MEC for Economic Affairs, Environment and Tourism v Kruisenga and Another

• Jurisdiction: South Africa
• Judge: Van Zyl J
• Judgment Date: 30 April 2008
• Citation: 2008 (6) SA 264 (Ck)
• Docket Number: 1076/06
• Hearing Date: 30 April 2008
• Counsel: RG Buchanan SC (with X Nyangiwe) for the applicant. HJ van der Linde SC (with PE Jooste) for the respondents.
• Court: Ciskei High Court

Van Zyl J:

A. Introduction

E [1] The respondents (the first and second plaintiffs, respectively, in the action) are the owners of the farms Paardekraal and Stillerust in the district of Uniondale in the Eastern Cape Province. The farms of the respondents are bordered by the Formosa State Forest. The land on which the forest is situated is owned by the State. The applicant (the F defendant in the main action) in his capacity as the Member of the Executive Council (the MEC) for the Department of Economic Affairs, Environment and Tourism of the Eastern Cape Provincial Government (the department) is responsible for its administration in terms of national legislation. On 9 September 1999 a veldfire started in the State forest G that, over a period of days, spread to the adjoining properties of the respondents, allegedly causing extensive damage to vegetation and infrastructure. The respondents instituted an action against the applicant, claiming damages they allege to have suffered as a result of the fire. The grounds of negligence relied upon are, in essence, that the applicant, H acting through persons employed by the department, failed to take preventative measures to contain the fire in the forest, alternatively, failed to take steps, given the time period involved, to prevent the spread of the fire to the respondents' properties. The heads or items of damage are divided into the costs of repairs to damaged infrastructure, the replacement costs of damaged property and loss of income.

I [2] At the trial this court granted a judgment against the applicant for the payment of some of the amounts claimed by the respondents. The applicant thereafter instituted the present proceedings by way of notice of motion seeking, inter alia, rescission of the said judgment. The respondents opposed the application and have requested that it be J dismissed with costs on an attorney and client scale. At the hearing of the

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application Mr Buchanan appeared for the applicant and the respondents A were represented by Mr Van der Linde, together with Mr Jooste.

B. The factual background

[3] Applying the Plascon-Evans Paints [1] rule, the facts and circumstances which are relevant to the application can be summarised as follows: after B the respondents instituted the action in June 2003 the applicant raised a special plea of prescription. The plea was upheld and the respondents' claims were dismissed. The applicant, however, abandoned this judgment in October 2004. A pretrial conference was subsequently held on 8 March 2005. The minute thereof is dated 16 August 2005. It is signed by the attorneys representing the respective parties. In the minute C the applicant is recorded to have agreed to concede the 'merits of plaintiff's case' and 'the only aspect that remains in dispute between the parties and which remains to be resolved is that of quantum'. The matter was thereafter set down for trial on the agreed issue on 16 June 2006. However, before the commencement of the trial the applicant brought an D application for a postponement of the matter on the basis that he had not been able to consult any expert witnesses with regard to issues relating to the quantum of the respondents' damages. The respondents' agreed to the postponement.

[4] The trial was then set down for the week of 4 September 2006 when E the matter came before me. The applicant was represented by Mr X Nyangiwe and the respondents by Mr P Jooste. Mr Nyangiwe was instructed by Mr Sabelo Mgujulwa, an attorney in the office of the State attorney, and Mr Jooste by Mr N Pretorius. Because it was apparent from the court file and the pleadings which contained the pre-trial minutes F that the merits were no longer in dispute, I enquired from counsel and their respective attorneys in chambers on the morning of the trial whether any attempt had been made to reach a settlement in regard to the remaining issue. Both counsel confirmed that the issue was limited and indicated that they were prepared to attempt to settle the matter, but would require time in which to do so. During the course of the day the G applicant's counsel and attorney approached the respondents' legal representatives and informed them that they were unable to take instructions because the representatives of the applicant were not available and would only be available in the afternoon. I was informed in chambers of this development and it was agreed that the matter would H stand down until the next morning.

[5] The following day applicant's counsel and attorney arrived at court and they were accompanied by the applicant's expert witness as well as two employees in the applicant's department, namely, Mr Mboya and Ms Ndenze. Applicant's counsel informed the respondents' legal I representatives that he needed time to take instructions on a possible settlement and it was agreed that the matter would stand down, until after the midmorning tea adjournment. The matter stood down, whereafter

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A counsel approached me in chambers and I was informed by Mr Nyangiwe that he required more time and that they were in the process of making a proposal to the respondents' legal representative. An offer was made on behalf of the applicant, details of which were not disclosed and are not relevant to the present proceedings. The offer was apparently B rejected.

[6] A pre-trial conference was thereafter convened in order to ascertain which of the respondents' heads of damages as set out in the particulars of claim remained in issue between the parties after the settlement negotiations. As a result, a further minute was prepared and it was signed C by both counsel and the attorneys representing the respective parties. In this minute the applicant is recorded to have admitted liability for certain of the amounts claimed by the respondents as damages, whilst the issues arising from the remaining claims were more closely defined.

[7] On the same day the minute was placed before the court. At the trial, D notice was also given on behalf of the applicant of the intention to call an expert witness on the issue of quantum and a summary of the expert's opinion was delivered in terms of rule 36. The trial then commenced in respect of the heads of damages that remained in issue. The respondents presented the evidence of two witnesses. On 6 September and during the E course of the trial, applicant's counsel approached the respondents' legal representatives and informed them that applicant's expert witness was only available until that day as he had to attend a conference. Applicant's counsel conveyed his predicament to me in chambers. He accordingly requested a postponement of the matter. Counsel for the respondents F attitude was that no appropriate costs order would compensate for the prejudice which would result because of the postponement and he informed me that his instructions were to oppose any postponement of the matter. The respondents were only prepared to grant the applicant the indulgence of a postponement provided that the matter was not inordinately delayed and that the applicant's admission of liability in G respect of some of the amounts claimed be embodied in an order of the court. Applicant's counsel indicated that he did not hold specific instructions to consent to such an order. He, however, indicated that he found himself unable to advance any reason in opposition to the granting thereof.

H [8] I granted the applicant a postponement of the matter and acceded to the request to grant an order for the applicant to pay to the respondents the amounts in respect whereof the applicant admitted liability. In granting the order (hereinafter referred to as 'the judgment') I considered the further delay the postponement would cause in finalising the I matter, and counsel's submission that the order may assist in alleviating the financial plight of the respondents which they find themselves in as a result of the fire and the loss they have suffered.

C. The relief claimed

[9] The relief claimed is aimed at affording the applicant an opportunity J to reopen the case on the issue of liability (the merits). According to Mr

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Mboya, a senior manager responsible for litigation in the department, he A formed the view that the court may, after hearing evidence on the merits, hold that the applicant is not liable at all, or, that an apportionment of liability should follow. The applicant should therefore be given an opportunity to prepare and present a defence on the merits of the respondents' claims. B

[10] In order to achieve this result, the relief which the applicant seeks is twofold. The first prayer in the notice of motion is for an order rescinding and setting aside the judgment. However, because the admissions recorded in the minutes dated August 2005 and September 2006 present another obstacle to the applicant reopening the case on the C merits, the applicant also seeks an order authorising the withdrawal of the said admissions. Insofar as costs are concerned, the applicant has tendered payment of the costs of the application, including any costs the respondents may reasonably have incurred in considering and opposing the application.

D. The applicant's case D

[11] The applicant's case for the relief claimed is based solely on the State attorney's lack of authority to concede the merits of the action and to agree to the payment of the amounts claimed in respect of certain of the heads of damages. Whilst admitting that the applicant was at all E material times represented by the office of the State attorney, the MEC contends in his affidavit that the State attorney had no general or specific mandate to make 'such far reaching' concessions, or to agree to an order being made against the department, the effect of which is to...