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[2018] ZAGPJHC 678
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Tsatsi v Virgin Active and Others (A5019/17) [2018] ZAGPJHC 678 (6 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A5019/17
In
the matter between:
EUPHODIA
K.
TSATSI Appellant
and
VIRGIN
ACTIVE First
Respondent
HASHEM
NOORMAHOMED Second
Respondent
ADV.
KAREN
GORDON Third
Respondent
PETRE
KLEYNHANS Fourth
Respondent
JACQUES
HUMA Fifth
Respondent
J U D G M E N T
MAIER-FRAWLEY
AJ:
Introduction
1.
This appeal, with leave of the court a quo,
is directed against the whole of the judgment and order made by
Klaaren AJ on 1 February
2017 when he dismissed a rescission
application initiated by the appellant, with costs.
2.
The gounds of appeal are enumerated in a
lengthy notice of appeal, spanning some 42 pages. The drafter of the
notice of appeal appears
to have adopted a ‘wide angle’
approach in the formulation thereof, catering for every contingency,
even levelling
criticisms against the court a quo’s summation
of the historical background pertaining to the litigation.
3.
The pertinent issues arising in the appeal
are those based on grounds of appeal that are directed against the
court a quo’s
finding that the appellant failed to provide a
satisfactory explanation for her default of appearance in the
underlying main application
(which led to an order being made on 20
October 2015 dismissing the main application) as well as the finding
that notwithstanding
that the appellant enjoyed reasonable prospects
of success, at least with respect to part of the relief sought in the
main application,
such a finding did not tip the scales and reverse
an explanation for default that was otherwise unacceptable. Further
salient grounds
of appeal are directed against the finding that
neither rule 31(2)(b) or Rule 42(1) of the Rules of court were
applicable to the
adjudication of the rescission application and,
amongst others, the failure by the court a quo to make a ruling on a
point
in limine
which had been raised by the appellant in the replying affidavit.
4.
A determination of the issues, confined in
the terms set out above, has proven to be dispositive of the appeal.
For that reason,
it becomes unnecessary to consider numerous further
grounds on ancillary questions that have no impact on the outcome of
the appeal.
5.
The underlying main application was brought
in terms of the Promotion of Access to Information Act 2 of 2000
(PAIA) for the disclosure
of information held by the first respondent
(Virgin Active), arising from an incident which occurred at a health
club operated
by Virgin Active in which the appellant was allegedly
subjected to racial and gender abuse and harassment by certain
members of
Virgin Active in contravention of the club’s rules
governing the conduct of members, and, by extension, in violation of
certain
of the appellant’s rights as contained in the bill of
rights.
6.
A
decision whether or not to grant rescission involves the exercise by
the court of a discretion. T
he
principles relating to the nature and proper exercise of the
discretion vested in a judicial officer when making such a decision,
and the circumstances in which an appeal court can interfere with the
exercise of that discretion, are well established. A court’s
power to interfere on appeal is limited to instances where it is
found that the court of first instance did not exercise the
discretion
judicially or acted upon a wrong principle, or exercised
its discretion capriciously, or did not bring its unbiased judgment
to
bear on the question or did not act for substantial reasons.
[1]
Albeit in a different context, the constitutional court put it as
follows:
‘
...
the lower court had not exercised its discretion judicially, or that
it had been influenced by wrong principles or a misdirection
on the
facts, or that it had reached a decision which in the result could
not reasonably have been made by a court properly directing
itself to
all the relevant facts and principles.’
[2]
7.
A
court hearing an appeal against a refusal to rescind a judgment is
accordingly not at liberty to upset a decision of the court
a quo
merely because it thinks that it would have come to a different
conclusion on the facts or merely on the ground that if the
members
of the court of appeal had been sitting as the lower court, they
would have exercised their discretion differently.
[3]
8.
The relevant facts and principles against
which the appeal is to be adjudged, are summarised below.
Relevant facts
9.
The appellant is a seasoned legal
practitioner who practises as an advocate. She is also a member of
Virgin Active.
10.
After
the launch of the main application in terms of PAIA (which was
opposed), the matter was enrolled for hearing on three occasions.
It
first came to court In April 2015, when the parties agreed to
postpone the matter, on which occasion the appellant tendered
to pay
the costs of the postponement on the opposed scale. The next hearing
occurred on 27 July 2015 before Kathree-Setiloane J.
On this occasion
the appellants heads of argument were not in the court file although
the respondents were ready to proceed. As
a result, the matter was
again postponed, and the appellant was ordered to pay the costs of
the postponement on the attorney and
client scale.
[4]
The matter was specifically postponed to a date and week agreed upon
by the legal representatives of the parties, being the week
commencing 19 October 2015. During that week, the matter once again
served before Kathree-Setiloane J. The matter appears to have
been
allocated for hearing on Tuesday the 20
th
October 2015 by the presiding judge.
At
the time, the appellant was working outside of Gauteng, performing
judicial duties in another division.
11.
The
appellant’s counsel appeared in court on Monday the 19
th
October 2015 to move the application
[5]
when it was pointed out that the matter was only allocated for
hearing the following day. Whilst the appellant and her legal team
were preparing for the hearing the following day, the appellant’s
counsel became ‘unavailable’
[6]
and in the result, a ‘new counsel’ was briefed afresh.
Later in the afternoon of 19 October 2015, the appellant’s
attorneys served a notice of withdrawal as attorneys of record. The
appellant appears to have been telephonically informed thereof
on the
same day.
12.
When
the matter was called in court on Tuesday the 20
th
October 2015, the applicant failed to appear in person. She was also
not legally represented at the hearing. The appellant’s
‘new
counsel’, who held no instructions to appear on her behalf,
appeared merely as a courtesy to apprise the court
of the fact that
the appellant’s attorneys had withdrawn and that the appellant
was ‘working out of town’.
An indulgence was sought
to stand the matter down until later in the week to enable the
appellant to provide an affidavit and also
to appoint a new set of
attorneys, ‘if possible’.
[7]
13.
In the exercise of her discretion,
Kathree-Setiloane J refused the indulgence sought, and granted
judgment by default against the
appellant, thus dismissing the PAIA
application with costs.
14.
It was common cause on the papers that
the matter was enrolled for hearing at the instance of the
respondents on each occasion that
it came to court. However, each
time it could not proceed as a result of the appellant’s
conduct, as evidenced,
inter alia,
by
the costs orders that were granted against the appellant on each
occasion.
15.
On 22 February 2016, the appellant
launched an application for rescission of the judgment of
Kathree-Setiloane J of 20 October 2015
in terms of the provisions of
Rule 32(1)(b) alternatively, Rule 42(1) of the Rules of Court,
further alternatively, in terms of
the common law. Condonation was
also sought for the late filing of the rescission application.
16.
The court a quo, per Klaaren AJ, granted
condonation but dismissed the rescission application with costs on
grounds that:-
16.1.
There was no acceptable explanation for
the appellant’s lack of legal representation at the hearing on
20 October 2015; and
16.2.
The appellant enjoyed no good prospects
of success in the underlying main application in relation to 8 of the
10 items appearing
in the appellant’s list of information that
had been sought in terms of PAIA .
Relevant
legal principles governing rescission
17.
As far as the common law is concerned,
in
De Wet and Others v Western Bank
Ltd
,
1979 (2) SA 1031
(A),
Trengove
AJA (as he then was), pointed out that in Roman-Dutch law, courts had
a relatively wide discretion to rescind judgments
obtained in default
of appearance on ‘
sufficient’
cause shown. The Appellate Division
(as it then was known) held that although no ‘rigid limits’
were set as to the circumstances
which constituted sufficient cause,
the courts had nevertheless laid down certain general principles for
themselves to guide them
in the exercise of their discretion. To this
end, and broadly speaking, the exercise of the court’s
discretionary power was
influenced by considerations of justice and
fairness, having regard to the facts and circumstances in the
particular matter before
it.
18.
As further pointed out in
De
Wet
, these powers were wider than
the statutory powers afforded to a court under the provisions of Rule
31 and Rule 42, as the grounds
for rescission of a default judgment
in terms of these Rules did not cover the case of a litigant who
found himself in default
because of unforeseen circumstances beyond
his control, such as illness or ‘
some
other misadventure; and one could envisage many other situations in
which logic and common sense dictated that a defaulting
party should,
as a matter of justice and fairness, be afforded relief at common
law.
’ [
At
1042H-1043A]
.
19.
In
order to obtain rescission at common law, a litigant is required to
show ‘
sufficient
cause
’.
Under Rule 31(2)(b) the requirement is ‘
good
cause
’.
In
a long line of cases the courts have held that the requirement of
sufficient cause is synonymous with the requirement of good
cause
.
What
an applicant is required to show, in essence, is a reasonable
explanation for his default (it has also sometimes been described
as
an ‘
acceptable’
or ‘satisfactory’
explanation)
[8]
and a
bona
fide
defence
to the plaintiff’s claim, which
prima
facie
has ‘
some
prospect of success’.
[9]
20.
An
applicant who applies for rescission under rule 42(1)(a) is not
required to show good or sufficient cause.
It
is simply enough if the order was erroneously sought or granted in
the absence of that party. Generally a judgment is erroneously
granted if there existed at the time of its issue a fact which the
court was unaware of, which would have precluded the granting
of the
judgment and which would have induced the court, if aware of it, not
to grant the judgment.
[10]
In
Rossiter
,
an
application
for default judgment was lodged with the registrar, purportedly in
terms of Uniform rule 31(5)
(a),
and
served on the appellants’ attorney. The appellants contended
that the default judgment had been erroneously sought and
granted
because of non-compliance by the respondent with Uniform rule
31(5)
(a)
read
with para 2.3 of the Practice Manual of the KZN Division of the High
Court. It was common cause that the respondent’s
notice of
intention to apply for default judgment was procedurally defective,
in that,
inter
alia
,
it did not provide a time and date on which default judgment would be
sought. The court held that ‘
there
can be no doubt that if the registrar had been made aware of the
procedural defect in the rule 31(5)(a) notice, default judgment
would
not have been granted. In Lodhi 2 Properties Investments CC v
Bondev Development (Pty) Ltd
2007
(6) SA 87
(SCA),
Streicher JA held that if notice of proceedings to a party was
required but was lacking and judgment was given against that
party
such judgment would have been erroneously granted.’
[para 16].
21.
In
Lodhi,
Streicher
JA went on to state in para [25] that ‘
a
judgment to which a party is procedurally entitled
cannot be considered to have been granted erroneously by reason of
facts of which the Judge who granted the judgment,
as
he was entitled to do
,
was unaware... See in this regard Colyn v Tiger Food Industries Ltd
t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA)
in paras 9-10’
(own emphasis). In
Colyn,
a notice had been lost in the defendant’s attorney’s
office, and the defendant accordingly did not appear when the
plaintiff applied for summary judgment. Jones AJA held that no
procedural irregularity had occurred and that summary judgment had
not been erroneously granted.
22.
It bears reiterating that a
court’s decision not to rescind lies within the discretion of
the presiding judge. It should be
mentioned, however, that a court is
bound to exercise its discretion judicially in light of the
considerations set out above, and
any other considerations which
might be relevant.
Court
a quo’s adjudication of the rescission application in terms of
the common law
23.
The appellant persists with her contention that the court a quo erred
in failing to determine the rescission application under
the precepts
of either Rule 31(2)(b) or Rule 42(1)(a) of the Rules of court.
24.
The criticism is directed against the court a quo’s finding
that ‘
Rule 31(2)(b) is inappropriate as it requires that the
applicant for rescission should have been in default of intention to
defend
or of a plea
.
Here Tsatsi has submitted a plea as well
as affidavits
’
25.
Accepting that the appellant launched motion proceedings and hence no
plea could have been filed, the appellants contention
that she was
procedurally entitled to invoke the provisions of Rule 31(2)(b),
alternatively, Rule 42(1) on the facts of the matter,
lacks merit.
26.
Rule 31
regulates the procedure for applying for judgment on confession and
by default in
action
proceedings.
[11]
27.
‘Action’ is defined in rule 1 as ‘a proceeding
commenced by summons’. Sub-rule 31(2) explicitly limits
its
application to action proceedings, as is evident from the italicised
portion of the quotation in fn 11 below.
Cadit quaestio
(the
argument collapses).
28.
The appellant failed to appear in court on 20 October 2015, either in
person or by means of legal representation. Plainly
stated, she
was in default of appearance at the hearing of the PAIA application.
Her ‘new counsel’ informed the court
that he was not
instructed as such in the matter, and although not expressly stated,
presumably on the basis that he had not been
briefed by an attorney,
as is required. All being considered, he would in fact have lacked
standing to appear on behalf of the
appellant at the hearing.
29.
The question then arises as to whether or not the appellant made out
a case for rescission of judgment in terms of Rule 42(1)(a).
The rule
provides that a court may on application of any party affected,
rescind an order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby. The appellant
was clearly a party affected by the judgment or order of
Kathree-Setiloane
J on 20 October 2015, which was also made in her
absence.
30.
The court a quo found that Rule 42(1) (a) is inappropriate because
‘there is no procedural error complained of –
other than,
in that sense, the absence of legal representation for the applicant
and the absence of the applicant. The only error
pointed to is the
fact itself of the court proceeding rather than postponing in the
absence of the applicant and her legal representative.
‘
31.
In the
rescission application, the appellant alleged that the court ought to
have granted her an indulgence to stand the matter
down on 20 October
2015 when it was called,
[12]
given her absence from Gauteng and the short opportunity in which she
was expected to procure the services of a new attorney, and
given the
fact that her erstwhile attorneys had withdrawn at the eleventh hour
and had ‘left her in the lurch’.
32.
Mere
withdrawal by a practitioner or the mere termination of a mandate
does not entitle a party to a postponement as of right.
[13]
A request for a postponement is none other than a request for
an indulgence to hear the matter on a date other than at its
appointed time. As pointed out by the Constitutional Court, the grant
of any indulgence is a matter of judicial discretion. And
it cannot
be had for the mere asking. It involves a value judgment by the court
seized with the matter, based on the facts of the
case.
[14]
In the exercise of its discretion, a court will consider,
inter
alia,
whether
or not: the applicant has fully explained the true reason for the
unpreparedness; whether his or her un-readiness to proceed
is not due
to delaying tactics and whether justice demands that the applicant
should have further time for the purpose of presenting
his case.
[15]
33.
‘Higher
courts have recognised that one of the oldest tricks in the book is
the practise of some legal practitioners, whenever
the shoe pinches,
to withdraw from the case (and more often than not to reappear at a
later stage), or of clients to terminate
the mandate of their legal
representatives (more often than not at the suggestion of the
practitioner), to force the court to grant
a postponement because the
party is then unrepresented. Judicial officers have a duty to the
court system, their colleagues, the
public and the parties to ensure
that this abuse is curbed by, in suitable cases, refusing a
postponement.’
[16]
34.
As is apparent from the allegations made in the founding affidavit to
the rescission application, Kathree-Setiloane J was only
informed
that the appellant was ‘working out of town’ and that her
erstwhile attorneys had withdrawn the day before.
No explanation was
given by the appellant as to why her erstwhile counsel was no longer
available; why her attorney of record had
withdrawn and why the
matter was not ready to proceed a day after it had been conveyed as
being ripe for hearing. When confronted
with a historical factual
scenario in which the matter had previously been postponed on two
prior occasions as a result of the
applicant’s conduct; where
the appellant’s legal representatives had been ready to proceed
on the merits the day before,
yet decided to withdraw sometime later
the same day without as much as a hint of why this occurred; where
the applicant herself
had failed to place evidence before the court,
at the very least, to explain the circumstances surrounding the
withdrawal and the
steps that were taken, if any, by her to secure
alternate legal representation (or to explain why this could not be
done) so as
to enable the court to assess whether the true reason for
her non-preparedness to proceed at the appointed time of hearing of
the
matter was due to circumstances beyond her control, and indeed to
enable the court to consider the issue of prejudice, if any, that
would be suffered by the opposing party in the result; where the
appellant had failed to make an appropriate tender for costs in
circumstances where she was again not ready to proceed, it comes as
no surprise that the presiding judge ultimately exercised her
discretion against granting the indulgence sought. In short,
the request for a postponement was not properly motivated and
remained unsupported by evidence.
35.
Perhaps
more significant for present purposes, is the appellants own
concession that ‘Setloane J was aware of the reasons
[or] facts
facing the Appellant and decided to grant judgment in default in the
Appellant’s absence.’
[17]
In the circumstances, it cannot be said that the presiding judge did
not exercise her judicial discretion properly. Kathree-Setiloane
J
was quite entitled to enter judgment against the appellant because
she was, in fact, in default. The respondents were also procedurally
entitled to apply for default judgment and the judgment so granted
was thus neither erroneously sought nor erroneously granted.
See
Lodhi
supra.
[18]
For that reason, the appellant failed to make out a case under the
provisions of Rule 42(1)(a).
36.
The upshot of the aforegoing conclusions is that the court a quo
correctly concluded that the matter should be decided under
the
common law. The appeal on this ground must accordingly fail.
Sufficiency
of appellant’s explanation in terms of the common law
37.
The question to be answered is whether or not the court a quo erred
in finding that the appellant failed, in the rescission
application,
to provide an ‘acceptable’ explanation for her lack of
legal representation on 20 October 2015.
38.
The appellant tendered an explanation to the effect that she was
acting on the bench in another division and that this made
it
impossible for her to attend at court on 20 October 2015, as she
‘could not be in two places at once’. She specifically
avers in her founding affidavit that although the matter had
previously been postponed to a specific date and week, on the Monday
preceding the allocated day of hearing on 20
th
October
2015, ‘
whilst
we
were preparing
for the appearance for the next day, my erstwhile counsel became
unavailable, hence counsel had to be briefed afresh’.
The
appellant indicated that the erstwhile counsel’s unavailability
was not the problem that resulted in judgment being taken
by default,
presumably because he able to come to grips with the merits of the
matter in time for the hearing the following day
and was therefore
equipped to argue the matter. The real problem, according to the
appellant, arose by virtue of the withdrawal
of her attorneys of
record in the matter.
39.
According
to the appellant, a junior associate employed at her erstwhile
attorneys informed her sometime on Monday that the firm
had withdrawn
from representing her in the matter at the instruction of the firm’s
senior partner. Despite her asking the
junior associate for reasons
for the decision to withdraw, she was not given any ‘cogent’
reasons for the withdrawal.
[19]
The notice of withdrawal was filed in the afternoon prior to the day
of the hearing. The appellant stated that she could not do
much about
the situation, even if she had wanted to, as she was working out of
town, hence she sent a colleague (counsel) to court
to appraise the
court of her predicament, which counsel did, but despite which the
presiding judge granted default judgment.
[20]
In the words of the appellant, “
it
does not take a ‘rocket scientist’ to realize that it is
impossible to organize another attorney firstly when you
are taken by
surprise a day before the hearing and secondly when you are out of
town…”.
[21]
Why
this was ‘impossible’, even under those circumstances,
was simply not explained. After all, the appellant managed,
under the
self-same circumstances, to procure the services of a replacement
counsel,
[22]
who would have
had to familiarise himself with the substance of the matter in order
to present argument on the merits the following
day.
40.
The court a quo clearly considered the issue in its judgment, as is
apparent from the following excerpt:
“
[18] Virgin
Active notes that Tsatsi is a senior legal practitioner, ‘a
senior junior counsel at the Johannesburg bar
who has acted in
different divisions of the High Court.’ Counsel for Virgin
Active notes that there is no account of for
instance, Tsatsi
telephoning or otherwise contacting an attorney who said she or he
was unable to act on such short notice.
[19] It seems
reasonable to me to think both that a senior legal practitioner would
have an appreciation of the consequences
of failing to be legally
represented or appear in person at the hearing of her own application
and that a senior legal practitioner
would have access to networks of
other legal practitioners, including attorneys as well as counsel.
[20] This line of
thinking is bolstered by Tsatsi’s evident ability to find
replacement counsel immediately. Contacting
and engaging an attorney
to provide the necessary instruction to counsel to seek a
postponement on the grounds of a change in legal
team would not be
overly complicated. Indeed Virgin Active’s counsel argued that
Tsatsi was in wilful default by not appointing
an attorney,
particularly in a situation where counsel was ready to proceed.”
41.
The
appellant indeed did not mention in her affidavits that she had
endeavoured to contact any attorney/s for purposes of enlisting
their
services to represent her in the matter on 20 October 2015, that is,
after she acquired knowledge of the withdrawal of her
erstwhile
attorneys. The appellant merely spoke to some or other junior
associate, who informed her of the firm’s withdrawal
in the
matter, without stating whether or not he was the person who had been
her instructing attorney at the firm. The appellant
further stated in
the founding affidavit that an indulgence was sought on the day of
the hearing enable her to provide an affidavit
and ‘
to
get
a
new set of attorneys appointed,
if,
possible.’
(own
emphasis). In the replying affidavit the appellant stated that ‘My
counsel asked the court to stand the matter down
until
we could find another set of attorneys.’
[23]
(own emphasis).
42.
The appellant’s statements quoted above suggest that she did
not in fact endeavour to procure the services of an attorney
after
obtaining knowledge of the withdrawal, rather, she sought time in
which to do so at the hearing on 20 October 2015. Significantly,
the
appellant did not indicate in her affidavit as to when the
appointment of a new attorney was anticipated to occur or that an
indication thereof had been given to the presiding judge. On her own
version, the appellant was unsure as to whether or not she
would
succeed in procuring the services of a new attorney.
43.
The
appellant had, on her version, been preparing with counsel on the
Monday for the hearing the next day, this, notwithstanding
that she
was out of town. In the replying affidavit, the appellant suggested
that ‘
I
cannot answer for both the attorney and counsel why they decided to
withdraw. I am not sure what I am supposed to do if an attorney
and
advocate decide to withdraw unceremoniously when I was out of
town.’
[24]
Appellant
also averred that she was not to blame for the default of her
erstwhile legal team.
[25]
In
order to allow for an assessment as to whether or not the appellant
was or was not to blame, at the very least she ought to
have
disclosed the reason for the withdrawal. This would have shed light
on whether or not this was a case of the nature described
by Harms JA
in
Take
and Save Trading, supra
(referred to in para 33 above). And that, in turn, would have shed
light on whether or not the appellant deliberately refrained
from
securing legal representation at the hearing of the matter on 20
October 2015. It is, in any event, inconceivable that
the
appellant would
not
have demanded an explanation from her erstwhile attorney, especially
in the circumstances described by the appellant, that is,
where the
attorney suddenly withdrew the day prior to the hearing without
warning and without ‘cogent’ reasons, thereby
leaving her
in the lurch. This notwithstanding, the reason for the withdrawal was
not disclosed in the rescission application.
44.
The
appellant chose to litigate in her personal capacity and given her
position and legal experience, ought to have appreciated
the
consequences for failing to appear at the hearing of the matter at
its appointed time, whether in person or by means of legal
representation. She ought also to have appreciated the consequences
that would follow in the event that she did not provide a full
and
frank disclosure of all the circumstances that led to the lack of
legal representation. As indicated earlier, the appellant
had to show
good or sufficient cause for rescission under the common law.
As
pointed out in
HDS
Construction (Pty) Ltd
v
Wait:
[26]
‘
When
dealing with words such as "good cause" and "sufficient
cause" in other Rules and enactments the Appellate
Division has
refrained from attempting an exhaustive definition of their meaning
in order not to abridge or fetter in any way the
wide discretion
implied by these words (
Cairns'
Executors
v
Gaarn
1912
AD 181
at
186;
Silber
v
Ozen
Wholesalers (Pty) Ltd
1954
(2) SA 345
(A)
at 352-3).
The
Court's discretion must be exercised after a proper consideration of
all the relevant circumstances
.’
(own emphasis)
45.
According
to the appellant, ‘
there
was nothing more that Counsel could do, considering the attitude of
the court which was that judgment by default would be
granted and if
I felt aggrieved then I would have to bring an application for
rescission of judgment. Therefore, in view of the
aforegoing…the
issue of wilful default does not even come into the picture in this
particular instance if one factors into
the equation the fact that I
had left the matter in my legal team’s hands with the distinct
instruction that the matter be
dealt with accordingly and not
abandoned in the manner that they did.’
[27]
The
appellant misses the point. As indicated earlier in the judgment,
what
she
did or did not do upon acquiring knowledge of the withdrawal, is what
is relevant.
46.
The
appellant sought to absolve herself from blame by suggesting in the
rescission application that she had left the prosecution
of the
matter in the hands of her attorneys.
[28]
The appellant alleged in the founding affidavit that she was not to
blame for the ‘default’ of her erstwhile legal
team that
left her in the lurch ‘
thus
creating a state of affairs wherein there indeed just cause to
rescind and set aside the judgment obtained by default’.
What
adds insult to injury…is the fact that the court could have
given the indulgence of standing the matter down with a
view to
obtaining an affidavit from me or enabling me to put someone on
record, so that Counsel who was in place would then be
enabled to
appear and argue the matter on my behalf, but unfortunately the court
elected not to do that, which effectively railroaded
my section 34
constitutionally guaranteed right to be heard in a manner that can be
justified in terms of section 36 of the constitution.
Matters are
always stood down in South African courts for various reasons, for so
long as it is not a matter of life and death…Standing
this
matter down was not going to cause anybody severe damage or harm, and
it was not a matter of life or death…For some
reason my matter
was treated differently from the matters that are usually stood down
by counsel in our courts. In the light of
the aforegoing …there
is indeed just cause …to rescind the judgment and order
granted by Kathree-Setiloane J.’
The
appellant’s above sentiments were persisted with in written
argument presented to court in the appeal.
47.
The appellant appears to have expected to be accommodated by the
court, simply for the mere asking. It is also apparent that
little,
if any, thought was given to the rights of the opposing litigants or
the inconvenience of the court. Why the applicant
assumed an
entitlement to be accorded special treatment, different to that of
other litigants, who are equally subject to the rules
of court, is
simply not understood.
48.
As pointed
out earlier, the reason for the attorneys ‘default’ was
not explained at all. The reasons for the appellant’s
own
inaction thereafter was not satisfactorily explained. As it was put
by Jones AJA in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape:
[29]
‘
While
the courts are slow to penalize a litigant for his attorney’s
inept conduct of litigation, there comes a point where
there is no
alternative but to make the client bear the consequences of the
negligence of his attorneys (
Saloojee
and Another NNO
v
Minister
of Community Development
23
).
Even if one takes a benign view, the inadequacy of this explanation
may well justify a refusal of rescission on that account
unless,
perhaps, the weak explanation is cancelled out by the defendant being
able to put up a
bona
fide
defence which has not merely some prospect, but a good prospect of
success (
Melane
v
Santam
Insurance Co Ltd
24
).
’
(footnotes omitted)
49.
In
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532
E, the court held,
inter alia,
that what is needed is an
objective conspectus of all the facts and that the respondent’s
interest in finality must not be
overlooked by a court when
exercising its discretion.
50.
The court a
quo applied the principles propounded in
Chetty
v Law Society Transvaal
1985 (2) SA 756
(A) at 768C
[30]
and
De
Wet and Others v Western bank Ltd
1979
(2) SA 1031 (A)
[31]
in
concluding that the appellant had failed to provide an acceptable
explanation for her lack of legal representation on 20 October
2015.
51.
The court a quo drew a rough parallel between the events of the
present case and the facts in
De Wet
, where 6 litigants were
faced with a default judgment due to the withdrawal of their
attorneys for ‘obscure’ reasons
at the eleventh hour,
without proper explanation. One of the litigants received
notice of the attorneys’ withdrawal
on the Saturday preceding
the trial date the following Monday and immediately took steps to
appoint new attorneys. The other five
litigants only received notice
of the withdrawal after the default judgments had already been
entered against them at the instance
of the other party. The court
found that their predicament was not solely due to their attorney’s
negligence or ineptitude
and that they could not be absolved from
blame as they had not been in touch with their attorney at any stage
of the proceedings
but had left the conduct of their case entirely in
his hands, thereby, manifesting a complete disinterest in the conduct
of their
case and proffering no acceptable explanation for their
failure to keep in touch with their agent (the litigant who had been
advised
of the attorney’s withdrawal but who had in turn failed
to notify the others thereof).
52.
Although
De
Wet
is
not on all fours with the facts of the appellant’s case, it has
various features in common therewith.
[32]
What is apparent from
De
Wet
is
that the court was more inclined to exercise its discretion in favour
of granting rescission in circumstances where the advised
litigant,
who had also left the conduct of the litigation in the hands of his
attorney and who was faced with a notice of withdrawal
at the
eleventh hour, immediately set about making the necessary
arrangements to be represented at the hearing.
53.
I have difficulty in finding that the appellant tendered a reasonable
or acceptable or satisfactory explanation for her default
of
appearance.
54.
The reason for the withdrawal of the appellant’s erstwhile
attorneys was not explained. As mentioned earlier, it is
inconceivable
that the appellant would not have demanded an
explanation from the specific attorney who had been dealing with her
matter, especially
if he had no valid reason to withdraw. And if he
did have a valid reason, this would in all probability have been
conveyed to his
client and well as to any counsel whom he had
briefed. It is unlikely that an attorney would withdraw without valid
reason, given
that Attorneys act on the instructions of their clients
and, unless otherwise agreed, upon payment of their fees. The
applicant
remained unrepresented, not because her new counsel, who
had taken over the matter at short notice was unprepared, but because
he was no longer briefed to appear on the appellant’s behalf at
the hearing. The appellant failed to explain why she did not
or could
not contact any attorney to brief him. She was, after all, in
telephonic contact with a junior associate from the same
firm of
attorneys after being notified of the withdrawal. And she was also in
telephonic contact with counsel.
55.
In the circumstances, it has not been demonstrated that the court a
quo failed to exercise its discretion judicially, nor has
it been
demonstrated that
it
had reached a decision which in the result could not reasonably have
been made by a court properly directing itself to all the
relevant
facts and principles.
It follows therefrom that the
appeal on this ground cannot succeed.
56.
That then
brings me to a consideration of whether or not the appellant’s
claim for information in the underlying PAIA application
carried good
prospects of success, sufficient to tip the scale in her favour in
the application for rescission, in which regard,
see
Colyn
[33]
supra
at
para [12];
Chetty
[34]
supra
at 768 (C).
Prospects of
success in the main PAIA application
57.
The
appellant sought access to ten items of information from Virgin
Active in terms of PAIA pursuant to Virgin Active having informed
her, in a letter dated 20 June 2014,
[35]
of the outcome of its investigation into the appellant’s
complaint pertaining to the underlying incident referred to in
paragraph 5 above.
58.
The court a
quo considered the appellant’s prospects of success in the
underlying PAIA application and concluded that she
enjoyed reasonable
prospects of success, at least in relation to items 1 & 2 on her
list of requested information.
[36]
The court a quo however concluded that reasonable prospects of
success in relation to only two of the items did not, in the
circumstances,
tip the scales in the appellant’s favour and
reverse an explanation for default that was otherwise unacceptable.
59.
The appeal is directed against the court a quo’s findings in
relation to items 3-10 on the appellant’s list. All
such items
were refused on the ground that records of the information did not
exist and were thus not in the possession or under
the control of
Virgin Active, with explanations in some instances having been given
as to why this was so, and in other instances,
the information sought
was refused for certain additional reasons.
60.
The items of information requested were conveniently grouped into
three categories for purposes of evaluation in the judgment.
They
are: [i] items not disclosed by Virgin Active on the grounds that
they do not exist (numbers 3-6 and 8-10); [ii] items relating
to
statements made by the other persons involved in the allegedly racist
incident (items 1 and 2), and [iii] information relating
to Virgin
Active’s statement on 20 June 2014 that all parties involved in
the underlying incident were guilty (item 7).
61.
As regards
the first category, the court a quo concluded that PAIA operates
through the concept of a record, as envisaged in section
50 read with
section 1 of PAIA
[37]
and
that, where information is not contained in records, PAIA does not
impose the obligation to create records. A reading of the
court a
quo’s judgment within the context of the discussion outlined in
paragraphs 28 to 30 thereof, reveals that the court
a quo found that
the request within the first category carried slim prospects of
success,
inter
alia,
because
it had not been demonstrated in the rescission application that any
recorded information to which the appellant sought access,
existed.
As regards the third category, the court a quo found that the request
in item [7] was ‘more in the vein of a request
for reasons
rather than a request for access to information via records in terms
of PAIA’.
62.
It will
suffice, for present purposes, to paraphrase items 8-10 of the
appellant’s request, together with Virgin Active’s
additional reasons for refusing the request, where relevant:
[38]
62.1. Item 3: Statements
of the managers of Virgin Active setting out what the other members
had said to them orally, when relaying
their versions, including
dates and times when this was conveyed;
62.2. Item 4: Written
proof of Virgin Active’s request to the appellant to depose to
an affidavit for the sole purpose of
opening a case with the SAPS;
[Virgin Active denied ever having made a request in the terms
suggested. In the rescission application,
Virgin Active put up
letters evidencing a request that the appellant substantiate her
version on affidavit, ostensibly to reinforce
or strengthen the
probative value thereof.
62.3. Item 5: The name of
the lawyer who advised that only the appellant would have to depose
to an affidavit and not the other
4 members involved in the incident;
[Virgin Active denied ever so advising the appellant. In the
rescission application, Virgin
Active confirmed that all the other
members involved in the incident had willingly deposed to affidavits
in support of their version.]
62.4. Item 6: The rule
contained in Virgin Active’s rule book that empowers it to
request an affidavit from a member in lodging
a complaint; [In
refusing the request, Virgin Active explained that no rule as such
exists that specifically empowers it to do
so; that members are
informally requested to depose to statements under oath; and that
that a member so requested is not obliged
to provide an affidavit.]
62.5.
Item 7: A
request for various particulars pertaining to Virgin Active’s
finding that all the parties were guilty of unbecoming
and
unacceptable conduct in terms of the good order and character of the
club, Virgin Active and its members; [Virgin Active contended
that it
owed a duty of confidence to the relevant third parties and that it
was prohibited from granting access to the information
in terms of
section 65
[39]
of PAIA.]
62.6. Item 8: A request
that Virgin Active define the meaning of ‘conduct unbecoming
and unacceptable’ within the context
of the alleged incident;
62.7. Item 9: How Virgin
Active knows that the other members involved in the incident were not
racially derogatory or demonstrated
extreme prejudice to the
appellant; and
62.8. Item 10: a report
from Virgin active confirming that no complaint regarding the
appellant’s driving has been lodged
against her during the
currency of her membership at Virgin Active.
63.
It is well
established that PAIA itself leaves no doubt that what may be
requested is a 'record'. A record is defined in section
I as 'any
recorded
information'.
[40]
‘Plainly, PAIA does not facilitate an open interrogation about
'information' more broadly. Further, PAIA
ought
not to be construed in a manner to make it perform a role for which
it was not designed’.
[41]
64.
Section
53(2) of PAIA requires the requester to provide (on the prescribed
form) sufficient particulars to enable the head of the
private body
concerned,
inter
alia,
to
identify
the
record or records
requested. As pointed out by Sutherland J in
Afriforum
supra,
[42]
‘…
These
injunctions contemplate the requester being given exactly what was
requested and, in my view, no more than what, reasonably
construed,
was requested. The
defacto
burden
of making sure what, exactly, is being requested, falls on the
requester… A document is identified by name and by
its
contents. In my view, the label is
per
se
unimportant;
what is important is that the description that is given, affords a
reasonable official 'sufficient particulars' to
identify the document
being requested; ie whatever 'record' that exists that contains the
information.’
65.
In
the rescission application, the appellant set out her reasons for
wanting access to the information mentioned in her list. In
relation
to items 8 – 10 on the list, Virgin Active consistently
maintained that the information sought was not contained
in any
records that were in its possession or control. It is clear
from the appellants affidavits filed in the rescission
application
that she was dissatisfied with the findings made by Virgin Active in
their letter of 20 June 2014.
[43]
The letter is quoted in full in the judgment of the court a quo and
for that reason, will not be repeated herein. Suffice it to
say that
Virgin Active was faced with two contradictory accounts of what had
transpired during the incident which formed the subject
matter of the
appellant’s complaint. It was ostensibly for that reason that
Virgin active was unable to make a definitive
finding against one
party in favour of the other. It must be remembered that Virgin
Active was not determining guilt or liability
pursuant to the
infringement of the appellant’s statutory
[44]
or constitutional rights
[45]
or whether or not the persons against whom the appellant had lodged a
complaint, were guilty of criminal conduct, for such a determination
resides within the jurisdiction of the courts. Virgin Active was
merely determining whether or not a contravention of its own club
rules by one or all of the members involved in the incident, had
occurred. The appellant submitted that the information sought
was to
enable her to consider her options ‘to take this matter
further.’
[46]
The rights
which the appellant wanted to exercise or protect were specified in
the prescribed form that she submitted in terms
of PAIA.
[47]
Paragraph [G2] of the form required her to explain why the ‘record’
requested was required for the exercise or protection
of the rights
mentioned in paragraph [G1] of the form. In paragraph [G1] the
appellant indicated,
inter
alia,
that she could ’only quash the guilty verdict’ [arrived
at by Virgin Active] in the event that she was provided with
the
information that she requested.
[48]
66.
As pointed out by Virgin Active in the answering affidavit, even if
the disclosure of information sought was ordered, it would
have no
practical effect on its finding since the contractual arrangement
between the parties does not permit of any internal appeal
against
the decision arrived at.
67.
Regard being had to that which has been stated in paragraph 7 above,
I am unable to conclude that the court a quo was influenced
by wrong
principles or a misdirection of the facts. Its follows therefrom that
the appeal on this ground too must fail.
Point
in limine
68.
The
appellant raised a point
in
limine
in
the replying affidavit for the dismissal of the respondents’
affidavit and defence with costs, on grounds that the deponent
to the
answering affidavit ‘does not have sufficient direct knowledge
of the facts, cannot swear positively to the facts,
and cannot verify
the cause of action.’
[49]
The appellant takes issue with the fact that the court a quo did not
make a ruling on the issue or consider it in the judgment.
69.
As appears from the judgment of Klaaren AJ, the issue was not
mentioned or dealt with in the judgment.
70.
The
deponent to the answering affidavit, one Phila Nkosinathi Sikhululu
Zulu, is the Legal Director of Virgin Active. In the answering
affidavit, he states as follows: ‘The contents of this
affidavit fall within my personal knowledge,
unless
otherwise indicated
,
or if it
appears otherwise from the context
,
and is both true and correct. I dealt with this matter personally and
I base the contents of this affidavit on the information
contained in
the documents that are in my possession and under my direct and
personal control.’
[50]
(own emphasis)
71.
Confirmatory
affidavits of
inter
alia,
the
second to fifth respondents were provided in the application. In the
replying affidavit, the appellant acknowledged that the
second to
fifth respondents were the persons who possessed personal knowledge
of the matter.
[51]
Notwithstanding, she persists, on appeal, with the point raised in
the court a quo, namely, that the deponent to the answering
affidavit
did not have personal knowledge of the facts of the matter.
72.
In
The Master v Slomowitz
1961 (1) SA 669
(T) at 672A-D the
following was said:
“
In general an
application must be based on proper evidence (not e.g hearsay) and it
must appear from the petition and annexures
as a whole that the
foundation for relief is so evidenced – it is not merely a
question of the petitioner stating that the
facts are within his
personal knowledge. The very nature of the papers may belie such a
statement even though it does appear; or
make it unnecessary where it
is absent…In exceptional cases an application may be based on
hearsay but then the deponent
must state that the allegations of fact
are true to the best of his information, knowledge and belief and
state the basis of the
knowledge or belief. The mere omission…of
an allegation that the facts are within the personal knowledge of the
petitioner
is not conclusive - the petition and annexures must be
approached as a whole…”
73.
In my view,
the point
in
limine
was a non-starter. In approaching the matter as a whole, there was
proper evidence before the court, in the form of an affidavit
deposed
to by the Legal Director of Virgin Active who disclosed the basis of
his knowledge of the facts of the matter, which appears
from his
position
[52]
and from the
papers as a whole. In my view, the confirmatory affidavits of various
persons, including the second to fifth respondents
[53]
effectively scuppered the appellant’s argument. The fact that
Klaaren AJ failed to mention it in his judgment is of no real
moment
in the circumstances.
Appeal
against court a quo’s Cost order
74.
The appeal
is directed against the court a quo’s finding that ‘as
for the potential applicability of the principles
of the Biowatch
case
[54]
the application
before me was both in form and in substance a common law application
rather than primarily a ventilation of constitutional
rights, despite
the jurisdictional origins of the matter dismissed on 20 October
2015. Thus I will apply the usual rule of costs
and award costs on a
party and party scale to the respondent.’
75.
The appellant contended that this was a case
involving constitutionally protected rights to information and as
such, the court a quo erred in not applying the principles set
out in
Biowatch.
76.
Biowatch
dealt with the
proper
approach to costs awards in constitutional litigation. The principle
which emerged from
Biowatch
is
the following:
If
there should be a genuine, non-frivolous challenge to the
constitutionality of a law or of state conduct, it is appropriate
that the state should bear the costs if the challenge is good, but if
it is not, then the losing non-state litigant should be shielded
from
the costs consequences of failure. In this way responsibility for
ensuring that the law and state conduct is constitutional
is placed
at the correct door.
77.
In
Biowatch
,
the Constitutional Court reaffirmed the basic principle that
a
court of first instance has a discretion to determine an award of
costs in the light of the particular circumstances of the case,
and
that a court of appeal will require good reason to interfere with the
exercise of this discretion.
[55]
78.
Albeit that
the appellant was asserting rights protected by the Constitution in
the underlying PAIA application, the rescission
application involved
the invocation of ordinary common law principles to the question of
whether or not the appellant had made
out a case for rescission for
the entitlement to assert her constitutionally protected rights to
information in the underlying
PAIA application.
79.
Much of the
debate centred around whether or not the appellant had provided an
adequate explanation for her default, and if not,
whether a failure
to meet this requirement ought to be overlooked, in the event that
the appellant enjoyed,
prima
facie
,
good prospects of success in regard to her request for access to
records in which the information sought by her in terms of PAIA
was
contained. A determination of the rescission application did not
therefore primarily involve issues of constitutional import
which
underpinned the relief sought in the main application. At the end of
the day, the rescission application had both its structure
and
meaningful content based on principles of common law.
80.
In
my view, it has not been shown that the court a quo did not act
judicially in exercising its discretion, whether in the sense
outlined in paragraph 6 above or in the sense described by Cloete J
in
Bookworks
(Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council
and Another
1999
(4) SA 799
(T),
[56]
namely, whether in exercising the discretion the court committed some
‘demonstrable blunder’ or reached an ‘unjustifiable
conclusion.’ It follows that on this ground too, the
appeal cannot succeed.
Costs
of appeal
81.
What
remains is the question of the costs of appeal.
The
basic rules were stated as follows by the Constitutional Court
in
Ferreira
v Levin NO and Others
:
[57]
“
The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first
being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and
the second that the
successful party should, as a general rule, have his or her costs.
Even this second principle is subject to
the first. The second
principle is subject to a large number of exceptions where the
successful party is deprived of his or her
costs. Without attempting
either comprehensiveness or complete analytical accuracy, depriving
successful parties of their costs
can depend on circumstances such
as, for example, the conduct of parties, the conduct of their legal
representatives, whether a
party achieves technical success only, the
nature of litigants and the nature of proceedings.”
82.
In my view, the circumstances of this
case do not warrant a departure from the general rule that costs
should follow the result.
83.
A few concluding remarks: A reading of the appeal record reveals that
the appellant’s affidavits contain a host of general
and
broad-sweeping statements and inflammatory comments, which, although
understood within the context of an impassioned stance,
were
predominantly lacking in factual foundation. The appellant’s
application for leave to appeal, notice of appeal and heads
of
argument also made reference to certain additional facts which were
not contained in the appellant’s affidavits to the
rescission
application, a point which was not lost to counsel who appeared for
the respondents, since he alluded thereto in the
respondents’
heads of argument. Suffice it to say, that such a practise is to be
deprecated, not at the very least because
it requires a judge to wade
through pages of passages in search of evidence that does not exist.
84.
For all the reasons given, the appeal falls to be dismissed with
costs.
ORDER:
1. The appeal is
dismissed with costs.
_________________
MAIER-FRAWLEY
AJ
I
agree:
________________
MAUMELA
J
I
agree:
_________________
FISHER
J
Date
of hearing: 8 October 2018
Judgment
delivered: 06 November 2018
APPEARANCES:
Counsel
for Appellant: Adv
.
TC Kwinda
Attorneys
for Appellant: Mokuena Attorneys
c/o
Maseti Attorneys
Ref:
Mr. S. Maninjwa
Counsel
for Respondent: Adv. L. Hollander
Attorneys
for Respondent: Dingley Marshall Attorneys
Ref:
Ms Rizzotto
[1]
See
for eg:
Benson
v SA Mutual Life Assurance Society
1986
(1) SA 776
(A)
at 781I-782B and the authorities therein cited;
Kruger
v Le Roux
1987
(1) SA 866
(A)
at 871F-G;
Cronje
v Pelser
1967
(2) SA 589
(A)
at 592H-593C.
[2]
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000
(2) SA 1
(CC)
para 11.
[3]
See
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000
(2) SA 1
(CC) at 14A-C.
[4]
It is apparent from the transcript of the proceedings on 27 July
2015 that the appellant’s counsel conveyed to the court
that
the appellant was ‘grievously at fault’ in failing to
file her heads of argument timeously on this occasion.
[5]
This was not in dispute on the papers.
[6]
See
para 15, founding affidavit, at p.225.
Why
the appellant’s erstwhile counsel suddenly became
‘unavailable’ during the week in which he was briefed
to
appear in the opposed motion court, was not explained at all.
[7]
See
p
ara
16, founding affidavit, at p.226.
[8]
Some
of the cases refer to this as not being in ‘
wilful’
(
deliberate)
default.
[9]
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A)
352G;
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A) 765A-D;
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA)
para [11], 9E-F.
[10]
Rossitter
v Nedbank Ltd
(96/2014)
[2015]
ZASCA 196
(1
December 2015) at para [16];
[11]
Rule 31(2) reads as follows:
“
(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 default of delivery of notice of intention to defend
or of a plea, the plaintiff may set the action down as provided 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.
(2)(b) A defendant
may within 20 days after he 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 terms as to it seems
meet.” (own emphasis)
[12]
The appellant’s further allegations in this regard are
somewhat astonishing. In the replying affidavit, she alleges that
“…
the
attorneys and counsel withdrew a day before the hearing. The
following morning my counsel went to court to stand the matter
down
until the new legal team was finalised and the Court refused. People
stand matters down all the time. My counsel is not
the first person
to ask the Court to stand the matter down. The Court is there to
assist the litigants, whether the litigant
is counsel or not.”
In
her written argument presented to court, the appellant persisted
with the contention, submitting that: “
Setloane J should
have asked the Applicant to depose to an affidavit explaining lack
of appearance of the attorneys of record
at the time, before
ordering default judgment against the Appellant…
The
reasons put forth by the Appellant’s counsel for her
non-appearance and consequent non-appearance of her attorney should
have been sufficient reasons, not only for the Courts to have at
least considered holding that the matter be heard a week later,
and
also in the rescission application proceedings
…Setloane
J was aware of the reasons [or] facts facing the Appellant and
decided to grant judgment in default in the Appellant’s
absence
.’’
(own emphasis) The submission is
particularly surprising in the light of the fact that no reasons
were in fact ever furnished
to the court, either on 20 October 2015
or in the rescission application, for the withdrawal of the
appellant’s attorneys.
[13]
See:
Take
and Save Trading CC v Standard Bank of SA
2004
(4) SA 1
(SCA) at 4H-5B
[14]
See:
Van
Wyk v Unitas Hospital (Open Democatic Advice Centre as Amicus
Curiae)
2008
(2) SA 472 (CC)
[15]
See:
Madnitsky
v Rosenberg
1949
(2) SA 392
(A) at 398-9..
[16]
Per
Harms JA in
Take
and Save Trading
supra,
para
[3].
See
too Van Loggerenberg’s’ Erasmus Superior Court Practise’
2
nd
ed, vol 2 at D1-555
(l)
and
the stern warning given by the constitutional court to practitioners
regarding compliance with the rules and directives of
court in
Van
Wyk supra
(at
78B-79C)
.
Having
regard to the appellant’s position as legal practitioner and
her experience in that capacity, she ought to have been
aware of the
principles governing a request for an indulgence when made to court.
[17]
Para 32 of the appellant’s heads of argument.
[18]
Referred to in para 21 above.
[19]
It is not clear what the appellant intended to convey by means of
this statement, i.e., whether she was given reasons which were
not valid, clear or convincing [‘cogent’], or whether
she was not given any reasons whatsoever. The appellant did
not
reveal the identity of the attorney who was representing her in the
matter, i.e., whether this was the senior partner or
the junior
associate mentioned in the affidavits or someone else employed at
Mohlala attorneys (appellant’s erstwhile attorneys).
[20]
Paras 62 & 63, founding affidavit, at p.252.
[21]
Para 47 at pp. 421-422, replying affidavit. The appellant also
alleged in the replying affidavit (para 43 at p.420) that there
was
no
wilful default
on her part. It was incumbent upon her to provide evidence to
support such averment, namely, of the steps taken by her to secure
representation in circumstances where she could not appear in
person, or, in the very least, to explain why she could not do
so.
This she failed to do.
[22]
During her career at the Johannesburg Bar, the appellant would
undoubtedly have formed collegial relationships with the attorneys
who briefed her from time to time, whom she would have had access to
via cell phone communication. She would not have had to
look far and
wide to enlist help. Even if such attorneys had declined to help
her, given the short notice, it remained incumbent
upon her to place
such facts before the court, considering that she was obliged to
demonstrate, in the rescission application,
that she had not
deliberately caused her default of appearance at the hearing of the
main application.
[23]
Para 37 at p. 419, replying affidavit. In para 241 at p.488,
replying affidavit, the appellant stated that her counsel asked
the
court to stand the matter down ‘
until
the new legal team was finalised.
’
[24]
Para 110 at p. 444, replying affidavit.
[25]
See fn 21 above.
[26]
1979
(2) SA 298
(E)
at 300
in
fine –
301
B, referred to with approval in
Colyn
v Tiger Food Industries Ltd
t/a
Meadow Feed Mills Cape
(
127/2002)
[2003] ZASCA 36
at para
[11]
.
[27]
In para 62 (at p. 252) of the founding affidavit the appellant
alleged that she did not default in any way in opposing the matter
and causing it to be prosecuted properly, but rather left the matter
in the hands of her erstwhile legal team until her erstwhile
attorneys of record ‘bailed out’ on her the afternoon
prior to the day of hearing. According to the appellant, it
was
their ‘default’ that caused her default of appearance.
[28]
See paras 62 at p.262; read with paras 64 at p.253;a 73 at p.259 and
245 at p.490.
[29]
At
paras
[11] & [12], cited in
fn
26 above.
[30]
In
Chetty,
the
following was said: “
It
may be that in certain circumstances, when the question of the
sufficiency or otherwise of a defendant's explanation for his
being
in default is finely balanced, the circumstance that his proposed
defence carries reasonable or good prospects of ‘
success
on the merits
might
tip the scale in his favour in the application for rescission.
(Cf Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A)
at 532.)
But
this is not to say that the stronger the prospects of success the
more indulgently will the Court regard the explanation of
the
default. An unsatisfactory and unacceptable explanation remains so,
whatever the prospects of success on the merits
.
”
(own emphasis).
In
Ascon Trading CC v Anix Trading
401 CC t/a She Sand And Others (
7309/2011)
[2012] ZAKZDHC 32 (8 June 2012) para [7],
Mnguni
J, in commenting on the aforesaid dicta in
Chetty
,
stated as follows: ‘
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. And ordered judicial process would be negated if, on
the other hand, a party who could offer
no explanation of his
default other than his disdain of the Rules was nevertheless
permitted to have judgment against him rescinded
on the ground that
he had reasonable prospects of success on the merits. (see Chetty
supra)”
[31]
Relevant
passages were quoted in full in the court a quo’s judgment and
will not be repeated herein.
[32]
Common
features relate
to the withdrawal of the attorney at the eleventh hour, thereby
letting the litigants down; the short period afforded to the
advised
litigant within which to arrange alternate legal representation; and
the litigants having left the conduct of the case
in the hands of
their attorney.
[33]
Referred to in para 48 of the judgment.
[34]
Referred
to in para 50 of the judgment, read with fn 30
supra
.
[35]
The
contents of the letter are quoted in full in the judgment of the
court a quo and will therefore not be repeated herein.
[36]
I
tems
1 & 2
on
the appellant’s list comprised written statements/affidavits
made by the other members involved in the alleged incident.
[37]
Section 1 defines a ‘record’ as follows:
“ ’
record’
of, or in relation to, a public or private body, means any
recorded
information
-
(a) regardless of form
or medium;
(b)
in the possession
or under the control to
that…private body…; and
(c) whether or not it
was created by that …private body…” (own
emphasis)
Section
50 reads, in relevant part, as follows:
“
(1) A requester
must be given access to any
record
of a private body if-
(a) that record is
required for the exercise or protection of any rights;
(b) that person complies
with the procedural requirements in this Act relating to a request
for access to that record; and
(c) access to that
record is not refused in terms of any ground for refusal
contemplated in Chapter 4 of this Part.
…
(3) A request
contemplated in subsection (1) includes a request for access to a
record
containing personal information about the requester or
the person on whose behalf the request is made. “
[38]
Virgin Active’s response to the appellant’s request for
information was contained in a letter 11 July 2014 in which
it set
out the reasons for denying the appellant’s request for access
to information. The letter was quoted verbatim in
the judgment of
the court a quo and need not be repeated herein.
[39]
Section 65 expressly prohibits any request from being granted should
the said disclosure constitute an action for breach of a
duty of
confidence owed to a third party.
[40]
Section 1 is quoted in fn 37 above.
[41]
Per
Sutherland J in the unreported judgment of
Afriforum
NPC v Deputy Information Officer of the Presidency
(7376/14)
[2015] ZAGPPHC 933 (30 October 2015) at para [7], and, albeit
that the case was decided within the context of
public organs, the
principle remains applicable within the context of private bodies.;
See too: Klaaren and Penfold,
Constitutional
Law of South Africa
,
Chapter 62, paras 62.3 and 62.4. As pointed out by Sutherland J, the
authors quip that the name of the statute might better
have been
'Access to Records' act. Information sought from a private body that
is not contained in a record (regardless of form
or medium) could be
obtained by means of other channels, such as
the
institution of litigation invoking, where appropriate, directly, the
provisions of the Bill of Rights
.
[42]
Albeit that
Afriforum
involved
a consideration of information that was sought from a public organ,
in my view, the remarks of the learned judge
would equally find
application in the sphere of requests for information directed to
private bodies.
[43]
In that letter, Virgin Active stated that ‘
all
parties involved in this unfortunate car park incident were guilty
of conduct that is unbecoming and unacceptable in terms
of the good
order and character of the Club, Virgin Active and its members.’
In the
answering affidavit, the rules of the club, particularly rule 30 and
32 were identified as the relevant rules that had
been contravened
by all the parties. In relation to the appellant, the finding was
made based on statements that were made by
the appellant vis-à-vis
her own conduct as mentioned by her in her written complaint (at pp.
333-346 of the papers), Incidentally,
the appellant’s written
complaint was introduced for the first time in the answering
affidavit. .
[44]
A violation of the provisions of The Promotion of Equality and
Prevention of Unfair Discrimination Act, 4 of 2000 (‘PEPUDA’).
[45]
As enshrined in the Bill of Rights.
[46]
Para 40.4 at p.236;
[47]
This information is set out in paragraph [G1] at p.263 of the
papers.
[48]
The appellant’s reasons in paragraph [G1] appear at p.264 of
the papers.
[49]
See paras 21 & 22 at p. 208.
[50]
See para 1.3 at p.290.
[51]
See para 50 at pp. 422-423.
[52]
In
which regard, see the comments made by Salduker JA in
Rees
and Another v Investec Bank Limited
2014
(4) SA 220
(SCA) at para 15.
[53]
Such confirmatory affidavits were provided in the answering
affidavit.
[54]
Biowatch
Trust v Registrar Genetic Resources and Others
2009
(6) SA 232 (CC) ;
[55]
Biowatch
supra,
at para 29.
[56]
Id
at
807G-J and 808A-B.
[57]
[1996] ZACC 27
;
1996
(2) SA 621
(CC)
at 624B—C (par [3]).