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[2014] ZAFSHC 109
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Jansen Van Vuuren v Reinecke (703/2012) [2014] ZAFSHC 109 (24 July 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 703/2012
In
the matter between:-
R
P JANSEN VAN VUUREN
…..................................................................................................
Plaintiff
and
H
C REINECKE
…...................................................................................................................
Defendant
JUDGMENT
BY:
VAN DER MERWE, J
HEARD
ON:
22 MAY 2014
DELIVERED
ON:
24 JULY 2014
INTRODUCTION
[1]
This matter concerns the ambit of rule 31(5)(d), which provides:
“
Any
party dissatisfied with a judgment granted or direction given by the
registrar may, within 20 twenty days after such party has
acquired
knowledge of such judgment or direction, set the matter down for
reconsideration by the court.”
[2]
The combined summons issued by the plaintiff against the defendant
was properly served on the defendant on 22 February 2012.
In
terms of the summons the plaintiff claimed payment of the amount of
R220 122,30 from the defendant. However, on 17
th
February 2012, the North Gauteng High Court, Pretoria had accepted
the voluntary surrender of the estate of the defendant.
As a
result the plaintiff’s action was stayed. The plaintiff
however launched an application for an order setting aside
the
acceptance of the voluntary surrender. This application was
served on the defendant and she gave instructions to an attorney
to
oppose it. The application was successful and an order setting
aside the acceptance of the voluntary surrender was granted
on 27
June 2013. As the defendant did not deliver a notice of
intention to defend the action, the plaintiff applied in terms
of
rule 31(5) for default judgment in terms of the summons. The
default judgment was granted by the registrar of this court
on 26
November 2013. It is undisputed that despite several enquiries
made by her, the defendant was informed only on 26 February
2014 that
the acceptance of the voluntary surrender of her estate been set
aside and that default judgment had been granted in
terms of the
summons.
[3]
Within 20 days thereafter the defendant set the matter down by notice
supported by an affidavit by the defendant. In terms
of the
notice the matter was set down for reconsideration in terms of the
rule 31(5)(d) and the defendant asked for an order that
the default
judgment be set aside, that leave be granted to her to file a plea
within 20 days and that the plaintiff be ordered
to pay the costs of
the reconsideration proceedings. In her affidavit the defendant
relied thereon that it was not legally
competent for the registrar to
grant the default judgment. She did not disclose any defence on
the merits to the plaintiff’s
claims, but made it clear that
she was advised by her legal representatives that it was not
necessary to do so in the circumstances.
Answering and replying
affidavits were subsequently delivered. The main ground of
opposition of the plaintiff is that the
defendant failed to show good
cause for setting aside the default judgment, as she did not disclose
any defence on the merits to
the plaintiff’s claims.
[4]
It is clear that rule 31(5)(d) provides a remedy to a plaintiff who
was unable to obtain judgment from the registrar or who
obtained
judgment for less and what the plaintiff believes should have been
granted. Save in exceptional circumstances, reconsideration
at
the instance of the plaintiff will take place on the same
documentation that served before the registrar. These
proceedings
raise the questions whether rule 31(5)(d) may also be
invoked by a defendant and, if so, whether the reconsideration is
limited
to the documentation placed before the registrar by the
plaintiff in order to obtain default judgment.
[5]
The words “any party” provide strong indication that a
defendant may also make use of rule 31(5)(d). Had the
intention
been to provide the remedy only to a plaintiff, the rule could simply
have said so. In addition, rule 31(2)(a)
provides for default
judgment by a court in respect of claims other than for a debt or
liquidated demand. Rule 31(2)(b) provides
that a defendant may
within 20 days after he or she has knowledge of such judgment apply
to court upon notice to the plaintiff
to set aside that judgment and
the court may, upon good cause shown, set aside the default judgment
on such terms as to it seems
meet. A dissatisfied defendant
will necessarily intend to oppose all or some of the plaintiff’s
claims. The drafters
of rule 31(5) must be taken to have been
aware of a need to also provide in suitable cases for rescission of
default judgment granted
by a registrar. Although such default
judgment could clearly be set aside in terms of the common law
[1]
,
the absence of a provision similar to rule 31(2)(b) in respect of a
default judgment granted by the registrar, does indicate that
it was
intended that rescission of a default judgment may be obtained by a
defendant in terms of rule 31(5)(d).
[6]
Rescission of default judgment in terms of rule 31(5)(d) at the
instance of a defendant will only be granted on good cause shown.
This much is clear from what is stated in
Lazarus
v Nedcor Bank Ltd
;
Lazarus
v Absa Bank Ltd
[2]
and
Pansolutions
Holdings Ltd v P & G General Dealers and Repairers CC
[3]
.
In order to show good cause a defendant will generally have to adduce
evidence. It follows that in my judgment the
defendant may in
terms of rule 31(5)(d) place evidence before the court in order to
obtain the rescission of a judgment granted
by the registrar.
[4]
[7]
I regard it necessary to say something about the nature of the
enquiry in terms of rule 31(5)(d). In
Bloemfontein
Board Nominees Ltd v Benbrook
[5]
,
Hancke J said that a reconsideration of a default judgment granted by
the registrar in terms of rule 31(5) does not mean that
the court
substitutes its discretion for that of the registrar, but that the
court will interfere with a judgment or direction
given by the
registrar only if it is of the opinion that the registrar has erred.
In
Pansolutions
,
Swain J disagreed and stated that the power accorded to the court is
precisely that of substituting its discretion for that of
the
registrar. Consequently it has been said that
Benbrook
and
Pansolutions
are conflicting decisions.
[6]
I
believe, to borrow the phrase from Swain J, that the conflict is more
apparent than real. The statement in
Benbrook
must be seen in proper context. Hancke J dealt with reconsideration
of a default judgment at the behest of the plaintiff on the
same
papers that served before the registrar. The plaintiff
contended that the registrar erred in not granting costs on the
attorney and client scale. The court held that in the
circumstances of the matter the registrar in fact had no discretion
and was obliged in terms of rule 31(5)(e) to make the cost order.
The registrar therefor did not err. In my view the
statement in
Benbrook
was not intended and should not be understood to be applicable to
cases other than reconsideration at the instance of the plaintiff
on
the same papers. In such cases the question is whether the
registrar has erred. When the reconsideration is at the
behest
of the defendant and/or entails evidentiary material that was not
before the registrar, as was the case in
Pansolutions
,
the court must clearly exercise its own discretion and I do not
believe that Hancke J intended to say otherwise.
[8]
In respect of rescission of a default judgment, good cause (or
sufficient cause) generally includes at least both a reasonable
and
acceptable explanation for the default and a
bona
fide
defence on the merits which
prima
facie
carries some prospect of success.
[7]
But the courts have consistently refrained from attempting to frame
an exhaustive definition of what would constitute good or sufficient
cause for such attempt would hamper the exercise of the wide
discretion of the courts. Many and varied factors need to be
considered
and each case must be decided on its own facts and
circumstances.
[8]
[9]
In terms of rule 31(5)(a) a registrar is only competent to grant
default judgment in respect of a debt or liquidated demand.
In
terms rule 31(5)(b) a registrar is for instance also not empowered to
make an order declaring residential property specially
executable.
The principle of legality lays down that no public official may
exercise a power or function beyond that conferred
upon him/her by
law.
[9]
It therefore goes
without saying that it would at least constitute a weighty factor in
favour of the defendant if the registrar
granted default judgment
that was not competent.
[10]
The defendant contends that the majority of the plaintiff’s
claims were not for debts or liquidated demands. I
agree.
According to the particulars of claim the plaintiff and the defendant
entered into two agreements. In terms
of each agreement the
defendant rented a number of motor vehicles from the plaintiff.
The material obligations of the defendant
in terms of the agreements
relied upon were to pay the agreed monthly rental as well as the
annual licence fee in respect of each
motor vehicle and to return the
motor vehicle upon termination of the relevant agreement to the
plaintiff in undamaged and roadworthy
condition, fair wear and tear
excluded. The plaintiff alleged that the defendant breached
both agreements by
inter alia
failing to pay the monthly
rental and annual licence fees in respect of several motor vehicles,
as a result of which the plaintiff
cancelled both agreements on or
about 26 November 2011. The plaintiff alleged that four of the
motor vehicles were returned
in damaged condition. In respect
of each of these motor vehicles the plaintiff claimed damages for
breach of contract on
the basis that the damaged vehicles had to be
repaired and could during the period of repair not be rented to
others. The
plaintiff claimed damages in respect of each
vehicle consisting of the costs of repair and loss of rental income
in respect thereof
as well as an amount representing licence fees.
The amounts claimed for repair costs and loss of income are clearly
unliquidated
and not capable of speeding and prompt determination.
The quantum of these claims depend on evidence of the extent of the
damage to each vehicle and the fair and reasonable costs of repair
thereof as well as the net rental that would probably have been
obtained in the market during the periods concerned. A licence
fees in respect of each vehicle is also claimed as damages
resulting
from breach of contract. Presumably these are claims for wasted
expenses during the periods of repair, but that
is not clear from the
particulars of claim. It is unnecessary to go further into
this. Even if these claims are liquidated
they represent only
the amount of R3 376,60 of the total claims of R220 122,30 and
should not justify the exercise of a discretion
against the
defendant.
[11]
The defendant has provided a reasonable and undisputed explanation
for her default, there is no reason to doubt her
bona fides
and the default judgment granted against her was incompetent.
In the circumstances of this matter, these factors constitute
good
cause for rescission of the default judgment despite the absence of
evidence of a defence on the merits.
[12]
The defendant in essence seeks an indulgence from this court.
The plaintiff’s opposition thereto was not unreasonable
and the
defendant should be ordered to pay the costs of the reconsideration
proceedings, including the costs of opposition thereto.
[13]
In the result the following order is issued:
1.
The default judgment granted by the
registrar of this court on 26 November 2013 in case 703/2012, is set
aside;
2.
The defendant is granted leave to
deliver a plea within 20 days from date of this judgment;
3.
The defendant is ordered to pay the
costs of the reconsideration proceedings, including the costs of
opposition thereof.
_________________________
C.
H. G. VAN DER MERWE, J
On
behalf of plaintiff:
Adv. L. le Roux
Instructed
by:
Bezuidenhouts Inc
BLOEMFONTEIN
On
behalf of defendant: Adv. S.
Grobler
with D. de Kock
Instructed by:
Honey Attorneys
BLOEMFONTEIN
[1]
See
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(AD) at 764J.
[2]
1999 (2) SA 782
(W) at 785.
[3]
2011 (5) SA 608
(KZD) paras [13] – [15].
[4]
This conclusion was accepted, at least by implication, in
Lazarus
and
Pansolutions.
It follows that I respectfully disagree with judgment in
Ramolibe
and Another v Nusun Development (Pty) Ltd and Another
(4882/2011)
[2012] ZAFSHC 102
(24 May 2012).
[5]
1996 (1) SA 631 (O).
[6]
See i.e.
Erasmus,
Superior Court Practice, B1-204D-1.
[7]
See
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 – 477;
Chetty
v Law Society Transvaal
,
supra
at 765B – E.
[8]
See
Cairns'
Executors v Gaarn
1912
AD 181
at 186 (per Innes J) and 189 – 190 (per Solomon J);
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352H – 353A;
Wahl
v Prinswil Beleggings (Edms) Bpk
1984 (1) SA 457
(T);
Chetty
v Law Society Transvaal
,
supra
at 765A;
Colyn
v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) para [11].
[9]
See
Pharmaceutical
Manufacturers Association of SA,
in
re ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at 687.