In Halstead v MEC for Public Transport and Road Infrastructure of Gauteng, the Deputy Judge President ("DJP") of the Gauteng Division of the High Court of South Africa (Johannesburg) was tasked with dealing with an application for rescission of a previous judgment that the Gauteng High Court had delivered

Facts

The plaintiff was injured in a motor car accident on a provincial road. The plaintiff's case was that the sole cause of the accident was because of the Gauteng Department of Public Transport's roadbuilding activities.

On 30 August 2021, the case came before Acting Justice Segal, who was asked to grant default judgment. Prior to 30 August 2021, an order by consent had been secured to separate the question of liability and quantum. Accordingly, when the matter came before Acting Justice Segal, the only leg of the case that had to be decided upon was the defendant's liability.

On 5 August 2021, the plaintiff notified the defendant's attorneys by email that an application for default judgment was being sought, and the notice was further delivered by hand on 6 August 2021. In addition, a notice of set down was served on the defendant's attorneys (the State Attorney), but the State Attorney did not react to the emails or the notice of set down.

There was no notice of opposition and no plea filed and nothing whatsoever to contradict the evidence of the plaintiff's two experts.

The plaintiff therefore sought default judgement which was granted in the following terms:

"The question of liability is decided in favour of the plaintiff against the defendant, who is ordered to pay one hundred percent of such damages as the applicant may prove. The defendant shall pay the costs of suit on the party and party scale."

The defendant subsequently applied for recission of this judgement.

The judgment delivered by the DJP in relation to the recission of judgment application

The court held that while an affidavit supporting the rescission application was filed, the affidavit did not provide any proper explanation for the events between 5 August 2021 and 30 August 2021. In particular, the court pointed out that not only was there no reasonable explanation provided to the court, no explanation was provided at all.

In response to the State Attorney's suggestion that due to the events occurring during the COVID-19 pandemic, the office of the State Attorney was paralysed by lockdown provisions, the court held that a generalised statement that COVID-19 interfered with the workings of the office was insufficient.

The court held that the defendant failed to indicate in the rescission affidavit what the defence of the defendant might be to the allegation of negligence. The court remarked that having regard to the fact that the reports of two experts had been adduced before the default judgement court on 30 August 2021, and the rescission application was only heard in July 2023, it was apparent that the defendant made no effort whatsoever to address the allegations of negligence by either considering those reports and seeking countervailing advice, or by performing any other investigation.

The court thereafter dealt with the two points advanced by the defendant to support the rescission application:

  • The first point was that that there was a failure to serve the summons in 2019 on the State Attorney at the same time that the summons was served on the defendant. It was common cause that the summons was served on the defendant. The Court held that the case of Minister of Police and others v Molokwane, dealt specifically with this issue and found that it would be a mechanical nonsense to interpret the State Liability Act, 1957 in a way which obliges service on the State Attorney, in circumstances where there was service on the relevant minister's office. The court further held that there were numerous further steps taken in the mater, which would constitute a waiver against raising such a point.
  • The court then dealt with the defendant's second point which was that the particulars of claim were excipiable on the grounds that they were inadequate, given the provisions of Rule 18(4) of the Uniform Rules of Court. The Court acknowledged that while some criticism of the pleadings would be valid, it would have resulted in nothing more than an order directing the plaintiff to amplify its pleadings, but it certainly would not have led to the dismissal of the action.

Importantly, the DJP concluded, inter alia, that:

  • The manner in which the State Attorney conducted the matter was disgraceful and that he intended to report the matter to the Minister of Justice; and
  • There was no merit to the rescission application, and it was disgraceful that the public interest is prejudiced by the neglect of the State Attorney and the defendant.

The application for rescission was dismissed with a punitive order as to costs.

Key takeaway:

The courts will not be sympathetic to a badly handled case by an attorney and will report poor conduct of public servants if necessary.

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