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[2017] ZAGPJHC 242
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D v V (A3062/2016) [2017] ZAGPJHC 242 (31 August 2017)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3062/2016
Not
reportable
Not
of interest to other judges
Revised.
31/8/2017
In the matter
between:
N
D
Appellant
and
W
V
Respondent
JUDGMENT
FISHER
J:
[1]
This is an appeal against an order handed down in the the
Magistrate’s Court sitting in terms of the Domestic Violence
Act 116 of 1998 (“
the Act
”), refusing the setting
aside of the confirmation of a protection order.
[2]
The appellant and the Respondent were previously in a romantic
relationship. The relationship ended, and the respondent alleged
that, in the aftermath of the breakdown, she was physically and
verbally abused by the appellant and that this conduct also
constituted
emotional and psychological abuse. An interim order was
granted by the Magistrate on the strength of the respondent’s
allegations
and a return date was set for 26 April 2016.
[3]
It is not in dispute that the appellant was timeously informed of his
right to appear on the return date and provide reasons
as to why the
order should not be confirmed. He was informed also that if he did
not appear he was in jeopardy of having the order
confirmed against
him.
[4]
S 6(1) of the Act provides that, if the respondent does not appear on
the return date and the court is satisfied that (
a
) proper
service has been effected on the respondent; and (
b
) the
application contains
prima facie
evidence that the
respondent has committed or is committing an act of domestic
violence, the court “
must
” issue a protection
order in the prescribed form. The terms of the section are
peremptory. Reference to the application for
the order shows that it
was properly issued by the Magistrate.
[5]
In terms of s 10(2), if the court is satisfied that “
good
cause
” has been shown for the setting aside of the
protection order, it may issue such an order.
[6]
In
Chetty v Law Society of Transvaal
1985 (2) SA 756
(A)
at
756 Miller JA defined the test for determining good cause thus:
“
The
term "sufficient cause" (or "good cause") defies
precise or comprehensive definition, for many and various
factors
require to be considered. (See Cairn's Executors v Gaarn
1912
AD 181
at 186 per Innes JA.) But it is clear that in
principle and in the long-standing practice of our Courts two
essential
elements of "sufficient cause" for
rescission of a judgment by default are:
(i)
that the party seeking relief must present a reasonable and
acceptable explanation for his default; and
(ii)
that on the merits such party has a bona fide defence
which, prima facie, carries some prospect of success.
(De
Wet's case supra at 1042; PE Bosman Transport
Works Committee and Others v Piet Bosman Transport (Pty)
Ltd
1980
(4) SA 794
(A)
; Smith
NO v Brummer NO and Another; Smith NO v Brummer
1954
(3) SA 352
(O)
at
357 - 8.) It is not sufficient if only one of these two requirements
is met; for obvious reasons a party showing no prospect
of
success on the merits will fail in an application for
rescission of a default judgment against him, no matter how
reasonable and convincing the explanation of his default. And ordered
judicial process would be negated if, on the other hand,
a party who
could offer no explanation of his default other than his disdain of
the Rules was nevertheless permitted to have a judgment
against
him rescinded on the ground that he had reasonable prospects of
success on the merits. The reason for my saying that the
appellant's
application for rescission fails on its own demerits
is
that I am unable to find in his lengthy founding affidavit,
or
elsewhere in the papers, any reasonable or satisfactory explanation
of his default and total failure to offer any opposition
whatever to the confirmation on 16 September 1980 of the
rule nisi issued on 22 April 1980.
[7]
At 767J–769D: the learned Judge expounded further as
follows in relation to the application of this test:
"
As
I have pointed out, however, the circumstance that there may be
reasonable or even good prospects of success on the merits would
satisfy only one of the essential requirements for rescission of a
default judgment. It may be that in certain circumstances, when
the
question of the sufficiency or otherwise of a defendant's explanation
for his being in default is finely balanced, the circumstance
that
his proposed defence carries reasonable or good prospects of success
on the merits might tip the scale in his favour in the
application
for rescission (cf Melane v Santam Insurance Co
Ltd 1962 (4) SA 531 (A) at 532). But
this is
not to say that the stronger the prospects of success the more
indulgently will the Court regard the explanation of the
default. An
unsatisfactory and unacceptable explanation remains so, whatever the
prospects of success on the merits. In the light
of the finding that
appellant's explanation is unsatisfactory and unacceptable it is
therefore, strictly speaking, unnecessary
to make findings or to
consider the arguments relating to the appellant's prospects of
success.” (See also Colyn v
Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA)
at paragraph 11)
[8]
The appellant proffers only one sentence in explanation for his
failure to appear on the return date: “…
I could not
attend as I was booked off ill by a Dr. L. N. Basongo as from 22
nd
of April 2016 to the 29
th
day of April
2016
.” As purported substantiation for this explanation he
attached a doctor’s note dated 22 April 2016 which states that
the “
nature of the the illness
” is “
bronchitis
”
and recommends that he be on “
sick leave
” for the
period 22 to 29 April 2016. Pertinently, the note gives no diagnosis
although there is provision made for such diagnosis
to be made. The
appellant annexed also a leave request form made by him to his
employer on the strength of the note.
[9]
The Magistrate found that his failure to appear was not explained
merely by stating that he was booked off work because of a
sickness
of the nature of bronchitis. In my view, the Magistrate cannot
be faulted in his finding that this explanation is
unacceptable.
On the face of it, it is no explanation at all. No detail is
given as to the nature of the symptoms suffered
by the appellant,
which may have prevented him from making his way to the scheduled
court date. It does not follow from the fact
that a general
practitioner recommends that a person does not attend work that he is
unable to attend important court proceedings.
In any event, the
note is not provided under oath and it is thus not evidence.
[10]
In
Neuman (Pvt) Ltd v Marks
1960 (2) SA 170 (SR),
Murray CJ helpfully characterised wilful default as follows (at
173A):
“
The
true test, to my mind, is whether the default is a deliberate one –
i.e. when a defendant with full knowledge of the set
down and of the
risks attendant on his default, freely takes a decision to refrain
from appearing
”
[11]
In
Maujean t/a Audio Video Agencies v Standard Bank of South
Africa Ltd
1994 (3) SA 801 (C) at 803 King J
followed this approach and held as follows:
“
More
specifically in the context of a default judgment ‘wilful’
connotes deliberateness in the sense of knowledge of
the action and
of the consequences, its legal consequences and a conscious and
freely taken decision to refrain from giving notice
of intention to
defend, whatever the motivation for this conduct might be.”
[12]
Applying the above principles, it is clear that the judgment was
properly granted by the Magistrate in accordance with the
prescribed
procedure. Taking into account what can only be seen as a
deliberate decision by the appellant not to attend court
on the
return date; this Court cannot find that the approach of the
Magistrate was not a proper exercise of discretion.
I
thus order as follows:
1.
The appeal is dismissed with costs
________________________________
D FISHER
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I Agree:
___________________________________
K PILLAY
ACTING JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date
of Hearing: 1
st
August 2017.
Judgment
Delivered: 31
st
August 201
7
APPEARANCES:
For
the Applicant: Adv Sheioagh Instructed by Diemieniet Attorneys.
For
the Respondent:
Adv Nkhumane Instructed by Legal Aid.