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[2022] ZAECMKHC 94
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ESDA Properties (Pty) Ltd v Scarterfield Game Ranch CC (703/2020) [2022] ZAECMKHC 94 (8 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE NO: 703/2020
In the matter between:
ESDA PROPERTIES (PTY)
LTD
Applicant
(Defendant
a quo)
and
SCARTERFIELD GAME
RANCH
CC
Respondent
(Plaintiff
a quo)
JUDGMENT: APPLICANT’S
RESCISSION APPLICATION
LOWE J
INTRODUCTION
1.
This is a rescission application in which
applicant (defendant
a quo
)
seeks to rescind the judgment and order of this court given on
22 November 2021, that judgment having been given in
default of applicant’s appearance, and in favour of respondent
in this matter (plaintiff a quo).
2.
The papers in the rescission application
are lengthy, some 255 pages, and the matter was vigorously argued for
both to say the least.
3.
Whilst the notice of motion did not
indicate whether this rescission was sought in terms of the Rules or
the common law, in argument
it was urged upon me that the application
was brought either in terms of the common law and/or Uniform Rule
42(1)(a), the reliance
on the Rule was said to be superfluous
however.
4.
I will nevertheless deal with both bases
for the application insofar as may be necessary.
5.
It should be set out that the action by
respondent against applicant has its origin in a written agreement of
sale in terms of which
the property, Fairfax Farm no 340, was
sold by respondent to applicant for a purchase price of R12 million,
the deed of sale
dated in October 2019.
6.
The property was sold inclusive of game as
listed in Annexure A1 as follows:
“
6.3
The purchaser acknowledges that the property, including all game as
listed in Annexure A1, all buildings and erections
thereon is sold as
it stands at date of the sale”
.
7.
Annexure A1 referred to various species of
game either as to specific numbers or in instances estimated numbers.
8.
It was alleged that respondent had complied
with all its obligations in terms of the agreement, had tendered to
effect transfer
of the property to applicant against payment of
purchase price therefor but that notwithstanding demand applicant had
failed or
refused to make provision for payment of the purchase
price, respondent seeking payment by applicant (as defendant) of the
sum
of R12 million as and for the agreed purchase price.
9.
In due course applicant filed a plea
denying that respondent had complied with its obligations in terms of
the agreement setting
out (in summary) that respondent would not be
able to give possession of the property to applicant or carry out all
its obligations,
there being specifically no adequate enclosure of
the property to enable the applicant to keep the game listed in
Annexure A1 thereon
with no approved bio diversity management plan as
contemplated in section 43 of the National Environmental Management
Bio Diversity
Act 10 of 2004
inter alia
,
and further that respondent had failed to deliver a material portion
of the game listed in Annexure A1, the value of the game
listed in
Annexure A1 amounting to R4 201 500,00 whereas the physical game
present on the property was to the value of R3
940 000,00, a
difference of R1 107 500,00. It was thus alleged that
respondent was in material breach of its obligations,
and in the
alternative that prior to the conclusion of the agreement respondent
had represented to applicant that all permits to
possess the game in
question were valid and in existence; that adequate fencing as
required by law was in place; that the number
of the game was that as
set out in Annexure A1, these being fraudulent misrepresentations
entitling applicant to avoid the agreement.
10.
Respondent filed a rejoinder, whilst
applicant requested various trial particulars which were answered and
respondent requested
its own particulars of trial which was also
answered. On 17 July 2020 a short combined minute in terms of Rule 37
was filed
joining issue on the various matters raised in the
pleadings.
11.
Respondent filed a notice of a certain Mr.
Hurter in terms of Rule 36(9) dealing with animal population issues
relevant to the property.
12.
Attorneys Wheeldon Rushmere and Cole who
had up until then been applicant’s attorneys withdrew as
attorneys of record on 11
November 2020, this in terms of Rule
16(4)(b). At this time respondent’s attorneys in Makhanda were
McCallum attorneys.
13.
Respondent’s attorneys set the matter
down for hearing by notice dated 19 April 2021 (filed of
record on 20 April
2021) which, having regard to the withdrawal of
applicant’s attorneys, was addressed by email to applicant.
14.
The matter came before me by way of case
flow management on 20 May 2021, at which time I directed that the
applicant, as defendant,
attend a case flow management conference
within fourteen days of the date of the order, the matter postponed
to 3 June 2021.
15.
Again on 9 June 2021 I issued a case flow
management directive certifying the matter trial ready and ordering
that:
“
Notice
of certification to be brought to the attention of defendant who is
unrepresented at this stage via email, sms (if contact
details
available) and registered mail per chosen address”.
16.
The applicant did not attend any case flow
management conferences as it had been directed to do.
17.
Again, on 22 October 2021 the matter came
before me at the trial roll call in open court, Mr. Cole SC appearing
for respondent,
no appearance for applicant. It was confirmed that
the matter was trial ready and I ordered that “this roll call
directive
must be served by the Sheriff at the registered office of
the defendant.”
18.
In 26 October 2021 the roll call directive
was indeed served at the registered office of the applicant in East
London, the Sheriff
explaining the nature of the process.
19.
Again, as a matter of sheer coincidence and
on 22 November 2021, the matter failed to be called on the trial
roll, there being no
appearance for applicant, respondent seeking
judgment by default.
20.
On 20 April 2021 a notice of set down was
filed seeking a trial date, this sent by email to applicant.
21.
A notice of set down of a civil trial
clearly referring to this action, was issued by the Registrar
informing that the matter had
been placed on the roll for hearing at
Makhanda on 22 November 2021 addressed to defendant by way of the
usual email addresses
utilised, defendant not having replaced its
attorneys of record and not being represented by attorneys either in
Makhanda or elsewhere.
There is no suggestion that this notice of set
down was not received.
22.
Mr. Cole SC referred to the roll call
directives and that there could be no doubt from the correspondence
attached in the trial
bundle that many letters were sent by
respondent’s attorneys to applicant by email keeping applicant
fully informed as to
what was happening.
23.
Despite the fact that this was a claim for
a liquidated amount in money, and that the Rules did not require,
unless the court ordered
otherwise, that evidence be led at the stage
of default judgment, when the matter was called respondent took me
through the claim
and the sequence of events, this appearing from the
typed record, respondent chose of itself to give evidence, which
decision I
accepted, the evidence of Mr. Scarterfield being led in
some detail as to the origin of its claim, the basis thereof and
dealing
with certain of the issues raised in defence this appearing
in the typed record from page 14 to 33 thereof.
24.
The evidence having been heard, I was
satisfied that a proper case had been made out for judgment by
default and judgment was given
in appropriate terms for respondent
against applicant.
25.
In this regard, put shortly, the thrust of
the rescission application is that applicant’s relationship
with his erstwhile
legal representatives had broken down their
mandate being terminated in November 2021 at a time when he was
experiencing personal
trauma in his life from the events referred to
in paragraph 18 of the founding affidavit, respondent finding
out late in November
2021 by word from the farm’s manager that
judgment had been granted by default, applicant then approaching its
current legal
representatives.
26.
In addition, it is alleged that respondent
presented incorrect (false) evidence at the hearing that it had
complied with the statutory
requirements; that respondent was unable
to tender possession and/or transfer of the game listed and that in
the circumstances
this warranted the judgment being rescinded.
THE LEGAL ISSUES
RELEVANT TO RESCISSION OF JUDGMENT
27.
Rescission applications may be
brought in a number of ways arising from Rule 31(2)(b) of the
Uniform Rules of Court, in certain
circumstances Uniform Rule
42(1)(a) and more importantly for the purposes of this matter, the
common law.
28.
Under the common law the applicant seeking
rescission bears the onus of establishing “
sufficient
cause
”. Whether or not sufficient
cause has been shown depends upon whether:
28.1 The applicant
has presented a reasonable and acceptable explanation for the default
of appearance; and
28.2
The applicant has shown the existence of a
bona
fide
defence, that is one that has some prospect or probability of
success.
[1]
29.
I
should make it clear that the two aspects that go to sufficient cause
are conjunctive, an acceptable explanation of default must
be present
with evidence of reasonable prospects of success on the merits.
[2]
30.
A party showing no prospect of success on
the merits for example will fail no matter how reasonable and
convincing the explanation
for default. Further, and as set out in
Chetty
(
supra
):
“
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”.
31.
Both
the common law and Rule 31(2)(b) are similar in this regard
sufficient cause to be shown under the common law and “
good
cause
”
in terms of the Rule. These terms it has been held are synonymous and
interchangeable.
[3]
32.
In
Harris
(
supra
) it
was pointed out that:
“
The
absence of ‘wilful default’ does not appear to be an
express requirement under Rule 31(2)(b) or under the common
law. It
is, however, clear law that an enquiry whether sufficient cause has
been shown is inextricably linked to or dependent upon
whether the
applicant acted in wilful disregard of the Court Rules, processes and
time limits. While wilful default may not be
an absolute or
independent ground for a refusal of a rescission application, a
display of wilful neglect or deliberate default
in preventing
judgment being entered would sorely co-exist with sufficient
cause.”
[4]
33.
In
Harris
it was pointed out that wilful default is characterised by an
indifference as to what the consequences would be rather than of
wilfulness to accept them.
34.
In
Neuman
(Pvt) Ltd v Marks
[5]
it was pointed out that a defendant may be most unwilling to suffer a
judgment to be entered against him and the consequences may
be such
that he or it cannot be indifferent to them particularly where he has
placed the plea and counterclaim on record. The court
went on to say:
“
The
true test, to my mind, is whether the default is a deliberate one –
i.e. when a defendant with full knowledge of the set
down and of the
risks attendant on his default, freely takes a decision to refrain
from appearing”.
35.
In
Maeujean
t/a Audio Video Agencies v Standard Bank of SA Ltd
[6]
King J, following the above, said that:
“
More
specifically in the context of a default judgment ‘
wilful
’
connotes deliberateness in the sense of knowledge of the action and
of the consequences, i.e. its legal consequences and
a conscious and
freely taken decision to refrain from giving notice of intention to
defend, whatever the motivation for this conduct
might be.”
[7]
36.
Importantly the court in
Harris
set out that:
“
[8]
Before an applicant in a rescission of judgment application can be
said to be in ‘wilful default’
he or she must bear
knowledge of the action brought against him or her and/or the steps
required to avoid the default. Such an
applicant must deliberately,
being free to do so, fail or omit to take the step which would avoid
the default and must appreciate
the legal consequences of his or her
actions.”
37.
Harris
makes
it clear that even wilful default once demonstrated does not
necessarily mean that an applicant is barred from claiming rescission
stating that:
“
The
Court’s discretion in deciding whether sufficient cause has
been established must not be unduly restricted. In my view,
the
mental element of the default, whatever description it bears, should
be one of the several elements which the court must weigh
in
determining whether sufficient or good cause has been shown to exist.
In the words of Jones J in
De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
[8]
,
‘… the wilful or negligent or blameless nature of the
defendant’s default now becomes one of the various
considerations
which the Courts will take into account in the
exercise of their discretion to determine whether or not good cause
is shown.’”
[9]
38.
As
was further pointed out in
Harris
[10]
the Court seized with an application for rescission, should not, in
determining whether good or sufficient cause has been proven,
look at
the adequacy or otherwise of the explanation of the default or
failure in isolation. Put otherwise, the explanation good,
bad or
indifferent must be considered in the light of the nature of the
defence which is an important consideration and in the
light of all
the facts and circumstances of the case as a whole.
Harris
(
supra
)
[10]
39.
The
Harris
judgment referred again to
De Witts Auto
Body Repairs
(
supra
)
with approval with respect to the following quotation:
[11]
In amplifying the nature of the preferable approach in an application
for rescission of judgment, I can do no better than quote
Jones J
with whose
dicta
I am in respectful agreement:
'An
application for rescission is never simply an enquiry whether or not
to penalise a party for failure to follow the rules and
procedures
laid down for civil proceedings in our courts. The question is,
rather, whether or not the explanation for the default
and any
accompanying conduct by the defaulter, be it willful or negligent or
otherwise, gives rise to the probable inference that
there is no
bona
fide
defence
and hence that the application for rescission is not
bona
fide
.
The magistrate's discretion to rescind the judgments of his court is
therefore primarily designed to enable him to do justice
between the
parties. He should exercise that discretion by balancing the
interests of the parties. . . . He should also do his
best to advance
the good administration of justice. In the present context this
involves weighing the need, on the one hand, to
uphold the judgments
of the courts which are properly taken in accordance with accepted
procedures and, on the other hand, the
need to prevent the
possible injustice of a judgment being executed where it should never
have been taken in the first place,
particularly where it is taken in
a party's absence without evidence and without his defence having
been raised and heard.'
“
[11]
40.
All
the above remains good law when regard is had to
Zuma
(
supra
)
where the Constitutional Court carefully referred to the principles
relevant to rescission in terms of the common law.
[12]
41.
The
Constitutional Court pointed out that the common law requirements for
rescission had already been dealt with in
Government
of the Republic of Zimbabwe v Fick and Others
[13]
.
It was also pointed out that once an applicant has met the
requirements for rescission, the Court is merely endowed with the
discretion to rescind its order (this in respect of Rule 42 in the
context of mistake). In respect of common law rescission reference
was made to
Chetty
(
supra)
[14]
which held that the exercise of a court’s discretion is
influenced by considerations of fairness and justice having regard
to
all the facts and circumstances of the particular case and that one
of the most important factors to be taken into account in
the
exercise of a discretion to rescind was whether the applicant had
demonstrated a determined effort to lay his case before the
Court and
not an intention to abandon it.
42.
The Constitutional Court pointed out that
it is well established that the grounds upon which a judgment can be
set aside are extremely
narrow and the law of rescission intends to
exclude any other grounds for setting aside judgment after an action
has been brought
to a finish. The Constitutional Court held that it
was not generally open to courts to expand grounds for rescission, in
fact to
the contrary.
43.
Applicant in argument emphasised that the
requirements are to be balanced and that the circumstances that a
proposed defence carries
reasonably good prospects of success on the
merits might tip the scale in applicant’s favour in an
application for rescission.
In
Zuma
(
supra)
,
applicant emphasised, that the court approved the principles set out
in
Chetty
as follows:
“’
broadly
speaking, the exercise of a court’s discretion [is] influenced
by considerations of fairness and justice, having regard
to all the
facts and circumstances of the particular case.’ One of the
most important factors to be taken into account in
the exercise of
discretion, so the court in
Chetty
found at 760H and 761E was whether the applicant has demonstrated ‘a
determined effort to lay his case before the court and
not an
intention to abandon it’ for ‘if it appears that [an
applicant’s] default was wilful or due to gross negligence,
the
court should not come to his assistance.’ And, as stated in
Naidoo
and another v Matlala NO and others
2012 (1) SA 143
(GNP) [also reported at
[2011] JOL 27795
(GNP) –
Ed] at para [4], a court will not exercise its discretion in favour
of a rescission application, if undesirable consequences
would
follows.
[15]
44.
Not surprisingly applicant’s counsel
laid considerable emphasis on paragraphs [8] and [9] of
Harris
(
supra
),
as I have already referred to above, in particularly that before an
applicant can be found to be in wilful default, such applicant
must
deliberately, being free to do so, fail or omit to take the step
which would avoid the default and must appreciate the legal
consequences of his or her actions.
45.
This latter issue is one upon which
applicant relies heavily, it being argued that in this particular
matter, on the facts, applicant
did not appreciate the legal
consequences of its actions in this case assuming (albeit wrongly)
that the court would not grant
a judgment having regard to the
defences raised in the plea. It was argued, along the lines of
Harris, that the explanation given
for being in default must be
considered in the light of the nature of the defences raised which
was an important consideration
and in the light of all the facts and
circumstances of the case as a whole.
46.
It was also emphasised that the question is
whether the explanation for the default and accompanying conduct
gives rise to the probable
inference that there is no
bona
fide
defence and that the application
for rescission is not
bona fide
.
APPLICANT’S
ALLEGATIONS AS TO RESCISSION
47.
In essence the allegation by applicant’s
representative and sole director was that subsequent to his attorneys
withdrawing,
as their relationship had broken down, he was
experiencing personal trauma in his life and that the litigation
played a secondary
role as it is put. He described the events which
contributed to the trauma he relies on having been involved in a
motorcycle accident,
having a daughter on the brink of suicide and a
grandson taken away from him who had been raised as his own child to
all intents
and purposes, and also having to move home. He says that
he believed that he (the company) had good defences and trusted that
a
court would recognise this and not grant judgment in his absence,
he not failing wilfully to appear but “…
did
so out of ignorance which was not helped by the personal trauma I was
experiencing at the time.
” It is
argued that this view was
bona fide
a comprehensive plea having been delivered, applicant assuming,
albeit wrongly, that a court would not in the circumstances grant
judgment and that the court would play a “
more
inquisitorial role
”. It is argued
that the correspondence and papers relevant do not in any way
indicate a subjective mind set to acquiesce
in the claim against it.
48.
It may be said immediately that there can
be no doubt that on the pleadings applicant at no time simply
acquiesced, and having regard
to the defences raised the failure to
appear to contest judgment was out of step.
49.
Whilst it may be accepted that applicant’s
sole director had personal issues which distracted him from the
trial, there is
a complete absence of reference to nor are the case
flow management issues of which applicant must have been aware, dealt
with
in any way at all.
50.
Put otherwise, it must be accepted that
applicant and its sole director were more than fully aware of all
issues relevant, and took
a deliberate decision not to attend the
proceedings as it is at no time set out that applicant was in fact
unaware thereof. Respondent
relies heavily hereon in its opposition.
51.
At the end of the day then the main thrust
on the first leg, to be considered in the light of all the relevant
facts and circumstances,
is that applicant believed albeit wrongly
that respondent would not be able to prove its case, that this would
be recognised at
the default judgment stage even in the absence of
applicant and the court would refuse relief. It is argued that this
falls in
line (taken overall) with the submission that whilst there
was a deliberate intention not to attend, in essence applicant did
not
appreciate the legal consequences of its failure and did not in
any way acquiesce in the judgment genuinely believing it would and
could not be given in the circumstances albeit conceding at this
stage that it was a naive and incorrect belief.
52.
In respect of the existence of a
bona
fide
defence, I emphasise that I am
fully aware of the fact that, as I have fully set out above, this
means simply that a defence must
be put up on affidavit that
prima
facie
has some prospect or probability
of success.
53.
The
concept of a defence is simply a defence such as to
prima
facie
carry some prospect of success as set out in
Chetty
(
supra
).
[16]
54.
The bar is then is set relatively low being
a “
a bona fide defence which
‘prima facie, carries some prospect of success.
”
55.
In this regard what is put up on the
affidavits for applicant is that firstly incorrect evidence was led
at the default judgment
stage that it did comply with the statutory
requirements raised in defence. It is alleged that the witness
Scarterfield had relied
on a “
single
document
” to contend that it had
complied with the relevant statutory requirements, that this was
misleading and incorrect as the
certificate of adequate enclosure was
not sufficient in respect of the so-called TOPS game (being
threatened and protected species
in terms of the National Environment
Biodiversity Act 10 of 2004 and its regulations). It is alleged that
this was to all intents
and purposes conceded in respondent’s
reply to the request for particulars, paragraph 2.1 to 2.6 thereof. A
considerable
number of allegations are made in this regard in the
affidavit and it goes so far as to say that Scarterfield’s
evidence
was “
unfortunately
untrue
”. This relates to the
existence of electric fencing on the farm which it is contended was
required. Scarterfield is criticized
for not having presented the
biodiversity management plan at the hearing, this seeming to overlook
that no evidence at all was
required to have been put up, it being a
liquid claim. It is alleged effectively that respondent
misrepresented the facts in the
evidence, this said to be the basis
for an argument in terms of Rule 42(1)(a); that the judgment was
erroneously sought alternatively
falling under one of common law
grounds. It is alleged, and strongly at that, that respondent had
presented incorrect evidence
with the knowledge that it was
incorrect, alleging that it mislead the court.
56.
Secondly, the thrust of the application, as
to a defence, is that respondent is unable to tender possession
and/or transfer of the
game listed in Annexure A1. Issue is joined
with the Hurter game count referred to briefly above, it being
alleged that Hurter
simply made an estimate of the game dependent
upon the information provided by Scarterfield which never has been
accurate by any
stretch of the imagination. Reference is made to the
fact that the count was inaccurate was contested by Rodney Bradfield
(the
farm manager) who did not agree therewith, that estimate showing
that there were far fewer game numbers on the farm than referred
to
in the annexure.
57.
It is then said that respondent’s
suggestion at the hearing that all the game was present as listed is
“inaccurate”
and that if rescission were granted
applicant would be in a position to present definitive evidence as to
this issue in due course.
RESPONDENT’S
SUBMISSIONS
58.
In essence respondent contends that
applicant was in wilful and deliberate default in full knowledge of
what was about to occur
joining issue with the fact that he genuinely
believed that judgment would not be granted. It is also, in any
event, alleged that
the applicant has no prospect of success in
defending the matter and that its complaints are in effect
mischievous, misleading
and incorrect.
59.
As to the allegations that applicant’s
absence was wilful and “
contemptuous
”
respondent argues that its submission that applicant deliberately
chose to be absent from the trial is supported by a letter
written by
applicant’s sole director to respondent’s attorneys on 29
June 2021 in which amongst other things the following
appears:
“
The
trustees of the De Villiers Family Trust will not be forced by any
court or Judge to allow ESDA Property to purchase your client’s
“farm” or pay for game stock, that don’t exist. It
is what it is. We will not be wasting money by employing Grahamstown
advocates to misrepresent the facts to a Judge. So go ahead and have
your day in Court.”
[17]
60.
This is indeed strong stuff but it must be
read in context, and it must be remembered that this communication is
written some time
before the hearing, (29 June 2021), after
applicant’s attorneys had withdrawn.
61.
It is correctly pointed out that the
non-appearance was deliberate. The point, however, is rather whether
in the light of that deliberate
non-appearance, it can be said that
applicant overall did not appreciate the legal consequences of what
it had chosen to do believing
that a court would, in the light of the
pleadings, refuse judgment
mero moto
,
albeit an incorrect belief but one which a layman might perhaps
reasonably hold, in the absence of legal advice.
62.
As to the bona fide defence issue
respondent contends strongly that no
bona
fide
defence has been put up.
63.
As to the first defence, (the statutory
requirements), it is pointed out that there was no warranty that the
seller had the necessary
permits, it being argued that this is not
provided for in the agreement and that the only reference in the
agreement relates to
the inclusion of the game in Annexure A1 in the
sale as already quoted above, and that clause 5.2 provides that all
costs of transferring
and obtaining any necessary game permits are to
be born by the seller.
64.
Perhaps more importantly, it is alleged to
be common cause that the game fence was not electrified and that the
seller was for good
reason not bound by the recommendations of the
Biodiversity management plan, this flowing from, and only if
voluntary steps were
taken in terms of section 43 and 46 of Act 10 of
2002 which was not the case in this matter.
65.
It is carefully explained for respondent
and argued that the policy provides for an exemption for white rhino
as to electrified
fences if there is a non-electrified 2.4m high
fence which was in fact the case in this particular matter. It was
argued that the
Scarterfield evidence at the trial was that a TOPS
permit and a CAE were obtained and an inspector checked the fences
supported
by the documentation handed in.
66.
As
to the game numbers argument, it is submitted for applicant that the
sale was “
voetstoots
”.
It is argued that the game list A1 constituted in certain instances
an estimate which was not queried at the time. It is
argued that the
precise number of game was unimportant to the purchaser and the
difference not material in breach of the agreement.
It is argued that
clause 6 of the agreement headed “
Sale
Voetstoots
”
is relevant including paragraph 6.3 as follows
[18]
:
“
The
Purchaser acknowledges that the property, including all game as
listed in Annexure A1, all buildings and erections thereon,
is sold
as it stands at date of sale.”
67.
It is alleged that the purchaser was then
subject to this clause bound to be entitled only to all game whatever
the number, whether
more or less than those stated in the game list,
happened to be present at the date of sale.
68.
It is argued that in any case applicant has
not prima facie “
proven”
that there was materially fewer game.
69.
In short, the argument is that the
allegations made for applicant in this regard and summarised above,
are disposed of by the following.
70.
It is argued that the game offered were
those on the property at the date of the sale in October 2019 and
that the game count after
January 2022 will not assist. Secondly that
Mr. Hurter had in fact been nominated by applicant and that the game
estimation by
Bradfield is in fact lower than that in Annexure A1 to
the agreement. Ultimately respondent alleges that there is simply no
prospect
of success relevant to game numbers, there being no
“
complete evidence by ESDA
”
to establish that its defence has a prima facie prospect of success.
It is argued that having regard to proof on a balance
of
probabilities it would be required of ESDA to establish that its
defence had such a prospect and that it would not be possible
on the
evidence for it to do so. It is argued that Bradfield’s
evidence will not be preferred simply because he is the farm
manager
and that this misunderstands the application of the probabilities.
CONCLUSION
71.
I have carefully considered the papers and
allegations made therein, as also the arguments advanced against the
legal requirements.
72.
Proceeding as per my summary of the legal
situation as set out above, and considering all the aspects of the
matter in the manner
set out in the authorities, it seems to me, that
it must be accepted that although deliberately deciding not to attend
the trial,
it cannot be accepted without more, in the context of the
affidavits in this application, and the pleadings in the main action,
that applicant reconciled itself to the fact that if it did not
appear judgment would be given against it. It seems to me that
it has
been sufficiently established on the affidavits that however short
sighted, unwise and misinformed, in the absence of legal
advice at
the time, applicant has sufficiently shown that it subjectively had a
genuine belief that in the context of its defences
(which it at no
time abandoned) judgment would not be given against it even if in its
absence. Although applicant admits its attitude
was ill informed and
misguided, it has for the purposes of these proceedings to be
accepted on the papers that this is sufficient
in the context of the
defences put up to constitute an acceptable explanation for the
default, in the context of the approach and
tests set out above,
showing that applicant did not subjectively appreciate the legal
consequences of its default.
73.
Insofar as the defences are concerned
against the stated prima facie requirement which carries a defence
with some prospect of success,
I agree with respondent that this on
the papers before me is not demonstrated in respect of the fencing
and certification issue.
74.
However, it seems to me otherwise in
respect of the issues relevant to the game count and those referred
to in Annexure A1 in the
context of the agreement.
75.
Whilst I am not saying for a moment that
this is a defence which will necessarily succeed, that is not the
test, and it seems to
me that respondent has overstated the extent to
which applicant was required to go in this regard, and certainly not
such as to
deal with the probabilities on what might be found on the
evidence once it has been presented.
76.
In my view, in that event, there is in
respect of the defence relating to the animal count issue and
Annexure A1 sufficient to establish
prima facie that this carries
some prospect of success and that that is sufficient to establish the
necessary on the second leg
of the enquiry.
77.
In the circumstances, I find that at common
law, the applicant has established sufficient cause in the sense
fully described in
this judgment above, both the necessary existence
of a reasonable and acceptable explanation for the default being
established
with, on the second defence issue raised, a bona fide
defence which prima facie carries some prospect of success in the
sense and
to the extent required.
78.
In the circumstances the application must
succeed and rescission must follow.
79.
As to costs, applicant sought an order that
in the event of the application being opposed respondent must pay the
costs thereof.
80.
This, entirely, overlooks the fact that in
the circumstances of the matter it was more than reasonable for
respondent as a successful
plaintiff in the default judgment
proceedings, and having regard to the circumstances and exigencies,
to have not only opposed
the application but to have argued same
having regard to the specific instances and arguments applicable in
this matter and not
only applicant’s attitude to the
possibility of the finding being made against it. In pursuing its
opposition to the rescission
respondent acted reasonably and should
have his costs thereof.
81.
Further, it was more than reasonable for
respondent to test the water as to the defences that were to be put
up and then in fact
argued. There was also the question relevant to
the allegation of the fact that the court was deliberately mislead by
the evidence
of Scarterfield in respect of the game fencing, which
respondent was more than entitled to meet and argue.
82.
In the circumstances, in my view, although
successful applicant, which seeks a substantial indulgence, cannot
have its costs and
further must in the circumstances bear the costs
of respondent in this application, including those wasted in the
default judgment
proceedings.
ORDER
83.
In the circumstances, the following
order issues:
1.
The judgment and court order granted by
Lowe J on 22 November 2021 under case number 703/2020 is rescinded
and set aside.
2.
The applicant is to pay the respondent’s
costs in respect of the rescission application and those wasted in
respect of the
default judgment proceedings.
3.
The matter is to be set down for trial in
due course and is to be referred for case flow management and the
allocation of a suitable
trial date accordingly.
M.J. LOWE
JUDGE OF THE HIGH
COURT
Appearing on behalf of
the Applicant: Adv.
Steenkamp, instructed by Netteltons Attorneys,
Ms. Pienaar.
Appearing on behalf of
the Respondent: Adv. S. Cole SC, instructed by
McCallum Attorneys, Mr. McCallum.
Date
heard:
18 October 2022.
Date
delivered:
8 November 2022.
[1]
Harris
v Absa Bank Ltd t/a Volkskas
2006
(4) SA 527
(T);
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) at 764J and 765A – D;
Zuma
v Secretary of the Judicial Commissioner of Enquiry
[2021] JOL51107 (CC).
[2]
Chetty
(
supra
)
765D – E.
[3]
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352H – 353A.
[4]
Harris
[6]
[5]
1960
(2) SA 170
(SR). This aspect of full knowledge of the risks
attendant on default is of crucial importance in this matter having
regard to
applicant’s affidavit in which in summary this very
issue is raied.
[6]
1994
(3) SA 801 (C).
[7]
See
also
Harris
(
supra
)
paragraphs [5] – [10].
[8]
1994
(4) SA 705
(E) at 708G.
[9]
Harris
para [9]
[10]
Paragraph
[10].
[11]
At
711 F – I.
[12]
Zuma
supra paragraph [71] to [85]. See footnote 1 above.
[13]
2013
(5) SA 325 (CC).
[14]
See
footnote 1 above.
[15]
Paragraph
[53] read with footnote 20.
[16]
Page
765 A – D.
[17]
The
entire letter is one contesting respondent’s trial case and
defending applicant’s position and persisting in its
defences.
[18]
It
is highly debatable whether this clause although under the heading
“voetstoots” could ever be found to be a voetstoots
clause on a proper interpretation thereof.