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[2016] ZAFSHC 27
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Eskom Holdings Limited v Nigrini N.O. (4338/2015) [2016] ZAFSHC 27 (25 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 4338/2015
In
the matter between:-
ESKOM
HOLDINGS LIMITED
Applicant
CHRISTIAAN
FREDERICK MARTHINUS NIGRINI N.O.
Respondent
JUDGMENT
BY:
VAN
DER MERWE, J
HEARD
ON:
28
JANUARY 2016
DELIVERED
ON:
25
FEBRUARY 2016
[1]
This is an application for rescission of a default judgment and for
ancillary relief.
[2]
On 15 September 2012 a fire was caused by a fault on an electrical
power line under the control of the applicant, Eskom Holdings
Limited
(Eskom). The fire spread to properties owned by the Chrismar
Besigheids Trust (the trust), herein represented by
its only
trustee. In terms of a summons issued in this court on 10
September 2015, the trust alleged that the fire had been
caused by
the negligence of Eskom. The trust therefore claimed payment of
damages in the amount of R4 061 329,00.
[3]
Eskom failed to enter appearance to defend the action timeously and
on 22 October 2015 Daffue J granted default judgment against
Eskom in
the amount claimed. A writ of execution was issued on the same
date. In terms of the writ of execution the
sheriff attached
the amount R4 061 329,00 standing to Eskom’s credit
in the books of First National Bank.
The sheriff paid this
amount directly to the trust.
[4]
Eskom became aware of the default judgment on 23 October 2015 and
immediately gave instructions to its attorneys to attend to
the
matter. Eskom’s attorney personally informed the trust’s
attorney on 27 October 2015 that Eskom would proceed
with an
application for rescission of the default judgment. The trust
nevertheless spent part of these funds, but paid an
amount of R3,3
million into its attorney’s trust account. The attorney
undertook to repay this amount to Eskom in the
event of the
rescission of the default judgment. The present application was
launched within 20 days after 23 October 2015.
Apart from
rescission of the default judgment, Eskom prayed for orders setting
aside the writ of execution and notices of attachment
issued pursuant
to the default judgment, as well as for repayment of the aforesaid
amount by the trust.
[5]
In terms of rule 31(2)(b), Eskom must show good cause. Our
courts have consistently refrained from attempting to frame
an
exhaustive definition of what would constitute good or sufficient
cause, for such an attempt would hamper the exercise of the
wide
discretion of the courts. (See
Colyn
v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) para [11].) However, the general
requirements for good cause are set out as follows in
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 – 477:
“
(a)
He must give a reasonable explanation of his default. If it appears
that his default was wilful or that it was due to
gross negligence
the Court should not come to his assistance.
(b)
His application must be
bona
fide
and not made with the intention of merely delaying plaintiff's claim.
(c)
He must show that he has a
bona
fide
defence to plaintiff's claim. It is sufficient if he makes 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. He
need not
deal fully with the merits of the case and produce evidence that the
probabilities are actually in his favour.”
(See
also
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) at 765A – C.) The position in respect
of requirements (b) and (c) is analogous to what is required to
successfully
oppose summary judgment. The defendant must set
out averments which, if established at the trial, would constitute a
defence
and must set out the averments in a manner that satisfies the
court that the defendant
bona
fide
intends to rely on the averments. A lack of particularity in
respect of the averred defence may lead to the conclusion that
the
application for rescission is not
bona
fide
.
[6]
In the founding affidavit, deposed to by Eskom’s attorney, it
was pointed out that an insurance loss adjuster acting for
Eskom had
per letter dated 13 June 2003 informed the attorney of the trust that
the trust’s claim against Eskom “is
regrettably declined”
on the ground that Eskom had not been negligent. It was further
stated that the summons was received
by Ms Xolelwa Cynthia Thywabi, a
claims handler employed by Eskom in Johannesburg, on 11 September
2015. The attorney stated
that the untimely death of a senior
claims handler in the office placed additional responsibilities and
significant work pressure
on Ms Thywabi. At the time Ms Thywabi
also suffered from bad health, causing her absence from work on
numerous occasions.
The combined effect of these factors, so it
was averred, caused Ms Thywabi to overlook giving instructions to
defend the action
before 23 October 2015.
[7]
Both Ms Thywabi and a senior manager to whom she reported, Ms Pulane
Gloria Sikhudo, deposed to affidavits purporting to confirm
the
founding affidavit, in so far as it related to them. But both
affidavits were deposed to on 4 November 2015, whereas
the founding
affidavit was deposed to only on 10 November 2015. This was not
referred to or relied upon in the answering
affidavit on behalf of
the trust. In the replying affidavit the attorney nevertheless
explained that he had deposed to an
affidavit on 4 November 2015 and
that that affidavit had been read and confirmed by Ms Thywabi and Ms
Sikhudo. He said that
the founding affidavit herein was
subsequently drafted only to remove unnecessary matter from the
initial founding affidavit.
[8]
On 8 December 2015 Ms Thywabi and Ms Sikhudo deposed to affidavits
confirming both the founding and replying affidavits in so
far as
they related to them. If these confirmatory affidavits are
admissible, they would show a reasonable explanation for
Eskom’s
default. However, at the hearing counsel for the trust argued
that the latter confirmatory affidavits were
inadmissible on the
ground that
ex
facie
the affidavits they had been deposed to before a commissioner of
oaths employed by Eskom. In both affidavits the certificate
of
the commissioner of oath contained the following:
“
Commissioner
of Oaths Ex Officio
Eskom
Holdings Ltd
Loc
D3 Z42, Megawatt Park
Maxwell
Drive, Sunninghill”
The
argument was that because the commissioner of oaths had an interest
in the matter, she was prohibited from administering the
oath to Ms
Thywabi and Ms Sikhudo by the provisions of the Justices of the Peace
and Commissioners of Oaths Act 16 of 1963 (the
Act) and the
regulations promulgated in terms of the Act.
[9]
Section 5 of the Act provides for the appointment of a person as a
commissioner of oaths. Section 6 of the Act deals with
ex
officio
commissioners of oaths. It provides that the Minister of
Justice may, by notice in the
Gazette,
designate the holder of any office as a commissioner of oaths for an
area specified in the notice. In terms of Government
Notice
R903 published in
Government
Gazette
19033 of 10 July 1998, the holders of a variety of offices in the
public in private sectors were designated to be commissioners
of
oaths for the Republic of South Africa. These include the
holders of the following offices in Eskom:
“
(a)
Security Member with the rank of Senior Inspector or higher.
(b)
Legal Adviser (all ranks).
(c)
Internal Auditor (all ranks).
(d)
Official with the rank of Chief Officer or higher.
(e)
Head:
Public
Relations.
Health
Services.
Township,
other residential area or hostel.”
[10]
Section 7 of the Act provides:
“
Any
commissioner of oaths may, within the area for which he is a
commissioner of oaths, administer an oath or affirmation to or
take a
solemn or attested declaration from any person: Provided that he
shall not administer an oath or affirmation or take a solemn
or
attested declaration in respect of any matter in relation to which he
is in terms of any regulation made under section
ten
prohibited from administering an oath or affirmation or taking a
solemn or attested declaration, or if he has reason to believe
that
the person in question is unwilling to make an oath or affirmation or
such a declaration.”
The
relevant regulations were published in Government Notice R1258 of 21
July 1972, as amended. Regulation 7 provides:
“
(1)
A commissioner of oaths shall not administer an oath or affirmation
relating to a matter in which he has interest.
(2)
Subregulation (1) shall not apply to an affidavit or declaration
mentioned in the Schedule.”
Paragraph
2 of the Schedule provides:
“
A
declaration taken by a Commissioner of Oaths who is not an attorney
and whose only interest therein arises out of his employment
and in
the course of his duty.”
[11]
In the light of these provisions, I find that unless it appears
ex
facie
the certificate of the commissioner of oaths that the commissioner
was
prima
facie
prohibited from administering an oath or some evidentiary material to
that effect is placed before the court, the court may accept
that the
commissioner of oaths was not prohibited from administering the
oath. In this matter it does not appear
ex
facie
the certificate of the commissioner of oaths that she was prohibited
from administering the oath. No evidentiary material
to that
effect was placed before me. Thus there is no reason to believe
that the commissioner of oaths was prohibited from
administering the
oath to Ms Thywabi and Ms Sikhudo. In fact it appears probable
that the commissioner of oaths is not an
attorney and being the
holder of an office described above, has no interest in the present
matter other than that which arises
from her employment and in the
course of her duty. If follows that the confirmatory affidavits
of Ms Thywabi and Ms Sikhudo
dated the 8 December 2015 are admissible
and that Eskom has shown a reasonable explanation for the failure to
timeously enter appearance
to defend the action.
[12]
Regarding a
bona
fide
defence it was stated in the founding affidavit that a crow had built
a nest on the power line. It was said that
that
caused a short circuit and was the direct cause of the fire. It
was also stated that Eskom was required to inspect all
power lines
under its control on an annual basis. These averments were
expressly accepted in the answering affidavit.
The attorney
said that the power line in question had been inspected on 11 April
2011 and on 20 March 2012 and attached reports
of these inspections
to the founding affidavit. These inspections did not reveal the
crow’s nest, neither was Eskom
advised thereof before the fire
occurred on 15 September 2012. The attorney averred that in the
circumstances Eskom had exercised
reasonable care and had not been
negligent. In a supplementary founding affidavit, the attorney
inter
alia
pointed out that in terms of the report that had been used for
purposes of quantification of the trust’s damages, the trust
claimed both the lost grazing (R2 000 072,00) and the cost of
alternative grazing and related expenses, such as the cost of
transport
to the farm leased for alternative grazing (R886 295,05).
He submitted that that amounted to a duplication and
over-compensation.
[13]
The answer of the trust hereto was that as the attorney clearly had
no personal knowledge of these matters and no confirmatory
affidavits
in this regard had been filed, the evidence of the attorney was
hearsay. Thus it was argued that Eskom placed
no admissible
evidence before the court to demonstrate a defence to the trust’s
claim.
[14]
But the argument misconceived the nature of the present enquiry as
set out above. Eskom had to prove a reasonable explanation
for
its default, but it did not have to prove its defence to the trust’s
claim. Eskom did make averments which, if
established at the
trial, would substantiate a defence of absence of negligence.
Eskom was also entitled to raise the legal
argument in respect of the
quantum of damages, which argument appears to carry some prospect of
success, to say the least.
And I am satisfied that Eskom
bona
fide
intends to raise these defences at the trial.
[15]
It follows that the default judgment should be rescinded and the writ
of execution and notices of attachment be set aside.
The
question whether repayment of the amount paid to the trust should be
ordered, caused me some concern. It seems to me,
however, that
on application of the principles set out in
Jasmat
and Another v Bhana
1951 (2) SA 496
(T), an order of repayment should be made.
[16]
In
Jasmat
the respondent issued a summons in the magistrate’s court for
ejectment. He alleged that he was the holder of a lease
in
respect of the premises. Default judgment for ejectment of the
occupants of the premises was given in favour of the respondent.
As a result of the execution of the default judgment, the respondent
took occupation of the premises. The default judgment
was,
however, rescinded. Nevertheless the respondent remained in
occupation of the premises. On appeal the full court
considered
whether the respondent should be ejected from the premises.
Neser J said the following at 499F- H:
“
Respondent
is presently in occupation of the premises solely by reason of the
judgment which has been rescinded. That judgment is
a nullity and
respondent can clearly derive no advantage therefrom nor can
petitioners labour under any disadvantage as a result
of that
judgment. In my opinion petitioners are entitled to claim that any
benefit or advantage respondent has derived from the
judgment or any
disadvantage caused thereby to themselves should be set aside and
that the
status
quo
prior to the judgment be restored. … If a judgment by
default was given against a defendant for a sum of money on
which
execution was levied and the sum of money was after execution paid by
the messenger to the plaintiff and such judgment was
thereafter
rescinded,
Mr.
Eloff
conceded
that the plaintiff would have no defence whatever to a claim by the
defendant for repayment of such money.”
Lucas
J added at 500H – 501A:
“
Whichever
is the true position, applicants were by virtue of their lease in
possession when the messenger executed the judgment
of the
magistrate's court. As that judgment admittedly has been set aside
the respondent cannot now claim to have any greater rights
than he
had when he filed his summons in his action in that court. However
strong may be his rights in that action, he cannot enforce
them
except by getting a judgment in his favour on them. The judgment
which has been set aside is a nullity and anything obtained
by him
under it must be restored to the applicants.”
As
a result of the rescission of the default judgment, the trust still
has to prove that Eskom is liable to it. Until such
time the
trust has no right to payment of its claim against Eskom nor to
retain any portion of the payment made in terms of the
rescinded
default judgment.
[17]
Eskom asked for an indulgence to remedy the consequences of its
default. The opposition of the application was not
unreasonable.
In the circumstances I consider it a proper
exercise of my discretion in respect of costs to order Eskom to bear
the costs of the
application, including the costs of opposition
thereof and the costs of two counsel.
[18]
The following order is issued:
1.
The
default judgment granted by Daffue J in the favour of the respondent
on 22 October 2015 is rescinded.
2.
The
writ of execution issued in favour of the respondent on 22 October
2015 is set aside.
3.
The
notices of attachment dated 22 October 2015 prepared by the sheriff
of this court, are set aside.
4.
The
notices in terms of rule 45(12)(a) prepared by the sheriff on 23
October 2015 and 28 October 2015 respectively, are set aside.
5.
The
respondent is ordered to repay the amount of R4 061 329,00 to the
applicant.
6.
The
applicant is ordered to pay the costs of the application, including
the costs of opposition thereof and the costs of two counsel.
_________________________
C.
H. G. VAN DER MERWE, J
On
behalf of the applicant:
Adv. P. U. Fischer SC
Instructed
by:
Webbers
Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv. L. le R. Pohl SC
with
Adv. A. Williams
Instructed
by:
Martins
Attorneys
BLOEMFONTEIN
/eb