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[2016] ZAGPPHC 542
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Mashishi v Moraba (58143/2015) [2016] ZAGPPHC 542 (24 June 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 58143/2015
DATE:
24 JUNE 2016
In
the matter between
JULIA
MASHISHI
.............................................................................................................
APPLICANT
And
KORI
MORABA
............................................................................................................
RESPONDENT
JUDGMENT
MOSEAMO
AJ INTRODUCTION
[1]
This is an application for rescission of judgment obtained by the
respondent against the applicant on the 3
rd
April 2012
under case number 56709/09. The applicant also seeks an order setting
aside the writ of execution.
BACKGROUND
[2]
During 2006 the respondent was charged with the rape of the
applicant’s niece (the minor child) who was 9 years old at
the
time. The minor child was under the guardianship of the applicant as
her mother had died in 1997. The respondent was acquitted
of the
charge during 2009.
[3]
The respondent instituted a claim for damages against the applicant
in 2009 for laying a false charge of rape against him. The
applicant
failed to enter appearance to defend and the respondent obtained
default judgment in the sum of R461 950.
ISSUE
[4]
The basis of the applicant’s application is that judgment was
erroneously sought and erroneously granted. The applicant
denies that
summons was served on her personally as she had relocated after her
divorce, prior to the service of the summons. It
is also submitted
that the respondent mislead the court in his application for default
judgment in that he stated in his affidavit
in support of the
application for default judgment that his claim was for institution
of malicious prosecution in that the applicant
falsely alleged that
respondent had raped her.
DISCUSSION
[5]
Rule 42(1) (a) provides as follows:
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;’
[6]
Rule 42 caters for a mistake, however rescission or variation does
not follow automatically upon proof of a mistake. The court
has a
discretion, which must be exercised judicially, whether to order it
or not. See Theron NO v United Democratic Front (Western
Cape Region)
and others
1984 (2) SA 532(C)
at 536 G
[7]
Generally 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 induced the judge if aware of it, not to grant the judgment.
[8]
In Colyn v Tiger Food Industries Limited case number 127/2002 (SCA)
(31 March 2003) in para 6 it was stated ‘Not every
mistake or
irregularity may be corrected in terms of the rule. It is for the
most part at any rate a restatement of the common
law. It does not
purport to amend or extend common law. That is why the common law is
the proper context for its interpretation.
Because it is a rule of
court its ambit is entirely procedural.’
Sheriffs
return of service
[9]
According to the sheriffs return of service summons was served on the
applicant personally at 3….. H, Pretoria on the
17
th
September 2009. The applicant contends that she never received the
summons as she had moved to house number 1…. B…..
Street, B….., Pretoria after her divorce in February 2009. The
applicant alleges that sheriffs office failed to provide
her with
proof that she had signed receipt of service.
[10]
It is the cornerstone of our legal system that a person is entitled
to notice of legal proceedings against him or her. Where
summons had
not been served on the defendant, a subsequent judgment may be set
aside in terms of Rule 42(1 )(a). Therefore should
the applicant
succeed in challenging the sheriffs return of service, she will be
entitled to have the judgment rescinded. See Steinberg
v Cosmopolitan
National Bank of Chicago
1973 (3) SA 885
AD at 892 D; Fraind v
Nothmann
1991 (3) SA 837
WLD at 839 H
[11]
In terms of s 36 (2) of the Supreme Court Act 59 of 1959 a return of
service constitutes prima facie proof of its contents.
An impeachment
of the return of service will not be lightly upheld in the absence of
clear convincing evidence. See Molaudzi v
S (72853/12) [2014] ZAGPPHC
582 (31 July 2014)
[12]
The return of service that is being challenged by the applicant
appears to be regular on the face of it and thus constitutes
prima
facie evidence of the statement made therein that summons was served
on the applicant personally. To successfully challenge
a valid return
of service, the applicant must provide clear convincing evidence to
the contrary.
[13]
The applicant is alleging that the sheriff fraudulently stated that
the summons was served on her personally. She states in
her founding
affidavit that she was no longer staying at 3…. H…. as
she was in the process of a divorce. She attached
a decree of divorce
as proof. The decree of divorce does not constitute proof that she
was not staying at the address of service.
[14]
In my view the applicant should have involved the sheriff to ensure
that he is given an opportunity to answer allegations of
impropriety
on his or her part. Alternatively she should have provided evidence
that proved that she was no longer staying at that
address. I
therefore find that the challenge that summons was not served on her
is without merit.
Error
in the application for default judgment
[15]
It is submitted on behalf of the applicant that the respondent misled
the court to grant the default judgment by alleging that
the
applicant falsely accused the respondent of raping her. It is further
submitted on behalf of the applicant that the respondent
was at all
material times aware that charge of rape was for an alleged rape of
the minor child and not of the applicant. It is
contended that had
the court been aware of these facts it would not have granted the
order for default judgment.
[16]
Both in the summons and in the default judgment application it is
stated that the respondent’s claim is based on the
‘false
charge of rape’ laid by the applicant against the respondent,
it is not in dispute that the applicant is the
one who laid a charge
of rape against the respondent on behalf of the minor child. The
question is whether this kind of mistake
is the one referred to in
rule 42(1)(a).
[17]
In Lodhi Properties Investment Properties Investment CC v Bondev
Developments (Pty) Ltd
2007 (6) SA 87
(SCA) it was stated that where
the plaintiff was procedurally entitled to the order when it was
granted, subsequent facts and the
subsequently disclosed defence
cannot transform a validly obtained judgment into an erroneous
judgment.
[18]
The respondent in this matter was entitled to obtain judgment after
the applicant failed to enter appearance to defend. In
my view the
respondent was procedurally entitled to the order when it was granted
and the mistake referred to does not make rule
42(1 )(a) applicable.
I therefore find that the applicant has failed to prove that the
judgment was erroneously sought or erroneously
granted and therefore
the application in terms of rule 42(1 )(a) should be dismissed.
CONDONATION
[19]
The test applicable in deciding whether or not condonation ought to
be granted is well settled. The court has a discretion
whether or not
to grant the application for condonation. The court will among others
consider (a) the degree of non-compliance
with the rules; (b) the
explanation thereof; (c) the prospects of success; (d) the importance
of the case; (e) the respondent’s
interest in the finality of
the case; (f) the convenience of the court; (g) the avoidance of
unnecessary delay in the administration
of justice. The list is not
exhaustive and the factors are not individually decisive. They must
be weighed one against the other
and therefore a slight delay and a
good explanation may help to compensate for prospects of success. See
Melane v Santam Insurance
1962 (4) SA 531
(A) at 532 C-F; United
Plant Hire (Pty) Ltd v Hills
1976 (1) SA 717
(A) at 720E-G
[20]
Summons in this case was issued during 2009 and served on the
applicant personally on the 17
th
September 2009. The
respondent obtained default judgment on the 3
rd
April 2012
after the applicant failed to enter appearance to defend. On the 13
th
September 2012 a warrant of execution was served on the applicant.
[21]
The applicant denies that summons was served on her personally as she
had moved from that address after her divorce. There
is no
confirmation of this fact from any person. It is submitted on behalf
of the applicant that she first became aware of the
default judgment
when the warrant of execution was served upon her.
Delay
[22]
The applicant brought an application for rescission of judgment three
years after becoming aware of the judgment against her.
In an attempt
to explain her default the applicant blames the negligence of her
erstwhile attorneys. Our courts have often said
that an attorney’s
negligence does not always constitute a reasonable explanation. See
Salojee and Another v Minister of
Community Development
1965 (2) SA
135
(A) 141 B-E; Colyn v Tiger Food Industries Ltd t/a Meadow Feed
Mills (Cape)
2003 (6) SA 1
(SCA) at 9H.
[23]
In Uitenhage Transitional Local Council v South African Revenue
Service
2004 (1) SA 292
(SCA) para 6 it was stated: 'One would have
hoped that the many admonitions concerning what is required of an
applicant in a condonation
application would be trite knowledge among
practitioners who are entrusted with the preparation of appeals to
this Court: condonation
is not to be had merely for the asking; a
full, detailed and accurate account of the causes of the delay and
their effects must
be furnished so as to enable the Court to
understand clearly the reasons and to assess the responsibility. It
must be obvious that,
if the non-compliance is time-related then the
date, duration and extent of any obstacle on which reliance is placed
must be spelled
out.
1
[24]
The applicant’s explanation for the delay is that she
approached legal aid offices for assistance during October 2012
after
she was served with a writ of execution. She instructed them to bring
an application for rescission of judgment. She later
enquired about
progress and was informed about correspondence that was send to the
respondent’s attorneys.
[25]
On the 5
th
February 2015 she received a notice to appear
in court in order for the magistrates court to conduct an enquiry
into her financial
position in terms of section 65A of the
Magistrates Court Act. When she went to her erstwhile attorneys to
enquire, she was informed
that the attorney who was handling the
matter had resigned without preparing the application for rescission
of judgment.
[26]
The applicant’s reasons for the default are not set out fully
and sufficiently to enable me to assess her motives. There
is no
sufficient explanation for the period November 2012, when she
appointed attorneys until August 2015 when she finally brought
an
application for rescission of judgment. There are many gaps in the
chronological explanation by the applicant.
[27]
Even if it were to be accepted that the applicant only became aware
of the judgment during September 2012 when she received
the writ of
execution, the explanation provided by the applicant as to why the
application for rescission of judgment was brought
more than three
years later is terribly inadequate. The applicant in this case cannot
rely on the attorneys’ negligence while
she does not seem to
have done anything reasonably possible to ensure that the application
for rescission is brought within a reasonable
time.
Prospects
of success
[28]
It is submitted that the applicant has prospects of success in the
main case as she did not falsely accuse the respondent of
rape.
According to the applicant the rape charge against the respondent,
was based on the complaint by the minor child who was
under her
guardianship. The minor child had told the applicant that the
respondent had raped her and the applicant reported the
matter to the
police as a result. It is further submitted that the doctor who
examined the minor child confirmed that the minor
child had been
sexually penetrated.
[29]
The respondent denies that the applicant has prospects of success in
the main case as the J88 states that the child did not
sustain any
injuries around genital area. Upon inspection of the J88 under the
heading ‘clinical findings’ the doctor
is supposed to
record the nature, position and extent of the injury together with
the probable date and the manner of causation.
The doctor, in this
case, only recorded the allegations reported to him or her and does
not record any injuries as required. His
or her observations as
recorded on the J88 are that there was no swelling, no fresh tears
and no clefts. The form does not seem
to support the allegation by
the applicant that the doctor supported the child’s complaint.
CONCLUSION
[30]
The court has a wide discretion in evaluating good cause in order to
ensure that justice is done. Therefore where the applicant
has
provided a poor explanation for default, a good defence may
compensate. See Carolus v Saambou Bank Ltd, Smith v Saambou Bank
Ltd
2002 (6) SA 346
(SE) at 349 B-C
[31]
The applicant’s explanation for the lengthy delay is inadequate
she does not have prospects of success on the merits.
I have also
considered the respondent’s entitlement to finality of judgment
and the avoidance of unnecessary delays in the
administration of
justice.
[32]
I find that the applicant has failed to make out a case for the
indulgence she seeks and therefore the application for condonation
should fail.
In
the result! make the following order:
1.Application
for rescission of judgment is dismissed with costs.
2.Application
for condonation is dismissed with costs.
P
D MOSEAMO
ACTING
JUDGE OF THE HIGH COURT