RESCISSION BY PERSON NOT A PARTY
Civil procedure – Default judgment – Property attached – Rescission application by owner who was not defendant – Locus standi – Legal interest in the action – Uniform Rule 42(1)(a).
Kwadukuza Municipality v Tiger Tales [2022] ZAKZPHC 46 at [7]-[15]
Facts: Summons was issued by Tiger Tales (trading as K9 Security) against Simsi Construction for payment for security services which had been rendered. Simsi did not defend the matter and default judgment was granted. A warrant of execution was issued and the sheriff attached various movables, which included tools, machinery and building material. The sheriff advertised his intention to sell the attached goods.
Appeal: The municipality launched an urgent application for the stay of the warrant and the sale in execution, pending an application for the rescission of the default judgment, contending that it was the owner of the goods that had been attached and that consequently it was a person affected by the judgment and entitled to apply for a rescission of the judgment. The magistrate dismissed the application for a stay and for rescission (both were heard together). The municipality now appeals.
Discussion: The magistrate’s reasoning that there was no point in rescinding the judgment if nobody was going to defend the action, and that the municipality would not have been able to join the action as a defendant and that its real remedy with regard to the attachment of its property would have been interpleader proceedings; that counsel for the municipality referred to a number of cases in which it was held that a person whose property was attached pursuant to a default judgment granted against someone else was a person affected by the judgment and could apply for it to be rescinded; the approach in the United Watch case on the wording of Uniform Rule 42(1)(a); and the applicant’s locus standi.
Findings: The municipality had no legal interest in the Tiger Tales action against Simsi for payment for services rendered. It therefore had no locus standi to apply for the rescission of the default judgment.
Order: The appeal is dismissed with costs.
PLOOS VAN AMSTEL J (BEDDERSON J concurring.)
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TRADITIONAL LEADERSHIP AND PAJA
Administrative law – Review – Traditional kingship – Determination of successor to the royal throne under the Traditional Leadership and Governance Framework Act 41 of 2003 – Failure to exercise statutory authority to investigate a contested traditional leadership position.
Sigcau v President of RSA [2022] ZASCA 121 at [37]-[50]
Facts: The kingship of amaMpondo dates back from the time of Faku who led the amaMpondo community from 1824 to 1867. A succession dispute over the years ended up in 2010 with the Commission on Traditional Leadership Disputes and Claims declaring that Zanozuko Tyelovuyo Sigcau was the rightful successor to the throne of the amaMpondo and the rightful king of that kingdom.
Appeal: Against the High Court’s refusal of the application to review the decision of the Commission and its refusal to set aside the recognition of Zanozuko as king by the President, pursuant to the Commission’s determination.
Discussion: The history of marriages and descendants and the disputes to the throne; the Traditional Leadership and Governance Framework Act 41 of 2003 (since replaced by the Traditional and Khoi-San Leadership Act 3 of 2019); the litigation history; undue delay; the challenge to the Commission’s 2010 determination; the customary law of amaMpondo; the failure to consider the appointment of Mpondombini in 1979; and Botha’s appointment in 1978 and how on the evidence before the Commission, the dispute between Botha and Nelson was resolved through a political process.
Findings: The version of the Commission showed that it did not regard suitability for office and popular acceptability as part of the relevant considerations for determination of an heir to the throne. The Commission disregarded the evidence and showed no interest to inquire into the suitability for office and popular acceptability aspects of those that contested the throne. The process followed by the Commission in discharging its duties under the Framework Act was fatally flawed.
Order: The appeal is upheld and the order of the High Court replaced with one reviewing and setting aside the determination of the Commission. The Queen or King is to be identified in terms of the process set out in section 8 of the Traditional and Khoi-San Leadership Act or in terms of the applicable law in force at the time governing the identification of the Queen or King.
MAKAULA AJA
(MAYA P and DAMBUZA JA, MAKGOKA JA and GORVEN JA concurring.)
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PSYCHIATRIC HARM – CAUSATION AND WRONGFULNESS
Delict – Psychiatric harm – Husband’s assault at work – Duty of care – Exception – Wrongfulness – Remoteness of causal nexus – Exception dismissed.
Sampson v Legal Aid [2022] ZANCHC 49 at [12]-[32]
Facts: Mr Sampson was formerly employed by Legal Aid as its Civil Principal Attorney and the office was in Kimberley. One day in 2018 Mr Sampson was assaulted at work by three unknown people at the lifts in the lobby of the building and sustained serious injuries, such that he has been unable to work.
Claim: Plaintiff is married to Mr Sampson and her claim against Legal Aid is based on its duty of care to the employees and to provide a safe working environment, including putting reasonable security measures in place. Ms Sampson claims R2 million in damages, contending that Legal Aid owed a duty of care to avoid the infliction of psychiatric illness on relatives of its employees, through nervous shock sustained by reason of physical injury or peril to its employees. Legal Aid excepts to the particulars of claim in terms of Uniform Rule 23 on the grounds that the claim lacks the allegations necessary to sustain a cause of action.
Discussion: The contention that the facts as pleaded do not establish wrongfulness; whether public or legal policy considerations dictate that the Legal Aid be held liable to Ms Sampson for the injuries sustained as a result of her husband’s injuries; whether wrongfulness is excluded by the provisions of s 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); the claim of psychiatric illness; the contention that the nexus was too remote, between the conduct of Legal Aid and Ms Sampson’s loss, to give rise to a delictual claim.
Findings: Evidence was necessary to establish whether the injury was an occupational injury. Ms Sampson’s pleadings encapsulate all the policy considerations that must be taken into account. The pleaded causal nexus between the alleged wrongful conduct and Ms Sampson’s losses are not too remote.
Order: The exception is dismissed with costs.
MAMOSEBO J
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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