About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 59
|
|
Minister of Police v Mvelo (CA&R 3/2023) [2024] ZANCHC 59 (21 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case Number: CA&R
3/2023
Heard: 18 March 2024
Delivered: 21 June 2024
Reportable: YES /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES /
NO
Circulate to Magistrates:
YES /
NO
In
the matter between:
MINISTER
OF POLICE
APPELLANT
and
PATRICK
MKUSELI
MVELO
RESPONDENT
In
re:
PATRICK
MKUSELI
MVELO
APPLICANT
and
MINISTER
OF
POLICE
RESPONDENT
Coram:
Stanton J & Tyuthuza AJ
JUDGMENT
Per
Tyuthuza AJ
INTRODUCTION
1.
The appellant herein lodged an appeal against the whole
judgment and order granted by the Learned Magistrate for the District
of
Frances Baard, Kimberley, in which the Court dismissed an
application for the rescission of a judgment brought in terms of
section
36(1) of the Magistrates’ Courts Act 32 of 1944 (“the
Act”).
2.
Section 36(1) of the Act reads as follows:
“
The
court may, upon application by any person affected thereby, or, in
cases falling under paragraph (c), suo motu-
(a)
rescind or vary any judgment granted
by it in the absence of the person against whom that judgment was
granted;
(b)
rescind or vary any judgment granted
by it which was void ab origine or was obtained by fraud or by
mistake common to the parties;
(c)
correct patent errors in any
judgment in respect of which no appeal is pending;
(d)
rescind or vary any judgment in
respect of which no appeal lies.”
3.
Rescissions in the Magistrates Court are
governed by Rule 49 (1) of the Rules of the Magistrates Court, which
states as follows:
“
A
party to proceedings in which a
default
judgment
has
been given, or
any
person affected
by
such judgment, may within 20 days after obtaining knowledge of the
judgment serve and file
an
application
to
court, on notice to all parties to the proceedings,
for
a rescission or variation
of
the judgment and the court may, upon good cause shown, or if it is
satisfied that there is good reason to do so, rescind or vary
the
default judgment on such terms as it deems fit: Provided that the 20
days’ period shall not be applicable to a request
for
rescission or variation of judgment brought in terms of sub-rule (5)
or (5A).”
4.
It is trite law that,
to succeed in an application for rescission of a judgment, an
applicant must show ‘good cause’,
this would entail the
following:
“
(a)
He must give a reasonable explanation of his default. If it appears
that his default was wilful or that it was due to gross
negligence
the Court should not come to his assistance.
(b)
His application must be bona fide and not made with the
intention of merely delaying plaintiff's claim.
(c)
He must show that he has a bona fide defence to plaintiff's
claim. It is sufficient if he makes out a prima facie defence
in the sense of setting out averments which, if established at the
trial, would entitle him to the relief asked for. He need not
deal
fully with the merits of the case and produce evidence that the
probabilities are actually in his favour. (Brown v Chapman
(1938
TPD 320
at p. 325)
[1]
.
5.
Good
cause includes, but is not limited to the existence of a substantial
defence.
[2]
It is therefore
necessary to determine whether there is a satisfactory explanation of
the default, and whether the appellant
raised a bona fide and
reasonable defence.
BACKGROUND
6.
On 4 May 2021, the respondent issued
summons against the appellant, wherein the respondent claimed an
amount of R200 000.00
for the unlawful arrest and detention of
the respondent.
According
to the particulars of claim, the respondent alleges that he was
arrested on 31 August 2019 in Kimberley, without a warrant
of arrest
or any reasonable grounds on a charge of theft. He avers that
the arresting officer was on duty and was acting
within the scope of
his employment, and further that, as a result of the arrest, he was
unlawfully detained until 7 September 2019.
It is the respondent’s
case that the arrest was unlawful on one or more grounds, namely: the
arresting officer did not have
reasonable suspicion that the crime
was committed and abused his powers by arresting him and that he was
arbitrarily and without
good cause deprived of his freedom.
7.
Upon service of the summons, the
appellant filed its notice to defend and subsequently filed its plea
to the summons. The respondent
filed its discovery affidavit and on
25 June 2021, issued a notice in terms of rule 23 wherein it sought
the appellant to make
discovery within twenty days. Due to the
appellant’s failure to discover, on 16 November 2021, the court
a quo granted an
order which compelled the appellant to file its
discovery affidavit within five days. It is common cause that the
appellant filed
its discovery affidavit on 9 December 2021. On 7
December 2021, prior to the appellant having filed the discovery
affidavit, the
respondent launched an application to dismiss the
appellant’s plea and requesting that judgment on the merits be
granted
in favour of the respondent, on the basis that the appellant
failed to comply with the order granted on 16 November 2021. The
application
was served on the office of the state attorney on 9
December 2021.
8.
On 11 January 2022, an order was granted
in favour of the respondent, dismissing the appellant’s plea
and defence, merits
were granted in favour of the respondent and the
issue of quantum was postponed to 22 January 2022. On 17 March 2022,
a default
judgment was granted in favour of the respondent, wherein
the appellant was ordered to pay the respondent an amount of
R200 000.00
including interest at a rate of 7% from date of
service of summons until date of final payment including the
plaintiff’s
wasted costs on a party and party scale. This
default judgment was the subject of the application for rescission in
the court
a quo.
9.
The appellant launched the application
for rescission on 29 July 2022, wherein it sought the rescission of
the order granted on
17 March 2022, dismissing the appellant’s
plea. The appellant alleges that it became aware of the judgment on
11 July 2022,
upon being served with a writ of execution. On 14
September 2021, the appellant was served with a notice of
substitution of the
respondent’s attorney, the appellant’s
discovery affidavit was served on the erstwhile attorneys on 9
December 2021.
The appellant alleges that the employee responsible
for its files at the Office of the State Attorney Mr Visagie did not
receive
the notice of substitution and thus filed the discovery
affidavit on the respondent’s erstwhile attorneys and not his
current
attorneys of record. He submits that he made a
bona
fide
mistake by serving the
discovery affidavit on the previous attorneys of record and that the
appellant would have opposed the application
to dismiss the plea and
defence, on the basis that the discovery affidavit was filed on 9
December 2021. The appellant further
avers that the application was
not brought to the attention of the appellant as Mr Visagie was
conducting trials and on leave from
15 December 2021 to 10 January
2022, thus Mr Visagie only became aware of the judgment on 18 July
2022 when he uplifted the court
file.
GROUNDS
OF APPEAL
10.
The appellant raised various grounds of appeal
against the decision of the magistrate. However, the thrust of the
appellant’s
argument is that the magistrate heard and decided
the matter on the merits and failed to apply the reasonable prospects
of success
test. The appellant further avers that there was a
reasonable explanation for the late filing of the discovery affidavit
and that the late filing of the discovery affidavit was not
malicious. The appellant submits that the arresting officer had a
reasonable
suspicion upon arresting the respondent and did not need
to conduct any further investigations.
11.
The
respondent submits that the appellant did not place a
bona
fide
defence to justify the arrest of the respondent as required in terms
of section 40(1)(b) of the Criminal Procedure Act
[3]
.
The respondent submits that the affidavit of the arresting officer is
not commissioned and further does not refer to any investigations
done prior to the arrest. The respondent further avers that the
affidavit of Mr Basson, the deponent to the appellant’s
affidavit in the court
a
quo
,
constitutes hearsay evidence in that he was not there when the arrest
was effected. The respondent further submits that the
appellant
failed to attach the confirmatory affidavits of the clerks in the
office of the state attorney to attest to the version
of Mr Basson,
as a result the evidence in relation to the administration in the
office of the state attorney is hearsay evidence.
12.
Section
40(1) (b) of the Criminal Procedure Act prescribes arrest without a
warrant as follows: “
A peace
officer may, without a warrant, arrest any person whom he reasonably
suspects of having committed an offence referred to
in Schedule 1,
other than the offence of escaping from custody.”
13.
In
the matter
Biyela
v Minister of Police
[4]
the court held as follows in regard to a reasonable suspicion:
“
[34] The
standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch; it should not be an
unparticularised suspicion. It must be based on specific and
articulable facts or information. Whether the suspicion was
reasonable,
under the prevailing circumstances, is determined
objectively.
[35] What is
required is that the arresting officer must form a reasonable
suspicion that a Schedule 1 offence has been committed
based on
credible and trustworthy information. Whether that information would
later, in a court of law, be found to be inadmissible
is neither here
nor there for the determination of whether the arresting officer at
the time of arrest harboured a reasonable suspicion
that the arrested
person committed a Schedule 1 offence.
[36] The arresting
officer is not obliged to arrest based on a reasonable suspicion
because he or she has a discretion. The discretion
to arrest must be
exercised properly. Our legal system sets great store by the
liberty of an individual and, therefore, the
discretion must be
exercised after taking all the prevailing circumstances into
consideration.”
14.
What the court
a quo
fails to appreciate is that the arresting
officer did not need to conduct an investigation or enquiries prior
to the arrest, the
arresting officer needs only to form a reasonable
suspicion that a Schedule 1 offence has been committed based on
credible and
trustworthy information. Whether the information would
later, in a court of law, be found to be inadmissible is neither here
nor
there for the determination of whether the arresting officer at
the time of arrest harboured a reasonable suspicion that the arrested
person committed a Schedule 1 offence. The respondent in his papers
concedes that the arrest that took place on 30 August 2019
was
conducted by a police officer, who was acting in the scope of his
employment and further that the arrest was as a result of
the
complainant pointing out the respondent.
15.
The
respondent seeks to argue that the arresting officer arrested him
without obtaining evidence, and draws into question the reliability
of the information received from the complainant.
I
am persuaded that the arresting officer has a reasonable suspicion
and that in order to establish whether the respondent committed
the
offence, it is not required of the arresting officer to investigate
the matter first before arresting the respondent.
The
Supreme Court of Appeal in
Biyela
confirmed and ruled that the evidence or suspicion considered by the
arresting officer need
not
be
based on information that would subsequently be admissible in a court
of law.
[5]
Information regarded
by the arresting officer may be hearsay evidence. However, I am
of the considered view that the arresting
officer had reasonable
grounds to effect the warrantless arrest, and thus the arrest was not
unlawful.
16.
At the hearing of the matter the
respondent raised certain objections citing them as material defects
in the appellant’s case,
these issues were canvassed with the
appellant in the hope that the appellant would withdraw its appeal.
Firstly, the respondent
submits that the appellant had failed to
comply with Rule 51(4) of the Magistrates Court Rules, in that it had
failed to provide
security of costs; thus the appeal was not properly
prosecuted.
Secondly,
the respondent submits that the noting of the appeal was not in
compliance with Rule 50(1) of the Uniform Rules of Court,
in that the
notice has lapsed. Thirdly, the respondent submits that the
appellant’s application for
rescission was brought on a premature basis. The respondent submits
that the order was granted
on 11 January 2022 and the appellant
failed to comply with the order, and were thus in contempt. The
appellant only served the
discovery affidavit on 9 December 2021, but
failed to seek condonation for the late filing thereof. The
respondent submitted that
a party seeking indulgence from the court
must approach the court with clean hands.
17.
These objections were not raised in the
papers but were raised for the first time at the hearings and were
only informally discussed
with the appellant’s representatives.
These points ought to have been raised in the papers and prior to the
date of hearing,
in my view, entertaining them in this manner would
have caused serious prejudice to the appellant.
COSTS
18.
The normal rule is that costs
follow the result, but in light of the objections raised by the
respondent and the failures of the
appellant in having launched this
appeal, I am of the view that the respondent should not be ordered to
pay the cost of the appeal
and each party pay their own cost.
The
following order is made:
1.
Leave to appeal is upheld.
2.
The order of
the court a quo is set aside and replaced with the following order:
‘
1.
Rescission of the judgment by default granted on 17 March 2022
is granted; and
2.
The Respondent is ordered to pay the costs of this application.”
3.
Each party is
to pay their own costs.
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
A
STANTON
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the Appellant:
Ms N.
Panduva
On
the instruction of:
Office
of the State Attorney
On
behalf of the Respondent:
Adv
H. Du Plessis
On
the instruction of:
PGMO
Attorneys Kimberley
[1]
Grant
v Plumbers (Pty) Ltd
1949
(2) SA 470 (O)
476–7
[2]
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) 352G
[3]
51
of 1977
[4]
2023 (1) SACR 235 (SCA).
[5]
Biyela v
Minister of Police (supra)
at
para 33 and 35.