Brief Summary

Rescission of Judgment — Default Judgment — Application for rescission of quantum order granted in absence of applicant — Applicant contending that order was erroneously granted as no viva voce evidence from respondent was presented — Court finding that the merits of the claim had been established and that actuarial evidence sufficed for determining quantum of damages — Applicant's plea deemed to be a non-admission, not an admission of damages claimed — Court holding that the absence of viva voce evidence did not constitute an error warranting rescission under rule 42(1)(a) as the damages were quantifiable through expert testimony alone.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings concerned an application for the rescission of a default order granted on 22 November 2021. That order awarded the respondent damages in the amount of R 2 576 600.00, together with interest and costs, arising from the respondent’s claim against the applicant.

The parties were Andre van Zyl Mulder as the applicant (the defaulting defendant in the quantum proceedings) and Phillip van Rensburg as the respondent (the plaintiff who obtained the quantum order in the applicant’s absence).

The matter had a lengthy procedural history. The respondent initially pursued a delictual claim alleging that the applicant committed adultery with the respondent’s former wife, with claims framed for patrimonial and non-patrimonial loss. The merits and quantum were separated, and the merits were determined in the respondent’s favour in a reported judgment delivered on 17 December 2014. Subsequent developments in the law abolished the delictual claim for non-patrimonial damages against a third party for adultery (while leaving open the claim for patrimonial loss). A special plea raised by the applicant in February 2020—to the effect that the changed legal position extinguished liability—was dismissed on 5 May 2020, principally on the basis that the court was functus officio and that the applicant’s proper remedy lay in appeal.

The immediate dispute in this rescission application concerned whether the quantum order was susceptible to rescission under Uniform Rule 42(1)(a) as having been “erroneously sought or granted” in the applicant’s absence, or alternatively whether rescission should be granted under the common law on the basis of “good or sufficient cause” for the default.

2. Material Facts

The underlying action arose from conduct described by the court as “incestuous” adultery involving incidents of fellatio between the applicant, who was the respondent’s paternal uncle, and the respondent’s former wife. The respondent and his former wife divorced, and the adultery was treated as causally connected to the breakdown of the marriage. These background facts explain the origin of the delictual claim and why the merits were initially adjudicated, but the rescission judgment focused primarily on the procedural and pleading facts relevant to rescission.

It was common cause that the merits and quantum had been separated, that the respondent succeeded on the merits in December 2014, and that the quantum phase was later set down for hearing. The quantum trial was initially set down for 16 August 2021, but it did not proceed and was postponed sine die because the applicant’s attorney was indisposed. The applicant tendered the wasted costs of that postponement.

A further notice of set down enrolling the quantum hearing for 22 November 2021 was served on the applicant’s attorneys on 16 August 2021. On 22 November 2021, the applicant and his legal representatives failed to appear, and the quantum proceedings continued in their absence. During those proceedings, the legal position concerning adultery-based non-patrimonial damages was raised, and counsel for the respondent disavowed any claim for non-patrimonial damages for contumelia, proceeding only with the claim for patrimonial loss.

The respondent relied on an actuarial report and led evidence from an actuary, who confirmed calculations placing the patrimonial loss at R 3 122 166.00, which exceeded the amount claimed in the pleadings. The respondent elected not to amend the particulars of claim upward, and after closing his case the court granted an ex tempore order for the lesser amount claimed, namely R 2 576 600.00, with interest and costs.

The rescission application relied materially on the content of the applicant’s plea to the damages allegations, particularly paragraph 8.1, which stated: “The Defendant has no knowledge of the Plaintiff’s damages and cannot, therefore, admit or deny same.” The parties disputed the legal effect of that pleading. The respondent contended that the plea amounted to neither a denial nor a “not admitted” response and therefore that the damages allegations were deemed admitted under Uniform Rule 22(3), while the applicant contended that paragraph 8.1 constituted a non-admission that in effect operated like a denial, requiring proof of quantum.

A further factual question relevant to the common-law rescission ground concerned the explanation for default. The applicant asserted that he was unaware of the date of the quantum hearing, alleging that the new notice of set down was “misplaced” in his former attorney’s office. The court noted that there was no affidavit from the former attorney substantiating that assertion, and it considered the absence of such confirmation and the lack of evidence of follow-up steps (over a period exceeding three months) to be central to assessing whether the explanation was reasonable and acceptable.

3. Legal Issues

The court was required to determine, first, whether the quantum order was rescindable in terms of Uniform Rule 42(1)(a) on the basis that it was erroneously sought or granted in the applicant’s absence. This issue required the court to assess the procedural correctness of the granting of judgment in default and, in particular, whether the absence of the respondent’s own viva voce evidence on damages rendered the order “erroneous” within the meaning of the rule.

Second, the court had to determine whether rescission should alternatively be granted under the common law governing rescission of default judgments. This required evaluation of whether the applicant had shown “good or sufficient cause”, which (as formulated in the judgment) entailed a reasonable and acceptable explanation for the default, that the application was brought bona fide, and that there was a bona fide defence with prima facie prospects of success. These were treated as conjunctive requirements.

These issues involved a mixture of (a) interpretation and application of procedural rules (Uniform Rules 42 and 22), (b) application of settled legal tests to a factual explanation for default, and (c) evaluative judgment regarding the plausibility of the explanation and the bona fides of the application and defence.

4. Court’s Reasoning

On Uniform Rule 42(1)(a), the court emphasised that rescission under that provision requires proof that the order was “erroneously sought or granted” in the applicant’s absence. The applicant’s principal contention was that the quantum court could not properly determine patrimonial damages without hearing viva voce evidence from the respondent, and therefore that the quantum order was erroneously granted.

A subsidiary but important issue concerned the respondent’s argument that the damages were effectively admitted on the pleadings. This argument turned on Uniform Rule 22(3) and the legal effect of paragraph 8.1 of the plea. The respondent’s contention depended in part on a version of Rule 22(3) found in some publications, which omitted the word “not” and thereby materially altered the meaning. The court set out the correct wording as published in Government Notice R48 of 12 January 1965, which provides that every allegation not stated in the plea to be denied or to be not admitted is deemed admitted. Applying that wording, the court held that paragraph 8.1 of the plea amounted to a non-admission as contemplated by Rule 22(2) and Rule 22(3), and that a non-admission in this context was treated as having an effect similar to a denial, particularly where the facts concerned (the plaintiff’s damages) were not matters ordinarily within the defendant’s knowledge. On this approach, the court rejected the respondent’s submission that the damages had been deemed admitted and treated the “deemed admission” argument as misguided.

However, the court separated that pleading point from the decisive question under Rule 42(1)(a). Even accepting that the damages were not admitted, the court held that it was not necessary for the quantum court to hear viva voce evidence from the respondent himself to determine the quantum of patrimonial loss in this case. The patrimonial loss claimed required actuarial quantification, and the actuary’s evidence was based on documentary sources and discovered documentation. The court reasoned that the respondent could not have added anything material to the actuarial quantification and that his evidence would have been superfluous for that purpose. The court further noted that the trial court retained a discretion to determine a fair and reasonable award and was not bound by the actuary’s assessment, the actuarial evidence being one relevant factor.

The court rejected the submission that the actuary’s evidence lacked probative value absent the respondent’s testimony, explaining that it was for the trial court to determine the weight to attach to the actuary’s evidence. It also rejected the contention that the actuary impermissibly usurped the court’s role by commenting on reasonableness, holding that the comment was directed at the reasonableness of the calculation in light of supporting material and did not displace the court’s independent discretion. The court observed that even if there had been an error in the trial court’s evaluation of the evidence, that would constitute a matter for appeal, rather than establishing an “erroneous” order for purposes of Rule 42(1)(a). For these reasons, the court concluded that Rule 42(1)(a) had not been satisfied.

Turning to the common-law ground, the court applied the settled requirements for rescission of a default judgment, treating them as conjunctive. It focused primarily on the first requirement: a reasonable and acceptable explanation for the default. The applicant’s explanation was that he was unaware of the date of the quantum trial because the notice of set down was allegedly misplaced by his former attorney. The court considered this explanation inadequate, stressing that the notice had been properly served on the attorneys on record and that the allegation of misplacement was unsupported by an affidavit from the former attorney, despite the expectation that such an officer of the court would confirm the position if it were true. The court also found it improbable that no follow-up occurred over the period of more than three months between service of the notice and the hearing date, whether by the former attorney, the applicant, or any new attorneys engaged.

The court further noted that correspondence threatening legal action against the former attorney did not mention the alleged misplacement of the notice, which the court regarded as material to explaining the default. In the court’s assessment, the explanation lacked credibility and appeared to be an afterthought aimed at shifting blame. On that basis, the court held that the explanation was neither reasonable nor acceptable. Having found the first requirement unsatisfied, the court stated it was unnecessary to deal fully with the remaining requirements, but it nonetheless indicated that the rescission application did not appear bona fide and that a bona fide defence with prima facie prospects of success had not been shown.

5. Outcome and Relief

The application for rescission was dismissed.

The court refused rescission under Uniform Rule 42(1)(a) and also refused rescission under the common law.

The applicant was ordered to pay the respondent’s costs of the rescission application.

Cases Cited

Ntshokomo v Peddie Stores 1942 EDL 276.

Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd 1985(3) SA 410 (C).

N Goodwin Design (Pty) Ltd v Moscak 1992(1) SA 154 (C).

Legislation Cited

No statute was cited in the judgment. The court referred to Government Notice R48 of 12 January 1965 in relation to the published wording of Uniform Rule 22(3).

Rules of Court Cited

Uniform Rule 42(1)(a) of the Uniform Rules of Court.

Uniform Rule 22(2) of the Uniform Rules of Court.

Uniform Rule 22(3) of the Uniform Rules of Court (as published in Government Notice R48 of 12 January 1965).

Held

The court held that the quantum order granted on 22 November 2021 was not shown to have been erroneously sought or granted in the applicant’s absence as required by Uniform Rule 42(1)(a). Although the plea did not amount to an admission of damages (and instead constituted a non-admission akin to a denial), the court held that the quantum court was nonetheless entitled to determine patrimonial damages on the basis of the actuarial evidence and available documentation, without requiring viva voce evidence from the respondent.

The court further held that rescission was not warranted under the common law because the applicant failed to provide a reasonable and acceptable explanation for the default, particularly given proper service of the notice of set down on the applicant’s attorneys and the absence of confirmatory evidence from the former attorney. The application was dismissed with costs.

LEGAL PRINCIPLES

A party seeking rescission under Uniform Rule 42(1)(a) must establish that the order was erroneously sought or granted in that party’s absence. The rule is directed at procedural or similar errors producing an irregular or impermissible default order; it is not a substitute for an appeal against alleged mis-evaluation of evidence or the merits of the result.

A plea stating that the defendant has no knowledge of the plaintiff’s damages and therefore cannot admit or deny them constitutes a non-admission contemplated by Uniform Rule 22(2) and Uniform Rule 22(3), and in circumstances where the allegations fall outside the defendant’s ordinary knowledge, a non-admission operates in effect similarly to a denial. In such circumstances the plaintiff is not relieved of the burden to prove damages merely because the defendant pleads lack of knowledge.

In quantifying patrimonial loss that is dependent on actuarial calculation and documentary inputs, the absence of viva voce testimony from the plaintiff may not, on the facts, render a damages determination procedurally irregular. The trial court retains a discretion to make a fair and reasonable award on the available evidence and is not bound by an expert’s assessment, though expert evidence may provide an evidential basis for quantification.

At common law, rescission of a default judgment requires “good or sufficient cause”, comprising a reasonable and acceptable explanation for the default, bona fides in bringing the application, and a bona fide defence with prima facie prospects of success. These requirements are conjunctive, and failure to provide an acceptable explanation for the default is sufficient to justify refusal of rescission.

Mulder v Van Rensburg (2700/2008) [2022] ZAECQBHC 43 (15 November 2022)