About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 346
|
|
Minister of Safety and Security and Another v Burger (59473/2012) [2015] ZAGPPHC 346 (15 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 59473/2012
In
the matter between:
MINISTER
OF SAFETY AND
SECURITY
........................................................
FIRST
APPLICANT
CAPTAIN
NKUMANE
.....................................................................................
SECOND
APPLICANT
and
PIETER JOHANNES
BURGER
..................................................................................
RESPONDENT
JUDGEMENT
TLHAPI
J
INTRODUCTION
[1]
This is an application for the rescission of an order granted on 7
November 2014. The applicants were ordered to jointly and
severally,
the one paying the other to be absolved, to pay the respondent an
amount of R250 000.00 in damages andcosts on
an attorney and
client scale. There was a further prayer for an order that the matter
be set down to determine quantum. The application
was brought in
terms of Rule 42(1)(a) and Rule 31(2)(b) of the Rules of Court. The
application was opposed.
[2]
The applicants averred that the order granted on 7 November 2014
where quantum was determined was erroneously sought and granted
in
the absence of the applicant. This occurred despite the fact that the
applicant had timeously delivered its plea to the claim
for damages
as contained in the summons, which damages had to be proved by oral
evidence.
It
was contended that Rule 31(2)(a) provided for the procedure to be
followed where default judgement could be granted in the absence
of
an intention to defend and after hearing of evidence. The applicants
were not in default of a delivery of an intention to defend.
They had
pleaded their defence and, that action proceedings could not be
converted into application proceedings, as happened in
this instance,
and where the applicants had been given only two days to react to the
application which was applicable only to urgent
applications in terms
of Rule 6(12). There was further no notification to the applicants as
provided in Rule 31 (4) which provided
for the setting down of the
hearing with not less than five days notice to the party in default
[3]
The respondent instituted action against the applicant claiming
damages in the amount of R2 012 500.00 suffered during
his
alleged unlawful arrest on 21 May 2011, detention and
subsequent acquittal. The sequence of events leading up to the
obtaining of the order to be rescinded was outlined in paragraph 9 of
the answering affidavit.
[4]
After the close of pleadings the respondents launched an application
to compel in terms of rule 35(3). The order was granted
on 7 November
2013 and the appellant failed to comply. An application was then
launched by the respondent in terms of rule 35(7),
for striking out
of the applicants defence. The applicants filed an opposing affidavit
on 20 January 2014 and a further affidavit
on 18 February 2014. The
replying affidavit was filed on 5 March 2014. The respondent and
applicants filed their heads of argument
on 31 March 2014 and 16
April 2014 respectively.
[5]
In paragraph 9.2.2 of the answering affidavit the respondent stated:
“
Due
to the fact that the respondent at that stage could not file a
quantum affidavit, the respondent requested that the determination
of
quantum be postponed sine die. In this regard I humbly refer ..to the
notice of motion and founding affidavit of the above mentioned
application that already forms part of the record before this
Honourable Court. I request that same be incorporated into this
application as if specifically part of the record. For sake of
reference the full bundle will be marked “B”
The
notice of motion read as follows:
“
1.
Dat die Eerste en Tweede verweerdes se verweer/e geskrap word;
2.
Dat die beregtinging van quantum sine die uitgetsel word;
[6]
The application to strike out was heard on 21 July 2014 with both
parties being represented by counsel. An order striking out
the
defence of the applicants was granted and the determination of
quantum was postponed sine die. The applicants filed a notice
of
application for leave to appeal the order on 8 August 2014 and
shortly thereafter served a follow up notice abandoning the
application for leave to appeal. The respondent contended that it
accepted the applicants abandonment of the application for leave
to
appeal the order striking out its defence and proceeded to file an
application for judgment on quantum. The application which
was set
down for hearing on 7 November 2014 and was served on the applicants
on 4 November 2014 and an order which is the subject
of this
application was granted. In paragraph 9.2.11 of the answering
affidavit the notice of motion and founding affidavit
on
quantum were incorporated into this application.
[7]
The respondents contended that the wording of the striking out order
envisaged a striking out of the applicants’ plea
without any
qualification and that it was not a striking out of the applicants’
plea only with regard to the merits and that
there was no separation
of the issues ordered by the court or by agreement.
They
contend that despite the fact that the applicants’ were
disentitled by the striking out order to further litigate, the
applicants had failed to deal in the founding affidavit with the
version of the respondent in the application to determine quantum.
No
version was put forward in the founding affidavit disputing the
respondent’s version, nor was there evidence of a possibility
of a
prima facie
defence that might lead the court to a different conclusion. The only
version was that of the State Attorney for applying for the
rescission with no indication from the applicants themselves of their
stance regarding the order that is sought to be rescinded.
[8]
In reply the applicants denied that the striking out of the defence
brought finality to the action in that what had been struck
out was
the defence on the liability or the merits and that the respondents
were still obliged to set the matter down for the determination
of
damages to enable the applicants to participate in the adjudication
of the damages. It was averred that the documents giving
rise to the
striking out of the defence were discovered and served on the
respondent’s attorney on 10 November 2014 and the
document was
annexed to the affidavit and marked
‘
MTM6’.
[9]
The main issue is whether the applicants are entitled to a rescission
in termsof rule 42(1)(a) or rule 31(2)(b) and whether
the action
should have been set down in terms of rule 31(4) for a hearing to
determine quantum after the applicants defence had
been struck out in
an application launched in terms of Rule 35 (7).
[10]
Mr Phaswane for the applicants submitted that it being a delictual
claim, for an unliquidated amount and where the respondent
bore the
burden of proof of damages alleged, determination of quantum required
evidence to be led as provided in terms of Rule
31. Furthermore, that
the striking out of the defence was not a bar to the applicants
contesting the quantum and subjecting the
respondents to cross
examination. Therefore the order was erroneously sought in the
absence of the applicant.
[11]
Mr Hamman for the respondent submitted that an application to strike
out in terms of rule 35(7) could only be engaged where
an opposing
litigant had, to the prejudice of the other party neglected to
respond to the notices envisaged in rule 35(3) read
with rule 35(6).
In this instance such notices were served on the applicants on 6 June
2013 and the applicants having failed to
comply therewith and with an
order compelling them to do so, the respondents launched the
application in terms of rule 35(7). He
submitted further that the
abandonment of the application for leave to appeal was a concession
that the judgment of 21 July 2014
was correct. I am in agreement with
this submission because the striking out of a claim or defence is a
drastic measure which should
only be resorted by a court having
judiciously exercised its discretion after considering all the facts
before it.
[12]
The position of the applicant as a result of the striking out of the
defence was that it was left without a leg to stand on,
the doors
were effectively shut. It cannot be correct as argued by Mr Phaswane
that the effect of the striking out was that it
left room for the
applicant to still participate in the trial in as far as the
determination of the quantum was concerned. Mr Phaswane
made a
concession ( which he later reneged on), by referring to page 824
paragraph 1 of Herbstein and Van Winsen (The Civil Practice
of the
High Courtsof South Africa, 5
th
edition), “
If
the defence is struck out, the defendant cannot appear at the trial
and crossexamine the plaintiff’s witnesses”.
Langley v
Wiiliams
1907
TH
197
and in this matter the Court upheld the objection raised on
behalf of the plaintiff that “
a
defendant shall be placed in the same position as if he had not
defended
. Mr
Maritz relied on Langley
supra
and on
Leggat
and Others v Forrester
1925
WLD 36
and
Mostert v
Pienaar
1930 WLD
151
, the plaintiff would be entitled to a judgement where the
defendant’s defence had been struck out. It was however
correctly
submitted by Mr Phaswane that where the claim was for an
unliquidated amount the court shall hear evidence before granting
judgement.
Mr Hamman submitted that the only limitation on the
respondent was to ensure that there was evidence sufficient to
convince a court
that the order sought was in the interests of
justice and not as could have been the case in a damages claim,
exorbitant.
[13]
In my view, a rule 35(7) application is not meant to also deal
with the determination of quantum hence, a prayer in that
application
that the determination of quantum be postponed
sine
die.
Mr Hamman
submitted that what followed was for the applicant to obtain
judgement and since the claim was for an unliquidated amount
the
responsibility placed on the respondent was to have applied for
judgement and to have placed sufficient facts before the court
to
enable it to make such determination. Because it was a claim for
damages the respondent had to convince the court that the order
he
sought was not only in the interests of justice, also that it was not
exorbitant. I am in agreement with these submissions.
[14]
The question that has to be answered was whether judgement should
only have been granted by way of prior notice to the applicant
in
terms of rule 31(5) and, by v
iva
voce
evidence,
alternatively whether the affidavit by the respondent sufficed.Mr
Hamman submitted that the in Havenga v Parker 1993(3)
SA 724(T)
evidence in a claim for damages could also be given by way of
affidavit was applicable in this instance. The application
for
judgment on 7 November 2014 was for the amount claimed for in the
summons. It was a substantive application of about 67 pages,
which
not only gave an account of the facts and why he alleged that he was
entitled to the damages suffered, it also related the
history of the
trial and the reasons why the applicant was not before the court. The
respondent was only awarded an amount of R250 000.00.
[15
] The respondent deemed it necessary to serve the applicants with the
application for judgment albeit at short notice. Mr Hamman
submitted
that it was not necessary to do so. Based on the decisions of
Langely, Leggat and
Mostert supra
the
doors were shut for the applicants, service upon them could
only have meant that the applicants were either being
notified as a
courtesy of the respondent’s next step. Even if the applicants
were of the view that service was an invite
for them to participate
in the trial the problem would still revert to the fact that the
applicants’ defence was struck out.
In my view the only manner
in which they would have been entitled to participate in the trial
again, was if they had been successful
in the appeal which they
voluntarily abandoned. Their service on the respondents of better
discovery as appeared in annexure ‘MTM6’
of the replying
affidavit was irregular in that their defence was struck out and they
had not business filing further processes.
It seems to me that that
was a means to enter the trial again by the back door. Mr Hamman
criticised this on the basis that no
case had been made out in the
founding affidavit.
[16]
Although I have expressed my views about the applicant’s
standing relating to the hearing of 7 November this still remains
an
application for rescission.
Rule
31(2)(b)
I
am of the view that this rule is not available to the applicants
because they are not defendants who were in default of delivering
a
notice of intention to defend or a plea and where on the grant of
default judgement they would have been entitled to set the
judgement
aside upon good cause being shown.
Even
if the applicants were entitled to approach the Court in terms of
this rule, what they failed to do was to show good cause,
The
application consisting of 67 pages was served on them and, available
to them were all the facts upon which the respondent alleged
he was
entitled to judgment. The founding affidavit in the rescission
application was lacking in grounds to indicate a
prima facie
defence to the
respondents
claim.
Rule
42(1)(a)
Mr
Hamman submitted for the respondent that for the applicant to be
entitled under this rule it was required that he fall within
the
parameters set out by the rule.
The
preamble to the rule required that the application be made by an
affected party. It was argued that the deponent to the founding
affidavit was not an affected party for purpose of the rule and that
there was no indication in the founding affidavit that the
applicants
were aware that the application was being launched, had given
authorisation and had interest in such application being
made. He
argued that the respondents were not opposed to the deponent who was
an attorney deposing to evidence within his person
knowledge, however
they objected to him deposing as an affected party.
[17]
It is settled law that an applicant must show that he has an interest
in the subject matter of the judgement or order sufficiently
direct
and substantial
,
United
Watch
& Diamond Co(Pty) Ltd v Disa hotels Ltd
1972
(4) SA 409
(C) and in
Standard
General Insurance Co Ltd v Gutman
1981
(2) SA 426 (C) 433H-436C it was held that an application for
rescission stood to be dismissed in the absence of the necessary
locus standi.
Galp v Tansley NO
and Another
1966
(4) SA 555
(C ) was also instructive in the discussion obiter on the
affected party
Again,
while in reply the deponent contended that he was entitled to launch
the application on behalf of his clients, the founding
affidavit is
lacking on any information on why I must rescind the judgement, how
the applicants were prejudiced thereby or adversely
affected thereby
and what possible defence they had. For example the respondent’s
claim was drastically reduced to only R250 000.00.
I have
already indicated that the application for judgement by way of
affidavit and annexures was a lengthy one. I have absolutely
no
reason to interfere with the order. It is my view that the
application for rescission must therefore fail.
[18]
Mr Hamman made lengthy submissions on why the deponent an attorney in
the office of the State Attorney should not be personally
liable for
costs in this application. I am not inclined to do so.
[19]
In the result the following order is given
1.
The application is
dismissed with costs.
__________
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON : 11 MAY 2015
JUDGMENT
RESERVED ON: 11 MAY 2015
ATTORNEYS
FOR THE APPLICNTS : THE STATE ATTORNEY
ATTORNEYS
FOR THE RESPONDENTS : VAN ONSELEN &
PARTNERS
ATTORNEYS