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[2011] ZANCHC 36
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Securiforce v Ruiters (CA&R 64/2010) [2011] ZANCHC 36; 2012 (4) SA 252 (NCK) (2 December 2011)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case
No: CA & R 64/2010
Heard:
15 / 08 / 2011 Delivered: 02 / 12 / 2011
In
the matter between:
SECURIFORCE
….................................................................
Appellant
v
LUCAS
RUITERS
…...........................................................
Respondent
Coram: Kgomo JP et
Pakati AJ
JUDGMENT ON APPEAL
KGOMO JP
The appellant,
Securiforce CC, a close corporation and security entity, is the
second defendant in an action in which the plaintiff,
Mr Lucas
Ruiters, sues it and five others jointly and severally, the one
paying the others to be absolved
pro tanto,
for damages in
the amount of R90,000.00 (ninety thousand rand) made up as follows:
1.1 Unlawful arrest
R20,000.00
1.2 Unlawful detention
R60,000.00
1.3 Unlawful[SIC]
prosecution
R10,000.00
R90,000.00
The appellant is held
vicariously liable in that it is alleged that its employee, Mr Jacob
Ramabodu, the first defendant, laid
false charges with the police
against plaintiff and in doing so acted within the scope and
authority of his employment with the
appellant. Relief was not
sought against Mr Ramabodu because the summons was not served on him
– there was a return of
non-service. This appeal does not
concern the other four defendants.
The appellant sets out
the following grounds of appeal from the rulings and judgment of
Magistrate (Ms) C M Adams.
“
(1) The
honourable Magistrate erred in dismissing the application for
condonation for the late-filing of the plea, which was enrolled
to be
heard on an urgent basis on the 8
th
of
February 2010, immediately prior to the granting of the default
judgment.
(2) The honourable
Magistrate made an error in judgment by finding that no urgency was
established for the said condonation-application,
thereby dismissing
the said application for condonation on this ground alone, without
granting the appellant
any
further opportunity,
even with an appropriate cost-order, to approach the honourable court
for such condonation.
(3) The honourable
Magistrate erred in granting the default judgment for the amount
claimed on the evidence produced, thereby finding
that the respondent
has properly quantified his claim.
(4) The honourable
Magistrate subsequently and after the granting of the default
judgment, without having heard the condonation-application
on its
merits, made a serious error upon a request for reasons, to state
that “
The correct procedure is to apply for a
rescission of judgment
”
, only thereafter to dismiss
such an application for the rescission of the judgment for the sole
reason that “
The granting of this application for
rescission would be of no force or effect
”
, based
upon the fact that condonation for the late-filing of the plea should
first [have been] granted.
(5) The honourable
Magistrate should, with respect, have rescinded the judgment on the
merits of the application before it (and
not solely on the
consequences thereof), thereby granting the appellant the opportunity
to again approach the honourable Court
with an application (on a
non-urgent basis) for condonation of the late-filing of the plea
(which was indeed filed, although nominally
and non-materially late),
as the initial application was only dismissed on the fact that the
honourable Court did not find urgency,
and not on the merits thereof.
However, such an application could only have been filed, should the
judgment have been rescinded.
(6) The honourable
Magistrate therefore made a series of errors in judgment by literally
closing all the doors of court on each
and every occasion to the
appellant, thereby depriving the appellant the opportunity to state
his case before court, and furthermore
thereby not hearing the main
case on its merits at all, despite various attempts by the appellant
to convince the honourable Court
thereof that the late-filing of the
plea was not as a result of any omission to act, by the appellant
himself.
”
Lacock AJP assigned
the appeal to Pakati AJ and Hughes-Madondo AJ who entertained the
matter on Monday 15 August 2011. As the
Court files were empty an
attempt was made by the appellant’s attorneys to sneak the
court records into the files on Thursday
11 August 2011. For the
late filing of the record (in fact for the failure to file the
record) in terms of Rule 49(7) of the
Rules of Court and due to the
fact that there was no application for condonation and that it was
highly inconvenient for the
Court to work through the record at such
late stage the case was, deservedly struck from the roll, as the
appeal had lapsed.
How this appeal came
to serve before us a mere two months later is not explained by the
appellant. In other words, there is no
substantive application for
the re-enrolment of the appeal in which the non-observance of the
Court Rules is explained and condonation
sought for such failure.
What we can make out is that the very next day, on 16 August 2011,
the appellant set the matter down
for hearing for 17 October 2011.
This was done without an application to the Registrar for a date of
hearing. The effect of what
was done was that the appellant
arrogated to itself an accelerated date of hearing and thereby
overtook cases which had been
waiting in the queue for dates of
hearing. This is inexcusable and cannot be countenanced.
It is worthwhile to
quote Rule 49(7)(a) to (d) for guidance:
“
(
a)
At the same time as the application for a date for the hearing of an
appeal in terms of sub-rule (6)(a) of this rule the appellant
shall
file with the registrar three copies of the record on appeal and
shall furnish two copies to the respondent. The registrar
shall
further be provided with a complete index and copies of all papers,
documents and exhibits in the case, except formal and
immaterial
documents: Provided that such omissions shall be referred to in the
said index. If the necessary copies of the record
are not ready at
that stage, the registrar may accept an application for a date of
hearing without the necessary copies if—
the application is
accompanied by a written agreement between the parties that the
copies of the record may be handed in late;
or
(ii) failing such
agreement, the appellant delivers an application together with an
affidavit in which the reasons for his omission
to hand in the copies
of the record in time are set out and in which is indicated that an
application for condonation of the omission
will be made at the
hearing of the appeal.
(b) The two copies
of the record to be served on the respondent shall be served at the
same time as the filing of the aforementioned
three copies with the
registrar.
(c) After delivery
of the copies of the record, the registrar of the court that is to
hear the appeal or cross-appeal shall assign
a date for the hearing
of the appeal or for the application for condonation and appeal, as
the case may be, and shall set the appeal
down for hearing on the
said date and shall give the parties at least 20 days’ notice
in writing of the date so assigned.
(d) If the party who
applied for a date for the hearing of the appeal neglects or fails to
file or deliver the said copies of the
record within 40 days after
the acceptance by the registrar of the application for a date of
hearing in terms of sub-rule (7) (a),
the other party may approach
the court for an order that the application has lapsed.”
From the above recital
of Rule 49(7) it will be noted that the appellant has flouted it in
many respects. In an endeavour to find
a way to dispose of this case
once and for all (including on the merits) we allowed Adv W J
Groenewald, for the appellant, to
argue the merits of the appeal as
well to enable us to assess the prospects of success. Mr
Kgotlagomang for the plaintiff/respondent,
whilst not condoning the
appellant’s failures, was not averse to the proposed process.
A synoptic history of
where this saga comes from is as follows: Summons was issued against
the defendants in the Magistrate Court
Kimberley on 31 October 2008.
The appellant entered an Appearance to Defend on a date that does
not appear from the record. A
request for Further Particulars dated
22 December 2008 was filed with the Clerk of Court on 08 January
2009 and was received
by the attorneys of the plaintiff, Barend
Titus/Desmond Appie Inc on the same date (08/01/2009). The Further
Particulars furnished
are dated 13 February 2009, were received by
plaintiff’s attorneys on 18 February 2009 and filed with the
Clerk of Court
only on 19 March 2009 (a month later).
On 14 July 2009
plaintiff’s attorneys wrote to appellant’s attorneys
that “
graag ontvang ons 1ste en 2de Verweerders
[appellant’s]
se Verweerskrif binne 3 dae van datum
hiervan by versuim waarvan: pleitbelet.
” When being placed
on terms was not heeded by the appellant the plaintiff issued a
Notice of Bar against first defendant
and the appellant on 29 July
2009 calling upon them to deliver their plea within five days
failing which they will be
ipso facto
barred from pleading.
The notice was served on the appellant’s attorneys and also
filed with the Clerk of Court on the
same date.
The appellant’s
plea is dated (typed) 07 August 2009 and was received by plaintiff’s
attorneys on 11 August 2009 and
filed with the Clerk of Court on 13
August 2009.
It is common cause
that the appellant was barred, properly so. It is also common cause
that the appellant did not apply for the
removal of Bar. Inescapable
indications are that the plaintiff had the courtesy of notifying the
appellant by letter dated 21
September 2009 that it intended to
apply for default judgment and required the appellant to purge its
default. There is no copy
of this letter on file and the plaintiff
only refers thereto obliquely in an opposing affidavit. What is
startling is the appellant’s
indifferent attitude in response
to that elusive letter. His attorneys wrote on 22 September 2009:
“
We
acknowledge receipt of your letter dated 21 September 2009 and
confirm that we have instructions that should you apply for default
judgment we would apply for rescission thereof.
”
(Translated)
The quoted statement
is tantamount to the appellant informing the plaintiff that it is
not interested in prosecuting its defence
in the case but will adopt
a reactive stance to frustrate the plaintiff’s claim as soon
as the plaintiff has taken the
next step. The courts have held that
condonation will be precluded where there has been deliberate
omission or gross negligence.
See
Van der Merwe v Steenkamp
1925 OPD 179.
What followed the said
event is muddled because the appellant’s explanation is
convoluted. It takes the reading of the plaintiff’s
papers to
get a sense of chronology of the subsequent events and what the real
position is. On 03 November 2009 the plaintiff
applied for a trial
date with notice to the appellant. In it is contained a notification
that the plaintiff would adduce evidence
to prove its damages. On 18
November 2009, for reasons that are not apparent, the hearing did
not proceed. On 05 January 2010
the plaintiff set the matter down
for the hearing of oral evidence on 18 January 2010. The Set Down
was served on the appellant’s
attorneys and filed with the
Clerk of Court on the same date (05/01/2010). On 18 January 2010 the
case was postponed to 08 February
2010.
In the meantime on 03
February 2010 the appellant filed with the Clerk of Court and served
on the plaintiff a “Notice of
Application for Condonation”
to be heard on 05 February 2010 at 08h30 for the following relief
(translated):
“
(1) That the
time frames prescribed in Rule 55(1) of Magistrate Court Act, Act 32
of 1944 (the Act), be dispensed with and that
the matter be heard on
an urgent basis.
(2) That the time
frames prescribed in Rule 19(a) read with Rule 12(1)(b) of the Act be
extended to 17 November 2009, being the
date on which the applicant
[appellant] filed its plea, and that the late filing thereof be
condoned.
(3) That the
abovementioned matter, as set down for the adducing of oral evidence
on Monday 08 February 2010 in this Honourable
Court, be postponed
sine die.
(4) That the
applicant [appellant] pay the costs of this application, except in
the event of opposition.”
The plaintiff opposed
the condonation application and notified that it would urge for
costs
de bonis propriis
on an attorney and own client scale
against the attorneys. The plaintiff confines himself to five points
in limine
(also translated):
“
6.1 I suggest
with respect that no grounds for urgency exists. Alternatively, the
grounds for urgency were created by the applicant’s
[appellant’s] own conduct. From his own mouth the applicant has
known since 29 July 2009 that a Notice of Bar has been filed.
This
implies that it should have served its plea by 05 August 2009.
According to applicant’s deponent/attorney the plea was
ready
on 07 August 2009, “for dispatch to my correspondent attorney”
(paragraph 2.7 of the founding affidavit). The
applicant should
therefore have applied for condonation on that date.
6.2 I respectfully
submit that applicant’s application is not bona fide in that it
has not made a full and frank disclosure
of the facts.
6.3 A study of the
record reveals that the plea was served on my former attorneys of
record on 11 August 2009. See annexure ‘A’
hereto.
6.4 I therefore
submit respectfully that the applicant’s explanation in
paragraphs 4.4 and 4.5 [of its founding affidavit]
is a lie.
6.5 A Further
confirmation of the lie is the letter by applicant’s
correspondent attorneys dated 22 September 2009 (marked
annexure ‘B’)
in which it is stated arrogantly that if default judgment is obtained
its rescission will be applied
for. This underscores the fact that
applicant had knowledge that it was under bar and that plaintiff is
in the process of obtaining
default judgment.
”
Annexure ‘A’
is the court process (the plea) referred to in para 10 of this
judgment and annexure ‘B’
is the letter translated and
quoted in para 11 of this judgment. The lie that plaintiff says the
applicant has told in paras
4.4 and 4.5 of its founding affidavit is
captured in these terms (translated):
“
4.4 I have,
however, discovered with shock that I have inadvertently, due to
human error, omitted to dispatch the plea [from Bloemfontein]
only
when I had sight of the initial Notice of Set Down for trial. I refer
to the Notice that the application would be heard on
18 January 2010.
4.5 My failure
therefore to dispatch the plea timeously is therefore not ascribable
to any fault on the part of the applicant. The
applicant was
throughout desirous to prosecute its defence of the case against it
in this Honourable Court
”.
I share the
plaintiff’s expression that the appellant has been caught in a
lie. This is shameful and would ordinarily call
for a costs order
de
bonis
propriis
against the Bloemfontein instructing
attorneys irrespective of the outcome of this appeal. Be that as it
may, the Appellate Division
has cautioned in 1965 in
Saloojee
v Minister of Community Development
1965(2) SA 135(A) at 141
B-H that:
“
(I)t has not
at anytime been that condonation will not in any circumstances be
withheld if the blame lies with the attorney. There
is a limit beyond
which a litigant cannot escape the results of his attorney's lack of
diligence or the insufficiency of the explanation
tendered. To hold
otherwise might have a disastrous effect upon the observance of the
Rules of this Court. Considerations ad misericordiam
should not be
allowed to become an invitation to laxity. In fact this Court has
lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences
of such a
relationship, no matter what the circumstances of the failure are.
(Cf. Hepworths Ltd v Thornloe and Clarkson Ltd.,
1922 T.P.D. 336
;
Kingsborough Town Council v Thirlwell and Another,
1957 (4) SA 533
(N)). A litigant, moreover, who knows, as the applicants did, that
the prescribed period has elapsed and that an application for
condonation is necessary, is not entitled to hand over the matter to
his attorney and then wash his hands of it. If, as here, the
stage is
reached where it must become obvious also to a layman that there is a
protracted delay, he cannot sit passively by, without
so much as
directing any reminder or enquiry to his attorney (cf. Regal v
African Superslate (Pty.) Ltd., supra at p. 23 i.f.)
and expect to be
exonerated of all blame; and if, as here, the explanation offered to
this Court is patently insufficient, he cannot
be heard to claim that
the insufficiency should be overlooked merely because he has left the
matter entirely in the hands of his
attorney. If he relies upon the
ineptitude or remissness of his own attorney, he should at least
explain that none of it is to
be imputed to himself.”
On 08 February 2010
the Court
a quo
made the following
ex tempore
ruling:
“
Court
…(inaudible). The point in limine is sustained. The
application for condonation dated 02 February 2010 is dismissed.
I am
disinclined to make a costs order de bonis propriis. I make an order
that [the appellant] pay the taxed costs on an attorney
and client
scale”.
The Magistrate then
ordered that the plaintiff proceed to prove his damages. This was
done on the same day of the above ruling.
At the close of the
proceedings the Court ordered that: “
Judgment is granted as
prayed for with costs
.” In other words the plaintiff was
awarded damages in the amount of R90,000.00. See paragraph 1 of this
judgment.
On 09 February 2010
the applicant delivered a “
Notice in terms of Rule of Court
51(1)
” in which written reasons were requested for:
“
1. The
dismissal by Presiding Magistrate of the Application for Condonation;
2. The reasons for
the Presiding Magistrate’s award of the quantum of damages
.”
On 01 or 02 March 2010
the Magistrate furnished these reasons (said to be in terms of Rule
51):
1.) Ad application
for condonation
On 8 February 2010 I
dismissed the urgent application for condonation. I upheld the point
in limine by the Plaintiff namely that
no urgency has been made out
in the application.
My reasons are as
follows:
I agree that urgency
had not been established. Since 29 July 2009 a notice of bar was in
effect. No application for condonation
was brought for late filing of
the plea on 13 August 2009.
An application for
allocation of a court date for hearing of oral evidence on a request
for default judgment was filed and served
on 3 November 2009.
2.) Ad judgment on
quantum
A notice of bar was
in effect since 29 July 2009.
The matter was set
down for presentation of oral evidence on 18 January 2010. An urgent
application for condonation for the late
filing of the plea was
dismissed. At the stage of hearing oral evidence the
applicant/defendant was not a party to the proceedings.
The correct
procedure was to apply for rescission of the default judgment within
the prescribed time period and not to apply for
reasons in terms of
rule 51 as a default judgment is not appealable.
The above are the
reasons for my decision and I have nothing more to add.
”
I hasten to make the
following observation. When a losing party asks for reasons for the
court’s finding what is in fact
being called for is a
judgment. A proper judgment at that. I appreciate that Magistrates
have to contend with heavy court rolls
and that they work under
tremendous pressure. See
S v Steyn
2001(1) SA 1146(CC)
at 1155F-1159D (paras 13 – 21). The aforesaid difficulties
notwithstanding, a better judgment should
have been produced
particularly if regard is had to the wide ranging and comprehensive
argument that was presented by the legal
representatives before the
presiding Magistrate as reflected in the transcribed record. Of note
is what the applicable Rule 51(1)
provides:
“
51 APPEALS
IN CIVIL CASES
Upon a request in
writing by any party within 10 days after judgment and before noting
an appeal the judicial officer shall within
15 days hand to the
registrar or clerk of the court a judgment in writing which shall
become part of the record showing –
(a) the facts he or
she found to be proved; and
(b) his or her
reasons for judgment.”
The argument before
the Magistrate was not confined to urgency only. However that may
be, the fact that an application for condonation
may not be urgent
does not concomitantly mean that the application itself is devoid of
any merit. The application, if not urgent,
may be postponed to a
later date for the hearing of the merits in due course with a costs
order against an errant applicant.
In the application for
rescission of the default judgment dated 03 March 2010 which was
served on the plaintiff’s attorneys
and filed with the Clerk
of Court on 05 March 2010 the appellant gave notice that on 29 March
2010 at 08h30 it would ask:
“
1. That the
default judgment granted under Case No 738/2008 in this Honourable
Court be set aside;
2. That the
applicant be granted leave to enter and defend the main case, Case No
7389/2008, and be permitted to file its plea within
10 days of the
rescission of the default judgment;
3. That the
respondent [sic] be ordered to pay the costs of the application for
rescission, but only if the respondent opposes the
application.”
Ex facie
the
record the date on which argument relating to the rescission of
judgment took place is not reflected. It seems though that
it took
place on 28 June 2010 or 06 July 2010. In her written “
Reasons
for Judgment in terms of Rule 51 of Act 32 of 1944
” the
Magistrate states:
“
The defendant
[appellant] applied for rescission of the judgment which was granted
on 8 February 2010. The plaintiff opposed the
application for
rescission. The court dismissed the application for rescission, with
costs. Reasons are the following:
On 8 February 2010
two applications served before the court:
Application for
condonation
for the upliftment of a notice of bar which is
operational against the defendant
due to defendant’s
failure to file its plea timeously;
The application for
condonation was dismissed with costs on an attorney and client scale.
Request for default
judgment.
Judgment was granted
against the defendant.
Until such time as
the court’s decision relating to the application for
condonation for the late filing of the plea is set
aside or reversed
by a court, no plea subsequently filed will have any force or effect
as the notice of bar is still effective.
The granting of this
application for rescission would be of no force or effect.
The above are the
reasons for my judgment together with my ex tempore judgment given on
6 July 2010 and I have nothing further to
add
”.
There was no
ex
tempore
judgment purportedly delivered on 06 July 2010 or any
other date in the court files. The record was therefore incomplete.
We
asked the parties, in particular the appellant who is
dominis
litis
, to attend to the shortcoming and to supply supplementary
written heads on the alleged outstanding
ex tempore
judgment
– irrespective of whether it exists or not. The heads were
also to cover the question whether the appellant’s
instructing
attorneys (Horn & Van Rensburg, Bloemfontein) should be ordered
to pay costs
de bonis propriis
should the appeal fail. The
cryptic
ex tempore
judgment takes the matter no further and
may as well not have been alluded to by the Magistrate.
The Magistrate states
(in para 25 above) that the “granting of this application for
rescission would be of no force or effect.
This is incorrect. Once a
default judgment has been rescinded the consequences thereof fall to
be set aside. This is so because
the applicant would have dealt with
a conspectus of all legal processes of a warrant of execution, the
attachment of property
etc. See
Naidoo v Somai
2011(1)
SA 219 (KZP) at 221 G-H and 575G-D.
In light of the
misdirection by the Magistrate we are at large in our fresh
assessment of the merits to consider whether the defendant/appellant
has proffered
bona fide
grounds to the plaintiff’s
claim which would entitle us to come to its rescue. A practical
starting point to cut through
the labyrinth to reach the kernel is
to visit the merits.
The authors Jones &
Buckle (Van Loggerenberg), the Civil Practice of the Magistrates’
Courts, 10
th
Edition, the principles governing this issue
as follows (at Rule 49-10):
“’
The
ground of the defendant’s defence to the claim.’ The
grounds of defence to the action must be contained in the affidavit
which constituted the application
1
.
If, however, such grounds are contained in a previous affidavit or
other document, they may be incorporated by reference and confirmed
in the applicant’s affidavit
2
.
The applicant need not show a probability of success on the merits;
it suffices if he shows a prima facie case in the sense of
setting
out averments which, if established at the trial, would entitle him
to the relief asked for
3
.
He need not deal fully with the merits of the case
4
,
but the grounds of defence must be set forth with sufficient detail
to enable the court to conclude that there is a bona fide
defence,
and that the application is not made merely for the purpose of
harassing the respondent
5
.
If the merits of the action have been fully dealt with on the
pleadings and it appears that the probabities with reference to
the
existence of an alleged prima facie defence and are manifestly in
favour of the respondent, this is a consideration which the
court may
properly take into account
6
.”
In giving oral
evidence before the Magistrate the plaintiff testified in minute
detail on how he was arrested and detained. I
give a brief summary
of these events.
On 17 January 2008 the
plaintiff was employed at Diamond Pavilion Mall for a company called
VMS as a stock controller. His work,
which he had been doing for
more than a year, also involved sales and merchandising. VMS
deployed him to Checkers Wholesalers
on this particular occasion. At
07h30 he checked in (clocked). He asked the appellant’s
employee, Mr Ramabodu, (the first
defendant) to stick-tag his
private pen as it is a policy required of Checkers that all private
property must bear a distinctive
sticker to distinguish it from the
business stock-in-trade. Ramabodu informed him that he has run out
of stickers and allowed
him in with the understanding that the pen
will be stick-tagged in due course.
Between 10h00 and
11h00 the plaintiff recessed for tea. He exited and returned past
Ramabodu who still disclaimed having any identifying
stickers. This
happened throughout the day (even at lunch between 13h00 and 14h00).
At 17h00 when the plaintiff knocked off duty
Ramabodu accosted him
and accused him of having stolen the pen and took him to the
manager, a Mr Eugene Van Niekerk. The police
were summoned and he
was arrested for his own pen ( a Bic-type pen valued at R5-00). The
arrest took place in full view of his
co-workers and members of the
public.
The plaintiff says he
had R100-00 with him and would not steal a pen valued at R5-00. He
asked the police to view the video footage
that runs all the time
(24/7) but he was told that he could make the request at court. He
was taken to the Transvaal Road Police
Station (in the Kimberley
City Centre) and locked up. The following morning (18/01/2008) he
was taken to court and locked up
in the holding cells. At 12h00 his
case was withdrawn.
The plaintiff’s
employers dismissed him but the CCMA declared that his dismissal was
unfair and ordered that the employer
compensate him three months’
salary.
For present purposes it
is unnecessary to deal with the quantum leg of the case.
THE APPELLANT’S
DEFENCE
The appellant’s
deponent, Mr Stephanus Weydeman, on the merits refers to his plea
and pleads that same be read as if therein
incorporated. The plea is
a bare denial and in my view excipiable. Mr Weydeman then continues:
“
5.1
Voledigheidshalwe herhaal ek vir doeleindes van hierdie aansoek, die
Applikant se verweer as synde dat Applikant as Tweede Verweerder
onder saaknommer 7389/2008 in die bogemelde Agbare Hof pertinent
ontken dat hy en/of enige werknemers in sy diens op die dag en
datum
in paragraaf 12 van die Besonderhede van Vordering wederegtelik en
opsetlik `n valse klagte van diefstal by die Suid-Afrikaanse
Polisie
Diens teen die Respondent as Eiser aanhangig gemaak het, of dat die
Respondent as Eiser in die hoofsaak as gevolg daarvan
gearesteer en
aangehou was.
5.2 Applikant ontken
verder dat Eiser enigsins skade gelyhet uit hoofde van `n aanhouding
en/of arrestasie wat enigsins verband
hou met die Tweede Verweerder
in die Hoofsaak, as Applikant hierin, en ontken Applikant verder die
kwantum van die Respondent se
beweerde skade. Applikant sal die
Respondent dus tot die bewys van eerstens die Applikant (Tweede
Verweerder) se betrokkendheid
by `n beweerde arrestasie en aanhouding
plaas, ten tweedens sal die Applikant die Respondent enigsins
suksesvol sou wees in die
aksie teen die Applikant, ten aansien
waarvan Applikant steeds enige betrokkenheid by hetsy `n arrestasie
en/of aanhouding van
die Respondent, ontken.
5.3 Verdermeer
ontken die Applikant dat hy behoorlik gesiteer is in die Dagvaarding
en sal die Applikant die Respondent boonop tot
die bewys plaas van sy
korrekte sitasie.
5.4 Applikant is ook
gesiteer in die Besonderhede van Vordering as synde middelik
aanspreeklik te wees vir die optrede van ene
JACOB RAMABODU
,
wie gesiteer is as `n sekuriteitsbeampte van beroep werksaam in diens
van die Applikant, uit hoofde van die optrede van laasgenoemde
persoon op/ongeveer 17 Januarie 2008 te Checkers, Diamond Pavilion,
Kimberley.
5.5 Applikant ontken
verder die middelike band soos beweer in die Besonderhede van
Vordering, en sal Applikant verlang dat die Respondent
ten minste
bewys dat daar wel enigsins `n nexus bestaan tussen die person
JACOB
RAMABODU
en die Applikant.
5.6 Ondertussen
egter is die vonnis nou reeds teen Applikant toegestaan, en beweer
Applikant eerbiediglik dat hy reeds van die begin
af `n bona fide
verweer teen die eis gehad het. Applikant is steeds begerig om die
aksie te verdedig en smeek die Agbare Hof eerbiediglik
om aan hom die
toestemming te verleen om wel die aksie te verdedig, ten einde
eventueel sy saak behoorlik voor die Agbare Hof te
plaas.”
The above is the
appellant’s complete defence. The aforegoing is clearly
demonstrative of the fact that the appellant tactically
and
studiously avoided attracting the onus to justify the arrest and
detention, which would be the consequence of such an admission.
See
Newman v Prinsloo & Another
1973(1) SA 125(W) at
126H-127G and
Ramakulukusha v Commander, Venda National Force
1989(2) SA 813 (V) at 836B. The technique adopted by the appellant
is fatally flawed because evidence presented by way of affidavit
is
a substitute for both the pleadings and the oral evidence. The bland
denial does not measure up to the name “facts”
or
“evidence” or to the requisite for recision set out in
para 36 (above).
The appellant was
ensnared in its own trap. Its lawyers overlooked the fact that the
plaintiff had already testified when they
brought the rescission
application. Its deponent, Mr Weydeman, says that the appellant will
put the plaintiff to the proof of
his (plaintiff’s) alleged
unlawful arrest and detention as well as the damages he is said to
have suffered. But he had
already done just that. There may have
been something to say for the appellant had the claim not been for
damages but a liquidated
amount for which no evidence was required.
The plaintiff’s evidence therefore remains uncontroverted.
In the result,
appellant has not shown that he has a
bona fide
defence on the
merits.
To summarise the
appeal must fail in the light of these catalogue of failures on its
part:
38.1 The appellant’s
appeal was struck from the roll on 15 August 2011 because it had
failed to file its record or do so timeously.
The appellant set the
matter down by itself (without applying for a date of hearing) and
did not apply for re-enrolment and to
explain its default by means of
a substantive condonation application. In terms of Rule 49(7) (d) the
appeal had lapsed;
38.2 The appellant was
on more than one occasion urged by letter by the plaintiff to file
its plea. It failed to do so and ironically
warned the plaintiff that
should he obtain default judgment the appellant would apply for its
rescission and then did nothing until
the plaintiff took the next
step;
38.3 The appellant gave
a false explanation why it did not plead or serve and file its plea
timeously;
38.4 The appellant has
no bona fide defence as pointed out here in before.
One matter remains.
The appellant’s ground that the damages awarded by the
Magistrate are exorbitant and not justified.
Mr Groenewald seems to
suggest that if this ground is upheld then rescission of the entire
case would be justified. This is amenable
in particular where the
issues are severable as in merits from quantum, as it is in this
matter. See:
Silky Touch International (Pty) Ltd v Small
Business Development Corporation Ltd
[1997] 3 ALL SA 439
(W).
Partial rescission
being permissible the question is whether it is competent and in the
interest of justice to determine whether
the quantum awarded was
exorbitant and if we found that it was whether we should assess what
the appropriate amount should be
or refer the matter back to the
Magistrate for this purpose.
As shown in the
opening paragraph of this judgment the plaintiff claimed R90 000-00.
In addressing the Court on quantum Mr Titus,
attorney for the
plaintiff, stated that: “
Wat kwantum aanbetref Edelagbare,
ek het nou nie gesag saam gebring nie---.”
After being
addressed perfunctorily the Magistrate merely contended herself with
the order: “Die vonnis word toegestaan
soos versoek.” No
comparative study was made nor were any reasons for the decision
given. Even in her “Rule 51(1)
Reasons, quoted the Magistrate
is silent on how the amount of R90 000-00 was assessed and arrived
at.
Of further relevance is
Road Accident Fund v Marunga
2003(5) SA 164 (SCA) at
171D-172E where Navsa JA remarked:
“
[31] Before
considering whether the amount awarded by the trial Court should be
upset on appeal I return to an aspect touched on
briefly earlier in
this judgment, namely the lack of a reasoned basis for the
determination of general damages. As a general rule
a court which
delivers a final judgment is obliged to give reasons for its
decisions. In an article in (1998) 115 The South African
Law Journal
at 116 - 28 entitled 'Writing a Judgment' the former Chief Justice, M
M Corbett, pointed out that this general rule
applies to both civil
and criminal cases. In civil cases this is not a statutory rule but
one of practice. The learned author referred
to Botes and Another v
Nedbank Ltd
1983 (3) SA 27
(A) where this Court held that in an
opposed matter where the issues have been argued litigants are
entitled to be informed of
the reasons for the Judge's decision. It
was pointed out that a reasoned judgment may well discourage an
appeal by the loser and
that the failure to supply reasons may have
the opposite effect, that is, to encourage an ill-founded appeal. The
learned author
stated the following at 117:
'In addition, should
the matter be taken on appeal, the Court of appeal has a similar
interest in knowing why the Judge who heard
the matter made the order
which he did. But there are broader considerations as well. In my
view, it is in the interests of the
open and proper administration of
justice that the courts state publicly the reasons for their
decisions. Whether or not members
of the general public are
interested in a particular case - and quite often they are - a
statement of reasons gives some assurance
that the court gave due
consideration to the matter and did not act arbitrarily. This is
important in the maintenance of public
confidence in the
administration of justice.'
[32] Writing on the
same subject in The Australian Law Journal (vol 67A 1993) at 494 -
502 the former Chief Justice of the High
Court of Australia, the Rt
Hon Sir Harry Gibbs, considering the same rule of practice in
common-law countries, stated the following
at 494:
'The citizens of a
modern democracy - at any rate in Australia - are not prepared to
accept a decision simply because it has been
pronounced, but rather
are inclined to question and criticise any exercise of authority,
judicial or otherwise. In such a society
it is of particular
importance that the parties to litigation - and the public - should
be convinced that justice has been done,
or at least that an honest,
careful and conscientious effort has been made to do justice, in any
particular case, and the delivery
of reasons is part of the process
which has that end in view.'
[33] This is, of
course, not a case in which no attempt has been made to provide
reasons for judgment. It is a case in which the
attempt has been
inadequate. Even though courts have a wide discretion to determine
general damages and even though it cannot be
described as an exercise
in exactitude, or be arrived at according to known formulae, a trial
court should at the very least state
the factors and circumstances it
considers important in the assessment of damages. It should provide a
reasoned basis for arriving
at its conclusions. Regrettably, although
the Court below stated the main injury sustained by the respondent
and set out the envisaged
corrective and further surgery it did not
set out adequate motivation for the amount determined as damages.”
See also: In
Minister of Safety & Security v Tyulu
2009(5)
SA 85 (SCA) at para 26.
Mr Groenewald’s
heads of argument does not state on what basis the quantum is
exorbitant nor does the appellant’s
(Mr Weydeman’s)
affidavit address this issue. Even on this aspect a case has not
been made out for rescission. Whether
the amount appears to us to be
high and that we would not have awarded that amount, is not the
test. In any event, R90 000-00
for the unlawful arrest,
detention and malicious prosecution is not over the top. I must
caution, though, that this award must
not be taken as a precedent.
On the question of
whether costs should be ordered
de bonis propriis
against the
appellant’s attorneys and having considered the supplementary
heads of argument I consider that this is not
a case that calls for
such an order nor would a punitive order against the appellant be
justified.
In the result, for the
aforegoing reasons, I make the following order.
ORDER
The appeal is
dismissed with costs, to be taxed on a party and party scale.
________________________________
F
DIALE KGOMO
JUDGE-PRESIDENT
Northern
Cape High Court, Kimberley
I
agree.
________________________________
B
M PAKATI
ACTING-JUDGE
Northern
Cape High Court, Kimberley
On behalf of the
Appellant
:
Adv. W.J. Groenewald
Instructed by: Van de
Wall & Partners
On behalf of the
Respondent
:
Mr C Kgotlagomang
Instructed by: Towell &
Groenewaldt Attorneys
1
F&J
Car Sales v Damane
2003(3) SA 262 (W) at 266 E-G. See also
Taylor v Additional Magistrate, Vereeniging
1984(4) SA
1 (T) at 4D.
2
Kruger
v Standard Krediet Korporasie Bpk
1988(1)
SA 570 (T).
3
Grant
v Plumbers (Pty) Ltd
1949 (2) SA
470
(O) at 476-7;
Kritzinger v
Northern Natal Implement Co (Pty) Ltd
1973(4)
SA 542 (N);
Sanderson Technitool
(Pty) Ltd v Intermenua (Pty) Ltd
1980(4)
SA 573 (W) at 575;
Federated Timbers
Ltd v Bosman NO
1990(3) SA 149(W)
at 79C;
Santam Ltd v Bamber
[2006] 1 All SA 311
(W) at 315b-c; but see the
comments in
Standard Bank of SA Ltd
v El-Naddaf
1999(4) SA 779(W) at
315b-c.
4
Brown
v Chapman
1928 TPD 320
at 328;
Greenberg v Meds
Veterinary Laboratories (Pty) Ltd
1977(2) SA 277(T) at 279;
Kavasis v South African Bank of Athens Ltd
1980(3) SA
394 (D) at 395.
5
Schneider
v Abel
1916 CPD 346
;
Grant v Plumbers (Pty) Ltd
1949(2)SA 470 (O) at 476
; Kouligas & Spanoudis Properties
(Pty) Ltd v Boland Bank Bpk
1987(2) SA 414 (O)at 417C-D;
De
Vos v Cooper & Ferreira
1999(4) SA 1290 (SCA) at 1303A-C
and 1304B-G.
6
Du
Plessis v Du Plessis
1970(1) SA 683 (O).