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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) CASE NO. A-97/2002

In the matter of an appeal between :

MINISTER OF JUSTICE &

CONSTITUTIONAL DEVELOPMENT APPELLANT

And

MBUYISELI ROZANI RESPONDENT

____________________________________________________________

APPEAL JUDGMENT

____________________________________________________________

PETSE, J:

INTRODUCTION:

[1] This appeal emanates from the magistrate’s Court Lusikisiki as a sequel to an application for rescission of the judgment entered against the appellant in favour of the respondent by “consent” on 12 September 2001. I have put the word “consent” in parenthesis for reasons that will become more apparent later in this judgment. The application was

dismissed by the court a quo hence the present appeal. I shall, for the sake of convenience, refer to the parties by the titles used in the court below.

CHRONOLOGY OF EVENTS:

[2] The plaintiff instituted action for damages against the defendant on 11 September 2000 in which he claimed payment of the sum of R80 000.00 as and for damages alleged to have been suffered by him for unlawful arrest, detention and malicious prosecution.

[3] The summons was duly served on the defendant on 17 November 2000. The defendant in turn entered appearance to defend on 22 January 2001 and filed his plea on 20 March 2001 in which he denied liability to the plaintiff’s claim for the payment of the amount claimed in the plaintiff’s summons or any portion thereof.

[4] After the pleadings were closed the matter was set down for trial for the first time on 22 August 2001. On this date the trial was adjourned sine die and on 31 August 2001 the case was re-instated for trial with the fresh date of trial being 12 September 2001. It appears from the record of the appeal that in the meantime endeavours were made to explore a possibility of a settlement without recourse to trial which, however, came to naught.

[5] The matter ultimately came before the court below on 12 September 2001 for trial. On this date the plaintiff was represented by Mr Mgcotyelwa an attorney of F Jolobe and Company whilst the defendant was represented by Mr Ntayiya an attorney from Fikile Ntayiya & Associates acting as local correspondents on behalf of the State Attorney. The record of what transpired in court on this date reflects that judgment was granted by “consent” against the defendant in favour of the plaintiff for the payment of the sum of R30 000.00 as and for damages together with costs of suit.

[6] It was then thought by all those involved in the hearing of the matter that the action had been brought to its conclusion but alas that was not to be. The matter took an unexpected turn when the defendant contended that at no stage had he given a mandate to the State Attorney nor any attorney for that matter to enter into settlement negotiations with the plaintiff and settle the matter on the basis encapsulated in the judgment of the court a quo on 12 September 2001.

[7] Upon realising that a judgment had been granted against him in the circumstances outlined above the defendant instructed the State Attorney to apply for rescission of the judgment granted in favour of the plaintiff.

[8] The case made out by the defendant in his application for rescission which was filed of record on 20 November 2001 as can be discerned from the supporting affidavit of Mr Island Siqiti Maqoma (“Maqoma”) was basically that :

1. On 13 November 2001 he was advised by officials of the defendant that they had received a letter from the State Attorney’s office requesting them to effect payment of the sum of R30 000.00 in settlement of the judgment amount. Defendant’s officials did not know of the circumstances under which it came about that such a judgment was granted against the defendant and requested Maqoma to investigate the matter and report back to them as to the outcome of his investigations.

2. Following Maqoma’s investigation it transpired that the matter had been handled by Mr Mnyamana (“Mnyamana”) of his office who had since died and from whom he could not get a report of what had transpired. On perusing the relevant file Maqoma observed that Mnyamana had addressed a letter to the defendant requesting payment and that in response to such request the defendant had then requested to be furnished with a copy of the judgment.

3. The defendant was then furnished with a copy of the court order from which it became apparent that judgment had been granted by “consent” on instructions from Mr Mnyamana. The defendant on learning of this fact then advised Maqoma that he had at no stage authorised Mnyamana to settle the matter and tender the amount of R30 000.00 but had on the contrary given explicit instructions that the matter be strenuously defended.

4. In the light of the aforegoing the defendant then instructed Maqoma to institute an application for rescission of the judgment.

[9] I might digress to say that it is clearly evident from annexure “ISM1” to the affidavit of Maqoma (this being a copy of a letter addressed to the defendant by Mnyamana) that the defendant was in fact misled into believing that there had been a trial and that the court had in fact found against the defendant on the aspect of liability which was not the case.

[10] In opposing the rescission application the plaintiff contended, as appears from the opposing affidavit deposed to by Mr Ronald Fikile Nzwanzwa Jolobe (“Jolobe”) the attorney who represented the plaintiff, that :

(1) the defendant must have indeed authorised Mnyamana to consent to judgment for the defendant had sent to Mnyamana a “Credit Order Instruction Form” requiring Jolobe to sign it which Jolobe did so that payment in settlement of the judgment could then be effected.

2. that once the “Credit” Order Instruction Form” was signed and forwarded to the defendant several reminders were then sent to the defendant but none of those reminders elicited a response from the defendant.

2. that when Ms Anna Catherine Fourie of the defendant was telephoned she advised that payment had already been requested from the defendant’s Finance Section.

2. that other officials of the defendant had in fact advised Jolobe that payment would be effected soon and that the delay in effecting it was attributed to a computer technical glitch.

2. that Mr Ntayiya, the attorney who appeared on behalf of the defendant when the judgment was granted “by consent” had assured Jolobe that Mnyamana had the requisite mandate and authority to consent to judgment.

2. Jolobe then contended that on the above facts the probabilities were overwhelmingly in favour of his view that Mnyamana had the requisite mandate and authority and that the fact that appearance to defend and a plea had been filed was not an indication that the defendant had evinced a settled determination to defend the matter to the hilt and not to consent to a settlement at some point.

2. Jolobe concluded his affidavit by saying that for the aforegoing reasons the defendant did not have a bona fide defence to the plaintiff’s claim. He prayed for the dismissal of the defendant’s rescission application with costs.

[11] I think it bears mentioning that on a closer examination of the content of Jolobe’s affidavit it cannot be seriously contended by the plaintiff that Mnyamana had the requisite authority from the defendant despite categorical averments under oath to the contrary by the defendant’s officials. The inference is inescapable that the officials of the defendant set in motion steps to effect settlement of the judgment amount on the bona fide but mistaken understanding that they had lost the case

after a trial had been held. This explains why from the very outset they requested a copy of the judgment of the court in order to satisfy themselves of that fact. When none was forthcoming and when they in fact learnt that judgment had been taken “by consent” it was at that stage that they realised for the first time that Mnyamana had misrepresented the true state of affairs to them hence their instructions to Maqoma to institute rescission proceedings against the plaintiff.

[12] As it was required to do so the court a quo examined the allegations made in the defendant’s founding and replying affidavits as also those contained in the plaintiff’s answering affidavit resisting the grant of the relief sought by the defendant. Having considered the matter the court a quo came to the conclusion that the defendant had not made out a case for the relief sought and dismissed the application for rescission with costs. The question which then arises for consideration on appeal is whether the conclusion arrived at by the court a quo was the correct one. For the reasons which follow I am of the view that it was not.

THE ISSUES :

[13] The court a quo based its decision relative to the fate of the rescission application, as appears from the appeal record, on the fact that :

“The attorney Mr Mnyamana, is said to have not acted according to the instruction of his principal, the Department. A master is responsible and vicariously liable for the culpable acts of a servant only when they are done in the course of his employment. On the authority of Pothier SECS 453 and 456 our courts holds that an act done in the course of a servant, employment means “an act done in the exercise of the function to which the servant appointed FELDMAN v MALL AND SAUER v DUURSEMA, 1951 (2) SA 22 (O) 225A.

This was not an act done by a servant solely for his own interest. Mr Mnyamana had all the powers to defend the action and admit guilt and use his discretion as an attorney as he would have done in a criminal trial. He could not, for example have sought the Executive Head’s confirmation to accept a plea of guilt in criminal trial, he has a power of attorney to act on behalf of his principal.

The applicant has failed to add just a cause for the application for rescission of judgment to be granted and in the circumstances the applicant is dismissed with court.” (sic)”

[14] I feel constrained in passing to make an unfavourable comment in regard to the basis upon which the learned magistrate in the court a quo decided the matter. My comment is simply that the passage from the judgment of the learned magistrate quoted in paragraph 12 hereof is to me incomprehensible.

[15] It is therefore necessary in my view to determine at the outset what precisely was the defendant’s case in the rescission application.

[16] The defendant’s case is, in my view, simply that Mnyamana had not been authorised to consent to judgment and that his mandate was to contest the plaintiff’s claim. The bald statement by Jolobe that Mnyamana had the requisite authority cannot in my judgment pass muster when there are categorical averments under oath by the defendant’s officials to the contrary. This is even more so if regard is had to annexure “ISMI” which on the face of it appears to have been calculated to mislead the defendant into believing that the defendant had lost the case on the merits after a trial had been held which was clearly not the case. There can thus be no doubt that the contention by the defendant that Mnyamana had no authority to do what he did brooks of no argument to the contrary.

[17] In his reasons for judgment the learned magistrate in the court below found that the defendant had not made out a case for rescission and dismissed the application with costs. His reason for reaching this conclusion which is contained in his reasons for judgment furnished on 15 April 2002 reads thus:

“The attorney Mr Mnyamana, is said to have not acted according to the instruction of his principal, the Department. A master is responsible and vicariously liable for the culpable acts of a servant only when they are done in the course of his employment. On the authority of Pothier SECS 453 and 456 our courts holds that an act done in the course of a servant, employment means “an act done in the exercise of the function to which the servant appointed FELDMAN v MALL AND SAUER v DUURSEMA, 1951 (2) SA 22 (O) 225A.

This was not act done by a servant solely for his own interest. Mr Mnyamane had all the powers to defend the action and admit guilt and use his discretion as an attorney as he would have done in a criminal trial. He could not, for example have sought the Executive Head’s confirmation to accept a plea of guilty in criminal trial during trial. He has a power of attorney to act on behalf of his principal.

The applicant has failed to establish a just course for the application for rescission of judgment to be granted and in the circumstances the applicant is dismissed with cost.”

This, of course, is a repetition of the reason furnished by the learned magistrate in his ex tempore judgment. In my judgment the learned magistrate was clearly wrong. I will state my reasons in this regard as briefly as possible in order not to unduly overburden this judgment.

[18] In the first place Rule 49 (1) of the Magistrate’s Court Rules empowers a magistrate’s court to rescind or vary any judgment granted by such court if it is satisfied that there is good reason to do so. The concept of “good reason” and the phrase “if it is satisfied that there is good reason to do so” in Rule 49 (1) as it is presently formulated have been held to be wide enough to allow the Court in a rescission application to have regard to the dictates of justice in any given case untrammelled by the incidence of onus. In Wright v Westelike Provinsie Kelders Bpk 2001 (4) SA 1165 (C) at 1181 – 1182 the Court had the following to say with regard to the phrase “or if it is satisfied that there is good reason to do so” introduced into Rule 49(1) by the amendment to Rule 49 effected in 1997.

“[T] his widens the basis upon which a Court seized with an application in terms of Rule 49 may exercise its discretion in deciding the application. Van Reenen J’s obiter remarks at 1013 E – G concerning ‘a less stringent criterion’ should not, however, be construed to suggest that the phrase introduced to Rule 49(1) in 1997 lowers the threshhold for success in obtaining the rescission of judgments. The introduction of the phrase

merely affords jurisdictional power to a Court to grant an application for rescission of judgment in a case where “good cause” has not been shown by the Applicant. The power could be exercised in circumstances where the Court considers, for reasons other than those bearing on ‘good cause’ as defined with reference to the requirements listed in Rule 49 (3) that the justice of the case merits granting of the application. In other words, the Court is empowered by the introduction of the phrase to grant a rescission application if the exigencies of justice require it in an exceptional case, notwithstanding the existence of what would previously have been fatal deficiencies in the application’s founding papers. It allows the Court to have regard mero motto to the justice of the case untrammelled by the incidence of onus.”

[19] In the second place there is a preponderance of judicial authority for the proposition that an attorney requires the specific mandate of his client to conclude a settlement agreement on behalf of a client. [See in

this regard: Bikitsha v Eastern Cape Development Board and Another 1988 (3) SA 522 (E) at 527 H-J to 528 A-E; Goosen v Van Zyl 1980 (1) SA 706 (O) at 709 H]. Whilst it is generally accepted that the State Attorney, by reason of his general authority to act on behalf of the Government in the conduct of litigation against the Government enjoys a wider latitude than that which is ordinarily enjoyed by an attorney in private practice there seems to be a common thread running through all the cases that have to do with the extent of the mandate of the State Attorney emphasising the fact that the State Attorney is nonetheless required and expected to act bona fide in the furtherance of the client’s interests and more importantly not to act contrary to the client’s instructions. [See in this regard: Moult v Minister of Agriculture and Forestry, Transkei 1992 (1) SA 688 (Tk) at 692 C; Invoral Properties (Pty) Ltd v Sheriff Cape Town and Others 2005 (6) SA 96 (CPD) at 119D-F; Dlamini v Minister of Law and Order and Another 1986 (4) SA 342 (D)]

[20] In Xatula v Minister of Police, Transkei 1993 (4) SA 344 (Tk) at 532 Mall AJ held that:

“[a]lthough a Government Attorney does not require a power of attorney to act on behalf of a government department, I do not think that s 3 of the Act gives him general authority to conclude a settlement agreement on behalf of his client. For that he would require a specific mandate from his client.”

I wholeheartedly agree with this statement. Indeed any reasonable person would baulk at the suggestion that the State Attorney does not require the specific mandate of the client department in order to conclude an agreement on behalf of such department and that the State Attorney has liberty to conclude any settlement agreement on behalf of the department even against the wishes and/or instructions of the department and regardless of what the department might desire or wish to do. The cases heavily relied upon by Mr Noxaka in resisting the appeal are simply no authority for the submissions that he has advanced for all of them are at pains to point out that whilst an attorney has an implied authority to conclude a settlement agreement of the litigation on behalf of his/her client the attorney must act bona fide in the best interests of the client and not contrary to the specific instructions of the client. (Emphasis added). In this case it is the defendant’s case which has not been controverted even in the slightest that its specific instructions to the State Attorney were to strenuously defend the matter. There can thus be no doubt that the defendant had clearly evinced a determination to resist the plaintiff’s claim to the hilt. Earlier on in this judgment I alluded to the fact that Mnyamana did not act bona fide in concluding a settlement agreement with the plaintiff’s attorneys. Indeed on the evidence presented in the affidavits filed in respect of the application for rescission there is no doubt that as a matter of fact Mnyamana deliberately misrepresented the true state of affairs to the defendant with intent to mislead the defendant into believing that his instructions to defend the claim to the hilt had been carried out when in truth the converse was true.

[21] Before concluding on this point it bears mentioning that I consider the remarks of Leach J in Hawkes v Hawkes and Another 2007 (2) SA 100 (SECLD) to be apposite where the learned Judge expressed himself in these terms at 104 D-H:

“In the normal course of events the conduct of a party’s case at a trial of an action is in the entire control of such party’s counsel. However, although counsel has authority to compromise an action or any matter in it, no such compromise will be binding if it flies in the face of client’s instructions to the contrary. Thus in Ras v Liquor Licensing Board, Area No. 11, Kimberly 1966(2) SA 232 (C) 237E Van Heerden J said :

‘From the authorities cited to the Court it is clear that a client is not bound by the actions of his legal representative – attorney or counsel – where such representative has exceeded the mandate given him and he has achieved an object that had not been intended by his principal.’

In his memorandum W conceded that, ‘technically speaking, my mandate was to oppose the grant of the interim relief sought’, but stated that he gave the undertaking on behalf of the first respondent as he felt that successful opposition to the interim relief was ‘clearly not possible’. However, the undertaking he gave amounted to a capitulation, which was contrary to his instructions to oppose the interlocutory relief the applicant was seeking. In addition his action in ‘deeming’ himself authorised to give such undertaking without in fact obtaining instructions from the first respondent in that regard deprived her of the opportunity of discussing, considering and deciding upon a course of action with her legal representative, and indeed of terminating his mandate if he intended to act contrary to her wishes. This amounted to a failure of justice and in my view a court will not hold a party bound by an agreement concluded in such circumstances.” [See also in this regard: Benjamin v Gurewitz 1973 (1) SA 418 (A) at 428E-F; and Hlobo v Multilateral Motor Vehicle Accidents Fund 2001 (2) SA 59 (SCA) ([2001] 1 All SA 322) at 65C-D (SA)]

[22] If a client is therefore not bound by the actions and/or conduct of her/his legal representative (be it counsel or an attorney as it happened in this case) where such legal representative has exceeded the mandate given to her/him by her/his client and achieved an object that had not been intended by her/his client then a fortiori this is all more the reason to conclude that in casu the defendant is not bound by the “settlement agreement” concluded by Mnyamana contrary to the defendant’s express mandate to him. To hold otherwise would, as Leach J found in the Hawkes case, supra, amount to a failure of justice.

[23] In the alternative Mr Noxaka contended that the defendant’s rescission application was instituted outside the 20 day period prescribed in terms of the Magistrate’s Court Rule 49 (1).

[24] He therefore argued that as the defendant’s application for rescission was launched several months after the defendant had become aware of the judgment (which is not in dispute) it should never have been entertained by the court below without a substantive application for condonation filed evenly therewith. For this reason he contended that this appeal should not be entertained by this Court. That the learned magistrate would not have had jurisdiction to determine the application for rescission in the absence of an application for condonation if the application for rescission should have been instituted within the 20 day period prescribed in terms of Rule 49(1) is well settled. [See in this regard: Phillips t/a Southern Cross Optical v S.A. Vision Care (Pty) Ltd 2000 (2) SA 1007 (C) at 1011 A – B]. However, this argument in my view overlooks the fact that the defendant’s rescission application is based on sec 36 (b) of the Magistrate’s Court Act 32 of 1944 which allows an application that falls within its purview to be brought within a period of a year.

[25] In the last resort Mr Noxaka argued that in the event of the appeal being allowed the defendant should bear the costs occasioned by the hearing of the matter on 12 September 2001 when judgment was entered against the defendant as also the costs of the rescission application in the court below. I did not understand Mr Hinana who appeared for the defendant to seriously contend otherwise. In my view it seems to me that Mr Noxaka’s submission on this aspect of the matter has merit.

[26] For the aforegoing reasons it follows that this appeal should be allowed as I consider that the defendant’s application for rescission in the court below should have been successful.

[27] Before concluding this judgment I wish to take this opportunity to apologise to the parties for the delay in handing down this judgment. My Colleague was previously assigned the task to write the judgment but due to the fact that she has been overburdened with work at the Regional Court it became necessary for me to write this judgment so as not to delay the matter further conscious of the fact that any inordinate delay in handing down a reserved judgment not only violates the rights of the litigants to a speedy resolution of their dispute but also has the potential of bringing the administration of justice into disrepute. The Supreme Court of Appeal from which this Court and lower courts are enjoined by judicial authority to, as it were, take their tune has in the recent past held that there rests an ethical duty on Judges to give judgment or any ruling in a case promptly and without undue delay and that litigants are entitled to judgment as soon as reasonable possible. It has been said that compelling parties to await judgment for an indefinitely extended period weakens public confidence in the whole judicial process and if left unchecked it would be ultimately subversive of the rule of law. [See in this regard : Pharmaceutical Society of South Africa and Others v Thabalala – Msimang and Another NNO : New Clicks South Africa (Pty) Ltd v Minister of Health and Another 2005 (3) SA 238 (SCA) at 261 C]

[28] In the result the following order will issue :

1. The appeal is upheld with costs.

2. The judgment of the court a quo is set aside and the following order is substituted therefor:

1. The defendant’s application for rescission of the judgment entered on 12 September 2001 is granted.

2. The defendant is ordered to pay the plaintiff’s costs attendant upon the hearing of the matter on 12 September 2001 as also the costs of the rescission application.

_____________________________

X M PETSE

JUDGE OF THE HIGH COURT

I agree : CONJWA AJ

_________________________________

N. CONJWA

ACTING JUDGE OF THE HIGH COURT

HEARD ON : 23 JUNE 2006

DELIVERED ON : 07 JUNE 2007

COUNSEL FOR THE APPELLANT : MR M.N. HINANA

INSTRUCTED BY : THE STATE ATTORNEY

EAST LONDON

COUNSEL FOR THE RESPONDENT : MR A. F. NOXAKA

INSTRUCTED BY : MESSRS A. F. NOXAKA &

COMPANY

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