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[2015] ZAECMHC 76
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Mabusela v Eastern Cape Development Corporation (CA&R40/2013) [2015] ZAECMHC 76 (3 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. CA&R 40/2013
Heard
on: 30 October 2015
Delivered
on 03 November 2015
In
the matter between:
PATIENCE
NONDZONDELELO
MABUSELA
Appellant
and
EASTERN
CAPE DEVELOPMENT CORPORATION
Respondent
JUDGMENT
BROOKS
AJ:
[1]
On 14 May 2012 the appellant launched an application for the
rescission of a judgment which had been granted by default in favour
of the respondent on 8 May 2012 by the magistrate in the Magistrate’s
Court for the District of Butterworth.
The application
for rescission was opposed by the respondent and a full exchange of
affidavits occurred between the parties.
[2]
On 13 August 2012 the magistrate dismissed the application for
rescission and directed the appellant to pay the costs of the
application on the scale as between attorney and client. The
present appeal is directed against the correctness of that decision.
[3]
The appeal was initially argued in this court on 14 February 2014,
before BESHE J the late DUKADA J. At the commencement
of the
appeal hearing the court granted an application for condonation which
had been introduced by the appellant to explain a
delay in the
prosecution of the appeal. After hearing argument the court
reserved judgment on the appeal. Prior to
the delivery of that
judgment the late DUKADA J passed away. In the circumstances,
on 6 May 2015 the Acting Deputy Judge
President directed that the
appeal be argued afresh. However, the order granting the
appellant condonation remains unaffected
by the subsequent
developments in the matter.
[4]
Section 36
(1) of the
Magistrates’ Courts Act 32 of 1944
empowers a court:
(a)
to rescind or vary any judgment granted by it in the absence of the
person against
whom that judgment was granted;
(b)
to rescind or vary any judgment granted by it which was void
ab
origine
, or which was obtained by fraud or by mistake common to
the parties;
(c)
to correct patent errors in any judgment in respect of which no
appeal is pending;
and
(d)
to rescind or vary any judgment in respect of which no appeal lies.
[5]
Rule 49 of the Magistrates’ Court Rules of Court deals with the
subject more fully, prescribing the procedure to be followed
and the
content of the affidavits which must be filed in support of the
application for rescission. Sub-rules 1 to 6 deal
with the
rescission or variation of “default judgments”; sub-rules
7 and 8 deal with the rescission or variation of
judgments other than
“default judgments” and sub-rule 9 deals with the
correction by a magistrate of his or her own
accord of errors in a
judgment. Sub-rules 1 to 3 cater for a defendant wishing to
defend the action in which judgment has
been granted by default
against him or her.
[1]
[6]
It has been held
[2]
that:
“
An
application for rescission is never simply an enquiry whether or not
to penalise a party for his failure to follow the rules
and
procedures laid down for civil proceedings in our courts. The
question is, rather, whether or not the explanation for
the default
and the accompanying conduct by the defaulters, be it wilful or
negligent or otherwise, gives rise to the probable
inference that
there is no
bona
fide
defence, and that the application for rescission is not
bona
fide
.
The magistrate’s discretion to rescind the judgments of his
court is therefore primarily designed to do justice between
the
parties. He should exercise that discretion by balancing the
interests of the parties, bearing in mind the considerations
referred
to in GRANT v PLUMBERS (PTY) LTD
[3]
and HDS CONSTRUCTION v WAIT
[4]
and also any prejudice that might be occasioned by the outcome of the
application.”
[7]
It is apparent from the application for rescission that the appellant
contended that the judgment granted by default was void
ab
origine.
It
has been held
[5]
that in an
application for rescission of a default judgment which is brought
on the grounds that the default judgment is
void
ab
origine,
the
applicant must set out his or her defence to enable the court to
decide whether or not there is a valid and
bona
fide
defence.
[8]
It is also well established that the defendant must at least furnish
an explanation of his or her default sufficiently full
to enable the
court to understand how it really came about, and to assess his or
her conduct and motives.
[6]
[9]
In considering the proper approach to be adopted in the evaluation of
the evidence set out in the affidavits filed in the application
for
rescission, it is necessary to consider the nature of the relief
sought. The effect of rescission would be to render
the order a
nullity. Neither advantage or disadvantage can flow therefrom.
The applicant is entitled to claim that
the
status
quo ante
be
restored.
[7]
In my view,
the grant of rescission can be likened to the grant of interim relief
and the proper approach is to take the
facts set out by the applicant
together with any facts set out by the respondent which the applicant
cannot dispute and to determine
whether, on those facts, the
applicant is entitled to relief.
[8]
[10]
Upon a consideration of the content of the affidavits filed in the
application for rescission against the background of the
legal
principles set out above, it is immediately apparent that the
appellant has failed to address any of the allegations made
in the
summons in any manner which might be construed as setting out a clear
and
bona fide
defence sought to
be relied upon by the appellant.
[11]
As the basis for the assertion that the default judgment was void
ab
orgine
the appellant relies upon two points:
(a)
in the absence of any plea having been filed by the appellant, the
respondent issued
a series of notices of bar issued in accordance
with the provisions of Rule 12 (1) (b) of the Magistrates’
Court Rules of
Court. Those notices were served upon the
appellant’s correspondent attorneys. The appellant claims
that the
notices were fatally defective and contrary to the
provisions of Rule 3 (3) as read with Rule 6 (2) of the Magistrates’
Court
Rules of Court. The complaint is that the wrong case
number appears on the notices issued by the respondent;
(b)
secondly, the appellant asserts the view that the respondent’s
summons was fatally
defective in that it failed to annex a copy of
the written agreement referred to in the body of the summons.
This amounts
to non compliance with the provisions of Rule 6
(6) of the Magistrates’ Court Rules of Court and, so the
argument proceeds,
renders the summons fatally defective.
[12]
Closer examination reveals the poverty of the appellant’s
complaint relating to the notices of bar. The description
of
both parties set out in the heading of the notices is accurate.
The only error is the reflection of the case number as
“1089/2011”
whereas the correct case number is “1098/2011”. In
my view, the error is clearly a simple
typographical error and was
insufficient to warrant the notices being ignored as appears to have
been the case. In the absence
of evidence to the effect that
the attorney concerned was dealing with a number of cases between the
identical parties, or that
some other factor lead to the notices
being ascribed to an incorrect file, in my view it is perfectly
reasonable to expect an attorney
to reconcile the notices with the
matter placed under his or her professional control and to have
responded to the notices accordingly.
In the event that the
attorney was of the view that the appellant was prejudiced by the
simple typographical error, he or she could
have proceeded with an
application in terms of Rule 60 (A) of the Magistrates’ Court
Rules of Court to have the notices set
aside as irregular.
[13]
Similar criticism arises in respect of the attitude adopted towards
the respondent’s summons. Remedies are available
to a
party who is faced by a summons which is deficient for want of an
annexure. Those remedies include an application in
terms of
Rule 60 (A) of the Magistrates’ Court Rules of Court, if
prejudice is demonstrable.
[14]
It is noteworthy that the summons was served personally upon the
appellant on 30 November 2011. Notice of intention to
defend
the action was only given by the appellant on 19 March 2012, three
and a half months later. No plea was forthcoming
and the first
of the notices of bar issued in terms of Rule 12 (1) (b) of the
Magistrates’ Court Rules of Court, to which
reference has been
made, was served on 24 April 2012, five weeks after the appellant had
given notice to defend the action.
These lengthy time periods
are not dealt with at all in the application for rescission of
judgment. Nor is there any indication
in the affidavit deposed
to therein by the appellant of any steps taken or even being
contemplated to invoke any of the remedies
available to the appellant
to address the deficiencies in the proceedings of which complaint is
raised in the application for rescission.
[15]
The remedies available to a defendant who is served with a summons
which lacks an annexure or notices of bar issued in terms
of Rule 12
(1)(b) of the Magistrates’ Court Rules of Court which contain
typographical errors do not include adopting a supine
attitude and
ignoring the process on the basis that it is fatally defective.
In my view, this attitude on the part of the
appellant gives rise
inevitably to the inference that the appellant is not
bona
fide
in her attempt
to raise the complaints in motivation of an application for
rescission of judgment, whether that application purports
to
demonstrate “good cause” for the setting aside of the
judgment as being void
ab
orgine
or purports
to demonstrate reliance upon formal defences. The same,
perhaps, could not have been said of the appellant if
there were some
indication in her affidavit filed in support of the application for
rescission of activity aimed at invoking one
of the remedies which
were available to her in the Magistrates’ Court Rules of Court
during the lengthy periods of time to
which reference has been made.
[16]
It follows that I am of the view that the appellant has failed to
provide an adequate reason for the default which led to the
judgment
being granted against her.
[17]
In argument, MR NKUBUNGU, who appeared on behalf of the appellant,
submitted that it was sufficient for the appellant to refer
to the
two formal defences available to her in her affidavit filed in
support of the application for rescission, and that it was
not
necessary for her to address any substantive defence therein which
she would set out in her plea. In my view, the submission
is
without substance. It is dealt a fatal blow by the
dicta
of
ZULMAN JA
[9]
:
“
Put
differently, the provisions of Rule 49 (3) are peremptory when a
court considers an application to rescind a default judgment.
More particularly, the wording of the subrule makes it clear that the
grounds of the defendant’s
defence
to the claim
must
be set out. Where the objection is that the judgment was void
ab origne,
compliance with
Rule 49 (3) nevertheless involves
further
proof of the existence of a valid
bona
fide
defence
to the claim.”
(Emphasis added).
[18]
In my view, the complete failure on the part of the appellant to set
out the grounds upon which a substantive defence is to
be raised
bona
fide
on the merits
of the action is fatally defective within the context of the
application for rescission.
[19]
It follows that the magistrate cannot be criticised in the manner in
which the matter proceeded and no basis has been laid
for any
interference with the order granted on the application for
rescission.
[16]
The following order will issue:
“
The
appeal is dismissed with costs.”
______________________________
RWN
BROOKS
JUDGE
OF THE HIGH COURT (ACTING)
I
agree
_____________________________
FY
RENQE
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
For
the appellant: MR MH
NKUBUNGU of
B.
MAKADE INCORPORATED, MTHATHA
For
the respondent: ADV JL HOBBS instructed by
ROSS
GM SOGONI & CO, MTHATHA
[1]
THE CIVIL
PRACTICE OF THE MAGISTRATES’ COURT IN SOUTH AFRICA VOLUME II,
Jones
and Buckle, Tenth Edition 2012, Juta and Company (Pty) Ltd, Rule
49-2.
[2]
DE WITTS
AUTO BODY REPAIRS (PTY) LTD v FEDGEN INSURANCE CO LTD
1994 (4) SA
705
(E) 711E-G
[3]
1949 (2) SA
470 (O)
[4]
1979 (2) SA
298 (E)
[5]
LEO
MANUFACTURING CC v ROBOR INDUSTRIAL (PTY) LTD t/a ROBOR STEWARTS &
LLOYDS 2007 (2) SA
1
(SCA).
[6]
SILBER v
OZEN WHOLESALERS (PTY) LTD
1954 (2) SA 345
(A) 352G.
[7]
SECURIFORCE
CC v RUITERS 2012 (4) SA 252 (NCK) 261 D-E.
[8]
SPUR STEAK
RACHES LTD AND OTHERS v SADDLES STEAK RANCH, CLAREMONT, AND
ANOTHER
1996 (3) SA 706
(6) 714 E.
[9]
NOTE 5
(supra) para [6]