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2022
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[2022] ZALMPPHC 13
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KT Aluminimum and Construction (PTY) Ltd v Molefe (HCA06/2021) [2022] ZALMPPHC 13 (23 February 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: HCA06/2021
REPORTABLE:YES/NO
OF INTEREST TO THE
JUDGES:YES/NO
REVISED
DATE:23 FEBRUARY 2022
In
the matter between:
KT
ALUMINIMUM AND CONSTRUCTION (PTY) LTD
APPELLANT
and
STENELY
KGANYELA MOLEFE
RESPONDENT
JUDGEMENT
MANGENA
AJ
[1] The respondent in
this appeal instituted legal proceedings against the appellant in the
Polokwane Magistrate’s Court.
The appellant defended the action
and instituted a counter-claim. The matter was then set down for
trial on 07 August 2019.
[2] On 07 August 2019 at
court the matter was by agreement between the legal representatives
set down for trial on 05 February 2020.
On the 24 January 2020
appellant served a notice of its intention to amend its plea. The
notice was not in compliance with Rule
55A (1) of the Magistrates
Court rules in that it did not call upon the respondent to object
within a particular period stated
in the Rules. The respondent,
nonetheless served and filed an objection on 30
th
January
2020.
[3] On the 5
th
February 2020, the date of the trial, respondent together with his
attorneys attended court and the appellant together with its
attorneys were in default. The respondent, who was the plaintiff
obtained a default judgment confirming cancellation of the agreement,
payment of the sum of R 157 521-00 together with interest at 9%
and costs of suit.
[4] Unhappy with the turn
of events, appellant filed an application for rescission of judgment
contending that it was not in wilful
default as its attorneys had
erroneously diarised the matter and had demonstrated intention to
defend the claim as well as to institute
a counter-claim. On the
merits of the respondent’s claim, he denied that it was
indebted to the respondent.
[5] The respondent
opposed the rescission application and the learned magistrate
dismissed the application on 08 December 2020.
The learned magistrate
was not persuaded that the appellant had shown good cause for
rescission of judgment and consequently the
appellant failed to
satisfy the requirements for rescission of a default judgment.
[6] Undeterred, appellant
approached this court on appeal to have the order dismissing the
rescission application interfered with
and set aside. The grounds of
appeal are set-out in the notice of appeal and are mainly centred
around the findings made by the
learned magistrate regarding the
failure of the attorneys to be in court on 05 February 2020.
[7] Before dealing with
the merits of the appeal, there is an application for condonation of
the late prosecution of the appeal.
The application is supported by
an affidavit sufficiently explaining the reasons for the delay. The
explanation is satisfactory
and condonation is granted.
[8] Regarding the merits,
the appellant takes issue with both the factual and legal findings
made by the learned magistrate. It
contends that the court a quo
erred in its interpretation of wilful default by attributing a
clerical error by attorneys of the
appellant. The attack on this
factual findings is baseless and the attorney who handled this matter
just did not know what he was
doing. An attorney is expected to know
that when a matter is set down for trial, unless it is removed by the
plaintiff on notice,
he should attend court. The assumption by Mr Van
Zyl that because he had filed a notice of intention to amend, the
matter will
not proceed was fatal to his client’s case. Worse
still, the respondent had objected to the amendment and in the
absence
of a filed application for amendment supported by an
affidavit, the court a quo was enjoined to proceed with the trial.
[9] Even if one were to
accept favourably for the appellant that the attorneys had
misdiarised the trial date to be 5 March 2020,
still that does not
explain why the appellant was not in court on 05 February 2020. One
would have expected the appellant to have
been advised immediately
after court what the new date for trial is. The deponent to the
affidavit in the rescission application
does not deal with this
important aspect. The fact that her attorneys made an error cannot
provide her with protection when the
error is not sufficiently
explained. Nether the appellant nor the attorneys provided compelling
evidence regarding the error. One
would have expected them to have
attached copies of the diary and correspondences sent to the
appellant indicating the 05
th
March 2020 as the date of
the trial. In the absence of this, the learned magistrate cannot be
faulted for rejecting the explanation.
[10] During oral
submissions, counsel for the appellant, Adv Morton urged us to find
that the finding by the learned magistrate
that the appellant had a
bona fide defence should have led her ineluctably to a rescission of
the default judgment. I disagree.
[11] The principles
governing rescission are well –established.
In Colyn v Tiger
Food Industries Ltd t/a Meadow Feed Mills (Cape),
2003 (6) SA 1
SCA
,
the court explained the approach as follows:
“
In order to
succeed
an
applicant for rescission of a judgment taken
against him by default must show good cause. The authorities
emphasise that it is unwise
to give a precise meaning to term “good
cause”. As Smalberger J put it in HDS Construction (Pty) Ltd v
Wait: when dealing
with words such as ‘good cause’ and
“sufficient cause” in other Rules and enactments the
Appellate Division
has refrained from attempting an exhaustive
definition of their meaning in order not to abridge or fetter in any
way the wide discretion
implied by these words. The court’s
discretion must be exercised after a proper consideration of all the
relevant circumstances.”
With that as the
underlying approach the courts generally expect an applicant to show
good cause (a) by giving a reasonable explanation
of his default; (b)
by showing that his application is made bona fide; (c) by showing
that he has a bona fide defence to the plaintiff’s
claim which
prima facie has some prospects, of success.”
[12] The learned
magistrate considered the three requirements mentioned above
including the existence or otherwise of a bona fide
defence. She
weight that against the other requirements and correctly, in my view,
concluded that the existence of a bona fide
defence alone is
insufficient to justify rescission of a properly obtained judgment.
The law does not allow the court to grant
rescission in the absence
of a good cause shown by giving a reasonable explanation for his
default. She cannot be faulted on this
finding. The Supreme Court of
Appeal has already found in
Lohdi 2 Properties Investments CC v
Bonder Developments (Pty) Ltd 2007
(6) SA 87
(SCA)
that: A court which grants a judgment by default like
the judgment we are presently concerned with, does not grant the
judgment
on the basis that the defendant does not have a defence: it
grants the judgment on the basis that the defendant has been notified
of the plaintiff’s claim as required by the rules, that the
defendant, not having given notice of an intention to defend,
is not
defending the matter and that the plaintiff is in terms of the rules
entitled to the order sought. The existence of a defence
on the
merits is an irrelevant consideration and if, subsequently disclosed,
cannot transform a validity obtained judgment into
an erroneous one”
para 27.
[13] It is trite that a
bona fide defence and good prospects of success are not sufficient in
the absence of a reasonable explanation
for the default:
Chetty v
Law Society Transvaal 1985(2) SA 756 (A) at 765.
This principle
has been interpreted as follows by the Labour Appeal Court in
NUM
v Council Mineral Technology
(1999) 3 BLLR 209
(LAC) at 211 G-H:
There is a further principle which is applied and that is without
a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial, and without prospects of success, no
matter how good the explanation for the delay, an application for
condonation should be refused.
[14] The Constitutional
Court confirmed the correctness of the above approach in
Government
of the Republic of Zimbabwe v Fick,
2013 (5)
SA 325
(CC) at
para 85
when it said: the requirements for rescission of a
default judgment are twofold. First, the applicant must furnish a
reasonable
and satisfactory explanation for its default. Second, it
must show that on the merits it has a bona fide defence which prima
facie
carries some prospects of success. Proof of these requirements
is taken as showing that there is sufficient cause for an order to
be
rescinded.
A failure to meet one of them may result in refusal of
the request to rescind.
[15] In
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,
[2021] ZACC 28
the court
re-affirmed this position when it held that the existing common law
test is simple: both requirements must be met. Mr
Zuma must establish
that he had a reasonable and satisfactory explanation for his failure
to oppose the proceedings, and that he
has a bona fide case that
carries some prospects of success- Para 71 and 76.
[16] In the premises, the
appellant explanation for failing to attend trial on 05 February 2020
has been correctly found to be unsatisfactory
and the existence of a
bona fide defence cannot avail him in the light of the authorities
cited above.
[17]
Consequently the following order is made.
1.
Condonation for the late prosecution of appeal is granted.
2.
The appeal is dismissed with costs.
M.I
MANGENA
ACTING JUDGE OF THE
HIGH COURT OF
LIMPOPO
DIVISION, POLOKWANE
I agree and it is so
ordered
E.M
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCE:
Counsel for the
Appellant
:
Adv Morton
Instructed by
: Corrie
Nel & Kie Att
Counsel for the
Respondent
:
Adv K.
Mokwena
Instructed by
:
Director Makhafola Inc
Date of hearing
:
18 February 2022
Date of Judgment
:
23 FEBRUARY
2022