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[2012] ZAKZPHC 9
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Jacobs and Another v Upward Spiral 1196 CC (AR 539/09) [2012] ZAKZPHC 9 (27 February 2012)
IN THE KWAZULU-NATAL, HIGH COURT
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Appeal Case No: AR 539/09
In the matter between:
DANIEL RULOFF JACOBS
…....................................................
FIRST
APPELLANT
DINA ELIZABETH JACOBS
…...............................................
SECOND
APPELLANT
and
UPWARD SPIRAL 1196 CC
…...........................................................
RESPONDENT
JUDGMENT
Delivered on
MNGUNI J
[1] This is an appeal against a
judgment granted in favour of the respondent cancelling the lease
agreement between itself and the
appellants. The appellants were
married to each other and rented a dwelling of the respondent
situated on the remainder of Erf
151, Shelly Beach, Port Shepstone.
In September 2007 the respondent issued summons against the
appellants in the Port Shepstone
Magistrate’s Court seeking an
order cancelling the lease agreement between the appellants and
itself in respect of the said
dwelling. For ease of reference, I
shall refer to the parties to this appeal by their respective
designations in the court
a quo
.
[2] The material averments in the
particulars of claim provide:
“
4.
The First and Second
Defendants are married to each other, and are joint tenants of a
dwelling on the Remainder of Erf 151, Shelly
Beach.
5.
There is also a further
person occupying a separate dwelling on the said premises, with the
consent of the Plaintiff,
6.
On or about the first
week of September 2007, the First Defendant damaged the property of
the Plaintiff, being the bathroom of the
dwelling which is occupied
by the other person referred to above, in that the First Defendant
demolished the bathroom to the extent
that it could not be used by
the said occupier.
7.
The First Defendant has
therefore failed to use the premises in such a way that he does not
interfere materially with the ordinary
use and enjoyment of the
premises occupied by other persons.
8.
The aforementioned
conduct of the First Defendant is a breach of a contract of a
material nature, and as such, the Plaintiff is
entitled to cancel the
agreement.
9.
Since the First and
Second Defendant (sic) are married, and are joint tenants,
cancellation of the agreement will (sic) effect both
the First and
Second Defendant (sic).”
[3] On 18 October 2007 the defendants
entered an appearance to defend the action. Because the
dies
for the filing of the defendants plea had expired without them filing
the same, the plaintiff, on 16 November 2007, delivered a
notice in
terms of Rule 12(1)(b)(i) of the Magistrates’ Courts Rules of
Court (Rules of Court) calling upon the defendants
to deliver their
plea within five (5) days of the delivery of the said notice, failing
which the plaintiff intimated that it would
lodge with the clerk of
the court a written request for judgment in the same manner as when
the defendants have failed to enter
appearance to defend.
[4] On 26 November 2007 the defendants
filed their plea to the plaintiff’s particulars of claim and
pleaded as follows to
paragraph 6 thereof:
“
Save
to admit that the First Defendant damaged a dilapidated structure
which was used as a toilet and which was emitting an unbearable
stench which the Plaintiff despite requests had failed and neglected
to remove or renovate, the contents of the paragraph are denied
and
Plaintiff is put to the proof thereof.”
[5] The defendants’ plea
galvanised the plaintiff into raising an exception on same averring
that the same was a bare denial
and did not disclose any defence to
its action. The exception was argued before Magistrate Munillal who
on 12 December 2007 ruled
as follows:
“
The
court after a careful and thorough consideration of the papers and
the vive (sic) voce arguments has decided to uphold the exception
provisionally pending the filing of the original deed of lease. The
recipients (sic) are ordered to pay the costs of the exception
which
costs are to include the costs of preparation.”
[6] On 28 February 2008 Stephanus
Esaias Terblanche, in his capacity as a member of the plaintiff,
filed an affidavit setting out
the reason why the original lease
agreement could not be filed. On the same day of the filing of his
affidavit, Magistrate Munillal
confirmed his ruling with costs.
[7] On 7 March 2008 the defendants’
legal representative filed a notice in terms of Rule 51(1) of the
Rules of Court with
the clerk of the court to which Magistrate
Munillal replied on 12 March 2008. The defendants thereafter did not
pursue the matter
and the plaintiff applied for default judgment
against them. On 29 April 2008, the court
a quo
granted the
default judgment cancelling the lease agreement between the parties
and directed that the costs were to be taxed. On
29 May 2008, the
defendants filed a notice notifying the plaintiff that they intended
to amend their plea dated 9 November 2007.
The said notice of
intention to amend was filed after the default judgment in favour of
the plaintiff had already been granted
in the matter.
[8] Faced with that reality, the
defendants brought an application in terms of Rule 49 of the Rules of
Court accompanied by an application
for condonation seeking an order
to rescind the judgment granted in favour of the plaintiff on 29
April 2008. The plaintiff opposed
the applications and on 2 September
2008 the matter came before the Magistrate Maharaj who dismissed both
applications with costs.
On 5 September 2008 the plaintiff filed a
request for reasons for judgment in terms of Rule 51(1) of the Rules
of Court and Magistrate
Maharaj furnished her reply on 18 September
2008.
[9] The matter was then in limbo until
15 December 2008 when the defendants noted an appeal against the
judgment of Magistrate Maharaj
dismissing the applications for
condonation and the rescission of the default judgment granted in
favour of the plaintiff on the
following grounds:
“
1.
The Judgment is against
the evidence and the weight of the evidence.
2.
The learned Magistrate
erred in not granting the Application for Condonation for the
Rescission Application and the learned Magistrate
further erred in
not finding that there was merit in the Defendants’ defence and
that the Defendants’ had a bona fide
defence in law.
3.
The learned Magistrate
erred in not taking into account that the delay in bringing the
Application for Rescission and the Application
to amend the
Defendants’ Plea was not due to the Defendants’ actions
but was due to the delays by the Defendants’
Attorney and in
the circumstances the Defendants’ cannot be blamed for the
delays on the part of the attorney.
4.
The learned Magistrate
erred in not finding that the Defendants’ had a good defence in
law. The learned Magistrate erred in
not taking into account the
Defendants’ amended plea which was served on the Plaintiff’s
Attorney on the 23 May 2008
and which was filed at Court on the 29
May 2008 prior to the Defendants’ becoming aware of the Default
Judgment being obtained
in the matter. This amended plea fully set
out the Defendants’ defence which is a good defence in law.”
[10] It would appear from the
plaintiff’s heads of argument and in the address before us by
Mr
Crampton
for the plaintiff, that on 11 December 2009 the
defendants served an amended notice of appeal dated 3 December 2009
on the plaintiff.
The record of the proceedings in our possession
does not contain such amended notice of appeal.
[11] On 15 December 2009 the
defendants filed a second amended notice of appeal in terms of which
they intimated that they intended
to appeal not only against the
judgment granted on 18 September 2008 but also against the ruling of
Magistrate Munillal delivered
on 28 February 2008 upholding the
exception with costs and the default judgment he granted against the
defendants on 29 April 2008.
The first and second amended notices did
not comply with Rule 55A of the Rules of Court. In each of the
purported amended notices
of appeal no application was made for the
desired amendment.
[12] In so far as the second amended
notice of appeal is concerned, it is to be observed that the
exception brought by the plaintiff
was predicated on the ground that
the defendants’ plea was a bare denial of liability and did not
disclose any defence to
the plaintiff’s action. That a decision
upholding such an exception is not appealable has been
authoritatively pronounced
in
Trope & others v South African
Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A). Importantly, the defendants
pursuant to the ruling upholding the exception, attempted to amend
their plea which in my view,
was a clear indication that they elected
to abide the decision of the court
a quo
.
[13] It is common cause that the
defendants brought an application to rescind the default judgment
entered against them on 29 April
2008 which was subsequently
dismissed with costs on 2 September 2008. The judgment of 2 September
2008 dismissing the application
for the rescission of the default
judgment is the subject matter of the notice of appeal dated 15
December 2008 and therefore,
to deal with it separately would be
superfluous. It therefore follows that the appeal falls to be decided
on the basis of the notice
of appeal dated 15 December 2008.
[14] The first issue which arises is
whether the court
a quo
had jurisdiction to grant the order
for cancellation of the lease agreement. Mr
Seedat
, for the
defendants, contended that the order sought by the plaintiff is a
claim for specific performance and that the plaintiff
did not seek an
alternative prayer for damages. He submitted that the court
a quo
did not have jurisdiction to hear the matter in the first place as it
was irregular
ab
initio
. Not so, contended Mr
Crampton
.
He argued that the order sought and granted in favour of the
plaintiff is the very opposite of a claim for specific performance.
There is, in my view, considerable substance in Mr
Crampton’s
submission. It seems to me that the cancellation of the agreement is
an election which the aggrieved party makes to either insist
on
performance as set out in the agreement or to cause the agreement to
terminate. Watermeyer AJ in
Segal v Mazzur
1920 CPD 634
at 644
made the following observation:
“
Now,
when an event occurs which entitles one party to a contract to refuse
to carry out his part of the contract, that party has
the choice of
two courses. He can either elect to take advantage of the event or he
can elect not to do so”
.
Ordinarily an order of cancellation
nullifies the duty to perform in terms of the contract and any
resultant loss is usually dealt
with by way of a claim for damages.
Essentially, cancellation deprives the party of the option to claim
specific performance. The
court
a quo
had by virtue of S
29(1)(g) of the Magistrates Court Act 32 of 1944 a general
jurisdiction in respect of actions where the value
of the subject of
the dispute is within the jurisdictional limit prescribed in the
Government Gazette. I am unable to find any
substance in Mr
Seedat’s
contention on this issue and it is therefore unsustainable.
[15] The second issue raised by Mr
Seedat
was that because a request for default judgment filed
by the plaintiff on 21 April 2008 contained a typographical error in
that
it read that ‘the plea was upheld whereas it ought to have
been stated that the exception was upheld,’ the court
a
quo
ought not to have entered default judgment against the
defendants. I do not share the same sentiments as those expressed by
Mr
Seedat
on the issue. I am in agreement with Mr
Crampton’s
observation that the proper reading of the request by any lawyer
would have enabled him to discern the real intention of the request.
The error, therefore, does not constitute a material defect in the
request. The third issue raised by Mr
Seedat
was that when
Magistrate Munillal granted the ruling upholding the exception to the
defendants plea on 28 February 2008, he did
not specify the time
period within which the defendants were required to file their
amended plea. Generally when an exception is
upheld, the unsuccessful
party is granted leave to deliver an amended pleading within a stated
period of time.
In
casu,
the Magistrate did not do so
and he also did not refuse such leave nor did he grant judgment in
the action when upholding the exception.
[16] Mr
Crampton
argued,
correctly in my view, that until 29 April 2008, when the default
judgment was granted, it was open to the defendants to
apply or even
to give notice of their intention to amend their plea and the failure
by the defendants to take any timeous steps
to remedy the situation
entitled the plaintiff to apply to court for judgment. He continued
and argued that the appropriate and
obligatory time for the
defendants to have made such an application or to give such notice,
was once the ruling was granted upholding
the exception.
[17] On a perusal and consideration of
the record, it is revealed that the defendants ought to have taken
steps to amend their plea
on 12 December 2007, when the exception was
upheld, or within a reasonable time thereafter. It is to be observed
that by 29 April
2008, more than four months had passed since the
date that the exception was upheld and more than a month had passed
since the
court
a
quo
had supplied reasons for its
ruling in terms of Rule 51(8). On a consideration of all of these
circumstances, I am driven to conclude
that the only plausible
inference is that until 29 April 2008 the defendants did not intend
to amend their plea and it was competent
for the Court
a
quo
to enter default judgment against the defendants on that date.
[18] The final issue raised was by Mr
Seedat
was
that the court
a quo
erred in refusing the rescission of
the default judgment granted against the defendants. It is common
cause that it was open to
the defendants to apply for the rescission
of the default judgment granted against them provided that sufficient
cause had been
shown. Miller,
JA
defined the term ‘sufficient
cause’
in
Chetty v Law Society,
Transvaal
1985 (2) SA 756
(A) at 765 A-C
”
The
term “sufficient cause” (or “good cause”)
defies precise or comprehensive definition, for many and various
factors require to be considered ….But it is clear that in
principle and in the long standing practice of our Courts two
essential elements of “sufficient cause” for rescission
of a judgment by default are:
(i) that the party
seeking relief must present a reasonable and acceptable explanation
for his default; and
(ii) that on the merits
such party has a
bona fide
defence
which,
prima facie
,
carries some prospect of success
”.
Fannin J in
Kajee & others v G
&
G Investment and Finance Corporation (Pty) Ltd
1962
(1) SA 575
(D) at 577 E-G refined the principle as follows:
“
It
seems to me that what is required in a case such as this is that the
applicant must explain his default. He cannot simply claim
the
Court’s indulgence without giving an explanation. The
explanation must be reasonable in the sense that that phrase was
used
in
Naidoo’s
case and
Grant’s
case,
supra
,
namely that it must not show that his default was wilful or was due
to gross negligence on his part. If explanation passes that
test,
then the Court will consider all the circumstances of the case,
including the explanation, and will then decide whether it
is a
proper case for the grant of indulgence.”
[19] The defendants explained their
default in paragraphs 4 and 5 of the first defendant’s
affidavit in support of the application
for rescission as follows:
“
4.
On the 11
th
December 2007 the application for exception was heard and the
Magistrate reserved his judgment. In his ruling dated 12
th
December 2007 the exception was provisionally upheld pending the
filing of the original deed of lease. The Magistrate finally upheld
the exception in his ruling dated 28
th
February 2008 in
which he made reference to an affidavit pertaining to the original
deed of lease having been filed on the 28
th
February 2008.
No copy of the said affidavit was delivered on my attorneys. I was
informed by my attorney that she was going to
request reasons for the
magistrate’s decision. On the 7
th
March 2008 my
attorney filed a Request for reasons for Judgment. The Magistrate’s
reasons dated 12
th
March 2008 were received.”
5.
No directions were
received from the presiding officer as to what should be then happen
in as far as the pleadings were concerned
after the exception was
upheld.”
[20] The court
a
quo
considered and concluded as follows regarding the defendants’
explanation:
“
The
reasons are set out in paragraph 7 of the supporting affidavit. The
applicants state that they were traumatized and that first
defendant
did not attend to the matter within the stipulated period as “I
have been trying to spend as much time as possible
with my wife while
at the same time do a few piece jobs in order to bring in a little
income for our survival. I have not had the
opportunity to meet with
my attorney and when I did manage to go to her office, I did not find
her there”. This had become
a matter of urgency but was not
treated as such by either the applicants or their attorney. If they
were traumatized this would
have been a priority and nothing would
have been more important than having the judgment rescinded. It is so
that the Court must
look at the facts submitted by the applicants and
the facts gleaned from the circumstances to see whether a
satisfactory explanation
is given. Clearly, in this instance, the
reasons are far from satisfactory and are not satisfactory in terms
of the rules. The
applicants should have set out in detail why it was
that they were unable to meet their attorney, how many times that
they had
gone to see her, whether they had left messages, etc.”
[21] I am unable to fault the
reasoning and conclusion reached by the court
a quo
and can
find no misdirection on the issue. It is so that even if one takes a
benign view, the inadequacy of this explanation alone
may well have
justified a refusal of rescission, unless, perhaps, the weak
explanation is cancelled out by the defendants being
able to put up a
bona
fide
defence which has not merely some prospect,
but a good prospect of success (see
Melane v Santam Insurance Co.
Ltd
1962 (4) SA 531
(A) at 532 C-F). It was therefore apposite
for the court
a quo
to determine whether the defendants’
explanation for being in default when finely balanced with the
circumstances of their
proposed defence carried a reasonable or good
prospects of success on the merits which might have tipped the scale
in their favour
in the application for rescission. Brink J
in
Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(0) at 476 – 7
formulated the requirement as follows:
“
It
is sufficient if he makes out a
prima
facie
defence in the sense of setting out averments which, if established
at the trial, would entitle him to the relief asked for. He
need not
deal fully with the merits of the case and produce evidence that the
probabilities are actually in his favour.”
In
Colyn v Tiger Food Industries
Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) para 11
Jones AJA added the following:
“
.….With
that as the underlying approach the Courts generally expect an
applicant to show good cause ……(c) by
showing that he
has a
bona
fide
defence
to the plaintiff’s claim which
prima
facie
has
some prospect of success.”
[22] It therefore follows that the
prospects of success of the defendants defence ought to have been
measured against the above
exposition of the law. The defendants’
defence is set out in paragraph 9 of the first defendant’s
affidavit as follows:
“
I
believe that I have a bona fide defence in this matter. In the
Plaintiff’s Particulars of Claim it avers that there was
a
breach of contract of a material nature. However there no averments
are made about the contract itself and who were the parties
to it.
Further there was no lease agreement between my wife and I on the one
hand and the Plaintiff on the other. Further even
if the court were
to find that there was a breach on my part I will argue that the
breach was not of such a nature that it constituted
a material which
would warrant the cancellation of the lease.”
The court
a
quo
reasoned
and concluded on the proposed defendants defence as follows at pages
2-3:
“
In
paragraph 6 of the supporting affidavit, the applicants indicate that
their attorney was waiting for directions from the presiding
officer
after he upheld the exception. That these were not forthcoming but
that she nevertheless applied for an amendment to the
plea. What he
fails to set out is that the exception was upheld on 28.02.2008 and
that she attempted to file the notice of amendment
to the plea some
three months later. This is not an excuse and only reflects the
tardiness of the attorney. The onus was on her
to acquaint herself
with the rules and to ascertain what steps she had to take. No leave
to amend was granted and she therefore
had to make an application in
terms of Rule 19 (19). She could have established this by approaching
the presiding officer, by reading
the rules, by approaching her
colleagues, etc. She, however, did nothing.
A request for reasons was
filed on 07.03.2008 and although the reasons wee handed down on
12.03.2008, the matter was not taken further.
Applicants and their
attorney state that approximately three months after the exception
was upheld, when the attorney attempted
to file a notice to amend the
plea, that it came to their notice that default judgment had been
applied for and had been granted
on 29.04.2008.
In keeping with the lax
attitude shown throughout the proceedings, the attorney once again
waited some two months before she filed
the application for
rescission of judgment. She was blatantly out of time and obviously
had to file an application for condonation.
This application had to
set out substantial and satisfactory reasons for the delay.”
[23] The defendants’ plea
contains an admission that the first defendant damaged the
plaintiff’s bathroom. It was fair
and reasonable for the court
a
quo
to note that this tends to establish that the
defendants committed the breach in question which entitled the
plaintiff to cancel
the lease agreement between the parties. The
following observation of the court
a quo
at page 4 is
pertinent in this regard:
“
In
casu, the first applicant admitted that he damaged the bathroom. This
went to the root of the lease agreement. The Court was
of the view
that the defence raised was not justifiable or a bona fide defence
and concluded that they did not have a prospect
of success on the
merits.”
[24] In my view, it was fair and
reasonable for the Magistrate to conclude that the case for
rescission was not strong and that,
for the defendants to deserve
condonation for the late filing of the rescission application, they
had to set out substantial and
satisfactory reasons for the delay. In
this regard, the delay between 29 April 2008, when defendants became
aware of the default
judgment to 4 August 2008, when the founding
affidavits were signed, is hardly explained.
[25] I am satisfied that the court
a
quo’s
decision to refuse the condonation and rescission
applications was anchored on the second foundation. It is trite that
when a magistrate
grants or refuses condonation and/or grants an
application for rescission he or she exercises a judicial discretion.
A court of
appeal can only interfere with the exercise of such
discretion in circumstances where the magistrate committed a
misdirection or
where he made a decision that would not have been
made by a reasonable decision maker. This is not such a case.
In the result, I propose that the
appeal be dismissed with costs.
____________________
MNGUNI J,
I agree, it is so ordered
_____________________
KOEN J
Date of Hearing : 26 February 2010
Date of Judgment : 27 February 2012
Counsel for the Applicants : Advocate
A. S. Seedat
Instructed by : Shaheen Seedat &
Company
Counsel for the Respondent : Advocate
D. Crampton
Instructed by : Barry, Botha &
Breytenbach Inc.