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2024
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[2024] ZAECQBHC 59
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Nelson Mandela Bay Municipality v Harding (2446/2022) [2024] ZAECQBHC 59 (8 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 2446/2022
Date
Heard: 12 September 2024
Date
Delivered: 08 October 2024
In
the matter between:
NELSON
MANDELA BAY MUNICIPALITY
Applicant / Defendant
and
CHRISTOPHER
HENRY HARDING
Respondent / Plaintiff
JUDGMENT
MULLINS
AJ:
[1]
Alleging that on 9 March 2021 he fell into an open stormwater drain
the Respondent
(as plaintiff) instituted an action against the
Applicant (as defendant) for damages arising out of the injuries he
sustained as
a result thereof.
[2]
The Applicant defended the action and in due course the matter
proceeded to trial
on the merits only.
[3]
On 5 December 2023 the trial judge handed down judgment, the order
reading as follows:
“
1.
The defendant is ordered to pay the plaintiff’s proven damages
arising from the
plaintiff’s fall into an uncovered stormwater
drain on 9 March 2021;
2.
The defendant is ordered to pay the plaintiff’s taxed costs of
suit on
a party and party scale in respect of the separated
proceedings on liability.”
[4]
Thereafter, on 4 June 2024 the parties reached an agreement, which
was made an order
of court, in terms of which the Applicant would pay
to the Plaintiff R650,000.00 in full and final settlement of his
claim for
general damages, the balance of the damages claim being
postponed to an arranged date.
[5]
Significantly, the court order provided that the general damages was
to be paid within
30 days of the order, i.e., by 3 July 2024.
[6]
The Applicant failed to make payment by 3 July 2024 and in the
absence of any communication
from the Respondent explaining the
failure, on 7 August 2024 the Respondent’s attorney applied for
and was issued with a
writ of attachment, which was sent to the
Sheriff for execution.
[7]
Before the writ could be served and executed, on 20 August 2024 an
employee of the
Applicant (not its attorney of record) contacted the
Respondent’s attorney’s office requesting the firm’s
bank
details, which were duly furnished.
[8]
Notwithstanding this development, on 21 August 2024 the Sheriff
served the writ and
in the process attached a number of the
Applicant’s motor vehicles, being nine in all. I am
advised that two of the
vehicles have been removed by the Sheriff.
[9]
On 23 August 2024 the Applicant’s attorneys wrote to the
Respondent’s
attorneys advising them that a criminal case of
“
alleged fraud
” had been opened and requesting
that pending the finalisation of the criminal case the Respondent
agree to a stay of the
execution process and the postponement of the
taxation of the bill of costs in respect of the trial on the merits
which had been
set down for later that month, failing which the
Applicant would have no alternative but to approach the court.
A response
was requested by 26 August 2024.
[10]
As the Respondent’s attorney did not revert by the 26
th
,
on 4 September 2024 this application was launched on an urgent basis,
seeking the following relief (excluding prayer 1, which
deals with
urgency):
“
2.
That execution of the writ of attachment dated August 2024, including
the removal of
the attached movables, recovery in terms of the taxed
allocatur dated 28 August 2024, and the trial proceedings in respect
of the
quantum (set down for 19 March 2025), and/or any proceedings
ancillary thereto, be and are hereby stayed pending the final
determination
of an action based on fraud, which is to be instituted
by the applicant within 30 (thirty) days of the granting of this
order;
4.
[1]
That respondent be ordered to pay the costs of this application.”
[11]
The application was opposed by the Respondent.
[2]
[12]
On behalf of the Applicant a legal adviser in its employ states as
follows:
“
9.
On Monday, 19 August 2024 I received information that the respondent
did not injure
himself by falling into an uncovered or open
stormwater drain on 9 March 2021 in Despatch, as he had alleged and
testified during
the trial, which resulted in judgment being granted
in his favour, see annexure “KN1” hereto. I was
informed
that he had injured himself in another manner.
10.
In light of the above information received, I was duly authorized to
open a case on behalf
of the applicant with the South African Police
Service, to investigate the alleged fraud, as set out above.
11.
I confirm that on 22 August 2024 a case was opened with the South
African Police Service
Despatch under case number 93/08/2024.”
[13]
In support thereof a detective warrant officer in the South African
Police Service confirms in
his first affidavit that a complaint had
been laid and that:
“
5.
At this stage, the investigation is in its very early stages and
therefore I am not in a position to
disclose any information and/or
documentation contained in the docket and pertaining to the
investigation, as it could
inter alia
jeopardise the
investigation and the safety of the witnesses.”
[14]
The detective followed up his first affidavit with a further
affidavit in which he states:
“
6.
I have compared Mr Harding’s particulars of claim with the
witness statement
contained in the docket, which I cannot disclose
(for the reasons set out in my affidavit of 28 August 2024), and I
can confirm
that the two versions are irreconcilable.”
[15]
In his answering affidavit the Respondent denies having committed
fraud and says:
“
5.
I testified under oath at the merits trial in this Honourable Court
as to what occurred,
I told the truth, I stand by the evidence that I
gave. I deny that I committed fraud and I am dismayed by the
unfounded allegation
against me.”
[16]
He states further that he has not been arrested, nor has he received
a summons, nor has he been
contacted by the police.
[17]
Dealing with the affidavit of the Applicant’s legal adviser the
Respondent’s attorney,
who filed a supporting affidavit, points
out that the allegation of fraud is inadmissible hearsay in that the
deponent does not
say:
(a)
Who furnished the information;
(b)
What the information consisted of;
(c)
How it came about that he received the information;
(d)
Why he did not obtain an affidavit from the person who furnished this
information;
[18]
He states further that it is significant that the criminal charge was
apparently laid the day
after the writ had been served (21 August
2024) despite the fact that on his extremely vague and
unsubstantiated version “
he had received the information on
19 August 2024
.”
[19]
In addition to challenging urgency, the Respondent submitted that the
requirements for an interim
interdict had not been established.
[20]
The Applicant filed a brief replying affidavit attested to by the
legal adviser, who responded
to the criticism of the paucity of the
Applicant’s case as follows:
“
6.
With regard to the information that I have received, I refer to the
affidavits of the
investigating officer, Detective Warrant Officer
Lerm.”
[21]
The matter may be summed up as follows:
(a)
Alleging that he had fallen into an open stormwater drain the
Respondent issued summons
claiming damages;
(b)
The matter went to trial on the merits, judgment being granted in his
favour;
(c)
The parties settled the Respondent’s general damages with the
Applicant agreeing
to pay the Respondent R650,000.00. The
settlement agreement was made an order of court;
(d)
When the Applicant failed to make payment in accordance with the
agreement, which had been
made an order of court, the Respondent’s
attorney issues a writ of attachment, which the Sheriff duly
executed;
(e)
Alleging that it had information, which it does not specify, from a
source, which it does
not identify, that the claim is fraudulent, in
what manner it is not stated, the Applicant brought this application
on an urgent
basis, pending an action based on fraud.
[22]
An interim interdict is a summary and extraordinary remedy for the
prevention of an unlawful
interference, or threatened interference,
with another’s rights pending further proceedings. In
this case the Defendant
seeks to “freeze” the
status
quo
pending an action to declare the Plaintiff’s delictual
claim fraudulent.
[23]
It goes without saying that an applicant who seeks an interdict (in
this case an interim one)
must at the very least lay some basis for
the relief it seeks. In the present matter the Defendant makes
out absolutely no
case, relying instead on the baldest of
allegations, which are, as pointed out by the Respondent’s
attorney, hearsay.
It has been stated that in circumstances
such as the present when fraud is alleged three requirements need to
be proven, namely:
(a)
Incorrect or misleading evidence was tendered at the trial;
(b)
The evidence was tendered fraudulently with the intention to mislead
the court; and
(c)
The false evidence diverged from the true facts to such an extent
that the court,
had it been aware thereof, would have given a
different judgment.
[24]
The test to be applied was formulated by De Villiers JA in
Schierhout
v Union Government
[3]
(at p. 98):
“
Now a final
judgment of a court of law being
res
judicata
is not to
be lightly set aside. On the other hand it stands to reason
that a judgment procured by the fraud of one of the
parties whether
by forgery, perjury or in any other way such as fraudulently
withholding material documents, cannot be allowed
to stand.
That was the Roman law (C. 7. 58), and that is our law (Voet
42.1.28).
But baseless charges
of fraud are not encouraged by courts of law. Involving as they
do the honour and liberty of the person
charged they are in their
nature of the greatest gravity and should not be lightly made, and
when made shall not only be made expressly
but should be formulated
with a precision and fullness which is demanded in a criminal case.
In the application now before
the Court, it is a matter of the utmost
difficulty to ascertain the exact charges of fraud against the
Minister
.” (Underlined for emphasis).
[25]
And in
Mabuza
v Nedbank Ltd & Another
[4]
the following was stated (at para [17]):
“
[17]
In the matter of
Minister of Local Government and Land Tenure
and Another v Sizwe Development and Others: In re Sizwe Development v
Flagstaff Municipality
it was held that:
The principles governing
the setting aside of a final judgment on the grounds of fraud are
succinctly set out by the learned authors
Herbstein and van Winsen
in
The Civil Practice of the Superior Courts of South
Africa
3rd ed at 470. These principles are set out
hereunder:
(1)
A final judgment is
res judicata
and will not be
lightly set aside, but the Court will do so if it was procured
by the fraud of one of the parties, whether
such constituted forgery,
perjury or any other fraudulent act such as the fraudulent
withholding of material documents —
Schierhout v Union
Government
1927 AD 94
at 98.
(2)
The
successful party must have been a party to the fraud —
Makings
v Makings
1958
(1) SA 338
(A)
.
(3)
It must be shown that, but for the fraud, the Court would not
have granted the judgment —
Robinson v
Kingswell
1915 AD 277
at 285.
(4)
There must have been causal connection between the fraud and the
judgment.
(5)
The fraud can consist of withholding material information from the
Court with fraudulent
intent.
(6)
The fact
that the judgment was obtained by consent is not a bar to action
to have it set aside on the grounds of fraud —
Rossouw
v Haumann
1949
(4) SA 796 (C)
at 800.”
[26]
From the aforegoing it is evident that the test is an onerous one and
a judgment will not easily
be set aside where fraud is alleged.
[27]
What is perplexing is that, if it has information which establishes
that the Respondent knowingly
gave false evidence, the Applicant does
not disclose the nature thereof. Even if the police have valid
grounds for not disclosing
the contents of a docket at this stage,
the same consideration does not apply to the Applicant’s legal
adviser. In
fact, if the Applicant does have information which
establishes fraud on the part of the Respondent it is duty bound to
disclose
the nature thereof. Its failure to do so is
inexplicable. In fact, it is inexcusable.
[28]
One is left with the distinct impression that the Applicant has
another motive for seeking to
avoid satisfying the court order.
What that motive might be belongs to the realms of speculation, which
exercise it would
be in inappropriate to embark upon.
[29]
No case is made out that the Respondent committed fraud. The
application amounts, to quote
Schierhout
, a “
baseless
charge of fraud.”
In the circumstances the Applicant
does not satisfy even the first requirement for an interim interdict,
namely that on a
balance of probabilities the Applicant has
established a
prima facie
right, though open to some doubt
.
[30]
It is accordingly not necessary to deal with the other requirements
for an interim interdict.
[31]
There is another aspect to consider. The Applicant has applied
for an interim interdict
pending an action based on fraud. It
was argued on behalf of the Respondent that the correct procedure is
an application
for the rescission of the judgment based on the common
law, fraud being one of the grounds for the rescission of a
judgment
in terms thereof.
[32]
Thus, why the Applicant saw fit to seek an interdict pending a
separate action is unclear.
It should have brought an
application for the rescission of the judgment, properly motivated,
together with a prayer for the stay
of the execution of the
judgment.
[33]
In conclusion the appeal stands to be dismissed. Insofar as
costs are concerned, I am in
agreement with the Respondent’s
counsel’s submission that bringing the application was
reckless, if not malicious,
and that the Respondent should not be out
of pocket as a result.
[34]
The following order will issue:
1.
The application is dismissed.
2.
The Defendant is ordered to pay the costs on an attorney and client
scale.
NJ
MULLINS
(ACTING
JUDGE OF THE HIGH COURT)
REPRESENTATION
:
Obo
the Applicant/Defendant:
Adv. T. ZIETSMAN
Instructed
by:
BLC ATTORNEYS
4 Cape Road
Central
GQEBERHA
Obo
the Respondent/Plaintiff:
Adv. D. NIEKERK
Instructed
by:
JOCK WALTER ATTORNEYS
246 Main Road
Walmer
GQEBERHA
[1]
There being
no paragraph 3.
[2]
Why the
Sheriff was not cited as an interested – and necessary –
party was not challenged by the Respondent. Because of the
order I intend to make nothing turns on the issue.
[3]
1927 AD 94
[4]
2015 (3) SA
369
(GP).