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[2015] ZAGPPHC 710
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Coopers Carriers CC v Wilson and Others (46999/2012) [2015] ZAGPPHC 710 (21 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case
number: 46999/2012
Date:
21 August 2015
In
the matter between:
COOPERS CARRIERS CC
(Registration
number:
1994/005618/23) APPLICANT
And
LESLIE PHILIP
WILSON 1
ST
RESPONDENT
STEFFEN
DIETMAR
WIENING 2
ND
RESPONDENT
LESLEY
PATRICIA
WIENING 3
RD
RESPONDENT
JUDGMENT
PRETORIUS
J,
[1]
This
is an application for the rescission of two judgments granted by the
court by default on 26 November 2012 on the merits and
on 28 November
2013 on the quantum of the action. The application is being
brought in terms of Rule 31(2)(b) of the Uniform
Rules of Court.
[2]
During
September 2011 a collision occurred between a motor vehicle owned by
the applicant and driven by the applicant’s employee
and the
property of the respondents. The vehicle was a truck and
trailer combination. The second respondent, being
the owner of
the immovable property, instituted action against the applicant.
The second respondent allegedly suffered damages
to his fixed
property in an amount of R288 867.31.
[3]
Subsequent
to the issue of the summons the parties agreed to settle the matter.
The applicant and respondents entered into
a settlement agreement on
23 May 2014. The settlement agreement provided, inter alia,:
“
2.
The First Defendant was acting within the course and scope of his
employment with the
Second Defendant at the time of the collision on
or about 15 September 2011, from which this matter ensues.
3. The Second
Defendant is insured with ORA who are the underwriter managers on
behalf of Hollard Insurance Company Limited and as such and in terms
of the rules of subrogation the Plaintiff’s claim as
and
against the Second Defendant falls as and against the Second
Defendant’s Insurance company being Hollard Insurance Company
Limited (“Hollard”).
4. Hollard has
undertaken to pay the agreed settlement amount, being 80% of the
Plaintiff’s damages in the sum of R231 093.85 (TWO HUNDRED
AND THIRTY-ONE THOUSAND AND NINETY-THREE RANDS AND EIGHTY-FIVE
CENTS)
to the Plaintiff’s Attorneys Trust Account…”
[4]
Furthermore
it was agreed:
“
Payment
of the debt is made in full and final settlement of his claim
,
including capital, interest and costs, arising from a collision which
occurred on or about 15 September 2011 involving the Plaintiff’s
property situate at Plot 281, Broederstroom and Hollard’s
insured truck tractor combination bearing registration numbers
and
letters WDV968GP and FBZ661GP.”
And
“
The
Plaintiff or his heirs, dependents, administrators, executors or
signs
release and forever
discharge ORA; Hollard; and the First and Second Defendants from all
or any further claims whatsoever
which
the Plaintiff or his heirs, dependents, administrators, executors or
signs may now or hereafter at any given time have against
ORA;
Hollard or the First and Second Defendants or any other party arising
from this incident, litigation, attachment or any ancillary
costs
thereto;”
(Court’s
emphasis)
[5]
It
is admitted by the applicant that summons commencing action was
served by method of affixing to the principal door of the respondents
on 31 August 2012. The applicant, however, argued that the
summons was not served on the correct address. I find that
the
Companies and Intellectual Property Commission’s company report
was correct on 12 November 2013 and that the registered
address was 6
Rooigras Street, Bassonia. It is clear that the applicant was
under the impression that the address had been
changed and referred
the court to the “
Annual
Return Application: Cooper’s Carriers
”
dated 6 January 2012 on which the applicant relied. The
applicant’s deponent and managing member did not receive
any
knowledge of the summons. Although it is not a requirement, it
is common cause that no notice of setdown was served on
the
applicant.
[6]
I
cannot find that in the circumstances where it was clear that there
had been correspondence between the applicant and the respondents’
attorneys, that the applicant wantonly and wilfully disregarded the
summons.
[7]
The
applicant has to show that it has a
bona
fide
defence against the respondent’s claim. The applicant
raises three defences, namely a defence in respect of the factual
events pertaining to the collision; the inadequacy and/or speculative
nature of the determination of the respondents’ quantum
and
thirdly the existence of the settlement agreement.
[8]
I
must agree with the applicant, having regard to the summary of the
expert opinion, that the basis on which the findings were made,
was
hearsay evidence from several people who were involved in the
collision or who were bystanders at the time of the collision.
I am not considering any of the facts regarding the collision at this
stage, but am only considering the facts to establish whether
the
applicant has a
bona
fide
defence, which could be fit for trail as set out in
PLJ
van Rensburg en Vennote v Den Dulk 1971(1) SA 112 (W)
.
[9]
It
is clear that the allegation is that the sole cause of the collision
was the negligence of the third party vehicle driver, who
was
employed by Kiepersol Kwekery. These grounds are dealt with
extensively and confirmed under oath. It is clear that
these
facts are at variance with what the respondents alleged. It can
only be dealt with at trial where oral evidence will
be presented and
tested by way of cross-examination.
[10]
Linked
to this is the fact that the respondents rely on the expert’s
opinions, which may be countered by direct evidence by
either the
party involved in the incident or by a bystander. See in this
instance
Roux
v Hattingh 2012(6) SA 428 (SCA)
at p 435, paragraph 20, where the court held:
“
In
Motor Vehicle Assurance Fund v Kenny Eksteen J held, in the context
of a motor collision,
that
'(d)irect or credible evidence of what happened in a collision, must,
to my mind, generally carry greater weight than the opinion
of an
expert, however experienced he may be, seeking to reconstruct the
events from his experience and scientific training'
;
that the view of an expert witness as to what might probably have
occurred should generally 'give way to the assertions of the
direct
and credible evidence of an eye witness'; and that it is 'only where
such direct evidence is so improbable that its very
credibility is
impugned that an expert's opinion as to what may or may not have
occurred can persuade the court to his view'.”
(Court’s
emphasis)
[11]
The
applicant alleges that a court may make a finding of contributory
negligence, which may negate the findings of the experts.
It is
further clear that there were witnesses at the scene who can give
direct evidence pertaining to the collision, which may
cause a court
to find negligence.
[12]
The
main complaint regarding the quantum of the damages claim is that
most of the claims are based on replacement values of the
movable
items and not on the repair value.
[13]
It
is so that in the summary of expenses and damages to vehicle HFG007NW
has been set out. The loss of earnings has been presented
as
R350 per day from the date of the collision, 15 September 2011, until
settlement. This cannot be correct, as there is
no indication
that the respondents made any effort to mitigate their damages and a
basis for the amount has not been established.
[14]
Whether
there is a responsibility on the respondents to mitigate their
damages is a factual question which can only be determined
during
trial.
[15]
The
applicant’s contention that the travel related expenditure is
disputed and should be proven at trial is valid in the particular
circumstances of this case.
[16]
The
last ground setting out that there is a
bona
fide
defence is the settlement agreement which had been reached and
entered into by the parties, “
in
full and final settlement
”.
A court will furthermore have to decide whether the settlement
agreement pertained to and included damage to movables
and incidental
expenses. A court will have to decide whether the settlement
agreement is binding and therefor I find that the existence
of the
settlement agreement may, at trial, constitute a valid, genuine and
bona
fide
defence.
[17]
I
find that the applicant was not in wilful default in respect of the
action, and that the applicant has
bona
fide
defences to the relevant claims.
[18]
Therefor
rescission of judgment should be granted so that the
bona
fide
defences may be ventilated and tested during trial.
[19]
Therefor
I make the following order:
1.
The
default judgment granted on 26 November 2012 by the Honourable
Justice Mavundla (“the first judgment”) is rescinded;
2.
The
default judgment granted on 28 November 2013 by the Honourable
Justice Baqwa (“the second judgment”) is rescinded;
3.
The
first, second and/or third respondents are ordered to pay the costs
of this application, the one to pay the other to be absolved.
_____________________
Judge C Pretorius
Case number
: 46999/2012
Appeal heard on
: 4 August 2015
For the Applicant
:
Adv. WA De Beer
Instructed by
: MULLER VOIGT ATTORNEYS
For the Respondent
: Adv. C Richard
Instructed by
: WEAVIND & WEAVIND INC
Date of Judgment
: 21 August 2015