a)
of the
Criminal Procedure Act of 1977
is
misplaced. The arresting officer did not even bother to investigate
the explanation of the respondent that he was going to slaughter
a
cow. The respondent was arrested in the village where it is a common
practice to slaughter cows with a knife for various events
like
funerals and celebrations. There is no evidence that the respondent
was posing threat to members of the public with his knife.
[14]
In the case of
Minister of Safety
& Security v Sekhoto
2011 (5) SA 367
(SCA) at page 373D-E
the
Supreme Court of Appeal held that the arresting officer should
entertain a suspicion to arrest, and further that the suspicion
must
rest on reasonable grounds from the facts or information taken upon
oath. In this case the reasonable ground of the suspicion
to arrest
is lacking. It was held further in Sekhoto (
at
page 378B)
that
“…
from information taken upon oath, there is a
reasonable suspicion that the suspect has committed the alleged
offence”
.
[16]
In the circumstances, the court
a
quo
was correct in dismissing the appellant’s application for
rescission of judgment. The appeal will fail in this regard.
[17]
The appellant’s appeal is further directed against the punitive
costs order of the court
a
quo
.
Costs fall within the discretion of the court
a
quo
.
The said discretion must be exercised judicially. There are no bases
upon which the court
a
quo
relied
to justify its departure from the normal trend that costs be on party
and party scale. No evidence of malice or recklessness
on the part of
the appellant were advanced to justify a punitive costs order.
[18]
In my view, the costs order was arbitrary. In the case of
Road
Accident Fund v Forbes (CA 197/05)
[2006] ZAECHC 47(28 September
2006)
in para [5], Jones J stated that “a decision is arbitrary if it
is capricious, variable, uncertain, an unrestrained exercise
of
personal whim without reference to any sensible or relevant criteria”
[19] The appeal therefore
partially succeeds against the punitive costs order
granted
by the court
a
quo
.
[20]
I accordingly propose the following order:
1.
That
the appeal is dismissed with costs.
2.
That
the order of the court
a
quo
is set aside and replaced with the following:
“
the
application for rescission of judgment is dismissed with costs on
party and party scale”
__________________________
MS
SIKHWARI AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
I
agree, and it is so ordered.
_________________________
EM
MAKGOBA JP
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
For Appellant : Adv MM
Thipe
Instructed by : L
Molepo Inc Attorneys
For Respondent : Adv D
Mphahlele
Instructed by : TJ
Machete Attorneys
Date of hearing : 13
October 2017
Date of Judgment : 27
October 2017