Minister of Police v Mogorogo N.O (2242/19) [2025] ZANWHC 41 (21 February 2025)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER:2242/19

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 ROSE MOGOROGO N.O. RESPONDENT

Coram: WESSELS AJ

Date: 21 February 2025

ORDER

i. The application is dismissed.

ii. Applicant is ordered to pay the costs of the application on scale B.

JUDGMENT

[1] The application that stands to be decided by this Court is an application for the upliftment of a notice of bar brought by the applicant who is the defendant in the action.

Facts

[2] On 24 July 2019, Merriam Manoko Mogorogo (“Mrs Mogorogo”) issued a summons out of this Court in terms of which she instituted a claim against the applicant for unlawful arrest. Also incorporated in the summons are claims for, pain and suffering, future loss of earnings as well as future and past medical expenses emanating from an alleged assault by members of the South African Police Service. The details of the claim are of no importance for the purpose of this judgment.

History

[3] It is however necessary to deal with the prolonged history of this matter in some detail.

[4] Following a notice of intention to defend filed by the State Attorneys acting on behalf of the applicant, the respondent served a notice of bar on 20 November 2019. On 20 April 2020, Mrs Mogorogo passed away. She was later substituted with an executor, the current executor being the respondent in this matter.

[5] Due to reasons inconsequential to the facts of this judgment, there was a delay in the prosecution of the claim. The respondent obtained the 25th of January 2023 as the hearing date for a default judgment from the Registrar of this Court.

[6] The application for default judgment was set down for 25 January 2023 by service of a notice of set down on the office of the State Attorneys in Mahikeng on 15 August 2022.

[7] On 24 January 2023, the State Attorney requested the respondent’s attorneys to remove the application for default judgment as set down for the following day from the roll.

[8] The respondent’s attorneys acceded to this request and removed the application for default judgment from the roll on the condition that an application for upliftment of the notice of bar should be launched within 20 days from 24 January 2023.

[9] When no application for the upliftment of the notice of bar was forthcoming, the respondent obtained a new date for the hearing of a default judgment. On 23 May 2023, a notice of set down of the application for default judgment (for 22 January 2024) was served on the State Attorneys.

[10] On 4 October 2023, the applicant served the long-anticipated application for the upliftment of the notice of bar (“the application”). This application was opposed by the respondent and is the subject matter of this judgment. In the meanwhile the application for default judgment was overtaken by events with the

filing of the application and did not proceed.

Legal principles

[11] Rule 27 provides for the upliftment of a notice of bar in accordance with the following provisions:

‘(1) In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order

extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.

(2) Any such extension may be ordered although the application therefor is not made until after expiry of the time prescribed or fixed, and the court ordering any such extension may make such order as to it seems meet as to the recalling, varying or cancelling of the results of the expiry of any time so prescribed or fixed, whether such results flow from the terms of any order or from these rules.

(3) The court may, on good cause shown, condone any non-compliance with these rules.’

(emphasis added)

[12] The overarching principle of good cause as is found in Rule 27(3) has been defined as follows in the matter of Madinda v Minister of Safety and Security, Republic of South Africa [1]:

‘”Good cause” looks at all those factors which bear on the fairness of granting the relief as between the parties and as affecting the proper administration of justice. In any given factual complex it may be that only some of many such possible factors become relevant. These may include prospects of success in the proposed action, the reasons for the delay, the sufficiency of the explanation offered, the bona fides of the applicant, and any contribution by other persons or parties to the delay and the applicant’s

responsibility therefor.’

[13] In Wesley v Minister of Police[2] Reddy J (AJ as he then was) dealt in detail with the requirement of good cause as is found in Rule 27 as follows:

‘As can be gleaned from Rule 27(3), the Court, may on good cause shown, condone any non-compliance with the Rules of Court. It therefore was peremptory for the defendant to establish the existence of good cause why its application for condonation should be granted, to pave the way for it to deliver its plea. Good cause in broad entails the consideration of the following:

(i) a reasonable and acceptable explanation for the default;

(ii) a demonstration that a party is acting bona fide;

(iii) that such party has a bona fide defence which prima facie has some prospects of success;

(iv) a full explanation of the default so that a court may assess the explanation. (See Colyn v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape) 2003 (2) All SA 113 (SCA), Chetty v Law Society Transvaal 1985(2) SA 756(A) at 764J -765E, Siber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 353 at 354 A (A))

(v) The aspect of good cause was reiterated in Dalhouzie v Bruwer 1970 (4) SA 566 (C) by adding two requirements. Firstly, the applicant should file an affidavit satisfactorily explaining the delay. Secondly, the

applicant should satisfy the court on oath that he has a bona fide defence. A third requirement has been added by authorities namely,

the granting of the indulgence sought must not prejudice the plaintiff.

(vi) In Smith NO v Brummer NO 1954 (3) SA 352 (O) at p358, five factors were highlighted where the courts have a tendency to grant a removal of bar.

(vii) In Ferris v FirstRand Bank Ltd 2014(3) SA 39 CC the Constitutional Court held that lateness is not the only considering factor. The test for condonation is whether it is in the interest of justice to grant it, which includes factors such as applicant’s prospects of success and the importance of the issue to be determined.’

Explanation for the default

[14] The deponent to the founding affidavit in the application is Mr Mlungisi Nkabini, an attorney in the office of the State Attorney in Mahikeng. He advanced the following reasons in support of the

explanation of the inordinate delays emanating from the handling of the matter by the State Attorney.

[15] The matter was initially handled by Mr MJ Maphuta, an attorney in the

office of the State Attorney who passed away in September 2021. The office file was thereafter transferred to another attorney in the office of the State Attorneys by the name of Ms Masutu. On 2 May 2022, Mr Nkabini took the file over from Ms Masutu.

[16] Since this matter was allocated to Mr Nkabini, he sent several emails

to the applicant requesting instructions to appoint counsel. Instructions were eventually obtained and counsel was briefed on 27 January 2023. Mr Nkabini states that the application was drafted by counsel and was sent to Mr Nkabini’s email but that he overlooked the email, only to discover it when the applicant made enquiries about the status of the application. Having located the email containing the drafted application, Mr Nkabini prepared and served the application.

[17] Absent from the founding affidavit is a detailed explanation for the period between 27 January 2023, when counsel was instructed, and 4 October 2023, when the application was served.

[18] A further period that demanded a more thorough explanation is the period between 25 November 2019, when Mr Maphuta sent the first email requesting instructions from the applicant, up to 2 May 2022 when the matter was taken over by Mr Nkabini. Unfortunately, this period was dealt with cursorily in the founding affidavit.

[19] For the most part, the period spanning from 24 November 2019 up to 4 October 2023, when the application was served, is dealt with very tersely in the applicant’s founding affidavit.

[20] The extent of the explanation required when addressing the issue of condonation received attention in the judgment of the Constitutional Court in Grootboom v National Prosecuting Authority and Another[3] wherein following was remarked:

‘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.’

[21] The Applicant had given all but a full (and reasonable) explanation for its non-compliance with the Rules and failure to file its plea in time. Neither had the applicant provided any explanation for its failure to act as soon as the necessity arose to apply for the upliftment of the notice of bar.

Applicant acting in good faith

[22] When the notice of bar was served on 20 November 2019, the applicant took no steps to file a plea and thereafter failed to file an application to uplift the notice of bar. The first formal

reaction from the applicant was on 24 of January 2023 when the applicant requested the respondent to remove the default judgment

from the roll.

[23] Even though the respondent allowed the applicant a period of 20 days within which to bring the application, such an application did not see the light of day for a further eight months. It should be borne in mind that when the applicant eventually filed the application on 4 October 2023, the sword of an impending default

judgment application (set down for 22 January 2024) already hung over the head of the applicant.

[24] What is strikingly absent from the application is any indication of the existence of the applicant’s plea, even in draft form. The inattentive approach of the applicant is evident from paragraph 3 of the notice of motion wherein the applicant requests a further 10 days from the granting of the application to file its plea. No reasons have been advanced in the application for the applicant’s failure to draw the plea at this advanced stage of the proceedings, yet the applicant contends that it has a bona fide defence.

[25] It inevitably draws the inference that, at the time of the drafting of the application, the applicant had not committed itself to preparing a plea. No reasonable interpretation of the actions of the applicant can lead to the conclusion that the applicant had acted bona fide.

Bona fide defence

[26] The explanation of the applicant’s alleged offence is confined to the following statement in its founding affidavit:

‘The applicant has a bona fide defence and will plead in the main action the fact that the arrest was lawful and that the Respondent is not entitled to the amount that is being claimed’

[27] The description of the applicant’s defence is what can at best be described as cryptic. It is trite that the applicant is not expected to set out its defence in such particularity that this Court would be in a position to decide whether there is a balance of probabilities in favour of the applicant, although it is necessary that this Court should be persuaded of the fact that the applicant has a bona fide defence.

[28] To consider whether the applicant’s description of its defence measures up to the definition of a bona fide defence, the test as laid down in Maharaj v Barclays National Bank Ltd [4] is useful. The Supreme Court of Appeal in this matter laid down the following principles to be applied in assessing a bona fide defence.

‘Where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summons, or combined summons, are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the Court enquires into is: (a) whether the defendant has 'fully' disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) whether

on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is both bona

fide and good in law. If satisfied on these matters the Court must refuse summary judgment, either wholly or in part, as the case may be. The word 'fully', as used in the context of the Rule (and its predecessors), has been the cause of some Judicial controversy in the past. It connotes, in my view, that, while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence.’

[29] The generic description of the applicant’s defence is sorely lacking when the principles laid down in Maharaj are applied. Much more was expected of the applicant to establish a bona fide defence. In the result, the applicant falls short of meeting this requirement.

[30] In what nudges closer to an attempt to provide a description of a defence, the applicant states that once the notice of bar is uplifted, it will have an opportunity to raise the fact that the claim has fallen away upon the death of the respondent since litis contestatio had not been reached at the time of the death of Mrs Mogorogo.

[31] To put the matter in perspective, it is important to note that the notice of bar was filed on 20 November 2019 and Mrs Mogorogo passed away on 2 April 2020. The applicant suggests that at the time

of the death of Mrs Mogorogo, litis contestatio had not taken place. If viewed from the perspective of a normal defended case where a plea had been filed in time, this defence might be applicable. In relying on this point as a defence, the applicant loses sight of the fact that this matter had not run the normal course of a defended case, but that the matter had been concluded when the time for the filing of a plea in terms of the notice of bar had run out.

[32] In Government of the Republic of South Africa v Ngubane[5] the Supreme Court of Appeal likened the reaching of litis contestatio to the freezing of the plaintiff’s rights at that moment.

[33] In Nkala v Harmony Gold Mining Co Ltd[6] it was stated that:

‘The issue as to when the stage of litis contestatio is reached in the modern-day law is a complicated one. It is reached when pleadings are closed. But this is no simple matter. Guidance as to when pleadings are closed can be found in Rule 29 of the Uniform Rules of Court. It advises that pleadings are closed if all parties to the case have joined issue and there are no longer any new or further pleadings, or the time period for the filing of a replication has expired, or the parties have agreed in writing that the pleadings have closed and have filed their agreement with the registrar of the court, or the court, on application, has declared that the pleadings are closed. At that point the pleadings are treated as being closed and the proceedings are said to have reached the stage of litis contestatio. In everyday practice, they are normally closed as soon as the period for the filing of the replication has expired, for at that stage the issues have become identified and parties are able to commence preparation for battle.’

[34] Rule 29 provides that pleadings will be considered closed—

‘(a) if either party has joined issue without alleging any new matter, and without adding any further pleading;

(b) if the last day allowed for filing a replication or subsequent pleading has elapsed and it has not been filed;

(c) if the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar; or

(d) if the parties are unable to agree as to the close of pleadings, and the court upon the application of a party declares them closed.’

(own emphasis)

[35] In Chidi N.O. v Road Accident Fund[7] Kganyago J stated that:

‘In defended matters a party will be able to apply for a trial date after the pleadings have closed. In a case where the defendant had only entered an appearance to defend, but did not file a plea, the plaintiff will be entitled to apply for a date for a default judgment after filing a notice of bar and the defendant has been barred from pleading. Therefore, in that situation, the pleadings are considered to have been closed after the defendant has been barred from pleading.’

[36] Through the operation of the notice of bar, the last day allowed for the filing of a plea (the subsequent pleading) has lapsed and it had not been filed. On the pleadings as they currently stand, this Court can come to no other conclusion but that litis contestatio was reached when the time allowed for the filing of the plea in terms of the notice of bar ran out and no plea was delivered.

[37] In coming to the above conclusion it is therefore unnecessary to decide whether Mrs Mogorogo’s claim for general damages is transmissible to her deceased estate as she was alive at the time litis contestation was reached which leaves the claim transmissible to the deceased estate.

Prejudice

[38] The applicant refers to the prejudice it would suffer, only as a duty

resting on it to protect the public funds. This statement cannot stand unqualified. The applicant would only be able to protect the public purse if it is capable of convincing the trial court of its defence. From the allegations (or lack thereof) contained in the founding affidavit, it is clear that the applicant does not have a defence. Absent a defence, the conclusion to be drawn from the insistence of the applicant to proceed with the application is that the applicant is merely attempting to postpone the inevitable. On the other hand, the manner in which this matter has been dragged out had the unwelcome effect that Mrs Mogorogo died before there was finality to her claim.

[39] The deceased estate has been burdened with unnecessary legal costs while being deprived of any benefit it might have received had the claim been capable of being prosecuted to finalisation. As a

necessary consequence, the completion of the estate had inextricably been impeded.

Conclusion

[40] After thorough consideration of the principles listed herein, this Court can come to no other conclusion but to find that the applicant failed to establish good cause and as a result, the application stands to be dismissed.

Order

[41] Resultantly the following order is made:

M WESSELS

ACTING JUDGE OF THE HIGH COURT

Judgment reserved : 22 November 2024

Date of judgment : 21 February 2025

APPEARANCES

Counsel for Applicant : Adv Munyai

Instructed by

: State Attorneys

Mahikeng

Counsel for Respondent : Adv Legae

Instructed by

: Thwane Attorneys

Ga-Rankuwa

c/o Mothusi Marumo Attorneys

[1] Madinda v Minister of Safety and Security, Republic of South Africa [2008] ZASCA 34 par 10

[2] Wesley v Minister of Police [2023] ZANWHC 32 par 12

[3] Grootboom v National Prosecuting Authority and Another [2013] ZACC 37 par 23

[4] Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426 A-D

[5] Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A) at 608D- E

[6] Nkala v Harmony Gold Mining Co Ltd 2016 (5) SA 240 (GJ) at para188.

[7] Chidi N.O. v Road Accident Fund [2023] ZALMPPHC 47 par 10