Brief Summary

Recission of Judgment — Application for recission of default judgment — Applicant, a member of the Amajola Royal Family, sought recission of an order obtained against him by default — Applicant contended he was not served with the application leading to the order — First respondent opposed the application, providing a return of service and asserting the applicant was involved in settlement negotiations — Court assessed whether the applicant provided a reasonable explanation for his default and demonstrated a bona fide defence — Held, the applicant's involvement in settlement negotiations indicated awareness of the proceedings, and the application for recission was granted as the applicant established sufficient grounds for relief.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application for rescission of a default order granted on 12 December 2013. The rescission was sought in the Eastern Cape Local Division, Mthatha, before Brooks AJ, with judgment delivered on 18 September 2015.

The applicant, Samson Mafuna, is a member of the Amajola Royal Family and was occupying the position of Inkosana of the Mevana Administrative Area. The first respondent, Zwelibanzi Lungwengwe, opposed the rescission application and was the party who had obtained the default order. The second respondent, the MEC for Local Government & Traditional Affairs, was cited and had been the first respondent in the earlier proceedings that produced the default order, but took no part in the rescission proceedings despite notice.

Procedurally, the matter arose from an earlier application under the same case number in which the first respondent obtained relief by default, resulting in the applicant not being present when the order was taken. The applicant then approached the court to have that default order rescinded. Although the founding affidavit did not expressly identify the legal basis, the court considered it plain that the rescission was pursued under Rule 31(2)(b) of the Uniform Rules of Court, alternatively under the common law.

The dispute concerned competing claims to a traditional leadership position (Inkosana) within the Amajola Royal Family and the broader Mevana Administrative Area, and whether the default order reinstating the first respondent and displacing the applicant should stand without the merits being ventilated.

2. Material Facts

It was common cause that the applicant sought rescission of an order obtained by default on 12 December 2013, and that the first respondent opposed rescission. It was also apparent that the second respondent (the MEC) did not participate in the rescission proceedings, notwithstanding notice.

A central factual dispute concerned service of the initiating papers in the earlier application. The applicant alleged, in both founding and replying affidavits, that he was not served with the application that led to the default order. In response, the first respondent produced a return of service stating that on 21 June 2012 at 12h00 the applicant was served with a notice of motion by delivery of a copy at “Mevana A/A, Libode to Samson Mafuna”. The court noted that the return of service did not indicate personal service, did not identify whether the place was the applicant’s residence, workplace, or business, and did not clarify whether the full founding papers were served. The first respondent also filed a later affidavit by the sheriff (deposed to on 10 April 2015) asserting that service had in fact been personal and at the applicant’s place of residence at Zele Location, Libode district.

Another disputed factual issue related to whether the applicant had taken steps to oppose the earlier application. The first respondent relied on a notice of intention to oppose dated 4 July 2012, served on the first respondent’s attorneys on 14 August 2012, authored by the State Attorney. The content referred to “respondents” and appointed the State Attorney’s address, but the court regarded the document as ambiguous and “unhelpful”, including because it appeared to be prepared for a single “defendant” and because the State Attorney acts for organs of state, making it more probable that it related to the MEC rather than the applicant.

Notwithstanding the disputes about formal service and opposition, the court treated as material the first respondent’s more detailed allegations that settlement negotiations took place after the notice to oppose, involving attorney communications and meetings. According to the first respondent, a meeting scheduled for 3 September 2012 was attended by the applicant, supported by an attendance register annexed to the answering affidavit. The first respondent also attached a letter from the present second respondent inviting the royal family to a further meeting scheduled for 20 August 2013, which the first respondent said the applicant attended. The applicant’s reply accepted that he had been approached by the State Attorney to attend a meeting (he referred to 3 September 2013) and stated that no settlement was reached; he denied knowledge of, notice of, or attendance at the meeting of 20 August 2013.

The court considered it clear on the papers that the first respondent had engaged in settlement negotiations and that, by some mechanism, the applicant was involved to an extent. On that basis, the court treated it as plain that the applicant had a direct interest and must have become aware of the earlier application during negotiations, even if initial formal service was defective.

A further material factual aspect was that the first respondent’s answering affidavit did not explain why settlement negotiations were abandoned or what steps were taken to notify the applicant of the matter being set down before the default order was taken. The court treated the absence of information about notice of set down as important in assessing whether the applicant’s default was wilful or grossly negligent.

On the underlying merits (relevant to bona fides and a defence), the court recorded that the papers showed that on 19 January 2008 the Amajola Royal Family resolved to identify the applicant as Inkosana of the Mevana Administrative Area, and the resolution was annexed. The first respondent admitted that such a resolution was taken but alleged that the applicant’s appointment was unlawful because it conflicted with an earlier resolution identifying the first respondent as Inkosana, which, according to the first respondent, had never been reversed. The default order had the effect of reinstating the first respondent as Inkosana and displacing the applicant, who had held the position for a number of years.

3. Legal Issues

The central legal question was whether the applicant had shown “good cause” for rescission of a default judgment, under Rule 31(2)(b) (or, alternatively, the common law), such that the order of 12 December 2013 should be rescinded and set aside.

This required determination of interrelated questions involving the application of law to fact and an evaluative discretion, namely whether the applicant provided a reasonable explanation for his default and whether the default was wilful or due to gross negligence; whether the rescission application was bona fide rather than a delaying tactic; and whether the applicant disclosed a bona fide defence (at least a prima facie defence or an issue fit for trial) to the claim that had been determined by default.

The court also had to exercise a value judgment/discretion as to whether rescission would best serve the interests of justice, taking into account the principle that rescission restores the opportunity to have a genuine dispute heard, and the constitutional context of section 34 of the Constitution (the right of access to courts and a fair public hearing).

4. Court’s Reasoning

The court began by setting out the established requirements for rescission in applications of this kind. It relied on authority that an applicant must provide a reasonable explanation for the default; show that the application is bona fide and not brought merely to delay; and set out a bona fide defence, for which it is sufficient to establish a prima facie defence or an issue fit for trial, without proving probabilities of success. The court also stressed that the explanation must be sufficiently full to enable the court to understand how the default occurred, and that while the applicant must explain the default, the onus to establish wilful default rests on the respondent.

In considering the evidentiary approach, the court emphasised the nature and effect of rescission. It treated rescission as restoring the status quo ante and indicated that the grant of rescission could be approached in a manner akin to interim relief, by considering the applicant’s version together with facts advanced by the respondent that the applicant cannot dispute, to decide whether relief is justified. The court further highlighted that it has a wide discretion in assessing good cause to ensure justice, and that the object of rescission is to restore the chance to air a real dispute.

On the question of the applicant’s default, the court assessed the service evidence and concluded that the original return of service was materially deficient. The later sheriff’s affidavit attempted to cure this by asserting personal service at the applicant’s residence, but it was deposed to nearly three years later and did not remove the need for careful scrutiny of how default came about. The court similarly regarded the notice of intention to oppose (authored by the State Attorney) as ambiguous and not a reliable indicator that the applicant had actively opposed the earlier application, noting both the document’s internal features and the judicially noticeable fact that the State Attorney acts for organs of state, which aligned with the MEC’s position rather than the applicant’s.

However, the court accepted that the applicant had been drawn into settlement-related processes, which made it “irrelevant” whether there had been effective initial service in the strict sense: the applicant likely became aware of the earlier application through negotiations. The key consideration then became whether his absence when the default order was taken could be attributed to wilfulness or gross negligence. The court found it significant that the first respondent provided no explanation as to why negotiations were abandoned and, crucially, no account of steps taken to give the applicant notice of set down. Given the applicant’s absence when the order was granted and the lack of evidence of proper notice of the set down, the court concluded that the default could not be ascribed to wilfulness or gross negligence. On that basis, the court held that a reasonable explanation for the default emerged from the affidavits.

Turning to bona fides, the court considered the practical effect of the default order: it reinstated the first respondent as Inkosana and displaced the applicant, who had held the position for years. In that context, the court accepted that the applicant’s attempt to challenge the first respondent’s claim was genuine and not merely dilatory.

On the existence of a bona fide defence, the court recorded that the applicant raised various procedural difficulties relating to the earlier application, which the court considered could potentially be dispositive if properly ventilated. Beyond procedure, the court treated the substantive core of the defence as arising from the applicant’s tenure as Inkosana for a number of years pursuant to identification by the Amajola Royal Family, supported by objective material in the papers. Although the first respondent challenged aspects, he admitted the 2008 resolution, and the dispute about competing resolutions demonstrated that there was a real issue requiring adjudication.

Finally, the court linked these conclusions to the broader interest of justice, including the constitutional dimension that default judgment is inherently contrary to the spirit of section 34 of the Constitution, requiring balancing between access to courts and finality based on the circumstances that led to default. The court considered that there were competing claims to an important traditional position, and that rescission would restore the opportunity to have those claims expressed, explored, and resolved. Exercising its wide discretion, the court concluded that good cause for rescission had been established.

5. Outcome and Relief

The court granted rescission and set aside the default order granted in favour of the first respondent on 12 December 2013 under case number 1265/2012.

The court directed that the first respondent pay the costs of the rescission application.

Cases Cited

HDS Construction (Pty) Ltd v Wait 1979(2) SA 298(E).

Grant v Plumbers 1949(2) SA 470(O).

Silber v Ozen Wholesalers (Pty) Ltd 1954(2) SA 345(A).

Mahomed Abdulha v Chochan 1933 NPD 334.

Sanderson Technitool (Pty) Ltd v Intermenua (Pty) Ltd 1980(4) SA 573 (W).

RGS Properties (Pty) Ltd v Ethekwini Municipality 2010(6) SA 572 (KZD).

Securiforce CC v Ruiters 2012(4) SA 252 (NCK).

Spur Steak Ranches Ltd and Others v Saddles Steak Ranch, Claremont, and Another 1996(3) SA 706 (C).

Wahl v Prinswil Beleggings (Edms) Bpk 1984(1) SA 457 (T).

Lazarus v Nedcor Bank Ltd; Lazarus v ABSA Bank 1999(2) SA 782(W).

Legislation Cited

Constitution of the Republic of South Africa, 1996: section 34.

Rules of Court Cited

Uniform Rules of Court: Rule 31(2)(b).

Held

The court held that the applicant satisfied the requirements for rescission by demonstrating a reasonable explanation for his default (with the respondent failing to establish wilful default or gross negligence), that the rescission application was bona fide, and that the applicant disclosed a bona fide defence raising issues fit for trial in relation to competing claims to the position of Inkosana.

The default order of 12 December 2013 was rescinded and set aside, and the first respondent was ordered to pay the costs of the rescission application.

LEGAL PRINCIPLES

A party seeking rescission of a default judgment under Rule 31(2)(b) or the common law must place evidence before the court establishing good cause, including a reasonable explanation for the default, the bona fides of the application, and the existence of a bona fide defence that is at least prima facie or raises an issue fit for trial.

The explanation for default must be sufficiently full to allow the court to understand how the default occurred. While the applicant must provide a reasonable explanation, the onus to prove wilful default lies with the respondent.

In assessing whether a defence has been shown, an applicant need not demonstrate a probability of success; it is enough to show a prima facie defence or triable issue. A court should not refuse rescission merely because it is uncertain about the defence’s prospects, provided the defence is not, on its face, a delaying tactic.

The court retains a wide discretion to determine good cause, guided by the objective of rescission to restore the opportunity to ventilate a real dispute, and mindful of the constitutional context, including section 34’s protection of access to courts and the fair adjudication of disputes.

Mafuna v Lungwengwe and Another (1265/12) [2015] ZAECMHC 69 (18 September 2015)