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[2017] ZAKZPHC 66
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Manline (Pty) Ltd v Mtshali (14742/2008) [2017] ZAKZPHC 66 (20 December 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 14742/2008
In
the matter between:
MANLINE
(PTY)
LTD
Plaintiff/Respondent
and
SIBUSISO
EMMANUEL NHLANHLA
MTSHALI
Defendant/Applicant
Coram: Koen J
Heard: 22 November 2017
Delivered: 20 December 2017
ORDER
(a)
The default judgments granted by this Honourable Court on 7 October
2014 and 14 April 2016 under case No.14742/08 are hereby
rescinded.
(b)
The Plaintiff’s costs of opposition to the Application for
rescission are to be paid by the Defendant.
(c)
No further orders as to costs are made.
JUDGMENT
KOEN
J
INTRODUCTION
AND BACKGROUND
[1]
Arising from a motor collision which occurred when the Plaintiff’s
[1]
vehicle collided with the rear of a stationary vehicle of the
Defendant, the Plaintiff instituted an action against the Defendant
for payment of the amount of R413 233.18, interest and costs.
When the trial in the action came before Ndlovu J, the
issue of
liability was separated for determination.
[2]
The collision occurred on 4 August 2008, the action was instituted on
6 November 2008 and the plea delivered on 12 December
2008. The
matter was first enrolled for 28, 29 & 30 October 2009. The
driver of the Plaintiff’s vehicle was
Mr Jabulani Joseph
Lukhele. The matter was subsequently adjourned to the 22 of
August 2011 when Mr Lukhele’s evidence
was completed and a
second witness Mr David Anthony Nigel Gibb, an accident
reconstruction expert, was called by the Plaintiff.
That concluded
the case for the Plaintiff. The Defendant himself testified,
the Defendant’s counsel having indicated
that the Defendant
would testify as a witness and that there would be a second witness,
namely the driver of the Defendant’s
vehicle, Mr Mthethwa.
The Defendant’s evidence was completed and Mr Mthethwa’s
evidence in chief was heard on
the 24 of August 2011. The trial
was then adjourned sine die to allow for the cross examination of Mr
Mthethwa.
[3]
The matter was subsequently again enrolled on 12 August 2013 for 17
to 19 March 2014 but was removed on the 8 October 2013 and
on 29 May
2014 re-enrolled for 6 and 7 October 2014. The notice of set
down enrolling the matter for the 17, 18 and 19 March
2014 was served
on the Defendant’s attorneys C Laurie Smith Incorporated
(‘Laurie Smith’) care of their local
correspondent E R
Brown Incorporated on 12 August 2013. The notice of set down
enrolling the matter for the 6 and 7 October
2014 was likewise set
down by way of a notice of set down served by the Plaintiff’s
attorneys on E R Brown incorporated on
the 29 May 2014.
[4]
When the matter came before Ndlovu J on 6 October 2014 neither the
Defendant nor his attorney, nor the witness Mr Mthethwa attended.
The
matter stood down and according to an internal memo sent by one A
Ganas, who attended the hearing, to one of the partners in
the
Plaintiff’s firm of attorneys, she telephoned the Defendant’s
attorneys and was advised that Mr Ngcobo who had
dealt with the
matter had left the firm. She then made contact with Mr Ngcobo who
stated that he had handed the file over to Mr
Horton of Laurie Smith.
Telephonic contact was then made with Mr Horton who stated that he
had no knowledge of the file and indicated
that their office could
not locate their file. An express invitation to brief counsel
to appear and apply for an adjournment
was refused by Mr Horton.
[5]
According to a transcript of the proceedings on that day Ndlovu J
granted an order, which he stated was ‘is deemed to
be on the
merits’. He inter alia recorded that:
‘
The
Plaintiff’s case is overwhelmingly strong. It is clear
that the Defendant’s vehicle which had broken down,
was indeed
at the relevant time and place, parked in the middle of the road,
which was at a bend and therefore not visible to oncoming
traffic.
It was during the night at about 23h00. The Defendant’s vehicle
was so parked under the following forbidden
circumstances. There was
no red triangle, traffic triangle placed some 45 metres behind the
vehicle. There were no hazard lights
flashing or hazard lights on,
neither were there park lights. Both the rear chevron signs and
rear reflectors were not exposed
as these were covered with a huge
tarpaulin sheet that was covering the entire truck, being loaded with
bags of mealie-meal. Nobody
was present at any spot behind the
Defendant’s vehicle to signal to the oncoming traffic that
there was a broken down vehicle
ahead …in those circumstances
it was not possible that the Plaintiff’s driver could have
avoided the collision.
On the other hand, the evidence of Mr
Mtshali was essentially of a formal nature, as he was not present at
the scene of the accident.
As stated earlier that the evidence
of Mr Mthethwa who was to have been cross-examined today, has decided
to stay away, therefore
he could not be cross-examined. For
that reason his evidence is incomplete and cannot be considered at
all.
I
may mention incidentally that on this date I was keenly awaiting to
hear during the cross-examination of Mr Mthethwa, how he would
seek
to explain what appeared to be material discrepancies in his
evidence, including introduction of new averments which had never
been put to the Plaintiff’s driver during dross-examination.
However, I do not propose any further, as I have said
that the
evidence of Mr Mthethwa is regarded as pro-non scripto.
I
proceeded with the matter on the basis that the Defendant is deemed
to have a ban in his defence.’
[6]
On 8 October 2014 Ndlovu J, with reliance on Rule 42 (1) (b), amended
the order to reflect it as a default judgment and not
a final
judgment, which, with respect, it more correctly was.
[7]
The order granted by Ndlovu J therefore came to be reflected as
follows:
‘
IT
IS ORDERED
: (by
default)
1.
Defendant is held liable towards Plaintiff for the damages suffered
by Plaintiff, in the amount to be determined, as a result
of the
collision referred to in the PARTICULARS OF CLAIM and is to pay for
such damages to Plaintiff upon it having been determined
by the
court.
2.
Defendant is to pay Plaintiff’s costs of the action, including
the costs of Plaintiff’s expert witness, Mr Gibbs,
which shall
include the qualifying fees of Mr Gibbs, the costs incurred by Mr
Gibbs and the preparation of his report, the costs
of consulting with
Plaintiff’s attorneys and counsel and the costs of appearing at
the trial.
3.
This matter, as far as the quantum of Plaintiff’s claim is
concerned be and is hereby adjourned sine die.’
[8]
On 11 March 2016 a notice of set down indicating that judgment would
be sought for payment of the sum of R413 233.18, interest
thereon at the rate of 9% per annum from 12 December 2008 to date of
payment, both dates inclusive and costs of suit, including
the costs
of Plaintiff’s expert witness on quantum, Mr Trevor Andrew
Rawlins, was served on the Defendant’s local correspondent
attorneys. On 14 April 2016, Mbatha J. granted default judgment
against the Defendant as prayed in that notice of set down.
[9]
On the 12 December 2016, the Defendant was phoned by the Sheriff who
said that he needed to make a list of the Defendant’s
assets.
[10]
On 18 December 2016 the Defendant attempted to see his previous
attorney. He again did so on the 9 January 2017 and was told
that his
file might be in storage. The Defendant sent his wife to see Laurie
Smith Inc on the 14 January 2017. She likewise
was at advised
‘that the file could not be located and that they (Laurie Smith
Inc) was still going to search for the file
from the Archives
somewhere in Durban.’
[11]
On 4 February 2017 the Defendant met with the Sheriff who repeated
what he (the sheriff) had told him previously. The Defendant
then
consulted his current attorneys of record on 6 February 2017, and was
advised that they needed to get copies of the file content
in order
to be in a position to properly advise him. On the 7 February
2017 the Stanger Sheriff came to the home of the Defendant
and
attached property. Despite some problems being experienced, copies of
the file were eventually obtained by the Defendant’s
attorneys
and a consultation arranged for the 1 March 2017. The Defendant
maintains that it was then that he was advised that default
judgment
had been entered against him on the 7 October 2014. He was also
told of the notices of set down served on E R Brown
Incorporated on
29 May 2014 setting the matter down for trial on the 6 & 7
October 2014. He however contends that he
was not made aware of
that notice of set down by Laurie Smith Incorporated and only became
aware thereof during the consultation
on 1 March 2017.
[12]
The Defendant now applies for an order:
1. That the default judgment granted
by the Honourable Court dated on the 7 October 2014, under
case No. (14742/08), be and
is hereby rescinded;
2. That the costs of this application
are to be paid by the Respondent only in the event that the
Respondent opposes the application;
3. Further and/or alternate relief.
[13]
The Defendant has not applied for a rescission of the order granted
by Mbatha J on 14 April 2016, presumably on the basis that
if the
order granted by Ndlovu J was rescinded, the premise upon which the
order of Mbatha J was granted would disappear and that
judgment would
fall away. The existence or validity of a judgment should not, in my
respectful view, be left to such vagaries and
speculation and in what
follows in this judgment I shall treat the application for
rescission, notwithstanding it being silent
on that issue, as also an
application to rescind the default judgment granted by Mbatha J on 14
April 2016.
REQUIREMENTS
FOR RESCISSION
[14]
Notwithstanding previous suggestions that the rescission was sought
pursuant to the provisions of Rule 31 (2) (b) or possibly
Rule 42 (1)
(b), in his heads of argument the Defendant has based his application
for rescission squarely on the common law with
reliance on
Tsatsi
v Virgin Active and Another
[2]
and
Colyn v Tigerfood
Industries t/a Meadow Feed Mills (Cape).
[3]
[15]
It is of course trite law that an Applicant for rescission must show
good cause by giving a reasonable explanation of his default,
by
showing that the application is
bona
fide,
and by showing that
he has a
bona fide
defence to the Plaintiff’s claim which
prima
facie
has some prospect of
success.
[4]
A
BONA FIDE DEFENCE
[16]
Generally a
bone fide
defence is demonstrated by
a litigant making out a
prima
facie
defence in the sense
of setting out averments, which if established at the trial, would
entitle him to the relief asked for. It
is not necessary that he deal
fully with the merits of the case and produce evidence that the
probabilities are actually in his
favour.
[5]
The present situation is however somewhat different to the normal
application for rescission following upon a default judgment.
[17]
In dealing with his defence, in the founding affidavit the Defendant
alleges that his ‘defence is clearly articulated
in the plea
which is filed on the 12 of December 2008’, a copy whereof is
attached.
[18]
Paragraph [5] of the Plaintiff’s particulars of claim had
alleged that the negligent driving of the Defendant’s
employee
was the sole cause of the collision, he having been negligent in one
or more or all of the following respects:
‘
5.1 He failed to avoid a
collision, which he could have done had he exercised reasonable care
and skill;
5.2 He failed to give reasonable
consideration to other road users;
5.3 He left the vehicle unlit on the
road;
5.4 He failed to take steps to alert
other drivers of his vehicles presence on the road, by the placing of
warning triangles behind
the truck;
5.5 He failed to activate the hazard
lights of his vehicle;
5.6 He parked his vehicle on the road
where it was unsafe and dangerous;
5.7 He drove a vehicle on a public
road which had not been fitted with reflective tape;
5.8 He failed to wave down, or take
other steps, to alert other road users of the presence of his vehicle
on the road.’
[19]
In response to those allegations the Defendant simply pleaded:
‘
The Defendant denies the
allegations made in this paragraph. In amplification of his denial
the Defendant avers the following:
6.1 On 4 August 2008 at Nongoma, a
driver employed by the Defendant was driving the Defendant’s
truck with registration letters
and numbers NT[…];
6.2 The Defendant’s truck had a
break down and the driver pulled to the side of the road and stopped;
6.3 The driver of the Defendant’s
truck activated the warning lights of the vehicle he was driving;
6.4 The driver of the Defendant’s
truck placed warning triangles behind the vehicle to alert other
drivers that his vehicle
had a break down;
6.5 The Defendant’s vehicle was
well fitted with reflective tape;
6.6 The driver of the vehicle with
registration letters and number NP[...] drove that vehicle at an
excessive speed and failed to
keep a proper look out;
6.7 The driver of the vehicle with
registration letters and number NP[...] caused that vehicle to
collide with the Defendant’s
truck despite the Defendant’s
truck having been fitted with reflective tapes and despite the driver
of the Defendant’s
truck having placed warning triangles behind
the truck;
6.8 The collision was therefore cause
by the negligence of the driver of the vehicle with registration
letters and numbers NP 56388;
6.9 Any remaining allegations
contained in this paragraph and which are inconsistent with the
aforegoing are denied.”
[20]
Further in his founding affidavit, the Defendant referred to the fact
that:
‘
the
transcript which is in the court file ends on the 23 August 2011.
I ask the Honourable Court to read the said transcript
as if there
are specifically incorporated in this affidavit.’
That
is of course a practice to be deprecated. If a litigant wishes to
rely on any particular provision then this should be identified
in
the affidavit. A litigant cannot expect a court to troll through
pages of an annexed, or if not annexed a record of proceedings,
without indicating on what parts thereof reliance will be placed.
[21]
I have nevertheless perused the transcript. Whether the sole
cause of the collision was due to the negligence of the
Plaintiff’s
driver (as the plea contends), or whether there might be some
apportionment of liability (which is not expressly
pleaded but which
Mr Mathonsi appearing for the Defendant argued would be competent on
the evidence that had been led
[6]
)
cannot and should not be determined on what is contained in the
incomplete record. It might be that the Plaintiff’s case
might
eventually turn out to be ‘overwhelmingly strong’ as
Ndlovu J commented, but his various ‘findings’
were, with
respect, premature. Mr Mthethwa’s evidence remained incomplete
and a defence of contributory negligence succeeding
depending on the
probative value to be attached to the evidence of Mr Mthethwa in its
totality after cross-examination and re-examination,
cannot be made
at this stage. Suffice it to say that contributory negligence might
very well constitute a defence, that a collision
with the rear of
another vehicle, albeit stationary would prima facie suggest
negligence or some measure of contributory negligence,
but most
importantly, that whatever one’s impressions might be of the
incomplete evidence to date, the possibility of that
defence
succeeding to a greater or lesser extent, cannot be discounted.
[22]
The only issue is really whether in the light of Mr Mthethwa’s
evidence in chief, it can be said that a defence of contributing
negligence although not specifically articulated in the plea, can be
said to be not
bona fide
. On what is before me, I cannot
discount the
bona fides
of a contributing negligent defence,
even if a very jaundiced view is taken of the evidence adduced on
behalf of the Defendant
to date.
REASONABLE
EXPLANATION FOR DEFAULT
[23]
A
bona fide
defence is however not the only requirement. An
Applicant for rescission must also give a reasonable explanation of
his default.
[24]
In
casu
the Defendant has maintained that he has been
bona
fide
throughout and that the reason for his non-attendance was
the lack of diligence on the part of his attorneys, Laurie Smith.
[25]
Whether an attorney’s lack of diligence avails an applicant for
rescission (or other relief involving an indulgence)
is often a vexed
issue. The relationship between a client and attorney is
governed by the contract of mandate. It is
a special
relationship where the attorney acts as the agent of the client and
it is a relationship protected also by attorney client
confidentiality. It is in the discretion of the client (not the
attorney) whether to waive, and to what extent to waive, any aspect
of such attorney-client confidentiality.
[26]
In
Saloojee and Another v
Minister of Community Development
[7]
Steyn CJ commented as
follows:
‘
In
Regal v African Super
Slate (Pty) Limited
1962
(3) SA 18
AD at p 23, also, this court came to the conclusion that
the delay was due entirely to the neglect of the Applicant’s
attorney,
and held that the Attorneys neglect should not, in the
circumstances of the case, debar the Applicant, who was himself in no
way
to blame, from relief. I should point out, however, that it
is not at any time been held that condonation will not in any
circumstances be withheld if the blame lies with the attorney.
There is a limit beyond which a litigant cannot escape the
results of
his attorneys’ lack of diligence or the insufficiency of the
explanation tendered. To order otherwise might
have a
disastrous effect upon the observance of the Rules of this Court.
Considerations
ad
misericordium
should
not be allowed to become an invitation to laxity. In fact this
court has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with
Rules of this Court was due to neglect on the part of
the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little
reason why, in regard to
condonation of a failure to comply with a Rule of
Court the
litigant should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the
failure are…
A litigant, moreover, who knows, as the Applicants did, that the
prescribed period has elapsed and that
an application for condonation
is necessary, is not entitled to hand over the matter to his attorney
and then wash his hands of
it. If, as here, the stage is
reached where it must become obvious also to a layman that there is a
protracted delay, he
cannot sit passively by, without so much as
directing any reminder or enquiry to his attorney… and expect
to be exonerated
of all blame; and if, as here, the explanation
offered to this Court is patently insufficient, he cannot be heard to
claim that
the insufficiency should be overlooked nearly because he
has left the matter entirely in the hands of his attorney. If
he
relies upon the ineptitude or remissness of his own attorney, he
should at least explain that none of it is to be imputed to himself.
That has not been done in this case. In these circumstances I
would find it difficult to justify condonation unless there
are
strong prospects of success…’
[27]
Mr Mathonsi however referred to the judgment in
HDS
Construction
[8]
where a rescission of a
default judgment was granted notwithstanding the attorney having
failed to file the summary judgment opposing
affidavit. Obviously
every case must depend on its own facts.
[28]
The Defendant states that after the matter was adjourned
sine die
on 24 August 2011 he ‘was not contacted by (his) attorney at
all’. He went to the offices of Laurie Smith on 18 December
2016 and then again on 9 January 2017, and his wife attended on 14
January 2017. They were advised that the file ‘could
not
be located’ and that they ‘were still going to search for
the file from their archives somewhere in Durban.’
It was not
said that they had given up hope of ever finding the file.
[29]
The statements that the Defendant was not advised by his attorney of
the set down dates are made under oath and are not to
be lightly
discounted. In argument before me the date on which the file could no
longer be located was, with reliance on the memo
of A Ganath, said to
be at a point earlier than 6 October 2014. The notice of set
down enrolling the matter for the 6 and
7 October 2014, being annexed
to the Defendant’s founding affidavit in the rescission
application, reveals that it was served
on the Defendant’s
local correspondent attorneys on 29 May 2014.
[30]
The Defendant, who bears the
onus
throughout to show good
cause including a reasonable explanation for his default, does not
deal with this notice of set down. In
argument, Mr Mathonsi indicated
that he did not contend that the notices of set down served on E R
Brown Incorporated, the local
correspondent attorneys, had not been
served as reflected thereon. At best for the Defendant, E R
Brown might have failed
to transmit the notice of set down, or
communicating its import, to Laurie Smith Incorporated, or that
Laurie Smith Inc having
received such notification, failed to bring
it to the attention of the Defendant in the ordinary course.
[31]
A further notice of set down of the application for default judgment
which came before Mbatha J was served on E R Brown Incorporated
on
the 11 of March 2016. It would seem improbable that this notice
too would either not been sent by E R Browne Incorporated,
or its
contents communicated by E R Browne Incorporated to Laurie Smith
Incorporated, and/or that the notice upon receipt in the
offices of
Laurie Smith Incorporated would simply be ignored if the file to
which it relates could not be located. But it is not
necessarily
impossible.
[32]
Motion proceedings are however not suited to testing probabilities.
If the notices of set down or either of them were not received,
then
a representative of Laurie Smith as the Defendant’s agent and
attorney could have submitted a verifying affidavit to
that effect in
support of the application. To the extent that it might infringe upon
any attorney client confidentiality the Defendant
would be at liberty
to waive such privilege (an obstacle the Plaintiff would face if it
requested a confirmatory affidavit from
the said attorneys as to what
it had advised its client). However, if indeed the notices had been
received and had been ignored,
which might potentially expose Laurie
Smith to censure and expose it to a possible damages claims, then it
would have been reluctant
to commit itself to any particular version.
[33]
In the absence of such confirmation, the inevitable question is
whether the application is
bona fide
and/or whether the
Defendant has discharged the
onus
in regard to the
rescission.
[34]
I am alive to the prejudice the Plaintiff stands to suffer if the
rescission is granted, as the matter cannot simply continue
before
Ndlovu J, as he has sadly passed away. That is however not a decisive
consideration in the circumstances, even although
it will entail that
the matter would have to commence
de novo
before another
court.
[35]
Although there are unsatisfactory aspects in the Defendant’s
application I am not disposed in the exercise of my discretion
to
close the doors of the court to the Defendant by refusing the
rescission. I am however not prepared to grant any costs order
in
favour of the Defendant even although the application succeeds.
Indeed I consider it reasonable for the Plaintiff to have opposed
the
application and am of the view that the costs of opposition to the
application have been incurred reasonably by the Plaintiff.
[36]
The order I grant is therefore as follows:
(a) The default judgments granted by
this Honourable Court on 7 October 2014 and 14 April 2016 under case
No.14742/08 are hereby
rescinded.
(b) The Plaintiff’s costs of
opposition to the Application for rescission are to be paid by the
Defendant.
(c) No further orders as to costs are
made.
Appearances
For
the Plaintiff/Respondent
C PRETORIUS
Instructed
by:
TATHAM WILKES INC.
TEL:
033 345-3501
REF:
MH BREMNER/Gisela/02L0347/16
For
the Defendant/Applicant:
M H MATHONSI
Instructed
by:
M H MATHONSI & ASSOCIATES
TEL
NO: 033 342 0000
[1]
The parties shall be referred to as in the action.
[2]
2014/37055) [2017] ZA GPJHC 25 (1 February 2017.
[3]
2003 (6) SA1 at 8 and 1031 (A) at 1038 B – G.
[4]
Grant
v Plumbers (Pty) Limited
1949 (2) SA 470
(O) at 476 and
Chetty
v Law Society, Transvaal
1985
(2) SA 756
A at 764 I – 765.
[5]
Grant
v Plumbers (Pty) Limited (supra)
and
Coetzee
v Nedbank
2011(2)
SA 372 (KZD) at 373.
[6]
AA
Mutual Insurance Association Ltd v Nomeka [1976] 3 All SA 310 (A).
[7]
1965 (2) SA 135
AD at 141 B - H.
[8]
1979 (2) SA 298
E at pg. 301.