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[2016] ZAGPPHC 1057
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Minister of Police and Others v Andrew Tonkin Guns and Rifles CC (69525/2013) [2016] ZAGPPHC 1057 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
15/12/2016
Case
Number: 69525/2013
Reportable:
No
Of
interest to other judges: No
Revised.
THE
MINISTER OF
POLICE FIRST
APPLICANT
THE
NATIONAL
COMMISSIONER, SECOND
APPLICANT
SA
POLICE SERVICE
THE
HEAD, CENTRAL FIREARMS REGISTER N.O. THIRD
APPLICANT
AND
ANDREW
TONKIN GUNS & RIFLES
CC RESPONDENT
JUDGMENT
MOLEFE
J
[1]
This is an application for rescission of the default judgment granted
against the Applicants on 9 October 2015 and that the
Applicants/Defendants' defence in the main action be reinstated. The
application is brought in terms of the common law.
[2]
For a rescission of an order in terms of the common law, sufficient
cause must be shown, which means that:
2.1. there must be a
reasonable and acceptable explanation for the default;
2.2. the applicant must
show that the application was made
bona fide;
2.3. the applicant must
show that he has
bona fide
defence which
prima facie
has some prospects of success.
[3]
It is settled law that the Court, by virtue of its inherent powers of
rescission in terms of the common law, has the power to
rescind a
judgment or order obtained on default of appearance provided that
sufficient cause for rescission has been shown. The
term
'sufficient
cause' "defies precise or comprehensive definition, for many and
various factors are required to be considered"
[1]
Factual
Background
[4]
The Respondent (plaintiff in the main action) claimed damages in the
sum of R1 689 495, 00 arising out of the seizure by members
of the
South African Police Services (SAPS) of ammunition belonging to the
Respondent which was kept in a strongroom at its business
premises
("the Northriding strongroom") on 13 July 2011. The
Northriding strongroom was on that date, sealed by the SAPS
thereby
being rendered inoperative to the Respondent ("the seizure").
[5]
The Northriding strongroom and ammunition were returned to the
Respondent on 31 October 2012. It is alleged by the Respondent
that
it suffered damages in the sum of R1 689 495, 00 by way of loss of
business profit during the period 13 July 2011 to 31 October
2012 as
a consequence of the seizure.
[6]
On 9 October 2015, the Court in the absence of the Applicants
(defendants in the main action) granted a default order in terms
of
which the Applicants' defence was struck out. The default order was
granted pursuant to the Applicants having failed to comply
with the
Court order granted on 26 March 2015 in terms of which the Applicants
were ordered to make the documents requested by
the Respondent in
terms of Rule 35 (3) of the Uniform Rules of Court available for
inspection in accordance with Rule 35 (6), or
to state under oath
that such documents were not in their possession.
[7]
The relevant facts with regard to the Defendants not having complied
with the Plaintiff's notice in terms of Rule 35 (3) are
as follows:
7.1 The Plaintiff's rule
35 (3) notice was served on the Office of the State Attorney on 21
January 2015. The Defendants were in
terms of the rule 35 (3) notice
required to make the following documents available for inspection
within 10 days ie. on or before
4 February 2015:
7.1.1. South African
Police Service Douglasdale docket CAS 370/07/2011; (item 1)
7.1.2. All documentation
including applications, permits, authorisations, licences and
correspondence held by the South African
Police Service Central
Firearms Registry relating to Andrew Tonkin Guns and Rifles CC (CFR
No 100159); (item 2)
7.1.3. The internal file
compiled and held by the South African Police Service Central
Firearms Registry relating to Andrew Tonkin
Guns and Rifles CC (CFR
100159); (item 3)
7.1.4. The investigation
file and report compiled by the Independent Complaints Directorate of
the SAPS in connection with investigations
conducted into the conduct
of Lieutenant Colonel Kemp during the period 2012 - 2014; (item 4)
7.2 Prior to the lapse of
the 10 day period on 2 February 2015, at the second pre-trial
conference, the Defendants' attorney (Mr
Kobus Meier) undertook to
make enquiries as to the documentation requested in terms of the rule
35 (3) notice. On 18 February 2015,
the Plaintiff served an
application to compel the discovery of the documents listed in the
rule 35 (3) notice. The application
to compel was enrolled for
hearing on 26 March 2016;
7.3
By way of
letters dated 4 March 2015
[2]
,
11 March 2015
[3]
and 17 March
2015
[4]
addressed to the
National Commissioner and SAPS, the Defendants requested the
documents requested in the rule 35 (3) notice. All
these documents
resort under different offices. On 26 March 2015 the Plaintiff
obtained an order compelling the Defendants to make
discovery of the
documents and the order was served on the Office of the State
Attorney on 8 April 2015.
7.4 The Central Firearms
Registry documents (items 2 and 3) were forwarded by the Defendant's
attorneys to the Plaintiff's attorneys
under cover of their letter
dated 22 April 2015. It was stated in this letter that the
Defendant's attorney had once again requested
the SAPS Douglasdale
docket (item 1) and that the SAPS were not in possession of it and
did not have access to the Independent
Complaints Directorate
investigation file (item 4).
[8]
Applicants' counsel
[5]
contends
that in light of the aforegoing, at the time of the granting of the
default order on 9 October 2015 for the striking out
of the
Defendants' defence, items 2 and 3 had been furnished to the
Plaintiff's attorneys and the Plaintiff's attorneys had been
informed
that the SAPS were not in possession of items 1 and 4, the
investigation file and report of the Independent Complaints
Directorate and the Douglasdale docket as it could not be traced.
[9]
Applicant's Counsel submitted that it was however alleged in the
founding affidavit deposed to by the Plaintiff's attorney in
support
of the application for striking out of the Defendants' defence that:
9.1 he had received no
reaction to his letter to the Defendant's attorneys dated 20 April
2015 concerning non-compliance with the
order to compel;
9.2 he had received no
reply to his letter dated 11 May 2015 with regard to the discovery of
the Central Firearms Registry documents
requested;
9.3 the Defendants'
failure to comply with the order to compel showed "a
distinct
contempt of this court's order.
. .
and improper failure to
ensure the speedy finalization of this matter".
Wilful
Default
[10]
The explanation given by the Applicants for failure to comply with
the order compelling discovery of the documents listed in
the rule 35
(3) notice granted on 26 March 2015 is that the Defendant's attorney
was still attempting to obtain a copy of the Douglasdale
docket from
the SAPS and the investigation file of the Independent Complaints
Directorate, rather than simply to file an affidavit
that these
documents were not in the possession of the SAPS.
[11]
It is submitted on behalf of the Applicants that at the time of the
default order on 9 October 2015 for the striking out of
the
Defendants' defence, the Central Firearms Registry documents (items 2
and 3) had been furnished to the Plaintiff's attorneys.
The
Plaintiff's attorneys had also been informed that the SAPS were not
in possession of the Douglasdale docket as it could not
be traced and
of the investigation file and report of the Independent Complaints
Directorate. Applicants' counsel submitted that
the Defendants were
therefore not in willful default of the order to compel granted on 26
March 2015 which culminated in the granting
of the default order.
[12]
The Defendants' reasons for not having opposed the application for
striking out their defence which was served on the Office
of the
State Attorney on 7 September 2015 are that:
12.1. The Defendants'
attorney was involved in the Sudan's President Al Bashir matter
and also in the application for leave
to appeal against the judgment
since August 2015. Pursuant to the application for leave to appeal
having been dismissed on 17 and
18 September 2015, he was then
involved in the petition to the Supreme Court of Appeal for leave to
appeal against the judgment
and this involved numerous daily
consultations with seven (7) counsel representing different
departments.
12.2. The defendant's
attorney was tied up in the Al-Bashir matter until the application to
the Supreme Court of Appeal was filed
on 2 October 2015 and he then
went on leave on the same day (2 October 2015). The application to
strike out the Defendants' defence
was
"the fish that shipped
through the net"
due to his intense involvement in the
Al-Bashir matter and not that he simply ignored the application.
[13]
Respondent's counsel
[6]
contends
that whatever the explanation, there was a contemptuous dragging of
the feet by the Defendants' attorney and an improper
delay in dealing
with the reasonable request for provision of the requested documents.
Counsel argued that the Defendants' attorney
acted with wilful
contempt, knowing of the application for striking out of the defence
that was set down for 9 October 2015 but
went on holiday without
requesting for an extension of time, or for a postponement. It was
therefore submitted that there is no
proper explanation for the delay
and for the default.
[14]
A party applying for rescission of a default judgment is required to
give a 'reasonable explanation' for the party's default,
rather than
an explanation whereby the party is absolved from all the blame for
the default
[7]
. Although the
explanation given by the Defendants' attorney does not absolve him
from the blame for the default, in my view, the
explanation for not
opposing the application for striking out the Defendants' defence
constitutes a reasonable and acceptable explanation
for the default.
Bona
Fide Defence
[15]
It is submitted on behalf of the Plaintiff that the Defendants have
no
bona fide
defence to the Plaintiffs claim which
prima
facie
carries some prospect of success. The Plaintiffs claim is
based on damages arising from the seizure by members of the SAPS of
the
ammunition belonging to the Plaintiff and kept at its business
premises at the Northriding strongroom. The Northriding strongroom
and ammunition were returned to the Plaintiff on 31 October 2012
after the Senior Prosecutor declined to prosecute the Plaintiff.
[16]
It is common cause that the Plaintiff had not been issued with a
license to store ammunition at the Northriding strongroom,
but
notwithstanding the Plaintiff stored ammunition at the Northriding
strongroom. It is also common cause that the Plaintiff supplied
ammunition to Mr HJ Bekker ("Bekker") at the Northriding
strongroom being a person who did not have a license to possess
ammunition. It is therefore submitted by Defendants' counsel that the
seizure was lawful in terms of
section 20
of the
Criminal Procedure
Act 51 of 1977
.
[17]
The following legal principles are applicable in this case:
17.1. In terms of
Section
20
(a) and (b) of the Act, the State may seize an article which is
concerned in or is on reasonable grounds believed to be concerned
in
the commission or suspected commission of an offence, or which may
afford evidence of the commission or suspected commission
of an
offence;
17.2.
Section 120
(1) (a)
and (b) of the
Firearms Control Act 60 of 2000
, provides that a
person is guilty of an offence if he fails to comply with any
provision of the
Firearms Control Act, or
any condition of a licence,
permit or authorisation issued under the
Firearms Control Act;
17.3. Section
34 (a) of
the
Firearms Control Act provides
that the dealers' licence must
specify the premises in respect of which the licence is issued;
17.4.
Regulation 86
(2)
of the regulations made under the
Firearms Control Act provides
that
a dealer must store firearms and ammunition in a safe or strongroom
at the place of business specified on the licence;
17.5.
Regulation 110
(1)
of the regulations made under the
Firearms Control Act provides
that
any person who fails to comply with any provisions of the regulations
shall be guilty of an offence;
17.6.
Section 31
(1) (a)
of the
Criminal Procedure Act provides
that if no criminal
proceedings are instituted in connection with a seized article or if
it appears that such article is not required
at the trial for purpose
of evidence or for purposes of an order of court, the article shall
be returned to the person from whom
it was seized if such person may
lawfully possess such article.
[18]
In light of the above, Applicant's counsel submitted that pursuant to
the seizure, the articles seized were lawfully retained
under the
control of the SAPS pending the decision by officials of the National
Prosecuting Authority as to whether the Plaintiff
and/or Andrew
Tonkin (or any other person) was to be charged arising out of the
seizure.
[19]
On 31 October 2012, the Deputy Director of Public Prosecutions,
Johannesburg (Advocate GL Roberts SC) declined to prosecute
anyone on
the Douglasdale docket, on which date, in pursuance of his decision
not to prosecute, the Northriding strongroom and
the ammunition which
had been seized were returned to the Plaintiff.
[20]
Respondent's counsel submitted that the Defendants do not have a
bona
fide
defence to the Plaintiff s action which
prima facie,
carries some prospect of success in that:
20.1.
"the
Plaintiff committed no offence of whatsoever nature and there simply
was at no time,
.
. . ,
any
grounds to seize and refuse to return the ammunition to the
plaintiff"
[8]
;
20.2.
having
regard to the fact that the investigation officer ("Willemse")
had a list of purchasers who had been supplied with
ammunition from
the Northriding strongroom, together with the addresses of such
purchasers,
"the
investigation
of this alleged offence by the Plaintiff must have been the easiest
that any member of the South African Police Service
ever had to
do'
[9]
20.3.
"(the)
Senior Prosecutor, Randburg declined to prosecute the Plaintiff
during or about August 2011" (as
a
consequence
of which the Defendants could not "sit on the matter until the
31 October 2012
[10]
”);
20.4.
"out
of sure (sic) vindictiveness the Defendants refused and failed to
take any steps in order to get
a
speedy
resolution of whether anybody could or should be prosecuted and
indeed took 14 months before they obtained
a
decision
from Adv. Roberts SC"
[11]
20.5.
"there
simply was no basis after August 2011 to withhold the Northriding
strongroom and its contents of shotgun ammunition
from the
Plaintiff''.
[12]
[21]
Applicants' Counsel submitted that it is correct that the
investigating officer had a list of purchasers who had been supplied
with ammunition from the Northriding strongroom, but the purchasers,
in May 2012 declined to make any police statements to the
investigating officer on the advice of their attorney. The Senior
Public Prosecutor, Randburg declined to prosecute on charges
arising
out of the seizure but retained the Douglasdale docket for purposes
of presenting it to the Director of Public Prosecution
for a decision
whether to prosecute the Plaintiff and/or Andrew Tonkin (or any other
person) on charges arising out of the seizure.
Only on 31 October
2012 did Advocate Roberts SC decline to prosecute on charges arising
out of the seizure and the strongroom and
ammunition were returned to
the Plaintiff.
[22]
The decision whether or not to prosecute does not vest in the
Investigating Officer but on the National Prosecuting Authority.
In
my view, the allegations of ma/a
fide
and
vindictiveness on the part of any member of the SAPS refusing and/or
failing to have any person prosecuted on charges arising
from the
seizure are a triable issue which justifies the rescission of the
default order.
[13]
[23]
It was further submitted on behalf of the Applicants that the
Defendants have a
bona fide
defence on the basis that the
Plaintiff failed to mitigate its damages by either bringing an
application to compel the National
Prosecuting Authority to make a
decision as to whether to prosecute or not or an application for the
return of the seized Northriding
strongroom and ammunition.
Ad
granting of the default order
[24]
Applicants' Counsel contends that the application for the striking
out of the Defendants' defence was moved (and the order
granted) on
the strength of false allegations contained in the founding affidavit
in support of the application in that:
24.1. The allegation on
the part of the Plaintiffs attorney that he had no reaction to his
letter dated 20 April 2015 is false.
The Defendants' attorney did
respond to the letter by way of a letter dated 22 April 2015 and on
the same day had a telephonic
discussion with the Plaintiff s
attorney informing him that despite attempts to obtain the
Douglasdale docket, the SAPS had not
been able to trace it;
24.2. The allegation on
the part of the Plaintiffs attorney that he received no response to
his letter dated 11 May 2015 is also
false. A copy of the Central
Firearms Registry file was delivered at the Plaintiffs office on 12
May 2015;
24.3. The allegation on
the part of the Plaintiffs attorney that Defendant's attorney showed
"a
distinct contempt of this court order'
in not having
complied with the compelling order of the
rule 35
(3) notice does not
accord with the facts in that:
24.3.1. the Central
Firearms Registry file (item 2 and 3) was furnished to the Plaintiffs
attorney;
24.3.2. the Plaintiffs
attorney had been informed that the reason for the Douglasdale docket
(item 1) not having been furnished
to him was that the SAPS was
unable to trace it;
24.3.3. the Plaintiff's
attorney had likewise been informed that the Defendants were not in
possession of the investigation file
of the Independent Complaints
Directorate (item 4).
[25]
Based on the above-mentioned facts, Counsel for the Applicant
submitted that the granting of the default order on the strength
of
false allegations constitutes sufficient cause for the rescission of
the default order. I agree with this submission as at the
time of
granting the default order, the Court was not made aware of the true
facts and circumstances giving rise to the application
for the
striking out of the Defendant's defence.
[26]
The contention on the part of the Plaintiff that the application for
rescission of the default order is out of time as it was
not brought
within reasonable time after 9 October 2015 is in my view, without
merit. It is common cause that although the default
order was granted
on 9 October 2015, it was served on the Office of the State Attorney
on 28 October 2015. The application
for rescission of the
default order was delivered on 22 December 2015. Furthermore,
paragraph 3 of the order granted on 23 November
2015
[14]
,
the Defendants were granted leave to deliver a rescission application
within 20 days from date of the order (ie. on or before
22 December
2015). I am therefore satisfied that the application for
rescission of the default order was brought within reasonable
time
without any unreasonable delay.
[27]
I am satisfied that the Applicants' defences are sufficient to
establish a
bona fide
defence that
prima facie
carries
some prospect of success. The Applicants have made out a good case
for the relief sought.
[28]
In the premises, the following order is made:
1.
The order granted
by default on
9
October 2015 under case number 6952512013 is
hereby rescinded;
2.
The
applicants/defendants' defence in the main action is reinstated;
3.
Costs of this
application will be costs in the cause.
________________
D
S MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES
:
Counsel
on behalf of Applicant
:
Adv. AJ
Louw
Instructed
by
: State
Attorneys
Counsel
on behalf of Respondent
:
Adv.
TWG Bester SC
Instructed
by
: JWJ van
Wyk Attorneys
Date
Heard Date
: 24
November 2016
Delivered
: 15
December 2016
[1]
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765 A-C
[2]
Record page 32 Annexure "JMI1"
[3]
Record page 35-36 Annexure "JM2"
[4]
Record page 35-40 Annexure "JM3"
[5]
Advocate TWG Bester SC
[6]
Advocate AJ Louw
[7]
See Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1(SCA)
at para [11]
[8]
Answering affidavit, p 65 of Record, para 14.2
[9]
Answering affidavit, p 66-67 of Record, para 15.3
[10]
Answering affidavit, p 67 of Record, para 15.4
[11]
Answering affidavit, p 68 of Record, para 15.5.2
[12]
Answering affidavit, p 68 of Record, para 15.8
[13]
See Grant v Plumbers 1949 (2) SA 470 (O)
[14]
Answering Affidavit, p 90 of Record, Annexure "RESl"