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[2022] ZAECMHC 31
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Member of the Executive Committee Department of Education and Another v Makapela (555/2020) [2022] ZAECMHC 31 (16 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
REPORTABLE
CASE
NO: 555/2020
DATE
HEARD: 4 AUGUST 2022
DATE
DELIVERED: 16 AUGUST 2022
In
the matter between:
MEMBER
OF THE EXECUTIVE COMMITTEE
DEPARTMENT
OF EDUCATION
1
ST
APPLICANT
HEAD
OF DEPARTMENT, DEPARTMENT
OF
EDUCATION
2
ND
APPLICANT
and
BABALWA
FAITH MAKAPELA
RESPONDENT
JUDGMENT
NOTYESI
AJ
INTRODUCTION
[1]
This is an application for rescission of a default judgment granted
by this Court
on 10 August 2021 against the applicants in favour of
the respondent. The application is brought in terms of rule 42(1)(a)
of the
uniform rules of court (
the rules
). In addition, to the
rescission application, the applicants seek leave of this court to
file their plea in the main action. The
leave to file a plea is
sought under rule 27 of the rules.
[2]
The applicants contend that the default judgment was erroneously
sought and erroneously
granted in their absence and they are affected
by the order sought to be rescinded. The respondent has filed a
‘conditional
notice to oppose’. The main contention of
the respondent is that the applicants have no defence to the claim
and that their
notice to defend was entered solely to delay.
BRIEF
BACKGROUND
[3]
The respondent instituted the main action against the applicants on
22 September 2020.
Summons commencing the action was served upon the
applicants on 30 September and 6 October 2020 respectively. The
respondent set
out the cause of action in the particulars of claim
and I do not deem necessary to repeat the allegations contained
therein, save
to mention that the respondent has alleged in the
particulars of claim that she has complied with the provisions
regarding the
institution of legal proceedings against certain organs
of State. A letter of demand has been attached to the particulars of
claim.
[4]
The applicants, as defendants in the main action, filed their notice
of appearance
to defend the action on 26 October 2020. No plea was
filed thereafter. On 2 December 2020, the respondent served the
applicants
with a notice of bar, which was also filed in court.
Subsequent thereafter, several letters were addressed to the
respondent’s
attorneys by the applicants’ legal
representatives in which settlement negotiations were proposed. For
some reasons that
are not immediately clear, the respondent’s
legal representatives served another notice of bar to the applicants’
attorneys
on 9 March 2021. There was no plea filed, instead, the
applicants, maintained their position that they will not be filing a
plea
as they seek to settle the matter.
[5]
On 29 June 2021, the applicants made a direct payment in the sum of
R43,047-14 to
the respondent’s banking account and according to
the applicants, that amount was the only amount owed to the
respondent
in terms of the system calculations. Proof of this payment
was forwarded by the acting director of the applicants’ legal
services to the respondent’s attorneys. The payment was
subsequent to the applicants’ letter dated 12 March 2021. Below
I quote from the aforesaid letter:
“
We
refer to the above matter and in particular your notice of bar dated
9 March 2021.
We confirm our
instructions to engage in settlement negotiations with yourselves. As
such we do not consider it necessary to file
a plea.
We are instructed to
advise you as we hereby do that payment will be made in full and
final settlement of outstanding moneys due
to your client as a result
of her performance of acting duties during the period(s) in question.
To this end we attach
hereto a BAS entity form and request that you cause it to be filled
by your client and be returned to us for
forward transmission to our
client in order for payment to be processed.
We propose engagements
with one another after the system has calculated the total sum of
moneys payable to your client.
In view of your client
still being in the employ of the Defendant department, we confirm
that moneys due and payable will be paid
directly into her banking
account details.
Our view is that the
proposed settlement engagements after the system has calculated the
total sum of moneys due and payable will
serve the purpose
inter
alia
of:
verifying whether or not
the amount paid covers all the acting period(s) in question
foreshadowed in the particulars of claim;
to that end whether
Plaintiff is satisfied that her claim has been liquidated in full;
and
whether a draft order
cannot be taken by agreement for presentation to court as a full and
final settlement of this matter.”
[6]
The respondent’s attorneys proffered no response to the above
letter, nor responded
to the payment of the sum of R43 047.14.
Instead of responding to the above correspondence and the payment
aforesaid by the applicants,
the respondent launched an application
for default judgment on 3 August 2021 and sought an order by default
in the following terms:
1.
That the Defendants pay to the Plaintiff the sum of R443 770,36;
2.
That the Defendants pay to the Plaintiff interest on the sum of
R486 817,50
a tempore morae
, to date of payment, less
paid R43 047,14 on 24 June 2021;
3.
That the Defendants pay the Plaintiff’s costs.
[7]
The application for default judgment was not served upon the
applicants and the order
was sought by the respondent and
accordingly, the court granted the application for default judgment
on 10 August 2021 in accordance
with the terms set out above.
[8]
The applicants are now seeking to rescind that order and that they be
granted leave
to file a plea to the main action and defend the
action.
THE
RESCISSION
[9]
The applicants have premised their application for rescission in
terms of rule 42(1)(a)
which provides for variation and rescission of
orders. In terms of sub-rule (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.
[10]
The applicants for rescission of an order under rule 42(1)(a) should
satisfy three requirements
in order to succeed. Firstly, that the
default judgment must have been erroneously sought or erroneously
granted; secondly, that
the judgment must have been granted in the
absence of the applicant(s); and that the applicant(s)’ rights
or interest must
be affected by the judgment.
[1]
[11]
In Mutebwa
[2]
, the following was
stated:
“
Although
the language used in rule 42(1) indicates that the Court has a
discretion to grant relief, such discretion is narrowly
circumscribed. The use of the work ‘may’ in the opening
paragraph of the rule tends to indicate circumstances under
which the
Court will consider a rescission or variation of judgment, namely
that it may act
mero motu
or upon application by an affected party. The Rulemaker could not
have intended to confer upon the Court a power to refuse rescission
in spite of it being clearly established that the judgment was
erroneously granted. The Rule should, therefore, be construed to
mean
that once it is established that the judgment was erroneously granted
in the absence of a party affected thereby a rescission
judgment of
the judgment should be granted.”
[12]
Mr Poswa, counsel for the applicants, submitted that the default
judgment was erroneously sought
and erroneously granted considering
that the respondent had failed to notify the applicants about their
application for default
judgment as is required to do so in terms of
rule 31(5)(a) of the rules. The rule relied upon by Mr Poswa,
provides:
“
Whenever
a defendant is in default of delivery of a notice of intention to
defend or of a plea, the plaintiff, who wishes to obtain
a judgment
by default, shall where each of the claims is for a debt or
liquidated demand, file with the registrar a written application
for
judgment against such defendant: Provided that when a defendant is in
default of delivery of a plea, the plaintiff shall give
such
defendant not less than five days’ notice of the intention to
apply for default judgment.”
[13]
It is common cause that the applicants did enter an appearance to
defend the main action, and
as such, were entitled to a “not
less than five days’ notice of the intention to apply for
default judgment”.
The respondent failed to comply with this
rule as no prior notice of intention to apply for default judgment
was given. In the
answering affidavit of the respondent, this point
is conceded and I quote the respondent’s averments in this
regard:
“
The
Applicants have pointed out that the request for default judgment was
not served on the Applicants in compliance with rule 31(5)(a).
I have
been advised that due to an oversight on the part of my attorneys of
record, the request was not served as required. Accordingly,
the
order was indeed granted irregularly and I have been advised stands
to be rescinded.”
[14]
Ms Burger, counsel for the respondent’s alternative submission,
in trying to overcome the
respondent’s difficulty was that the
rescission should be refused on the grounds that the applicants have
no defence to the
claim and that the appearance to defend was solely
to delay. This submission lacks merit and I therefore reject for the
simple
reason that – the applicants have placed their case in
terms of rule 42(1)(a). In terms of this rule, once one of the
grounds
is established, in this case, that the judgment was
erroneously sought and granted in the absence of a party affected
thereby,
the rescission of the judgment should be granted.
[15]
The applicants have succeeded in satisfying the three requirements
under rule 42(1)(a). The failure
to serve a notice of set down for
the default judgment by the respondent, is fatal to the subsequent
order sought and granted in
the absence of the applicants. It is
self-evident that the order was erroneously granted and the
rescission must succeed.
LEAVE
TO DEFEND
[16]
The next aspect is that the applicants seek leave of this court to
file their plea in the main
action. The request of the applicants for
leave of the court to file a plea, is based on the fact that a notice
of bar was served
and the plea was not filed in response thereto. The
notice of bar was filed on 9 March 2021. In response to the notice of
bar,
the applicants’ legal representatives had written a letter
dated 12 March 2021. In the letter of 12 March 2021, which I have
quoted above, the applicants’ legal representatives
unequivocally records that they have been instructed to engage in
settlement
negotiations and as such, they do not consider it
necessary to file a plea.
[17]
In pursuit of the instructions to settle the legal dispute between
the parties, further letters
were addressed by the applicants’
attorneys to the respondent’s legal representatives. A payment
was effected directly
to the respondent’s account. Proof of
payment was furnished to the respondent’s legal representatives
on 1 July 2021.
The details on the banking account of the respondent
had been furnished by his attorneys to the applicants.
[18]
In view of the above steps taken by the applicants, it was rather
disingenuous for the respondent
to proceed with an application for a
default judgment without notice to the applicants. At the very least,
the respondent ought
to have advised the applicants that the payment
made was not sufficient to satisfy the claim and that the respondent
was proceeding
with litigation or opting out of settlement
negotiations. It was not unreasonable for the applicants to adopt a
stance that the
plea would not be filed pending settlement
negotiations.
[19]
I do make this remark, litigants have a duty to consider genuine
efforts and endeavours which
are aimed at quick resolutions of legal
disputes. There is an inherent duty of collegiality amongst
practitioners to respond to
correspondences in order to indicate
their attitude or position regarding proposals put forward by their
colleagues regarding the
conduct of litigation. The approach adopted
by the respondent’s legal representatives in this matter, is a
far cry on this
obligation. This court takes a dim view in this
regard.
[20]
This court is enjoyed by the provisions of rule 27 to condone any
non-compliance with the rules.
Rule 27(3) provides:
“
The
court may, on good cause shown, condone any non-compliance with the
rules.”
[21]
The subrule requires ‘good cause to be shown’. This gives
the court a wide discretion
which must, in principle, be exercised
with regard also to the merits of the matter - seen as a whole. This
approach applies to
all applications which may be brought under the
subrule. The court must consider two principal requirements for the
favourable
exercise of the court’s discretion. The first is
that the applicant should file an affidavit to satisfactorily explain
the
delay. In this regard, the applicants must at least furnish an
explanation of the default sufficiently full to enable the court
to
understand how it really came about, and to assess his conduct and
motives. Second, the application must be
bona
fide
and the application must not be made with the intention of delaying
the respondent’s claim. In other words, the applicant
must show
that his defence is not patently unfounded and that it is based upon
facts which, if proved, would constitute a defence.
[3]
[22]
In this case, the applicants informed the respondent’s legal
representatives that they
intend to settle the matter. The applicants
pointed out that the payments due to the respondent would be
calculated through the
BAS system, whereafter payment would be made
to the respondent. This was done by the applicants. In their letter,
the applicants
made a commitment that once calculations and payment
has been done, the parties would again engage to determine whether
the payment
was acceptable to the respondent and if agreement is
reached, then parties would enter a consent order disposing of the
matter.
This was a wise approach which should have been embraced by
the respondent. I do take into account in my exercise of discretion
on whether to grant the leave for the applicants to file their plea.
CONCLUSIONS
[23]
Taking into account all the factors that I have pointed out, I am
satisfied that the applicants
have made out a case for both the grant
of the rescission of the judgment and the grant of the leave to file
their plea to the
main action.
COSTS
[24]
In their notice of motion, the applicants have asked for costs of the
application against the
respondent. The trite legal principle on
costs is that they generally follow the event. This means that the
successful party must
be awarded costs. This is the basic rule on
which the court exercises its discretion in adjudicating the issue of
costs.
[25]
The principle that costs should follow the event could only be
departed on good cause shown.
In circumstances where the applicant
seeks the indulgence of the court, the applicant who seeks indulgence
of the court, should
pay all such costs, including the costs of
opposition to the application, provided that such opposition was not
vexatious or frivolous.
[26]
In certain circumstances relating to the application for the
indulgence of the court, the respondent
may be ordered to pay his own
costs or the costs of occasioned by his opposition unless he has
placed facts before the court which
could reasonably be expected to
affect the court’s discretion in regard to the granting of such
relief.
[27]
In relation to the rescission application, the respondent filed what
she termed ‘respondent’s
notice of conditional
opposition’. The respondent then went on to file a substantive
answering affidavit. The answering affidavit
was ill-conceived in
that the respondent made a concession that she committed an error by
seeking default judgment without prior
notice to the applicants. The
alternative submission of the respondent that the applicants have no
bona fide
defence, but entered an appearance to defend purely
to delay, was not an answer to rule 42(1)(a) rescission.
[28]
In relation to the leave sought by the applicants to file a plea, the
respondent made no response
to the allegations contained in the
letter dated 12 March 2021. This letter, in its concluding remarks,
records the following:
Our view is that the
proposed settlement engagements after the system has calculated the
total sum of moneys due and payable will
serve the purpose
inter
alia
of:
verifying whether or not
the amount paid covers all the acting period(s) in question
foreshadowed in the particulars of claim;
to that end whether
Plaintiff is satisfied that her claim has been liquidated in full;
and
whether a draft order
cannot be taken by agreement for presentation to court as a full and
final settlement of this matter.
[29]
In view of the contents of this letter, the respondent was obliged to
first engage with the applicants
before taking further steps.
However, the applicants fail to give an explanation regarding the
period between 26 October 2020,
which is the date of the appearance
to defend, and 2 December 2020, which is the date of the first notice
of bar. There is another
notice of bar of 9 March 2021. In my view,
the applicants would have experienced some difficulties in explaining
the delay from
December 2020 to March 2021 regarding the failure to
file a plea. These considerations are independent to the
consideration of
the reasonableness for the request of a default
judgment by the respondent.
[30]
Despite all shortcomings on the part of the respondent, I am of the
view that the applicants
would have been liable for the costs
regarding the indulgence for leave to file a plea. The applicants
would have been entitled
for the costs of the rescission. I do
consider the fact that the applicants accept that their calculations
for the monies payable
to the respondent may not have been accurate
and that casts doubts upon their defence on the merits.
[31]
In all the circumstances of this case, and considering that the
respondent, prior to instituting
the main action, had issued a letter
of demand of which the department has an obligation to investigate
the allegations made therein,
and it failed to do so. The dispute in
the main action concerns payment of the plaintiff for acting
allowances, which in my view,
should not present any difficulty to
determine by the department.
[32]
On the basis of the above, costs should not follow the event, but
rather each party should pay
its own costs.
ORDER
[33]
In the result, it is ordered that:
1.
The application for rescission of judgment is granted;
2.
The judgment order granted on 10 August 2021 (incorrectly recorded by
the applicants in their
notice of motion as 10 August 2020), is
hereby rescinded and set aside;
3.
The notices of bar dated 2 December 2020 and 9 March 2021, are hereby
uplifted and the applicants
are granted leave to file their plea in
the main action within a period of 15 (fifteen) days of the date of
this order, should
they be so inclined or advised; and
4.
Each party to pay its own costs.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the applicants
: Mr
S G Poswa
Instructed
by
: The State Attorney
c/o Shared Legal
Services
Office of the Premier
32 Alexandra Road
KING WILLIAMS TOWN
Ref: 763/20-P8 (Ms
Yoba)
Counsel
for the respondent :
Ms Burger
Instructed
by
: Randell & Associates
c/o Hutton & Cook
75 Alexandra Road
KING WILLIAMS TOWN
Tel: 043 642 3410
Fax: 086 611 1867
Ref: Mr G C Webb/lc
[1]
See
Mutebwa v Mutebwa & Another
2001 (2) SA 193
Tk HC at p 198F
[2]
Supra
[3]
Du
Plooy v Anwes Motors (Edms) Bpk,
1984 (4) SA 213(O)
at 216H –
217D. Erasmus Superior Court Practice, second edition Van
Loggerenberg Volume 2 at D1-322 – D1-323 See
also the
authorities cited therein by the authors