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[2017] ZAGPJHC 46
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Banda v Banda (A3073/2016) [2017] ZAGPJHC 46 (17 February 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A3073/2016
Not reportable
Not of interest to
other
Revised.
17 February 2017
In
the matter between
Banda,
Flyson
Joseph Appellant
and
Banda,
Constance
Mpho Respondent
Judgment
Van
der Linde, J:
Introduction
and background
[1]
This is an appeal by an
ex-husband against an order by a magistrates' court dismissing an
application that he had brought for the
rescission of a default
judgment. The judgment that had been given against him by default was
by the magistrates' court, sitting
as a family court,
[1]
on 6 March 2015, although there is also a stamp dated 13 March 2015
on the order.
[2]
The order directed Old Mutual to pay out of the appellant's then
pension benefit into the Guardian's Fund an amount of R400
000 (not
R450 000 as the reasons for the judgment suggest) into an account in
the appellant's name; directed the Master to pay
from that account
R5000 per month from 1 January 2016 in favour of the appellant's two
dependent minor children, being L B ([…]1993)
and B B
([…]2005); directed that these funds be paid until the
children were self-supporting or a high court or maintenance
court
otherwise directed; and directed Old Mutual to pay an amount of R50
000 to the appellant’s ex-wife, the first respondent,
Constance
Mpho Banda (…), into her bank account with Nedbank, account
number […]. No costs order was made.
[3]
The rescission was refused on the basis that the court found that the
appellant's default was wilful. This was based on the
inference that
the notice of motion, which was served on the appellant's sister at
the appellant's last known address, actually
came to his knowledge.
The court also held that no good prospects of success on the merits
had been illustrated.
[4]
Before us appellant’s counsel stressed that the appellant felt
aggrieved that he had not had an opportunity to be heard
before the
order which he sought to have rescinded, was granted. Counsel
explained that in fact the parties have since been divorced,
and that
a settlement agreement that they had concluded, was in fact made an
order of court. That settlement agreement is not before
us, and we do
not know whether it in fact deals with the question and rate of
maintenance for the dependent children, in which
event this appeal
will be entirely academic.
The
legal requirements restated
[5]
The statutory framework within which the rescission application had
to be decided, is made up of Magistrates’ Court Rules
49(1) and
(3), and s.36(1)(a) of the Magistrates’ Court Act 32 of 1944.
These provide as follows (emphasis supplied).
“
Rescission and variation
of judgments
49.
(1) A party to
proceedings in which a default judgment has been given, or any person
affected by such judgment, may within 20 days
after obtaining
knowledge of the judgment serve and file an application to court, on
notice to all parties to the proceedings,
for a rescission or
variation of the judgment and
the court may, upon good
cause shown, or if it is satisfied that there is good reason to do
so
, rescind or vary the default judgment on such terms as
it deems fit: Provided that the 20 days' period shall not be
applicable
to a request for rescission or variation of judgment
brought in terms of subrule (5).
(2) …
(3) Where an application for
rescission of a default judgment is made by a defendant against whom
the judgment was granted, who
wishes to defend the proceedings, the
application must be supported by an affidavit
setting out
the reasons for the defendant's absence or default and the grounds of
the defendant's defence to the claim.
”
“
36 What judgments may be
rescinded
(1) The court may, upon application
by any person affected thereby, or, in cases falling under paragraph
(c), suo motu-
(a) rescind or vary any judgment
granted by it in the absence of the person against who that judgment
was granted;…”.
[6]
These provisions, and their
similar forebears, have through the years been applied to mean that a
successful applicant for rescission
will have given a reasonable
explanation for her default; her application will have been bona
fide; and she will have shown a bona
fide defence to the plaintiff’s
claim.
[2]
The
procedural facts
[7]
In this matter the original case against the appellant by the
respondent was an urgent application to secure R400 000 of
the
appellant’s full pension benefit for the future maintenance of
their two dependent children (there were three children
born of the
marriage). The concept was that the capital amount was to be paid
into the Guardian’s Fund, whence it was to
be paid to the
children at the rate of R5000 per month, until amended by a
subsequent appropriate court order; the balance remaining
after the
children will have become self-supporting would then be paid to the
appellant.
[8]
The founding affidavit was in the standard form that no doubt is used
regularly when a spouse seeks to attach the proceeds of
“an
annuity/pension fund/insurance company” with an employer of the
maintenance obliged other spouse. The relevance
of this observation
is that the affidavit is sparse and generalised.
[9]
At all events, when the matter was heard the appellant was in
default, the return of service reflecting that service on his
sister
had been effected, since the appellant “could not be found”.
The return describes the address as “the
respondent’s
place”, although the address itself is not identified. The form
of the order that was then granted is
reflected at the outset of this
judgment.
[10]Even
though counsel for the appellant did not refer to this in his address
to us, there clearly is some confusion concerning
the dates. The
respondent’s initial application gave notice that it would be
brought on 6 February 2015. Since the notice
of motion was signed on
26 February 2015, that was impossible. The reference must therefore
have been to 6 March 2015, for a reason
to which I refer below. The
return of service states that service on the appellant’s sister
took place on 2 February 2015,
but as indicated, the notice of motion
and founding affidavit were then not yet in existence. The founding
affidavit bears the
date stamp of the South African Police at Kagiso
(the Commissioner of Oaths), as being 25 February 2015. This date
likely bears
some credibility.
[11]The
service on the appellant’s sister thus likely took place either
on 26 February 2015 or 2 March 2015. On either date,
the appellant –
assuming that the papers got to his attention on the day of service –
would have appreciated that the
hearing could not have been intended
for 6 February 2015, and there was then still some time to make
enquiries as to the correct
date of the hearing. I revert to this
issue below.
[12]Although
the court order bears a date stamp of 13 March 2015, the Magistrate
appears to have signed the court order on 6 March
2015, which would
support the inference that the notice of motion intended to convey
that the hearing would be on 6 March 2015.
The
substantive facts, applied to the legal requirements
[13]I
turn now to the questions whether the appellant’s affidavit set
out “
the reasons for the defendant's absence or default and
the grounds of the defendant's
(the appellant’s)
defence
to the claim”
and, if so, whether either “
good
cause”
was shown, or the court ought to have been satisfied
that there was “
good reason”
to rescind the
judgment.
Reasons
for default
[14]Taking
these one by one, and starting with the reasons for the default, the
appellant’s affidavit makes two points: that
the person who
served the papers did not specify the address at which he served
them, and also did not furnish the name of the
appellant’s
sister. These assertions do not take the court into the appellant’s
confidence. The appellant could easily
have disclosed his address,
and could easily have disclosed the name of his sister. She could
easily have explained in a supporting
affidavit whether she had
received the notice of motion, and if she did, what she then did with
it.
[15]Without
the appellant saying why he was choosing not to disclose this
information, the inference is warranted that he did not
want the
court to infer that in fact the summons had come to his attention
much earlier than when, as he says, his attorneys only
told him on 15
May 2016 that an order had been obtained against him by default. It
follows that the reason for the default has
not been explained
satisfactorily.
Grounds
of defence
[16]As
to the disclosure of the grounds of his defence, the appellant says
in his affidavit that at the beginning of 2015 he and
the respondent
were in the throes of a divorce settlement. At a meeting between the
two sides (described in the popular jargon
as a “round table”
– “I attended a round table at the premises of the first
respondent’s attorneys”)
on 16 January 2016 the parties
agreed maintenance for the two dependent children at the rate of
R3500 per month. On 20 February
2015 he signed a settlement agreement
which reflected the maintenance in that amount. That is as far as the
assertions go.
[17]
There is no assertion that the settlement agreement was actually
accepted and signed by the respondent nor, more importantly,
that the
amount of R3500 per month was a reasonable amount in respect of the
maintenance of the two dependent children. Nor is
anything said about
any resistance to the payment of R400 000 to the Guardian Fund.
In these circumstances the setting out
of the grounds of the
appellant’s defence also falls short of what is required.
Good
cause? Good reason?
[18]The
more important consideration is whether good cause has been shown or
whether the court ought to have been satisfied that
there was good
reason to set aside the judgment. In considering these questions, the
court a quo was obliged to have considered
the total picture.
[3]
Not doing so, would constitute a misdirection that would entitle a
court of appeal to inference in the exercise by the court a
quo of
its discretion.
[19]What
confronted the court a quo? These were the facts. The parties were
involved in settlement negotiations as a precursor to
a divorce. The
appellant had accepted that he was obliged to maintain the two
dependent minor children. The appellant says that
the respondent had
in fact accepted the R3500 per month that the appellant was prepared
to pay. But if that were correct, then
surely the respondent would
certainly simply have signed the written settlement agreement in the
form presented.
[20]Continuing
with the facts. The interests of minor children were involved, and
the law regards these as paramount. The explanation
which the
appellant gave for his non-receipt of the notice of motion was, at
least, suspect. The appellant’s affidavit is
silent concerning
the question of the pension benefit; why was nothing said about any
grounds of resistance to the orders granted
in respect of this issue?
[21]And
finally, if the rescission were granted, the matter would have to be
enrolled for a determination by the court a quo as
to the appropriate
rate of an admitted maintenance obligation, while there would in the
meantime be no judicial clamp on the payment
out by Old Mutual to the
appellant of all of his pension benefit, only some 22,6% of which
served in terms of the court order as
security for payment of the
maintenance obligation.
[22]Weigh
against this scenario the prejudice potentially suffered by the
appellant if rescission were not granted: the current
court order
applied only until it was varied by an appropriate court. If, as the
appellant was contending, the parties had in truth
settled the
maintenance obligation, then the parties would presumably both sign
the written divorce settlement agreement straight
away, and the court
order that the appellant was seeking to challenge would simply, in
terms, implode. Or the appellant was free
to go to the maintenance
court and there argue for a reduction of the maintenance payable.
[23]Weighing
these contending considerations, I am not persuaded this court, even
if it were free to exercise a discretion afresh,
would have come to a
conclusion different to that of the court a quo.
[24]In
the result I propose the following order:
(a) The appeal is dismissed.
WHG van der Linde
Judge, High Court
Johannesburg
I
agree, and it is so
ordered.
BM Vally
Judge,
High Court
Johannesburg
For
the appellant: Adv.
Instructed
by Randela Attorneys
(c/o
Kwatta Attorneys)
4
th
Floor, Suite 404
83
Market and Von Brandis Streets
Johannesburg
Tel:
011 665 4993
Ref:
Randela/Div/B22
For
the first respondent: No appearance
17
Villa Olympus
Olympus
Drive
Faerie
Glen
Pretoria
[1]
The court order at p24 so describes the court that made the order.
[2]
Some of the leading cases are Grant v Plumbers (Pty) Ltd,
1949 (2)
SA 470
(O); Silber v Ozen Wholesalers (Pty) Ltd,
1954 (2) SA 345
(A); HDS Construction (Pty) Ltd v Walt,
1979 (2) SA 298
(E); and De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd, 1994
(4) SA 705 (E).
[3]
Compare De Witts Auto Body Repairs supra at p709 in fin.