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[2015] ZAGPPHC 297
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Minister of Police v Phalafala and Another (61719/13) [2015] ZAGPPHC 297 (6 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 61719/13
DATE: 6 MARCH 2015
REPORTABLE
OF INTEREST TO OTHER
JUDGES
IN THE MATTER
BETWEEN
MINISTER OF
POLICE
..................................................................................................................
Applicant
and
MOSIMA GIVEN
PHALAFALA
.......................................................................................
First
Respondent
NOMSIZI BRENDA
MOTEBU
......................................................................................
Second
Respondent
JUDGMENT
LEGODI J
[1] In this matter,
the Minister of Police asks for relief as follows:
“
KINDLY
TAKE NOTICE that the defendant intends to bring an application for
rescission of the following orders:
(i) The order
granted on 8 April 2013 by His Lordship Chetty AJ, compelling
applicant to provide documentation as requested in respondents’
Notice in terms of Rule 35(3), and ordering Applicant to pay the
costs of said application;
(ii) The order
granted on 3 September 2013 in terms of the rule nisi granted on 2
August 2013;
(iii) Any order
granted on the 1 November 2013 under the above-mentioned case number;
(iv) The order
granted on 13 March 2014, directing applicant to pay first respondent
in respect of herself and her two minor children,
Wesley and
Moitheri, the sum of R1 222 156.18, and directing Applicant to pay
second Respondent in respect of the minor child McRoy
the sum of R202
633.47 and directing Applicant to pay the costs of the action;
(v) Further and
or alternative relief’.
[2] The relief is
sought after the respondents, Ms Mosima Given Phalafala and Ms
Nomsizi Brenda Motebu had obtained an order by
default dismissing the
applicant’s defence and judgement granted also by default in
terms of which, the applicant was to
pay in damages an amount of R1
222 156.18 to the first respondent and R202 633.47 to the second
respondent. The latter had sued
in her capacity as the biological
mother and guardian of her minor child. The respondents in this
matter instituted action proceedings
against the applicant on the 2
October 2012. They will henceforth be referred to as in the main
action. The respondents will be
referred to as the first and second
plaintiffs respectively and the applicant as the defendant.
[3] The claim was
for the loss of support arising from the death of the first
plaintiff’s husband, one Patrick Phuti Leshaba
(hereinafter
referred to as the deceased). The deceased also had a child with the
second plaintiff. The deceased died on the 15
June 2012 at a hospital
after he was arrested and taken into custody on the 14 June 2012. The
plaintiffs blamed the police for
the death of the deceased, alleging
that they assaulted the deceased and that he died of the injuries
arising therefrom and or
that the police failed in their legal duty
by not preventing members of the police from assaulting the deceased.
[4] After the close
of the pleadings, and on the 5 February 2013, the plaintiffs
delivered a notice purporting to be in terms of
Rule 35 (3) of the
Uniform Rules. Sub-rule (3) provides as follows:
“
If
any party believes that there are in addition to documents or tape
recordings disclosed as aforesaid, other documents (including
copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the
former may give
notice to the latter requiring to make the same for inspection in
accordance with sub-rule(6),orto state on oath
within ten days that
such documents are not in his possession, in which event he shall
state their whereabouts, if known to him.”
[5] In addition to
the delivery of the notice aforesaid, and on the same date, the
plaintiffs also delivered notices in terms of
sub-rules (1), (6) (8)
and (10) of Rule 35. These notices were contained in one document.
[6] On the 8 April
2013, Chetty AJ made an order against the defendant in terms of which
the defendant was ordered to provide certain
documents purportedly
requested in terms of Rule 35(3). The order was made after a notice
to compel in terms of Rule 35(7) was
served on the defendant on the
28 February 2013. On the 16 April 2013 the plaintiffs were provided
with some of the documents.
At that time, the defendant had not as
yet known of the order of the 8 April 2013. The order was only
brought to the attention
of the defendant on the 30 April 2013.
[7] On the 3
September 2013 the defendant was served with a notice of application
to have its plea or defence struck out for failure
to comply with the
order of 8 April 2013. On the 1 November 2013 the application was
granted by Molopa-Sethosa J. The order was
granted in the absence of
the defendant.
[8] On the 14
January 2014 the defendant was served with notice of set down for the
hearing of the matter on quantum. The case was
scheduled for the 13
March 2014. On the 13 March 2014 an application for postponement of
the trial was refused. The defendant’s
counsel walked out of
court after the application for a postponement was refused. Judgement
by default was then granted against
the defendant in the amount of R1
222 156.18 and R202 633.47. It is this judgment and the striking out
of the defendant’s
defence granted on the 1 November 2013 which
became the subject of a fierce dispute before me. The judgment and
the striking out
are branded as products of unprocedural and improper
conduct which flew from improper and complete irregular service of
sub-rule
(3).
Application of
Rule 35(3)
[9] Sub-rule (3) is
quoted in paragraph [4] of this judgment. On the other hand, sub-rule
(1) provides as follows:
“
Any
party to any action may require any other party thereto, by notice in
writing, to make discovery on oath within twenty days
of all
documents and tape recordings relating to any matter in question in
such action (whether such matter is one arising between
the party
requiring discovery and the party required to make discovery or not)
which are or have at any time been in the possession
or control of
such other party. Such notice shall not, save with the leave of a
judge, be given before the close of pleadings’’.
[10]
Reading sub-rules (1) and (3) in context, a question raises, whether
one can serve notice in terms of sub-rule (3) at the same
time with
notice in terms of sub-rule (1) and before discovery. For the
following reasons, I do not think so. Sub-rule (3) allows
a party to
require any party to either make available for inspection or disclose
the whereabouts of other documents he or she believes
are in
possession or have been in possession of the other party. However, a
party giving such a notice is only entitled to do so,
after discovery
in terms of sub-rule (1). The wording of the sub-rule (3), points to
this direction. That is, “ if any party
believes that there
are,
in
addition
to
documents or tape recordings disclosed as aforesaid
”
.
[11]
The underlining is my emphasis. It is clear that one cannot before
discovery in terms of sub-rule (1), proceed to deliver sub-rule
(3)
notice. The dies in both subrules (1) and (3) make it even clearer
that it cannot be done. For example, discovery in terms
of sub-rule
(1) read with subsection (2) gives twenty days grace within which to
comply. However, in terms of sub-rule (3), the
dies are ten days. The
effect of this was that the defendant was required to respond to sub-
rule (3), before discovery and before
the twenty days in terms of
sub-rule (1) read with sub-rule (2) had expired. There is another
concern about the notice delivered
by the plaintiff in terms of
sub-rule (3). It required the defendant, ‘to deliver ...
a
written statement
setting
out what documents of the following nature you have presently or had
previously in your possession’. The documents
were then set out
in the notice. The underlining is my emphasis.
[12] It is clear
from the wording of the notice, that the defendant was not required
to either make available for inspection or
disclose the whereabouts,
of other documents, the plaintiffs believed were in possession or
have been in possession of the defendant.
To deliver a written
statement setting out what documents of a specified nature in
possession or previously in possession of the
defendant as indicated
in the notice quoted above, does not come closer to requiring to make
certain documents or whereabouts of
certain documents as envisaged in
sub-rule (3) available for inspection. The notice on this ground is
also flawed.
[13]
Sub-rule (3) provides the procedure for a party dissatisfied with
discovery of another party
1
.
The intention of the sub-rule is to provide a procedure to supplement
discovery which has already taken place, but which is alleged
to be
inadequate
2
.
It requires the other party to give notice to the party who
discovered in terms of subrule (1) to make the documents or tape
recordings available for inspection in accordance with sub-rule (6).
[14] Sub-rule (6)
reads as follows:
“
Any
party may at any time by notice as near as may be in accordance with
Form 13 of the First Schedule require any party who has
made
discovery to make available for inspection any documents or tape
recordings disclosed in terms of sub-rules (2) and (3). Such
notice
shall require the party to whom notice is given to deliver to him
within five days a notice as near as may be in accordance
with Form
14 of the First Schedule, stating a time within five days from the
delivery of such latter notice when documents or tape
recordings may
be inspected at the office of his attorney or, if he is not
represented by an attorney, at some convenient place
mentioned in the
notice, or in the case of bakers’ books or other books of
account or books in constant use for the purposes
of any trade,
business or undertaking, at their usual place of custody. The party
receiving such last-named notice shall be entitled
at the time
therein stated, and for a period of five days thereafter, during
normal business hours and on any one or more of such
days, to inspect
such documents or tape recordings and to take copies or
transcriptions thereof. A party’s failure to produce
any such
document or tape recording for inspection shall preclude him from
using it at the trial, save where the court on good
cause shown
allows otherwise”.
[15] It is also
clear that the notice in terms of sub-rule (6) can only be invoked
after discovery in terms of sub-rule (1). ‘At
any time’,
in sub-rule (6) can only apply after discovery in terms of sub-rule
(1). Therefore ‘at any time’ in
sub-rule (6) should be
understood to mean ‘at any time’ after discovery. The
plaintiff did give a notice in terms of
sub-regulation (6). The
difficulty is that it was delivered at the same time and in the same
document containing sub-rule notice
(1). That means, the defendant
was given 20 days to discover in terms of sub-regulation (1) and at
the same time, the defendant
was given 5 days to comply with notice
in terms of subrule (6).
[16] In my view, the
delivery of notices under sub-rules (3) and (6) at the same time with
notice in terms of sub-rule (1) was a
blatant disregard and abuse of
the procedural process designed in rule 35. This then brings me to
another issue.
WHETHER THE
DEFENDANT WAS OBLIGED TO COMPLY WITH NOTICES IN TERMS OF SUB-RULES
(3) AND (6)?)
[17] In paragraph 27
of the answering affidavit, the first plaintiff states:
"On
5 February 2013 a notice on the applicant’s attorney in terms
of Rule 35(3) requesting the applicant to make available
certain
document.
The
applicant failed to comply with the notice within the
prescribed time periods
whereupon the respondents served
and filed an application to compel in terms of Rule 35(7) on the 28
February 2013”.
The
underlining is my emphasis.
I must immediately
say, I do not think that the defendant was obliged to respond to the
notices in terms of sub-rules (3) and (6)
before discovery in terms
of subrule (1).
[18] The prescribed
time periods under sub-rule (3) and (6) would never have kicked in
before discovery in terms of sub-rule (1).
But most importantly,
instead of seeking to compel the defendant to comply under sub-rule
(2) read with sub-rule (1), the plaintiffs
elected to compel the
defendant to comply with sub-rule (3), by invoking sub-rule (7). As I
said, that they could not do. In terms
of sub-rule (7), if any party
fails to give discovery as aforesaid or, having been served with
notice under sub-rule (6) omits
to give notice of a time for
inspection as aforesaid or fails to give inspection as required by
that sub-rule, the party demanding
discovery or inspection may apply
to a court, which may order compliance with this rule and failing
such compliance, may dismiss
the claim or strike out the defence. The
next question is, whether the defendant was obliged in law to comply
with the notice in
terms of Rule 35(7) regarding failure to comply
with a notice in terms of sub-rule (3). I do not think so for the
reasons already
alluded to in this judgment, save to say, the
defendant should have, there and then, invoked the provisions of Rule
30. The notice
in terms of subrule (7) was therefore another product
of a blatant and irregular procedural process. This raises another
issue.
WHETHER THE ORDER
OBTAINED ON THE 8 APRIL 2013 BEFORE CHETTY AJ CAN BE VARIED OR
RESCINDED IN TERMS OF RULE 42?
[19] The order in
this regard was as follows:
“
1.
The Respondent is compelled to, within 10(ten) days form (sic) today
provide the following documentation as requested by virtue
of Rule
(35(7) to the Plaintiffs:
1.1 A certified
copy of the contents of the Police case docket at the SAPS Manopane
as registered under CAS number 174/06/2012;
1.2 A certified
copy of the post mortem results for the late P.P. Leshaba;
1.3 A certified
copy of the Garankuwa Forensic Mortuary results for the late P.P.
Leshaba;
1.4 A certified
copy of the video footage of the incident under investigation in this
case as collected by D F Stassen;
1.5 A certified
copy of the IPID (Internal Police Investigation Department) finding:
2. That the
Respondent will pay the costs of this application. ”
[20] The order was
obtained by default. The record of the proceedings of the 8 April
2013 have not been made available to this court,
and the plaintiffs’
counsel did not argue that when the order was granted, Chetty AJ was
fully appraised of the irregularity
or defect in the services of
notices in terms of subrules (3) and (6). Rule 42 deals with
variation and rescission of orders. It
reads as follows:
“
(1).
The court may, in addition to any other powers it may have, mero motu
or upon the application if any party affected, rescind
or vary;
(a) An order or
judgement erroneously sought or erroneously granted in the absence of
any party affected thereby;
(b) An order or
judgement in which there is an ambiguity, or patent error or
omission; but only to the extent of ssuch ambiquity,
error or
omission;
(c) An order or
judgement granted as the result of a mistake common to the parties.
2. Any party
desiring any relief under this order shall make application thereof
upon notice to all parties whose interest may be
affected by any
variation sought.
3. The court
shall not make any order rescinding or varying any order or judgement
unless satisfied that all the parties whose interest
may be affected
have notice of the order thereof.”
[21]
Sub-rule (1}(a) of rule 42 is critical. In order to obtain a
rescission under this sub-rule, the applicant must show that the
prior order was erroneously sought or granted. Once the court holds
that an order or judgement was erroneously sought or granted,
it
should without further enquiry rescind or vary the order
3
.
It is not necessary for a party to show good cause for the sub-rule
to apply. In general terms, a judgement is erroneously granted
if
there existed at the time of its issue, a fact of which the judge was
unaware of, which would have precluded the granting of
the judgement
and which would have induced a judge, if aware of it, not to grant
the judgement or order
4
.
An order or judgement is also erroneously granted if there was an
irregularity in the proceedings. I must pause for a moment to
deal
with this. The principle must be found to apply in the present case.
There was procedural irregularity both with regards to
the notices in
terms of sub-rules (3) and (6) of Rule 35. I have already dealt with
this. There is no suggestion that Chetty AJ
was alluded to or was
aware of the procedural flaws in the service of the notices in terms
of subrules (3) and (6) particularly
sub-rule (3).
[22] A judgement to
which a party is procedurally entitled, cannot be considered to have
been granted erroneously within the meaning
of subrule (1)(a) of Rule
42 by reason of facts of which the judge who granted the judgement
was unaware of. The plaintiffs were
not entitled to file sub-rules
(3) and (6) notice and then obtain the order of the 8 April 2013.
Failure to comply with discovery
in terms of sub-rule (1), could only
have entitled them to invoke the provisions of sub-rule (7).
[23] It looks like
the plaintiffs in seeking the order on the 8 April 2013 as they did,
were also unaware that their notices in
terms of sub-rules (3) and
(6) were unprocedural, particularly sub-rule (3). If that is so, they
too erroneously sought the order
that they obtained on the 8 April
2013. Therefore a relief sought in the present application, up to
sofar, conforms to what is
envisaged in Rule 42(1) (a). I am
satisfied that, had Chetty AJ been aware of these procedural flaws,
he would not have granted
the order of the 8 April 2013. That being
so, I turn to deal with the other issue directly connected hereto.
WHETHER THE ORDER TO
STRIKE OUT THE DEFENDANT’S DEFENCE GRANTED ON 1 NOVEMBER 2013
WAS ERRONEOUSLY GRANTED?
[24] The order was
granted by Molopa-Sethosa J. It was granted after the order quoted in
paragraph [19] of this judgment was granted
on the 8 April 2013. That
order as I said, was erroneously granted. The simple question is
whether, the order of the 1 November
2013 can survive the application
of Rule 42(1 )(a). I do not think so. There is no suggestion that
Molopa-Sethosa J was aware that
the order of 8 April 2013 was
erroneously granted. Had she have been aware, I am satisfied that she
would not have granted the
order for the reasons already mentioned
regarding the irregularities in the service of the notices in terms
of sub-rules (3) and
(6).
[25] The order of
the 8 April 2013 was brought to the attention of the defendant in a
letter dated the 18 April 2013. The letter
and the order were only
delivered to the defendant on the 30 April 2013. Before that, the
defendant had served on the plaintiffs
notice of amendment of the
plea and Rule 35(1)(6)(8) and (10) notices on the 12 and 16 April
2013 respectively. In addition, on
the 16 April 2013, the plaintiffs
received a letter from the defendant’s attorneys. The letter is
dated 12 April 2013. In
the letter, the police docket, and SAPS 10
and 14 register extracts were included, but not as a response to the
order of 8 April
2013. By that time the defendant had not been made
aware of the order.
ORDER AND JUDGMENT
OF 13 APRIL 2014
[26] Two important
things had happened before Makgoka J on the 13 April 2014. Both have
a bearing on rules 42 and 30 of the Uniform
Rules. He was made aware
of the irregularities regarding the service of Rule 35(3) and the
subsequent order obtained on 8 April
2013 and 1 November 2013.
Secondly, he made a finding that the defendant acquiesced with those
irregularities.
[27] The matter
before Makgoka J started with an application for a postponement at
the instance of the defendant. The application
was opposed. The basis
for the opposing that the defendant’s defence had been
dismissed. Counsel for the defendant took the
court through the
papers pointing to the irregularities in the service of subrule (3).
Makgoka J refused the application for postponement
and then granted
judgement by default against the defendant in the amount of R1 222
156.18 and R202 633.47. Having reconsidered
judgment by Makgoka J, on
the 9 February 2015, I requested the parties to file supplementary
heads of argument to deal with the
question:
“
Whether
Makgoka J made a factual finding of irregular procedural steps by the
plaintiffs and that the subsequent orders of the 8
April 2013 and 1
November 2013 had been condoned or cured by the defendant’s
conduct? And if so, whether such a finding does
not fall outside the
purview of Rule 42? And if so, whether this court can rescind and or
vary the judgment and or order made on
the 13 April 2014 in terms of
Rule 42.
[28] I have received
further heads in this regard and I am greatly indebted to the
parties. On page 25 of the judgment, line 20
Makgoka J expressed
himself as follows:
“
I
need to revert to the procedural aspects relating to the orders that
were sought, in particular the order that was granted on
08 April
2013, because much was made of the supposed irregularity in granting
the order. To a great extent I agree that that order
should probably
not have been granted, for the simple reason that Rule 35(3) was not,
at that stage applicable. It was not applicable
because the defendant
discovery affidavit had not been served, and as a result that
application was premature. But as would later
emerge, this issue
becomes irrelevant in the light of what I would consider in the
course of the judgment”.
[29] There can be no
doubt that the court was alive to the procedural irregularities. Then
on page 26, lines 10 to 20, Makgoka J
proceeded as follows:
“
The
proper course for the defendant to have taken at that stage would
have been to bring an application to set aside the Rule 35(3)
application as an irregularity. That
was
not done, and as
correctly connected by Mr Kruger, for the plaintiffs, a party who
takes a further step in a situation where an
irregular step had been
granted, cannot later be heard to complain. There was, therefore,
acquiescence on the part of the defendant
in the supposed
irregularity. This is confirmed by the following. In April 2013 the
defendant gave notice of intention to amend
his plea. In the same
month, particularly on 12 April 2013, the defendant’s attorney
wrote to the plaintiffs’ attorneys
and stated the following:
“
Attached
please find copies of case docket Mabopane CR142/06/2012, the SAP10
register extract. The remainder of the required documentation
has
been requested, and you will be furnished with copies thereof as soon
as possible. You will also be receiving a notice of amendment
in due
course.
Now
this is clear demonstration of an attempt to comply with the order
that was made on 08 April 2013. In addition to that, on 17
February
2014 the defendant paid the taxed costs relating to all the
applications referred to earlier, in the amount R43 548.70.
The
defendant’s attorneys also attended a pre-trial conference with
the plaintiff’s attorneys in preparation for trial.
Therefore
it is my view that it no longer matters whether the order on 08 April
2013
was
irregularly
granted. The defendant acquiesced in that irregularity and therefore
cannot be heard to complain, having taken all the
steps that I have
mentioned, and form that as a basis for seeking a postponement of the
matter".
[30] Now whether or
not Makgoka J was correct in his finding is not for this court to
decide. Refusal for a postponement was after
he had found that the
defendant acquiesced in the irregularities. The question is whether
the judgment by default granted on 13
April 2014 was erroneously
granted as envisaged in sub-rule (1)(a) of Rule 42. I do not think
so. He made a factual finding that
has direct bearing on the
application before me. One of the steps taken by the defendant after
the order was served on it on the
30 April 2013 as per the letter of
the 12 April 2013, was the holding of pre-trial conference,
preparation of pre-trial minutes
and payment of costs. Indeed had it
not have been for the finding by Makgoka J, I would have been
required to determine whether
the defendant acquiesced with the
irregularity. That is, whether after he became aware of the
irregularity, it took further steps
in the cause.
[31] Rule 30 deals
with irregular proceedings. It provides as follows:
“
(1)
A party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.
(2) An
application in terms of subrule (1) shall be on notice to all parties
specifying particulars of the irregularity or impropriety
alleged,
and may be made only if-
(a) the applicant
has not himself taken a further step in the cause with knowledge of
the irregularity;
(b) the applicant
has, within ten days of becoming aware of the step, by written notice
afforded his opponent an opportunity of
removing the cause of
complaint within ten days;
(c)
the application is
delivered within fifteen days after the expiry of the second period
mentioned in paragraph (b) of subrule (2)”
(3) If at the
hearing of such application the court is of opinion that the
proceeding or step is irregular or improper, it may set
it aside in
whole or in part, either as against all the parties or as against
some of them, and grant leave to amend or make any
such order as to
it seems meet.
(4) Until a party
has complied with any order of court made against him in terms of
this rule, he shall not take any further step
in the cause, save to
apply for an extension of time within which to comply with such
order
J
’.
[32]
A further step in the cause is some act which advances the
proceedings one stage nearer completion
5
.
Steps taken in preparation of trial, such as requesting particulars
for trial, serving a notice to produce, convening and attending
a
pre-trial conference, are further steps in the cause
6
.
The defence of acquiescence was pertinently raised in the answering
affidavit. The defendant in its replying vehemently denied
any such
acquiescence. For example, the defendant denies knowledge of the
irregularity. That is, before he became aware of the
irregularities,
he had already taken steps in the cause. The real issue is however
whether this court is competent to deal with
the issue in terms of
Rule 42 read with relevant to the provisions of Rule 30. I do not
think so. Makgoba J was aware of the irregularities
when he refused
the postponement and when he granted judgment by default. Therefore,
relief sought in terms of Rule 42 cannot be
granted. However, that is
not the end of the road for the police.
COMMON LAW
RESCISSION
[33] In terms of
section 34 of the Constitution everyone has the right to have any
dispute that can be resolved by the application
of the law decided in
a fair public hearing before a court or where appropriate, another
independent and impartial tribunal or
forum. On the other hand,
section 39(2) of the Constitution provides that when interpreting any
legislation, and when developing
the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.
Subsection (3) thereof provides that
the Bill of Rights does not deny existence of any other rights or
freedom that are recognised
or conferred by common law, customary law
or legislation, to the extent that they are consistent with the Bill
of Rights.
[34] In applying the
principle as enriched in the Constitution, and the requirements for
rescission of judgment under common law,
the facts leading to the
present application have already been alluded to. The wanting conduct
of the State Attorney’s offices
had contributed mainly to the
granting of the orders of the 8 April 2013, 1 November 2013 and the
judgment granted by Makgoka J
13 April 2014. At common law, the court
is entitled to rescind a judgment obtained in default of appearance
provided sufficient
cause is shown. This includes a reasonable and
acceptable explanation for the default and that on merits, the party
has a bona
fide defence. It is the latter requirement that I am
concerned about. Whilst I am not satisfied with the explanation for
the default,
it cannot be said that the defendant has no bona fide
defence.
[35] At the time the
defendant’s plea was drafted, certain information on merits was
still outstanding. The video footage
of the incident where the
deceased was arrested was not viewed. The information has now come to
light and the deceased can be seen
on the video footage been
assaulted by members of the public. At the scene, and before the
deceased was taken into custody, members
of the emergency services
attended to the deceased. He was certified not to be seriously
injured. There were no visible injuries
to alert the police of the
danger of keeping the deceased in custody. It was only discovered in
the morning of 14 June 2012 that
the deceased was seriously ill. He
was taken to hospital where he was admitted and died a day
thereafter.
[36] The plaintiffs’
cause of action in the particulars of claim is pleaded as follows:
“
9.
During
the early hours of 14 June 2012 at or about 01:00 unidentified
members of the South African Police Services, acting in the
course of
their employment, unlawfully assaulted and seriously injured the
deceased during his arrest at the Morula Sun Casino
near Mabopane,
alternatively allowed bystanders to assault the deceased when there
was
a duty on the
members to protect the deceased from assault.
10
.
The deceased was
taken to the Terminus Police Station in Mabopane where he was left
unattended in the reception area and later in
a holding cell, despite
being seriously injured.
11
.
Members
of the South African Police Services negligently failed to ensure
that the deceased timeously received medical care and
only took the
deceased to the Odi Hospital in Mabopane where he was admitted at
12h08 on 14 June
2012
”
.
[37] Counsel for the
plaintiffs contended that the defendant’s plea that was
dismissed did not allege what is now said be
the basis for the bona
fide defence. That might be so, but it does not mean that if judgment
and the orders referred to in this
judgment are rescinded and or set
aside, the defendant will not be entitled to amend its plea to accord
with the evidence it intends
to rely on. The defendant’s
defence was dismissed on procedural technicalities. Merits of the
case were never ventilated.
Therefore, to deny the defendant its
opportunity to put its side of the story, in my view, would negate
against consideration of
justice and the changing times and
circumstances of the case. It would be unfair to do so. This is not a
trivial matter. Judgment
by default in the amounts of R1 222 156.18
and R202 633.47 and is not trivial. It is one case where justice
demands that the defendant
should be given the opportunity to present
its case. The prejudice that the plaintiffs may suffer, in my view,
is outweighed by
the potential prejudice to the defendant.
COSTS
[38]
For the purpose of this application, the defendant is asking for the
indulgence of the court and therefore costs order should
be used as a
safe guard for the inconvenience and prejudice caused to the
plaintiffs. I must reiterate, the defendant’s attorney
did not
diligently handle this matter. The history of the matter points to
this. I have expressed my displeasure in some of other
matters
handled by the State Attorney. In other matters, I demanded that an
explanation be given as to why costs order
de
bonis propiis
should
not be made against whoever might be responsible. Almost in every
unopposed motion roll, you find an order been sought because
the
State Attorney did not stick to its obligations in terms of the
Rules. It is a great concern that so much of the public funds
go into
a waste in the form of costs orders been made against government
departments and other organs of state due to the inefficiency
and
inability by the State Attorney to properly deal with cases entrusted
to his office. This case is therefore no exception to
such conduct by
the office of the State Attorney. A punitive costs order in the
circumstances of this case is appropriate. The
defendant could long
have invoked the provisions of Rule 30.
[39] Consequently, I
make an order as follows:
39.1 The orders
granted on 8 April 2013, 3 September 2013, 1 November 2013 and
judgment granted by default on the 13 March 2014
in the amount of R1
222 156.18 and R202 633. 47 are hereby rescinded and set aside;
39.2 The defendant’s
defence struck out on the 1 November 2013 is hereby reinstated;
39.3 The
applicant/defendant to pay the costs of the application on an
attorney and client’s scale such costs to include costs
of two
counsel.
M F LEGODI
JUDGE OF THE HIGH
COURT
FOR
THE APPLICANT:
ADV.
S MARITZ SC
ADV. M BOTMA
INSTRUCTED
BY:
THE STATE
ATTORNEY
SALU building,
Ground floor
Cnr Francis Baard
& Thabo Sehume streets
PRETORIA
REF:
pc/eb6134/2012/z61
TEL:
FOR
THE RESPONDENTS:
ADV.
T P KRUGER SC
ADV. Z MARX
INSTRUCTED
BY:
BARES & BASSON
ATTORNEYS
Woltemade
Building, Ground Floor
118
Paul Kruger Street
PRETORIA
0001
REF: LM1538/J BASSON
TEL: 012 324
4375/6/7
MATTER HEARD ON: 4
FEBRUARY 2015
JUDGMENT
HANDED DOWN:
6
MARCH
2015
1
United
Tobacco Companies (South) Ltd v International Tobacco Co of SA Ltd
1953
(1) SA 66
T.
2
The
MV Urgup: Owners of the Urgup v Western Bulk Carriers (Australia)
(PTY) Ltd
1999
(3) SA 500
(C) at 515 D
3
Tshabalala
v
Peer
1979
(4) SA 27( T)
at 30D;
Naidoo
v
Somai
2011
(1) SA 219
KZP at 220 F-G.
4
Naidoo
v
Matlala
NO
2012
(1) SA 143
(GNP) at 153 C.
5
Market
Dynamics (Pty) Ltd t/a Brian Ferris
v
Grogor
1984(1) SA 152 (W) at 153C.
6
Klein
v Klein
1993
(2) SA 648
(BG)