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2016
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[2016] ZAFSHC 188
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MEC for Police, Roads and Transport v Murray (A89/2016) [2016] ZAFSHC 188 (27 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal
number: A89/2016
In the
matter between:
MEC
FOR POLICE, ROADS AND
TRANSPORT
Appellant
and
RORY
DEAN
MURRAY
Respondent
CORAM:
RAMPAI,
J et DAFFUE, J
HEARD
ON:
17 OCTOBER 2016
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
27 OCTOBER 2016
[1]
These proceedings concerned an appeal from the district court.
The respondent, as the plaintiff, obtained default judgment
against
the appellant, as the defendant in the court below. Brevitas
causa I shall refer to the parties as in the court below.
The
defendant unsuccessfully applied to have the default judgment
rescinded. The defendant was aggrieved by the order given
by
the district court, hence the appeal. The appeal was not
opposed. In fact the plaintiff decided to abide.
[2] An
overview of the undisputed facts appeared to me to be necessary.
The plaintiff, a civilian, sued the defendant, the
Member of the
Executive Council, responsible for the Department of Police Roads and
Transport in the Free State Provincial Government.
The summons
was issued out of the Clocolan District Court on 16 July 2012.
In the summons, the defendant’s physical
address was given as
Perm Building, Maitland Street, Bloemfontein. The plaintiff
alleged that his motor vehicle was damaged
by a pothole on a public
road at Clocolan on 24 November 2011. He claimed delictual
damages in the amount of R 12 889.56
and ancillary relief.
[3] On
22 August 2012 the sheriff served the summons on the defendant’s
specified employee on the 4
th
floor Perm Building 45 Maitland Street Bloemfontein.
[4] On
6 September 2012 the defendant notified the plaintiff of his
intention to defend. The notice was signed by Mr SS Jonase,
Attorney for Defendant, State Attorney c/o Clerk of the Court,
Private Bag x5 Clocolan 9735. The notice was faxed and mailed
to the plaintiff’s attorneys, Barnard and Venter. On the
same day the notice was faxed and mailed to the clerk of the
court at
the address as previously given.
[5] On
8 October 2012 the plaintiff called upon the defendant to deliver the
required plea. The notice of bar in terms of
rule 12(1)(b)
Magistrate Court Rules was addressed to State Attorney Bloemfontein
11
th
Floor, Fedsure House, 49 Maitland Street, Bloemfontein c/o clerk of
the Court Private Bag x5 Clocolan 9735. There appeared
no
specific person’s name or date or signature immediately below
or next to the defendant’s address. The notice
was merely
endorsed with the official rubber stamp of the Clerk of the Court
Clocolan on 9 October 2012.
[6]
The notice of bar elicited no reaction from the defendant. On
22 February 2013 the plaintiff’s request for default
judgment
against the defendant was filed. On 18 June 2013 default
judgment was granted against the defendant in favour of
the
plaintiff. The plaintiff subsequently caused a writ to be
issued. The sheriff attached the defendant’s property
by
virtue of such writ.
[7]
The defendant reacted to the attachment. Two applications were
filed on behalf of the defendant – one for the stay
of the sale
in execution and the other for the rescission of default judgment
granted on 18 June 2013. The essence of the
defendant’s
explanation was that his attorneys did not receive the plaintiff’s
notice
of bar.
On
17 November 2013 the court stayed the sale in execution with the
consent of the plaintiff. Although the plaintiff initially
made
it known that he intended to oppose the defendant’s rescission
application, the judgment was eventually rescinded on
4 March 2014
without opposition. On 25 March 2014 the defendant’s plea
was served and filed.
[8]
The following is a more relevant component of the factual background
than the one outlined above. On 22 September 2014
the plaintiff
enrolled the matter for hearing on 21 October 2014. Once again
the notice of setdown was addressed to the State
Attorney
Bloemfontein … c/o Clerk of the Court Clocolan.
[9] On
21 October 2014 there was no appearance by or on behalf of the
defendant. Once again the plaintiff took judgment by
default.
It was that judgment which was at the heart of the appeal before us.
[10]
The defendant applied to have the judgment granted on 21 October 2014
rescinded. The gist of the defendant’s second
rescission
application was that the notice of setdown never came to his
attention or his attorney’s. The plaintiff
opposed the
rescission application one more time. The application was heard
on 26 November 2015. The court reserved
judgment. The
court delivered judgment on 28 January 2015. The defendant’s
rescission application was dismissed
with costs. It was that
order which precipitated the present appeal.
[11]
The notice of appeal was filed on 14 March 2016. The defendant
relied on 9 grounds of appeal. Among others, the
defendant
alleged that the court
a
quo
erred in finding that the defendant failed to prove that he was not
aware of the notice of setdown – vide 1 notice of appeal
dated
2 March 2016.
[12]
In our view, the decisive issue in the appeal was whether the
defendant was properly notified of the date of hearing, being
21
October 2014. The onus was on the plaintiff to show that the
notice of setdown was duly served upon the defendant.
[13]
The relevant notice of setdown prepared and signed by the plaintiff’s
attorneys at Clocolan on 15 September 2014 is reproduced
below in
order to illustrate it’s apparent shortcomings.
“
______________________________________________________
NOTICE
OF SET DOWN
______________________________________________________
KINDLY
TAKE NOTICE THAT the above matter is set down for hearing on
21
OCTOBER 2014
or so soon thereafter as the matter may be heard
before the above Honourable Court.
DATED
at Clocolan this 15 September 2014
__________________
PLAINTIFF’s
Attorneys
Hardam
& Associates Inc.
4
th
FLOOR, BUILDING 3, OUTSURANCE
CAMPUS
1241 EMBANKMENT ROAD
ZWARTKOP
EXT 7 CENTURION 0046
Tel
No.: (012) 336 3170, Fax No.:
Email:
Docex
426, PRETORIA
Service
address: BARNARD & VENTER
1
CHARL CILLIERS STREET CLOCOLAN
9735
(Ref:
NEW INSTRUCTON
TO:
THE CLERK OF THE COURT
CLOCOLAN
AND
TO: STATE ATTORNEY
BLOEMFONTEIN
Attorneys
for DEFENDANT
11
TH
FLOOR, FEDSURE
HOUSE
49
CHARLOTTE MAXEKE
STREET
BLOEMFONTEIN
(Ref:
739/201201010/P10M/mem)
c/o
CLERK OF THE COURT –
CLOCOLAN”
[14]
It is obvious
ex
facie
the notice of setdown that no provision whatsoever was made for
anyone to receive, to date and to sign the notice of setdown for
and
on behalf of the defendant. Without such importal details
relative to acknowledgment of receipt, it cannot be readily
ascertained that the plaintiff had duly effected proper service of
the notice of setdown upon the defendant. It
would
appear that the notice of setdown was filed on 22 September 2014,
some 29 calendar days before the hearing. However,
as to when
it was precisely served and at what time it was served appeared
nowhere on the notice itself. Similarly it did
not appear on
the notice itself as to upon whom in the office of the clerk of the
court, the purported notice was served.
[15]
In the absence of proper service of such notice, there could have
been no proper hearing. Before default judgment could
be
granted the district magistrate had to be satisfied that the
defendant had been given proper notice of the date of hearing.
All those material shortcomings strongly militated against the
conclusion that the plaintiff had duly given the defendant proper
notice of setdown for the hearing of the dispute.
[16]
The aforesaid irregularity of form or formal defect strengthened the
reasonably innocent explanation that the defendant was
unaware that
21 October 2014 had been allocated for the hearing of the matter and
so enrolled. That was a material consideration.
Obviously
the district magistrate did not consider it. In my view the
court erred.
[17]
There is yet another important aspect relevant to this appeal.
It is important to bear in mind that rule 13(3) Magistrate
Court
Rules delineates that:
“
(3)
(a) When a defendant delivers
notice of intention to defend –
(i)
the
defendant shall therein give his or her full physical, residential,
business address, postal address and where available, facsimile
address and electronic mail address;
(ii)
the
defendant shall also indicate and select therein the preferred
address for service on the defendant thereat of all documents
in such
action, and service thereof at the address so given shall be valid
and effectual, except where by an order or practice
of the court
personal service is required; and
(iii)
if
a physical address is given by the defendant in the notice of
intention to defend as the preferred address for the purpose of
such
service, in places where there are three of more attorneys or firms
of attorneys practicing independently of one another,
that address
shall be situated within 15 kilometres of the courthouse.
(b)
The defendant shall indicate in the notice of intention to defend
whether the defendant
is prepared to accept service of all subsequent
documents and notices in the suit through any manner other than the
physical address
or postal address and, if so, shall state such
preferred manner of service.
(c)
The plaintiff may, at the written request of the defendant, deliver a
consent in writing
to the exchange or service by both parties of
subsequent documents and notices in the suit by way of facsimile or
electronic mail.
(d)
If the plaintiff refuses or fails to deliver the consent in writing
as provided for in paragraph
(c), the court may, on application by
defendant, grant such consent, on such terms as to costs and
otherwise as may be just and
appropriate in the circumstances.”
[18]
It was an undisputed fact that there were less than three law-firms
of attorneys at Clocolan at all times material to these
proceedings.
It was also common cause that the defendant was represented by the
State Attorneys whose only office or actual
physical address in the
province was in Bloemfontein, approximately 225km from the courthouse
at Clocolan. In the notice
of the defendant’s intention
to defend, the full physical address, postal address, and facsimile
address as well as telephone
number of the State Attorney were given.
[19]
The notice of appearance was faxed and emailed to the plaintiff’s
attorneys. Therefore, the electronic address
of the defendant’s
attorney was known to the plaintiff’s attorney. The
electronic mail address of the defendant’s
attorney was:
SJonase@justice.gov.za
Vide
“anx mmp.1” being an email from “The State
Attorney” dated 1 October 2013 and “anx mmp3”
being
an email from Barnard and Venter dated 18 October 2013.
[20]
Although the defendant did not explicitly indicate to the plaintiff
that his attorneys’ electronic address was his preferred
address for the purpose of service, it was nonetheless tacitly
recognised by both parties that, for obvious pragmatic exigencies,
it
was more reliable and expedient to exchange pleadings electronically
than physically.
[21]
In the first place, the plaintiff knew that similar service of the
notice of bar at the physical address had previously given
rise to
the first default judgment. In the second place the plaintiff
also knew that the defendant had informally given the
plaintiff his
direct physical address, postal address, facsimile address, and
electronic address. Given such constructive
knowledge, the
current circumstances could easily have been avoided.
[22]
In my view the plaintiff’s dogmatic and persistent use of a
physical address already shown to be unreliable was unreasonable.
Similarly lamentable was the defendant’s failure to file a
written request in terms of sub-rule 3(c) for the exchange of
service
by both parties of subsequent pleadings by facsimile mail or
electronic mail.
[23]
In view of the proven electronic mail communication between the
parties one would have expected the plaintiff to have sent
a notice
of such importance not only to the defendant’s physical address
but also to the defendant’s electronic address
or to the
facsimile address or even to the postal address by registered mail as
the defendant had, for practical expedience, done
in the past.
Such speedy, efficient and reliable methods are increasingly used
nowadays. I could find no reasonably
sound and valid excuse as
to why the plaintiff, who had such pragmatically useful and efficient
facilities, had chosen to use them
selectively.
[24]
It must be readily appreciated that the personnel or public officials
attached to any office of the clerk of the court are
primarily
trained and accustomed to receiving pleadings for filing purposes.
That is their core responsibility. They
know that attorneys
first have to serve pleadings on their opponents before they take
such pleadings to the clerk of the court
to be filed. The idea
of being used as “post boxes” for litigants is an
unfamiliar practice to them. Consequently,
they do not
customarily identify themselves with the external process that
concerns the serving of pleadings because their duties
are ordinarily
aligned with the internal process that concerns the filing of
pleadings. This case illustrates the real pitfalls
of using a
clerk of the court as an intermediary in the litigation course of
exchanging pleadings. It is a perilous tendency.
It can
easily be avoided by invoking the assistive, reliable and advanced
methods of service created by rule 13(3).
[25]
Given the peculiar circumstances of this particular case, I am of the
view that the court
a
quo
materially erred in granting judgment in the absence of the
defendant. The notice of setdown was, in my view, fatally
defective
to sustain a proper hearing. The purported hearing of
the matter on 21 October 2014 was, therefore, procedurally irregular
and unfair. I would, therefore, uphold the appeal.
[26]
There remains one more consideration. It concerns the costs of
the appeal. I have adequately highlighted the formal
defects of
the notice of setdown delivered by the plaintiff. Such defects
notwithstanding, the plaintiff unreasonably opposed
the defendant’s
rescission application in the court
a
quo
.
The court
a
quo
erroneously dismissed the defendant’s application. The
defendant, aggrieved by the court order, served and filed notice
of
appeal. In view of the unproven proper notice of setdown, the
defendant should then have realized that the defendant had
reasonably
good prospects of success on appeal. It is so that he did not
oppose the appeal. However, his decision to
abide was not
enough. He could have done more. He could have abandoned
the default judgment. He did not.
He thereby impelled the
defendant to come this far on appeal. To do so he incurred
costs. In view of all this, the
defendant is entitled to recoup
his costs from the plaintiff.
[27]
Accordingly I make the following order:
27.1
The appeal succeeds with costs;
27.2
The order made by the district magistrate at Clocolan on 21 October
2014 is hereby set aside and substituted
with the one below;
27.3
The defendant’s application for rescission of judgment is
granted with costs;
27.4
The defendant is granted leave to defend the action.
____________
MH
RAMPAI, J
I
concur
___________
JP
DAFFUE, J
On
behalf of the appellant: Adv. TL Manye
Instructed
by:
State Attorney
Bloemfontein
On
behalf of the respondent:
No appearance