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[2016] ZAGPPHC 303
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Minister of Police v Grootboom (34218/2014) [2016] ZAGPPHC 303 (3 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER: 34218/2014
DATE:
03 MAY 2016
In the matter
between:
THE MINISTER OF
POLICE
................................................................................................
Applicant
And
BONGANI PETER
JOHN
GROOTBOOM
.......................................................................
Respondent
JUDGMENT
BRENNER AJ
1. This is an
application for the rescission of a default judgment granted on 10
October 2014 against the applicant. The applicant
is the Minister of
Police, who is the defendant in the main action (“the
Minister”). In terms of the default judgment
order, merits were
separated from quantum, and the Minister was directed to compensate
the defendant, Mr Bongani Grootboom (“Grootboom”),
for
all proven and/or agreed damages sustained by Grootboom. This arising
from his alleged unlawful arrest on 4 August 2013, at
the Loerie
informal settlement in Hankey, Eastern Cape.
2. Simultaneously,
condonation is sought by the Minister for the late service of the
rescission application.
3. The Minister
appears to rely on the common law and/or the provisions of Rule 31
(2) (b) of the Uniform Rules of Court in its
application. Under this
Rule, a applicant may, within 20 days after it has knowledge of the
judgment, apply to rescind same upon
good cause shown. “Good
cause” requires that the applicant provides a reasonable
explanation for the default, that
the application is bona fide and
not made with the intention of delaying the claim against it, and
that it has a bona fide defence
to the respondent’s claim. A
prima facie defence suffices. It is not necessary for the applicant
to traverse the merits in
detail or to produce evidence that the
probabilities are in its favour.
4. The following
chronology of events merits mention.
5. Although
Grootboom avers that his arrest occurred on 4 August 2013, it appears
from the papers that he was mistaken and that
the arrest, for
suspected housebreaking and theft and possession of stolen goods,
took place on 19 August 2013. He was held in
custody until 19
September 2013, and thereafter, the charges were withdrawn against
him.
6. Summons for
payment of damages arising from Grootboom’s alleged unlawful
arrest, in the sum of R300 000,00, was served
on the Minister, care
of the State Attorney, on 16 May 2014. The receptionist at its
office, Mrs Liversage, accepted service.
7. Ten days later,
on 26 May 2014, Ms Nangamso Qongqo (“Qongqo”), an
attorney employed at the State Attorney’s
office, sent the
Summons to a certain Colonel Groenewald, to ask for “documents
and instructions”. Qongqo did not enter
an appearance to defend
because she believed that she should obtain instructions in the first
place.
8. On 28 October
2014, Grootboom’s attorneys applied for, and were granted,
default judgment on the merits. In the result,
all that remained to
be determined was the quantum of Grootboom’s claim. It would
appear from the papers before Court that
no notice of set down for
this judgment was served on the Minister. Grootboom was not obliged
to do so, in terms of the practice
manual of this Court, as the six
month period from the date of service of the Summons had not yet
expired.
9. On 12 January
2015, the State Attorney, acting for the Minister, entered an
appearance to defend the action, almost eight months
after service of
Summons. It is strange that, when doing so, Qongqo did not appreciate
that the notice was being served some eight
months after the date of
service of the Summons. Qongqo does not address this fact in her
affidavits.
10. On the following
day, being 13 January 2015, Qongqo sent a letter to Colonel Roodt and
Brigadier Mulder of the SAPS Pretoria,
to ask for further
instructions.
11. In the
rescission application, there is no intimation at all that replies to
Qongqo’s letters were ever received from
the representatives of
the Minister. Nor that any phone calls took place between them.
12. On 24 April
2015, by notice of set down, Grootboom’s attorneys enrolled the
matter for hearing on 5 November 2015, for
adjudication on quantum.
The notice of set down was served on the State Attorney, and came to
the attention of Qongqo.
13. Qongqo wrote a
letter to Grootboom’s attorneys on 5 May 2015 asking for the
reasons why the matter was enrolled for this
date. The order of 28
October 2014 was provided to her on 2 June 2015, under cover of a
letter dated 26 May 2015. In reply to this
letter, Qongqo notified
Grootboom’s attorneys of the Minister’s intention to
apply for rescission of the order.
14. The rescission
application was launched on 14 September 2015, just over three months
after receipt of the default judgment order.
15. Grootboom’s
opposing affidavit was served on 7 October 2015, and the Minister’s
replying affidavit was served on
23 October 2015. The application for
default judgment on quantum was removed from the roll on 5 November
2015.
16. In support of
condonation, Qongqo states that, at any given time from May 2014 to
the date of the application, being September
2015, she had been, and
still was, “seized with approximately 600 active matters.”
This had placed tremendous pressure
on her time, to keep track of
developments on every file. She concedes that she took from May 2014
to January 2015 to follow up
on instructions sought. She accepts that
she could have been more diligent in her handling of the matter and
avers that the matter
did not receive the attention it deserved due
to her extensive workload. She did not deem it proper to defend the
action in the
absence of instructions from her client.
17. She realised
that the case had escaped her attention when she received the notice
of set down on 24 April 2015. We interpose
to mention that Qongqo
signed the notice to defend on 9 January 2015, and we are not
apprised of whether Qongqo realised at this
time that the notice was
being served eight months after service, because this is not
traversed in her affidavits.
18. Qongqo states
that she entertained logistical difficulties in procuring
information. She also had problems with securing police
and
prosecutorial documents and with consultations with material
witnesses. It should be borne in mind that the incident occurred
in
the Eastern Cape.
19. In support of
the Minister’s defence on the merits, Qongqo submits that the
arrest without warrant was lawful and justified
in terms of section
40(1 )(e) of the
Criminal Procedure Act, 51 of 1977
. Attached to the
founding affidavit are copies of statements procured from the police
docket at the Thornhill police station, made
by the arresting
officer, Warrant Officer Marisa Louw (“Louw”), and by the
complainant, Gerhard Moolman (“Moolman”).
It is contended
that Louw was justified in the arrest of Grootboom “on the
strength of information already in the docket
which was opened”
upon the complaint of Moolman. It is pointed out that Grootboom’s
case is limited to the unlawfulness
of his arrest and no case is
pleaded to complain of his continued detention based on a breach of a
legal duty by the police in
the exercise of their discretion.
Accordingly, so it is argued, the Minister had a complete defence to
Grootboom’s claim,
based on the merits.
20. It is
appropriate to mention that the particulars of claim articulate that
damages were suffered by Grootboom “as a result
of the...
wrongful arrest and detention”, and that same were for
“deprivation of freedom, contumelia and discomfort”
suffered by him.
21. The enquiry
regarding condonation overlaps with the enquiry regarding the
entitlement to set aside an order of Court granted
by default,
inasmuch as both entail an analysis of the prospects of success on
the merits.
22. The requirements
for condonation were enunciated in Minister of Safety and Security v
Scott and Another
2014 (6) SA 1
(SCA): “The principles relating
to condonation are well established. The factors that this court will
have regard to in considering
such an application include the
adequacy of the explanation, the extent and cause of the delay, any
prejudice to the parties, the
importance of the case, a respondent’s
interest in the finality of the judgment of the court below, the
avoidance of unnecessary
delay in the administration of justice and
the applicant’s prospects of success on the merits. Condonation
is an indulgence,
not to be had for the asking. A litigant who does
not comply with the rules is required to show “good cause”
why the
rules should be relaxed. ”
23. The judgment of
Colyn v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) involved a case in which the Bellville office of
a firm of attorneys were instructed to defend the case but the proper
address
for service of process was that of its Cape Town office. The
Cape Town office received a summary judgment application but failed
to notify the Bellville office as it should have done. Summary
judgment was duly granted. The Court had this to say, at page 9F
et
sequitur, about the explanation for the default of the applicant in
its rescission application: “I have reservations about
accepting the defendant’s explanation of the default is
satisfactory. I have no doubt that he wanted to defend the action
throughout and that it was not his fault that the summary judgment
application was not brought to his attention. But the reason
why it
was not brought to his attention is not explained at all. The
documents were swallowed up somehow in the offices of his
attorneys
as a result of what appears to be inexcusable inefficiency on their
part. It is difficult to regard this as a reasonable
explanation.
While the Courts are slow to penalise a litigant for his attorney’s
inept conduct of litigation, there comes
a point where there is no
alternative but to make the client bear the consequences of the
negligence of his attorneys (Saloojee
and Another NNO v Minister of
Community Development
1965 (2) SA 135
(A).) Even if one takes a
benign view, the inadequacy of this explanation may well justify a
refusal of rescission on that account
unless, perhaps, the weak
explanation is cancelled out by the defendant being able to put up a
bona fide defence which has not
merely some prospect, but a good
prospect of success (Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A)’’).
24. The delay in the
launch of the rescission application was not inordinate, a fortiori
in the light of the logistics. However,
as indicated by the above
cases, this fact simpliciter is not dispositive of the matter.
25. The explanation
for the default must be reasonable. On the facts before Court, the
explanation falls far short of this. Cognisance
has been taken of the
fact that Qongqo was ingenuous, frank and forthright, and indeed
apologetic in her explanation for the default,
and that her workload
was overwhelming, and created a difficulty in keeping abreast of 600
files at a time. This is an administrative
challenge within the
office of the State Attorney which should be addressed by it, to
avoid similar incidents.
26. But these facts
do not militate against a finding of gross negligence on the part of
both the State Attorney’s office
and the Minister, in their
disregard of the Summons. Attorneys are legitimately expected to know
about the consequence of ignoring
a Summons. There is a level of
urgency attached to taking instructions prior to defending a case,
because of a limited period within
which to defend. Follow up phone
calls should have been made,
because it cannot be
taken for granted that correspondence will be dealt with urgently.
Albeit that this may have been an oversight,
Qongqo does not explain
why she failed to apply her mind to the matter when the appearance to
defend was signed on 9 January 2015.
27. The wanton
disregard of the case by the Minister’s office should also be
noted. There is no affidavit from the Minister
to explain why no
steps were taken to address Qongqo’s queries. Not a single
letter from the Minister is produced, whether
in reply to Qongqo’s
correspondence, or at all. There is no suggestion by Qongqo that her
letters were not received. There
is no mention of any telephone
conversations between the parties, either.
28. If the
Minister’s stance is that its office can hide behind its
attorney’s conduct without further ado, it is mistaken.
As
indicated in the Colyn judgment, supra: “While the Courts are
slow to penalise a litigant for his attorney’s inept
conduct of
litigation, there comes a point where there is no alternative but to
make the client bear the consequences of the negligence
of his
attorneys”.
29. We refer to the
defence on the merits which, if it reveals good prospects of success,
on a prima facie basis, may potentially
compensate for the poor
explanation for the default.
30. Based on the
papers in the application, the Minister’s prospects of success
are poor. The Minister relies on
section 40(1)(e)
of the
Criminal
Procedure Act, 51 of 1977
, as justification for the arrest. The
section provides:
“A peace
officer may without warrant arrest any person -
(e) who is found in
possession of anything which the peace officer reasonably suspects to
be stolen property or property dishonestly
obtained, and whom the
peace officer reasonably suspects of having committed an offence with
respect to such thing. ”
31. The question
concerning “reasonable suspicion” entails an objective
enquiry into reasonableness. As stated in Manase
v Minister of Safety
and Security and Another
2003 (1) SA 567
(CkH) at page 574:
“The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically, and he will
not accept it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that he will
allow himself to
entertain a suspicion which will justify an arrest.... The section
requires suspicion, not certainty. ”
32. Grootboom has
objected to the introduction of Louw’s statement as hearsay,
while at the same time relying on it in its
argument before Court. In
the interests of justice, I have resolved to accept same as evidence
in this application.
33. The statement of
Louw dated 19 August 2013 notes that, while on duty at about 15h00 on
19 August 2013, she received information
that certain stolen goods
could be found at 486 Greenfield Loerie. She went to this address
where she found four people, including
Grootboom. She asserts that
several items stolen in the housebreaking were found at these
premises.
34. She says as
follows: “Ek het met Neil Rossouw se toestemming die huis begin
ondersoek Ek het die vier persone nl: Luyanda
Duda, Neil Rossouw,
Bongani Grootboom en Pumlani Doyi meegedeel dat hulle verdagtes in
bogemelde sake is, en die klagtes teen hulle
huisbraak en diefstal en
dat hulle in besit van gesteelde eiendom gevind is. ”
35. Grootboom’s
answer to the statements in the docket is as follows: “It
appears clearly from the content of these
paragraphs that my arrest
was unlawful. There were no reasonable grounds for my arrest. Further
legal argument will be addressed
to the court in this respect. ”
36. Counsel for the
Minister argued that the above answer does not constitute a denial of
the statements attached to the Minister’s
affidavit. In my
view, it was sufficient for purposes of the issues in casu for
Grootboom to have denied the lawfulness of his
arrest.
37. Section 36 of
the General Law Amendment Act, 62 of 1955, appears to be the section
relied upon by the Minister, and relates
to the failure to give a
satisfactory account of possession of goods, in regard to which there
is a reasonable suspicion that they
have been stolen.
38. Section 37 is
interrelated with section 36. Section 37 of this Act requires, inter
alia, proof that the accused was found in
possession of the goods. In
State v Manamela and Another
2000 (3) SA 1
CC at paragraph 17, it was
held that “detentio coupled with physical possession will
establish possession for the purposes
of section 37(1). “
39. As pertinently
pointed out by Grootboom’s Counsel, there is no recordal in
Louw’s statement of any admissions by
Grootboom as to any
involvement on his part in the commission of the burglary or the
receipt of and/or possession of stolen property,
this in contrast
with admissions allegedly made by the remaining three individuals in
the house.
40. Moreover, on
Louw’s statement, the premises were those of Neil Rossouw,
(“Rossouw”), whose permission she
sought for purposes of
the search. Grootboom appears to have been arrested because he was
found to be in the company of three people
who made admissions about
involvement in the offences in question.
41. He was not found
in possession or control of the stolen goods, which appear to have
been found in Rossouw’s home. He was
not implicated in the
commission of the offences by any of the three individuals who had
admitted to participation in same.
42. In the
circumstances, the suspicion of Grootboom having committed any of the
crimes in casu was unreasonable and unwarranted,
and was
uncorroborated, on the Minister’s own version.
43. On a totality of
the evidence, the Minister has failed to prove good cause for the
setting aside of the order against it on
the merits of the case.
Costs should follow the result. The appearance to defend having been
entered before judgment on quantum,
it remains within the province of
the Minister to address issues arising in this regard.
44. In the premises,
there was no reasonable explanation for the default of the Minister.
Nor was the Minister able to prove a bona
fide, prima facie defence
with a good prospect of success. The Minister has failed to prove
good cause for the relief sought.
45. In the result,
the following order is made:
a. The application
is dismissed;
b. The applicant is
directed to pay the costs of the application.
BRENNER AJ
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
3 May 2016
Appearances
Counsel for the
Applicant Advocate R Laher
Instructed by The
State Attorney
Counsel for the
Responde Advocate EP van Rensburg
Instructed by Van
Zyl le Roux Inc