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[2015] ZAGPPHC 634
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Minister of Safety and Security v Exploration Omega Company (Pty) Ltd (8229/2013) [2015] ZAGPPHC 634 (11 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
11/8/15
CASE NO: 8229/2013
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
THE
MINISTER
OF
SAFETY AND
SECURITY
APPLICANT
and
EXPLORATION
OMEGA COMPANY (PTY) LTD
DEFENDANT
RESPONDENT
JUDGMENT
KHUMALO
J
[1] The Applicant in this
matter is seeking an order rescinding and setting aside a judgment in
an amount of R10 120 000 (Ten Thousand
One Hundred and Twenty
Thousand Rand), a portion of a claim granted by De Vries AJ (as he
was then) on 21 August 2013 by default,
in an action (main action)
instituted by the Respondent (as the Plaintiff) against the
Applicant, the Minister of Safety and Security,
(as Defendant), for a
loss the former suffered when its mining machinery and equipment that
was located at an exploration site
in Kalong, Taung (“the
site”) was burnt and damaged during incidents of violence
(“incidents”) perpetuated
by certain members of the Taung
community (“community”) in the period March - June 2011.
[2] The Respondent cited
the Applicant as Defendant in the main action in his capacity as the
Minister, representative of the South
African Police Service
(“SAPS”), allegedly responsible for their actions.
[3]
In its particulars, the Respondent claimed payment for the following:
[3.1] loss of income and
production costs: R51381,520.00
[3.2] costs incurred in
applying for an interdict to stop the perpetrators of violence:
R550,000.00
[3.3] costs of repairs to
its front loader (JCB): R150,000.00
[3.4] loss on machines
and equipment damaged: R11 440,000.00
[4] De Vries AJ postponed
the claim in [3.1] for hearing of oral evidence and refused judgment
on claims [3.2] and [3.3] on the
ground that the amount in [3.2] was
already decided upon in the interdict proceedings that Respondent
brought against certain individuals
alleged to have been involved in
these incidents, whilst the amount in [3.3] was a part of the amount
claimed in [3.4]. Judgment
was granted on the latter claim [3.4] in
the amount of Rl0 120 000.00 (Ten Million One Hundred and Twenty
Thousand Rand), a portion
of the amount claimed. The rescission
application is only in respect of the portion of the claim that was
granted.
Factual
background
[5]
The Respondent is a community based mining company which was at the
time appointed by Taung Giant Diamond Miners (Pty) Ltd (“TGDM”),
the holder of a prospecting licence issued in terms of s 17 of the
Mineral and Petroleum Resources Development Act 28 of 2002 (“the
MPRDA”), to conduct prospecting operations as a contractor at
the site.
[6] Certain members of
the Taung community were opposed to the exploration operations
conducted on site. As soon as the Respondent
moved its machinery and
equipment on site in March 2011 to begin the operations, these
members started orchestrating incidents
of violence, disrupting the
operations and damaging the machinery and equipment on site and at
the Tribal Council offices in Taung.
[7] On the occurrence of
the incident when Respondent’s machinery and equipment were
burnt members of the South African Police
Service (“the
police”) at Taung police station were alerted by the Respondent
about the threats of violence and also
when the community marched to
the site and started burning the machines and equipment and
disrupting the Respondent’s operations.
The Respondent alleges
that the police failed through negligence or wrongful actions,
corrupt or knowingly omissions, to take steps
in time or at all to
prevent the violence, ignoring its calls for protection of its
assets, employees and interests. The Respondent
claims to have as a
result suffered a loss as claimed in its particulars as the owner or
alternatively the carrier of the risk
on the machinery and equipment
which loss also included income from involuntary stoppages because it
was unable to continue with
exploration activities after the damages.
[8] Further, the
Respondent alleged that at all relevant time the officers were
executing their duties in the course and scope of
their employment
with the SAPS for which the Applicant is responsible, therefore
vicariously liable for their actions.
[9]
On 21 November 2012, the sheriff on behalf of the Respondent, served
upon the
Applicant a Notice in
terms of s 3 (4) of the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2000 (“Act
40 of 2000”)
at its offices situated at 7
th
floor Wachthuis, in
Pretoria and on 8 February 2013 a summons at the offices of the State
Attorney in Pretoria. Subsequently, on
30 July 2013 it served the
Notice of Application for default judgment at Applicant’s
office in Wachthuis on one Ms Munyai
from Legal Services. The
Applicant failed to respond to the Notice letter, neither did it
enter an appearance to defend nor did
it respond or file a notice to
oppose the default judgment Application.
[10] The Applicant
alleges to have brought its Application in terms of s 42 (1) (a) on
the basis that the judgment/order that was
granted was erroneously
sought in its absence and also in terms of Rule 31 (2) (b), claiming
to have shown good cause by giving
a reasonable explanation of its
default and a bona fide defence, as well as in terms of the common
law.
[11] It then before
dealing with the merits raised the following
in limine
defences
alleged to have resulted in the granting of the judgment erroneously
that:
[11.1] this court had no
jurisdiction to deal with the matter, as the incidents that gave rise
to the Respondent’s claim occurred
in Taung, which area falls
under the territorial jurisdiction of the Northwest High Court.
[11.2] the Respondent
failed to comply with the provisions of s 3 (2) of Act 40 of 2000 as
its cause of action is based on incidents
that occurred between March
and June 2011, when its Notice letter in terms of s 3 (2) of Act 40
of 2000 (“the notice”)
was only served on the National
Commissioner on 21 November 2012, in access of the mandatory
statutory period of (six) 6 months,
without consent. The Respondent
did not apply for condonation of the late service of the notice when
applying for the default judgment.
It suffered prejudice.
[11.3] the affidavits in
support of the Application for default judgment upon which judgment
was granted were not attested to by
a Commissioner of Oaths. As they
were crucial for determining liability and quantum in the default
judgment application, the granting
of judgment was therefore not
based on evidence under oath.
[11.4] alternatively, the
various claims sued upon by the Respondent are not for a debt or a
liquidated demand therefore evidence
should have been led to prove
the illiquid claims prior to granting of the default judgment. The
affidavit of Frederick Johannes
Kriel that is filed by the Respondent
in support of its claims does not prove any liability on the
Applicant’s employees
on all the claims set out in the summons
which are by their very nature illiquid.
[11.5]
As a result the Applicant contends that in actual fact there was no
evidence to prove the negligence, omission or corruption
on the part
of any member of the South African Police Service that was led as
averred in the summons and therefore the orders granted
by the court
are fundamentally flawed for failure to comply with the peremptory
provisions of Rule 31 (2) (a) applicable to claims
that are not for a
debt or liquidated claim there being no evidence led on behalf of
Respondent.
Willful
default (Notice of intention to defend)
[12] Turning to the
merits of the Application, precisely the default of the Applicant.
According to Mr Mothusiemang Kgwanyape, the
Station Commander at
Taung Police Station and the deponent to the Opposing Affidavit on
receipt of the summons, the state attorney’s
office allocated
the matter to Mr Mtubatuba, a senior assistant state attorney, to act
on behalf of the Applicant. Mtubatuba wrote
to the Provincial
Commissioner and requested copies of dockets and all other documents
to assess the merits. He also advised the
Commissioner that they have
until 11March 2013 to enter an appearance to defend. In May 2013
Mtubatuba wrote to the Commissioner
again confirming not to have
received any instructions and that the
dies
for entering a
notice of intention to defend, has expired. Further enquiries he made
to the Commissioner’s office failed to
yield the necessary
response except a promise that the responsible official will revert.
Mtubatuba thought the matter fell under
the Gauteng Provincial
Commissioner and only became aware that it involves the North West
Province whilst he was attending to another
matter involving the same
province on 23 August 2013. Default judgment was already granted.
[13] On Applicant’s
failure to oppose the default judgment application Kgwanyape alleges
that the Notice for default judgment
was served on Munyai, a junior
clerk who knows nothing about receiving legal processes. Munyai never
reported the service of the
notice to the officials responsible for
receiving legal processes nor was its receipt registered in the
official register kept
in the office for that purpose. She also could
not remember receiving the document and was totally ignorant of its
legal implications.
It was not found in their office. If Munyai had
brought the document to the attention of Colonel Tetiwe, the section
head for litigation
in the office of the National Commissioner, it
would have received the attention it deserved. Tetiwe only got to
know of the Default
Judgment after it was granted. The Applicant
however
confirmed
that
the
National
office
where
the
notice
of
set
down was served
deals with litigation of all the provinces
and is the central office handling all litigation in the entire
country.
Tetiwe is in charge in the National Office.
[14] Kgwanyago therefore
contends that Applicant’s failure to defend the main action or
oppose the Application for default
judgment, cannot be attributed to
any remissness or negligence on the part of any of its employees.
Cause
of action
[15] Kgwanyago denies
that the loss suffered by the Respondent was as a result of any
negligence, omission or corruption on the
part of any member of the
police deployed at Taung police station and alleges that upon receipt
of the report on each of the incidences
of violence, the police
discharged their constitutional obligations without fear, favour or
prejudice by taking necessary steps
that were consistent with the
resources available and under very difficult circumstances at times.
He confirms that Mpho Skweit
of the Respondent informed him about
certain members of the community that were against the Respondent
being on site. He alleges
that because of the capacity of the
personnel at Taung police station they never deploy specialized
personnel at a site unless
there are confirmed threats or
intelligence reports.
[16] Further, he alleges
that there has never been peaceful prospecting on that site since the
members of the community were against
it and have been continuing
with criminal activities barricading the road notwithstanding the
police removing the barricades. Apparently
Taung Giant Diamond Miners
that is in association with the Respondent was informed by the
Department of Mineral and Energy and
by the office of the Regional
Manager; Mineral Regulation, North West Region Diamond Miners not to
proceed with operations. They
were ordered to remove the machinery on
site by 23 February 2011 until such time that they would have
consulted with the interested
and affected people and obtained a
proper community resolution, as they were expecting another unrest
situation.
[17] During the period
when the incidents mentioned in the particulars of claim continued,
Taung Police opened 9 (nine) case dockets
of various charges between
March and June 2011. On 7 March 2012 the station commander’s
office issued an instruction for
those members of the community that
were involved to be charged with public violence. The cases were
handled by Taung police impartially
without a complaint of
dereliction of duty by the members of the SAPS, from the Respondent.
[18] In respect of the
claim for damages on the machinery and equipment Kgwanyape alleges
that the incident took place on 15 June
2011 as an ongoing conflict
between the Respondent and the community. On receipt of a call from
Skweit informing him that a group
of people was running amok with
petrol bombs and going to attack the exploration site, he immediately
mobilized the police and
went to the scene. However they could not
cross the river at Kalong to reach the scene due to the heavy flow of
water, even though
they could clearly see the group running around
inside the mining site. As they tried to reach the mining site on an
alternative
route, a green Tipper Truck was already burning and the
rioting group running to the mountains. No arrest could be affected.
Most
of the mining equipment was already on fire. The police rescued
five (5) miners and 4 security guards. One of them Mr Gaboame
identified
Bakang Mankuroane and Bankie from the group involved.
Another employee, Mrs Dorah Sejamoholo reported to the police that
she was
assaulted by Bankie and Kabelo Mathe and robbed of her
belongings by the group. The police patrolled the area until things
went
back to normal. The dockets were referred to the NPA for the
individuals arrested to be charged with public violence.
[19] It is therefore
denied that the police were spectators and through-out the incident
remained non-chalant as alleged by the
Respondent but that they
performed their constitutional obligations towards the Respondent.
Also deny that they were negligent,
delayed in attending the scenes
or failed to prevent the members of the community from damaging the
property of the Respondent.
[20]
In the Respondent’s opposing affidavit, it is alleged that:
[20.1] the Applicant’s
approach that his bringing his Application under Rule 42 (1) and Rule
31 (2) (b) as well as the common
law is flawed. Its Application
should only be in terms of Rule 31 (2) (b). Rule 42 is not applicable
in the light of the defence
subsequently disclosed notwithstanding
that judgment was obtained in the absence of the Applicant.
[20.2] Applicant cannot
raise his defences
in
limine
prior to dealing with the
jurisdictional requirements of the Application under Rule 31 (2) (b).
He must first show good cause,
giving a reasonable explanation for
his default and showing that his application and defence bona fide
before he can raise other
issues/defences albeit as points
in
limine.
The Applicant must first show that he is entitled to
bring this application before the issues he raises challenging the
granting
of the default judgment can be argued and decided upon.
[21] The points
in
limine
are preliminary issues/ defences that are to be resolved
before the merits of the case, merely for the reason that they might
be
dispositive of some of the issues. They are generally procedural
issues that can suspend delay or bring the matter to an end as
well
and therefore decided upon before dealing with the merits of the
Application.
LEGAL
OVERVIEW
[22] It is possible for a
rescission application to be brought under both Rule 42 (1) and Rule
31 (2) (b), with the Applicant under
the former proving that judgment
was erroneously sought or granted in his absence and showing also
even if in the alternative,
that there is a good cause for the
rescission, there being a bona fide defence against the judgment
creditor’s claim as well
as under common law;
De Wet v
Western Bank Ltd
1977 (4) SA 770
(T) at 780H-781A;
Swart v
Absa
Bank
2009 (5) SA 219
(C). However once the court
holds that an order or judgment was erroneously sought or granted in
the absence of a party affected
thereby, in
that instance it
becomes unnecessary for a party to show good cause,
the
application for rescission of the judgment should be granted without
any further enquiry.
Mutebwa v Mutebwa
2001 (2) SA 193
(Tk) at
1991-J
199E-H,
Topal v L S Group Management
Services
{Pty) Ltd
1988 (1) SA 639
(W) at 650D-J,
Naidoo v Somai
2011
(1) SA 219
(KZD) at 220F-G 1992. The purpose of the process under s
42 (1) being to correct expeditiously a judgment or order that is
clearly
wrong. It would therefore be practical and sensible for a
party to first seek to apply or invoke the proceedings in terms of
rule
42 (1) and on failure to then proceed under common law or try
and meet the requirements of rule 31 (2) (b) where now good cause
will have to be shown.
[23] Generally, in order
for an Applicant to succeed in an application for rescission of
judgment obtained by default, he must show
good or sufficient cause.
Good or sufficient cause requires that the Applicant (1) proffers a
reasonable explanation for his default
(2) showing that his
application is sincere (3) and defence
bona
fide.
However
in an application brought in terms of Rule 42 (1), since the
application can be brought
mero motu
or by any interested
party, the reason for the default and the bona tides of the
application and defence may be dispensed with.
Hence even absent a
reasonable explanation for a party’s default and a bona fide
defence judgment erroneously granted may
still be rescinded. In that
instance it is not necessary for the applicant to show that he was
not in wilful default when judgment
was granted, his absence
suffices.
[24] Therefore
Applicant’s approach to deal with his defences
in limine
to
prove that the judgment was erroneously sought or granted in terms of
Rule 42 (1) might be dispositive of the requirements of
showing a
good or sufficient cause and therefore appropriate to decide upon
them first.
[25] Applicant’s
first point
in limine
is that of jurisdiction, challenging the
institution of these proceedings in the above honourable court
instead of in the North
West High Court, since the police that were
involved were located in the jurisdiction of that court. The argument
has no merit.
An action or proceedings can be instituted either where
the cause of action arose or within the area where service can be
effected
on the Defendant (where the Defendant is resident, chosen
domicile) party. In respect of processes that are brought against a
Minister
in his official capacity, as in this case, in charge of the
South African Police Service, service may be effected at the National
Office in Pretoria or upon the Provincial Commissioner of the
province in which the cause of action arose, see s 5 (1) (b) (ii)
(bb) of Act 40 of 2000. Therefore the above honourable court had
jurisdiction to decide upon the Respondent’s default judgment
Application.
[26] The argument on the
s 3 ( 2) Notice served nearly 18 (Eighteen) months after the
incidents is very flimsy. There is no allegation
that the Applicant
objected to the notice prior to the service of the summons and that
such objection and the reason thereof was
conveyed to the Respondent.
It would therefore be reasonable for the Respondent and the court to
assume that there was no objection
to the delayed notice. In
accordance with s 3(2) of Act 40 of 2000 the court is precluded from
raising the failure of a creditor
to comply with s 3 (2) mero motu,
and an organ of state can consent to a notice that does not comply
with the requirements set
out in s 3 (2). The judgment was therefore
neither sought by the Respondent nor granted by the court
erroneously. Applicant has
also neither convinced the court that it
was or will be unreasonably prejudiced by the non-compliance.
Therefore condonation as
sought by the Respondent can be granted. The
issue cannot be raised with the object of getting the judgment to be
rescinded for
being granted erroneously.
[27] The Applicant also
raised the issue of the Affidavits filed in support of the default
judgment Application, alleging that they
were not commissioned at the
time when the default judgment application was considered by the
court and since they were crucial
for determining liability and
deciding quantum the court erred when it granted default judgment
based on such affidavits. The allegations
are of a serious nature and
raise a serious concern on the legality of the whole process. This is
not a procedural irregularity
that can be resolved
ex
facie
documents and have a potential of vitiating the whole proceedings.
[28] Lastly with regard
to whether or not Rule 31 (2) (a) requires the leading of viva voce
evidence before the court can grant
or make any order it deems fit,
the wording of the rule is of vital importance. The sub section
reads:
“
Whenever in an
action the claim or, if there is more than one claim, any of the
claims is not for a debt or liquidated demand and
a Defendant is in
default of delivery of notice of intention to defend or of a plea,
the Plaintiff may set the action down as provided
in subrule (4) for
default judgment and the court may, after hearing evidence, grant
judgment against the Defendant or make such
order as to it seems
meet.
[29] In explanation,
Erasmus’
Superior
Court
Practice
by
Farlam, Fitchard and Van Loggernberg discusses the concept in an
action for damages scenario that are sustained in a motor vehicle
accident, to illustrate the subsection’s requirement. Its
stated that the Plaintiff
must
lead evidence; see
Mashifane
v Sulima
1931 TPD 329
;
Elanz
&
Spritz Executors
1920 TPD 93
;
Knight
v Harris
1962 (2) SA 317.
Therefore in delictual claims evidence should be led on the merits
and damages. The extent of the evidence is dependent on the
court;
see Abraham v City of Cape Town
1995 (2) SA 319
(C). Under certain
circumstances evidence of damages may be given on affidavit; see
New
Zealand
Insurance
Co Ltd
v Du
Tait
1965
(4) SA 136
(T) and
NCP
Havenga
v S
M
Parker
(TPD 26 February 1993, unreported (1993 De Rebus 483).
In
Dorfling
v
Coetzee
1979 (2) SA 632
(NC) it
was held that that in motor collision cases the evidence
should
not be confined to the quantum
of damages
suffered
but should
also establish the cause of action,
whether
there has been contributory negligence and whether there should be an
apportionment. So the practice in some divisions is
to hear some
evidence on claims for damages but the enquiry is not that detailed.
In others, the practice is to require evidence
of negligence only if
circumstances require such negligence (proof of the cause of action);
Hovenga
v Parker
1993 3 SA 724
(T); see
Supreme
Diamonds Pty Ltd v Du Bois
1979 (3) SA 444
(W).
[30] The affidavits that
were presented to the court for judgment only made assertions in
respect of quantum of damages. They were
silent on the liability of
the Applicant, nevertheless the court found Respondent liable for a
part claim and referred the remainder
of the claims to oral evidence
when they all arose from the same cause of action, an impractical and
incorrect way of dealing with
the matter. I support the view as
enunciated in
Abraham supra
that it is for each presiding
officer to decide for him or herself, dependent on the facts of each
case, whether or not to hear
oral evidence and to what extent.
However where the court has made a decision that oral evidence would
be required to determine
liability as pleaded in the cause of action,
it cannot then in a matter where the same cause of action (or set of
facts) gives
rise to various claims brought together, resolve
liability on one claim and decide to hear oral evidence on the
others. The court
a quo was supposed to refer all the claims for oral
evidence on liability. The Judgment granted for the part claim was in
that
regard erroneously granted and rescindable.
Good
cause
[31] Due to the judgment
court having misdirected itself as aforementioned the issue of
willful default, whether or not the Applicant
has a reasonable
explanation for its default and a good defence is no longer decisive
of whether or not the judgment should be
rescinded. Applicant’s
explanation is tested however to determine Applicant’s bona
fides. Mtubatuba, an experienced
legal practitioner who was
authorised to act on behalf of Applicant failed to seek proper
instruction from the Applicant to enter
an appearance to defend only
advising the Applicant how much time there still was to enter such
appearance instead. Even with his
knowledge of the applicable
dies
he let the
dies induciae
expire without entering an
appearance or arranging with the other side to delay it whilst
waiting to obtain instructions. I wonder
what he interpreted his
instruction to be exactly when he was given the summons by the state
attorney. Mtubatuba’s conduct
was unacceptable, but the
question is whether the explanation would have persuaded the court as
reasonable. Mtubatuba’s efforts
were half-hearted, lacking
foresight and very lax, displaying gross negligence because an
attorney acting reasonably would have
been more prudent to protect
their client given the size of the claim. I however do not believe
that the Applicant’s office
or that of the state attorney
should be held penalized for Mtubatuba’s conduct even though
there are instances attorneys
conduct could not excuse a party.
Applicant in this case can be excused because it cannot be said he
was unconcerned of the consequences
of any default, or probably aware
of the consequences. He therefore could not have lacked concern of
the consequences of Mtubatuba’s
action or deliberate in his
conduct; see
Maujean t/a as Audio
Video
Agencies
v
standard Bank of SA Ltd
1994 (3) SA 801(C)
at 803J].
[32] On the good cause
the Applicant seems to suggest that the respondent opened themselves
to the risk. Its alleged they were warned
and advised not to go to
the site until everything has been finalized especially the talks
with the community since there were
threats even before they went on
site with protests taking place randomly that the police were already
struggling with. Seemingly
the Respondent notwithstanding the warning
or notice moved on site. The Respondent in its replying affidavit
confirms that they
moved on site in March 2011 whilst the talks and
the go ahead was only given on April 2011. As a result the
Applicant’s has
a prima facie defence that involves an issue
that is fit for trial.
On
consideration of all these grounds the Applicant is entitled to leave
to defend.
[33] All the same I still
find that the Respondent’s opposition of the Rescission
Application was reasonable, since the Applicant
failed to respond not
only to the Notice and summons but also to the Application for
default judgment served at their legal department.
Applicant was
therefore in this Application seeking an indulgence, it would
therefore be fair that Respondent incur any further
costs, see
Phillips t/a
Southern Cross Optical v SA Vision
Care
(Pty) Ltd
2000 (2) SA 1007
(C) at 1015 G-H.
[34]
Under the circumstances I make the following order:
[34.1] The default
judgment order granted by the court on 21 August 2013 against the
Applicant/ Defendant in the main action is
rescinded and set aside.
[34.2] The Applicant/
Defendant is granted leave to defend the main action and file his
Plea within twenty (2) days from the date
of this order.
[34.3] The Applicant
/Defendant is ordered to pay the Respondent/Plaintiff’s costs
occasioned by this Application, which costs
may be taxed
independently of the costs in the action and prior to its conclusion.
KHUMALO
NV
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
On behalf of the
Applicant:
C J Welgemoed
Instructed by:
The State Attorney
Enquiries:
Mtubatuba
On
behalf of the Respondent: N Dukada SC
Instructed
by:
Van De Wall & Partners
Van Eetveldt/ldt/VAN
4625/0001