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[2017] ZALMPPHC 35
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Rainbow Farms (Pty) Ltd v Crockery Gladstone Farm (HCA15/2017) [2017] ZALMPPHC 35 (7 November 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCA 15/2017
Reportable
Of
interest to other judges
Revised.
3/11/2017
In
the matter between:
RAINBOW
FARMS (PTY)
LTD
APPELLANT
and
CROCKERY
GLADSTONE
FARM
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal from a decision of a single Judge (Muller J) in the
Limpopo Division, Polokwane refusing an application for
the
rescission of a judgment. The appeal is with leave of the Court
a
quo
.
[2]
The question to be decided is twofold, namely:
2.1. Whether the
Appellant was in default despite the attendance of its Counsel in
Court when judgment was granted; and
2.2.
Whether the Appellant whose application for rescission of judgment
was dismissed by single Judge of this Division had made
out a case
for the relief sought.
[3]
The judgment sought to be rescinded was granted on 2 August 2016 when
M G Phatudi J refused an adjournment sought by the Appellant’s
Counsel and granted judgment in the absence of any answering
affidavits by the Appellant and on the Respondent’s version
alone.
[4]
On or about June 2016 the Respondent served on the Appellant the main
application. That application sought to set aside and
have declared
void
ab initio
the Appellant’s termination of a written agreement between the
parties. On 15 June 2016 the Appellant’s attorneys emailed
a
letter to the Respondent’s attorneys and informed them that the
Appellant intended opposing the application. A Notice of
Opposition
was swerved and filed on 22 June 2016.
[5]
On 29 July 2016 the Appellant’s attorneys emailed a letter to
the Respondent’s attorneys proposing a method of settling
the
matter. Of importance in this matter the last paragraph of the said
letter reads as follows:
“
This offer
is open for consideration for a period of seven (7) days from date of
receipt hereof at which point the offer will lapse.
Having regard to
the fact that the application is set down for 2 August 2016, we
require your undertaking, in writing, by no later
than close of
business today, that the matter will be adjourned sine die,
alternatively adjourned to the opposed roll for argument
in the event
that your client is not accepting the offer, with costs reserved.”
On
the 1
st
of August 2016 the Respondent’s attorneys had not yet reverted
to the Appellant’s attorneys.
[6]
Later that afternoon and after the Appellant’s attorney, Mr
Avenant, had made a further enquiry about the settlement proposal,
one Mr Maketa, of the Respondent’s attorneys informed the
Appellant’s attorney that they were still attempting to contact
their client to take instructions on the settlement proposals. As
regards the appearance in Court the next day Mr Maketa said to
Mr
Avenant that the Appellant should not worry about it as it “would
be sorted out”. In those circumstances the Appellant’s
attorney believed that if the settlement proposals were not accepted
by 2 August 2016, the application would be adjourned by consent.
[7]
Early on the 2
nd
of August 2016 the Appellant’s
attorney called the Respondent’s attorneys’ office. He
was given Mr Maketa’s
cellphone number and called it three
times between the hours of 8 and 9 but it was not answered. The
Appellant’s attorney,
acting through his correspondent attorney
briefed Advocate Marc Schnehage to appear on behalf of the Appellant
in order to attend
to a postponement by agreement. At about 11h00
that morning the Appellant’s attorney was informed by his
correspondent that
at the hearing in Court the Respondent had sought
a judgment and had opposed an application for adjournment
notwithstanding the
history as set out above.
He
was informed that the Presiding Judge had granted the application
after refusing adjournment.
[8]
It is common cause that the legal representative of the Respondent at
the hearing on 2 August 2016 did not inform the Presiding
Judge of
all the relevant facts, in particular that settlement proposals were
still pending and the fact that Mr Maketa pronounced
the previous day
that the matter or issue “would be sorted out”. Advocate
Schnehage who appeared for the Appellant
on 2 August 2016 was briefed
for a postponement and was not aware that there were any settlement
proposals pending
[9]
As a basis for its application for rescission of judgment the
Appellant contends that had the Presiding Judge been properly
informed by
,
inter alia
the
Respondent (who was obliged to do so but did not) at the hearing on 2
August 2016 of the facts and circumstances leading up
to the
Appellant’s failure to have an answering affidavit and / or
formal postponement application ready at the time and
the agreement
to postpone if it was not settled, he would not have granted the
judgment. The Appellant furthermore contends that,
despite the
Appellant’s Counsel (Advocate Schnehage) being present at Court
on 2 August 2016 the judgment was by default
in the sense that it was
granted despite a notice of intention to oppose but in the absence of
any evidence by way of the Appellant’s
answering affidavit.
[10]
The Court
a
quo
decided
that the judgment was not a judgment taken on default of appearance
by the Appellant. It did so on the basis that the Appellant’s
Counsel was present in Court when the Order was made. The Court
a
quo
erred
in this regard. This matter was an application and the presence or
absence of a party can only be determined by whether that
party has
submitted affidavits or not. The presence of the actual party and /
or Counsel in Court is irrelevant to that issue.
In the absence of
any affidavits (bearing in mind that there is no option available for
the party to testify at such a hearing)
it is logical to conclude
that that party is in default of appearance when the Order was made
notwithstanding that Counsel may
have been in Court.
[11]
In my view where opposing papers have not been filed there is a
“default” even if the Respondent in the matter
or his
legal representative is present in Court. See:
Morris
v Autoquip (Pty) Ltd
1985 (4) SA 398
(WLD); First National Bank of SA
Ltd v Myburgh and Another
2002 (4) SA 176
(CPD)
.
[12]
The question of what is meant by “default” was considered
in
Katritsis v De Macedo
1966 (1) SA 613
(A)
. In this matter
the Appellate Division (as it then was) held that “default”
which then as is the case now is not defined
in the Rules or the Act,
meant a default in relation to filing the necessary documents
required by the Rules in opposition to the
claim.
In casu
the
judgment was granted in the absence of an opposing affidavit by the
Appellant and was therefore a “default judgment”
even if
it was not a default in the sense of the absence of the party.
[13]
Rule 31(2)(b) of the Uniform Rules of Court provides that a party
against whom default judgment has been granted may, within
20 days
after he or she has knowledge of the default judgment, apply to Court
to set it aside. The Court may, on good cause shown,
set that
judgment aside. It is established law that Courts generally require
an applicant for rescission of judgment to show good
cause by
(a) giving a reasonable
explanation for the default;
(b) showing that his /
her / its application for rescission is made
bona
fide
and
not made merely with the intention to delay the Plaintiff’s
claim; and
(c)
showing that he / she / it has a
bona
fide
defence
to the Plaintiff’s
claim
which
prima
facie
has
some prospect of success.
See:
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills
(Cape)
2003 (6) SA 1
(SCA) at 9E – F
.
Regarding
the last-mentioned requirement, it is trite law that an Applicant for
rescission of judgment is not required to illustrate
a probability of
success, but rather the existence of an issue fit for trial. See:
Sanderson
Technitool (Pty) Ltd v Intermenua (Pty) Ltd
1980
(4) SA 573
(W)
at 575H – 576A – D
.
[14]
The common law requires “sufficient cause” to be shown
before a default judgment may be set aside. Rule 31(2)(b)
of the
Uniform Rules of Court requires “good cause” to be
established before the rescission of a default judgment may
be
granted. The phrases “good cause” and “sufficient
cause” are synonymous and interchangeable. See:
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352H –
353A
.
[15]
A default judgment may also be set aside in terms of Rule 42(1) of
the Uniform Rules, the relevant part of which provides:
“
(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……. ”
[16]
In general terms a judgment is erroneously granted if there existed
at the time of its issue a fact of which the Judge was
unaware, which
would have precluded the granting of the judgment and which would
have induced the Judge, if aware of it, not to
grant the judgment.
See:
Nyingwa v Moolman NO
1993 (2) SA 508
(TK)
If
fraud is committed, that is if the facts are deliberately
misrepresented to the Court, the order will also be erroneously
granted.
[17]
In the present case the Appellant was in default in the sense that it
had not presented its opposing affidavit before M G Phatudi
J. Its
defence had also not been presented by way of affidavit or oral
evidence and the learned Judge therefore granted judgment
without
having had the opportunity of considering the merits of the case.
This Court must therefore in this appeal decide whether
there was an
error that induced the learned Judge to grant the default judgment on
2 August 2016.
[18]
As far as Rule 42 is concerned, all what the Court
a
quo
had to find was that the Order was erroneously sought and granted.
“Good cause” does not have to be shown. See:
Naidoo
v Somai
2011 (1) SA 219
(KZN) at 220F – G; Topol Group
Management Services (Pty) Ltd
1988 (1) SA 639
(W) at 650D – J
.
[19]
The initial judgment of 2 August 2016 was granted pursuant to the
refusal of the postponement which left only the Respondent’s
version before M G Phatudi J. The refusal of the postponement was
granted because of certain facts placed before MG Phatudi by
the
Respondent’s Counsel which were wrong and incomplete in that
what was discussed and agreed upon by the parties’
legal
representatives the precious day was not disclosed to the Court.
[20]
The real facts were that on 1 August 2016 the Respondent’s and
the Appellant’s attorneys talked and the Respondent’s
attorney told the Appellant’s attorney that they were still
attempting to contact their client to take instructions on the
settlement proposals. As regards the appearance the next day
Respondent’s attorney told Appellant’s attorney not to
worry as it would be sorted out. That however, was not conveyed to M
G Phatudi J at the time of the hearing.
[21]
I accordingly make a finding that had the real and true facts been
disclosed or given to M G Phatudi J, the learned Judge would
not have
granted default judgment in the circumstances. The Court
a
quo
should have found that the default judgment was granted erroneously
or by mistake common to the parties. The appeal should therefore
succeed.
[22]
I grant the following orders:
(a)
The appeal is upheld.
(b) The judgment granted
before this Court by MG Phatudi J in case number 1395/2016 on 2
August 2016 is hereby set aside.
(c) The Appellant
(Respondent in the main application) is directed to deliver its
answering affidavit to the main application within
10 (ten) days of
the Order set out above.
(d)
The Respondent herein pays the costs of the rescission application,
the application for leave to appeal and this appeal.
________________________
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree,
_________________________
M
F KGANYAGO
JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION, POLOKWANE
I
agree,
_________________________
M
S SIKHWARI
ACTING JUDGE OF THE
HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 27 October 2017
Judgment
Delivered :
07 November 2017
For
Appellant
: Adv. Pitman
Instructed
by
: Eversheds Sutherland Inc
c/o
Marnewick & Greyling Attorneys
Polokwane
For
Respondent
:
Adv. M E Manala
Instructed
by
: Mahowa Incorporated
Polokwane