Minister of Police and Another v Molatleghi (60217/2013) [2018] ZAGPPHC 633 (23 August 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 60217/2013

In the matter between:

MINISTER OF POLICE

1st Applicant

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Applicant

and

L H MOLATLEGHI

Respondent

JUDGMENT

MUDAU J

[1] This is an application for rescission of judgments granted by default

on 17 May 2017 and 11 January 2018, per Louw J and Maumela J respectively, (as well as other ancillary relief) pursuant to applications made to this Court. The application is brought in terms of Rule 42(1)(a) of the Uniform Rule$ of Court. Initially, the application served before my sister, Teffo J, on 1 February 2018 by way of urgency as contemplated in Rule 6(12) of the uniform Rules of Court. On that occasion, the trial set down for 6 February 2018, was postponed sine die pending the determination of this application with the question of costs reserved. The background to this application being that, the respondent on or about September 2013 issued summons against the applicants in this Court in which he sought, inter a/la, to be compensated for alleged unlawful arrest and detention as well as malicious prosecution. On 19 April 2016, the trial was postponed to secure the required police docket with CAS number 186/03/2010, regarding the matter. Subsequently, the respondent caused for a Rule 35(3) notice to be issued and served on the state attorney, the legal representatives of the applicants.

[2] The applicants aver in the founding affidavit that this matter was

previously dealt with by Mr Khosa whose reference number is "241" in. the state attorney's office. The matter was subsequently transferred to Ms Masi of the same office, whose reference number is

"243". In a letter (FA 2) dated 12 April 2016 which was received and read by the respondent's attorney of record, Ms Masia advised the respondent's attorneys that she only received the notice in terms of Rule 37(2)(a), served on 19 January 2016, on that day (12 April 2016). She further advised that the applicants could not attend the pre-trial conference as they were unaware that it was taking place on 15 March 2016. Significantly, she also advised the respondent's attorneys to quote the reference:6988/2013/Z 41 (243) and direct all inquiries to her (Ms MMB Masia) in all subsequent correspondence.

[3] The applicants aver that the office of the state attorney is one of the biggest, if not the biggest law firm in Pretoria, which employs a vast number of attorneys that deal with thousands of matters. The use of a correct reference number ensures that pleadings and correspondence addressed to the state attorney, reach the correct

attorney for the necessary attention. On 27 January 2017, a similar request was made to the respondent's attorneys as per another letter ("FA 3"). It is not in dispute that this letter was received and read by the respondent's attorneys. Subsequently, on 25 April 201 the respondent served a Rule 35(3) notice (the notice to compel) with an incorrect reference number on the applicants'

attorneys. The applicants aver that, Ms Masia never received the Rule 35(3) notice.

[4] Consequently, the respondent was granted an order on 17 May 2017,

compelling them to furnish the respondent with the required docket within 10 days after receipt of the order. Ms Masia disputes having received the order, as it once again had an incorrect reference number ("FA 6"). The respondent took a further step in the form of an application to strike out the applicants' defence which once again, had an incorrect reference, and which was brought to Ms Masia's attention by "sheerluck". By way of a letter dated 19 July 2017, addressed the respondent's attorneys; the applicants' attorneys raised their grave concern regarding lack of cooperation, in spite of letters advising them of the changes in respect of the reference number and the name of the attorney dealing with the matter. The respondent's attorneys were advised to provide consent to have their 17 May 2017 order rescinded, failing which the applicants would make an application to have the order rescinded, coupled with a request for punitive costs.

[5] The application to strike the applicants' plea was initially set down on the unopposed court roll for 17 October 2017. However, in a letter addressed to the applicant's attorneys dated 20 July 2017, correctly referenced, the respondent's attorneys committed not to proceed with the application to strike and dismiss the applicants' plea and defence, provided they were furnished with the contents of the "stock theft case docket" as requested on numerous previous occasions. Upon receipt of the contents of the case docket they will remove their application from the roll with no order as to costs. Consequently and on 2 August 2017, the applicant's attorneys served on the respondent's attorneys, a discovery affidavit in which the docket with CAS number 186/3/2010 was discovered. The applicants further submitted in their discovery affidavit that they did not have any other documents other than and except the documents which were the subject of the discovery. Interestingly, these were copies of the content of a police docket from Taung with CAS number 186/03/2010, obtained from the respondent in 2015 already which the respondent discovered as per annexure "FA11".

[6] Subsequently, on 4 August 2017, the respondent's attorneys wrote a letter to the applicant's attorneys in which they insisted that the applicants' attorneys had failed to comply with the court order dated 17 May 2017, in which they were ordered to provide the "stock theft police case docket under CAS number: 186/03/2010." They also advised that they had no option but to proceed with an application to have the applicants' plea and defence struck out. The appilcants' attorneys responded to this letter on 7 August 2017, advising that they had never admitted to having the stock theft docket in their possession. Instead they discovered the very same docket which the respondent had obtained previously in terms of a court order for, Taung CAS number 186/03/2010. They further advised the respondent’s attorneys to remove the application and that the corresponding notice be served. According to the applicants the respondent ignored this letter.

[7] According to the applicants, it was only on 17 January 2018, that their attorneys received written communication from the respondent's attorneys informing them that the application to strike out the applicant's plea was successfully granted by this court on 11 January 2018. It was only then they first became aware that the matter was set down for trial on 6 February 2018. However neither the notice of set down, nor of re-enrolment was served with the wrong reference number although it was once again used as an excuse.

[8] The applicants contend that the judgment granted on 17 May 2017, was erroneously granted and would not have been granted had the court been made aware of the fact that the respondent was already in possession of the same docket contents being requested, the subject of the court order, since 2015. The applicants also contended that the application brought leading to the 17 May 2017 order, was not only without legal foundation, but there was no proper service of the notice on the legal representatives of the applicants. The applicants further contended that the judgment granted on 11 January 2018, was also erroneously granted for the same reasons alluded to above.

[9] In opposing this application, the respondent's attorney of record, Mr Van Wyk, deposed to an affidavit in which he avers that the Rules of Court place no obligation on the respondent to refer to any reference number. Of importance is that the office of the state attorney has been the applicants' attorneys of record throughout these proceedings. Of further relevance is the fact that Mr Khoza is still an employee of the state attorneys' office. According to the respondent, in this case, service was at all times proper. Due to none of the applications brought by the respondent being opposed by the applicants, despite proper service, the respondent was entitled to the judgments. Importantly, the applicants failed to provide the "stock theft case docket whereas their attorneys were aware of the pending application to strike and dismiss their defence.

[10] Rule 42(1)(a) creates a procedural step which enables the Court, mero motu or upon application, to rescind or vary expeditiously, an order or judgment granted erroneously in the absence of the party affected

thereby. It is trite that a default judgment is considered to be erroneously granted if there existed, at the time of its issue, a fact of which the judge was unaware, which would have precluded the granting of the judgment and which would have induced the judge, if he had been aware of it, not to grant the judgment. Under common law, in order to succeed with an application for rescission of a judgment an applicant must show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiffs claim which prima facie has some prospect of success (see Grant v Plumbers (Pfy) Ltd[1] , HDS Construction (Pty) Ltd v Wait[2], Chetty v Law Society, Transvaal[3]). However, a Rule 42(1)(a) applicant need not show good cause (see Topol and Others v LS Group Management Services (Ply) Ltd[4])

[11] It is trite that the following principles govern rescission under Rule 42(1)(a) (see by way of example Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)[5]; Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd[6] and Kgomo v Standard Bank of South Africa[7]

(a) the Rule must be understood against its common-law background;

(b) 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;

(c) the Rule caters for a mistake in the proceedings;

(d) 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;

(e) 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;

(f) 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

(g) 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).

[12] Accordingly, it is generally accepted that a judgment is erroneously granted if there existed at the time of its issue, a fact of which the Court was unaware, which would have precluded the granting of the judgment and which would have Induced the Court, if aware of it, not to grant the judgment (see Nyingwa v Moolman NO[8] ; Naidoo and Another v Matlala NO and Others[9] ; Thomani and Another v Seboka NO and Others[10] ; Occupiers, Berea v De Wet NO and Another[11] ) .

[13] Rule 4(1)(a) provides that " [s]ervice of any process of the court directed to the sheriff and subject to the provisions of paragraph (aA) any document initiating application proceedings, shall be effected by the sheriff in one or other of the following manners:

' (vi) by delivering a copy thereof to any agent who is duly authorized in writing to accept service on behalf of the person upon whom service is to be effected;...'

In terms of Rule 4A(1) "Service of all subsequent documents and notices, not falling under Rule 4(1)(a), in any proceedings on any other party to the litigation may be effected by one or more of the following manners to the address or addresses provided by that party under Rules 6(5)(b), 6(5)(d)(i), 17(3), 19(3) or 34(8), by-

(a) hand at the physical address for service provided, or

(b) registered post to the postal address provided, or

(c) facsimile or electronic mail to the respective addresses provided."

[14] In this matter however, the applicants timeously brought to the respondent's attention that the matter was being dealt with by a different attorney in their attorneys' offices which required that all processes must bear the relevant reference number. It is not an issue in this matter that the respondent failed to adhere to this request in numerous instances. Whereas the relevant Rule is silent with regard to the reference number, and one might add, proper names of the parties involved, to my mind it goes without saying that if an incorrect name or reference is made on the notice, the recipient of such notice can be highly inconvenienced with regard to timeous response and attendance to pleadings and notices. Whether service of a process is proper and effective will depend on the facts of each case. In this case however, I do not find that service of processes was proper and effective, given the fact that the reference number to the processes was incorrect, in spite of an objection by the applicant's attorneys to such improper service.

[15] The applicants were on 17 May 2017, ordered to furnish the respondent with the contents of the Taung police docket under CAS number 186/03/ 2010, and which the applicants got to know upon discovery that the docket sought to be discovered, is the same docket comprising hundred pages that the respondent had in their possession all along. Had the Court been made aware, there is no doubt in my mind that it would have precluded granting the judgment. Police dockets are identified

by CAS numbers or a serial number when the complainant is first registered at the police station. This fact was not disclosed to the Court who granted judgment in the respondent's favour on 17 May 2017. Based on the 17 May 2017 judgment the applicant's plea and defence were struck out on 11 January 2018. It follows accordingly that, if material facts are not disclosed in an ex parte application or if fraud is committed (i.e. the facts are deliberately misrepresented to the Court or not disclosed) the order will be erroneously granted (see Naidoo v Matlala NO supra at 153C-E).

[16] In argument before me counsel for the respondent was at pains in conceding that the rescission application may be granted as an equitable decision given the circumstances, provided that the respondent is not mulcted with costs. Accordingly, I find that the judgments were erroneously granted within the meaning of Rule 42(1)(a). As both judgments were granted in the absence of the applicants under circumstances where they had demonstrated and have such a direct and substantial interest, on this basis applicants are entitled to rescission of the judgments granted against them. The applicants were forced at great inconvenience and costs to approach this Court on an urgent basis whereas they had warned the respondent upfront of the irregular conduct. To my mind the applicants have established mala tides on the part of the respondent's attorneys. It is certainly not a bona fide error. The general rule is that the unsuccessful party is mulcted in costs. There is no reason to depart from the general rule in this instance. A punitive costs order is under the circumstances also justified.

[17] I accordingly make the following order:

1. The judgment granted by default on 17 May 2017, in this case, is hereby rescinded.

2. The judgment granted by default on 11 January 2018, in this case, is hereby rescinded.

3. The respondent Is ordered to pay the costs of the application on the attorney and client scale, including the reserved costs.

MUDAU TP

JUDGE O THE HIGH COURT

APPEARANCES

For the Applicants:

Adv L M Maite

Instructed by:

State Attorney

For the Respondents:

Adv C Zietsman

Instructed by:

Loubser Van der Walt Inc Attorneys

012 460 1913

Date of Hearing:

14 August 2018

Date of Judgment:

23 August 2018

[1] 1949 (2) SA 470 (O).

[2] 1979 (2) SA 298 (E).

[3] 1985 (2) SA 756 (A).

[4] 1988 (1) SA 639 (W) at 650D -J.

[5] 2003 (6) SA 1 (SCA)

[6] 2007 (6) SA 87 (SCA)

[7] 2016 (2) SA 184 (GP)

[8] 1993 (2) SA 508 (Tk) at 5100- G.

[9] 2012 (1) SA 143 (GNP) at 153C.

[10] 2017 (1) SA 51 (GP) at 58C- E.

[11] 2017 (5) SA 346 (CC) at 366E-·367A).