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[2019] ZAGPPHC 952
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Road Accident Fund v Botha (95119/2015) [2019] ZAGPPHC 952 (25 July 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH GAUTENG-HIGH COURT,
PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case No: 95119/2015
25/7/2019
In
the matter between:
The
Road Accident
Fund
Appellant
And
Christoffel Gerhardus Krog
Botha
Respondent
In
re the action between:
Christoffel Gerhardus Krog
Botha
Plaintiff
And
The
Road Accident
Fund
Defendant
JUDGMENT
Maumela J.
1.
This
matter came before court in the opposed motion roll. The Applicant is
the Road Accident Fund. In the main matter, the applicant
is the
defendant
2.
The
applicant applies for an order rescinding a judgment by default,
granted by this c9urt on the 7
th
Of March 2016.
BACKGROUND.
3.
This
matter arose out of a motor vehicle collision which took place on the
18
th
of December 2012. Action was instituted, based upon the statutory
obligation of the Applicant to compensate persons injured in
road
accidents. The Applicant's application is based on the following:
3.1.
That
the Applicant was served with a summons, however due to an oversight
in the office of its attorneys of record, the summons
was not dealt
with, and
3.2.
While
the Applicant was served with an application for Default judgment,
the said service was not effected in the correct manner.
4.
In
the case of Gumede v Road Accident Fund, the court stated that in
applications for rescission, the court can exercise its discretion,
taking into consideration the merits of the matter as a whole
[1]
.
5.
The
court has to determine whether good cause was shown for rescission to
be ordered. Rule 42 6f the Rules of the High Court provides
as
follows:
(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;
(b)
An
order or judgment in which there
is
an ambiguity, or
a
patent error or omission, but only to
the extent of such ambiguity, error or omission;
(c)
An
order or Judgment granted
as
the
result of a mistake common to the
parties.
(2)
Any
party desiring any relief under this rule shall make application
thereof upon notice to all parties whose interests may be affected
by
any variation sough.t
(3)
The
court shall not make any order rescinding or varying any order or
Judgment unless satisfied that all parties whose interests
may be
affected have notice of the order proposed.
6.
Rule 31 provides the following:
(1)
(a) Save in actions for relief in
terms of the Divorce Act, 1979 (Act 70 of 1979), or nullity of
marriage, a defendant may at any
time- confess in whole or in part
the claim contained in the summons.
(b)
Such confession shall be signed
by the defendant personally and his signature shall either be
witnessed by an attorney acting for
him, not being the attorney
acting for the plaintiff, or be verified by affidavit.
(c)
Such confession shall then be
furnished to the plaintiff. whereupon the plaintiff may apply in
writing through the registrar to
the judge for Judgment according to
such confession.
(2)
(a) Whenever in an action the
claim or, if there
is
more
than one claim, any of the
claims is
not for a debt or liquidated demand
and a defendant
is
in
a plea, the plaintiff may
set
the
action down
as
provided
default of delivery of notice of intention to defend or of in sub
rule (4) for default Judgment and the court may, after
hearing
evidence, grant Judgment against the defendant or make such order as
to it
seems
meet.
(b)
A
defendant may within twenty days after he or she
has
knowledge of Such Judgment apply to
court upon notice to the plaintiff to set aside such judgment and the
court may, upon good cause
shown, set aside the default judgment on
such
as
to
it seems meet.
(3)
Where
a plaintiff has been barred from delivering a declaration-the
defendant may set the action down
as
provided in sub rule (4) and apply
for absolution from the instance or, after adducing evidence, for
Judgment, the court may make
such order thereon as to it
seems
meet.
(4)
The
proceedings referred to in sub rules (2) and (3) shall be set down
for
hearing
upon not
less
that
dive days' notice to the parry in default: Provided that no notice of
set
down need be given to any party
in default
of delivery of notice of
intention to defend.
(5)
(a) Whenever a plaintiff
is
in default of delivery of notice of
intention to defend or of a plea, the plaintiff, if he or
she
wishes to obtain 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 Jess than 5 days' notice of his or her intention
to
apply for default judgment
(b)
The registrar may-
(i)
grant judgment as requested;
(ii)
grant judgment for part of the
claim only or on amended terms;
(iii)
refuse judgment wholly or in
part;
(vi
postpone the application for Judgment on such terms as he or she may
consider just;
(v)
request or receive oral or
written submissions;
(vi)
require that the matter be set
down for hearing in open court. Provided that if the application
is
for an order declaring residential
property specially executable, the registrar-must refer such
application to the court.
(c)
The
registrar shall record any judgment or direction given by him or her.
(d)
Any
party dissatisfied with a Judgment granted or direction given by the
registrar may, within 20 days· after such party
ha-s acquired
knowledge of such judgment or direction, set the matter down for
reconsideration by the court.
(e)
The
registrar shall grant judgment for
costs
in an amount of R200 plus the
sheriff's fees If the value or the claim
as
stated in the summons, apart from any
consent to jurisdiction, is within the jurisdiction of the
magistrate's court and, in other
cases
unless the application for default
judgment requires
costs
to
be taxed or the registrar requires a decision on
costs
from the court, R650 plus the
sheriff's fees.
7.
The
object of rescinding a judgment is to restore a chance for the party
applying for it to air a real dispute. It is trite that
an applicant
seeking an order for rescission has to show good cause for the
default in launching a defence. See Colyn v Tiger Food
Industries
Ltd.
t/a
Meadow
Feed Mills (Cape)
[2]
,
where the court stated the following:
"In
order to succeed and applicant for the rescission of judgment taken
against him by default must show good cause.”
8.
In terms of Rule 31(2) (b) an applicant
who seeks rescission has to show
'good
cause'.
In order to prove
'good
cause', the applicant has to comply
with the following:
(a).
There should be a reasonable explanation
for the Applicant's default to defend the action.
(b).
The application should be
bona
fide
and should not merely serve as
a delaying tactic.
(c).
The applicant should set out the
bona
fide
defence. He or she should make
out a
prima facie
defence
by way of setting out an averment which is established at the trial,
would entitle him or her the relief asked for. In that
regard the
applicant is not required to deal fully with the merits of the case
and to produce evidence to prove that the probabilities
are in his
favour. (see Erusmus: Superior Court Practice at page 01 - 366). It
is sufficient if the Applicant shows the existence
of an issue which
is fit for trial. (See Grant v Pumbers (Pty) Ltd
[3]
.
9.
The
Applicant makes the point that there has not been gross negligence on
his part. He states that there was no wilful default on
his part
because it was not shown that:
1.
It had knowledge that the action is
being brought against it.
2.
It deliberately refrained from entering
appearance though it was free to do so and.
3.
It harbored a particular mental attitude
towards the consequences of the default.
10.
It is a requirement
that all of the three elements be established before the applicant
can be said to have been in willful default.
In this case the
applicant provided a detailed account of how it came about that it
remained obvious of the fact that the matter
is to serve before court
on the 7th of March 2016, which is the day on which default judgment
was granted to the respondent.
11.
The Applicant argues that taking into
consideration the manner in which the accident took place, there are
reasonable prospects
for liability to be apportioned or that the
respondent be found to have been liable for the collision. The
applicant also contends
that the application for default judgment was
not served in compliance with Rule 4. Rule 4 prescribes the manner in
which process
of the court is to be served by the Sheriff. To that
end, the rule provides that the process should be served on the
defendant.
12.
In terms of Rule 4 (I) (v); in the case
of a corporation or company, service should be by way of delivering a
copy to a responsible
employee at its registered office or its
principal place of business within the court's jurisdiction, or if
there be no such employee
willing to accept service; by affixing a
copy to the main door of such office or place of business, or in any
manner provided by
the law. The Applicant points out that Rule 4 (i)
(d) of the Uniform Rules was not complied with.
13.
The court finds that the applicant
demonstrated that it was not aware that an application for default
judgment is impending against
it on the day the Respondent obtained
default judgment against it.
14.
In the result, the application for
rescission stands to be granted and the following order is made:
ORDER.
1.
The
order granted by Justice Collis on the 7
th
of March 2016 under case number 95119/2015 is rescinded.
2.
The
applicant's application for condonation for failure to timeously
defend the main application is granted.
3.
The
Applicants are ordered to pay all wasted costs occasioned by such
rescission, including the costs of this application.
T.A.
Maumela.
Judge
of the High Court of South Africa.
[1]
2007 (6) SA 304
,
at page 307-E
[2]
2003 (6) SA 1
(SCA). at page 11
[3]
1049(2) SA 470 (0), al page 476.