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[2012] ZANCHC 7
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Geldenhuys v Minister of Correctional Services (CA&R 30/2011) [2012] ZANCHC 7 (2 March 2012)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
CA & R 30 / 2011
Datum verhoor: / Date
heard:
20 / 02 / 2012
Datum gelewer: / Date
delivered:
02 / 03 / 2012
In
the appeal of:
MARIUS
GELDENHUYS
..............................................
Appellant
and
THE
MINISTER OF CORRECTIONAL SERVICES
........
Respondent
Coram:
Lacock,
J
et
Phatshoane, J
JUDGMENT ON APPEAL
LACOCK, J
[1] The subject of this
appeal is the refusal by the magistrate to grant condonation for the
late filing of an application for condonation
and the rescission of a
default judgment granted against the appellant in favour of the
respondent in the magistrate’s court,
Kimberley. The relevant
common cause factual circumstances that led to the appeal can be
summarized as follows:
On 24 July 2007 the
respondent had a summons issued against the appellant for payment
of a sum of R26,997.70 in respect of damages
allegedly suffered by
reason of the appellant having negligently failed to keep a petrol
card in safe custody. The respondent
averred that the cause of
action arose between 24 and 29 July 2004. At the time the appellant
was in the service of the respondent.
On receipt of the
summons the appellant immediately handed same to his trade union
representative with the request to handle
the matter on his behalf.
On 24 May 2010 the
appellant was advised by the respondent that judgment had been
entered against him in the sum of R39,043.79.
This is the date on
which the appellant obtained knowledge of the judgment.
The appellant
approached the State Attorney on 24 June 2010 with the request to
do the necessary to have the judgment rescinded.
On 23 August 2010
the appellant had again been requested by the respondent to make
arrangements for payment of the judgment
debt. He thereupon again
contacted the State Attorney who only then advised him that, by
reason of a clash of interest, he
can no longer act on his behalf.
On 8 September 2010
the appellant approached his present attorney, and on 16 September
2010 the application for condonation
and rescission was filed.
[2] The magistrate
refused condonation and therefore did not deal with the application
for rescission.
[3] Condonation for the
late filing of the application for rescission was refused on the sole
ground that the appellant “…
het ‘n dagvaarding
gekry, dit by die vakbond gaan indien en vir ongeveer so twee of drie
jaar het hy absoluut niks daaraan
gedoen nie.”
(judgment, p
11, lines 15 to 17). In her Rule 51 reasons, the magistrate again
advanced the same reasons for refusing condonation.
“
After having read the
papers and having heard argument on behalf of both parties, I can
find no satisfactory explanation for the
applicant’s delay in
bringing the application on time.
In July 2007, the applicant acted
on the claim by passing the summons to a union representative. Since
that time until June and
September 2010 the applicant made no effort
to act on the matter and simply left it.
No reasonable explanation is
fully canvassed as to the reason for the delay in bringing a timeous
application for rescission. Only
after receiving a communication
about money that will be deducted from the applicant’s salary
did he make an attempt to consult
an attorney.
I find that the applicant has
recklessly disregarded his obligations namely at the least to enquire
during the period from July
2007 to June 2010 about the developments
in the matter from his union representative or the plaintiff.
”
[4] The magistrate
misdirected herself in this respect. What she had to consider for
purposes of the application for condonation
were the reasons why the
application for rescission was not filed timeously and within the
period of 20 days since the appellant
obtained knowledge of the
judgment, as prescribed under magistrate court rule 49. This she
failed to do.
We are therefore
entitled to consider the application for condonation afresh.
[5] Adv. Khokho on
behalf of the respondent conceded, correctly so in my view, that the
reasons advanced for the late filing of
the application for
rescission do not justify an inference of wilfull disregard of the
rules of the magistrate’s court. What
needs to be considered in
an application for condonation is
“…
the degree of
non-compliance, the explanation therefor, the importance of the case,
the prospects of success, the respondent’s
interest in the
finality of his judgment, the convenience of the Court and the
avoidance of unnecessary delay in the administration
of justice;
”
(
Federated Employers
Insurance Co. v McKenzie
,
1969 (3) SA 360
(AD) at 362G.
5.1 Although the
application for condonation was filed approximately 60 days out of
time, the appellant comprehensively explained
this delay. He
approached the State Attorney for assistance within 3 weeks since the
judgment came to his knowledge. Thereafter,
and within ten days after
being advised that the State Attorney could no longer act on his
behalf, he approached his present attorney
to assist him. His actions
can certainly not be described as unreasonable or inattentive.
5.2 The main action
appears to be more important to the appellant than to the respondent.
The respondent waited for almost 3 years
before summons was issued,
and then for another year before an (unsuccessful) attempt was made
to obtain a judgment by default.
Thereafter application for judgment
was only made a further one year and almost two months down the line.
The appellant from day
one denied his liability for the amount
claimed.
5.3 By reason of the
respondent’s own lethargy to finalise the matter, it cannot be
said that the administration of justice
was unnecessarily or
unreasonably delayed.
5.4 The prospects of
success in having the judgment rescinded favours the appellant as
alluded to hereunder.
[6] By reason of the
aforesaid the appeal against the refusal of condonation has to
succeed.
[7] Counsel for both
parties were
ad idem
that, should the appeal on condonation
succeed, no purpose will be served to remit the matter to the
magistrate to consider the
application for rescission since this
court has before it all evidence pertaining to that application. I
agree.
[8] To succeed in an
application for rescission of judgment, an applicant needs to “show
good cause” (see Magistrates
Court rule 49(1)). No exhaustive
definition of the phrase “good cause” had been laid down
by the courts, but what is
generally expected from an applicant are
(a) a reasonable explanation of his default, (b) that his application
is made
bona fide
, and (c) that he has a
bona fide
defence to the plaintiff’s claim which
prima facie
has
some prospects of success.
(
Colyn v Tiger Food
Industries Ltd v Meadow Feed Mills (Cape)
,
2003 (6) SA 1
(SCA) at
9E).
[9] Although the
appellant may be criticized for not having made enquiries after he
handed the summons to his trade union representative,
there is
nothing in the papers indicative of an apprehension that the trade
union would not have acted in the interests of the
appellant. Trade
unions are supposed to assist their members, and I do not find the
appellant’s reliance on that assistance
unreasonable. Once it
came to his knowledge that judgment had been entered against him, he
did act promptly to have the judgment
rescinded.
[10] It was not
suggested that the application was made
mala fide
. Such a
suggestion would have been without merit.
[11] In his founding
affidavit the appellant fully disclosed his defence to the action. He
explained that, whilst the relevant petrol
card was lawfully in his
possession, it was stolen from him. He immediately, on discovering
the theft, reported same to his seniors,
and denied having committed
a breach of standard rules or procedures. He further explained that
the unauthorized use of the card
occurred after the date on which the
theft of the card was reported to his seniors. This, so he contended,
could have been avoided
had his seniors acted with the necessary
diligence and care to cancel the card. Therefore, so the appellant
averred, the damages
suffered as a result of the unauthorized use of
the stolen petrol card, cannot be ascribed to any negligence on his
part.
These averments, if
proved, would constitute not only a
bona fide
defence to the
respondent’s claim, but also a
prima facie
successful
one.
[12] For these reasons,
the judgment should be rescinded.
WHEREFORE THE
FOLLOWING ORDER IS MADE:
1. THE APPEAL
SUCCEEDS WITH COSTS.
2. THE ORDER OF THE
COURT A QUO IS SET ASIDE AND IS SUBSTITUTED FOR THE FOLLOWING ORDER:
2.1 CONDONATION FOR
THE LATE FILING OF THE APPLICATION FOR THE RESCISSION OF THE JUDGMENT
UNDER CASE NUMBER 6718/2007 IS HEREBY
GRANTED.
2.2 THE JUDGMENT
GRANTED BY DEFAULT IN CASE NUMBER 6718/2007 IS HEREBY RESCINDED AND
SET ASIDE.
2.3 THE COSTS OF THE
APPLICATION SHALL BE COSTS IN THE CAUSE.
_________________
HJ LACOCK
JUDGE
I
agree.
___________________
VM
PHATSHOANE
JUDGE
For
the Appellant:
Adv. S.L. Erasmus o.i.o Duncan & Rothman
For
the Respondent:
Adv. Khokho o.i.o The State Attorney