Minister of Police v Michillies (1011/2020) [2023] ZANWHC 90 (22 June 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 1011/2020

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates:YES/NO

In the matter between:-

MINISTER OF POLICE

Applicant

and

JODY SEPTON MICHILLIES

Respondent

In re:

JODY SEPTON MICHILLIES

Plaintiff

MINISTER OF POLICE

Defendant

JUDGMENT

FMM REID J:

Introduction:

[1] This is an interlocutory application in which the applicant Minister of Police (SAPS, also the defendant in the main action) seeks to set aside a judgment that was granted against it and in its absence on 7 October 2021 in favour of the respondent (who is the plaintiff in the main action) to the effect that the SAPS’s plea was struck with costs.

[2] When the matter was heard on 2 June 2023 there was no appearance for the SAPS and the SAPS failed to file heads of argument in the rescission application. Mr du Plessis appeared on behalf of the

respondent and requested that the application be dismissed with costs.

[3] From the onset it has to be mentioned that there seems to be confusion between the litigants as to the status of the matter. The applicant (SAPS) states that the default order dated 7 October 2021 included quantum in the amount of R420,000.00 (which is the total amount claimed by the plaintiff) and cost on an attorney and client scale. The plaintiff states that the default order dated 7 October 2021 struck the plea of the defendant, without making any finding on merits or quantum.

[4] On my understanding, when a plea has been struck, it does not bar the defendant from proceeding to defend the action. The merits are not determined in favour of the plaintiff on the striking of the defendant’s plea. The plaintiff remains with the onus to prove its case on a balance of probabilities. These

probabilities can be attacked during cross-examination of the plaintiff in the trial and on behalf of the defendant. The same argument is applicable to quantum.

[5] For ease of reference I will refer to the applicant / defendant / SAPS interchangeably and to the respondent / plaintiff interchangeably.

Background facts

[6] The plaintiff instituted action against the defendant on 22 June 2020 for a delictual claim of unlawful arrest of the plaintiff that occurred on 14 April 2019 together with two (2) other individuals for being in possession of suspected stolen property whilst the plaintiff was a passenger in the vehicle that was suspected to be stolen. The plaintiff was accordingly arrested and detained from 14 April 2019 at approximately 18h30 to 15 April 2019 at 12h00.

[7] On 28 July 2020 the defendant filed a notice of intention to defend the claim. The defendant’s plea was served and filed on 20 August 2020, which plea included a special plea on the basis that the plaintiff failed to comply with the Institution of Proceedings against Certain Organs of State Act 40 of 2003.

[8] On 4 November 2020 the defendant was served with a notice in terms of Rule 35(1) requiring the defendant to make a discovery under oath within 20 days of the notice.

[9] On 25 February 2021 the plaintiff set down an application to compel the defendant to make a discovery under oath. This application was opposed and an order was granted on 25 March 2021 to compel the defendant to discover. On 30 March 2021 the defendant filed its discovery affidavit.

[10] On 6 April 2021 the plaintiff served a notice on the defendant to produce documents referred to in the discovery affidavit, being the case docket, which the defendant claims were not in its possession at the time.

[11] On 17 May 2021 the plaintiff served a notice to compel discovery in terms of Rule 35(7) of the Uniform Rules of Court, which application was set down for hearing on 20 May 2021. The defendant opposed the matter and it was removed from the roll, and enrolled to be heard on 22 June 2021. On 22 July 2021 an order was granted compelling the defendant to produce the discovered documents and pay costs of the application.

[12] On 30 August 2021 the plaintiff launched an application in terms of Rule 35(7) to strike out the defendant’s plea on the basis that it failed to produce the discovered documents. this application was set down for hearing on 7 October 2021 which is the date that the default judgment was granted striking the defendant’s plea.

[13] The defendant was ordered to pay the plaintiff’s costs on a punitive scale of attorney and client.

Condonation

[14] The defendant applies for condonation for the late filing of this application for rescission. The application is 7 (seven) months out of time. The condonation is requested on the basis that the COVID 19 pandemic affected the functioning of the Office of the State Attorney and the Department of Justice to such an extent that it became difficult to manage due to the workload, lack of staff and restriction measures.

[15] In addition to the above, the SAPS also experienced functional difficulties and the effective flow of work was disrupted by all the difficulties that was brought about by COVID and related issues. The Department of Justice has also been “hacked” and the e-mail communications between the SAPS and the Office of the State Attorney came to a stand-still for an extended period.

[16] The plaintiff opposes the application for condonation on the basis that the defendant does not disclose sufficient detail to justify an excuse for the delay in bringing this application. The plaintiff is correct. It is trite law that the details of every delay should be placed before court in consideration of an application for condonation.

[17] However, it is also trite that a bad explanation can be compensated with a good prospect of success.

[18] The defendant provides sufficient detail as to the reason why the vehicle was suspected to be stolen, and the reason why the plaintiff was arrested. I am satisfied that this explanation might be successful as a defence in the trial. As such, I hold the view that it is in the interest of justice that condonation be granted.

[19] Condonation for the late filing of the application for rescission is therefore granted.

Legislative matrix

[20] Rule 35(7) of the Uniform Rules of Court reads as follows:

“35 Discovery, Inspection and Production of Documents

…

(7) If any party fails to give discovery as aforesaid or, having been served with a notice under subrule (6), omits to give notice of a time for inspection as aforesaid or fails to give inspection as required by that subrule, the party desiring discovery or inspection may apply to a court, which may order compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence.”

[21] In Erasmus: Superior Court Practice, Jutastat e-publications CD Rom & Intranet: ISSN 1561-7467 Internet: ISSN 1561-7475 at RS 20, 2022, D1-477 the author submits the following in relation to Rule 35(7):

“ ‘Failing such compliance, may dismiss the claim or strike out the defence.’ It is submitted that the general requirement of rule 30A(1) that an applicant for an order to compel compliance with a request or notice given pursuant to the rules of court must notify the defaulting party that he intends after the lapse of ten days to apply for the order, does not override but gives way to the special provisions of this subrule relating to an application to compel discovery. It is sound practice for a party to call upon his opponent to remedy a default to comply with the request to make discovery or the notice in terms of subrule (6) and put him to terms before lodging the application under this subrule. In practice the court usually orders that discovery be made or the documents/tape recordings referred to in a notice under subrule (6) be made available for inspection within a time fixed by it and grants leave, in the event of this not being done, to apply on the same papers for the appropriate further relief.”

[22] In MEC, Department of Public Works v Ikamva Architects 2022 (6) SA 275 (ECB) a full court on appeal from a single judge noted that the defendants were granted a period of 10 days from date of service of the plaintiff’s notice in terms of Rule 35(3) to reply to the notice, failing which their defence would automatically be struck out. The plaintiff subsequently obtained default judgment against the defendants and caused writs of execution to be issued. In an application to stay the writs brought by the defendants, the full court observed that:

“(a) The dismissal of a claim or the striking of a defence is a drastic remedy, and the power to grant such a remedy is discretionary, a discretion that must be exercised judicially.

(b) The interpretation and application of a court rule often requires a consideration of the provisions of the Constitution. Section 34 is relevant in this respect, providing that everyone has the right to have a dispute that can be resolved by the application of law decided by a court or tribunal in a fair public hearing. The striking-out of a plaintiff’s claim or a defendant’s defence has a far-reaching impact on this right. It has the potential to deprive a litigant of a fair trial, bringing an end to a claim or defence. In the case of a defendant, the usual effect of a striking-out is to prevent the presentation of a defence so that judgment will be entered for the plaintiff, subject to any further order of court.

(c) It must be accepted that the order to strike out the defence was erroneous on the basis that it followed a one- as opposed to two-stage procedure. Rule 35(7) does not contemplate the striking-out of a defence automatically but rather on application on the same papers, amplified if necessary.

(d) It is only when a court has had the opportunity to decide that grounds exist for the striking-out of a defence that an application for default judgment may be made.

(e) By following a one-step process, the court which made the order striking out the defence did not have the opportunity to consider whether it had been proved that the party concerned had failed to comply with the rule in question. There was then no option to remedy the breach by giving the party the opportunity to comply. The consequence was that the court did not have the opportunity to exercise its discretion in determining what, if any, procedural consequence should follow because the party had failed to

remedy the breach. This was a discretion to be exercised judicially on the facts before court and bearing in mind that striking-out should normally be a last resort, considering that it has the potential to deprive a litigant of an entrenched right to a fair trial. A virtue of the Uniform Rules of Court is that they provide for flexible remedies for breaches of the rules, giving the court the opportunity to make the sanction fit the breach. Importantly, the discretion should be exercised only after the defendant has been given an opportunity to be heard in compliance with the audi alteram partem rule.

(f) This did not happen in the present matter. The defence was struck out in the absence of the defendants and without —

(i) the applicant requesting the striking-out having placed any facts before the court justifying the granting of such a far-reaching order;

(ii) the defendants having first been placed in a position either to seek condonation for their failure to comply with the order to compel, or to convince the court not to strike out their defence and to make an alternative order that would ensure compliance with the order to compel discovery without the drastic step of striking out their defence;

(iii) the court having been placed in a position to exercise its discretion judicially, as envisaged by rule 35(7), and to make an informed decision.

(g) The order striking out the defendants’ defence was therefore granted erroneously as envisaged in rule 42(1)(a).”

Conclusion

[23] The application to strike the defendant’s defence has left both parties in the dark as to proceed with the matter. Both parties are entitled to a fair trial- without any unreasonable and unnecessary delays.

[24] The conduct of the defendant is concerning. It might seem that the defendant is dragging its feet in the finalisation of the trial. It might also be a comedy of errors, and the only manner in which justice can be achieved would be to allow the defendant an opportunity to state its case during trial.

[25] Having considered the merits of the application for rescission, and specifically having regard thereto that the striking of a plea is a drastic measure which would devoid the defendant of an opportunity to place its case before court, I find that it would be in the interest of justice that the order dated 7 October 2021 be rescinded and the defendant’s plea be reinstated.

Costs

[26] Although the normal rule is that costs follow the result, I hold the view that the plaintiff should not be ordered to pay the cost of the application.

[27] This is to indicate the courts’ disapproval of the defendant’s ostensive obstructive conduct during this litigation process, and on this basis I am ordering that the defendant pay the cost of the application on a scale as between attorney and own client.

Order

[28] In the premise, I make the following order:

(i) The applicant’s late filing of the rescission application is condoned.

(ii) The order obtained by default against the applicant / defendant striking out the applicant / defendant’s plea on 7 October 2021 under case number 1011/2020 is rescinded and set aside.

(iii) The defendant’s plea is reinstated.

(iv) The defendant is to pay the cost of the application on a scale as between attorney and own client.

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

DATE OF HEARING:

2 JUNE 2023

DATE OF JUDGMENT: 22 JUNE 2023

APPEARANCES

ON BEHALF OF THE APPLICANT: NONE INSTRUCTED BY: STATE ATTORNEY FIRST FLOOR MEGA CITY MMABATHO REF: 735/20/P5 ON BEHALF OF RESPONDENT: ADV H DU PLESSIS INSTRUCTED BY: LABUSCHAGNE ATTORNEYS 19 CONSTANTIA DRIVE RIVIERA PARK, MAHIKENG TEL 018 381 6828 REF: GGL/bvn/GW1205