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[2020] ZALMPPHC 1
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Moseamedi and Another v Mapela Task Team (1437/2019) [2020] ZALMPPHC 1 (12 February 2020)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 1437/2019
28/1/2020
In
the matter between:
M.M
MOSEAMEDI
FIRST APPLICANT
P.S
MABE
SECOND APPLICANT
And
MAPELA
TASK
TEAM
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On
the 7
th
March
2019 the respondent instituted an interdict application against the
applicants. On receipt of the respondent’s application,
the
applicants acting in persons served the respondent with an unusual
notice of intention to oppose. The applicants’ notice
of
intention to oppose was unusual in that it contained the applicants’
answer to the respondent’s founding affidavit
even though it
was not under oath.
[2]
The applicants have brought an application seeking an order
rescinding the default judgment that was
granted on the 21
st
May
2019 by Ledwaba AJ. The applicants are alleging in their founding
affidavit that the respondent’s notice of motion has
stated
that if they failed to serve them with the notice of intention to
oppose the application will be made on the 21
st
May
2019. The applicants further alleges that they have served the
respondent with their notice of intention to oppose on the 8
th
April
2019 and filed same with the Registrar of this court on the 09
th
April
2019. It is the applicants’ contention that since they have
served and filed the notice of intention to oppose, the
respondent
was supposed to have removed the matter from the unopposed roll of
the 21
st
May
2019. The applicants submit that the respondent has misled the court
in believing that the matter was unopposed. The applicants
have also
made an application for condonation for the late filing of their
rescission application.
[3]
The respondent in its answering affidavit has stated that the
applicants on the 8
th
April
2019 whilst acting on their own did not understand motion procedures
and therefore did not have any grounds to rescind the
order of the
21
st
May
2019. It is the respondent’s contention that it has obtained
the order on unopposed basis as the applicants have failed
to file
their answering affidavit. The respondent is further stating that the
applicants’ notice of intention to oppose was
defective in that
they have failed to appoint an address in terms of the rules and also
failed to explain their failure to comply
with the rules in their
founding affidavit. The respondent has submitted that the applicants
were supposed to bring a substantive
application for condonation
which should have been brought on notice of motion.
[4]
It is trite that in an application for condonation for late filing of
any document, the factors
which the court will consider are the
degree of lateness, explanation for the delay, prospects of success
and any prejudice which
the affected party might suffer.
[5]
The applicants in their founding affidavit have stated that they
became aware of the default order
on the 25 May 2019. On receipt of
the order they started making financial arrangements in order to get
the services of a legal
representative and that they did not know
what steps to take as they were representing themselves in the main
application. On the
7
th
June
2019 they approached their attorney who advised them that they will
have to bring a rescission application. Their attorney
first wrote a
letter to respondent’s attorney requesting that it consent to
the rescission application. After the respondent’s
attorney has
refused to give consent, that is when they brought the rescission
application.
[6]
In my view, the applicants have adequately addressed the factors
necessary for granting of a condonation
application. It was not
necessary for the applicants to have brought a separate application
on notice of motion. By incorporating
the condonation application in
their answering affidavit was sufficient.
[7]
Rule 42(1) of the Uniform Rules of Court (the Rules) provides that
the High Court may, in addition
to any other powers it may have,
mero
motu
or
upon application by any party affected, rescind or vary an order or
judgment erroneously sought or erroneously granted in the
absence of
any affected party. (
See
Colyn v Tiger Food Industries LTD t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA)).
[8]
In
Chetty v Law Society Transvaal
1985 (2) SA 756
(A)
at 765
B-D Miller JA said:
“
But
it is clear that in principle and in long –standing practice of
our Courts two essential elements of “sufficient
cause”
for rescission of a judgment by default are: (i) that the party
seeking relief present a reasonable and acceptable
explanation for
his default; and
(ii) that on the merits such party has
a bona fide defence which, prima facie, carries some prospects of
success.
It
is not sufficient if only one of these two requirements is met, for
obvious reasons a party showing no prospect of success on
the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation
of his default.”
[9]
The applicants on receipt of the respondent’s application have
served and filed their notice
of intention to oppose the respondent’s
application. The respondent’s notice of motion state that if no
notice of intention
to oppose is given, the application will be made
on the 21
st
May
2019. In simple layman’s language, for the applicants to avoid
the application being made on the 21
st
May
2019, what was required of them do, was to simply file a notice of
intention to oppose and the application will not proceed
on the 21
st
May
2019.
[10]
The respondent’s notice of motion state that the applicant is
required to file their answering affidavit
within 15 days of filing
of their notice of intention to oppose. However, the manner in which
the next paragraph has been drafted,
creates the impression that the
applicants were only required to file their notice of intention to
oppose in order avoid the application
been proceeded with on the 21
st
May 2019. Since the applicants were representing themselves, they
cannot be blamed for not attending court on the 21
st
May
2019 as they were under the impression that they have complied with
the respondent’s condition for the application not
to proceed
on the 21
st
May 2019. In view, on this point alone the
default judgment of the 21 May 2019 was erroneously granted in the
absentia of the applicants.
[11]
If I am wrong on this point, the second issue is that the applicants’
notice of intention to oppose
contain an answer to the respondent’s
founding affidavit even though it was not done under oath. It does
not seem that counsel
for the respondent has brought it to the
attention of the court that the applicants were representing
themselves and that they
have filed an unusual notice of intention to
oppose which contain an answer to the respondent’s founding
affidavit. Had that
been brought to the attention of the court, I
doubt whether Ledwaba AJ would have proceeded to grant the default
judgment in the
absentia of the applicants. On this point also, the
default judgment of the 21
st
May 2019 was erroneously
granted in the absentia of the applicant.
[12]
In the result I make the following order:
12.1
Condonation for late filing of the applicants’ rescission
application is granted.
12.2
The default judgment granted against the applicants on the 21
st
May
2019 is hereby rescinded
12.3
The respondent to pay the applicants costs on party and party scale.
MF.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCE:
For
the Applicant
: Adv.
K. S. D Mohoto
Instructed
by Raphesu
JL Attorneys
52
Landros Mare Street
For
the Defendant
: Adv.
S.J
Phaladi
Molefe Attorneys
58
Market Street
Date
of hearing
: 05 DECEMBER 2019
Date
of Judgment
:28
JANUARY 2020