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[2014] ZAGPPHC 46
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Mohlamme and Others v Mohlamme and Others (70015/11) [2014] ZAGPPHC 46 (28 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
NO: 70015/11
DATE:
28/2/2014
In the matter
between:
PINKY MOHLAMME
PRISCILLA obo
MOLEBOGENG
DOTOTHY MASHEO MOHLAMME
...........................................
1st
APPLICANT
TSHEPO TOMELO
MOHLAMME
.........................................................................
2ND
APPLICANT
LERATO MARTHA
CONSTANCE MOHLAMME
...............................................
3RD
APPLICANT
KEAGILE DANIEL
RICHARD
MOHLAMME
.....................................................
4TH
APPLICANT
MR. GONTSE
MOHLAMME
.................................................................................
5TH
APPLICANT
And
YVONE MATSHIDISO
MOHLAMME
............................................................
1ST
RESPONDENT
LEHLOGONOLO
ELIZABETH
TSOTETSO
.................................................
2ND
RESPONDENT
THE MASTER OF THE
HIGH
COURT
..........................................................
3RD
RESPONDENT
JUDGMENT
KGANYAGO AJ
[1] The applicant’s
brought an application against the respondent for relief as set out
in the notice of motion which reads
as follows:
1.1 Condoning the
applicant’s late filing of this application;
1.2 Rescinding the
default judgement which was granted by the Honourable Judge Ledwaba
AJ in toto;
1.3 That the costs
of this application be paid by any party who opposes this
application;
1.4 Further and
alternative relief.
[2] On the 8th April
2013, the first and second respondents obtained a default judgement
against the applicants. In terms of the
order obtained by the first
and second respondents, the third respondent was directed in terms of
Section 2
(3) of the
Wills Act, 7 of 1953
to accept the last will and
testament of Pule Cecil Mohlamme. The applicants were further ordered
to pay the costs of the application,
alternatively the costs of the
application was to be paid by the estate of PCJ Mohlamme.
[3] The applicants
application for rescission of judgement was brought outside the
prescribed 20 days period as prescribed by Rule
31 (2) (b) of the
Uniform Rules.
[4] The applicants’
condonation application reads as follows:
4.1. I became aware
of the default judgement when I appointed my attorney of record to
pursue this matter after realising my former
attorney were not
assisting at all;
4.2. My attorney of
record then went to court to check and make copies of the court’s
file. My attorney of record then informed
me that there was a default
judgement which was obtained against me and I was surprised because I
thought my former attorney would
have assisted;
4.3. It is submitted
that I was not in wilful default and that I have acted within a
reasonable time in that I have given my attorney
of record
instruction to bring this application;
4.4. It is submitted
that I became aware of the judgment after 20 days has lapsed and
consequently I could not have brought this
application before 20 days
because I was not aware that judgment had been taken against me;
4.5. It is submitted
that condonation of the late filing of this application should be
granted.”
[5] In Melane v
Santam Insurance Co. Ltd 1962 (4) AD at page 532 B – C, the
court said the following:
“In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised
judicially upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually
relevant are the
degree of lateness, the explanation therefore, the prospects of
success and the importance of the case.”
[6] The applicants
in their application for condonation has failed to state when they
became aware of the default judgment. In their
founding affidavit on
the merits, they state that they became aware of the default judgment
on the 15 May 2013. In their replying
affidavit, the applicants state
that they became aware of the default judgment on the 16 April 2013.
It is not clear when the applicants
became aware of the default
judgment.
[7] The affidavit
initiating the application for rescission was deposed by the deponent
on the 06 June 2013. The applicants does
not give an explanation of
what caused the delay from the 16 April 2013 or 15 May 2013 to the 06
June 2013. When arguing of this
application, counsel of the
applicants was making submissions which were not stated in their
founding affidavit. In the cause of
Wightman t/a JW Construction v
Head four (Pty) Ltd and another (66/2007)
[2008] ZASCA 6
at paragraph
13 the court said the following:
“But when he
signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and will only in
exceptional circumstances
be permitted to disavow them. There is thus a serious duty imposed
upon a legal adviser who settles an
answering affidavit to ascertain
and engage with facts which his client disputes and to reflect such
disputes fully and accurately
in the answering affidavit. If that
does not happen it should come as no surprise that the court takes a
robust view of the matter”
[8] The applicants’
application is very scanty. The applicants did not deal with the
degree of lateness. They merely state
that they become aware of the
default judgment when they appointed their new attorneys. They don’t
state when was their new
attorneys appointed. Even on their
application on merits, they gave two different dates of when they
became aware of the default
judgemnt.
[9] The applicants
failed to explain what caused the delay from the date they became
aware of the default judgment.
[10] The applicants
have also failed to deal with the prospects of success in their
application for condonation. Strong prospects
of success tend to
compensate for a long delay. If there are no prospects of success,
there would be no point in granting condonation.
[11] In deciding
whether sufficient cause has been shown, the court has a discretion
which must be exercised judicially taking into
consideration all the
facts presented. In my view, the applicants did not show sufficient
cause warranting the exercise of the
court’s discretion in
condoning the late filing of the application for rescission.
[12] In the result,
I make the following order:
12.1 The applicants’
application for condonation is refused with -costs.
M F KGANYAGO
ACTING JUDGE OF
THE HIGH COURT