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[2018] ZALMPPHC 49
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Mamabolo and Another v Morema (2354/2016) [2018] ZALMPPHC 49 (23 August 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 2354/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
LAZI
MAMABOLO
FIRST
APPLICANT
MINISTER
OF SAFETY AND SECURITY
SECOND
APPLICANT
And
MPHO
MOREMA
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The Respondent who is the Plaintiff in the main action has issued
summons against Applicants who are Defendants in the main
action
claiming R2 500 000-00 for alleged emotional shock and loss of
income. The combined summons was duly served on the
Applicants. The Applicants served and filed their notice of
intention to defend the respondent’s action. However,
the
applicants’ failed to file their plea to the respondent’s
particulars of claim. Thereafter the respondent’s
served
the applicants with a notice of bar, and still the applicants failed
to file their plea. The respondent proceeded
to obtain a
default judgment against the applicants for R2 500 000-00.
After that the respondent issued a warrant of
execution against the
applicants.
[2]
On receipt of the warrant of execution, the applicants launched an
application seeking an order condoning the applicants’
failure
to file their plea and removing and/or uplifting the notice of bar.
They are also seeking an order rescinding the
default judgment that
was granted on the 14 February 2017 in their absentia.
[3]
The grounds of their application are that after the combined summons
were served on the applicants, the file was allocated to
Mr Ntuli who
is the Assistant State Attorney. He entered notice of intention
to defend, however, due to work pressure he
forgot to brief counsel
to draft a plea and he also failed to draft and file a plea on his
own.
[4]
According to the applicants, Mr Ntuli remembers seeing the notice of
bar but misfiled it in his office and also forgot about
the file.
They only became aware of the default order when it was served on
them together with the warrant of execution.
[5]
The applicants contends that the respondent’s default order is
void as the respondent has failed to prove its damages
as required by
the rules. They concedes that Mr Ntuli was negligent in
handling the applicants matter. They submits
that the
applicants have a strong bona fide defence to the respondent’s
claim. According to the applicants the respondent
has failed to lead
evidence in relation to his income when obtaining a default order,
and that the respondent’s notice in
terms of section 3 of the
Institution of Legal Proceedings Against Certain Organs of the State
Act 40 of 2002 is defective. The
applicants submits further that the
respondent’s particulars of claim are expiable as no fault is
alleged against any of
the department’s employees to establish
delictual culpability.
[6]
The respondent is opposing the applicants’ application.
The respondent submits that Mr Ntuli was negligent in handling
the
applicants matter. The applicants were served with a notice of
bar but failed to respond. An email was also sent to the
applicants’
attorneys informing them of the date on which the default judgment
was set down and requesting them to file their
plea, but hey failed
to do so. According to the respondent, he had served a proper
notice in terms of
section 3
and
4
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
. The
respondent contends that the default judgment of the 14
th
February 2017 was properly granted after the court was satisfied that
he had made up a case for a default order on the papers filed.
[7]
The applicants’ application has been brought in terms of rule
42 (1) of the Uniform Rules of Courts (“the Rules”).
Rule
42 (1) provides that the High Court may, in addition to any other
powers it may have,
mero mutu
or upon application of any party
affected, rescind or vary an order or judgment erroneously sought or
erroneously granted in the
absence of any party affected thereby.
(See also 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 principles and in the 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 must present a reasonable and acceptable
explanation for his default; and
(ii)
that
on the merits such party has a bona fide defence which, prima facia
carries some prospects of success. (
De Wet’s
case supra at 1042, PE Bosman Transport works Committee and
Others v Piet Bosman Transport (Pty) Ltd 1980 (4)
SA 794 (A),
Smith NO V Brummer No and Another, Smith No Brummer
1954 (3) SA 352
(O) at 357 -8)
It is not sufficient
if only one of the 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 were duly served with the combined summons. The
combined summons was duly handed over to the office of
the State
Attorney for them to attend to the matter on behalf of the
applicants. Mr Ntuli from the office of the State
Attorney failed to give the matter a proper attention and that led to
a judgment by default been granted against the applicants.
The
applicants concedes that Mr Ntuli was negligent in the manner in
which he handled the applicants’ matter. The question
to be
determined is whether negligence by a legal representative is a
ground to grant a rescission of a judgment obtained by default.
[10]
Mr Ntuli had a legal duty to execute the applicants mandate with the
necessary diligence, skill and care required of a reasonable
attorney
under the circumstances. In
Webster and Another v Santam
Insurance
1977 (2) SA 874
(A) at 883g-884 A Kotze JA said:
“
A lay client,
like each of the appellants, is ordinarily entitled to regard an
attorney duly admitted to the practice of the law
as a skilled
professional practitioner. Ordinarily he places considerable reliance
upon the competence, skill and knowledge of
an attorney and he trust
that he will fulfil professional responsibility. It is of course not
unknown for an attorney or his firm
to be negligent in carrying out
professional duties, but that is not usual, and a fortiori to the lay
client it would be a most
unusual and expected occurrence.
Consequently, in considering whether the neglect of an attorney
constitute a special circumstance
within the meaning of that phrase
in sec.24 (2) (a) of the Act, the correct approach should
always be to regard it as a relevant
factor and to recognize
that such neglect by an attorney may frequently be a special
circumstance on its own vis-à-vis
his client. To hold,
without qualification as was done in Snyman’s case, supra at
p.194 A-B, that a client is bound
by the negligence of his legal
adviser is, in my view wrong”
[11]
While 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.
(See Salojee & Another v Minister
of Community Development
1965 (2) SA 135
(A))
[12]
The applicants’ intention from the beginning was to defend the
respondent’s action, hence they gave the State Attorney
instructions to enter an appearance to defend. In their view
they were relying upon the competence, skill and knowledge of
their
attorney. They have trusted that their attorney will fulfil his
professional responsibility. In my view, the
negligence of
their attorney cannot be imposed on them. The applicants could
not have foreseen that their attorney would
act negligently in
attending to their matter. The applicants have given a reasonable
explanation for their failure to file their
plea despite a notice of
bar and an email informing them of the date of the judgment by
default.
[13]
The respondents claim against the applicants includes a claim for
loss of income. The respondent’s counsel has
conceded
that when they apply for a default order, they have failed to present
the court with the respondent’s proof of income.
In my
view, without proof of income, the respondent will not be able to
sustain his claim for loss of earnings. If the respondent
is
unable to proof his claim for loss of earnings, the applicants will
therefore have good prospects of success on that part of
respondents
claim. Therefore, in my view judgment by default was
erroneously granted without the respondent substantiating
his claim
for loss of earnings. Here we are dealing with public funds and
a claim of this nature should not be easily granted
without the court
having verified whether indeed a party seeking a default order has
substantiated his/her claim. In my view,
the applicants have
therefore shown good cause for the relief they are seeking.
[14]
In the result I make the following order:
14.1
Judgment by default granted on the 14
th
February 2017 is
hereby rescinded.
14.2
Applicants failure to uplift the bar and file their answering
affidavit is condoned.
14.3
The applicants to file their plea with five days of this order.
14.4
The respondent’s to pay the applicants’ costs.
MF.
KGANYAGO J
JUDGE OF THE HIGH
COURT POLOKWANE, LIMPOPO DIVISION
APPEARANCE:
COUNSEL
FOR THE APPLICANT: ADV: M
NGOETJANA
INSTRUCTED
BY
: STATE
ATTORNEY POLOKWANE
COUNSEL
FOR RESPONDENT :
MR MOHOTO
INSTRUCTED
BY
:
PMK TLADI & ASSOCIATES
DATE
OF HEARING
: 06 AUGUST 2018
DATE
OF JUDGEMENT :
23
rd
AUGUST 2018