Tiashi SA (Pty) Ltd v Molemela (A465/2007) [2008] ZAFSHC 142 (30 October 2008)

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[2008] ZAFSHC 142
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Tiashi SA (Pty) Ltd v Molemela (A465/2007) [2008] ZAFSHC 142 (30 October 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A465/2007
In the appeal between:
TIASHI SA (PTY)
LTD
Appellant
and
MPHO GLORIA
MOLEMELA
Respondent
_____________________________________________________
CORAM:
VAN ZYL
et
MOCUMIE JJ
JUDGMENT:
MOCUMIE J
_____________________________________________________
HEARD ON:
15 SEPTEMBER 2008
_____________________________________________________
DELIVERED ON:
30 OCTOBER 2008
_____________________________________________________
APPEAL: RESCISSION OF
JUDGMENT
_____________________________________________________
[1] The
respondent/plaintiff, Mpho Gloria Molemela, instituted action against
the appellant/defendant in the Magistrates’ Court,
Bloemfontein,
for payment of R60 000,00 for general damages she suffered as a
result of a burn-wound sustained due to the alleged
negligence of the
appellant.
[2] The
appellant/defendant is TIANSHI SA (Pty) Ltd, a company registered in
terms of the South African company laws with its principal
place of
business situated at corner Zastron and Kellner streets,
Bloemfontein.
[3] On 23 February 2006
plaintiff, a paraplegic since 1992, attended a leather warm bed
demonstration. The allegations of negligence
made in the particulars
of claim, are the following: The bed purportedly increases blood
circulation or improves blood circulation
in the body or body
tissues. The demonstration was conducted on the defendant’s
premises by its employees acting in the course
and within their scope
of employment. During the presentation plaintiff was made to lie on
her back on the bed mattress for 3 hours.
The defendant’s employees
evidently set the bed at too high a temperature. In addition they
failed to alert plaintiff that whilst
lying on the bed she must move
her body at regular intervals as the circumstances demand. Regard
being had that the plaintiff was
a paraplegic the defendant should
have ensured that one of its employees kept a close watch over her
therapeutic intervention.
[4] Plaintiff claims that
as a result of the defendant’s negligence she sustained an ischemic
burn-wound to her left buttock and
consequently suffered damages set
out in her particulars of claim as follows:
4.1 Pain and suffering: R
30 000, 00
4.2 Disfigurement: R 20
000, 00
4.3 Loss of amenities: R
10 000, 00
[5] Appellant filed a
notice through its attorneys of its intention to defend the action on
24 January 2007. On 23 February 2007
a notice of bar was served on
appellant. On 7 March 2007 advocate Willem Edeling, acting on
instructions of the appellant’s
attorneys, requested a week’s
grace to file a plea. The attorney on behalf of the respondent agreed
to it. During this period
of indulgence no plea was filed nor was
there any further extension requested. On 15 March 2007 appellant
served its plea on the
respondent and filed same with the Registrar
on 16 March 2007.
[6] The plea was
accompanied by a notice of application for upliftment of the bar. The
reasons advanced for the failure to file
the plea timeously were that
Mr Edeling misplaced the brief and was overloaded with work. Mr.
Joubert, the respondent’s attorney,
refused to accept the plea on
the ground that it was out of time and notwithstanding that the
rejected plea was accompanied by
a notice of application to uplift
the bar.
[7] On 20 April 2007 the
application was removed from the roll by virtue of a point in
limine
raised by the respondent that appellant had failed to apply for
extension of the limited time prescribed in Rule 60(5). Appellant
was
ordered to pay the costs of that application. On 4 May 2007
appellant requested Mr Joubert to indicate whether he would oppose

the application for condonation. Mr Joubert did not respond. This
was because, according to Mr Joubert, he already indicated in
a
letter of 23 April 2007 that should the appellant not lodge its
application in terms of rule 60(5) within 5 days, default judgment

would be applied for. The same request was forwarded to him on 4 June
2007 with no success. On this very day respondent brought
an
application for default judgment, which was granted. This is what
gave rise to the application for rescission of the default
judgment.
The application was dismissed with costs on 27 July 2007.
[8] Appellant is now
appealing this order on the following grounds:
“
1. Die Agbare
Verhoorlanddros het verkeerdelik bevind dat die Appellant nie oor ‘n
bona
fide
verweer beskik nie.
2. Die Agbare Hof het gefouteer deur
nie in aanmerking te neem dat die Appellant reeds ‘n verweerskrif
geliasseer het nie.
3. Die Agbare Hof het gefouteer deur
geensins dit in ag te neem dat die Respondent ‘n aansoek om
verstekvonnis geloods het sonder
om kennis, alternatiewelik
behoorlike kennis, aan die Appellant daarvan te gee desnieteenstaande
dat daar reeds ‘n verweerskrif
geliasseer was en reeds ‘n aansoek
geloods was om opheffing van die pleitbelet.
4. Die Agbare Hof gefouteer het deur
geen gewig te verleen alternatiewelik onvoldoende gewig te verleen
aan die feit dat Respondent
nie kon aantoon welke getuienis aangebied
is ten einde die vordering vir algemene skade te fundeer by die
aansoek om verstekvonnis
nie.
5. Die Agbare Hof
gefouteer het deur te bevind dat Mnr. Bruwer, gesien die spesifieke
omstandighede van die saak, nie oor die nodige
locus
standi
beskik het om die aansoek om tersydestelling te bring nie.
6. Die Agbare Hof
fouteer het deur nie in aanmerking te neem dat die Respondent
geensins betwis het dat Mnr.
Bruwer
bevoeg en gemagtig is om die verklaring namens die Appellant af te lê
nie.“
(See
Notice of Appeal, record, page 134 – 136)
Appellant is also seeking
condonation for the late filing of the original court record.
[9] It is convenient in
this matter to dispose first of the issue of condonation and deal
with the merits thereafter. On 16 November
2007 appellant served
respondent’s attorney with a notice of appeal and filed same with
the Clerk of the Court on 19 November
2007. When the appellant
approached the Clerk of the Court to arrange for the record to be
typed, the tapes of the hearing could
not be found. The records were
subsequently traced but at that stage the time limits within which to
file the original record had
prescribed. This application for
condonation is not opposed by the defendant.
[10] Factors which are
usually taken into account when condonation is sought are set out as
follows in
Federated
Employers Fire and General Insurance Co Ltd and Another v McKenzie
1969 (3) SA 360
(A) at 362G:
“
In considering petitions for
condonation …, the factors usually weighed by the Court include 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;…”
[11] Where there are
undisputed prospects of success on appeal a court would usually
incline towards granting condonation. If there
are no such prospects
condonation may be refused. However, where there was flagrant
disregard of the Rules a court is entitled
to refuse condonation and
dismiss an application on that basis only. See
De
Vos v Cooper & Ferreira
1994 (4) SA 1290
(SCA) at 1298.
[12] In this case I am of
the view that the delay was not solely attributable to the negligence
on the part of the appellant and
his lawyers but the court system
played a substantial part when the court file was misplaced. The
respondent did not oppose the
application and the delay was not
inordinate. Condonation is granted; without implying that there are
merits in appellant’s rescission
application.
[13] The procedure to be
followed in the magistrate’s court in an application for rescission
of a judgment is regulated by Rule
49 of the Magistrate’s Court.
Rule 49(1) and (3) read as follows:
“
49(1) A party to proceedings
in which default judgment has been given, or any person affected by
such judgment, may within 20
days after obtaining knowledge of the
judgment serve and file an application to court, on notice to all
parties to the proceedings,
for a rescission or variation of the
judgment and the court may, upon good cause shown or if it is
satisfied that there is good
reason to do so, rescind or vary the
default judgment on such terms as it may deem fit.
(2) …
(3) Where an application for
rescission of 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. ”
[14] An applicant who
claims relief under this Rule should comply with the following
requirements which are succinctly set out in
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(W) at 476-477:
“
(a) He must give a reasonable
explanation of his default. If it appears that his default was wilful
or that it was due to gross
negligence the Court should not come to
his assistance.
(b) His application must be bona
fide and not made with the intention of merely delaying plaintiff's
claim.
(c) He must show that he has a bona
fide defence to plaintiff's claim. 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. (Brown v
Chapman
(1938 TPD 320
at p. 325).)”
[15] It was found by the
Court a quo that the appellant’s application for rescission should
be dismissed on two grounds. First,
that the appellant (through Mr.
Bruwer) did not disclose a
bona
fide
defence in his supporting affidavit. Secondly, that Mr Bruwer did
not have
locus
standi
to have brought the application.
[16] Rule
49 permits that default judgment may be rescinded ‘
if
good cause be shown’
.
In
De
Vos v Cooper & Ferreira
supra
at 1304 the Supreme Court of Appeal had this to say concerning the
phrase “
on
good cause shown”
:
“
'It seems clear that by
introducing the words ''and if good cause be shown'' the regulating
authority was imposing upon the applicant
for rescission the burden
of actually proving, as opposed to merely alleging, good cause for
rescission, such good cause including
but not being limited to the
existence of a substantial defence (cf Du Plessis v Tager
1953 (2) SA
275
(O) at 278). The position under the subrule is thus that if the
defendant fails to show good cause for relief or if the plaintiff

shows that the defendant was in wilful default the magistrate is not
entitled to rescind the judgment; . . . .'
[17] Mr
Bruwer in paragraph 9 of his affidavit (record, page 70) stated the
following which he regarded as a
bona
fide
defence:
“…
die respondent se aksie om
skadevergoeding as gevolg van algemene skade is, derhalwe word daar
geensins geëis vir enige hospitaal-en/of
mediese onkostes wat
werklik gely is nie. Dit word met eerbied aangevoer dat die bedrag
van R60 000,00 in die vorm van algemene
skade vir die tipe wond wat
na bewering opgedoen is, buitensporig hoog is en op die oog af
regtens ongefundeerd voorkom.”
[18] This statement was
not substantiated or supported by any facts and did not deal with the
substance of the claim. It is just
a bare denial. For instance Mr
Bruwer does not state and in fact cannot state from personal
knowledge that the plaintiff did not
attend the appellant’s
premises on the occasion in question and did not sustain the injuries
described in the manner set out
in paragraph 3 (above).
[19] When
this matter was argued before us counsel attempted to indicate that
the appellant had a
bona
fide
defence. He argued with reference to decided cases including
Julie
v Winter
1955 (1) SA C&B 567(C) that indeed respondent’s claim was not
in line with precedents and therefore
“buitensporig
hoog
”.
[20] This
averment was not made in the founding papers nor was the argument
advanced in the court
a
quo
and the
Julie
v Winter
decision is distinguishable from the present matter.
[21] Dr Efraim van der
Walt, a plastic and reconstruction surgeon, stated in his affidavit
that served before court for purposes
of obtaining default judgment
and attached to the papers, page 107-109, that plaintiff consulted
him during 24 February 2006 and
went on to say:
“
Die eiseres
het ‘n derde graadse brandwond opgedoen.
Daar
is dan ‘n area van ongeveer 7x8 sentimeter wat hipgepigmenteerd en
ge-indireer is. Dit kan nodig wees om hierdie litteken
op ‘n later
stadium te hersien en onkostes daaraan verbonde mag min of meer soos
volg wees:
HOSPITALISASIE R 12
000,00
CHIRURGIE R 4 000,00
NARKOSE R 2 000,00
Hierdie kostes is ook die billike
en redelike kostes.
Die litte kenne kan nie totaal
verwyder word nie.
Die eiseres het
derhalwe baie mediese uitgawes gehad ten aansien van die operasies en
sal sy waarskynlik in die toekoms ook mediese
uitgawes hê. Die
verweerderes het vanweë die operasies pyn, lyding en ongerief
verduur.”
Appellant
did not file a replying affidavit or apply in the court below to
amplify its papers by means of a supplementary affidavit.
It was held
in
Hanekom
v Landros, Keetmanshoop
1983(1) SA 911 (SWA) at 915F-G that, while there is no express
provision in Rule 12 that the judgment debtor must file a replying

affidavit, if regard is had to the definition of ‘application’ in
Rule 1, it is clear that the compilers of the Rules intended
that a
replying affidavit may be filed. (
Jones
and Buckle: The Civil Practice of the Magistrates Courts in South
Africa Vol II, The Rules at 49-6A).
In
the absence of a replying affidavit, the aforesaid averments and
contentions made on behalf of the respondent, stand uncontested.
[22] The
appellant’s statement that the amount of R 60 000, 00 is exorbitant
seems to imply that appellant is responsible for
the burn-wound but
is only liable for a reduced amount. Even if regard is had to the
appellant’s plea to plaintiff’s particulars
of claim this cannot
rescue the appellant because the plea is only a bare denial.
Normally
quantum
should
be established by oral evidence but in special circumstances the
court may accept evidence on affidavit. See
Trust
Bank van Afrika Bpk v Krause
1959 (1) SA 574
(O);
Western
Bank Limited v Meyer
1973 (4) SA 697
(T).
(Jones
and Buckle, supra 12-11).
The fact that the respondent was a paraplegic and had indeed suffered
damages as evidenced by Dr van der Walt and the fact that
the matter
was dragged out unnecessarily by appellant clearly dictated that the
magistrate could accept evidence on affidavit.
The amount claimed and
awarded is not out of the ordinary but in line with cases of a
similar nature. See
Nconywa
v Cantor
1983 (3) SA 475
(SE) in which the court made an award of R 74 000,00
for general damages where the plaintiff had sustained burn- wounds
similar
to this matter.
[23] The
unsubstantiated allegations made on behalf of the appellant
pertaining to a purported defence, are patently unfounded.
(See
Du
Plooy v Anwes Motors (Edms) Bpk
1983
(4) SA 212
(O) at 217H) I am consequently satisfied that the trial
court adopted the correct approach in holding that the appellant did
not
disclose a
bona
fide
defence in his affidavit.
[24] In
its heads of argument and in the notice of appeal the appellant
submitted that the respondent had not given notice to it
before
filing an application for default judgment. Appellant conceded that
this point was not raised at the magistrates’ court.
In general a
court of appeal will decide a case on an issue not pleaded in the
court below only if the issue has been fully canvassed
and requires
no further evidence for its decision. A question of law may be
advanced for the first time on appeal if its consideration
involves
no unfairness to the party against whom it is directed. See
Cole
v Government of the Union of SA
1910 AD 263
at 272-273. A second requirement for the raising of a new
point on appeal is that the point must be covered by the pleadings.
(
Cole
v Government of Union of SA
supra
at 272).(
Van
Winsen and others The Civil Practice of the Supreme Court of South
Africa,913
).
[25] In
Donnelly
v Barclays National Bank Ltd
1990(1) SA 375 (W) at 380H-381B
Kriegler
J
(
Weyers
J
concurring) gave the following succinct summary of the principles
applicable on a point sprung on appeal: Generally speaking, a
court
of appeal will not entertain a point not raised in the court below
and especially one not raised in the pleadings in the
court below. In
principle, a court of appeal is disinclined to allow a point to be
raised for the first time before it. It will
generally decline to do
so unless (i) the point is covered by the pleadings;(ii) there would
be no unfairness to the other party;(iii)
the facts are common cause
or wellnigh incontrovertible; and (iv) there is no ground for
thinking that other or further evidence
would have been produced that
could have affected the point. (
Van
Winsen (supra),914)
.
[26] This argument can
therefore not be sustained not only because it was raised before us
for the first time but more fundamental
in terms of Rule 12 when a
litigant is under bar, plaintiff is not required to send any notice
to the defaulting party.
[27]
Although the issue of
locus
standi
was not pertinently raised before the court
a
quo,
the court
mero
motu
addressed it in the same way it was done in
Legal
Expenses Insurance Southern Africa Ltd v Du Randt & Louw Ing
2001 (1) SA 667
(O). In
Legal
Expenses
the statement in issue was
:
“
'Ek is deur
die applikant aangestel as regsverteenwoordiger om hierdie
aangeleentheid namens hom
te bestry
en val die feite hierin vervat as sulks binne my persoonlike kennis
en wete tensy die samehang anders blyk.'”
(
My
emphasis).
However,
the aforesaid averment was made in founding papers filed in support
of an application for rescission of judgment and therefore
the words
“te bestry” was indicative of the attorney’s authority to
represent the applicant in that matter in
defending
the main action and not necessarily or automatically to depose to the
said affidavit on his behalf or to have instituted the application
on
his behalf.
[28] In
this case the averment relied on by the magistrate to come to the
conclusion that appellant did not have
locus
standi
is the following:
“
Die applikant
is Tianshi SA (Edms) Bpk. Ek is bevoeg en gemagtig om
hierdie
verklaring
namens die applikant af te lê….Ek was nog deurgaans die
applikant se prokureur van rekord en dra persoonlike kennis van
al
die feite en omstandighede wat daartoe gelei het dat daar vonnis
teen die applikant geneem is op 4 Junie 2007.”
(
My
emphasis).
This,
in my view, is different from the circumstances of the
Legal
Expenses
matter
in that the averment pertaining to his authority is specifically made
with reference to the application for rescission as
such.
[29] I
am therefore of the view that Mr Bruwer had
locus
standi
to act on behalf of the appellant in the application for rescission
in the magistrates’ court. He was the attorney of record
at the
trial court up to and including this application. He had personal
knowledge of the reasons and circumstances for the default
when
judgment was granted against the appellant and gave a detailed
exposition on how judgment was granted against the appellant.
He did
so in the same way that the appellant would have done it, if not
better. The fact that Mr Bruwer did not have personal
knowledge of
whether or not plaintiff sustained the injury as described and the
extent of that injury does not detract from his
competence to depose
to the affidavit and to have brought the application.
[30] In view of what I
have stated in the above paragraphs 28 and 29, the magistrate’s
ruling in this regard is not correct.
However, considering the
finding made in paragraph 23 above, the trial court was still correct
in dismissing appellant’s application
for rescission of judgment
with costs and the appeal can not succeed.
[31] With regard to the
issue of costs, I am of the view that because the appellant was not
substantively successful with the appeal,
there is no reason why the
costs should not follow the outcome of the appeal.
[32] In the circumstances
I make the following order:
Order:
The appeal is
dismissed with costs.
_________________

B. C. MOCUMIE, J
I concur.
_____________
C. VAN ZYL, J
On behalf of
appellant: Adv. M.D.J. Steenkamp
Instructed by:
M. Bruwer
Hugo & Bruwer
Attorneys
Bloemfontein
On
behalf of respondents: Adv. C. Snyman
Instructed by:
P Joubert
Symington & De Kok
Attorneys
Bloemfontein