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[2015] ZAECMHC 80
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Minister of Police v Nongwejane (CA&R63/2015) [2015] ZAECMHC 80 (20 November 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO. CA&R 63/2015
Date heard:
20 November 2015
Date delivered: 24 November 2015
In
the matter between:
MINISTER
OF
POLICE
Appellant
and
LUSINDISO
NONGWEJANE
Respondent
JUDGMENT
BROOKS AJ:
[1] On 17 February 2015 the appellant
launched an application for the rescission of a judgment which had
been granted by default
in favour of the respondent on 18 June 2014
by the magistrate in the Regional Court Division of the Eastern Cape
held at Mthatha.
The application for rescission was opposed by
the respondent and a full exchange of affidavits occurred between the
parties.
[2] On
14 April 2015 the magistrate dismissed the application for rescission
and directed the appellant to pay the costs of the
application.
[3] In
the notice of appeal filed of record on behalf of the appellant,
reference is made to an appeal against the whole of the
judgment and
order delivered by the magistrate on 5 May 2015. However, in
the written reasons for the judgment and order
furnished on 17 August
2015 at the request of the appellant, the magistrate makes reference
to the order having been given on 14
April 2015. The confusion
appears to have arisen from the inclusion in the record of
proceedings of two copies of the order
made by the magistrate on the
application for rescission. The first is dated 14 April 2015
and the second is dated 5 May
2015. Both documents express the
order made by the magistrate in substantially the same terms.
It is plain that the
present appeal is directed against the order of
the magistrate in which the application for rescission was dismissed
with costs.
There being no reason to suspect that the
magistrate made any error in the provision of the written reasons for
the judgment and
order, the correct date of the order would appear to
be 14 April 2015. Nothing turns on the erroneous reference in
the notice
of appeal to 5 May 2015 and accordingly it is accepted
that the reference should be to the order dated 14 April 2015.
[4] Section 36
(1) of the Magistrates’ Court 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 the 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]
Whilst the application for rescission commences with a claim that it
is brought in terms of Rule 49 (8) of the Magistrates’
Court
Rules of Court, it is plain from the content thereof that in fact the
applicable rule is Rule 49 (3) of the Magistrates’
Court Rules
of Court and that the application has been sufficiently widely
presented to encompass that rule.
[2]
[7] Rule 49
(3) of the Magistrates’ Court Rules of Court provides as
follows:
“
Where
an application for rescission of a default judgment is made by a
defendant against whom the judgment was granted, who wishes
to defend
the proceedings, the application must be supported by an affidavit
setting out the reasons for the defendant’s
absence or default
and the grounds of the defendant’s defence to the claim.”
[8] It
has been held
[3]
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
[4]
and HDS CONSTRUCTION v WAIT
[5]
and
also any prejudice that might be occasioned by the outcome of the
application.”
[9] The
following well established principles must also be borne in mind in
the evaluation of an application for rescission under
Rule 49 (3) of
the Magistrates’ Court Rules of Court:
(a)
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]
;
and
(c)
a measure of flexibility is required in the exercise of the court’s
discretion
and an apparently good defence may compensate for a poor
explanation.
[7]
[10] 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 nor disadvantage can flow
therefrom. The applicant is entitled to claim that
the
status
quo ante
be
restored.
[8]
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.
[9]
[11] The
following relevant facts emerge from a reading of the affidavits
filed in the application for rescission:
·
the summons
commencing the action was not served upon the appellant but was
served upon the office of the state attorney on 19 September
2012;
·
the state
attorney did not look to the appellant for instructions to defend the
action on 6 November 2012;
·
on 5 December
2012 a notice to plead was served upon the office of the state
attorney;
·
no plea was
filed by the state attorney;
·
on 28 March 2014
the respondent filed a request for default judgment with the clerk of
the court but did not serve a copy upon the
state attorney;
·
on 2 April 2014
the respondent filed a notice of set down with the clerk of the court
enrolling the application for default judgment
for hearing on 9 May
2014 but did not serve a copy upon the state attorney;
·
notwithstanding
the fact that the claim expressed in the summons was for the payment
of unliquidated damages in the amount of R200 000,00,
no oral
evidence was placed before the magistrate in support of the
application for default judgment; instead, reliance was placed
on a
brief “damages affidavit”;
·
on 18 June 2014
the magistrate granted judgment by default in favour of the
respondent in the amount of R 200 000,00 together
with interest
and costs of suit;
·
unaware of the
judgment by default, on 2 September 2014 the state attorney
outsourced the matter to the appellant’s attorneys
of record;
·
Consultations
were held for the purposes of preparing a plea;
·
on 8 October
2014 a plea was filed on behalf of the appellant;
·
on 26 January
2015 the appellant’s attorneys of record were advised
telephonically by the state attorney that judgment by
default had
been granted against the appellant on 18 June 2014;
·
the application
for rescission of the default judgment was launched on 17 February
2015;
·
the
consultations held for the purposes of preparing a plea revealed that
the retired policeman identified in the particulars of
claim denied
perpetrating any assault upon the plaintiff. Unlawful physical
assault being the plaintiff’s pleaded cause
of action, this
means that the appellant has a substantive defence to the action;
·
in the
circumstances the appellant wishes to defend the action and file a
plea.
[12]
Whilst it is not a requirement of the Magistrates’ Court Rules
of Court that a request for default judgment or a notice
of set down
in respect thereof be served upon a defendant who has failed to
file a plea, which is a requirement of the Uniform
Rules of Court,
service of such documentation in such circumstances would have been a
salutary exercise which may have rendered
it unnecessary for the
appellant to make application for the rescission of the judgment
granted by default in due course.
In my view, a consideration
of the relevant evidence reveals that the appellant has given a
satisfactory explanation of the failure
to file a plea timeously and
of the concomitant failure to oppose the application for judgment by
default in due course.
In addition, the founding affidavit
discloses a
bona
fide
defence which
the appellant wishes to rely upon in defending the action. The
inevitable conclusion is that the application
for rescission of the
default judgment was
bona
fide
and complies
with all the requirements of Rule 49 (3) of the Magistrates’
Court Rules of Court.
[13] It
is necessary to address a further issue. In terms of the
provisions of Rule 12 (4) of the Magistrates’ Court
Rules of
Court, the clerk of the court shall refer to the court any request
for judgment for unliquidated amount and the plaintiff
shall furnish
to the court evidence either oral or by affidavit of the nature and
extent of the claim whereupon the court shall
assess the amount
recoverable by the plaintiff and shall give an appropriate judgment.
[14]
Normally the
quantum
of damages should
be established by oral evidence, but in special circumstances the
court may accept evidence on affidavit
[10]
.
Neither the content of the particulars of claim nor the content of
the brief affidavit filed in support of the application
for default
judgment disclose special circumstances which would justify the
acceptance of evidence on affidavit. Even if
there were, the
brevity of the content of the affidavit filed renders it insufficient
as proof of the damages claimed.
[15] If
there is not sufficient evidence to enable the court to assess the
damages, or if the damages are too remote, the default
judgment will
be refused
[11]
.
Given the insufficiency of the evidence on
quantum,
the default
judgment in this matter ought not to have been granted.
[16] It
follows that I am of the view that upon a consideration of all the
evidence and relevant factors before him, the magistrate
ought to
have granted the application for rescission of the default judgment.
In the circumstances the appeal must succeed
and the magistrate’s
order issued on 14 April 2015 must be set aside.
[17] An
application for rescission of a default judgment is regarded as an
indulgence and, as a general rule, the applicant would
be ordered to
pay the costs of such an application if the respondent’s
opposition thereto was reasonable.
[12]
I am of the view that in the circumstances of this matter, set out
fully in the founding affidavit in a manner which allowed
the
respondent very little room for objective and justifiable opposition
and which exposed a lamentable poverty in the application
for default
judgment, opposition to the application for rescission of the default
judgment was unreasonable. In such circumstances,
the
respondent ought to have borne the costs of the application for
rescission.
[18] The
following order will issue:
“
1.
The appeal succeeds with costs.
2.
The order of the magistrate issued on 14 April 2015 under case number
EC/MTHA/RC
811/12 is hereby set aside and replaced with the following
order:
(a)
The judgment by default
granted on 18 June 2014 under case number EC/MTHA/RC 811/12 is hereby
rescinded and set aside.
(b)
The respondent is
hereby directed to pay the costs of the application for rescission.”
_________________________________
RWN BROOKS
JUDGE OF
THE HIGH COURT (ACTING)
DAWOOD J:
I agree.
__________________________
FBA
DAWOOD
JUDGE
OF THE HIGH COURT
Appearances:
For
the appellant: Mr M Notyesi
of
MVUZO NOTYESI INC, MTHATHA
For
the respondent: Mr VV Msindo of
VV Msindo & Associates, MTHATHA
[1]
THE CIVIL PRACTICE OF THE MAGISTRATES’
COURTS IN SOUTH AFRICA VOLUME II, Jones and Buckle, Tenth Edition
2012, Juta and
Company (Pty) Ltd, Rule 49-2.
[2]
BAKOVEN LTD v GJ HOWES (PTY) LTD
1992 (2) SA 466
( E) 468 I – 469 A; NYINGWA v MOOLMAN NO
1993 (2) SA 508
(Tk)
509 I – 510D.
[3]
DE WITTS AUTO BODY REPAIRS (PTY) LTD v FEDGEN
INSURANCE CO LTD 1994 (4) SA 705 (E) 711 E-G.
[4]
1949 (2) SA 470 (O).
[5]
1979 (2) SA 298 (E).
[6]
SILBER v OZEN WHOLESALERS (PTY) LTD 1954 (2) SA
345 (A) 352 G.
[7]
ZEALAND v MILLBOROUGH 1991 (4) SA 836 (SE) 838 D.
[8]
SECURIFORCE CC v RUITERS 2012 (4) SA 252 (NCK)
261 D-E.
[9]
SPUR STEAK RANCHES LTD AND OTHERS v SADDLES STEAK
RANCH, CLAREMONT, AND ANOTHER 1996 (3) SA 706 (C) 714 E.
[10]
NEW ZEALAND INSURANCE CO LTD v Du TOIT 1965 (4)
SA 136 (T).
[11]
DURBAN CITY COUNCIL v PETERSEN
1970 (1) SA 720
(N) 724 H - 725 A; MONUMENTAL ART CO v KENSTON PHARMACY (PTY)
LTD 1976 (2) SA 111 (C) 118 F.
[12]
PHILLIPS t/a SOUTHERN CROSS OPTICAL v SA VISION
CARE (PTY) LTD
2000 (2) SA 1007
(C) 1015 G-H.