Fidelity Security Services (Pty) Ltd v Gaba (638/2020) [2021] ZAECPEHC 32 (27 May 2021)

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[2021] ZAECPEHC 32
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Fidelity Security Services (Pty) Ltd v Gaba (638/2020) [2021] ZAECPEHC 32 (27 May 2021)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No:638/2020
In
the matter between:
FIDELITY
SECURITY SERVICES (PTY) LTD
Applicant
and
THEMBILE
HAPPYBOY
GABA
Respondent
In
re:
THEMBILE
HAPPYBOY
GABA

Plaintiff
And
FIDELITY
SECURITY SERVICES (PTY) LTD
Defendant
JUDGMENT
Govindjee
AJ:
Background
[1]
This is an application for the rescission and setting aside
of a
default judgment granted in favour of the respondent on 1 September
2020. The respondent, a policeman, was shot in the shoulder
by a
security officer acting in the course and scope of his employment
with the applicant. The applicant is a national provider of
security
services and has an extensive branch office network throughout South
Africa, employing approximately 60 000 security
officers. Its
legal department is based at the company’s head office and all
litigation is dealt with centrally.
[2]
The
respondent issued a summons which was received by the applicant’s
legal department shortly before the onset of the Covid-19
national
lockdown. He obtained default judgment in the amount of R1,1 million
on 1 September 2020.
[1]
The
applicant’s group legal adviser apparently only became aware of the
judgment on 2 December 2020, when a Sheriff served a warrant
of
execution at the defendant’s Gqeberha branch office.
Rule
42(1)(a)
[3]
The applicant seeks to rescind the judgment in terms of Rule
42(1)(a)
of the Uniform Rules of Court (‘the Rules’), alternatively in
terms of Rule 31 or in terms of the common law. Its primary
submission in respect of Rule 42 is that:
‘
There are
additional facts and issues of law which were not brought to the
Court’s attention when the application for default judgment
was
heard; and had the Court been aware of these additional facts and
issues of law, the Court would (in all probability), not have
granted
default judgment against the application…’
[4]
The
‘facts’ which the court was allegedly unaware relate to the
respondent’s possible claim in terms of the
Compensation
for Occupational Injuries and Diseases Act
[2]
(‘COIDA’).
[3]
From this, the
applicant concludes that the respondent cannot recover from the
applicant as damages that which he is entitled to
claim from the
COIDA Compensation Fund.
[4]
[5]
Rule 42(1)(
a
) provides that:
‘
The court may, in
addition to any other powers it may have,
mero motu
or upon
the application of any party affected, rescind or vary an order or
judgment erroneously sought or erroneously granted in
the absence of
any party affected thereby.’
[6]
The
purpose of the rule is to grant the court a discretion ‘to correct
expeditiously an obviously wrong judgment or order’.
[5]
It follows that the court does not have a discretion to set aside an
order in terms of the subrule where one of the jurisdictional
facts
contained in paragraphs
(a)-(c)
of
the subrule does not exist.
[6]
The following principles are relevant:
[7]
·
The rule caters for a mistake in the proceedings;
·
The mistake may either be one which appears on the record of
proceedings or one which subsequently
becomes apparent from the
information made available in an application for rescission of
judgment;
·
A judgment cannot be said to have been granted erroneously in the
light of a subsequently disclosed
defence which was not known or
raised at the time of default judgment;
·
The error may arise either in the process of seeking the judgment on
the part of the applicant for
default judgment or in the process of
granting default judgment on the part of the court; and
·
The applicant for rescission is not required to show, over and above
the error, that there is good
cause for the rescission as
contemplated in rule 31(2)
(b)
.
[7]
It has
been suggested, in general terms, that a judgment is erroneously
granted if there existed at the time of its issue
a
fact of which the court was unaware
,
which would have precluded the granting of the judgment and which
would have induced the court, if aware of it, not to grant the
judgment.
[8]
The subrule clearly
does not cover orders wrongly granted.
[9]
It has been held that a judgment to which a party is procedurally
entitled in the absence of the defendant cannot be said to have
been
granted erroneously within the meaning of this subrule by reason of
facts of which the court was unaware at the time of granting
the
judgment.
[10]
[8]
In
Colyn
, the SCA considered an appeal against the
dismissal of an application for rescission of an order for summary
judgment, both in terms
of Rule 42(1)
(a)
and the common law.
Papers in the summary judgment application were erroneously not
forwarded to the Belville office of the attorney
attending to the
matter, and summary judgment was obtained by default. It was accepted
that the defendant wanted to defend the action
and would have done so
if the application had been brought to the attention of his attorney.
[9]
The
SCA confirmed that the rule caters for mistake and that rescission or
variation does not follow automatically upon proof of mistake.
Courts
have a discretion to be exercised judicially.
[11]
Being a Rule of Court, the ambit is entirely procedural and confined
by its wording and context to the rescission or variation of
an order
erroneously sought or erroneously granted in the absence of an
affected party.
[12]
[10]
The
court relied upon
De
Wet and Others v Western Bank Ltd
[13]
in confirming that the filing error in the office of the Cape Town
attorneys was not a mistake in the proceedings. It could therefore
not be held that the order was erroneously sought by the plaintiff or
erroneously granted by the judge.
[14]
The same reasoning applies in this case. The COIDA point does not
constitute a ‘fact’ of which the court was unaware at the time
judgment was granted. It is probably best described as a subsequently
disclosed defence which was not known or raised at the time
of
default judgment, and which is not a basis for claiming that the
judgment was erroneously granted. Even if that point did constitute
a
‘fact’, the respondent was procedurally entitled to the default
judgment and that judgment cannot be set aside on this basis.
As the
Colyn
scenario demonstrates, the circumstances that resulted in the
granting of default judgment are insufficient to establish that there
is a mistake in the proceedings that resulted in the judgment being
erroneously sought or granted.
Rule
31(2)
(b)
and the common law claims
[11]
Rule
31(2)
(b)
provides that ‘a defendant may within 20 days after acquiring
knowledge of a default judgment apply to court upon notice to the
plaintiff to set aside such judgment and the court may, upon good
cause shown, set aside the default judgment on such terms as it
deems
fit’. The phrase ‘good cause’ defies comprehensive definition,
involving the exercise of a judicial discretion and requiring
a
flexible approach. Broad principles of justice and fairness must be
appreciated by the court, which must consider all the relevant
facts
and circumstances of the case as a whole.
[15]
[12]
The
more specific requirements for an application for rescission under
this subrule have been stated to be as follows:
[16]
·
The applicant must give a reasonable explanation of his default;
·
The default should not be wilful or due to gross negligence;
·
The application must be
bona fide
and not made with the
intention of merely delaying the plaintiff’s claim;
·
A
bona fide
defence to the plaintiff’s claim must be shown.
It is generally sufficient if the applicant makes out a
prima
facie
defence, carrying some prospect of success, in the sense of
setting out averments which, if established at the trial, would
entitle
the applicant to the relief sought. The applicant need not
deal fully with the merits of the case and produce evidence that the
probabilities
are actually in its favour.
[13]
These
requirements are akin to the common law principle that a judgment
granted by default can be set aside.
[17]
The court have interpreted these requirements in a number of cases.
It has been held, for example, that the explanation for the default
must be sufficiently full to enable the court to understand how it
really came about, and to assess the applicant’s conduct and
motives. An applicant will not be in wilful default if its default is
due to a mistake or non-compliance with the rules, on its own
part or
that of its legal representative.
[18]
Where the applicant has provided a poor explanation for default, a
good defence may compensate.
[19]
A
bona
fide
defence has to be established before rescission is granted, meaning
that the defendant must honestly intend to place before a court
a set
of facts which, if true, will constitute a defence.
[20]
It remains the court’s task to consider all the relevant facts and
circumstances applicable, and to exercise a judicial discretion
following the application of a flexible approach centred on the
principles of justice and fairness. In respect of the two core
requirements
of propects of success and explanation of default, the
Appellate Division (as it then was) has held as follows:
[21]
‘
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…’
[14]
I have
no difficulty in accepting that the applicant is not in wilful
default. The application has also not been made with the intention
of
merely delaying the respondent’s claim. The applicant’s
explanation of the default is, however, unsatisfactory, and
ultimately
amounts to seeking reliance on the Covid-19 pandemic to
explain its conduct. The time to enter an appearance to defence
expired prior
to the commencement of the country’s lockdown and
default judgment was obtained some five months later (on 2 September
2020). The
applicant also failed to deal with the matter at all until
2 December 2020 when it became aware of the default judgment. This is
almost nine months after summons was served. The applicant was an
essential service provider operating during the lockdown and the
proffered explanation about how the summons ‘fell through the
cracks’ is extremely vague. As the court held in
Colyn
:
[22]
‘’
I have
reservations about accepting that the defendant’s explanation of
the default is satisfactory. I have no doubt that he wanted
to defend
the action throughout and that it was not his fault that the summary
judgment application was not brought to his attention.
But the reason
why it was not brought to his attention is not explained at all. The
documents were swallowed up somehow in the offices
of his attorneys
as a result of what appears to be inexcusable inefficiency on their
part. It is difficult to regard this as a
reasonable
explanation…Even if one takes a benign view, the inadequacy of this
explanation may well justify a refusal of rescission on that
account
unless, perhaps, the weak explanation is cancelled out by the
defendant being able to put up a
bona fide
defence which has
not merely some prospect,
but a good prospect of success
(
Melane v Santam Insurance Co Ltd
).’ (Own emphasis).
[15]
The assessment of the explanation of the default affects what the
court would expect
to find in the papers in respect of the prospects
of success. Had the explanation for the delay been a good one, even
slim prospects
of success on the merits may have sufficed. The
explanation being as it is, something more (namely, good prospects)
is required.
[16]
There
is no doubt that in appropriate cases ‘an unsatisfactory
explanation furnished by an applicant for rescission may well be
compensated for by good prospects of success on the merits.’
[23]
The court in
Melane
in fact made reference to ‘strong prospects’ being required in
circumstances where the delay was lengthy.
[24]
Nevertheless, it is true that the applicant is not expected to deal
fully with the merits of the case and produce evidence that the
probabilities are actually in its favour. The key issue for
consideration is whether the applicant has been able to put up a
bona
fide
defence
to the claim
which
has good prospects of success
.
[25]
In determining whether good or sufficient cause has been shown, a
court should not look at the adequacy or otherwise of the explanation
of default or failure in isolation. Instead, the explanation must be
considered in the light of the nature of the defence and in
the light
of all the facts and circumstances of the case as a whole.
[26]
[17]
Cases
such as
Scholtz
and another v Merryweather and others
[27]
confirm that it is not necessarily the function of the court to apply
too detailed an analysis of the available evidence. Instead,
the
version put up in the founding affidavit forms the primary basis for
considering whether a
prima
facie
defence to the respondent’s claim for damages has been made out,
with good prospects of success. The court’s function is to perform
a balancing act and to evaluate all of the relevant facts before it
in order that justice can be done between the parties.
[28]
In particular, the adequacy or otherwise of the explanation of the
default or failure, whether good, bad or indifferent, must not
be
viewed in isolation. Instead, it must be considered together with the
nature of the defence and in the light of all the facts
and
circumstances of the case as a whole.
[29]
[18]
The applicant relies on lack of wrongfulness, suggesting in its
founding affidavit
that the intention to assault anyone was absent.
In addition, ‘the plaintiff…without justifiable cause and without
identifying
himself / themselves, forced open the door of the guard
hut, (which is private property) and which guard hut was lawfully
occupied
by the security officers at the time.’ Believing
themselves to be under attack by robbers or criminals, one of the
security officers
discharged a gunshot. In the alternative, it
suggests that it will plead that the court should order an
apportionment of damages
based on contributory negligence.
[19]
While
there is a dispute on the papers as to whether the respondent
identified himself prior to entering the guard hut, it is important
that a criminal court has already found the applicant employee’s
conduct in the shooting to be negligent beyond reasonable doubt.
[30]
That employee has not favoured the court with an affidavit regarding
his version of events. There is also nothing on the papers from
the
other security officer that was in the hut at the time. It is not
disputed that the employee was acting in the course and scope
of his
employment with the applicant at the time, and such conduct must, in
addition, be considered to be
prima
facie
wrongful.
The other elements for delictual liability have not been raised. As
to the suggestion that the respondent was himself negligent
(and,
presumably, acted wrongfully), no real basis for this has been set
out in the application. There is also no case on the papers
suggesting that the order was excessive and that the quantum of
damages should be considered afresh.
[31]
To the extent that there may have been some negligence on the part of
the respondent, no explanation has been provided as to how
this might
affect the applicant’s liability to the respondent given that the
respondent avers that the judgment is for an amount
less than the
full damages suffered. While none of these facts are
per
se
decisive in terms of whether or not the application for rescission
should succeed, they are factors to be considered when this court
exercises its general discretion in relation to the relief now
claimed, and in particular in determining whether good prospects have
been demonstrated.
[32]
[20]
In
Scholtz
,
for example, the defence offered by the applicant was completely
different to the version of the respondent. The matter also related
to injuries caused. Similar to the argument in this matter, the
applicant claimed that he acted in self-defence in response to an
unlawful attack on him by the respondent, and, as in this case,
wished to advance that argument if permitted to file a plea. The
court in that case noted that the applicant sought rescission in
order to vindicate his right to a fair public hearing, which accords
with the provisions of s 34 of the Constitution of the Republic of
South Africa, 1996. A similar argument may have been advanced
in this
case. In exercising its discretion in
Scholtz
,
the court emphasised the importance of considering issues of
prejudice.
[33]
Despite the
applicant in that case having tendered the respondent’s costs in
the rescission application and future costs in respect
of the
hearings on the merits and quantum, backed by a suretyship, the
prejudice to the respondent was considered to outweigh the
prejudice
to the applicant,
[34]
and the
court ultimately dismissed the application for rescission.
[35]
In doing so, it remarked that the applicant had ‘…a long way to
go to persuade a court that he was not responsible for Merryweather’s
injuries – whether intentionally or negligently’ and that this
‘…may account for his manifest indifference throughout’.
The
same may be said upon a conspectus of the papers in this matter.
[21]
The applicant’s other submission, at least on the papers, is that
the plaintiff’s
claim lies against the Compensation Fund, seemingly
exclusively, alternatively that it can, ‘…in terms of section
36(2) and 36(3)
of the Act, only be held liable for such damages as
the plaintiff would not legally have been able to recover from the
Fund…’
[22]
While Mr Mooij SC did not place much emphasis on this during
argument, it remains one
of the reasons advanced for the rescission
application. The suggestion seems to be that the respondent was duty
bound to proceed
with and complete a Compensation Fund claim prior to
securing a judgment for damages from a third party, so that the
former amount
could be deducted from the latter. What people in the
position of the respondent should do when a compensation claim is
delayed by
the Compensation Fund for more than three years, for
purposes of avoiding prescription in their damages claim, is
unanswered. Perhaps
more importantly, that interpretation is
unsupported by the present wording of section 36 of COIDA, by decided
cases or academic
commentary.
[23]
In
Sasol
, the SCA considered whether payments made in
terms of COIDA to a widow and dependent children in consequence of
the death in a workplace
accident of their husband or father had to
be deducted from their delictual claims for damages against two
defendants. The following
principles or points emerge from the
judgment in this matter:
·
Section
36(2) of the 1993 Act read differently at the time of the deceased’s
death in this matter: ‘In awarding damages in an
action referred to
in ss (1)
(a)
the court shall have regard to
the
amount to which the employee is entitled
in terms of this Act’ (emphasis added).
[36]
·
Prior
to COIDA, section 8(1) of the
Workmen’s
Compensation Act, 1941
[37]
(‘the 1941 Act’) provided that when a court awarded damages it
‘…shall, in estimating the damages,
have
regard to the amount which that person will be liable to pay
to the commissioner or the employer concerned under the provisions of
para
(b)
’
(own emphasis). The intention was clearly for compensation claims to
be finalised expeditiously and then to be deducted from the
damages
awarded. In addition, the court should ensure that workers would be
entitled to no more than their full common-law damages
in cases where
a ‘third party’ was involved. In other words, compensation
(normally obtainable from the Fund) plus damages (from
the third
party responsible for the injury) should not exceed the full amount
of common-law damages.
[38]
The
intention was presumably to avoid the injured worker being able to
‘double-dip’ in terms of the total damages receivable,
a
principle that was seemingly maintained when section 36 was enacted
(and amended).
[39]
[24]
Further
clarification is obtainable from the judgments of Harms JA and
Mthiyane JA in
Road
Accident Fund v Maphiri
:
[40]
·
‘Compensation’ is not the same as ‘damages’, as evinced by
the wording of section 36;
·
The Act is ‘not for the benefit of third parties…who are liable
in delict; it is for the
benefit of the employee and the employer,
and ‘premiums’ have to be paid for this ‘insurance’;
·
The starting point of any litigation under section 36 is a
determination of the third party’s
liability (also referred to as
‘common-law liability’, which equates to ‘delictual
liability’);
·
Section 36 does not increase the liability of a third party. Where a
third party is involved
the employee may be entitled, in the form of
compensation plus damages, to the amount of his / her full common-law
damages, but no
more. The ‘third party’ may be liable to the
employee and the employer or commissioner taken together for the full
amount of
common-law damages, but no more.
·
The
principle against double-dipping is reiterated: ‘I cannot see any
reason why the Legislature should have intended that a person,
wholly
innocent of fault himself, having a valid and available cause of
action against a third party for damages so as to be entitled
to
claim from that third party for all the damage whatsoever that he has
suffered and will suffer in future in consequence of his
injuries,
should receive more than the sum which represents that damage merely
because he is a workman who, as such, is entitled
to claim a sum of
money from the Commissioner in respect of such injuries.’
[41]
·
Under
the previous dispensation, compensation fell to be deducted from the
total amount of the common-law damages, even if the employee
chose to
claim a lesser sum.
[42]
·
Significantly,
‘…it should be pointed that s 36 in 1997 underwent some
amendments which may either be substantive or merely cosmetic.
In the
past the amount which the Commissioner would have been liable for had
to be deducted from the employee’s claim; now it is
the amount
actually paid…at least that is what is said.’
[43]
[25]
One of
the objects of both the 1941 Act and COIDA is to allow the employee
to claim both compensation (from the Compensation Fund,
in terms of
legislation) and damages (from a third party).
[44]
There is, however, no compulsion on an employee to do so, and an
employee may elect not to claim compensation, in which case the
Director-General (or employer by whom
compensation
is payable, in exceptional cases) would have no right to claim from
the third party.
[45]
[26]
Following
the 1997 amendment of COIDA, it appears to be clear that a further
object is to oblige a court considering an employee’s
claim for
damages against a third party to deduct the ‘compensation paid’
in terms of COIDA.
[46]
There
was no ‘compensation paid’ at the time that default judgment was
granted (and to date that remains the position). Had the
Compensation
Commissioner already made payment to the respondent and sought to
recover what had been paid (whether by intervention
in the
respondent’s case against the applicant or by separate action),
‘the Commissioner cannot get more than what the employee
is
entitled to recover from the third party’.
[27]
This
interpretation is consistent with a number of the principles
previously cited. Compensation, when paid, would be deducted from
a
plaintiff’s total claim or ‘aggregate damages’.
[47]
The third party’s liability should never be increased beyond the
aggregate amount of its common-law liability to the employee and
an
employee injured in circumstances where he or she had a claim for
compensation and damages should not obtain any sum that exceeds
the
aggregate of his or her common-law damages.
[48]
A third party completely liable for damages suffered by an employee
acting in the course and scope of his or her employment is not
prejudiced by that employee failing to submit a compensation fund
claim and (only) claiming damages. That is the effect of section
36(1)
(a)
of COIDA: ‘…the employee
may
claim
compensation in terms of this act and
may
also
institute action for damages in a court of law against the third
party.’ (Own emphasis). In such a scenario the Director-General
of
the Department of Labour is simply saved the trouble of instituting
action against the third party for the recovery of compensation
that
may otherwise have been payable in terms of COIDA.
[49]
As it is common cause that no compensation has been paid in this
matter to date, the provisions of section 36(2) of COIDA are
inapplicable
and the court did not need to have regard to the
possibility of compensation being payable in future. Reliance on the
potential COIDA
claim as a basis for rescission is accordingly
misplaced. Nevertheless, it is important for the officials of the
Compensation Fund
to be aware of the default judgment obtained by the
respondent in this matter, so that this may be taken into account
should a compensation
claim be processed in future. In the
circumstances a copy of this judgment should be sent to the
Compensation Fund.
[28]
On the
whole, the facts in this matter demonstrate that the prospects of
success on the merits is not strong. That is not to say that
there
are no such prospects whatsoever, leading to the conclusion that
there is no
bona
fide
defence. I accept Mr Mooij’s submissions that, if proven, the
applicant has put forward a possible defence to the claim that
resulted
in the default judgment. As already indicated, however, that
is not the only hurdle to be overcome by the applicant given the
circumstances
of the matter in its entirety. I have, for example,
also considered the respondent’s interest in finality, and the
broader notion
of prejudice, which the court in
Melane
advised should not be overlooked.
[50]
In considering all the facts and circumstances applicable, it must be
concluded that the applicant has not shown good or sufficient
cause
warranting the exercise of the court’s discretion to rescind the
default judgment.  The applicant is ultimately the
author of its
own problems in this regard, and it would be inequitable to visit the
respondent with the prejudice and inconvenience
flowing from such
conduct.
[51]
In the final
analysis, the interests of justice would, in my view, not be served
by granting rescission in this instance.
Order
1.
The application for rescission is dismissed with costs.
2.
The Registrar is directed to send a copy of this judgment per
registered mail to the Director-General of the
Department of Labour
and the Compensation Commissioner appointed in terms of section
2(1)
(a)
of the Compensation for Occupational Injuries and
Diseases Act, 1993.
A.
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
the Applicant:
Adv A. Mooij
Instructed
by:
Blake Bester De Wet & Jordaan Inc c/o JGS, 173 Cape Road, Mill
Park, Port Elizabeth
Obo
the Respondent:
Adv E. Crouse S.C
Instructed
by:
Howard Collen, 11a Shirley Street, Newton Park, Port Elizabeth
Heard:
20 May 2021
Delivered:
27 May 2021
[1]
Given
the judgment in
Economic
Freedom Fighters and Others v Manuel and Others
[2020]
ZASCA 172
,
it
must be added that detailed annexures pertaining to quantum of
damages accompanied the summons, and that the application for
default judgment included an actuarial report which accompanied the
respondent’s detailed submission regarding his injuries.
That
notice of motion also alerted the court to the claim being illiquid.
This point has not been addressed whatsoever by counsel
and it must
be assumed that the court considered that there were special
circumstances to permit proof by affidavit for purposes
of granting
default judgment.
[2]
Act 130 of 1993.
[3]
Section
36 of COIDA provides as follows: ‘(1) If an occupational injury or
disease in respect of which compensation is payable,
was caused in
circumstances resulting in some person other than the employer of
the employee concerned (in this section referred
to as the “third
party”) being liable for damages in respect of such injury or
disease –
a)
The employee may claim compensation in terms of
this Act and may also institute action for damages in a court of law
against the
third party; and
b)
The Director-General or the employer by whom
compensation is payable may institute action in a court of law
against the third party
for the recovery of compensation that he is
obliged to pay in terms of this Act.
(2) In awarding
damages in an action referred to in subsection (1) (a) the court
shall have regard to the compensation paid in terms
of this Act.
(3) In an action
referred to in subsection (1) (b) the amount recoverable shall not
exceed the amount of damages, if any, which
in the opinion of the
court would have been awarded to the employee but for this Act.
(4) …’
[4]
The applicant placed reliance on
Sasol
Synthetic Fuels (Pty) Ltd & Others v Lambert & Others
2002 (2) SA 21
(SCA) and
Road
Accident Fund v Maphiri
2004 (2) SA 258
(SCA) in support of this submission.
[5]
Bakoven
Ltd v G J Howes (Pty) Ltd
1992
(2) SA 466
(E) at 471E-F.
[6]
The trend by the courts over the years is apparently not to give a
more extended application to the rule to include all kinds of
mistakes or irregularities:
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 7E.
[7]
Kgomo
v Standard Bank of South Africa
2016 (2) SA 184
(GP) at 187F-188C.
[8]
Nyingwa
v Moolman
NO
1993
(2) SA 508
(Tk) at 510D-G.
[9]
Seale
v Van Rooyen NO; Provincial Government, North West Province v Van
Rooyen NO
2008 (4) SA 43
(SCA) at 52B-C. As Cloete JA held in that matter,
‘The submission by counsel representing the TYC that the rule
should be interpreted,
“because of its plain and grammatical
meaning”, as covering orders wrongly granted, is inconsistent with
the interpretation
given to the rule in numerous cases, has not a
shred of authority to support it and requires no further
consideration…’ (references
omitted).
[10]
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd
2007
(6) SA 87
(SCA) at 94E.
[11]
At para 5.
[12]
At para 7.
[13]
1979 (2) SA 1031 (A).
[14]
Colyn
supra
at
para 9.
[15]
Scholtz
and another v Merryweather and others
2014
(6) SA 90
(WCC) at para 12.
[16]
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476-7.
[17]
See
Colyn
supra
at 9C. In
HDS
Construction (Pty) Ltd v Wait
1979 (2) SA 298
(E) at 300, the court explained the reasons for not
attempting to exhaustively define words such as ‘good cause’ and
‘sufficient
cause’. The applicant’s heads of arguments
utilises the latter term to support its application in terms of the
common law,
and the former for its reliance on rule 31(2)
(b)
,
correctly submitting that the phrases are synonymous and
interchangeable:
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 352H-353A.
[18]
O’
Reilly v Montgomery
1923 (2) PH L21 (CPD).
[19]
Carolus
v Saambou Bank Ltd; Smith v Saambou Bank Ltd
2002 (6) SA 346
(SE) at 349B-C.
[20]
Saphula
v Nedcor Bank Ltd
1999 (2) SA 76
(W) at 79C-D.
[21]
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) as cited in
Government
of the Republic of Zimbabwe v Fick and Others
2013 (5) SA 325
(CC) at 350D.
[22]
Colyn
supra
at
para 12, with reference to
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A).
[23]
Fick
supra
at 351C para 89.
[24]
At 532E: ‘Or the importance of the issue and strong prospects of
success may tend to compensate for a long delay.’
[25]
Colyn
supra
at
para 13. Also see
Fick
supra
at
para 89.
[26]
Harris
v Absa Bank Ltd t/a Volkskas
2006 (4) SA 527
(T) at para 10.
[27]
Supra
at para 34.
[28]
Scholtz
supra at para
101.
[29]
Harris
supra
at
para 10.
[30]
A
copy of the case docket forming part of the papers suggests that the
applicant’s employee was charged with attempted murder,
convicted
of negligent use of a firearm and sentenced to five years
imprisonment, suspended for three years.
The
applicant does not deny this but initially suggested that this
information constituted irrelevant hearsay evidence. An application
to strike out was not launched and Mr Mooij, correctly in my view,
did not persist with that line during argument. There is no
information from the applicant on the papers explaining the
circumstances that resulted in this conviction.
[31]
See
Scholtz
supra
at par 98.
[32]
See
Scholtz
supra
at
para 35, in that case the emphasis being to determine the bona fides
of the applicant.
[33]
At para 84
et
seq
.
[34]
At para 96.
[35]
At para 119.
[36]
See s 13 of the Compensation for Occupational Injuries and Diseases
Amendment Act, 1997 (Act 61 of 1997).
[37]
Act 30 of 1941.
[38]
Sasol
supra
at para 10.
[39]
Sasol
supra
at para 12.
[40]
2004 (2) SA 258
(SCA) at para 14
et
seq
.
This case dealt with apportioned loss in circumstances where the
plaintiff was entitled to COIDA compensation and damages from
the
Road Accident Fund (‘RAF’).
[41]
Wille
and Another v Yorkshire Insurance Co Ltd
1962
(1) SA 183
(D) at 186D-187B.
[42]
Klaas
v Union and South West Africa Ins Co Ltd
1981 (4) SA 562
(A) at 587B-C.
[43]
Harms JA went on to note,
obiter
,
that that subsections (4) and (1)
(b)
conveyed a contrary intention.
[44]
See
the judgment of Mthiyane JA in
Maphiri
supra
at para 28(b).
[45]
Maasberg
v Springs Mines Ltd
1944 TPD 1
13, as cited in MP Olivier ‘Social Security: Core
Elements’ in Faris (ed)
LAWSA:
Social Security: Core Elements
(vol
13(3)) (2
nd
Ed) at para 133.
[46]
Maphiri
supra
at
para 28(c), read in the context of the 1997 amendment to COIDA.
[47]
Maphiri
supra
at para 29.
[48]
Ibid
.
Also see the example cited by Mthiyane JA at paras 32 and 33, noting
that the Commissioner could recover any compensation already
paid
from a liable third party, so that the third party remained liable
for the full amount of damages in such cases (but not more).
[49]
Section 36(1)
(b)
of COIDA.
[50]
Melane
supra
at
532E and 532H.
[51]
See the remarks of Melamet J, cited with approval in
De
Wet and others v Western Bank Ltd
supra
at 1044D.