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[2014] ZAGPPHC 325
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Omar and Another v Minister of Safety and Security and Others (24868/2006) [2014] ZAGPPHC 325 (30 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
number: 24868/2006
Date:
30 May 2014
Not
reportable
Not
of interest to other judges
In
the matter between:
S.C.
OMAR
….......................................................................................................
FIRST APPLICANT
SUPERSPEED
CC
............................................................................................
SECOND
APPLICANT
and
MINISTER
OF SAFETY AND SECURITY
….............................................
FIRST RESPONDENT
DIRECTOR
OF PUBLIC
PROSECUTIONS
............................................
SECOND
RESPONDENT
INSPECTOR
SKIP VAN DER
MERWE
.......................................................
THIRD
RESPONDENT
JUDGMENT
H1EMSTRA
AJ
[1]
On 16 November 2004 the third
respondent, an Inspector in the South African Police Service
(SAPS), and other police officers
seized certain items in accordance
with the provisions of the Criminal Procedure Act, 51 of 1977 (CPA).
The seizure followed an
investigation into an alleged hijacking of
trucks used for the transportation of goods. The volume of the goods
was so large that
the SAPS could not store them. Some of the goods
were then returned to persons who had identified themselves as the
owners of the
goods and others were retained by the SAPS. Criminal
charges were later withdrawn as the docket went missing.
[2]
The applicants claim that they are the
rightful owners of the goods and brought an application under the
above case number for the
return of the goods. The matter was settled
on 19 June 2007 and this Court per Van der Merwe J, as he then was,
made the settlement
agreement an order of court. In terms of the
settlement agreement the first and/or the third respondent were
ordered to place the
first applicant in possession the items
listed in the agreement within 48 hours of the date of the order.
[3]
Following
the order, the third respondent returned some of the goods to the
applicants. As I have said, other items were handed
to persons
who had identified themselves as the owners. The respondents
purported to have done so in accordance with s 30
of the CPA
[1]
.
The third respondent also retained four diamonds
[2]
and ammunition which he claims he was not permitted to hand over to
anyone who is not licenced to possess them.
[4]
The first and third respondents did not
fully comply with the settlement agreement. They maintained that save
for the “diamonds”
and ammunition they were no longer in
possession thereof. The applicants then applied to this court under
the above case number
for an order for variation of the order of Van
der Merwe J by adding a prayer to the effect that in the event of the
first and
third respondents not not returning the goods that they be
ordered to pay certain amounts to the applicants, and further that
the
first and third respondents be held in contempt of the order of
van der Merwe J. The matter came before Ismail J. His ex tempore
judgment is attached to the application. However, it is not
clear exactly what his order was. It states that an order is granted
“In terms of the document marked ‘Jasmine’. No such
document is before court.
[5]
Whatever the exact order was, the
applicants appealed to a full bench of this court. The court of
appeal, per Victor J, held that
an order to return the goods would be
a brutum fulmen as the goods had been disposed of and were incapable
of being returned. The
court then examined whether it could award
damages on application where the value of the goods was contested.
The court referred
to ample authority to the effect that it is
impermissible to award damages on affidavit and dismissed the appeal.
[6]
The applicants now again apply for a
variation of the order made by van der Merwe J by adding the
following:
“
1. In the
event of the 1st and 3rd Respondents not returning the goods as
contemplated in orders (1) - (3) above within 30 days
of this order,
then this matter is hereby referred to oral evidence to establish the
value of the goods, referred to in (1) to
(3) above.
Upon this
Honourable Court determining the value of the goods mentioned in (1)
- (3) above, the 1st and 3rd Respondents will be
liable jointly and
severally, the one paying, the other to be absolved, to pay the
Applicants the amounts so established , with
interest thereon at the
rate of 15,5% per annum from 16 November 2004”
[7]
The
first observation to be made is that this application for variation
is made nearly seven years after the granting of the order.
It was
held in Di Meo v Capri Restaurant
[3]
that an application for a referral to viva-voce evidence should be
made at the earliest possible time and should not be allowed
at a
time when the matter has already been argued and the applicants
at that time realise that they have taken the wrong avenue.
[8]
It
is trite law that an applicant, who initiates proceedings by way of
motion when he should foresee that a dispute of fact must
inevitably
arise, does so at his peril
[4]
.
The applicants should have known that the value of the goods was not
common cause and should from the outset have instituted action,
or
should have, at the latest, applied for the question of the value of
the goods for oral evidence when the matter came before
Ismael J.
[9]
The applicants have in any event made
out no case for the variation of the order. In terms of Rule 42 of
the Rules of this court,
the jurisdictional requirements for such an
order are:
(a)
the order or judgment must have been
erroneously sought or granted in the absence of any party
affected thereby;
(b)
the order or judgment must contain an
ambiguity or patent error or omission; or
(c)
the order or judgment must have been
granted as a result of a mistake common to the parties.
The
applicants made no attempt to address these requirements.
[10]
Moreover,
the purpose of the power of this court to vary or rescind its own
orders or judgments is to correct expeditiously an obviously
wrong
judgment or order.
[5]
As I have said, the order sought to be varied was issued nearly seven
years ago.
[11]
Mr
Omar, appearing for the applicants, argued vigorously that the
attorney for the respondents had committed fraud when he entered
into
the settlement agreement which van der Merwe J had made an order
of court. He had, so goes the argument, misled
the court into
believing that the goods were available to be returned. Relying on
Rowe v Rowe
[6]
,
he argued that the order therefore stands to be varied. This decision
is indeed authority for his proposition that an order may
be varied
when it had been granted as a result of fraud. The respondents deny
that their attorney had committed fraud and contend
that he had made
a bona fide mistake. It is not possible on the papers to decide
whether the attorney had deliberately misled the
court. However, even
if I find that he did, it is no longer relevant. The applicants are
solely to blame for their refusal or failure
to follow the correct
procedures.
[12]
By not granting the order sought I do
not purport to condone the behaviour of the respondents. They have
strung the applicants along
for years by not returning whatever
they could when it became clear that criminal proceedings would not
be pursued. Moreover,
their attorney should not have agreed to
the settlement agreement while it was not possible to comply with it,
whether he did so
deliberately of negligently.
Therefore,
I make the following order
The
application is therefore dismissed with costs.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
heard: 26 May 2014
Date
of judgment: 30 May 2014
Counsel
for the applicants: Attorney Zehir Omar
P.O.
Box 2545
Springs
1559
Tel:
011 815 1720
Fax:
011 362 5588
Counsel
for the Respondents: Adv. P.J.J. De Jager SC
Adv.
H.P. Joubert
Attorney
for the Respondents: The State Attorney
Private
Bag X91 Pretoria 0001
Tel.:
012 309 1566
Fax:
012 309 1649/50
Ref.:
Mr J.J. le Rou
[1]
The return of the goods to the alleged owners was unlawful in terms
of s 30. It could only have been done with the consent of
the
persons from whom the goods were seized and the alleged owners
should have been warned to retain the items for production
in any
resultant criminal proceedings.
[2]
The respondents claim that they are not diamonds, but cubic
zirconium. Ismael J seems to have accepted in a judgment
referred
to later in the course of this judgment that they were
cubic zirconium. Nothing turns on this factual dispute.
[3]
1961 (4) SA614 (N)
[4]
R Bakers (Pty) Ltd v Ruto Bakeries (Pty) Lid
1948 (2) SA 626
(T);
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3)
S/A 1155 (T)
[5]
Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimovitz
1996 (4) SA
411
(C) at 421G; Roopnarain v Kamalapathy 1971 (3) SA 387 (O)
[6]
[1997] ZASCA 54
;
1997 (4) SA 160