Minister of Police v van der Watt and Another (14511/2013) [2017] ZAGPPHC 920 (14 December 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 14511/2013

14/12/17

MINISTER OF POLICE APPLICANT

and

PIERRE CHRISTO VAN DER WATT FIRST

RESPONDENT

SHERIFF: PRETORIA CENTRAL SEOND

RESPONDENT

JUDGMENT

VAN DER WESTHUIZEN, A J

[1] This is an application in terms whereof the applicant seeks the rescission of two court orders granted by agreement. Ledwaba, DJP, granted the first order on 22 October 2015. Louw, J, granted the second order on 10 February 2017.

[2] The applicant premised its application on the alleged non-authority of its legal representatives to compromise and thus to agree to the two orders. In that regard, the applicant avers that due to the specific circumstances, its legal representatives required a special mandate to settle the matter. Hence it is submitted on behalf of the applicant that in view of the alleged lack in authority, the orders were erroneously granted in the absence of the applicant.

[3] The action related to the alleged unlawful arrest and detention of the first respondent by members of the applicant who had acted in their capacity as members of the South African Police Services. Flowing there form, the first order was granted on a concession by the applicant's legal representatives in respect of the issue of liability. The second order was granted in respect of the damages

allegedly suffered on the part of the first respondent as a result of the unlawful arrest and detention. The quantum was subsequently

settled between the legal representatives of the applicant and the first respondent.

[4] This application was not served upon the State Attorney and no facts were presented that the relevant attorney, originally tasked to attend to the matter, has any knowledge of this application and the serious allegations of misconduct that is directed at that attorney.

[5] The applicant was at all times material represented by an attorney, i.e. the State Attorney, as well as an advocate. On the first occasion that gave rise to the concession on the issue of liability, the relevant personnel of the applicant involved in the arrest and detention were present at court.

[6] It is alleged on the part of the applicant that when the relevant state attorney telephoned to obtain instructions to concede on the issue of liability and subsequently in respect of the issue of damages, the clear instructions were allegedly not to make any concession, nor to compromise on the issue of quantum of damages. In this regard, the applicant attaches a letter from the said attorney in which it is clearly recorded that the said attorney had the required and necessary instructions to so concede and compromise. The applicant then submits that the said letter is not confirmed under oath and hence does not constitute evidence. The fallacy of that submission is apparent. The applicant attaches the said letter. It refers thereto in its founding affidavit. The application is not served upon the State Attorney, or on the said attorney. It is part of the applicant's case in the application for rescission. It follows that it does constitute evidence to which this court can have regard.

[7] Furthermore, it is conceded on behalf of the applicant that a dispute exists on whether its erstwhile legal representatives had the requisite and necessary authority to compromise in respect of the action for unlawful arrest and detention. This is an issue that cannot be decided on the papers in the applicant's favour.

[8] The applicant apparently only became aware of the granting of the aforesaid court orders when the second respondent, the Sheriff,

attended at its offices with a writ to enforce the second order.

[9] The application for rescission is brought in terms of the provisions of Rule 42(1) of the Uniform Rules of Court, alternatively in terms of the common law. In that regard, the applicant relies on alleged iustus error on the part of the applicant's erstwhile attorneys.

[10] Rule 42(1) provides as follows:

"The court may, in addition to any other powers it may have, mero motu or upon the application of a party affected, rescind or vary:

(a) an order or judgment erroneously sought or granted in the absence of any party affected thereby;

(b) an order or judgment in which there is an ambiquity, or a patent error or omission, but only to the extent of such ambiquity, error or omission;

(c) an order or judgment granted as a result of a mistake common to the parties ."

[11] From the foregoing facts it is clear that the provisions of Rule 42(1) find no application in the present matter. Firstly, an attorney and counsel represented the applicant at all times material. The orders were consequently not granted in the applicant's absence. Furthermore, the orders were not granted in error. They were granted by agreement between the parties. Secondly, it is also clear that there is no ambiquity, patent error or omission in either of the orders. That much is not alleged on the part of the applicant. Thirdly, no mistake common to the parties has been alleged, nor shown.

[12] There remains the alternative premise for the rescission, i.e. that of alleged iustus error. In this regard it is trite that for a successful reliance on the ground of iustus error, it must be shown that the alleged error is reasonable or justifiable. In Weyer v Est Weyer[1] it was held that a iustus error is a “just and probable ignorance". The applicant dismally failed to indicate any “just and probable ignorance" on the part of its erstwhile attorney and counsel. In fact the opposite is alleged, namely that the applicant's legal team acted contrary to the direct and explicit instruction given to them by the applicant. Furthermore, no evidence was led and the merits were not determined. The parties came to an agreement on the merits.

[13] It follows that this ground for a rescission of the aforementioned orders is not available to the applicant.

[14] Furthermore, as submitted on behalf of the first respondent, the alleged facts in respect of the circumstances do not affect the first respondent's position. The first respondent was not a party to any discussion between the applicant and its erstwhile legal team when the instructions were obtained. The first respondent's legal team were merely advised of the instructions and acted bona fide in accepting the outcome of the request for instructions and proceeded thereafter in a bona fide manner. It is further submitted on behalf of the first respondent that at best for the applicant, the issue is one between the applicant and its erstwhile legal team. It is not alleged, nor submitted, that the first respondent, or his legal team, had acted in an untoward manner.

[15] Neither the judgment in Hlobo v MMF,[2] nor that of MEG for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga et al[3] support the applicant's contentions as recorded above.

[16] It follows that the application for rescission of the two court orders cannot succeed.[4]

I grant the following order:

(a) The application is dismissed;

(b) The applicant is to pay the first respondent's costs.

________________________

C J VAN DER WESTHUIZEN

ACTING JUDGE OF THE HIGH COURT

On behalf of Applicant: D T Skosana SC

S Mbhalati

Instructed by: S Ngomane Inc

On behalf of Respondent: A B Rossow SC

J C van Eeden

Instructed by: Gildenhuys Malatji Inc.

Date Heard: 8 November 2017

Judgment delivered: 14 December 2017

[1] 1939 AD 126 at 144

[2] 2001(2) SA 59 (SCA)

[3] 2010(4) SA 122 (SCA)

[4] See in this regard Hlobo, supra, at [10] et seq.; see also Colyn v Tiger Food Industries Ltd t/a Medow Feed Mills (Cape) 2003(6) SA 1 (SCA)