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[2023] ZAFSHC 355
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Ramalephatso Industries CC and Another v Nyumba Mobile Homes & Offices (Pty) Ltd (1719/2015) [2023] ZAFSHC 355 (15 September 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case No: 1719/2015
Reportable: YES/NO
In the matter between:
RAMALEPHATSO
INDUSTRIES CC
First
Applicant
SIZAMPILO
PROJECTS
CC
Second
Applicant
[1]
and
NYUMBA
MOBILE HOMES & OFFICES (PTY) LTD
Respondent
In re
NYUMBA
MOBILE HOMES & OFFICES (PTY) LTD
Plaintiff
and
MEC
FOR THE FREE STATE DEPARTMENT OF HEALTH
First
Defendant
[2]
FEZILE
DABI DISTRICT MUNICIPALITY
Second
Defendant
MAZIBUKO
WESSELS ARCHITECTS
Third
Defendant
RAMALEPHATSO
INDUSTRIES CC
Fourth
Defendant
SIZAMPILO
PROJECTS CC
Fifth
Defendant
GRAHAM
TAKATSO LEHETLA
Sixth
Defendant
CARLTON
PULE SHAKWANE
Seventh
Defendant
Coram:
Opperman,
J
Heard:
3
August 2023
Delivered:
15 September 2023.
This
judgment was handed down in court and electronically by circulation
to the parties’ legal representatives
via
email and released to SAFLII on 15 September 2023.
The date and time of hand-down is deemed to be 15h00 on 15 September
2023
Judgment:
Opperman, J
Summary:
Application for rescission
JUDGMENT
INTRODUCTION
[1]
Litigants
may not be allowed to turn their backs on the justice system and the
court and walk away as, and when, and how it suits
them. Access to
courts in terms of section 34 of the Constitution of the Republic of
South Africa, 1996 is a basic human right.
The Constitutional
Court
[3]
was clear and
unyielding when it was ruled that:
[2]
In this matter, this Court is being asked to rescind the judgment and
order that it handed down
in respect of contempt of court proceedings
launched against former President Jacob Gedleyihlekisa Zuma for his
failure to comply
with an order of this Court. Ironically, the
judgment now impugned, contains a thorough exposition of the rule of
law and its fundamental
importance to South Africa’s
constitutional democracy. Indeed, it says, “[n]o one familiar
with our history can be
unaware of the very special need to preserve
the integrity of the rule of law” in South Africa. Yet, with
the finality of
its decision questioned, this Court, once again,
finds itself tasked with defending the integrity of the rule of law.
[103]
…If our law, through the doctrine of peremption, expressly
prohibits litigants from acquiescing in a court’s
decision and
then later challenging that same decision,
it
would fly in the face of the interests of
justice for a party to be allowed to willfully refuse to participate
in litigation and
then expect the opportunity to re-open the case
when it suits them. It is simply not in the interests of justice to
tolerate this
manner of litigious vacillation
.
(Accentuation added)
[2]
The
order
[4]
hereunder, and the
warrant of execution that was issued consequent thereto, is the
subject of the application for rescission.
IT IS ORDERED THAT:
1. The fourth
and fifth defendants jointly and severally to pay the amount of R
313.268.09 (three hundred and thirteen
thousand, two hundred and
sixty-eight rand, and nine cents) to the plaintiff.
2. The fourth
and fifth defendants jointly and severally pay interest on the amount
in paragraph 1 calculated at a rate
of 10,5% per annum from 27 June
2013 to date of final payment, both days inclusive.
3. The trial
against the sixth and seventh defendants is removed from the roll.
4. The fourth
and fifth defendants jointly and severally pay the costs of the
action on a scale as between attorney-and-client.
[3]
The order was granted on 7 March 2023 because the
fourth, fifth, sixth and seventh defendants were absent from the
trial set down
for three days, being the 7
th
,
8
th
and
10
th
of
March 2023.
[4]
The fourth and fifth defendants conducted their
business as a
joint venture
in the cause that brought the matter to
litigation. They have as their sole members the sixth defendant,
Graham Takatso Lehetla
(“Mr Lehetla” or “TK”)
and the seventh defendant, Carlton Pule Shakwane (“Mr
Shakwane”) respectively.
[5]
The application, filed on 31 March 2023 that
serves for adjudication before court, wants the following orders:
1.
Rescinding and setting aside the default judgment
granted on 7 March 2023 against the first and second applicants;
2.
Rescinding and setting aside the warrant of execution issued in
pursuance of the said default judgment;
3.
The Applicants tender the costs for this application, if not opposed.
THE ARGUMENTS
[6]
The application for the rescission of the 7 March
2023 – order is according to the applicants’ heads of
argument, based
on two legal grounds.
1.3
The rescission is sought on two fronts. The first being that the
judgment was erroneously sought or erroneously
granted in the absence
of the applicants,
[5]
and
secondly that the applicants were not in willful default and that
they have a bona fide defence to the respondents claim.
[7]
Further, on page 8 of their heads of argument
counsel for the applicants states that:
4.2 It is likewise
common cause that van Vuuren withdrew as an attorney of record for
the applicants, and for Lehetla and
Shakwane, in the main action. The
reasons for such withdrawal, and whether the applicants were in
willful default, are not relevant
for the determination of the
question whether the judgment was erroneously sought or granted and
will be dealt with when the provisions
of the common law or rule 31
are discussed hereunder.
4.3
It is trite that judgment in the absence of a party at trial
stage,
[6]
may only be granted if
the trial court is satisfied that the party who is in default
was
aware of the proceedings
,
and most importantly, in
casu,
that
the notice of withdrawal as attorney of record, was delivered on all
the parties in compliance with rule 16 of the Uniform
Rules of Court.
(Accentuation added)
[8]
The respondent is of the view in their heads of
argument that:
32. The judgment
was granted due to the willful, reckless, and admitted negligence of
the applicants. It is submitted that
our courts will generally not
entertain a rescission application when the litigant had an
opportunity to defend himself, but willfully
and recklessly failed to
do so. Such litigants must accept the consequences of their own
conduct.
[9]
From the reading of the case for the applicants it
is not clear; but it seems as if they rely on rescission in terms of
the common
law, rule 31(2)(b) and rule 42(1) of the Uniform Rules of
Court.
[10]
I take a step back to depict the facts of the case
for perspective; this is the default and the merits of the claim
itself.
THE PRELUDE TO THE
DEFAULT AND THE DEFAULT
[11]
On 13 November 2022 Mr Lehetla, according to him,
was advised that the matter was on the roll for March 2023.
[12]
The notice of set down for the trial was served on
the applicants’ attorney on 30 November 2022.
[13]
On the same day the attorney addressed an email to
Mr Lehetla to inform him of the trial.
The
attorney confirmed that he attached the notice of set down to the
email.
Mr Lehetla had to have full
knowledge and understanding of the dates.
[14]
Although
Mr Shakwane alleges that he never received the notice of withdrawal
the respondent’s attorney made enquiries with
the erstwhile
attorneys of the applicants and was informed that the joint venture
was at all times represented by Mr Lehetla. Mr
Lehetla informed the
erstwhile attorney that he is the responsible person, and all contact
and communication should be with him.
The erstwhile attorney’s
invoices were always sent to Mr Lehetla but paid by both applicants.
This information was confirmed
under oath by said attorney in
annexure “AA23” on pages 270 to 271 (paragraph 3) of the
bundle indexed on 14 June 2023.
[7]
…
I specifically
confirm that although I legally represented the 4
th
to 7
th
defendants in the matter, my only communications were with the sixth
respondent, known to me as TK. TK informed me that he was
authorised
to instruct me on behalf of all the mentioned defendants, and I had
no reason to doubt his assurance.
[15]
At
paragraph 8.5 of his statement
[8]
Mr Shakwane admitted that: “There was however little
communication between my attorney’s and myself as the sixth
defendant
occasionally informed me what the progress of the matter
was.” It is trite that a litigant must take responsibility for
the
management of his case; he may not sit back and wait for news. He
paid the invoices submitted by the attorneys and must have had
some
inquiries as to the detail of the services rendered.
[16]
Mr Shakwane states his address in his confirmatory
affidavit to be at 32 Mostert Street, Nelspruit, Mpumalanga Province.
The address
that his attorney had of him according to the notice of
withdrawal is Stand 30, Kabokweni and Sizampilo Projects CC at 119
Nkhohlakalo
Trust, Kabokweni.
[17]
It is
vital to realize that Ramalephatso Industries CC and Sizampilo
Projects CC entered into the contracts that caused the action
as a
joint venture. The one’s business was the business of the
other. “GTL03” at page 42 of the bundle shows
the
letterhead of “Sizampilo Projects & Ramalephatso
Industries” as one entity with email
takatsolehetla@yahoo.com
.
It is also undisputed that Mr Lehetla took the lead in the
communications with the attorneys. The notice of withdrawal as per
page 269 of the bundle “AA22” was served on this address.
Perusal of the papers before the court shows that communication
was
to this address.
[18]
In
addition, “GTL03” shows that the joint venture has only
one physical address, one landline number, one fax number,
one cell
phone number and one email address:
takatsolehetla@yahoo.com
.
The joint venture operates under one registration number namely:
1998/026599/23. The address is “Suit No: 140 CALTEX BUILDING,
32 BELL STREET, NELSPRUIT”. If the applicants wanted service
and communication at any other address, they had to indicate
this to
their attorney and in the contract.
[19]
In an email of 30 November 2022, the legal
representative requested Mr Lehetla that counsel be appointed, and
consultations be finalized.
[20]
Mr Lehetla
responded
immediately and as follows:
Your email is noted.
But as I explained to you
earlier via our telephone conversation, I suggest I should get my Own
Affordable Advocate to work with
you on this matter, I can pay your
Fees directly.
[21]
On 19 January 2023 the attorney had not received
any further instructions from Mr Lehetla and addressed another email
to him wherein
he enquired about the appointment of an advocate and
in addition, requested him to make payment of the deposit in respect
of the
attorney’s fees as was agreed.
[22]
Later in the day on 19 January 2023 Mr Lehetla
responded that he will visit Bloemfontein “sometime next month
to understand
the attorney’s account”. No mention was
made of the appointment of an advocate. “Next month” was
February
2023; the trial was to commence on 7 March 2023.
[23]
The legal representative send a second email on
the same day to Mr Lehetla and explained the account. The legal
representative emphasized
the following:
You did not yet get an
advocate as promised. May I remind you that we are in Court in March.
Advocates are running a busy schedule
and I truly hope you find an
advocate in time. I wanted to book an advocate during November 2022,
but you said the deposit is extravagant.
You must very URGENTLY
give me instructions if you want to proceed with the matter.
The bottom line is that I
will Withdraw as attorney of record timeously, in order for you to
get a new attorney on this case ASAP.
[24]
Mr Lehetla
responded on
20 January 2023:
Your mail was noted but I
took the Decision to
terminate your mandate
because of your
exorbitant costs which small companies like us can’t afford.
I will be in Bloemfontein
second week of February to search someone who can take over from you
with reasonable fees as you’re
aware that this is a shit case
with no MERITS. Furthermore if there is any justified funds I still
owe you it can be arranged how
it can be sorted out but to my little
knowledge I paid all your invoices you provided
to us
unless there’s extra work you done
for us
which I
am not aware of.
If there is any clarity
my line is open.
G.T. Lehetla
(Accentuation added)
[25]
The services of the attorneys were summarily
terminated by the applicants
. The
attorneys did not withdraw on their own volition.
The
applicants were now aware, and very well so, that they are without
legal representation and cannot hide behind any notice of
withdrawal
that was allegedly not issued in accordance with rule 16 of the
Uniform Rules of Court.
[26]
Their attorney of record withdrew after the
termination of their mandate, and they did not appoint new legal
representatives. They
did not attend the trial.
[27]
It is
not known to this court on what basis the court granted the default
judgment on 7 March 2023. It is not known whether the
court had
information that is not available to this court and how the plaintiff
convinced the court of proper service. It is therefore
impossible to
infer that the court made a mistake. The parties elected not to put
the information forth in this application. In
applying the provisions
of rule 42 it should always be borne in mind that the court cannot
sit as a court of appeal and that it
cannot review the order.
[9]
[28]
Mr Lehetla confessed that:
8.15 I do
however acknowledge that there was an obligation on the fourth
defendant to appoint a different attorney when
it could not afford
the services of Mr. Van Vuuren and that is (sic) should have enquired
about the exact trial date. What really
mattered was the court date
and the appointment of an attorney. I therefore admit that the fourth
defendant was negligent in this
regard.
THE
FACTS THAT CAUSED THE CLAIM IN THE MAIN ACTION
[10]
[29]
In 2011 Fezile Dabi District Municipality awarded
a contract for the construction of temporary wards and a new forensic
mortuary
at the Metsimaholo District Hospital, in Sasolburg, Free
State Province, to the Sizampilo/Ramalephatso Joint Venture as the
main
contractor.
[30]
The respondent was appointed by the joint venture as subcontractor on
22 November 2011 for the construction
of prefabricated general wards
and a temporary mortuary at the hospital. The contract price is R 5
107 547.00. The contract apparently
specified a specific term of the
appointment and payment would be made to the respondent within 30
days after receipt of an invoice
approved by the site engineer.
[31]
The appointment was accepted by the respondent on 13 December 2011
and subject to specified amendments
to the initial quotation and
specified payment terms. These payment terms were reflected in the
acceptance letter as a percentage
that the joint venture had to pay
upon the completion of the building and during different stages of
the contract.
[32]
Construction of the temporary structures commenced during January
2012. As is evident from the affidavits,
counter allegations are made
by the applicants and the respondent about the delays and the
workmanship that resulted from the performance
of the works.
[33]
What however remains common cause is that payment in the sum of R 4
920 615.12 of the initial contract
price of R 5 107 547.00 was paid.
The balance was kept as retention for certain specified snags
compiled by Mazibuko Wessels Architects,
to be corrected.
[34]
A dispute arose between the joint venture and the respondent
regarding the liability to correct the snags
and the respondent, as
subcontractor, requested the principal agent to have the Municipality
make direct payments to it as it did
not trust the joint venture.
This then culminated in the conclusion of a cession agreement on 26
June 2013.
[35]
The applicants, in terms of the cession agreement, jointly ceded the
rights title and interest they had
against the Municipality, to the
respondent in the amount of R 624 965.53 together with interest
thereon.
[36]
The cession in addition provided that the respondent, as cessionary,
undertook to repair any material latent
structural defects
attributable to it, arising within three months of the date of such
cession, without any further costs to the
applicants.
[37]
The applicants, as cedents, in turn undertook to ensure that any
defects, whether latent or not, which
is not exclusively attributable
to the cessionary, be repaired within seven days after receipt of
notification of the said defects
and take all such necessary steps as
to not further delay and/ or prevent any payment to the cessionary.
[38]
Apart from the retention in relation to the temporary mobile units,
there were certain monies that the
Municipality owed to the joint
venture based on the main contract. On 12 September 2013 two snag
lists were issued by the architects,
one for the joint venture and
the other for the respondent.
[39]
The joint venture allegedly attended to its snag list and completed
the works which were accordingly approved.
The joint venture was
subsequently paid its retention monies and left the site.
[40]
The Municipality alleges that it was required to utilize a
third-party contractor to finalize the project
and that it has fully
discharged its payment obligations to the joint venture.
[41]
In April 2015 the plaintiff issued summons against the first to
seventh defendants as cited in the main
action. In terms of the
particulars of claim as they then stood, the plaintiff/respondent
pleaded that the applicants breached
the terms of the cession
agreement in that apart from paying an amount of R 271 835.68 the
applicants neglected to pay the balance.
[42]
The respondent, in addition, alleged that the Municipality, despite
having knowledge of the cession agreement,
breached its obligations
by failing and or refusing to make payment of the amounts reflected
in the cession agreement.
[43]
In their plea, the applicants denied that payment was to be made by
the applicants and pleaded that the
Municipality had to make payment
after all the obligations were met in terms of the cession agreement.
[44]
During November 2021, almost six years later, the respondent amended
its particulars of claim, now relying
on the applicants alleged
breach of the terms of the 'main agreement', in that the latter
failed and/or refused to make payment
to the respondent in the amount
of R313 268 09.
[45]
According to counsel for the joint venture in
casu
the
applicants' erstwhile attorney failed to seek instructions from the
applicants to make consequential adjustments to the initial
plea
consequent upon the respondent's amendment. This therefore had the
effect of the plea filed by the applicants, as it currently
stands,
being based on the cession as the cause of action and not on the
initial appointment as sub-contract. Notwithstanding the
averment
that blames the attorneys for the oversight, the prelude to the
default above shows that the applicants did not co-operate
fully with
their attorneys.
[46]
The lackadaisical handling of the applicants of their case and their
defense is of concern; if they
had a
prima facie
defence on
the facts, they could have addressed the matter expeditiously and
avoided any delay.
[47]
Application
of the Plascon Evans – dictum
[11]
on the affidavit of one Pieter Le Roux for the respondent and the
facts that are common cause convinces the court that the applicants
have not proven, on the merits of the case, that a
bona
fide
defence
which
prima
facie
carries
a prospect of success, exists.
THE LAW APPLICABLE IN
THE APPLICATION FOR RESCISSION
[48]
Constitutional principles have come to play a pivotal role in matters
of this kind. In
RGS Properties (Pty) Ltd v Ethekweni Municipality
2010 (6) SA 572
(KZD) a mindful and balanced approach by courts
adjudicating these cases was the resolve to the constitutional
challenge. The test
as summarised in the Headnote is:
1.
A court should not, in an application for the rescission of a default
judgment, scrutinise too
closely whether the defence is well founded,
as long as,
prima facie
, there appears to the court sufficient
reasons for allowing the defendant to lay before court the facts he
thinks necessary to
meet the plaintiff's claim.
2.
Where a defendant has never clearly acquiesced in the plaintiff's
claim, but persisted in disputing
it, the court should be slow to
refuse him entirely an opportunity to have his defence heard.
3.
Judgment by default is inherently contrary to the provisions of
section 34 of the Constitution.
That section provides that everyone
has a right to have any dispute that can be resolved by the
application of law decided in a
fair public hearing before a court,
or, where appropriate, another independent and impartial tribunal or
forum.
4.
Therefore, in weighing up facts in an application for the rescission
of a default judgment, the
court must balance the need of an
individual who is entitled to have access to court and to have his or
her dispute resolved in
a fair public hearing, against those facts
which led to the default judgment being granted in the first
instance.
5.
In its deliberation, the court will no doubt be mindful, especially
when assessing the requirement
of reasonable cause being shown, that,
while, among others, this requirement incorporates showing the
existence of a
bona fide
defence, the court is not seized with
the duty to evaluate the merits of such defence.
6.
The fact that the court may be in doubt about the prospects of the
defence to be advanced, is not
a good reason why the application
should not be granted.
7.
That said, however, the nature of the defence advanced must not be
such that it
prima facie
amounts to nothing more than a
delaying tactic on the part of the applicant.
[49]
An absolute constitutional rejection of default judgments will not
suffice because there is a persistent
tension between commercial
certainty and prompt remedies in law for non-compliance with
contracts and court orders, on the one
hand; and the right to access
to courts on the other hand.
[50]
Commercial certainty is the unfettered right of the respondent to
claim compliance with contracts and
court orders and be aided with
access to swift justice in assertion thereof. The sustenance of a
democratic economy is crucial.
In
Sasson v Chilwan and Others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 762H Eksteen, JA referred to: “The
paramount importance of upholding the sanctity of contracts, without
which all
trade would be impossible ...”.
[51]
Justice Ackermann in
Ferreira v Levin NO; Vryenhoek v Powell NO
1996 (1) SA 984
(CC) at paragraph 26 described it as: “a
central consideration in a constitutional state”. These
statements aim for
reasonable certainty, so that parties can go about
their business knowing the rules of the game; constitutional economic
integrity
is vital.
[52]
The constitutional right of the applicants lies in the use of courts
to settle disputes; the right
to access to courts in terms section 34
of the Constitution of the Republic of South Africa, 1996.
Furthermore, to have any dispute
that can be resolved by the
application of law decided in a fair public hearing before a court.
The respondent has the same right
and it may not be obstructed by the
unexplained or wilful absence of the other party at a trial.
[53]
The above sets the atmosphere in which the norm of “good cause”
must be applied on the
facts of this case. The criteria includes at
least both a reasonable and acceptable explanation for the default
and a
bona fide
defence on the merits which
prima facie
carries some prospect of success.
[54]
Each case must be adjudicated on its own merits and there is no
numerus clausus
of factors. The law is that the court has a
wide discretion in evaluating good cause to ensure that justice is
done. The explanation
for default must be stated and be reasonable.
The default may not be wilful and an attempt to delay justice.
[55]
Rule 31(2):
(a)
Whenever in an action the claim or, if there is more than one claim,
any of the claims is not for a debt or
liquidated demand and a
defendant is in default of delivery of notice of intention to defend
or of a plea, the plaintiff may set
the action down as provided in
sub-rule (4) for default judgment and the court may, after hearing
evidence, grant judgment against
the defendant or make such order as
it deems fit.
(b) A
defendant may within 20 days after acquiring knowledge of such
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.
[Sub-r. (2) substituted
by GNR.417 of 1997 and by GNR.61 of 25 January 2019.]
[56]
Rule 42(1):
The court may, in
addition to any other powers it may have
mero motu
or upon the
application of any party affected,
(a) rescind or
vary: an order or judgment erroneously sought or erroneously granted
in the absence of any party affected thereby;
(b) an order or
judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity,
error or
omission;
(c) an order or
judgment granted as the result of a mistake common to the parties.
[57]
Harms
[12]
is correct when he pointed out with reference to case law that at
common law the court is entitled to rescind a judgment obtained
in
default of appearance provided sufficient cause is shown. This
includes a reasonable and acceptable explanation for the default
and
that on the merits the party has a
bona
fide
defence.
The application of this principle is limited to those few cases where
the application does not fall strictly within the
limits of rule 31
or 42.
[58]
The judgment in
De
Wet and others v Western Bank LTD
1979
(2) SA 1031
(A) at 1038 is relevant. The service of the notice of
withdrawal is irrelevant if the notice of set down had already been
served.
The applicants terminated the services of their attorneys and
indicated that they will seek alternative legal representation.
The
appellants cannot avail themselves of the fact that their attorney
had not complied with all the requirements of Rule 16 (4).
There is
no question of any irregularity on the part of the respondent. At the
stage when Lebos withdrew as the appellants' attorney,
the case had
already been set down for hearing on 16 August 1976 in accordance
with the Rules of Court, and there was no need for
the respondent to
serve any further notices or documents on the appellants in
connection with the resumed hearing. As far as the
trial Court was
concerned the Rules of Court had been fully complied with and the
notice of trial had been duly given. When the
case was called before
VAN REENEN J neither the appellants nor their legal representative
were present in Court, and, in the circumstances,
the respondent's
counsel was fully entitled to apply for an order of absolution from
the instance with costs in terms of Rule 39
(3) in respect of the
appellants' claims and to move for judgment against the appellants
under Rule 39 (1) on the counterclaim.
The fact that the
appellants had not been advised timeously of the withdrawal of their
attorney is, of course, a factor to be taken
into account in
considering whether good cause has been shown for the rescission of
the judgments under the common law, but it
is not a circumstance on
which the appellants can effectively rely for the purpose of an
application under the provisions of Rule
42 (1) (a).
(Accentuation added)
[59]
Counsel for the applicants refers to rule 39(1) in
footnote 14 of his heads of argument: “…, and most
importantly,
in
casu
that
the notice of withdrawal as attorney of record, was not delivered on
all parties in compliance with rule 16 of the Uniform
Rules of
Court.” Rule 39(1) makes no mention of rule 16.
Rule 39(1) to (4)
(1)
If, when a trial is called, the plaintiff
appears and the defendant does not appear, the plaintiff may prove
his claim so far as
the burden of proof lies upon him and judgment
shall be given accordingly, in so far as he has discharged such
burden: Provided
that where the claim is for a debt or liquidated
demand no evidence shall be necessary unless the court otherwise
orders.
(2)
When a defendant has by his default been barred
from pleading, and the case has been set down for hearing, and the
default duly
proved, the defendant shall not, save where the court in
the interests of justice may otherwise order, be permitted, either
personally
or by an advocate, to appear at the hearing.
(3)
If, when a trial is called, the defendant appears
and the plaintiff does not appear, the defendant shall be entitled to
an order
granting absolution from the instance with costs but may
lead evidence with a view to satisfying the court that final judgment
should be granted in his favour and the court, if so satisfied, may
grant such judgment.
(4)
The provisions of sub-rules (1) and (2) shall
apply to any person making any claim (whether by way of claim in
reconvention or third-party
notice or by any other means) as if he
were a plaintiff, and the provisions of sub-rule (3) shall apply to
any person against whom
such a claim is made as if he were a
defendant. (Accentuation added)
[60]
Rule 16 deals with the representation of parties
by attorneys. Its objective is to provide the parties with a definite
and convenient
address at which they are entitled to serve the
further processes in the case.
[61]
On the undisputed facts the notice of set-down
that depicted the dates for trial was already served and procedurally
correct. The
dates for trial did come to the notice of the
applicants; they had proper knowledge thereof. The notice of
withdrawal is also peripheral
due to the further fact that the
applicants ended the mandate of the attorneys, and the attorneys did
not withdraw on their own
volition.
[62]
The words of Kriek, J in
Bristow
v Hill
1975 (2) SA 505
(N) at 506 to
507 direct the outcome:
This seems to be exactly
the type of situation envisaged in Voet, 2.4.14:
"a summons will be
good, if served in the prescribed manner, even if it does not reach
the defendant, for it is his fault that
he left no agent at home, or
that his servants negligently failed to inform him of the service of
the document; but restitutio
in integrum should be granted if the
defendant can show a
supremely just cause of ignorance, free from
all blame whatsoever".
Voet did not envisage
relief being granted for "sufficient cause" or "good
cause" in the sense in which those
phrases are explained in, e.
g., Kajee and Others v G. & G. Investment & A Finance
Corporation (Pty.) Ltd.,
1962 (1) SA 575
(D) at p. 577. It seems to
me that, subject to the exceptions mentioned in Childerley Estate
Stores v Standard Bank of S. A., Ltd.,
supra, a Court can only
rescind a judgment either under the provisions of Rule 31 or 42 or
where the litigant makes out a case
for restitutio in integrum at
common law, the latter being the only relief to which the applicant
could be entitled in the present
case.
CONSIDERATION OF THE
ISSUES
[63]
The applicants had adequate and legally
appropriate knowledge of the dates of trial. The service in terms of
rule 16 of the withdrawal
of the attorneys is irrelevant to their
knowledge of the dates of trial. The order was not erroneously
granted. As counsel for
the applicants correctly pointed out in their
heads of argument; it is about knowledge of the dates. The notice of
set down was
properly served on the applicants by the email forwarded
by their own attorneys to them.
[64]
Their default was blatantly disrespectful to the
rule of law and the interest of the other litigants. The default has
caused a delay
in the case that is to the prejudice of the respondent
and the administration of justice; it is a delay of months if not a
year
and unacceptable. The default closed the doors of access to
justice in terms of rule 34 of the Constitution to the respondent.
[65]
The
application must be dismissed on the first leg already in that there
is not a reasonable explanation before this court for the
default;
the lack of prospects of a
prima
facie
defence
bolsters the dismissal of the application and with costs. Litigation
started in 2015 and the interest of justice demands
finality to be
reached.
[13]
[66]
ORDER
The
application to rescind and set aside the default judgment granted on
7 March 2023 against the first and second applicants and
rescinding
and setting aside the warrant of execution issued in pursuance of the
said default judgment; is dismissed with costs.
M
OPPERMAN, J
APPEARANCES
On
behalf of the first & second applicants
L.B.J
MOENG
Gardee Godrich Attorneys
Johannesburg
c/o
Stander & Associates Attorneys
Bloemfontein
On
behalf of the respondent
J
VORSTER
Van Rensburg Koen &
Baloyi
Pretoria
c/o Hill McHardy
Incorporated Bloemfontein
[1]
The applicants operated as a joint venture in this case.
[2]
It was ordered by Van Zyl, J on 6 May 2016 that all references in
the combine summons to the first defendant as a party to the
action
to be struck out on the basis of a misjoinder of the first defendant
as a party to the action.
[3]
Zuma v
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.
[4]
The “7 March 2023 – order”.
[5]
In terms of rule 42(1)(a) of the Uniform Rules of Court.
[6]
The applicants refer to rule 39(1) here.
[7]
“
The
Bundle”
[8]
Page 151 of the Bundle.
[9]
Rule
42 does not affect the substantive law; it goes to procedure. In
Civil
Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 42 VARIATION AND RESCISSION OF
ORDERS, Grounds, Last Updated: August 2023 - SI 77,
https://www.mylexisnexis.co.za/Index.aspx
,
Harms
pointed out in footnote 2 at B42.2: “There are a number of
dicta that give the impression that this basic principle
does not
apply, forgetting that the rule is merely procedural and does not
affect the substantive law:
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E);
Nyingwa
v Moolman NO
1993
(2) SA 508
(Tk GD);
Suleman
v Minister of Interior
[1996]
1 All SA 553
(Tk) and
Njomane
v Lobi
[1996]
2 All SA 252
(Tk);
Mutebwa
v Mutebwa
[2001]
1 All SA 83
(Tk),
2001 (2) SA 193
(Tk). But see
Stander
v Absa Bank
1997
(4) SA 873
(E) 884
;
Dawson & Fraser (Pty) Ltd v Havenga Construction (Pty) Ltd
1993
(3) SA 397
(B GD);
Naidoo
v Somai and Others
2011
(1) SA 219 (KZP)”
[10]
See
the heads of argument for the applicants from page 2 paragraph 2 to
page 7 paragraph 3.6.
[11]
Plascon-Evans
Paints LTD v Van Riebeeck Paints
(PTY)
LTD
[1984] ZASCA 51
;
1984
(3) SA 623
(A). The Plascon-Evans rule allows courts to make
determinations on disputes of fact in application proceedings
without hearing
oral evidence. The rule states that in motion
proceedings, a final order may be granted if the facts stated by the
respondent,
together with the admitted facts in the applicant's
affidavits, justify the order. There are exceptions to the rule,
such as
when allegations or denials are far-fetched or clearly
untenable. The Plascon-Evans rule applies only to final relief and
not
interlocutory matters.
[12]
Civil Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 42 VARIATION AND RESCISSION OF
ORDERS, Grounds, Last Updated: August 2023 - SI 77,
https://www.mylexisnexis.co.za/Index.aspx.
“
A
judgment by default can be set aside under rule 31(2)(b) and an
order given in an urgent application against a party in
the absence
of that party may be “reconsidered” (which
reconsideration may include rescission). In addition,
a court
may set aside its own final judgment in terms of the provisions of
this rule or under the common law. Both issues
are discussed.
The rule cannot and did not amend the common law and is in many
respects merely a restatement of it. The
court otherwise does not
have the inherent power to set aside its judgments. There are,
however, some statutes that provide
for the setting aside of orders
made under them.”
[13]
Zuma -case
supra
footnote
3 at paragraph [104] of the case.