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[2022] ZAFSHC 308
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Kroezen v Coetzee (3461/2021) [2022] ZAFSHC 308 (24 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION.
BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case number: 3461/2021
In the application
between:
DOMINIC
KROEZEN Applicant/Defendant
and
GERTRUIDA HENDRIKA
COETZEE N.O. Respondent\Plaintiff
CORAM:
VANZYL, J
HEARD
ON:
21 JULY 2022
DELIVERED ON:
21 OCTOBER 2022; 24
OCTOBER 2022
[1] This is
an application for rescission of a default judgment granted by the
Registrar on 2 December 2021, which judgment
was granted in favour of
the respondent against the applicant in the following terms:
1.1
Payment of the amount of R295 706.76.
1.2
Interest on the aforesaid sum of R295 706.76 calculated at the rate
of 9.5% a tempora morae to date of final
payment.
1.3
Costs of R353.50 plus Sheriff's fees.
Background:
[2] The
respondent, as plaintiff, issued summons against the applicant, as
defendant, on 28 July 2021.
[3] For the
sake of ease I will refer to the parties as in the main action,
except for in the eventual order.
[4] In terms
of the particulars of claim the following allegations are made:
[4.1] The plaintiff is
cited in her capacity as the Trustee for the time being of the
Grenada Trust. It is further alleged that
at all relevant times the
plaintiff was the owner of a Mercedes-Benz GL500 motor vehicle with
registration number [....] ("the
plaintiff's vehicle").
[4.2] The defendant is
cited as an adult male residing at Plot 18, Riviere, Moedersdeel.
[4.3] On or about 4 April
2021 the defendant unlawfully and whilst being under the influence of
alcohol, beat the plaintiff's vehicle
with a baseball bat.
[4.4] Due to the unlawful
attack on the plaintiffs vehicle by the defendant, the plaintiff's
vehicle was severely damaged, as a
result of which the plaintiff
suffered damages in the amount of R295 706.76, being the "reasonable
costs to repair the plaintiff's
vehicle", as reflected in the
"bill of costs" attached to the particulars of claim as
Annexure "GT1".
[4.5] Notwithstanding
demand, the defendant failed and/or refused to pay the aforesaid
amount of R295 706.76 or any portion thereof
to the plaintiff.
[5] The
Sheriff's return of service pertaining to the combined summons
reflects the address of the defendant to be "Plot
18, Riviere,
Heilbron". It is indicated on the said return of service that on
18 October 2021 at 17:45 the Sheriff served
the combined summons in
terms of Rule "41A" "by affixing at the chosen
domicilium citandi et executandi at Plot
18, Riviere, Heilbron by
leaving a copy there, affixing a copy to the outside or principal
door, security gate or main entrance,
after I got no response by
knocking at the principal gate and/or ringing the door bell, and
after a diligent search was done. The
door was locked."
Underneath the aforesaid
the following is also indicated:
"Return of service
at place of residence by affixing:
Rule 4 (1)(a)(iv)
Attempts on 28/9/2021 at
14:38 farm Riviera of Mr Niccy Oosthuizen - defendant unknown."
[6] Although
it is alleged in the founding affidavit that it is unknown when the
default judgment was granted, it is
evident from the Registrar's
stamp on the original
Court Order in the court file that it was granted on 2 December 2021.
The founding
affidavit:
[7] The
defendant personally deposed to the founding affidavit. His permanent
residence is indicated as 238 Cornelis
Street, Fairland, Gauteng.
[8] On 17
March 2022 the plaintiff's attorneys of record contacted the
defendant and informed him that they have obtained
judgment against
him and demanded payment in terms thereof.
[9] As a
result of having been advised as such, the defendant contacted his
attorney of first instance, Mr du Tait,
who then contacted the
plaintiff's attorneys to obtain the necessary information regarding
the matter. He also requested the plaintiff's
attorneys to send him
the pleadings, which they failed to do. The defendant's attorney of
first instance subsequently instructed
his correspondent in
Bloemfontein to attend court on 24 March 2022 in order to obtain
copies of the pleadings in the matter.
[10] A confirmatory
affidavit of Mr du Tait is attached to the founding affidavit as
Annexure "X3".
[11] With regard to the
defendant's failure to have defended the action, the defendant states
that he had no knowledge of the summons
since it was served at a
property where he did not reside, nor did he have any interest
whatsoever in the said property. He further
avers that no domicilium
address was applicable in the circumstances and that the summons had
not been served in terms of the Rules
of court.
[12] Insofar as a bona
fide defence is a concerned, the defendant denies that he was the
cause of the damage to the plaintiff's
vehicle as alleged. According
to the defendant the sole cause of the damage was the negligence of
the plaintiff's driver in that:
"27.1.1 The
respondent-driver (whom will be joined to the proceedings):
27.1.1.1
drove under the influence of alcohol;
27.1.1.2
failed to keep a proper look-out;
27.1.1.3
failed to adhere to the rules and regulations of the road;
27.1.1.4
failed to avoid a collision where in the circumstances he should have
and could have done so;
27.1.1.5
failed to apply his brakes timeously or at all;
27.1.1.6
trespassed."
[13] The defendant
consequently requests that the default judgment be rescinded and that
he be granted leave to defend the action
against him.
[14] In terms of the
notice of motion the defendant only sought costs should the
application be opposed.
Answering
affidavit:
[15] The plaintiff's
attorney of first instance, Ms Buys (nee Scheepers),deposed to the
answering affidavit. It appears from the
application papers that she
practises under her maiden name and I will consequently refer to her
as Ms Scheepers.
[16] According to Ms
Scheepers their office drafted a letter of demand in the present
matter for damages suffered in the amount
of R126 628.23. Since they
could not obtain direct contact details of the defendant, it was
their instruction that Dr. Coetzee,
who is married to the trustee of
the plaintiff, will attend to the hand delivery of the letter of
demand. According to Ms Scheepers
it was further their instruction
that the defendant received the letter of demand during or about the
end of April/ beginning of
May 2021 and that he acknowledged receipt
thereof with his signature on each of the two pages, as is evident,
according to Ms Scheepers,
from the attached "CTZ1".
[17] The defendant failed
and/or neglected to respond to the letter of demand and summons was
subsequently issued on 28 July 2021.
[18] Ms Scheepers further
avers as follows in the answering affidavit:
"2.4 It was our
instruction from our correspondent that initially the Sheriff was not
able to locate the exact address, as
there is [sic] apparently twenty
houses on the farm ('... blykbaar twintig huisies op die plaas... ).
On instruction from the respondent,
we provided a contact detail for
an employee of the respondent that resides on the property adjacent
to the building that the applicant
resided during that time. It was
the instruction that the Sheriff should contact Donald so that he
could indicate the correct house
to the Sheriff. This is confirmed in
the attached e-mail correspondence marked as "CTZ3" and the
photos identifying the
property, markeff''CTZ4".
2.5 It is our
instruction that the Sheriff received the pictures per Whatsapp and
accordingly, service of the summons was
effected during November
2021".
[19] Since the defendant
failed to defend the action, default judgment was applied for, which
was granted on 2 December 2021.
[20] Ms Scheepers avers
that the defendant was in wilful default, considering that:
[20.1] The defendant
failed to inform the court that he received the letter of demand as
early as April 2021.
[20.2] He failed to
attend to the matter after receipt of the letter of demand.
[20.3] "His failure
to timeously, after the receipt of the letter of demand, to enter an
appearance to defend the matter."
[21] Ms Scheepers further
avers that the defendant is merely delaying the enforcement of the
judgment.
[22] With regard to the
requirement of a bona fide defence, Ms Scheepers avers that the
defendant failed to provide the court with
a "proper picture of
all events", which should be regarded as "an attempt of
misleading this court and delaying
tactics".
[23] In paragraph 10 of
the answering affidavit Ms Scheepers denies the version of the
defendant insofar as it does not coincide
with the plaintiff's
version, she criticises the manner in which the defendant set out his
allegations pertaining to the cause
of the damages and she further
denies that the driver of the plaintiffs vehicle drove under the
influence of alcohol.
[24] Ms Scheepers
consequently submitted that the defendant failed to make out a proper
case for rescission of the default judgment
and requested that the
application be dismissed.
[25] No confirmatory or
other affidavit of Dr. Coetzee, who was allegedly the driver of the
plaintiff's vehicle at the time of the
incident, and who apparently
gave the instruction regarding the manner in which the Sheriff was to
be informed where to serve the
summons, is attached to the answering
affidavit.
The replying
affidavit:
[26] I do not intend to
deal with the allegations in the replying affidavit at this stage. I
will, however, refer to same when considering
the merits of the
application. I do wish to mention that a confirmatory affidavit of Mr
Du Tait was also attached to the replying
affidavit.
Legal principles:
[27] It is trite that
there are three ways in which a judgment taken in the absence of one
of the parties may be set aside, namely
in terms of Rule 42(1)(a), or
in terms of Rule 31(2)(b) or at common law.
[28] Rule 42(1)(a)
determines as follows:
"(1) 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:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected
thereby;"
[29] In
Kgomo v
Standard Bank of South Africa
2016 (2) SA 184
(GP) 187 F to
188 C Dodson J, with reference to, inter alia,
Colyn v Tiger
Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA
1
(SCA) and
Lodhi 2 Properties Investments CC v Bondev
Developments (Pty) Ltd
2007 (6) 87 (SCA), held that the
following principles govern rescission under Rule 42(1)(a):
"[11.1]...
[11.2]
[11.3] the rule
caters for a mistake in the proceedings;
[11.4] 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;
[11.5]....
[11.6] 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
[11.7] 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)."
[30] In the
Lodhi
-judgment, supra, the court, in dealing with Rule
42(1)(a), held as follows at para [24]:
"[24] I agree that
Erasmus J in Bakoven adopted too narrow an interpretation of the
words 'erroneously granted'. Where notice
of proceedings to a party
is required and judgment is granted against such party in his absence
without notice of the proceedings
having been given to him such
judgment is granted erroneously. That is so not only if the absence
of proper notice appears from
the record of the proceedings as it
exists when judgment is granted but also if, contrary to what appears
from such record, proper
notice of the proceedings has in fact not
been given. That would be the case if the Sheriff's return of service
wrongly indicates
that the relevant document has been served as
required by the Rules whereas there has for some or other reason not
been service
of the document. In such a case, the party in whose
favour the judgment is given is not entitled to judgment because of
an error
in the proceedings. If, in these circumstances, judgment is
granted in the absence of the party concerned the judgment is granted
erroneously. See in this regard Fraind v Nothmann 1991 (3) SA 837 (W)
where judgment by default was granted on the strength of
a return of
service which indicated that the summons had been served at the
defendant's residential address. In an application
for rescission the
defendant alleged that the summons had not been served on him as the
address at which service had been effected
had no longer been his
residential address at the relevant time. The default judgment was
rescinded on the basis that it had been
granted erroneously."
[31] Although the return
of service makes mention of "place of residence", it is
evident from the defendant's founding
affidavit and his replying
affidavit that he does not reside at the said address and that he has
no connection thereto.
[32] From the totality of
the contents of the return of service it appears that according to
the Sheriff, he/she served the summons
in terms of Rule 4(1)(a)(iv)
by having affixed a copy thereof at the defendant's alleged
domicilium citandi et executandi. However,
in order to constitute a
domicilium address, proof must be presented of the fact that the
relevant party, in this instance the
defendant, did in fact choose
that address as the domicilium citandi. In the present matter it is
evident that no such nomination
occurred, nor is it the plaintiffs
case in her particulars of claim that such a nomination was made by
the defendant.
[33] In the circumstances
and based on the Lodhi-judgment, the non service or at least the
defective service of the summons
is an error as contemplated in Rule
42(1)(a). It is patently clear that due to the said error the
defendant did not receive the
summons. This error in itself
constitutes a basis for the rescission of the default judgment.
[34] In addition to the
aforesaid, it is evident that the Registrar granted the default
judgment in terms of Rule 31(5)(b). However,
default judgment in
terms of the said rule can only be granted where the claim is for a
debt or liquidated demand. The term 'debt
or liquidated demand' can
be equated with a claim for a fixed, certain or ascertained amount or
thing, and includes a liquidated
claim as known at common law. See
Fatti's Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd
1962 (1) SA 736
(T) at 739 G.
[35] In the present
matter the plaintiffs claim is based on delictual damages, being the
"reasonable costs to repair the plaintiff's
vehicle". Such
damages do not constitute a debt or liquidated demand. It was
consequently not legally competent for the Registrar
to have granted
default judgment. This constitutes a further reason or basis upon
which the defendant is entitled to rescission
of the judgment in
terms of Rule 42(1)(a).
[36] If the application
is to be adjudicated on the basis of Rule 31(2)(b), the rescission is
to be granted "on good cause
shown", as provided in the
said rule:
"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."
[37] The requirements for
"good cause" are trite. In
Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(0) at 476 - 477 they are set out as follows:
"(a) He
(the applicant) must give a reasonable explanation of his default. If
it appears that his default was wilful
or that it was due to gross
negligence the court should not come to his assistance.
(b)
His application must be bona fide and not made with the intention of
merely delaying plaintiff's claim.
(c)
He must show that he has a bona fide defence to plaintiff's claim. It
is sufficient if he makes out
a prima facie defence in the sense of
setting out averments which, if established at the trial, would
entitle him to the relief
asked for. He need not deal fully with the
merits of the case and produce evidence that the probabilities are
actually in his favour."
[38] In the present
matter it is abundantly clear that the summons was not properly
served upon the defendant and that it did not
come to his notice. The
defendant subsequently only became aware of the judgment on 17 March
2022 after being contacted by the
plaintiff's attorney and the
application was launched shortly thereafter within the 20-day period
contemplated in Rule 31(2)(b).
[39] I am consequently
satisfied that the defendant gave a reasonable explanation for his
default and that he was not in wilful
default.
[40] With regard to the
defendant's defence, it is evident that the defendant denies that he
caused the damage to the plaintiff's
vehicle. The defendant
furthermore averred that the damage to the plaintiff's vehicle was
caused by the negligent driving of the
driver thereof, who was under
the influence of alcohol and involved in a collision. These
averments, in my view, make out a prima
facie case which, if proved
at the trial, would constitute a proper defence to the plaintiff's
claim. It consequently constitutes
a bona fide defence.
[41] Considering the
totality of the facts and circumstances of this matter, I am
satisfied that the defendant's application for
rescission of the
default judgment is bona fide and not made with the intention of
merely delaying the plaintiff's claim.
[42] The defendant is
consequently also in terms of Rule 31(2)(b) entitled to rescission of
the default judgment.
Costs:
[43] Since an applicant
in an application for rescission of a default judgment is, depending
on the circumstances, often considered
to be seeking an indulgence
from court, such an applicant is generally ordered to pay the costs
of the application, especially
in the absence of opposition thereto
by the particular respondent.
[44] In circumstances
where a respondent does oppose an application for rescission of a
judgment, the court usually determines whether
the opposition is
reasonable or not in the particular circumstances and depending on
such finding, decides whether an applicant
should also be ordered to
pay the opposition of the application, or not.
[45] A further
possibility which is also quite frequently present in an opposed
application for rescission of a default judgment,
is where the court
hearing the application is of the view that the court who will
eventually deal with the trial, will be in a
better position to
determine an appropriate order as to costs after having determined
the merits of the action. In such an instance
the costs of the
application for rescission will stand over for later adjudication.
[46] In my view, the
present matter presents facts and circumstances which necessitate a
deviation from the aforesaid three scenarios.
In this regard I deem
it necessary to refer, inter alia, to the following issues, which the
defendant also raised in his replying
affidavit:
1. The
letter of demand, dated 24 April 2021, demanded payment of damages in
an amount of R123 328.23, based on
an "estimate as provided by
Silverlakes Accident Repair Centre", which was allegedly
attached to the letter of demand.
However, no such document is
attached to the letter of demand which is attached to the answering
affidavit filed on behalf of the
plaintiff. In the summons the amount
of damages increased to an amount of R295 706.76. Not only is
thisamount also based
on an assessment by the very same Silverlakes
Accident Repair Centre, but it further appears that the last
mentioned calculation
was made on 7 May 2021; hence, only about two
weeks after the date of the letter of demand. Despite this, the
plaintiff did not
even attempt to provide an explanation for this
radical increase in the amount of damages claimed from the defendant.
2. The
defendant was criticized for not having entered an appearance to
defend after having received the letter
of demand. Leaving aside for
the moment the defendant's denial that he received the letter of
demand, the mentioned criticism is
obviously completely unfounded,
since no such procedure exists in our civil procedure.
3. From
the e-mails attached to the answering affidavit, it is evident that
the plaintiff's attorneys of record
in Bloemfontein requested the
plaintiff's attorney of first instance to provide the defendant's
contact number in order to enable
the Sheriff to properly serve the
summons upon the defendant. Instead of providing same, the contact
number of an employee of the
plaintiff was provided with the
arrangement that he will point out the property of the defendant to
the Sheriff. The plaintiff's
attorney of first instance must have had
the defendant's contact number at that stage, considering that she
contacted the defendant
after the default judgment was granted, which
fact she actually confirmed in the answering affidavit. This begs the
question why
the plaintiff gave the instruction that her
employee should point out the house to the Sheriff for purposes
of service instead
of the Sheriff making contact with the defendant.
4. In
addition to the aforesaid, no explanation was provided in the
answering affidavit as to how the alleged
address of the defendant
had been obtained and on what basis it was at the time considered to
be the correct address, considering
the defendant's version in his
founding affidavit that he is resident in Gauteng and did not have
any connection to the alleged
address.
5.
After the Sheriff's return of service was received, it must have been
evident that proper service had not taken
place; yet, the plaintiff
continued with an application for default judgment.
6. In
the answering affidavit the plaintiff's attorney of first instance
not only criticised and questioned the
defendant's version of the
events when the incident occurred, but went as far as to deny that
the driver of the plaintiff's vehicle
was under the influence of
alcohol. It is evident that the said attorney has no personal
knowledge of what occurred during the
incident. The opposition to the
defendant's version consequently constitutes inadmissible hearsay
evidence.
7.
Default judgment was requested from the Registrar in terms of Rule
31(5)(b) in circumstances where it must
have been evident to the
plaintiff's attorneys that the plaintiff's claim was not for a debt
or liquidated amount.
[47] In the circumstances
the plaintiff should not have approached the Registrar for default
judgment. However, having done so,
when the application for
rescission was filed, the plaintiff ought to have immediately
conceded to the granting of a rescission
order. Instead, the
plaintiff persisted with her unfounded opposition to the application.
[48] During the hearing
of the application, Mr Carstens, who appeared on behalf of the
defendant, requested that the plaintiff be
ordered to pay the costs
of the rescission application and that such order be made on a
punitive scale. In the circumstances mentioned
above, I consider it
appropriate, in the exercise of my discretion, that the plaintiff
indeed be ordered to pay the costs of the
application. I have
considered granting a punitive costs order on an attorney and client
against the plaintiff. However, since
a costs order against a
respondent in an application for rescission of default judgment is in
itself already punitive in nature,
I decided against an order on an
attorney and client scale.
Order:
[49] I consequently make
the following order:
1. The
default judgment granted on 2 December 2021 under case number
3461/2021, is rescinded.
2.
Leave is granted to the applicant to defend the main action.
3. The
respondent is ordered to pay the costs of the application for
rescission.
C. VAN ZYL, J
On behalf of the
applicant/defendant: Adv W.C. Carstens
Instructed by:
Symington De Kok
Attorneys
BLOEMFONTEIN
On behalf of the
respondent/plaintiff: Adv I. Sander
Instructed by:
EG Cooper Majiedt Inc.
BLOEMFONTEIN