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[2022] ZAECMHC 3
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N. Jwacu v P.T Jwacu (3223/20) [2022] ZAECMHC 3 (1 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE NO. 3223/20
In
the matter between:
NOZUKO
JWACU
Applicant
and
PATISWA
NOBALINDI
JWACU
Respondent
In
re:
PATISWA
NOBALINDI
JWACU
Plaintiff
and
NOZUKO
JWACU (born
VUNGWANA)
First
Defendant
MASTER
OF THE HIGH COURT, MTHATHA
Second
Defendant
JUDGMENT
LAING
J
[1]
This
is an application for the rescission of a default judgment granted
against the applicant on 25 November 2020.
[1]
At the same time, the applicant has brought an application for the
amendment of her notice of motion.
Background
[2]
The
parties are beneficiaries to the estate of the applicant’s late
husband, Mr Mzwandile Jwacu. The respondent is the applicant’s
step-daughter. Upon the winding up of the estate in 2014, the parties
were awarded shares in the ownership of the property described
as Erf
41, Bizana. There are four beneficiaries in total, each enjoying an
equal share.
[3]
The
property had been leased to tenants but had not been maintained. This
caused the applicant to take it upon herself to carry
out renovations
and to settle rates and service charges out of her own pocket.
[4]
The
parties had no contact with each other until mid-2020, when they met
to discuss the management of the property and sharing of
the rental
income. Shortly afterwards, a fire swept through the property and
destroyed the shops that had been located thereon.
The property was
not insured and the applicant was forced to fund additional repairs
and renovations. The impact of the COVID-19
lockdown regulations
created further financial strain for the applicant.
[5]
On
18 September 2020, the respondent arranged for a summons to be issued
against the applicant, claiming payment of R420,000, interest
thereon
at 25% per annum, and costs of suit. The summons was served on the
applicant on 29 September 2020 and default judgment
was granted on 25
November 2020. The first time that the applicant became aware of the
judgment was on 14 December 2020, when the
order to that effect was
served on her.
[6]
For
her part, the respondent asserts that the property had generated an
income of R70,000 per month when her father, the late Mr
Jwacu, had
still been alive. After his passing, it had been agreed by the
beneficiaries that the property would continue to be
leased and that
each would receive 25% of the proceeds. It was further agreed that
the applicant be responsible for such distribution.
[7]
The
respondent alleges that, since Mr Jwacu’s passing on 12 June
2003, the applicant has failed to account for the income
generated by
the property and has not distributed any of the proceeds to the
respondent. Her share of the proceeds forms the basis
for her claim
against the applicant.
Point
in limine
[8]
The
respondent takes a point
in
limine
,
stating that it is not clear from the application what relief the
applicant seeks. In her notice of motion, she seeks an order
to set
aside the default judgment of 25 November 2020, yet refers to a
rescission application in her founding affidavit.
[2]
[9]
The
applicant, in reply, emphasises that she has brought a rescission
application. This much is apparent from her founding affidavit.
[10]
Presumably
to thwart an attempt by the respondent to drive home any advantage
presented, the applicant gave notice of her intention
to amend her
notice of motion. The respondent objected, prompting the applicant to
make application for the necessary relief. This
will be addressed
below.
Application
to amend
[11]
The
applicant asserts that the application to amend was necessitated by
the point
in
limine
.
She simply wishes to align the notice of motion with the pleadings
contained in her founding affidavit.
[12]
Surprisingly,
the respondent has opposed the application. She argues that it fails
to comply with the requirements of rule 6, establishing
unreasonable
timeframes for the filing of opposition and answering papers.
Furthermore, the respondent contends that the amendment
would convert
the original application (not for rescission) into something else,
which ought not to be tolerated at such a late
stage in the
proceedings.
[13]
The
application to amend is a classic example of an interlocutory
application envisaged under sub-rule 6(11). The decision in
Gisman
Mining and Engineering Co (Pty) Ltd (in liquidation) v LTA Earthworks
(Pty) Ltd
1977 (4) SA 25
(W), at 25F-H, is authority for the principle that the
usual timeframes for the delivery of papers are not applicable to
interlocutory
applications. They should merely be delivered within a
reasonable time.
[3]
[14]
Accordingly,
there is no merit in the respondent’s contentions. The
abbreviated timeframes stipulated in the application to
amend are
permissible and not unreasonable. If the respondent had any
difficulty in meeting the deadline, then an email or a telephone
call
to the applicant would surely have been all that was required to have
allowed for more time.
[15]
Similarly,
there is no basis upon which to contend that the applicant has
converted the original application into one based on a
new cause of
action. In her notice of motion, she states very clearly that she
seeks an order condoning her failure to launch a
rescission
application within the prescribed timeframe.
[4]
Such doubt as may have lingered thereafter would have been removed
once the respondent had read paragraph 6 of the founding affidavit,
where the applicant states unequivocally that she has brought a
rescission application.
[16]
The
opposition to the application to amend was ill-advised. There is no
reason why the application should not be granted.
Issues
to be decided
[17]
Turning
to the main application, sub-rule 31(2)(b) permits a litigant such as
the applicant in the present circumstances to apply
to court to set
aside a default judgment.
[5]
A
court may do so upon good cause shown. The requirements were set out
more fully in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA), where the court stated, at 9E-F, that a litigant
must: (a) furnish a reasonable explanation for his or her default;
(b)
demonstrate that his or her application is
bona
fide
and not made with the intention of delaying the plaintiff’s
claim; and (c) indicate that he or she has a
bona
fide
defence to the claim itself.
[6]
[18]
The
above requirements are the issues to be decided in the present
matter. These will be discussed in the paragraphs that follow.
Explanation
for default
[19]
The
applicant has described the difficulties that she experienced in 2020
and has mentioned several reasons in particular for her
default: the
loss of close relatives, the impact of the fire on the property, her
having contracted COVID-19 (which was also contracted
by her son),
her understanding that an agreement had been reached with the
respondent that all proceedings be placed on hold, and
delays
associated with obtaining legal assistance. The respondent has
challenged the applicant’s assertions, pointing out,
inter
alia
,
that she had only agreed to hold the matter in abeyance on condition
that the applicant paid to her what was due.
[20]
In
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A), Schreiner JA held, at 353A, that:
‘
the
defendant must at least furnish an explanation of his default
sufficiently full to enable the Court to understand how it really
came about, and to assess his conduct and motives.’
[21]
Furthermore,
there is authority to the effect that where an explanation appears
clearly but has not been set out in so many words,
this should not
deprive the applicant of the relief sought.
[7]
[22]
Whereas
the applicant has not included as much detail as may have been
helpful to understand completely and in full why she was
in default,
her explanation is adequate nonetheless. It is common knowledge that
the COVID-19 pandemic has caused considerable
disruption in society,
that the virus is highly contagious, and that it hampers an
individual’s capacity to function normally.
To have had to deal
with this, the loss of close relatives, and a fire that destroyed the
shops on the property, is about as much
as anyone could be expected
to bear.
[23]
To
allege, as the respondent has done, that the applicant was in wilful
default inasmuch as she deliberately ignored the action,
would be
difficult to accept. There is no evidence to that effect and no
inferences can be drawn from the pleadings. Rather, it
appears that,
by reason of a combination of factors beyond her control, the
applicant failed to defend the action. At best for
the respondent, it
could be held that the applicant was mistaken in her interpretation
of the exchange of communication between
the parties, after summons
had been issued, and that she was tardy in her efforts to secure
legal services. This does not point
towards wilful default, however.
Bona
fide
application
[24]
The
applicant asserts that she is unable to determine the basis for the
respondent’s claim. How the amount of R420,000 was
calculated
is not apparent from the pleadings. There is no substantiation for
it. Furthermore, she cannot understand why she should
be liable for
interest at the rate of 25% per annum. In answer, the respondent
states that the amount was clearly set out in her
particulars of
claim, being the total for monthly rentals collected while the estate
was being wound up, for which the applicant
has not accounted. In
addition, avers the respondent, the applicant has admitted that she
owes an amount to the respondent and
disputes only the sum claimed.
[25]
With
regard to what the applicant is alleged to have admitted, she states
as follows in her founding affidavit:
‘
I
am advised and verily believe that the Respondent is entitled to
benefit from the estate of his [sic] late father but
at
issue is the amount to which she is entitled
.’
[8]
[26]
The
most reasonable interpretation of this is that the applicant does not
deny that the respondent is entitled, as an equal beneficiary,
to the
proceeds of the estate. However, precisely how much is owed to the
respondent is not at all clear from her particulars of
claim.
[27]
In
that regard, the relevant portion is paragraph 11, which reads as
follows:
‘
The
afore-mentioned estate late proceeds and or/ shares mainly included
rental income collected from the property mentioned above
(sub-paragraph 8.2 supra)
[9]
as
the said estate late property generated income from:
a)
Leased
out business premises of the main shop used as a Hardware at
R27,000.00 (Twenty Seven Thousand Rand) per month;
b)
Further
three (3) leased out offices for business purposes at R9,000.00 (Nine
Thousand Rand) per month inclusive and;
c)
Leased
out rooms (four) (4) for residential purposes by tenants at R4,000.00
per month inclusive; [sic]’
[28]
In
terms of paragraph 16, the respondent pleads that the total amount
owed by the applicant is R840,000. However, the respondent
was
‘amenable’ to a reduced amount of R420,000 so as to take
into account the renovations completed by the applicant,
amounts owed
to the South African Revenue Services (SARS), and rates and levies.
The only other particularity supplied by the respondent,
under
sub-paragraph 17.1 of her particulars of claim, is that the amount
claimed arose from the monthly rentals calculated from
3 February
2014.
[29]
Quite
how the respondent calculated the total amount of R840,000 remains a
mystery. It is far from clear whether she took into account
factors
such as rental escalation, interest on arrears, deposit payments, and
so forth. There is no indication whether all the
shops, offices and
rooms were occupied for all of the time and attracting maximum
income. There is also no indication as to the
extent to which
occupancy was affected by the fire and COVID-19. The value of the
renovations is not stated. The values of amounts
possibly owed to
SARS and the local municipality for rates and levies are not stated.
Whether the respondent’s entitlement
was to have been
calculated as a one-quarter share of the net income or as something
else is not stated. And why the respondent
is entitled to interest at
25% per annum, considerably higher than the legal rate, is also not
stated.
[10]
[30]
Very
plainly, the applicant was in no position at all to determine what,
if anything, was owed to the respondent. Accordingly, it
would be
difficult to hold that the present application was not
bona
fide
and that it had simply been brought with the intention of delaying
the respondent’s claim.
Bona
fide
defence
[31]
The
applicant, in argument, drew attention to sub-rule 18(10), which
stipulates that a plaintiff suing for damages is required to
set them
out in such manner as will enable the defendant reasonably to assess
the quantum thereof. A failure to do so would render
his or her
particulars of claim irregular and would entitle the defendant to
invoke the remedies available under rule 30. Furthermore,
sub-rule
31(2)(a) provides that, in relation to a claim that is not for a debt
or liquidated demand, if a defendant is in default
of delivery of a
notice intention to defend or a plea, then the plaintiff may set the
action down and a court may, after hearing
evidence, grant judgment
against the defendant.
[32]
In
the present matter, it cannot be denied that the respondent failed to
comply with sub-rule 18(10). Her particulars of claim do
not allow
the applicant reasonably to assess the amount claimed. Moreover, it
cannot be denied that the respondent’s claim
is for neither a
debt or liquidated demand and it is common cause that no evidence was
led prior to the granting of default judgment,
as required by
sub-rule 31(2)(a). At the very least, it can be argued that the
applicant was entitled to have relied upon sub-rule
42(1)(a) for
rescission of the judgment.
[11]
The fact that the applicant framed her application as one envisaged
under sub-rule 31(2)(b) has the implication that the above
irregularities are merely factors to be taken into consideration with
regard to the determination of whether or not the applicant
has a
bona
fide
defence.
[33]
Contrary
to the respondent’s assertions, the applicant has not admitted
that she owes any amount to the respondent. The closest
that she gets
to an admission is a statement to the effect that the respondent is
entitled to benefit from the estate of the late
Mr Jwacu. This is a
statement of principle more than an admission.
[12]
[34]
In
Hassim
Hardware v Fab Tanks
(1129/2016)
[2017] ZASCA 145
(13 October 2017), the court observed,
at [12], that an applicant is not required to illustrate a
probability of success but rather
the existence of an issue fit for
trial.
[13]
The court went on
to state, at [28], that:
‘
It
is trite law that an applicant in an application for rescission of
judgment need only make out a
prima
facie
defence in the sense of setting out averments which, if established
at trial, would entitle her or him to the relief asked for.
Such an
applicant need not deal fully with the merits of the case and produce
evidence that shows that the probabilities are in
its favour. That is
the business of the trial court. The object of rescinding a judgment
is to restore the opportunity for a real
dispute to be ventilated.’
[35]
Here,
the applicant’s starting point is that she accepts that, in
principle, the respondent is entitled to benefit from the
estate.
However, it is simply not clear from the respondent’s
particulars of claim what amount the latter is entitled to,
if
anything at all. The applicant also alleges that she has incurred
expenses in relation to the property, intimating the possibility
of a
counter-claim.
[36]
Once
the above averments are coupled with the irregularities that beset
the granting of the default judgment, the court is satisfied
that the
applicant has indicated that she has a
bona
fide
defence to the respondent’s claim.
Relief
to be granted
[37]
The
respondent’s counsel argued, with reference to
Government
of the Republic of Zimbabwe v Fick
2013 (10) BCLR 1103
(CC), that an applicant’s failure to
satisfy any one of the requirements for the rescission of a default
judgment may result
in the dismissal of an application to that
effect. Furthermore, counsel mentioned
Chetty
v Law Society, Transvaal
1985 (2) 756 (A), where the court held that a party who showed no
prospects of success on the merits would fail in an application
for
rescission of a default judgment, no matter how reasonable and
convincing the explanation of his or her default.
[38]
Notwithstanding,
there is nothing in the present matter upon which to assert that the
applicant has failed to furnish a reasonable
explanation of her
default, demonstrate that her application is
bona
fide
,
and indicate that she has a
bona
fide
defence to the claim itself. This court is prepared to determine the
issues in her favour and to hold that she has satisfied the
requirements for the rescission of the default judgment granted
against her.
[39]
As
part of the relief that the applicant seeks, she has also sought an
order that any execution of the default judgment be rescinded
and set
aside. Besides the fact that the correct approach would have been to
seek an order staying the execution, rather than ‘rescinding’
it or having it ‘set aside’, no averments have been made
in the applicant’s pleadings to the effect that execution
is
imminent. Once the default judgment itself has been rescinded and set
aside, it is axiomatic that the basis for any execution
proceedings
falls away.
[40]
The
only remaining issue is the question of costs. Whereas the applicant
seeks payment thereof on an attorney-and-client scale,
the matter is
not one in which the conduct of the respondent attracts a punitive
order, either with regard to the application to
amend or the
rescission application. The usual order must follow.
Order
[41]
In
the circumstances, the following order is made:
(a)
the
application to amend is granted as prayed, subject to the
respondent’s being ordered to pay the costs thereof on a
party-and-party
scale;
(b)
with
regard to the rescission application:
(i)
the
applicant’s failure to bring the application within the
prescribed timeframes is condoned;
(ii)
the
default judgment granted against the applicant on 25 November 2020 is
rescinded and set aside;
(iii)
the
applicant is granted leave to deliver her plea or to take such other
steps as she may be advised, within ten (10) days of the
date hereof;
and
(iv)
the
respondent is ordered to pay the costs of the application on a
party-and-party scale.
_________________________
JGA
LAING
JUDGE
OF THE HIGH COURT
Appearances:
On behalf
of the applicant :
Mr Mathanda
Instructed
by :
Keto Mathanda Inc.
66
Stranford Terrace Street
MTHATHA
On behalf
of the responde :
Mr Xuza
Instructed
by
: Messrs
Mgweshe Ngqeleni Inc
7
Durrow Street
Fortgale
MTHATHA
Date of
hearing
:
20
January 2022
Date
of delivery of judgmen : 01
February 2022
[1]
The respondent has challenged the nature of the
application, drawing a distinction between an application for
rescission and an
application to set aside the default judgment, as
indicated in the notice of motion. For immediate purposes, the
application
will be described as the former.
[2]
This becomes apparent when the second prayer of
the notice of motion is compared with
paragraph
6 of the founding affidavit.
[3]
See, too,
SA
Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO
1981 (4) SA 329
(O) at 333C.
[4]
The text to that effect appears in the first
prayer to the notice of motion.
[5]
The sub-rule refers to the setting aside of the
default judgment. Elsewhere, reference is made to the rescission of
the judgment,
e.g. sub-rule 31(6). It is submitted that nothing
turns on the distinction for immediate purposes; the intention of
the rule
is to create,
inter alia
,
a mechanism by which a litigant may yet be afforded an opportunity
to present his or her defence in circumstances where he or
she was
originally in default.
[6]
See, too,
Grant v
Plumbers (Pty) Ltd
1949 (2) SA 470
(O), at 476-7, and the line of cases that have followed, as
discussed in DE van Loggerenberg
Erasmus’s
Superior Court Practice
2 ed (2019) at
D1-366.
[7]
See
Behncke v Winter
1925 SWA 59, as mentioned in
Erasmus’s
Superior Court Practice
, at D1-367.
[8]
This appears from paragraph 29, at p 10 of the
record. The emphasis was provided.
[9]
The reference seems to contain a misnomer;
sub-paragraph 8.2 is silent about the property, sub-paragraph 10.2
refers to Erf 41
Bizana.
[10]
It is noteworthy, too, that the first and final
liquidation and distribution account, annexed to the particulars of
claim as ‘PNJ3’,
stipulates that the income collected
for Erf 41 Bizana, presumably for the period from the date of the
late Mr Jwacu’s
death, 12 June 2003, until the date of winding
up, 3 February 2014, was the sum of R9,184.43. This is significantly
less than
the monthly income of R70,000 postulated by the
respondent.
[11]
In terms of sub-rule 42(1)(a), a court may
rescind a judgment erroneously sought or granted in the absence of
any party affected
thereby. Upon the basis that the respondent
failed to comply with sub-rule 18(10) and that no evidence was led
in accordance
with sub-rule 31(2)(a), it can be held that default
judgment was erroneously granted in the present matter.
[12]
From her replying affidavit, it is apparent from
paragraph 14 thereof, at p 71 of the record, that the applicant
accepts that
the respondent ‘probably [has] a claim’.
However, the language used is not such as to be construed as an
outright
admission that she owes any amount to the respondent.
[13]
See, too,
Sanderson
Technitool (Pty) Ltd v Intermenua (Pty) Ltd
1980 (4) SA 573
(W), at 575H-576A.