Obiang v Van Rensburg and Others [2023] ZAWCHC 17; [2023] 2 All SA 211 (WCC) (3 February 2023)

The case involves Teodorin Nguema Obiang, the Vice President of Equatorial Guinea, who faced legal action initiated by Daniel Welman Janse van Rensburg, the first respondent. The background facts are as follows:

The first respondent was unlawfully imprisoned in Equatorial Guinea for 423 days, during which he claims to have suffered torture and assault. Following his release, he instituted action proceedings against the appellant, seeking damages for his unlawful incarceration. The first respondent successfully obtained a judgment against the appellant, which included a damages award of R39,882,000.00, plus interest and costs.

Prior to the action proceedings, the first respondent attached the appellant's immovable properties in South Africa to establish jurisdiction. A final order of attachment was granted concerning one of the appellant's properties located in Clifton, Cape Town. The appellant attempted to appeal this attachment order but was unsuccessful, with his applications for special leave to appeal being refused by the apex court.

The appellant's legal troubles escalated when he unilaterally terminated the mandate of his attorneys of record without appointing new legal representation for approximately eleven months. This decision led to significant procedural issues, including the striking out of his defenses due to non-compliance with a court order compelling him to file a discovery affidavit by a specified date. The order compelling discovery was made by agreement between the parties, and the appellant was aware of this obligation.

After the appellant terminated his attorneys' mandate, they filed notices of withdrawal, indicating that the appellant could be reached through the Embassy of Equatorial Guinea in Pretoria. Despite this, the appellant did not appoint new attorneys or take any steps to stay informed about the ongoing litigation. He only re-engaged with the legal proceedings when a warrant of execution was executed against his immovable properties.

The first respondent's attorneys served various court documents, including the application to strike out the appellant's defenses and notices of set down for the trial, at the address provided by the appellant's former attorneys. The appellant claimed ignorance of these proceedings, asserting that he did not receive any court documents after terminating his attorneys' mandate.

The appellant's application for rescission of judgment was based on the argument that he was not properly served with the court processes and that he was absent from the proceedings due to his former attorneys' actions. The court of first instance dismissed the rescission application, leading to the current appeal, where the appellant contended that the judgments against him were erroneously granted due to improper service and his alleged absence from the proceedings.

The ratio decidendi of the case centers on the principle that a party cannot benefit from their own negligence or inaction in legal proceedings. The court emphasised that the appellant was aware of the ongoing litigation against him and had a duty to remain vigilant and proactive in appointing new legal representation after terminating his previous attorneys.

The court found that the appellant's absence from the proceedings was not due to a lack of knowledge or improper service but rather a deliberate choice to disengage from the legal process. The court held that service of court documents at the address provided by the appellant's former attorneys was valid, and the appellant could not claim ignorance of the proceedings when he had the means to stay informed.

Furthermore, the court underscored the importance of the finality of judgments and the need for parties to comply with procedural rules. The appellant's failure to act in a timely manner and his subsequent attempt to leverage his own inaction to seek rescission of the judgment were deemed insufficient grounds for relief. Thus, the core legal principle is that a litigant must take responsibility for their legal representation and cannot evade the consequences of their choices in the litigation process.

The court relied on several cases in its reasoning process, including:

Zuma v The Secretary of the Judicial Commission of Inquiry Into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28.

Additionally, the court referenced the case of Mkwananzi and Another v Manstha and Another [2003] 3 All SA 222 (T) to support its reasoning regarding the responsibilities of a litigant in maintaining awareness of legal proceedings.

Another case cited was Scholtz and Another v Merryweather and Others 2014 (6) SA 90 (WCC), which discussed the principles surrounding service of process and the obligations of parties in litigation.

The reasoning of the minority, Justice Thulare, differed significantly from that of the majority in several key aspects:

1. Validity of Service: The minority expressed skepticism regarding the validity of the service of court documents on the appellant. Thulare J argued that serving documents on the appellant's former attorneys, who no longer had the authority to represent him, was not proper service. The minority contended that the first respondent should have been aware that the appellant's erstwhile attorneys were not entitled to accept service on his behalf, thus rendering the service ineffective.

2. Address for Service: The minority took issue with the address provided by the former attorneys, suggesting that it was not an appointed address for service but rather a courtesy. Thulare J emphasised that the address where the documents were served was a private residence, not the official embassy address, and questioned the appropriateness of using that address for service.

3. Knowledge of Proceedings: The minority was not convinced that the appellant had knowledge of the proceedings against him. Thulare J highlighted the importance of ensuring that a party is properly notified of legal actions, arguing that the appellant did not receive the necessary documents to be aware of the litigation, which ultimately led to judgments being granted against him without his participation.

4. Judicial Accountability: The minority stressed the need for judges to articulate their reasoning clearly, especially in cases involving significant procedural defects. Thulare J criticised the majority for not adequately addressing the issues of service and the implications of the appellant's absence from the proceedings.

In summary, while the majority focused on the appellant's responsibility to remain engaged in the litigation process and deemed the service valid, the minority emphasised the procedural irregularities and the importance of ensuring that a party is properly notified of legal proceedings. The minority's reasoning underscored a more protective approach to the rights of litigants, particularly regarding the necessity of proper service and the implications of a party's absence from the proceedings.