Zoio v Minister of Safety and Security (574/2001) [2009] ZANCHC 54 (30 October 2009)

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[2009] ZANCHC 54
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Zoio v Minister of Safety and Security (574/2001) [2009] ZANCHC 54 (30 October 2009)

IN
DIE HIGH COURT
OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT
,
KIMBERLEY)
CASE
No
:
574/2001
In
the matter between
:
R
ZOIO
PLAINTIFF
A
ND
MINISTER
OF
SAFETY AND SECURITY
DEFENDANT
HEARD
ON
4
September 2009
JUDG
MENT
BY:
C.J
.
MUSI, J
_____________________________________________________
HEARD
ON
:
30
October 2009
[1] This
is an application
by
the defendant/applicant for leave to appeal against my judgment
delivered on 26 May 2006. The respondent/plaintiff also brought
an
application for variation of my order, failing which that he be
granted leave to appeal against such refusal. Although the
respondents’ application is out of time, the parties agreed that
condonation should be granted for such late filing. It was granted.
I
will henceforth refer to the parties as the plaintiff and the
defendant.
[2]
In the said judgment I made the following order:
“
(a) The
plaintiff’s claim succeeds. The defendant is ordered to pay the
plaintiff an amount of R600 000.00 plus 15,5% interest
thereon from
date of judgment…”
[3] The
defendant
attacks the credibility findings that I made in respect of all the
witnesses called by the plaintiff. The defendant called
no witnesses
to testify on his behalf. The argument of the defendant is in essence
that the finding that the plaintiff’s damages
amounted to R600
000.00 is not borne out by the facts.
[4] The
defendant
contends that the plaintiff’s (Zoio junior) evidence in relation to
the ownership of the money and the stolen amount should not
have been
accepted. I have, in my judgment, dealt with the previous
inconsistent statement that Zoio junior made. The explanation
that
Zoio jnr gave is plausible and it is supported by the letters that
his erstwhile
attorney,
Z
ürich,
wrote. It is clear that Zoio jnr, like the defendant, misunderstood
the legal position in relation to bringing foreign
currency into this
country.
[5] It
was argued that Zoio
junior’s evidence in relation to why he did not request his father
to deposit the money into his bank account is improbable.
It might
sound improbable that he would go to such length to save less than
R4000.00. The fact of the matter, however, is that
a large sum of
money was transported by the deceased. It is also clear that some of
that money was given to the deceased by Zoio
junior’s sister. The
fact that unconventional ways of transferring money from one person
to another was used does not mean that
Zoio jnr is lying about this
aspect. There is no other evidence, objective or otherwise, to
gainsay the evidence of Zoio junior
that he borrowed money from his
father which money was collected by the deceased. There is also no
evidence to gainsay his evidence
that he gave R200 000.00 to the
deceased.
[6] The
attack on Zoio
senior’s evidence is also without substance. He might have used
unconventional ways of transporting, changing and transferring
the
money but this does not, without more, mean that his evidence should
be rejected as false.
[7] The
applicant’s argument that it is improbable that Zoio senior would
take practically all his savings and borrow it to his
son is also
without merit. He did not give it as a donation. He lend it to him
with the understanding that it would be repaid.
Parents are known to
go to great lengths to assist their children. I do not think that
Zoio senior is an exception.
[8] There
is
no reason for me to reject Zoio senior’s evidence that he is a
gambler and that he changed the foreign currency at a casino.
Again
this might be an unconventional way of doing things but it does not
warrant the rejection of his evidence as false.
[9] It
is correct that Dos Santos conceded during cross-examination that
they did not count each and every note. His evidence is
however clear
that the bundles of notes amounted to R600 000.00. His evidence
should however not be viewed in isolation. Zoio senior
testified
about the
R400
000.00 that he gave to his daughter to hand over to his son or the
deceased. She testified that she gave the money to the deceased.
When
the deceased arrived at Dos Santos’s place they counted and
repacked the money. The bundles amounted to R600 000.00.
[10]
The evidence of Heyn was clear. He received R100 000.00 and his
colleagues received more than that. Heyn might be a dishonest
person.
He clearly had motive and reason to lie during the criminal
proceedings (both at investigation phase and in court). The
fact that
he was convicted of theft of an amount less than R100 000.00 is
neither here nor there. It is known that accused persons
would say
anything to escape punishment or to receive a lesser punishment. I
did not get the impression that he lied about the
amount of money
that he received. In any event in his confession he stated that he
received between R90 000.00 and R100 000.00.
[11] The
defendant is of the view that I could not on the evidence before me
find on a balance of probabilities that R600 000.00
was stolen out of
the car because:
There was no direct evidence
The money was already out of the
packet when the police found it
The deceased could have used some of
the money
[12] It
is the duty of the plaintiff to present sufficient evidence to prove
his damages. The plaintiff must adduce all the available
evidence, in
that regard, and not leave it up to the court to guess what his
damages are. When all the available evidence was presented
the court
has a duty to award damages. In
Hersman
v Shapiro & Co
1926
TPD 367
at 379 Stratford J puts it thus:
“Monetary
damages having been suffered it is necessary for the court to assess
the amount and make the best use it can of the
evidence before it.
There are cases where the assessment by the court is very little more
than an estimate, but even so, if it
is certain that pecuniary damage
has been suffered the court is bound to award damages. It is not so
bound in the case where evidence
is available to the plaintiff which
he has not produced, in those circumstances the court is justified in
giving, and does give,
absolution from the instance. But where the
best evidence available has been produced, though it is not entirely
of a conclusive
character and does not permit of a mathematical
calculation of the damages suffered, still, if it is the best
evidence available,
the Court must use it and arrive at a conclusion
based upon it.”
See
also
Mkwanzi
v Van deer Merwe and Another
1970 (1) SA 609
(A) at 631 F to 632 B.
Venter
v Bophuthatswana Transport Holdings (Edms)Bpk
[1997] ZASCA 16
;
1997 (3) SA 374
(SCA) at 381 – 382.
Mutual
& Federal Insurance Co Ltd v Da Costa
2008(3)
SA 439 (SCA) at 445 paragraph 20.
[13]
Although
there was no direct evidence as to how much was taken by the
policemen, the plaintiff presented all the available evidence
in
order to establish that R600 000.00 was taken. To find that the
deceased used some of the money would amount to speculation
without
foundation. The fact that the money was already loose when the police
arrived at the scene is also of no avail to the defendant.
There is
no evidence that any other person opened the boot or took items from
the vehicle.
[14] The totality of the
evidence shows the following:
The plaintiff gave the deceased R200
000.00.
The plaintiff’s
father gave his daughter R400 000.00 to give to the plaintiff, which
she did.
Dos Santos and the deceased counted
some of the money and from the packaging of the rest of the bundles
it was R600 000.00.
Heyn received R100 000.00 and his
colleagues more.
The plaintiff
adduced all the evidence that he could in order to establish that
his damages amounted to R600 000.00.
[15] It
is my considered opinion that there is no reasonable prospect that
another court may come to a different conclusion in relation
to the
amount of the money and to whom it belonged. The defendant’s
application ought to be dismissed.
[16] On
8 September 2006 the plaintiff filed a notice of motion wherein he
sought the following relief:
“
1. Dat die
klaarblyklike fout in paragraaf 1 van die Bevel uitgereik op 26 Mei
2006 reggestel word sodat dit soos volg sal lees:
“
1. That
the plaintiff’s claim succeeds. That the defendant pay the
plaintiff an amount of R600 000.00 plus 15,5% interest thereon
from
25 October 2000 to date of payment”
Alternatiewelik
tot paragraaf 1 hierbo
Dat
aan die Eiser kondonasie verleen word vir
die
laat aflewer van ‘n Aansoek om Verlof tot
Appél,
die besonderhede waarvan blyk uit paragraaf 3 hierbenede.
Data
an die Eiser verlof verleen word om teen
die
uitspraaak van sy Edele Regter Musi gelewer op 26 Mei 2006 te
appelleer op grond daarvan dat die geleerde Regter regtens en/of

feitlik fouteer deur:
Nie
die versoek van die Eiser se advokaat tydens argument dat rente
gelas word om te loop vanaf datum van aanaming te gesien
het as ‘n
informele versoek om ‘n wysiging van die tweede bede tot die
Besonderhede van Vordering nie.
Deur
nie te bevind het nie dat aanmaning gedoen was op 25 Oktober 2000
alternatiewelik op die laaste op die 12de Junie 2001
toe
dagvaarding beteken was nie.
Deurdat
die Agbare Regter fouteer het deur te gelas het dat rente slegs
vanaf datum van vonnis synde die 26ste Junie 2006 sou
loop.
Koste
van hierdie aansoek slegs ingeval van opponering daarvan.
Verdere
en/of alternatiewe regshulp.”
[17] The
basis for the relief sought in paragraph 1.1
of the plaintiff’s application is that I did not consider the
informal request for an amendment of the pleadings made during

closing argument. During closing argument Mr De Koning said the
following:
“
All we need to
prove is who is the owner and how much was stolen and I submit
that
that has been adequately proved and I call upon Your Lordship to give
judgement as prayed in the Particulars of claim, payment
of the R600
000.00 and interest a
tempore
mora
,
not from date of judgement – My Lord, I will have to apply for the
amendment of that – of prayer (b) – from the date of
mora,
and
the date of
mora
My Lord, at least to be the 11
th
of April 2001 at 15,5% and costs of suit…”
[18] Mr
De Koning is of the view that this informal application for an
amendment ought to have been granted. He further contends
that in as
far as I did not consider it; I should vary my order accordingly
because there is a patent error or omission in the
order.
[19] Mr Botha strenuously
opposed the application to vary my order. Mr Botha pointed out that
although he did not hear the informal
application for an amendment
there was no basis for such amendment. Mr Botha pointed out that the
plaintiff did not comply with
the Rule 28. No reason was given as to
why there was non compliance with Rule 28 at the time that the
informal application for
an amendment was made. He further contended
that the plaintiff prayed for an order in his pleadings and that such
order was granted,
there was therefore no reason to vary the order.
[20] Mr
De Koning on the other hand argued that informal applications for
amendment are, in practice, brought on a daily basis.
He was of the
view that his purported application was sufficient.
[21] Rule 28 reads as
follows:
(1)
Any
party desiring to amend a pleading or document other than a sworn
statement, filed in connection with any proceedings, shall
notify all
other parties of his intention to amend and shall furnish particulars
of the amendment.
(2) The notice referred to in subrule
(1) shall state that unless written objection to the proposed
amendment is delivered within
10 days of delivery of the notice, the
amendment will be affected.
(3) An objection to a proposed
amendment shall clearly and concisely state the grounds upon which
the objection is founded.
(4) If any
objection which complies with subrule (3) is delivered within the
period referred to in subrule (2), the party wishing
to amend may,
within 10 days, lodge an application for leave to amend.
(5) If no objection
is delivered as contemplated in subrule (4), every party who received
notice of the proposed amendment shall
be deemed to have consented to
the amendment and the party who gave notice
to
the proposed amendment may, within 10 days of the expiration of the
period mentioned in subrule (2), effect the amendment as
contemplated
in subrule (7).
(6) Unless the court otherwise
directs, an amendment authorized by an order of the court may not be
effected later than 10 days
after such authorization.
[7] Unless the court otherwise
directs, a party who is entitled to amend shall effect the amendment
by delivering each relevant
page in its amended form.
[8] Any party
affected by an amendment may, within 15 days after the amendment has
been effected or within such other period as
the court may determine,
make any
consequential
adjustment to the documents filed by him, and may also take the steps
contemplated in rule 23 and 30.
[9] A party giving notice of amendment
in terms of subrule (1) shall, unless the court otherwise directs, be
liable for the costs
thereby occasioned to any other party.
[10] The court may, notwithstanding
anything to the contrary in this rule, at any stage before judgement
grant leave to amend any
pleading or document on such other terms as
to costs or other matters as it deems fit.
[22] The
Rule does not make provision for informal applications. Although it
does not make provision for informal applications for
amendments,
amendments are in practice sought and granted after an informal
request from the bar. Those kinds of amendments are
generally allowed
where there is no prejudice or where such amendment is harmless or
where the parties agree thereto.
[23] It
is the duty of the party desiring an amendment to request it. Mr De
Koning conceded that his purported application for amendment
was not
couched eloquently. In it he stated that he will have to apply for an
amendment. He however argued that what he meant to
convey was that he
is applying for an amendment. That is not what he said. He said that
he will have to apply for an amendment.
This clearly refers to some
future action. I am therefore not surprised that neither I nor Mr.
Botha perceived or experienced what
was said as an application for an
amendment. In my view Mr. De Koning should not be allowed to panel
beat what he actually said
to what he meant where his words are clear
and unambiguous. Even if I accept, which I do not, that he meant
that he is applying
for an amendment such amendment can not be
granted.
[24] Any application for
an amendment had to be brought before judgment. Judgment in this
matter was delivered on 26 May 2006. No
application for an amendment,
in terms of Rule 28, was delivered before the date of judgment. All
reasons given after the date
of judgment as to why an application in
terms of the Rule was not filed are irrelevant.
[25] The
court has discretion to allow or refuse applications for amendment of
pleadings. An application for amendment is not a
mere formality that
is granted when requested. The court is duty bound to consider
prejudice to the other party. The plaintiff
bears the onus to show
that the other party will not suffer irreparable prejudice. In
Euroshipping
Corp of
Monrovia
v Minister of Agriculture
1979 (2) SA 1072
(CPD) at 1090 B-C Friedman J stated, correctly, that
“there
is in an application such as this an onus on the party seeking the
amendment to establish that the other party will not
suffer
irreparable prejudice and as Schreiner J said on the sixth rule
enumerated in
Unicon
Bank of South Africa Ltd v Woolf
(supra at 225).”
“When there is a
real doubt whether or not prejudice or injustice will be caused to
the defendant if the amendment is allowed,
it should be refused.”
The plaintiff has not shown, during the purported application, that
the defendant will not suffer prejudice. The defendant argued
that it
would be prejudiced if the amendment and consequently the variation
of the order was allowed because it was not given the
opportunity to
object or make its views known in relation to the purported
application.
[26] When
the purported application was made Mr De Koning did not even give a
reason as to why it was made at that late stage. I
therefore did not
have any indication as to the
bona
fides
of the plaintiff. Delay per se is no ground for refusing an
application for amendment.
[27] In
Trans–Drakensberg
Bank Ltd v Combined Engineering
1967 (3) SA 632
(D & CLD) at 640 H Caney J pointed out that
“The
amendment will be refused only if to allow it would cause prejudice
to the other party not remediable by an order for costs
and, where
appropriate, a postponement. It is only in this relation, it seems to
me, that the applicant for the amendment is required
to show it is
bona
fide
and to explain any delay there may have been in making the
application, for he must show that his opponent will not suffer
prejudice
in the sense that I have indicated…”
See
also
Thekweni
Properties (Pty) Ltd v Picardi Hotels Ltd
2008 (2) SA 156
(D & CLD) at paragraph 9.
[28] It
is clear that the
“informal”
application for amendment was not in compliance with Rule 28. It
lacked vital averments in relation to an explanation
for the delay,
the
bona
fide
of
the plaintiff and whether the opponent will suffer any prejudice. The
plaintiff could and should have applied for a postponement
in order
to deliver his notice of intention to amend his pleadings. He chose,
at his peril, not to do so.
[29] It
must be remembered that “informal” applications for amendments
are ordinarily granted where it is clear that there would
be no
prejudice or where it is clear that there is a minor mistake in the
pleadings that ought to be remedied or where the opponent
agrees
thereto. Where an informal application, like this, is made and there
is clear indication that prejudice will result or where
there is
doubt as to whether prejudice would result it should be refused.
Worst still if it is asked at such a late stage and no
explanation is
given for the delay or the
bona
fides
of the applicant, and why an application in terms of the Rules was
not brought.
[30] Although
I did not consider the purported application in my judgment it is in
my view clear that it was never worthy of any
consideration. The
plaintiff asked, in his pleadings, for interest from date of
judgement. The order was so granted. There is no
ambiguity, patent
error or omission in the order.
[31] Mr
De Koning referred me to section 2 (1) of the Prescribed Rate of
interest Act 55 of 1975 and argued that the amount (R600
000.00),
bears interest from the day on which the judgment debt is payable.
His argument was that, in terms of that section, the
money was
payable at date of demand but the latest on the date on which the
summons was served on the defendant. I disagree.
[32] Section 2 of the
aforementioned Act reads as follows:
“2. Interest
on a judg
ment
debt.-
(1) Every
judgment debt which, but for the provisions of this subsection,
would not bear any interest after the date of the judgment
or order
by virtue of which it is due, shall bear interest from the day on
which such judgment debt is payable, unless that judgment
or order
provides otherwise.
(2) Any
interest payable in terms of subsection (1) may be recovered as if it
formed part of the judgment debt on which it is due.
(3) In this
section “judg
ment
debt” means a sum of money due in terms of a judgment or an order,
including an order as to costs, of a court of law, and
includes any
part of such a sum of money, but does not include any interest not
forming part of the principal sum of a judgment
debt.”
[33] In
General
Accident Versekerwysmaatskappy SA Bpk v
Bailey
N.O
1988 (4) SA 353
(AA) at 357 G-H it was stated that:
“Soos
alreeds aangedui, dra elke vonnisskuld rente, luidiens artikel 2 (1)
van Wet 55 van 1975, vanaf die dag waarop die vonnisskuld
betaalbar
is. Die vraag onstaan, wanneer is ‘n vonnisskuld betaalbaar? In die
gewone gang van sake is dit betaalbaar op die datum
wanneer dit deur
die uitspraak van die verhoof bepaal word…”
See
also
Administrateur,
T
ransvaal
v J D van Niekerk en Genote Bk
[1994] ZASCA 128
;
1995 (2) SA 241
(AD) at 244 G-H.
[34] My
order i
s
therefore clear that the judgment debt is payable from the date of my
judgment. In my view Mr De Koning’s argument that I should
vary my
order because the judgment debt was
ex
lege
payable at date of demand or date of service of the summons can not
be accepted. It only became a judgment debt on the date determined
by
me in my judgment.
[35] As
indicated above, the application to vary my order was accompanied by
an application for leave to appeal.
[36] The
first ground of the plaintiffs’ application for leave to appeal is
that I erred by not accepting the request of plaintiff’s
counsel as
an informal application for amendment. I have dealt with this
argument above and stand by what I have said in relation
to this
purported application for amendment.
[37] The
other grounds are interrelated. In essence the submission is that I
erred by not finding that the plaintiff was entitled
to interest from
date of demand or date on which summons was served.
[38] It
is common cause that the letter of demand dated 25 October 2000 was
written on behalf of
Mrs
Fortunato - the deceased’s wife – and not the current plaintiff.
In that letter the demand is that the defendant should
pay Mrs
Fortunato an amount of R600 000.00.
[39] The
pleadings clearly state that the plaintiff asks for interest from
date of judgment. It is not for me to amend the pleadings
on behalf
of the plaintiff and order that the interest should be paid on a date
other than the date requested by the plaintiff
in his pleadings. In
my view there are no reasonable prospects that another court could
come to another conclusion on these issues.
This application ought to
be dismissed with costs.
[40] There
is a last issue that I want to deal with and that is the delay in
arguing these applications. I had indicated from the
time that the
application for postponement was granted that I am available on any
Friday to hear these applications. Bosielo AJP,
as he then was, wrote
me a letter enquiring about my availability. I reiterated my
availability on any Friday of the parties’
choice. After I heard
nothing from the parties, I requested my clerk to call Mr Botha and
Mr Kuyler on 13 August 2008. Mr Botha
indicated that he does not know
what the status of the matter is and that he will revert. He did not.
Mr Kuyler indicated that
he is waiting for a date.
[41] When
I en
quired
from both Mr De Koning and Mr Botha what the reasons were for the
delays in this matter, both could not give me an explanation
save to
say that they could not get a suitable date. Mr De Koning informed me
that he wrote a letter to the Judge President to
enquire about this
matter but he also confirmed that they could not agree on a suitable
date. Needless to say these kinds of delays
do not augur well for the
administration of justice. The delays in this matter are inordinate
and unacceptable. I can however not
apportion blame on anyone.
[42] I accordingly make
the following order:
The defendant’s
application for leave to appeal is dismissed with costs.
The
plaintiff’s applications for variation and leave to appeal are
dismissed with costs.
___
____________
C.J.
MUSI, J
On
behalf of the Plaintiff
:
Adv. De Koning
On
behalf of the Defendant
:
Adv. Botha
/m
a