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[2015] ZAGPPHC 141
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Minister of Defence and Military Veterans v LB Hunting Safari CC (59805/2012) [2015] ZAGPPHC 141 (27 February 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER: 59805 /
2012
DATE: 27 FEBRUARY
2015
NO REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
MINISTER OF
DEFENCE AND MILITARY
VETERANS
.................................................
APPLICANT
And
LB HUNTING SAFARI
CC
..................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA J;
[1] The applicant
seeks an order in the following terms:
1.1 that the default
judgment granted against the applicant on the 31 January 2013 under
case number 59805 / 12 be set aside;
1.2 that the
respondent under case number 59805/12 be ordered to file an answering
affidavit within 15 days of the grant of this
order in 1.1 above;
1.3 That the costs
of this application be paid by the applicant, save in the event that
the application is opposed, in which event
the respondent be ordered
to pay the costs;
1.4 Further and or
alternative relief. (For purposes of clarity, I shall refer to the
parties as follows; the applicant as "MD&MV"
and the
respondent as the "CC").
[2] The application
is founded on the affidavit deposed to by Brigadier General T.E
Mulaudzi. According to the General, MD&MV
became aware of the
existence of the order on 15 February 2013, the prescribed period
within which the application ought to have
been brought expired on 15
March 2013. The application is therefore brought six days late. Upon
receipt of the letter informing
the MD&MV of the existence of the
Court order, the Brigadier General immediately instructed his
subordinates to bring the matter
to the attention of the MD&MV's
legal department. Counsel was briefed on the 8 March 2013 to draft
necessary papers for the
application. Consultation with counsel took
place on 10 March 2013. The Brigadier General further avers that
reasonable steps were
taken to bring the application as soon as it
was possible, although there was a delay of 6 days but the Court
should condone this
delay.
[3]
The genesis of this matter is that on the 23 October 2012, the CC
brought by way of notice of motion under the present case
number,
seeking,
inter
alia,
an
order compelling the MD&MV to comply with the terms and
conditions of tender agreements PQ/G/280/2011 and PQ/G/026/201/,
alternatively an order directing the MD&MV to pay the CC a total
amount of R412 000.00. The notice of motion was served on
certain MP
Melesi, a former employee of MD&MV on the 23 October 2012. The
documents were never brought to the attention of
MD&MV as it
seems that they got lost en route to the latter's legal department.
Melesi is no longer in the employ of MD&MV,
as a result it cannot
be ascertained what happened to the documents. There was no notice of
intention to defend filed on behalf
of MD&MV thus resulting in a
default judgment being granted against the latter on 13 January 2013.
[4] I am of the view
that this application, which is being opposed, stands to be set aside
for the reasons set out herein below.
[5] It is common
cause that the judgment sought to be rescinded was granted by default
in the absence of the applicant on the 31
January 2013. The
application is brought in terms of Rule 31(2) (b) of the Uniform
Rules of this Court, which demands that the
application be brought
within 20 days upon becoming aware of such default judgment.
[6]
The applicant's application is founded on the affidavit deposed to by
Brigadier General T.E Mulaudzi who stated,
inter
alia,
that
"the applicant became aware of the existence of the judgment for
the first time on 15 February 2013 when same was faxed
through to the
applicant's Central Procurement office".
[7] In needs
mentioning that there is no specific prayer for condonation sought.
In so far as the allegation that the application
was brought 6 days
late to the prescribed period, there is no merit in this contention.
The judgment came to the attention of the
Brigadier General on the on
the 15 February 2013. On 8 March 2013 counsel was briefed to draft
papers necessary for this application.
Consultation with counsel took
place on 10 March 2013 to draft the papers. The application ought to
have been filed within 20 days,
which would have been not later than
the 15 March 2013. The affidavit was only deposed to on the 26th
March 2013, and was already
25 days late. The Notice of Motion was
however issued on the 19th April 2013, which was 45 days after the
judgment came to the
attention of the applicant. There is no
explanation regarding this inordinate delay.
[8]
In an application for condonation the applicant must explain the
cause of the delay and give a reasonable explanation for such
delay,
covering the entire period of the delay; the applicant must further
satisfy the court that he has a reasonable prospects
of success on
the merits. With regard to condonation, the greater the degree of
delay is, the less are the prospects of success
regardless of the
strength of the grounds upon which the rescission is premised;
vide
Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477A-B et E-F; immeiman v Loubser
[1974]
4 ALL SA 89
(A)
(1974 (3) SA 816
(AD).
[9]
With regard to the prospects of success on the merits, it was held in
the matter of
Harris
v ABSA Bank Ltd t/a Volkskas
2002[3]
ALL SA 215 at 217, that the applicant must show sufficient cause
which means that he must give an acceptable explanation
of his
default and this must coexists with evidence of reasonable prospects
of success on the merits. If one of the essentials
is lacking then
the court will not come to his assistance. In the matter of
Mutebwa
v Mutebwa and Another [2001] 1 ALL SA
(2001 (2) SA 83
(200 (2) SA 193
(TK)
at
198 I Jafta J (as he then was) held that: "The terms 'sufficient
cause' and 'good cause' means the same thing. The only
difference is
that Rule 31(2)(b) refers to 'good cause'. The requirements therefore
are exactly identical.
In
Chetty v Law Society, Transvaal
1985
(2) SA 756
(A) the Appellate Division had occasion to consider the
requirements of 'sufficient cause'. At 765A-C Miller JA said:
'The
term "sufficient cause" (or "good cause" defies
precise or comprehensive definition, for many and various
factors
require to be considered. (See
Cairns
Executors v Gaarn
1912
AD 181
at 186 per Innes JA.) But it is clear that in principle and in
long-standing practice of our Courts two essential elements of
"sufficient
cause" for rescission of a judgment by default
is:
(i) That the party
seeking relief must present a reasonable and acceptable explanation
for his default; and
(ii) That on merits
such party has a bona fide defence which, prima facie, carries some
prospects of success...'
It is not sufficient
if only one of these 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 default judgment against him, no matter
how reasonable and convincing
the explanation of his default is.
[10] Although the
applicant contended in its papers that this application was brought 6
days late, this is incorrect. The 20 days
upon which the application
for rescission ought to have been brought expired on the 18 March
2013; regard being had to the fact
that the 1 March 2013 was a public
holiday which need not be taken into account for computation
purposes. Although the founding
affidavit was deposed to on the 26
March 2013, however, the application was only filed on the 19 April
2013.
[11]
Whereas the delay of 6 days would not have been unreasonable,
however, the application was only brought on the 19 April 2013
and
there is no explanation for such inordinate delay. In the absence of
a satisfactory explanation as to why the application was
not brought
within 20 days after the applicant became aware of the default
judgment, there is no basis upon which this court can
even consider
exercising its discretion and condone the belated application. I deem
it not necessary to interrogate whether there
is a bona fide defence
to the merits. I take note of the fact that the cause of dispute
between the parties relate to a tender
award going as far back as in
November 2011, from which the MD&MV wants to renege. It is trite
that a litigant,
in
casu
the
CC, is entitled to finality to the litigation. In my view, the
interest of justice dictates that finality of litigation must
be
reached speedily. Granting condonation and rescission would, in my
view, merely prolong the litigation much longer, to the prejudice
of
the CC.
[12]
The applicant must satisfy the court that on the merits it has a
bona
fide
explanation
for the default. It is common cause that the notice of motion was
served on the applicant's employee, a certain M. P.
Melesi on the 23
October 2012. The applicant contended in its papers that the relevant
notice was never brought to the attention
of the applicant. The said
Melesi is no longer in the employ of the applicant and as the result
the applicant was unable to ascertain
why the application was not
brought to the attention of the applicant. The applicant, in my view,
cannot hide behind the fact that
an employee has resigned. There
ought to be systems in place with regard to receipt of litigation
documents in State organs, such
as the applicant. Such systems cannot
be dependent on the presence of a particular employee. When an
employee resigns, the system
must function. There ought to be an
immediate takeover of the work which was done by the person who
resigned.
In casu
there
is no explanation when the said Melesi resigned and what steps were
taken immediately after the resignation. In my view, the
explanation
advanced by the applicant for the failure to enter an appearance to
defend is not satisfactory, to say the least.
[13] For the
aforesaid reasons, therefore application is dismissed with costs.
N .M. MAVUNDLA
JUDGE OF THE
COURT
HEARD ON THE:
10/11/2014.
DATE OF JUDGEMENT:
27/02/2015
APPLICANT'S ATT :
STATE ATTORNEY PRETORIA
APPLICANT'S ADV:
ADV. H A MPSHE
RESPONDENTS' ATT:
MESSRS D H MOSTERET ATTORNEYS
RESPONDETS'ADV: ADV
L BADENHORST