Hoffman v Farmer (CA&R 91/05) [2007] ZANCHC 36 (25 May 2007)

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[2007] ZANCHC 36
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Hoffman v Farmer (CA&R 91/05) [2007] ZANCHC 36 (25 May 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA&R 91/05
Heard:
16/04/07
Delivered:
25/05/07
WERNER
HOFFMAN APPELLANT
versus
D.J.P.
FARMER RESPONDENT
Coram
:
KGOMO JP
et
MOKGOHLOA
AJ
JUDGMENT
ON APPEAL
MOKGOHLOA AJ:
1.
There
are two matters before us relating to the same parties. In the first
matter Case No: 2303/03 the appeal is against the
Magistrate
’
s
refusal to
rescind
default judgments granted against the appellant by the Clerk of the
Court Namakwaland on 31 October 2003 and by the Magistrate
Namakwaland, on 10 March 2004. The second matter Case No: 651/04
is an appeal against the default judgment granted
on 2 June 2004.
The plaintiff/respondent (
“
plaintiff”)
issued Summons against the
defendant/appellant
(
“
defendant”)
on 22 September
2003
for payment of arrear rentals in the amount of R15 000.00 with costs.
The defendant
’
s
attorney, Mr van Sittert, states in his affidavit that the defendant
entered appearance to defend
by
signing the back page of the Summons.  This he did through the
assistance of an Office Manager at Port Nolloth Magistrate
’
s
Court.
The
notice of intention to defend was faxed by the defendant to the
plaintiff
’
s
attorneys
and allegedly also to the Magistrate
’
s
Court Springbok.
The
plaintiff
’
s
attorneys
did receive the notice and placed the defendant under bar for
delivery of his plea.  On 24 October 2003 the defendant
apparently faxed his plea to the Magistrate
’
s
Court Springbok.
On
31 October 2003 default judgment was granted against the defendant
and a Warrant of Execution was authorised.
2.
The
Warrant of Execution was served on the defendant on 18 November
2003.  He then engaged the services of an attorney to assist
him.  There were attempts to settle this matter which failed.
The plaintiff therefore enrolled the matter for trial on
10 March
2004.  On this day the defendant failed to appear in court and
judgment by default was granted against him.
3.
The
plaintiff issued another Summons under case number 651/04 against the
defendant for payment of the amount of R17 500.00 plus costs. It
was a different cause of action. Judgment by default was granted
against the defendant on 2 June 2004 in this matter.
4.
On
30 July 2004 the defendant made an application for rescission of the
default judgments granted on 31 October 2003, 10 March 2004
and 2
June 2004, which application was refused on 17 November 2004.
The Magistrate furnished his reasons for refusal on 26
November
2004.  On 28 December 2004 the defendant served his notice of
appeal. He only applied for a date of trial on 27 September
2005.
The defendant furnished security for costs as provided for by Rule
51(4) of the Magistrates Court Rules belatedly on
1 April 2005 in the
amount of R1000-00.
5.      The
appellant’s grounds of appeal are as follows:
“
a)
Dat die Agbare Landdros verkeerdelik bevind het dat die verstekvonnis
wat toegestaan was deur die Klerk
van die Hof op die 31ste Oktober
2003 nie nietig ab origine was nie.
b)     Dat
die Agbare Landdros in bovermelde verband regtens gedwaal het deur:
Eerstens,
nie te bevind dat die Klerk van die Hof, op die stadium toe die
respondent aansoek gedoen het om bevermelde vonnis by verstek nadat
die respondent ‘n artikel 12(1)(b) kennisgewing aan die appèllant
en die Klerk van die Hof afgelewer het en nadat gemelde kennisgewing
reeds op die Hof se leêr geliaseer was, bedag daarop moes gewees het
dat die appèllant van voorneme is om die respondent se eis
teenstaan, en/of
Tweedens,
nie te bevind dat daar met inagneming van die voorbehoudsbepaling in
Reël 12(2)(a)(i) en (iv) voldoende rede was vir die Klerk van
die
Hof om by die prokureur van die respondent (eiser) navraag te doen
oor die waarskynlikheid van ‘n voorneme van die appèllant
(verweerder) om die respondent se eis te verdedig, en/of
Derdens,
nie
te bevind dat artikel 12(2)(a) gebiedend is, dat in bovermelde
verband ‘n positiewe plig op die Klerk van die Hof plaas en dat
die
nakoming van die prosedure daarin voorgeskryf,  in omstandighede
van hierdie saak, ‘n voorwaarde was vir die toestaan
van ‘n
vonnis by verstek deur die Klerk van die Hof, en dus
Vierdens,
nie te bevind dat die Klerk nie gemagtig was om die respondent se
versoek om ‘n vonnis by verstek teen die appèllant toe te staan
alvorens die respondent die appèllant versoek het om ‘n behoorlike
betekende kennisgewing van voorneme om te verdedig binne 5
dae na
ontvangs van sodanige kennisgewing af te lewer en die appèllant
daarmee in verstek was.
c)
Dat die Agbare Landdros  verkeerdelik bevind het dat die Klerk
van die Hof gemagtig en bevoeg was
om vonnis by verstek toe te staan
op die 31ste Oktober 2003 omdat die respondent nie ‘n verweerskrif
afgelewer het nie.
d)
Dat die Agbare Landdros in bovermelde verband regtens gedwaal het
deur:
Eerstens
,
nie
te bevind dat die kennisgewing in gevolge artikel 12(1)(b) wat die
respondent op die appèllant bestel het  voortydig was
en dus
nietig is, en/of
Tweedens,
nie te bevind dat die aansoek om vonnis by verstek wat die respondent
op die 28 Oktober 2003 opgestel, getik en geteken het en wat
op die
31ste Oktober 2003 deur die Klerk van die Hof toegestaan is voortydig
was en dus nietig is.
e)     Dat
die Agbare Landdros verkeerdelik bevind het dat die aflos
landdros die vonnis by verstek
wat die Klerk van die Hof op die 31ste
Oktober 2003 toegestaan het bekragtig het.
f)
Dat die Agbare Landdros  verkeerdelik bevind het dat al die eise
soos uiteengesig in die
respondent se dagvaarding eise vir
gelikwideerde bedrae is.
g)    Dat
die Agbare Landdros korrek bevind het dat hy op die 10de Maart 2004
foutiewelik ‘n tweede vonnis in
die bovermelde saak toegestaan het
en dat die vonnis wat hy al dus toegestaan het ongeldig  en
sonder regskrag is.  Die
Agbare Landdros moes dus ook hierdie
vonnis tersyde gestel het met ‘n bevel vir koste soos gevra deur
die appellant.
”
6.       Rule
51 (4) of the Magistrates Court Rules provides as follows:
“
An
appeal shall be noted by the delivery of notice, and, unless the
court of appeal shall otherwise order, by giving security for
the
respondent's costs of appeal to the amount of R 1000: Provided that
no security shall be required from the State or, unless the
court of
appeal orders, from a person to whom legal aid is rendered by a
statutory established legal aid board
.”
7.
Mr Pieterse, for the Appellant, made
an application from the bar and
at the eleventh hour that both applications for appeal be heard as
one and that the security already
furnished in respect of the one
application, though late, be regarded as sufficient for both appeals.
He also requested hat condonation
be granted for the late payment of
the said security.  He contended in the alternative that it was
not necessary for the appellant
to furnish security for costs as
the appellant
’
s
properties that were attached have already
been sold.
8
.
Rule 11 of the Uniform Rules of Court provide as follows:
“
Where
separate actions have been instituted and it appears to the court
convenient to do so, it may upon the application of any party
thereto
and
after
notice
to all interested parties, make an order consolidating such actions,
whereupon -
(a)
the said actions shall proceed as one action
”
(My
underlining)
9
.
This rule makes it clear that the actions may be
consolidated upon the application of any party thereto and after
notice to other parties.  The appellant did not give notice to
any interested party. It is also clear that the appellant's belated
application in court to consolidate the two appeals is made with the
intention to induce the court to accept that the security for
costs
furnished in one appeal should be regarded as sufficient for the
consolidated appeal. Advocate van Niekerk, SC, for the
Respondent has
objected to this ad hoc application by the appellant and contends
that respondent would suffer serious prejudice.
See
Deosook
& Another v South African Railways And Harbours
1961 (1) SA 402
(NPD)
.
10.
Having
regard to the aforesaid I do not think that it is convenient and
appropriate to order consolidation at this late stage. The
respondent has taken a
point
in limine
that
the appellant failed to furnish security for costs timeously
as provided for by Rule 51(4)  of the Magistrate's
Court
Rules. The rule only exempts the State or an indigent appellant who
is assisted by the Legal Aid Board.
11.
The
appellant argued that he could not furnish security timeously as he
had no funds. He refers to his bank statement as at 10 December
2004
which reflects a debit balance of R17 638.08. What his financial
position was on 28 December 2004 when he filed his notice of
appeal
is not known. The appellant did not state whether he is employed or
not. Instead he argued in the alternative that it was
not necessary
for him to furnish security as the attached properties were already
sold in execution. According to the record
the judgment debt amounted
to R15 160.00. The respondent recovered R10 716.00 from the sale in
execution of the appellant
’
s
goods.
The
respondent did not over recover from the sale in execution.
12.
The
appellant further made an application for condonation for the late
prosecution of the appeal or appeals. Rule 51(9) of the Magistrate
Court Rules provides as follows:
“
The
party noting an appeal or a cross appeal shall prosecute the same
within such time as may be prescribed by rule of the court of
appeal
and, in default of such prosecution, the appeal or cross - appeal
shall be deemed to have lapsed, unless the court of appeal
shall see
fit to make an order to the contrary.
”
13.
Rule
50 of the Uniform Rules of Court provides as follows:
“
(1)
An appeal to the court against the decision of a
magistrate
in a civil matter shall be prosecuted within 60 days after the notice
of such appeal, and unless so prosecuted it shall
be deemed  to
have lapsed.
(4)
(a) The appellant shall, within 40 days of noting the appeal, apply
to the registrar in writing and with notice to all other parties
for
the assignment of a date for the hearing of the appeal and shall at
the same time make available to the registrar in writing
his full
residential and postal addresses and the address of his attorney if
he is represented..
(4)(c)
Upon receipt of such an application from appellant or respondent, the
appeal shall be deemed to have been duly prosecuted.
”
14.   The
application for the date of hearing of the appeal was made by the
appellant on 27 September 2005, almost
6 months late. It has been
held in
SA Shipping Co Ltd v Liquidators Promotors Ltd
1918 CPD
606
that the High Court has an inherent right to grant
condonation where principles of justice and fairness demand it and
where the reasons
for non-compliance with the time limits have been
explained to the satisfaction of the court.
15.    In
Darries v Sheriff, Magistrate Court, Wynberg, and Another
1998
(3) SA 34
(SCA) at 40 I - 41D
,
Plewman JA
remarked as
follows:
“
Condonation
of the non-
observance
of the Rules of
this
Court is not a mere formality (see Meintjies v H D Conbrick
(Edms) Bpk
1961 (1) SA 262
(A) at 263H -
264B;
Saloojee and Another NNO
v
Minister of Community Development
1965 (2) SA 135
(A) at 138E -
F).
In all cases
some
acceptable explanation, not only of, for example, the delay in noting
an appeal, but also, where this is the case, any delay
in seeking
condonation, must be given. An appellant should whenever he realises
that he has not complied with a Rule of Court apply
for condonation
as soon as possible. See
Commissioner
for Inland Revenue v Burger
1956 (4) SA 446
(A) at 449F -
H
;
Meintjies’s
case
supra at 264B; Saloojee’s case supra
at
138H
.
Nor should it simply be assumed that, where non-compliance was due
entirely to the neglect of the appellant
’
s
attorney,
condonation will be granted. See
Saloojee
’
s
case supra at 141B-G
.
In applications of this sort the appellant’s prospects of success
are in general
an
important though not decisive consideration. When application is made
for condonation it is advisable that the petition should
set forth
briefly and succinctly such essential information as may enable the
court to assess the appellant
’
s
prospects of success.
See
Meintjies
’
s
case supra at 265C-E; Rennie v Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A)
at 131E-F; Moraliswani v Mamili
1989 (4) SA 1
(A) at 10E
.
But appellant’s prospect of success is but one of the factors
relevant
to the exercise of the Court’s discretion, unless the cumulative
effect
of
the other relevant factors in the case is such as to render the
application for condonation obviously unworthy of consideration.
Where non- observance of the Rules has been flagrant and gross an
application for condonation should not be granted, whatever the
prospects of success might be
.
”
See
also
United
Plant Hire (Pty) Ltd
1976
(1) SA 717
AD at 720 E-G.
16.
Heher
JA
in
Uitenhage Transitional Local Council
v SA Revenue
Services 2004(1) SA 292 (SCA) at 297 H
laid down what should be
averred in an affidavit in support of condonation:
“
(6)
one
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be had merely
for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so as to enable
the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance is time-related
then
the date, duration and extent of any obstacle on which reliance is
place must be spelled out.
”
17.    In
casu
the affidavit of the appellant’s attorney which was filed made no
mention of what transpired from 4 July 2005 until 27 September
2005
when the application for a date of hearing of the appeal was made. He
also stated that the appeal could not be prosecuted timeously
probably because the appellant lacked funds. The appellant himself
did not mention this.
18.    We,
however, directed Counsel for the appellant to argue the
merits   of the appeal so as
to enable the Court to weigh
or assess the appellant’s probable prospects of success with all
the other relevant circumstances
in the case.
19.
Counsel
for the appellant argued that the default judgment granted on 31
October 2003 was void
ab
origine
in
that it was granted prematurely. It appears from the Magistrate's
reasons for judgment that when this judgment was granted the
appellant’s notice of intention to defend and his plea were
not filed at Court. The appellant merely states that the notice
and
plea were faxed to the clerk of the court. It is the duty of the
appellant to serve and file his notices and pleadings in a manner
provided by the rules of Court.(See
Rule
1 of
Uniform
Rules of Court)
20.
It
was further argued that the respondent had actually abandoned the
default judgment that he obtained on 31 October 2003. It, however,
appeared from the record that this is not true. What happened is that
there were negotiations between the two sets of attorneys.
The
respondent’s attorney requested the appellant’s then attorney to
furnish him with a letter containing settlement proposals
whereafter
he would consider consenting to the rescission of the judgment if the
settlement proposals were acceptable. The appellant’s
attorney
failed to deliver the said letter to the respondent but instead
informed the respondents that he did not have further instructions
from the appellant and may take the necessary steps to protect the
respondent
’
s
interests. The respondent then enrolled the
matter
for hearing on 10 March 2004. On this day the appellant failed
to attend court and default judgment was granted against
him.
21.
The
appellant has not incorporated in his papers before us the notice of
intention to defend and/or the plea which he avers should
have been
in the court file when default judgment was granted against him on 31
October 2003. The only document to be found was a
letter dated 18
November 2003 signed by the appellant and addressed to the Clerk of
the Court Springbok. In this letter, the appellant
refers to yet
another letter which was probably a covering letter to his alleged
plea to the applicant
’
s
summons. On 18 November 2003 the Magistrate of Springbok wrote
“
Letter
not attached W/E must be executed
”
.
The
“W/E” stands for Warrant of Execution. When we asked
why
the letter which was referred as a pleading was missing from this
application, Mr Pieterse, for the appellant, submitted most
surprisingly that it was not necessary for the
“
pleading”
to be on the
file.
This attitude sums up appellant
’
s
case. There was therefore nothing to
draw
the Magistrate’s attention to the fact that respondent’s action
was
being opposed. I am of the view that the appellant failed to satisfy
this court that judgment was erroneously granted against
him on 31
October 2003.
22.
Rule
49 of the Magistrates Court Rules provides as follows:
“
(1)
A
party to proceedings in which a 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.
(3)
Where an application for rescission of a 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.
”
In
De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd 1994(4)
SA 705 (E) at 708 G Jones J
said:
“
(
T)he
wilful or negligent or blameless nature of the defendant’s default
now becomes one of the various considerations
which
the courts will take into account in the exercise of their discretion
to determine whether or not good cause is shown.
”
23.
The
appellant's attorney stated in his Founding affidavit in the
application to rescind the judgment that the appellant could not
attend court on 10 March 2004 because his car got stuck somewhere
between Kakamas and Pofadder. He, howeve, did not state whether
the appellant was on his way to court or to another destination when
this happened. He does not state what time it was. What  is
surprising is that the appellant did not make this averment in
his affidavit to show that he was not in wilful default. He took
no
trouble to notify the respondent
’
s
attorney of his predicament and to negotiate a
postponement.
It would have taken a mere phone call to achieve this. The
respondent’s attorneys stated that the appellant only contacted
him
on 3 June 2004 after a Warrant of Execution was served on him. The
delay from 10 March 2004 to 3 June 2004 remains unexplained.
24.    One
of the appellant
’
s
grounds of defence to the respondent’s claim is that he withheld
his
rental payment because the respondent interfered in his tenancy by
disapproving of his choice of music and guests. This can never
be
construed as a valid or bona fide defence to the respondent
’
s
claim.
This implies that appellant would have paid his rental if his
landlord did not so interfere.
25.
Jones
J
in
De
Witts
’
case
(
supra)
went on to say at 771 E-I:
“
An
application for rescission is never simply an enquiry whether or not
to penalise a party for failure to follow the rules and procedures
laid down for civil proceeding in our courts.  The question is,
rather, whether or not the explanation for the default and any
accompanying conduct by the defaulter, be it wilful or negligent or
otherwise, gives rise to the probable inference that there is
no bona
fide defence and hence that the application for rescission is not
bona fide.  The magistrate
’
s
discretion to rescind the judgments of his court is therefore
primarily designed to enable him to do justice between the parties.
He should exercise that discretion by balancing the interests of the
parties...
He
should also do his best to advance the good administration of
justice.  In the present context this involves weighing the
need, on the one hand, to uphold the judgments of the courts which
are properly taken in accordance with accepted procedures and,
on the
other hand, the need to prevent the possible injustice of a judgment
being executed where it should never have been taken
in the first
place, particularly where it is taken in a party
’
s
absence
without evidence and without his defence having been raised and
heard.
”
See
also
Harris
v Absa Bank Ltd t/a Volkskas
2006 (4) SA 527
(T)
at 530
27.    I
cannot find any reason for the appellant
’
s
failure to attend court on 10 March
2004.
I can also not find any valid ground of defence to the respondent
’
s
claim.
The appellant
’
s
application for the condonation of the late payment of
security
and late prosecution of the appeal cannot be condoned.  The
prospects of success on the merits of this appeal fail to
save this
as they are insubstantial and for this reason the appeal must fail.
28.    In
the second matter, Case No: 651/04, as already discussed I find that
the appeal is not properly before
us and stands to be struck from the
roll with costs.
I
therefore make the following order
1.
Case No:2303/03
(a)    Condonation
for late prosecution of the appeal is refused;
(b)
The appeal (on the merits) is dismissed with costs.
2
Case No: 651/04 the appeal is struck from the roll with costs.
_____________________________
FE
MOKGOHLOA
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
concur
_____________________________
FD
KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
For the
Appellant         :
Adv.
R.J. Pieterse
Instructed by Elliott, Maris, Wilmans
& Hay
For
the Respondent      :
Adv. J.G. van
Niekerk
Instructed by Haarhoffs Inc.