Minister of Police v Kritzinger (HCAA 09/2018) [2019] ZALMPPHC 19 (10 May 2019)

Minister of Police v Kritzinger (HCAA 09/2018) [2019] ZALMPPHC 19 (10 May 2019)

The Full Court found that both the first and second rescission applications were dismissed in error, as the orders were granted in the absence of the appellant or his legal representative. The court held that the service of summons was defective, failing to comply with Rule 4(9) and statutory requirements, and that...

Source-derived case information.

Citation
[2019] ZALMPPHC 19
Parties
Appellant: Minister of Police; Respondent: Jacobus Frederick Kritzinger
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
10 May 2019
Case Number
HCAA 09/2018
Procedural Posture
Civil Appeal / Appeal From Dismissal of Rescission Applications; Full Court Hearing
Outcome
Appeal upheld; rescission of all impugned orders and default judgment granted.
Judges
E M Makgoba, G C Muller, L G P Ledwaba
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, Unlawful Arrest, Damages Quantification
Civil Procedure Delict Rescission of Judgment Default Judgment Service of Process Unlawful Arrest Damages Quantification

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Parties

Minister of Police

Appellant

Jacobus Frederick Kritzinger

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Rescission Applications; Full Court Hearing

Legal Issues

  1. 1 Whether Kgomo J erred in dismissing the appellant's application for rescission of the judgment and order granted by Phatudi J.
  2. 2 Whether the appellant was entitled to have the order granted by Phatudi J rescinded under Rule 42(1)(a) or common law.
  3. 3 Whether the default judgment granted by Raulinga J should be rescinded under Rule 42(1)(a) or Rule 31(2)(b).

Ratio Decidendi

The Full Court found that both the first and second rescission applications were dismissed in error, as the orders were granted in the absence of the appellant or his legal representative. The court held that the service of summons was defective, failing to comply with Rule 4(9) and statutory requirements, and that the default judgment was erroneously granted. The court determined that the appellant was not in wilful default and had a bona fide defence to the respondent's claim. Accordingly, the orders of Phatudi J and Kgomo J, as well as the default judgment of Raulinga J, were rescinded and set aside. The court exercised its discretion to deprive the appellant of costs due to his...

Court Disposition

Appeal upheld; rescission of all impugned orders and default judgment granted.

Orders

  • The appeal against the judgment and order of Kgomo J is upheld.
  • The order granted by Kgomo J on 6 February 2017 dismissing with costs the appellant's application for rescission is set aside and replaced.