REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No.: 2630/2012
(1) REPORTABLE : NO
(2} OF INTEREST TO OTHER JUDGES: NO
(3} REVISED .
25/03/2025 •
In the matter between:
MINISTER OF POLICE Applicant
and
H RAFIKI Respondent
In re:
Case No: 2630/2012
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HERERIMANA RAFIKI
and
THE MINISTER OF POLICE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY
JUDGMENT
MNGQIBISA-THUSI J Plaintiff
1st Defendant
2nd Defendant
[1] The respondent , Mr Hererimana Rafiki, instituted an action for general and special
damages against the applicant, the Minister of Police (as first defendant) and the
City of Tshwane Metropolitan Municipality (as the second defendant) after
allegedly being shot with rubber bullets by members of the first and second
respondents on 21 September 2011 (the main action). As a result of being shot in
the eye, the respondent sustained a shattered cavity and eyeball.
[2] In pursuance of the prosecution of the claim against the applicant and the City of
Tshwane , a pre-trial meeting was held on 12 May 2015. Counsel for the City of
Tshwane posed certain written questions to the respondent's legal representative
which were responded to in writing by the responden t's legal representative 13
May 2012.
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[3] The trial proceeded in March 2018. However, during the trial proceedings, counsel
for the respondent applied for a postponement of the trial as it appeared that
instructions he received from the respondent with regard to when (in terms of time
period) the shooting occurred, were inconsistent with the written answers given by
the respondent 's legal representative and recorded in the pre-trial minute. In
granting the postponement, the court ordered the respondent to bring a
substantive application for leave to amend the answers in the pre-trial minute.
[4] The respondent launched an application for leave to amend the pre-trial minute of
12 May 2015 in relation to the written responses referred to in paragraph 3 above.
The application was granted by default on 22 February 2022 as neither of the
defendants had indicated opposition to the application .
[5] The claim against the second defendant was withdrawn after the respondent and
the City of Tshwane reached a settlement.
[6] The applicant now seeks the rescission of the default order of 22 February 2022
granting leave to the respondent to amend its answers as recorded in the pre-trial
minute of 12 May 2015 and a declaration that the respondent's answers to the
second defendant's questions at the pre-trial conference reduced to writing on 13
May 2015, are reinstated as the recorded answers to such questions .
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[7] The applicant seeks the rescission of the default order on the ground that the order
was granted erroneously granted or erroneously applied for, alternatively , under
common law.
[8] Rule 42(1)(a) provides that:
"A court may, in addition to any other powers it may have, mero motu or upon
application of any party affected, rescind or vary:
(a) an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby".
[9] This means that the applicant has to show that the court in granting the default
judgment had committed an error "in the sense of a mistake in a matter of law
appearing on the proceedings of a Court of record1. If the applicant can prove
the error committed by the court, it is not necessary for him to explain his default.
[1 O] In Kgomo and Another v Standard Bank of South Africa and others2, in relation to
the application of uniform rule 42(1 )(a), the court held that:
"[11.1] the rule must be understood against its common law background ;
[11.2) the basic principle at common law is that once a judgment has been
granted, the judge becomes functus officio, but subject to certain
exceptions of which rule 42(1 )(a) is one;
[11.3] the rule caters for a mistake in the proceedings ;
1 Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (ECO).
2 2016 (2) SA 184 (GP).
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[11.4] the mistake may either be one which appears on the record of
proceedings or one which subsequently becomes apparent from the
information made available in an application for rescission of judgment;
[11.5] a judgment cannot be said to have been granted erroneously in the light
of a subsequently disclosed defence which was not known or raised at
the time of default judgment;
[11.6] the error may arise either in the process of seeking the judgment on the
part of the applicant for default judgment or in the process of granting
default judgment on the part of the court; and
[11.7] the applicant for rescission is not required to show, over and above the
error, that there is good cause for the rescission as contemplated in rule
31 (2)(b)."
[11] Under the common law, in order for the court to grant an order rescinding a
previous order or judgment the applicant has to show sufficient cause. In Chetty
v Law Society, Transvaa/3 the court held that:
"But it is clear that in principle and in the long standing practice of our Courts two
essential elements of "sufficient cause" for rescission of a judgment by default are:
(i) That the party seeking relief must present a reasonable and
acceptable explanation for his default; and
(ii) That on the merits such party has a bona fide defence, which prima
facie carries some prospect of success."
[12] The deponent to the applicant's founding affidavit alleges that the respondent was
not aware of the amendment application or about the set-down for hearing of the
application on 22 February 2022. It is the applicant's contention that the procedure
3 1985 (2) SA 756 at 765 8-C.
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followed in the application to amend the pre-trial minute was flawed in that there
was no proper service of the application on the applicant.
[13] Even though the applicant alleges that he was not aware of the amendment
application and the set-down of 22 February 2022, as appears from the documents
filed of record and uploaded on Caselines , it cannot be disputed that there is a
notice of set-down with a date stamp of the office of the State Attorney's office,
indicative of the fact that service of the notice of set-down was in fact effected on
the State Attorney's office on 19 November 2021. It is further the applicant's
contention that even if the notice of set-down bears the date stamp of the State
Attorney's office, that is not proof that the notice of set-down was actually served
on the State attorney's office as the signature on the date stamp was still being
verified by the office of the State Attorney.
[14] According to the respondent , the notice of motion in the application to amend was
served under the cover of the notice of set-down and that both documents were
physically served on the State Attorney's office on 19 November 2021. Further
that although the notice of set-down bears the State Attorney's date stamp, for
whatever reason, the person who received service of the two documents , did not
attach the date stamp of the office on the notice of motion of the application .
[15] Counsel for the applicant further submitted that based on the respondent 's own
admission that the notice of motion was served under cover of a notice of set-down
when it was received at the State Attorney's office on 19 November 2021, such
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service could not warn the State Attorney that there is a new application that was
been brought against the State. Mr Govender who deposed to the founding
affidavit on behalf of the applicant alleges that the application to amend the pre
trial minutes was never received by the State Attorney's office. Counsel argued
that it does not make sense for a notice of set-down to be served when the main
application has not been served. Counsel argued that under those circumstances
there was no service of the application as it is apparent from the notice of motion
that there is no date stamp of the State Attorney's office confirming receipt of the
application.
[16] Counsel for the applicant argued that there was therefore no proper service of the
application for leave to amend on the applicant and that the order granted allowing
the amendment of the pre-trial minutes was erroneously granted.
[17] The applicant's contention is that the uploaded notice of set// down properly. It is
common cause that the application seeking leave to amend the pre-trial minutes
was served under the cover of a notice of set-down. As is apparent from the
documents uploaded on Caselines the notice of set-down has the stamp of the
State Attorney's office which is dated 19 November 2021.
[18] On behalf of the respondent the following submissions were made. On 14
September 2021 the following documents were uploaded on Caselines : the
application was for leave to amend the pre-trial answers; a 'compliance
declaration '; a 'Date Approval form and Date of Set Down-Provisional ' form.
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Counsel for the respondent conceded that the notice of motion for the amendment
application was served, attached to the notice of set-down and that both were
served on the State Attorney's office on 19 November 2021 and that the person
receiving the documents only put a stamp on the notice of set-down to which the
application for leave to amend the answers was attached. This submission is
confirmed by Mr Henk Meyer who deposed to a confirmatory affidavit to the
respondent 's opposing affidavit in this application that he actually served the notice
of set-down to which was attached the notice of motion in the application for the
amendment of the pre-trial minutes on 19 November 2021. Counsel for the
respondent further submitted that on 1 February 2022 prior to the order which is
sought to be rescinded , was granted, and in accordance with the Practice
Directive, the respondent's attorney attended the office of the State Attorney to
serve an index together with a complete set of paginated papers of the application .
[19] Counsel argued that since the application was served on the State Attorney's office
on 19 November 2021 and also on 2 February 2022, the applicant chose not to
participate in the proceeding dealing with the application to amend the pre-trial
minute. Council submitted that even if it were to be assumed that the applicant
did not receive the notice of motion on 19 November 2021, on receipt of the index
and the paginated papers of the application , the applicant still had the opportunity
to oppose the amendment application by filing a notice of intention to oppose and
appear in court on 22 February2022 to oppose the application .
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[20] The second point of opposition raised by the respondent to the granting of the
order sought by the applicant is that in terms of uniform 42(1 )(a), an application of
an order erroneously sought or granted must be launched without a unreasonable
delay4. Counsel for the respondent further submitted that on 28 February 2022, a
letter was sent by email to Mr Govender, the relevant State Attorney handling this
matter which in part reads as follows:
"Find attached hereto a draft order which was made an order of court on the 2
February 2022, allowing the plaintiff/applicant to amend its answers to the second
defendant's pre-trial questions answered on 12 May 2015."
"Also find attached hereto our amended answers and these documents, together
with the endorsed court order will be served on your offices in due course. "
[21] Counsel further submitted that a further pre-trial was held between the parties on
20 September 2022 and in a joint pre-trial minute signed by the parties, the
following is recorded:
"The plaintiff obtained a court order to amend the answers to the pre-trial
questions on 22 February 2022 and a formal amendment has been effected
in accordance to the court order of Justice Van der Westhuizen ."
4 Reference in this regard was made to Colyn v Tiger Foods Industries Ltd tla Meadow Feed (Cape) where
the court held that the purpose of rule 42(1)(a) is to correct expeditiously .
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[22] Counsel for the respondent argued that this is indicative of the fact that by 28
February 2022 the State Attorney's office was aware that a draft order had been
granted. The amended answers were served on the State Attorney on 7 March
2022. Counsel submitted that it was disingenuous for the applicant to claim that it
only got knowledge of the court order on the 23 May 2023.
[23] Counsel argued that despite the State Attorney's office having knowledge of the
order on 28 February 2022, this application was only instituted approximately 16
months later.
[24] With regards to the arguments that service of the order on the 2 February 2022 did
not provide or give the applicant sufficient time to oppose the application counsel
for the respondent argue that the application and application to amend is an
interlocutory application and it is does not mean that the long form needs to be
used.
[25] It cannot be disputed that on 19 November 2021 the respondent effected service
of the notice of set-down of the application on the office of the State Attorney as
evidenced by the date stamp reflected. As contended for by the respondent ,
attached to that notice of set-down was a notice of motion of the application for
leave to amend the pre-trial minute of 13 May 2015. The denial of receipt of the
notice of set-down by the applicant is not plausible when one takes into account
the date stamp put on the notice of set-down. Invariably , one would expect that
when the state attorney responsible for dealing with the matter received the notice
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of set-down, it would naturally be expected that he/she would peruse the papers
and would have realised that a notice of motion was attached to the notice of set
down. Even if the State Attorney did not find the notice of motion as alleged to be
attached to the notice of set-down, one would have expected the relevant state
attorney to have inquired from the respondent's attorney as to what the served
notice of set-down related to. Moreover, 01 February 2022 the respondent's
attorney attended at the State Attorney's where the index and paginated complete
set of the application were delivered. The papers delivered on that day all bear
the date stamp of the State Attorney's office.
[26] Even if one was to accept that by 01 February 2022 there was insufficient time
given to the applicant to file its notice of intention to oppose and its answering
affidavit before the date of the hearing of the application on 22 February 2022, the
applicant's representative could have appeared in court as directed so by the
notice of set-down already served on the State Attorney's office on 19 November
2021 and 1 February 2022 and let the court hearing the matter be aware that the
application was now opposed as the applicant had not been served with the
application. The hearing of the application would not have proceeded by default
under the circumstances.
[27] I am therefore satisfied that the applicant has not made out a case for the
rescission of the order dated 22 February 2022 on the basis that the application
was not served or not properly served on the applicant.
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[28] Furthermore, the applicant must have become aware of the order granted on 22
February 2022 by at least the 7 March 2022 when the court endorsed draft order
was served on the State Attorney's office but failed to apply for the rescission of
the order within reasonable time and have failed to give a reasonable explanation
for such failure. The applicant's explanation that it only became aware of the order
in May 2023 is not plausible bearing in mind the chronology of events from the time
the order was granted, including the contents of the joint signed pre-trial minute of
20 September 2022.
[29] In the result, the following order is made:
'The application is dismissed with costs, including costs of two counsel.'
NP MNGQIBISA-THUSI
Judge of the High Court
Date of hearing :30 October 2024
Date of Judgment :25 March 2025
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Appearances
For the Applicant: Adv M Bothma (Instructed by The State Attorneys , Pretoria)
For the Respondent: Adv G Bester SC with Adv PA Venter (Instructed by Loubser Van
Der Walt Inc
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