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[2019] ZAFSHC 71
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R W v W M (3300/2018) [2019] ZAFSHC 71 (30 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
3300/2018
In
the matter between:
R
W Applicant
and
W
M Respondent
HEARD
ON:
23
MAY 2019
JUDGMENT
BY:
MOLITSOANE,
J
DELIVERED
ON:
30
MAY 2019
[1]
This is an application for rescission of a default judgement which
was granted against the applicant on the 31
st
January 2019 on the strength of a loan agreement. For convenience the
parties will be referred to as in the main action.
[2]
The parties also brought interlocutory applications seeking
condonation regarding their respective affidavits in the main
application.
Neither condonation applications were opposed. The
plaintiff’s attorney deposed to his confirmatory affidavit
annexed to
the founding affidavit of the interlocutory application a
day prior to the founding affidavit. Nothing however turns on this as
both parties agree that even if the affidavit is disregarded it does
not change anything. I granted both condonation applications.
[3]
The main issue for determination is whether the applicant wilfully
defaulted and is thus not entitled to rescission of judgment
and
further whether he has raised a bona fide defence.
[4]
In order for an applicant to succeed in an application for rescission
of judgment he must show good cause by:
(a) giving a reasonable
explanation of his default;
(b) showing that his
application is bona fide; and
(c) showing that he has a
bona fide defence to the plaintiff’s claim which prima facie
has some prospects of success –
See
Colyn
v Tiger Foods
2003
(6) SA1 (SCA) at 9E-F.
[5]
The background facts surrounding this application are briefly as
follows:
On
the 3
rd
February 2016 the parties entered into written loan agreement in
terms of which the plaintiff lent an amount of R1 000 000(
One Million Rands) to the defendant at 2,5% interest per month for 2
months. An amount of R300 000 was paid back on the 5
th
October 2017 while a further amount of R100 000 was paid back on
the 7
th
October 2017. The balance of R600 000 was never paid back and it
is the subject of this dispute.
[6]
The defendant was at the time of entering into this loan agreement
the son in law of the plaintiff. Summons was issued against
the
defendant on the 27
th
June 2018. It was served on the defendant personally on the 8
th
August 2018. It is common cause that the defendant did not enter
appearance to defend. Judgment by default was granted against
the defendant on the 31
st
January 2019.
[7]
An applicant who seeks an indulgence in terms of Rule 27 (1) must
show good cause. The applicant must furnish an explanation
for his
default sufficiently to enable the court to understand how it really
came about and to assess his conduct and motive -See
Silber v Ozon
Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353 A. In this case
the defendant in explaining how his delay came about avers that he
issued divorce summons on the 27
th
February 2018 against
his wife who is the daughter of the plaintiff. It is his case that on
the 18
th
October 2018 his wife instituted Rule 43
proceedings against him. He avers that in the pre-occupation with his
divorce proceedings
and regular consultations with his attorneys
about his pending divorce he mistakenly believed that the summons in
this matter was
handed over to his attorney to defend.
[8]
It is contended in the heads of argument that the nub of the
contention of the Applicant is that he was pre-occupied with the
separation from his wife, the Rule 43 proceedings, and arrangements
regarding his children and regular consultations with attorneys
and a
belief that he handed the summons to his attorney.
[9]
In my view, the conduct of the defendant does not support the
assertions made above. He issued summons against his wife in February
2018. About 4 months later respondent issued summons against him in
this case, which was personally served on him about six months
later.
He avers that he was under the mistaken belief that he handed same to
his attorney. On the 19
th
August 2018, after service of the summons in this case, an email was
forwarded to him requesting a meeting with the plaintiff and
his
attorney in order to try and resolve this matter outside of the
court. It appears that such a meeting did take place on the
4
th
September 2019.Defendant attended such a meeting without his
attorney. If indeed the defendant was under the mistaken belief that
he had handed his summons to his attorneys, then a formal
request for a meeting at the plaintiff’s attorneys’
offices should prompted him to go to his attorneys for further advise
or to seek advice in light of the fact that he believed he
handed
them the summons to defend. This he did not do but he goes alone to
the meeting. At the meeting he does not raise the issue
that he has
legal representation in this matter but he proceeds with the meeting.
[10]
In the meeting on the 4
th
September 2018 he makes an undertaking to repay the outstanding
amount. According to the evidence before me he ordered a cheque
book
from his bank and on the 3
rd
October 2018 he attended at the plaintiff’s attorneys’
office personally and handed the cheque book to the attorney
of the
respondent to complete four post-dated cheques dated 31
st
October 2018, 30 November 2018 and 31 December 2018 and 31
st
January 2019.
[11]
Attending at the offices of the Applicant and handing the cheques for
the balance of the outstanding money, does not evince
the conduct of
someone who is under the mistaken belief that he handed his summons
to his attorney. In my view it is indicative
of someone who does not
wish to defend the matter but rather to have it settled out of court.
It is, however, not the defendant’s
case that his delay came
about as a result of his attempts to settle the matter out of court.
[12]
On the 3
rd
of October 2018 a letter was written to the defendant confirming that
the receipt of the post-dated cheques should not be taken
as
constituting novation of the agreement. This letter should have
reminded him again about the case and one would have expected
him to
seek assistance from his attorneys. Again on the 2
nd
November 2018 defendant is informed by email that the first
post-dated cheque would be banked on the 6
th
November 2018.Instead of going to his attorneys as he thought he
instructed them to defend his matter, he replied that funds would
not
be available as he was still awaiting payment on a game sale. Another
letter was addressed to him on the 9
th
November 2019. None of the interactions made prompted him to visit
his attorneys or to even ask for progress on his matter.
[13]
Having received summons, participated in the settlement negotiations,
attending at the offices of the respondent’s attorneys
to
deliver post-dated cheques and also exchanging correspondence with
the plaintiff’s attorneys demonstrates clearly to me
that it
was never the intention of the defendant to defend this matter. His
assertion that he mistakenly thought that he handed
the summons to
his attorneys is negated by his conduct post receipt of the summons.
In my view he failed to establish good cause
and was in wilful
default. The absence of wilful default is a fundamental requirement
in applications for rescission of judgement-
See
Maujeen
v Standard Bank
1994 (3) SA 801
(CPD) at 805 E. On this point alone this application
must be dismissed.
[14]
I accordingly find that it is unnecessary to traverse other
considerations and I make the following order:
ORDER
1.
The
application for rescission of judgment is dismissed with costs.
-------------------------------
P.E.
MOLITSOANE, J
On
behalf of applicant: Adv Ploos Van Amstel
Instructed
by: FJ Senekal
Bloemfontein
On
behalf of respondent: Adv Benade
Instructed
by: Kuhn and Kuhn
Bloemfontein