Minister of Police and Others v Nepgen (91457/19) [2024] ZAGPPHC 1279 (5 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 91457/19

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

Date: 05 December 2024

Signature

In the matter between:

THE MINISTER OF POLICE

First Applicant

THE NATIONAL DIRECTOR, PROSECUTING Second applicant

AUTHORITY OF SOUTH AFRICA

CAPTAIN I.M GAMBU

Third Applicant

and

JOHANNES HENDRIK NEPGEN

Respondent

This matter was heard in open court and disposed of in terms of the directives issued by the Judge President of this Division. The

judgment and order are accordingly published and distributed electronically.

JUDGMENT

KUBUSHI, J

Introduction

[1] The first and the second applicants (“the applicants”) have instituted an application seeking an order to rescind the judgment granted against them by default on 10 January 2022,[1] and for leave to defend the matter (“the application for rescission”). The applicants further seek an order to stay the determination of the quantum of the damages relating to this matter, pending the finalisation of the application for rescission.

[2] The order for the rescission of the default judgment is sought in terms of Rule 31(2)(b) of the Uniform Rules of Court (“Rule 31(2)(b)”), alternatively in terms of the common law.

[3] The application for rescission was instituted outside the timeframe prescribed by Rule 31(2)(b), and the applicants have also launched a condonation application, seeking an order to condone the late filing. The respondent is vigorously opposing both the application for rescission and the application for condonation.

[4] Although three applicants (defendants in the main matter) are cited in these proceedings, default judgment was granted only against the first and second applicants. Accordingly, the applications have been instituted solely by them.

[5] There are two further applications for condonation, both of which are opposed. One application was brought by the respondent for leave to file the answering affidavit and the written submissions late. The other was launched by the applicants for leave to file their replying affidavit out of time. Thus, the respondent seeks condonation for the late filing of the answering affidavit and the written submissions, while the applicants seek condonation for the late filing of their replying affidavit.

[6] Two counsel appeared on behalf of the applicants, namely Advocate Phaswana, appearing for the first applicant, and Advocate Leballo appearing for the second applicant. The respondent was represented by Mr Bester of the firm Steve Bester Attorneys.

Issues for determination

[7] The issues for determination in this court are:

(a) Whether a condonation for the late launching of the application for rescission should be granted;

(b) Whether the respondent’s condonation application for the late filing of the answering affidavit and the written submissions should be granted;

(c) Whether the applicants’ condonation application for the late filing of the replying affidavit should be granted; and

(d) Whether the default judgment granted by the court on 10 January 2022 should be rescinded.

Factual matrix

[8] The factual matrix in this matter is mostly common cause between the parties. The third applicant (Captain Gambu) investigated a charge of fraud and theft against the respondent and his wife (L Nepgen), at Richards Bay Police Station. On 29 November 2016, the third applicant and the prosecutor applied for a warrant of arrest for the respondent. On 28 December 2016, a warrant was issued by the Magistrate’s Court of the District of Empangeni, held at Richards Bay. The respondent is said to have been arrested on the strength of this warrant, on 5 January 2017. However, the respondent disputes that the arrest was based on a warrant of arrest.

[9] Following the arrest, the respondent was detained and appeared in court, his bail application was refused, and the matter was remanded to 9 January 2017. His subsequent bail application on new facts was also refused. He made representations to the prosecution authority and they were similarly unsuccessful. Charges against the respondent's wife, who was co-accused and arrested with the respondent, were withdrawn.

[10] The respondent successfully appealed the bail refusal and he was released on bail of R1, 000 on 12 December 2017. The charges against him were ultimately withdrawn, at the commencement of the criminal trial, on 16 April 2019, on the grounds that: (a) the case was a civil matter rather than a criminal matter, and (b) the underlying sale transaction from which he got the alleged fraudulent funds was said to be null and void.

[11] On 3 June 2019, the respondent through his legal representatives, served the office of the first applicant with a notice of his intention to institute legal proceedings in terms of section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act (the Act)[2], (“the section 3(1) notice”). Summons were served on the first applicant on 6 March 2020. As regards the second applicant, the section 3(1) notice was served on 21 June 2019. Summons were served on 17 February 2020. Default judgment against the applicants was granted on 10 January 2022 and the judgment was brought to the applicants’ attention on 11 January 2022.

[12] The respondent’s claim against the applicants is for the recovery of damages and compensation arising from the conduct of the applicants’ employees, who are alleged to have wrongfully arrested and detained the respondent. The claim for unlawful arrest is directed at the first applicant in that it was its employee, the third applicant, who arrested the respondent. The claim for unlawful detention is in part directed at the first applicant in that it was its employee who initially detained the respondent. The claim for wrongful detention is also, in part, directed to the second applicant in that it was its employee, the prosecutor, who allegedly facilitated the continued detention.

[13] The applicants are defending the respondent’s claim on the merits and have raised two in limine points, based on: (a) the non-compliance by the respondent with the provisions of section 3(1) of the Act, making allegations that the notice in terms of the said section was not properly served; and (b) prescription, the applicants aver that the summons were served after the claim against them had prescribed. Details of these defences will appear more fully later in the judgment.

[14] Although the crux in these proceedings is the determination of whether the applicants have made out a case for rescission of the judgment issued against them on 10 January 2022, it is, however, necessary to first address the three applications for condonation. There being three applications for condonation, the one for the late institution of the application for rescission should first be adjudicated.

Applicable Law on Condonation Applications

[15] As already stated, the order for the rescission of the default judgment is sought in terms of rule 31(2)(b), alternatively in terms of the common law. In terms of Rule 31(2)(b), the applicants had twenty (20) days, after being aware of the judgment granted against them, within which to apply for the rescission of that judgment. In terms of the common law, the timeframe within which to apply for rescission of judgment is not spelt out, however, the application must be brought within a reasonable time. What constitutes a reasonable time, as it has been held, depends on the facts of each case.

[16] Rule 31(2)(b) provides that the court may grant condonation on good cause shown. The term ‘good cause shown’ has been a subject in many cases. The court in General Accident Insurance Co SA (Ltd) v Zampeli,[3] remarked that:

“Recognizing, however, that occasions may arise when, due to the circumstances of the case, such strict compliance may not have been possible, framers of the Rules have allowed for condonation of non-compliance on 'good cause shown’. Such condonation is not a mere formality. It is not every circumstance nor every 'cause' that will warrant condonation. The circumstances or 'cause' must be such that in the Court's opinion a valid and justifiable reason exists why strict compliance did not occur and why non-compliance can be condoned."

[17] Similarly, in Nedcor Investment Bank Ltd v Visser NO.,[4] it was held that the court has a wide discretion to condone non-compliance with the rules. To enable the court to exercise this

discretion and determine an application for condonation, the applicant must provide a detailed explanation for the delay.

[18] The Constitutional Court per Zondo AJ (the minority judgment) in Grootboom v National Prosecuting Authority and Another,[5] set out the test for condonation as follows:

“[50] In this Court the test for determining whether condonation should be granted or refused is the interests of justice. If it is in the interests of justice that condonation be granted, it will be granted. If it is not in the interests of justice to do so, it will not be granted. The factors that are taken into account in that inquiry include:

(a) the length of the delay;

(b) the explanation for, or cause for, the delay;

(c) the prospects of success for the party seeking condonation;

(d) the importance of the issue(s) that the matter raises;

(e) the prejudice to the other party or parties; and

(f) the effect of the delay on the administration of justice.’

Although the existence of the prospects of success in favour of the party seeking condonation is not decisive, it is an important factor in favour of granting condonation.

[51] The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.”

[19] In its majority judgment in Grootboom, the court remarked as follows:

“22. . . . the standard for considering an application for condonation is the interests of justice. However, the concept “interests of justice” is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors, but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

23. It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.”

[20] It is therefore settled that the test for granting condonation is the interest of justice, which applies to both applications in terms of Rule 31(2)(b) and the common law. The question is whether it is in the interest of justice that condonation be granted.

[21] In the present matter, the delay in instituting the application for rescission was not excessive. Even if it could be said to be excessive under Rule 31(2)(b), the applicants have provided a full and reasonable explanation for the delay. Furthermore, regard being had to the defences proffered by the applicants, it appears that there are reasonable prospects of success. Alternatively, if considered under common law, the delay for the period of five months is reasonable in the circumstances of this matter, especially given the explanation provided. Thus for the reasons that follow hereunder, it is in the interest of justice that the condonation be granted.

The delay was not excessive

[22] Rule 31(2)(b) requires an applicant, against whom a default judgment has been granted, to apply for the rescission of such judgment within twenty (20) days of acquiring knowledge of a default judgment.

[23] In this matter, it is common cause that the rescission application was brought five (5) months after the applicants became aware of the default judgment. There is also no dispute that the period of delay was not necessarily too excessive. The respondent actually, lamented the excessive period of delay before the default judgment was granted, this, however, is not the test when it comes to condonation applications. The delay that ought to be considered is the delay occasioned after the default judgment was granted. In this Instance, the delay was only for five months which is not excessive.

[24] Even if the delay is deemed excessive in terms of Rule 31(2)(b), it however remains reasonable in terms of the common law. As already stated earlier in the judgment, in terms of the common law, the application for condonation must just be brought within a reasonable time. The period of delay in this matter is only five (5) months, and when considering the explanation tendered for the delay, five (5) months in the circumstances of this matter is reasonable.

The explanation provided is full and reasonable

[25] The question that must then follow is whether there is a reasonable and full explanation proffered by the applicants for the delay. The applicants, separately, went at length to explain the reasons for the delay. The sequence of events that provides the explanation for the delay is succinctly set out in paragraphs 49 to 69 of the founding affidavit as well as in the second applicant’s confirmatory affidavit to the answering affidavit. Is this explanation full and reasonable?

[26] In respect of the first applicant, the deponent, Lieutenant Colonel Ronald Leon Buitendach (“Colonel Buitendach”), states that he became aware of the default judgment on 12 January 2022. He concedes that he was aware at all material times that the application for rescission required to be made as a matter of urgency as there were only twenty (20) days within which to do so. However, it ultimately took him five (5) months.

[27] In the founding papers, Colonel Buitendach explains that after becoming aware of the judgment against the first applicant, he immediately began searching for the docket pertaining to the matter. He had already, earlier when he became aware of the summons served upon the first applicant, started to look for the docket from the Richards Bay Police Station where the incident occurred, but had received no response. On 12 January 2022, he again emailed the Richards Bay Police Station requesting the case docket. A copy of this email was attached to the founding affidavit. In response to the email, it was indicated that the docket had not been returned to the police station by the prosecutor.

[28] Subsequently, he made telephonic contact with the Office of the Director Public Prosecutions, KwaZulu-Natal, in Pietermaritzburg, where he spoke to Ms Sandra Senekal (“Ms Senekal”). Ms Senekal confirmed that the docket was indeed in their possession and assured him that arrangements would be made for its collection. She further informed him that Advocate Marco Pierre Voller (“Adv Voller”) of the Office of the National Director of Public Prosecutions’ Legal Affairs Division, was handling the matter on behalf of the second applicant. On 13 January 2022, Colonel Buitendach sent an email to Ms Senekal confirming their telephonic conversation.

[29] On 14 January 2022, Colonel Buitendach emailed Adv Voller, informing him that according to Ms Senekal the claim should have been defended. On 26 January 2022, Colonel Buitendach was contacted by Voller who informed him that he had already instructed the State Attorney, KwaZulu-Natal, Durban, to file an application for rescission of the judgment. On the same day, Colonel Buitendach instructed the State Attorney to urgently file the application. As the case had been issued in Pretoria High Court, the Durban State Attorney’s office had to forward instructions to the State Attorney in Pretoria to file the application. Apparently, the State Attorney in Durban forwarded the instructions to the State Attorney Pretoria on 31 January 2022. On 1 February 2022, Colonel Buitendach, sent, per email, instructions to the State Attorney Pretoria to apply for the rescission of the judgment. Upon receiving the instructions, the Pretoria State Attorney requested further information from the first applicant’s legal services.

[30] Due to the ‘three quotations process’ for the appointment of counsel, which requires three quotations to be sought and considered by the State Attorney and client Department before counsel can be appointed, the State Attorney’s office was only able to appoint counsel on 22 February 2022. On his appointment, counsel requested information from the State Attorney, which included a copy of the judgment, correspondence between the Provincial office of the first applicant and the National office, and the docket. As the docket comprised of three arch lever files, it was voluminous and could not be sent to counsel electronically. While waiting for the docket, counsel requested consultation with the officials of the second applicant. The consultation with Adv Voller took place on 5 April 2022.

[31] Between 26 February 2022 to 18 April 2022 Colonel Buitendach was not available to assist with the matter. From 26 February 2022 to 27 March 2022 he was on leave. Subsequently, he was engaged in arbitration proceedings on 28 March 2022, and on 1, 4, 5, 7 and 8 April 2022, representing the South African Police Service (“SAPS”). He was, thus, only able to consult with counsel on 11 April 2022. During the consultation, counsel recommended the appointment of a second counsel to represent the second applicant to avoid any possible conflict of interest. Additional documents required by counsel during the consultation were provided on 25 April 2022.

[32] Adv Voller agreed to the appointment of another counsel and instructed the State Attorney on 4 May 2022 to do so. Having gone through the three-quotation process, the second counsel was appointed and was provided with the available information on 6 May 2022. The docket was delivered on 8 May 2022. Counsel requested additional information, including emails referred to during consultation, which were needed to show that the officials were not inactive in dealing with the matter.

[33] In order to determine whether the applicants had a defence against the respondent’s claim, it is the first applicant’s case that counsel had to peruse and consider the volumes of documents contained in the docket. The docket contained affidavits of the role players, draft sales agreements, bank statements from different banks, trust deeds, company registration documents, invoices, proof of payments, declarations, municipality documents, photographs of the premises, the audited accounting reports, statements of witnesses, subpoenas, transcribed records of the bail applications, investigation diaries and other court proceedings where the parties were involved. Counsel held a telephone consultation on 19 May 2022, to request further information, which was requested from the first applicant. Due to other work commitments, the information was provided on 26 May 2022, and the preparation for the rescission application began afterward. The founding affidavit was commissioned on 9 June 2022 and the application for rescission was served on 20 June 2022.

[34] Regarding the second applicant, Adv Voller (the deponent) explains that he became aware of the judgment around 13 January 2022. He then requested a copy of the judgment and was informed that the matter was allocated to Mr Matubatuba in the State Attorney’s office. He contacted Mr Matubatuba and made arrangements for the application for rescission and the appointment of counsel. He also received a call from Colonel Buitendach.

[35] Mr Matubatuba advised Colonel Buitendach of the three-quote process for the appointment of counsel. Counsel was eventually appointed on 5 April 2022 and that was when Adv Voller was able to consult with counsel. During the consultation, counsel requested a complete docket and correspondence between the second applicant’s Legal Affairs Division and the State Attorney. Additionally, counsel’s advised that a second counsel be appointed to mitigate potential conflicts of interest. The docket was sent to the State Attorney on 15 April 2022 and the letter for the appointment of the second counsel was sent on 4 May 2022.

[36] Counsel had during the consultation requested further information which Adv Voller had instructed his administrative clerk to forward to the State Attorney. During a follow-up consultation with counsel on 19 May 2022, he learnt that the State Attorney and counsel had not received the requested information. The information was furnished to counsel on 23 May 2022. As previously stated, the founding affidavit was commissioned on 9 June 2022 and the application for rescission was served on 20 June 2022.

Applicable Law for Rescission Application

[37] The requirements for an application for rescission of judgment under Rule 31(2)(b) are that: the applicant must give a reasonable explanation of his or her default. The default must not be wilful or due to his or her gross negligence; the application must be bona fide and not be intended to delay the plaintiff’s claim; and the applicant must show that he or she has a bona fide defence to the plaintiff’s claim.[6]

[38] The critical question is whether the applicant’s explanation is reasonable and demonstrates that the default is not wilful or is not due to the applicants’ gross negligence. It is trite that the failure to file a notice of intention to defend timeously constitutes wilful default if it is deliberately and intentionally done to avoid the filing of the notice to defend.

Failure to file the Notice to Defend was not wilful

[39] The explanation tendered by the applicants demonstrates that they were not in wilful default. In their explanation, the applicants contend that their failure to file the notice to defend was occasioned, firstly, by the failure of the State Attorney to execute their instructions to file the notice to defend. Secondly, they contend that there was a communication delay between the Provincial Office (KwaZulu-Natal), where the cause of action arose and the National Office of both the first and second applicants, respectively. The delay was caused by many factors, like for instance; the fact that the incident that gave rise to the action occurred in KwaZulu-Natal Province, while the summons was issued in Gauteng Province; the docket relating to the charges was sent to Pietermaritzburg Office of the Director of Public Prosecutions after the charges were withdrawn, which caused delay in tracing it from the police station in Richards Bay; and the human resource constrains from the first applicant’s side.

[40] The first applicant explained that Colonel Buitendach was informed of the summons served at the Office of the National Commissioner on 6 March 2020. These summons were forwarded to the

Office of Provincial Commissioner by email on 10 March 2020. On or about 15 March 2020, before he could deal with the matter, the declaration of the national state of disaster due to the Covid-19 pandemic was pronounced, and the country went on Alert level 5 from midnight on 26 March 2020. During this period, many state institutions and state departments operated with limited capacity, and some of the employees including those in his office, worked remotely. This placed limitation on the officials and staff of the State Organs who are responsible for handling correspondences. Restrictions continued under Alert level 4, and adjusted Alert level 3, and at this point some of the Government departments, including his office, operated on what was termed ‘skeleton staff’. As a result, many processes were put on hold.

[41] On 23 September 2020, Colonel Buitendach received the summons via email from the South African Police Service Head Office in Pretoria, forwarded by email from Kwa-Zulu Natal Legal Services Litigation and Administration. He made telephone calls to the police station requesting the docket and progress regarding the relevant person who could assist him in dealing with the matter, without success. It was only later that he was informed that the docket was with the office of the Director of Public Prosecutions, in Pietermaritzburg.

[42] He contends that it was important to trace the docket because it would have been futile to instruct the State Attorney to defend the action without the necessary information in the docket. Given the summons had been directed to the second applicant as well and, since the second applicant was in possession of the case docket, Colonel Buitendach stated that he believed that the second applicant would have instructed the State Attorney’s office to defend the matter. He further expected that a copy of the summons would have been served on the State Attorney’s office in terms of the provisions of section 2 of the State Liability Act of 1957,[7] and that the State Attorney's office would act to protect the interest of the applicants by requesting further instructions from

the applicants upon receipt of summons.

[43] From August 2016 to March 2020, Colonel Buitendach’s office, allegedly lacked permanent administrative support. As a result, he had to deal with all civil litigation as well as arbitration matters for the King Cetshwayo and llembe districts single-handedly, leading to an administrative backlog. In March 2020, an administrative clerk, Ms. Mabaso, was temporarily assigned to assist his office. However, due to the ongoing Covid-19 disruptions, administrative backlog caused by the absence of permanent staff, and the intermittent closure of offices due for fumigation, in the event a single person testing positive in the office, caused further delays. Ms Mabaso only managed to request the factual report and supporting documents from Richards Bay SAPS on 13 April 2021.

[44] On 14 May 2021, Colonel Buitendach received a response by email from the Richards Bay police station, to which was attached a computer-generated print out from Crime Administration System (CAS) and a copy of Custody Register (SAPS14). From the correspondence, it appeared that the accused, who is the respondent in this matter, had been found guilty at a criminal trial.

[45] He was advised by the State Attorney that between September to December 2021, the Department of Justice, and Correctional Services, which included the State Attorney’s office, nationwide, had software and server breakdown. The entire computer network, emails and telephone lines were completely shut down. It was virtually impossible to communicate with the State Attorney’s office on the official telephone line. The employees could not receive or send emails.

[46] Furthermore, Colonel Buitendach argued that the first applicant's failure to deliver the notice to defend was not wilful. It was not because of a deliberate disregard of the rules of court and the court processes. Instead, it was due to the procedural and administrative difficulties faced by the first applicant and the State Attorney. Additionally, miscommunication between the first and second applicants exacerbated the delay. He believed that since the second applicant had been in possession of the case docket, and it was indicated that the respondent had been found guilty, that the second applicant would have instructed the State Attorney’s office to defend the claim and that the notice of intention to defend would have been filed at least to allow the court to consider the matter. The SAPS had investigated the docket and handed it to the second applicant to prosecute.

[47] He further bewailed the fact that the summons for the first applicant were served at the Head Office in Pretoria as opposed to the Office of the Provincial Commissioner where the cause of action arose. The Head Office could not deal with the matter because the docket and circumstances were known to the province where the cause of action arose. Because the cause of action arose in a different Province, the Head Office could not instruct the State Attorney in Pretoria to enter appearance to defend the matter without the docket, and the instruction from the province where the cause of action arose. Before a decision on whether the action should be defended, the docket and the relevant officers who were involved in the matter had to be traced. When the docket was eventually found in the office of the second applicant, it should have been sent to the State Attorney's office in Pretoria with instruction to enter appearance to defend the matter. It appears that the second applicant instructed the State Attorneys to enter an appearance to defend, but for one reason or the other, this was not done.

[48] The explanation tendered by the second applicant was that the section 3(1) notice was received on 21 June 2019. On 9 July 2019, in anticipation of the summons, Adv Voller addressed a letter, electronically by email, to the office of the Director of Public Prosecutions Kwa-Zulu Natal for the attention of Mr. Gert Nel and Ms Senekal, requesting certain information, including parts A, B and C of the case docket, the charge sheet, the transcript record of the bail application, and reports by all prosecutors who dealt with the matter. A copy of the letter from the Acting Director Public of Prosecutions, Kwa-Zulu Natal, advising that a prima facie case of fraud existed against the respondent, was also attached.

[49] The summons for the second applicant, were served on 17 February 2020, but were only brought to the attention of Adv Voller on receipt of an email of 24 March 2020, from Ms Senekal of the Director of Public Prosecutions Kwa-Zulu Natal Pietermaritzburg, to which the summons was attached. On the same day, the Deputy National Director of Public Prosecutions’ Legal Affairs Division, Advocate Mokhatla, authorised the defence of the claim and instructed the State Attorney’s office in Pretoria to enter appearance to defend.

[50] Despite repeated follow-ups by Adv Voller, in May and June 2021, the State Attorney failed to file a notice of intention to defend. Upon receiving a notice of default judgment from the respondent’s representative, Adv Voller urgently contacted the State Attorney’s office, requesting the status of the matter and raising concerns about the lack of response regarding the appearance to defend, and further warning the State Attorney of the possible judgment in the matter, but received no response.

[51] Adv Voller was later advised that around April 2021, the State Attorney’s office, because of Covid-19, had implemented a staff rotational system to prevent congestion at the building to end the spread of the virus. He was, also, advised that around September until December 2021, the Department of Justice and Correctional Services, which includes the State Attorney’s office, nationwide, suffered computer software and server breakdown which resulted in all electronic communications shutdown. This was a nationwide problem which caused a serious disruption to the function of the State Attorney. The employees could not receive or send emails. The telephone communication system was disrupted. Adv Voller says he was unaware of the problem at the time. He, however, mentioned that he did not know the exact circumstances under which the State Attorney failed to act on his instruction. He also confirmed that in one of the discussions he had with Colonel Buitendach regarding this matter, he advised Colonel Buitendach that he had instructed the State Attorney to enter an appearance to defend the matter and had warned of the potential consequences of default judgment.

The applicants have made out a prima facie and bona fide defence

[52] The respondent's claim is based on delict, and it is a recovery of damages and compensation arising from the alleged wrongful conduct of the employees of the applicants. The alleged wrongful conduct the respondent is complaining about, occurred on 5 January 2017 when the respondent was arrested by the third applicant at Richards Bay and detained in the police cell. The applicants aver that in terms of the Prescription Act, 68 of 1969 (the Prescription Act), the respondent had three years from the alleged wrongful conduct to institute action. The applicants argue further that the prescription

period commenced to run once the alleged wrongful conduct had been completed. Since the arrest and detention occurred on 5 January 2017, the respondent had until 4 January 2020 to serve the summons on the applicants; but instead summons were served only on 6 March 2020 and 17 February 2020, respectively. The respondent’s claim based on arrest and part of the claim based on detention were extinguished by prescription by the time the respective summonses were served, and the respondent is, therefore, barred from recovering damages arising from such alleged wrongful conduct, so it was argued.

[53] A further averment by the applicants was that since the respondent seeks to recover damages against Organs of State, the Legal Proceedings Against Certain Organs of State Act (the Act)[8] was applicable. The Act requires the respondent to serve a notice of intention to institute legal proceedings on the applicants

within six (6) months from date of the occurrence of the alleged wrongful conduct. The exception to this requirement would only be in the event where the applicants have consented in writing for the institution of the legal proceedings without the notice

contemplated by the Act, being served. The respondent failed to serve the section 3(1) notices within six months as required under the Act. The damages became due from 5 January 2017, but the notices were only served on 13 and 21 June 2019, respectively, which are dates after the expiry of the six (6) months’ period. Consequently, the respondent failed to comply with the provisions of the Act.

[54] The first applicant’s defence on the merits was that the third applicant arrested the respondent by means of a valid warrant issued by a magistrate, following evidence of fraud implicating the respondent. The fraud is said to have occurred when money due to the complainant was fraudulently diverted by the respondent into the respondent's bank account. In this regard, it was contended that the respondent’s arrest was not unlawful as any arrest authorised by a valid warrant of arrest, is lawful.

[55] As regards the claim for unlawful detention, the first applicant’s contention was that the respondent's detention was lawful, because the respondent was detained by virtue of a lawful warrant of arrest. In addition, the further detention was authorised by a court after a proper bail hearing where the respondent failed to discharge the onus placed on him to demonstrate the existence of exceptional circumstances justifying his release on bail pending trial.

[56] The second applicant’s defence was that as it was not the respondent’s case that he was maliciously prosecuted by the second applicant’s employees, but that both Captain Gambu (the third applicant) and the prosecutor’s opposition against his release on bail was unreasonable and malicious, which conduct led to the illegal detention of the respondent. The second applicant pleaded that the prosecutor opposing the respondent's bail application acted reasonably based on: (a) evidence pointing to the guilt of the respondent; (b) at the time of the respondent’s bail application, the respondent’s lack of a fixed address or assets in Richards Bay; and at the time of the offence in question, the respondent was on bail in respect of another matter. In this regard, it was contended that the respondent had failed to discharge the onus placed on him to demonstrate the existence of exceptional circumstances justifying his release on bail pending trial.

Analysis

[57] This matter is complicated, firstly, by the fact that the section 3(1) notices and the summons were served at the applicants’ national offices, whilst the incident occurred in the Province of KwaZulu-Natal. The police station that dealt with the offence is in Richards Bay, and the office of Director Public Prosecutions, KwaZulu-Natal, is in Pietermaritzburg. The State Attorney’s office for KwaZulu-Natal is in Durban, but the matter had to be handled by the State Attorney in Pretoria.

[58] As the applicants explain, even though the summons and the default judgments were served at the applicants’ respective Head Offices, those offices could not deal with the matter for obvious reasons. The documents had to be sent to their respective provincial offices. Once the provincial offices received the documents, they first had to obtain full information from the police station concerned before they could act. As a result, all the required documents had to pass through the aforementioned offices multiple times. The lengthy period it took to get a response from each office is expected and understandable.

[59] As correctly contended by the first applicant’s counsel, the docket was important. To demonstrate that they have a valid defence in law, the applicants needed to make reference to the contents of the docket. Otherwise, as counsel submitted, it would have been a futile exercise for the applicants to file notices of intention to defend or to institute rescission applications, only to find that they lacked a defence in law. In an application for rescission, it is expected of the applicants to allege facts that are in line with the contents of the docket. For instance, without a docket, the applicants’ deponents would not have known that a warrant of arrest was issued, a fact that constitutes a valid defence in law. The docket also determines the charges preferred against the respondent for him to be arrested, and the process that was followed through, which eventually led to the withdrawal of the charges. Fundamentally, for the applicants, in an application for rescission of judgment, they had to plead a defence because it would be pointless for them to apply for the rescission of the judgment and be given an opportunity to go to trial only to find that they do not have a defence at all. This is what they wanted, correctly so, to avoid when they insisted on locating the docket before proceeding with their respective applications for the rescission of judgment.

[60] The events that took place during 2020, occasioned by the COVID 19 pandemic cannot just be taken lightly or ignored. It is common cause that from 15 March 2020 the country went into lockdown. On 26 March 2020, the country went into level 5 lockdown, which was gradually eased. This state of affairs disrupted a lot of things including the functioning of government offices and state institutions. Offices did not operate at all or operated with skeleton staff. At times, offices were vacated for a number of days to allow for fumigation where it would be found that one of the staff members contracted the virus.

[61] It is undisputed that by the time the state of disaster was declared, the period for entering appearance to defend by the applicants had already expired. During the time they were still looking for the necessary documents, the state of disaster struck. There was nothing much that the applicants could have done considering the working conditions that prevailed during the various stages of lockdown. However, this did not mean that they were barred from exercising their right to defend the matter.

Condonation Application

[62] In as much as condonation cannot be granted simply for the asking, and a party seeking it must make out a case justifying it to the court’s indulgence, the court has a discretion in whether to grant condonation or not. It is thus, clear from the above discussion that the applicants have provided a full explanation, detailing the sequence of events, supported by reasonable context given the involvement of state departments. Importantly, it is not really a material requirement that the applicant must act flawlessly because whether there is a good cause which justifies condonation is a factual enquiry and it depends on the facts of the case.

[63] In Uitenhage Transitional Local Council v South African Revenue Service,[9] the following was stated:

"Condonation is not to be had mainly for the asking; a full detailed and accurate account of the causes of the delay and their effects, must be furnished to enable the Court to clearly understand the reasons and assess the responsibility. It must be obvious that the non-compliance is time related then the date, duration, and extent of any obstacle on which reliance is placed must be spelled out."

[64] The evidence, in the current matter, shows that the applicants did not make flimsy allegation in their respective explanations. They provided a detailed account of the causes of the delay and their effects. The annexures attached to their papers substantiate the sequence of events that led to the delay in not instituting the application for rescission timeously. Essentially, the explanation reinforced by the annexures, shows that the officials of the applicants did not merely sit back and neglect the matter.

[65] The fact that Colonel Buitendach went on extended leave cannot be held against the applicants. His uncontested evidence is that during the time in question, he was often working alone, even before the Covid- 19 pandemic struck. His work required him to cover the areas of Cetshwayo and Ilembe districts, dealing with civil and arbitration matters. He had to be away from the office for extended periods to attend to arbitration cases.

Application for Rescission

[66] Regarding whether there was wilful default on the part of the applicants, the historical facts provided by the applicants demonstrate to the court that the applicants had given instructions to the State Attorney’s office to defend the action. The failure to enter an appearance to defend the matter was not due to the applicants’ disregard for the court processes, but rather due to challenges faced by the State Attorney’s office. During March 2020, for instance, the State Attorney’s office worked with a reduced staff complement. Furthermore, the office’s server went down for about a period of three months, hence, preventing the receipt or dispatch of correspondence.

[67] It is common cause that the twenty (20) days period within which the applicants were to file their notices of intention to defend the summons expired before the matter was defended. Having failed to defend the matter and having the judgment against them granted by default, the applicants were still entitled, in terms of the rules of court, to apply for condonation. The Covid-19 lockdown, which took effect on 26 March 2020, had no effect on the condonation application, as the applicants are, as already stated, entitled to apply for that. What should be considered is the explanation given for the failure to lodge the notice of intention to defend the summons before the default judgment was granted, and whether the

applicants have a bona fide defence to the claim.

[68] The applicants’ contend, correctly, that the evidence that has been placed on record and the explanation provided by the annexures attached, clearly demonstrate that their application is bona fide and not intended to delay the respondent’s claim.

[69] Furthermore, it is not for this court to decide whether the defences raised by the applicants at this stage of the proceedings, are valid. What this court is expected to do is only to determine if the applicants have made out a prima facie and/or bona fide defence by setting out averments which if established at trial, would entitle them to the relief they seek,[10] that is, to have the respondent’s claim dismissed. This they have done. The defences raised show that there are prospects of success if the matter is allowed to go on trial.

Conclusion

[70] The applicants submit, correctly, that if regard is had to the explanation for the failure to enter notice to defend and the fact that the applicants have a valid defence in law against the claim, it is in the interest of justice to grant condonation for the default. Having considered all the factors in this matter, it is justifiable to find that condonation for the late institution of the applicants’ rescission application is warranted, and the application for rescission should be granted.

[71] As regards the other two applications for condonation, little emphasis was placed on them during argument. In exercising its discretion, the court finds that these applications should also be granted.

Costs

[72] The applicants as the successful parties are not entitled to costs of suit in the circumstances of this matter, as they are before court seeking indulgence. No order as to costs should be made.

Order

[73] In the premises the following order is made:

1. The condonation application for launching the application for rescission out of time is granted.

2. The condonation application by the respondent for filing the answering affidavit and written submissions out of time is granted.

3. The condonation application by the first and second applicants for filing the replying affidavit out of time is granted.

4. The application for the rescission of judgment granted against the first and second applicants on 10 January 2022, is granted.

5. The first and second applicants are granted leave to file the notice of intention to defend within ten (10) days of this order.

6. There is no order as to costs.

E M KUBUSHI

JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

Appearances:

For the First Applicant: Adv M S Phaswane, SC 082 707 1009 For the Second Applicant: Adv L T Leballo 079 588 6629 Instructed by: State Attorneys For the Defendant Mr Steve Bester Cell: 083 610 1994 Instructed by: Steve Bester Attorneys Date of argument: 03 October 2024 Date of judgment: 05 December 2024

[1] The parties refer to the date for the Default Judgment as 11 January 2022. It should be noted that the Default Judgment was granted by Potteril J on 10 January 2022 but the date stamp of the Registrar affixed to the Order is dated 11 January 2022.

[2] 40 of 2002.

[3] 1988 (4) SA 407 (C) at 410 I-J.

[4] 2002(4) SA 588 (7) at 591.

[5] 2014 (2) SA 68 (CC) ; 2014 (1) BCLR 65 (CC) ; [2014] 1 BLLR 1 (CC) ; (2014) 35 ILJ 121 (CC) paras 50 and 51.

[6] Erasmus: Superior Court Practice at B1 – 201.

[7] 20 of 1957.

[8] Act 40 of 2002.

[9] 2004(1) SA 292 (SCA) at 297.

[10] Sanderson Technitool (Pty) Ltd v Intermenua (Pty) Ltd 1980 (4) SA 573 (W).