Coleby v Van Wyk (1375/2006) [2006] ZAFSHC 160 (26 October 2006)

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[2006] ZAFSHC 160
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Coleby v Van Wyk (1375/2006) [2006] ZAFSHC 160 (26 October 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 1375/2006
In
the matter between:-
KEVIN
COLEBY
Applicant
and
JACOBUS
GIDEON LOUW VAN WYK
Respondent
______________________________________________________________
HEARD
ON:
17
AUGUST 2006
_____________________________________________________
JUDGMENT
BY:
RAMPAI
J
_____________________________________________________
DELIVERED
ON:
26
OCTOBER 2006
_____________________________________________________
[1] The
applicant seeks rescission of a judgment and court orders handed down
by H. M. Musi J on 2 October 2003. The matter came
by way of motion
proceedings. At steak is the sum of R104 020,00 excluding accrued
interests and the costs incurred. The applicant
avers in his
founding affidavit that his dilemma was occasioned by the remissness
of his attorneys.
[2] The motion is
opposed. In the answering affidavit the respondent’s deponent
avers that the applicant’s own remissive attitude
led to the
granting of the aforesaid judgment and orders against him; that by 10
June 2004 the applicant became aware of the aforesaid
judgment and
orders; that the applicant only launched this application for
rescission on 31 March 2006; that the applicant has no
defence to the
respondent’s claims and that he has given no reasonable and
acceptable explanation for his default.
[3] In
his replying affidavit the applicant reiterates that he was let down
by his previous lawyers; that he and the respondent had
settled the
matter before 2 October 2003; that he telephonically advised the
respondent’s attorney accordingly on 16 September
2003; that before
the court sheriff served the writ on him on 10 June 2004 he was
unaware of the judgment and the orders; that he
subsequently
instructed Messrs. Botha Willemse Wilkinson to settle the matter in
accordance with their letter of 10 June 2005 addressed
to Messrs.
Vermaak & Dennis; that the settlement negotiations collapsed;
that on 15 November 2005 his attorneys informed the
respondent’s
attorneys of his decision to bring an application for rescission and
that such an application was launched on 31 March
2006. He
repeatedly stated that he has a
bona
fide
defence and that he was not to blame for the delays and the
omissions.
[4] It
is trite that a judgment or a court order can only be rescinded on
one of the following basis: On appeal, or in terms of rule
31(2)(b),
or in terms of rule 42(1) or on common law grounds.
BEZUIDENHOUT
v PATENSIE SITRUS BEHEREND BPK
2001 (2) SA 224
(ECD) at 229 B – D and Erasmus:
Superior
Court Practice
,
B1-306.
Obviously
this matter did not come to court by way of an appeal. Therefore the
judgment and the court orders concerned are not attacked
on this
front. A judgment or a court order may be rescinded in terms of rule
31(2)(b) where the applicant had either failed to deliver
the
requisite notice of intention to defend or where the applicant has
done so but failed to deliver the requisite plea. Therefore
the
judgment and the court orders concerned cannot be attacked on this
basis.
DE
SOUSA v KERR
1978 (3) SA 635
(WLD) at 637 D – E and Herbstein & Van Winsen:
The
Civil Practice of Superior Courts of South Africa,
4
th
edition, p. 539.
[5] Similarly
an order or judgment may only be rescinded in terms of rule 42(1)
where such order was erroneously sought or erroneously
granted in the
absence of the party thereby aggrieved.
MUTEBWA
v MUTEBWA AND ANOTHER
2001 (2) SA 193
(TkHC) at par. 15 and further at par. 17 – 23 per
Jafta J as he then was. It follows therefore that this rule too does
not regulate
the situation at hand. In the instant case, the parties
are
ad
idem
that the court order sought to be set aside was granted by way of the
applicant’s failure to discover. If regard is had to the
principles prevailing on this sphere of our law and if regard is had
to the papers before me as well, it must be accepted that the
only
basis on which the judgment and the court orders by H. M. Musi J can
be rescinded is under common law.
BAKOVEN
LTD v G J HOWES (PTY) LTD
1992 (2) SA 466
(ECD) at 468 H per Erasmus J.
[6] Under
common law rescission will only be granted where
sufficient
or good cause has been shown. It is a long standing practice of our
courts that the concept of sufficient or good cause
has two elements.
Firstly, that a party seeking recessionary relief must present a
reasonable and acceptable explanation for his
default which gave rise
to the court order or judgment; secondly, that such a party has to
establish that on the merits he has a
bona
fide
defence
which
prima
facie
,
carries some prospects of success.
CHETTY
v LAW SOCIETY, TRANSVAAL
1985 (2) SA 756
(AD) at 765 A – C.
[7] In
the same case,
CHETTY
v LAW SOCIETY, TRANSVAAL
,
supra
at 765 C Miller JA observed:
“
It is not
sufficient if only one of these two requirements is met; for obvious
reasons a party showing no prospect of success on the
merits will
fail in an application for rescission of a default judgment against
him, no matter how reasonable and convincing the
explanation of his
default. And ordered judicial process would be negated if, on the
other hand, a party who could offer no explanation
of his default
other than his disdain of the Rules was nevertheless permitted to
have a judgment against him rescinded on the ground
that he had
reasonable prospects of success on the merits.”
[8] I
deal first with the requirement of a
bona
fide
defence. I want to sum up the versions of the parties in this
regard. The version of the respondent is that the applicant owed
him
the sum of R104 020,00 in respect of money lent and advanced by way
of four separate loans. He avers that he sued the applicant
on 14
November 2001 under case no. 3964/2001. The amount of the first
claim was R65 000,00; the second claim R31 500,00; the third
claim R7
000,00 and the fourth claim R520,00. The applicant duly notified his
intention to defend.
[9] Subsequently
the applicant delivered the customary plea and simultaneously his
counterclaim. In the defendant’s plea the applicant
denied he was
indebted to the respondent. In the counterclaim the applicant
alleged that the respondent was indebted to the applicant
in the sum
of R200 000,00 in respect of certain consultancy services he had
rendered for and on behalf of the respondent in accordance
with an
oral agreement. In the plaintiff’s plea the respondent denied the
alleged consultancy agreement and consequently any debt
arising from
such alleged agreement.
[10] The
applicant’s version may be summarised as follows. He and the
respondent were friends. Somewhere and somehow there was
this broken
glider. Together they decided to repair it. To do so they ventured
into the world of business. They then entered
into an oral agreement
on 31 August 1998.
[11] Pursuant
to such an agreement a business enterprise called CCC Plane Sale CC
was formed. The objective of the enterprise was
to repair with the
view to selling the glider. The enterprise had no running capital.
Therefore they had to advance money and services
to the close
corporation out of their own pockets. Each of the two members had a
loan account in the books of the close corporation.
Such personal
loans were paid into the coffers of the close corporation. It was
agreed that the close corporation would repay such
loans free of
interest in due course. The loans would be repaid before 31 December
1998 from the proceeds of the anticipated sale
of the glider. The
anticipated sale price was approximately R120 000,00. The nett
profit would be equally shared with an outsider
who was to be brought
in so that he could assist to repair the glider.
[12] After
they had repaired the glider to a certain extent the close
corporation took it to Johannesburg for some specialised repairs
that
were beyond their field of expertise. He cannot recall precisely
where in Johannesburg the glider was taken. Meanwhile the
close
corporation ceased trading. This happened before 31 December 1998.
The respondent’s summons was false. The respondent
never lent and
advanced any money to him in his personal capacity. Instead the
respondent made certain loans to the close corporation.
It was
untrue that he made any undertaking to repay the respondent’s
loans.
[13] On
the one hand, Mr. Daffue, counsel for the applicant, submitted that
as far as the merits were concerned the version put forward
by the
applicant was sufficient to make out a
prima
facie
defence in the sense that it establishes the existence of a triable
issue.
BROWN
v CHAPMAN
1938 (TPD) 320 on 325,
GRANT
v PLUMBERS (PTY), LTD
1949 (2) SA 470
(OPD) on p. 475 – 477 and
KOULIGAS
& SPANOUDIS PROPERTIES (PTY) LTD v BOLAND BANK BPK
1987 (2) SA 414
(OPD) at 417 C – D.
[14] On
the other hand Mr. Fischer, counsel for the respondent, submitted
that, as regards the merits, the circumstances of this case
show that
the applicant does not have a
bona
fide
defence which carries some prospects of success.
CHETTY
v LAW SOCIETY, TRANSVAAL
1985 (2) SA 756
(AD) at 765 A - C.
[15] I
now proceed to examine the facts in order to test the above
submissions. The respondent’s
causa
is a composite claim of R104 020,00 which consists of four separate
causes of action. As regards the first leg thereof the applicant
denies that the respondent ever gave him a loan alternatively that he
ever undertook to repay the loan of R65 000,00 to the applicant
on
behalf of the close corporation. It is essentially his case that the
respondent in fact lent and advanced the money to the close
corporation.
[16] As regards the
second leg thereof the applicant avers that the claim of R31 500,00
relates to the sale of a certain Iveco motor
vehicle. The vehicle
belonged to a certain Matthee who was the respondent’s customer.
The gentleman was emigrating from this
country to Australia and
wanted to have his movables sold. Among the movables was an Iveco
motor vehicle. He, the applicant, sold
the motor vehicle to
Kimberley Diamond Express. He was commissioned by the respondent to
sell Matthee’s assets. The respondent
reneged from the agency
agreement, refused to pay him the commission he earned but only
reimbursed him in respect of the expenses
he incurred. He puts up a
defence that the proceeds of the sale of the motor vehicle were paid
directly to the respondent and not
to him by the buyer.
[17] As regards the third
leg thereof, the applicant denies that he owes the amount of R7
000,00 to the respondent. He identifies
no particular legal
transaction preceding this specific claim. However, he speculates
that it possibly relates to an expense which
he may have incurred in
the course of executing his mandate relating to the respondent’s
customer, Matthee, as more fully set out
above. The figure of R7
000,00 probably represents a sum total of all the various
disbursements he incurred in respect of travelling
and accommodation
expenses which expenses were refunded to him by the respondent.
[18] As
regards the fourth leg of the respondent’s composite claim the
applicant also denies that he is lawfully and truly indebted
to the
respondent in the amount of R520,00. His defence is substantially
the same as his defence in respect of the third leg as
set out above.
[19] Apart from those
defences the applicant contends that he has a counterclaim in excess
of R200 000,00 against the respondent.
The basis of this is
consultancy work.
[20] The above defences
as raised in the founding affidavit and the counterclaim must be
considered against the following backdrop.
The defences as raised in
the applicant’s original plea to the same claims boiled down to
nothing more than bare denials. The
applicant’s defences, as now
raised in his founding affidavit, are still lamentably terse. Their
lack of particularity is disturbingly
alarming.
[21] Subsequent
to the dismissal of his aforesaid deficient plea and the granting of
judgment in favour of the respondent the applicant
made abortive
attempts to settle all disputes between him and the respondent by
paying a global sum of R230 000,00. Notwithstanding
requests by the
respondent, the applicant failed to give a detailed breakdown, facts
or figures as to how the settlement figure he
offered was made up and
calculated or to say on what basis the legal costs incurred by the
respondent relating to that main litigation
should not be borne and
paid by him, the applicant.
[22] Above
all this critique I have levelled against the applicant’s founding
affidavit, nothing militates more against the applicant’s
contention than the fact that not only in his original plea but also
in all subsequent settlement negotiations, as evidenced by the
letters annexed to the respondent’s answering papers, did the
applicant ever implicated CCC Plane Sale CC as the party indebted
to
the respondent. This omission casts very serious doubt as to the
veracity of the applicant’s version in this case. Indeed
it
imperils the applicant’s
bona
fides
and
rocks the very foundation of his alleged defences. His exculpatory
explanation in his replying affidavit, that he had no input
in the
drafting of his plea, fails to impress. He cannot now in his
replying affidavit distance himself from his defences as earlier
pleaded in his plea. Besides, he made no such allegation in his
founding affidavit.
[23] In
his replying affidavit the applicant conceded that his defences were
poorly pleaded in his plea. In paragraph 4.3 thereof
he states that
he has
bona
fide
defences and that he will attend to the amendment of his original
plea in order to incorporate the facts as set out in his founding
affidavit. I have already indicated that the applicant’s new
defences as contained in the founding affidavit are based on shaky
factual foundation. Amending the applicant’s plea by bringing it
in line with his founding affidavit will, in my view, be an exercise
in futility. This is so because the facts set out in the founding
affidavit itself are so materially inadequate that they are unlikely
to sustain the alleged defences on trial.
[24] Two
important things emerge from the applicant’s intention to amend his
defences. The first is that such an intention boils
down to an
acknowledgement by the applicant that his four defences as originally
pleaded are substantively so poor that they fail
to make out a
prima
facie
case which carries some prospects of success. The second is that the
applicant did not express such an intention to amend in his
founding
affidavit. He did so for the first time in his replying affidavit.
His belated and forced curative plan impacts adversely
on the
applicant’s
bona
fides
.
[25] It makes no sense to
me why the respondent who, as the applicant alleges, refused to pay
him the agreed commission in connection
with the second claim, would
willingly have paid him back the disbursements in connection with the
third and the fourth claims, only
to turn back later and falsely
claim that such genuine refunds were loans. It seems to me more
probable than not that if the respondent
was an unscrupulous person,
as the applicant makes him out to be, he would have cheated the
applicant quite simply by refusing to
reimburse him instead of paying
him and then claiming the same money under false pretext. After all
he had already refused to pay
him the commission in respect of the
second claim.
[26] In
the light of the aforegoing considerations I have come to the
conclusion that the applicant’s contention that he has
bona
fide
defences, in the sense that his version establishes a
prima
facie
case issue which deserves adjudication by trial is one which I cannot
uphold. His application for rescission fails on its own demerits.

No
bona
fide
defence in his plea, which
prima
facie
,
carries some prospects of success on the merits, has been shown.
CHETTY
v LAW SOCIETY, TRANSVAAL
,
supra
at 765 D – E per Miller JA.
[27] As
regards the applicant’s contention that he has a counterclaim of
over R200 000,00 against the respondent, I am not so persuaded.

According to his own pleadings, his counterclaim is based on an oral
agreement concluded. I do not know exactly where but apparently
somewhere in Guateng Province during or about October 1998. His
counterclaim was filed on 31 October 2002, some four years after
the
agreement was entered into. The counterclaim appears to have already
prescribed by the time it was filed. It also appears that
at no time
material to the settlement negotiations following the court orders of
2 October 2003 was mentioned ever made of the counterclaim
by the
applicant against the respondent through his lawyers. It must
therefore be accepted that there are strong indicators which
point
that
prima
facie
the applicant’s counterclaim, if it ever existed, has already
prescribed.
[28] In case I am wrong
in reaching the above conclusion in respect of the first dimension of
the legal concept of sufficient or good
cause, I proceed to examine
the facts in connection with the second dimension. The enquiry
revolves around the question whether
or not the applicant has
presented a reasonable and acceptable explanation of his default.
[29] The applicant’s
explanation for his default is premised on the following: He was
represented by a certain Mr. Phillip Barnard,
an attorney practicing
in Pretoria, at all material times. For the sake of completeness I
point out that the relative action proceedings
were initiated on 14
November 2001. Notice of the applicant’s intention to defend was
filed on 14 January 2002. The court orders
now under attack or the
judgment was given on 2 October 2003. According to the applicant’s
founding affidavit the matter was enrolled
for hearing on 2 October
2003. A day before the hearing he received a telephone call from Mr.
Barnard who informed him about the
hearing. He was living in Cape
Town at the time and therefore could not attend a trial set down for
hearing in Bloemfontein. He
could not get a flight since the
available flights were apparently fully booked. If only he was
advised in good time he could have
attended the hearing. All the
same he gave Mr. Barnard specific instructions to settle the matter
but Mr. Barnard failed to do so.
Apparently Mr. Barnard did not even
go to Bloemfontein. As a result of all this judgment was given
against him in his absence.
[30] He
found out about the judgment granted against him when the sheriff
served the writ upon him. We now know that the writ was
served on 10
June 2004. Immediately thereafter, so says the appellant, he
instructed Messrs. Schuld Incorporated attorneys in Cape
Town to
assist him with an application for rescission. They too failed to
carry out his instructions.
[31] Next
he appointed Messrs. Botha Willemse Wilkinson of Pretoria to see to
it that the default judgment was rescinded. However,
the rescission
application was held back pending the outcome of their attempts to
settle the matter. When it became evident that
the respondent was
not really interested in having the matter settled, he instructed his
attorney, Mr. Botha, to proceed with the
necessary steps for the
rescission of judgment. This synopsis completes the sum total of the
applicant’s explanation of the circumstances
pertaining to his
default.
[32] The
general rule of motion proceedings which has been laid down decades
ago and since then repeatedly stressed by our courts,
is that an
applicant must stand or fall by his founding affidavit and the facts
alleged therein as those are the allegations of fact
that the
respondent is called upon to either affirm or deny.
POUNTAS’
TRUSTEE v LAHANAS
1924 (WLD) 67 on p. 68.
[33] It
is, furthermore, incumbent upon an applicant to make out a
prima
facie
case in his founding affidavit.
POSEIDON
SHIPS AGENCIES (PTY) LTD v AFRICAN COALING AND EXPORTING CO (DURBAN)
(PTY) LTD AND ANOTHER
1980 (1) SA 313
(DLD) on 316.
[34] Mr.
Daffue contended that the applicant was an innocent litigant, a poor
soul who relied on his appointed attorneys which attorney
either did
not properly communicate with him or failed to carry out his
instructions properly. He submitted that the applicant has
shown
such substantial defence which should override his possibly poor
explanation for his default. He urged me not to punish this
litigant
for the remissness of his attorney which led to the granting of the
judgment and the orders already referred to.
[35] The said submission
is, in the context of this case, flawed. However good a defendant’s
defence may be, it cannot alone be
a decisive fact which serves as a
rescue vessel to salvage a bad explanation.
“
And ordered
judicial process would be negated if, on the other hand, a party who
could offer no explanation of his default other than
his disdain of
the Rules was nevertheless permitted to have a judgment against him
rescinded on the ground that he had reasonable
prospects of success
on the merits.”
Miller
JA in
CHETTY
v LAW SOCIETY, TRANSVAAL
,
supra
at 765 E.
Moreover,
in the instant case, I have already found that the applicant’s
defences were devoid of any substantive merits.
[36] According to the
founding affidavit some three years after the judgment the applicant
was still unaware that the matter was not
enrolled for trial on 2
October 2003 but that in fact it was set down on account of his
failure to discover. He lived in Cape Town.
His chosen attorney at
the time practised in Pretoria. Notwithstanding this fact, he stated
that he was unaware of the true state
of affairs. In par. 4.4 of the
answering affidavit the respondent’s deponent averred that the
customary discovery notices in terms
of Rule 35 were served on the
applicant’s attorney on 7 March 2003. The applicant admitted this
averment in par. 4.8 of the replying
affidavit. But in par. 4.9 of
the same replying affidavit he avers that he was not aware that
discovery was requested. This is
how he puts it:
“4.9
AD
PARAGRAPH 4.6
I was not aware of the fact that
discovery was requested, neither that a discovery affidavit needed to
be filed. Should I have been
aware that discovery was requested, I
would have ensured that a discovery affidavit would be filed and that
the discovered documents
were delivered.
I had no knowledge that the
respondent launched an application to compel delivery of a
discovery affidavit.
Should I have been aware of the
order granted on 21 August 2003 I would have made sure that the
discovery affidavit be filed.
Phillip Barnard attorneys did not
inform that such an application was brought, neither that a Court
Order was given, compelling
me to deliver an discovery affidavit.”
[37] He avers in his
founding affidavit that he only became aware of the judgment for the
very first time when the sheriff served
the writ upon him. However,
he glosses over this important issue. He hardly mentions the date on
which the writ was served upon
him.
[38] His
first attorney, Mr. Barnard, did not service him well. So he claims.
But he does not say precisely what the problem was,
besides saying
that Mr. Barnard was practising in Pretoria and that he was living in
Cape Town. Again he does not say when he moved
from Pretoria to Cape
Town.
[39] He avers that when
he discovered that the respondent has obtained judgment against him,
he immediately engaged the services of
another attorney. His second
attorney was Mr. Schuld who practised in Cape Town. This attorney
too disappointed him. He hardly
received any papers from this
attorney pertaining to his instructions for the rescission of the
judgment. But he fails to say when
he instructed Mr. Schuld and when
he terminated his mandate.
[40] In the third place
he avers, still in his founding affidavit, that he appointed a third
attorney, Mr. Botha. The latter practises
law in Pretoria. He
instructed his third attorney to apply for rescission when it became
evident the respondent was not keen to
settle. Again his founding
affidavit is silent on a number of important aspects. For instance,
he does not say when he appointed
Mr. Botha.
[41] Mr. Botha advised
the respondent’s attorney, Mr. De Lange, on 15 November 2005 that
the applicant contemplated applying for
the rescission of the
judgment. The applicant’s founding affidavit in support of his
application for rescission was only deposed
to on 6 March 2006, in
other words, some fifteen long weeks afterwards. Again there is
nothing in the founding affidavit to explain
this considerable delay.
[42] In his replying
affidavit the applicant was clearly rattled by the massive details of
the answering affidavit. He conceded that
he did not have all the
facts about the history of the matter at his disposal when he made
the founding affidavit. Besides blaming
his first two attorneys, Mr.
Barnard and Mr. Schuld, he also shifted the blame to Mr. De Lange,
the respondent’s attorney, for
his ignorance; for his acts of
omission and his acts of delays. He suggests that Mr. Schuld’s
attempts to prepare the application
for rescission were frustrated by
Mr. De Lange.
[43] He
complains that the latter failed to provide his second attorney with
copies of the pleadings despite his undertaking to do
so. He says he
tried unsuccessfully to obtain copies of the pleadings in case no.
3964/01 before this application for rescission
was launched. His
attorney, Mr. Schuld, also failed. If only if he had had such copies
he would have extensively dealt with the
pleadings. I understand him
to mean that he would have thoroughly dealt with the material issues
in his founding affidavit. This
is an admission by the applicant
himself that his founding affidavit was materially defective.
[44] But the complaint
has no substance. Mr. De Lange was not obliged to furnish him with
copies of the pleadings. His first appointed
attorney, Mr. Barnard,
had the pleadings. Messrs. McIntyre & Van der Post, his
Bloemfontein attorneys, also had the pleadings.
The Registrar of
this court had the original pleadings. Once more the applicant fails
to say why he could not obtain copies from
all these people.
[45] He admits that his
plea and counterclaim lack sufficient averments and clarity. But he
shifts responsibility for the serious
defect. He claims that he had
no input on the drafting of these pleadings. He indirectly puts the
blame on his first attorney.
What is worse, he does this in a
replying affidavit and not in his founding affidavit.
[46] He avers that he did
not receive the court order issued by Ebrahim J on 23 August 2005
whereby he was compelled to file his discovery
affidavit and warned
of the consequences of his failure. He cannot recall when he
terminated Mr. Barnard’s mandate. But then
he admits that he was
assured by his previous attorney, and that could only have been Mr.
Barnard, that he would attend the court
hearing on 2 October 2003 to
settle the matter.
[47] He admits that on 16
September 2003, two weeks before the crucial setdown of 2 October
2003, he had a telephone conversation
with the respondent’s
attorney. He avers that during the conversation he advised Mr. De
Lange that he and the respondent had settled
their differences. In
addition to such advice he also advised the lawyer that the
respondent had confirmed with him that he would
not be proceeding any
further with the applications on 2 October 2003 or the action itself.
Mr. De Lange undertook to canvass these
facts with the respondent.
Notwithstanding such an undertaking Mr. De Lange proceeded on 2
October 2003. Firstly, he had his counterclaim
dismissed. Secondly,
he had his plea also dismissed. Thirdly, he had judgment granted in
favour of the respondent against him.
[48] The applicant
insinuates that the respondent’s attorney ambushed him. I do not
think so. He claims that the respondent’s
applications should not
have been proceeded with on 2 October 2003 because he and the
respondent had directly settled the dispute.
The deficiencies of
these averments are obvious. He fails to say where, when and how the
dispute was settled? What were the terms
of the settlement? Was the
settlement written or verbal? There are simply no answers to these
and many more questions.
[49] During the
conversation the applicant certainly realised that Mr. De Lange knew
nothing about the alleged direct settlement.
Certainly he also must
have realised that time was running out for him to stop the drastic
applications which were looming on the
horizon. Realising all these
a seriously litigant in the shoes of the applicant would have acted
differently. He would have taken
a swift action. He would have been
pro-active. He would have stood up and attended to the matter
himself. He would not have sat
back and expected his adversary’s
lawyer to take further instructions. He would have fetched his
adversary and taken him to his
lawyer so that the adversary’s
lawyer could hear the settlement story directly from the horse’s
mouth. Better still, he would
have provided the adversary’s lawyer
with a written proof of the settlement.
[50] Needless to say in
this case the applicant sat back and relaxed. He expected someone,
his opponent’s lawyer at that, to solve
the problem for him. A
week came and went by after the conversation but there was no word
from Mr. De Lange to the applicant. Weeks
became days, days became
hours, but the applicant remained passive and unconcerned. He did
nothing to enquire from Mr. De Lange
whether he had since received
further instructions from the respondent confirming that the dispute
had indeed been settled. He did
nothing to ensure that the
respondent confirmed the settlement with his lawyer.
[51] It appears to me
that there was no such direct settlement. During the same
conversation, Mr. De Lange advised him to appoint
another attorney
because he had learned that Mr. Barnard no longer acted for him. The
applicant admits this averment. Then he says
the following at par.
4.16 of the replying affidavit:
“4.16
AD
PARAGRAPH 4.13
I recall the telephonic
conversation between De Lange and myself and advised him that I
will appoint an attorney to represent
me as soon as I have
received copies of all the pleadings. I must stipulate to the
Honourable Court I did not entirely understand
the process at that
stage and only now understand the process subsequent to my
attorney having explained same.
Should I have understood the
urgency, importance and consequences of the application of the
application and should I have had
copies of the pleadings, I would
have made sure that the discovery affidavit has been delivered
prior to the respondent having
brought the application.
I am English speaking and therefore
do not fully understand the contents of De Lange’s letter.
Argument in this regard will
be presented at the hearing of this
matter.”
Now, if the matter had
been settled, as he claims it was, why was it still necessary for him
to receive copies of the pleadings so
that he could appoint a new
attorney?
[52] The applications
were precipitated by the applicant’s failure to discover. The fate
of the applicant as a result of such omission
was to be determined on
2 October 2003. During the telephone conversation of 16 September
2003 Mr. De Lange explained the discovery
process to him. He, on the
same day, faxed the relative court orders by Ebrahim J and Wessels AJ
to the applicant. But he says
he did not entirely understand the
discovery process and that if he did, he would have discovered. In
general ordinary people involved
in litigation do not understand
legal processes. There are exceptions of course. I accept that the
applicant was not an exception.
I also accept that he might not have
entirely understood the explanation of the discovery process as given
by Mr. De Lange. But
his excuse is belated. It is contained in the
replying affidavit. It was never his case in the founding affidavit.
[53] However, having
accepted all that, I hasten to say I do not accept that he did not
understand that something had to be done and
done quite urgently. If
he were to avoid the adverse consequences of the applications which
were set down for final adjudication
just over two weeks ahead, on 2
October 2003, he had to act pretty fast. The fact that he did not
entirely understand the process
on 16 September 2003 serves as no
excuse for his failure to do anything in the meantime. He had
seventeen days to do something.
His lack of understanding was so
much the reason why he had to consult a lawyer at once. However, he
did nothing for seventeen
days.
[54] We know now that on
1 October 2003, a day before he was punished for disobeying the rules
of procedure, he received a telephone
call from his first attorney,
Mr. Barnard. He claims in his founding affidavit that prior to such
call, he was not advised of the
setdown. As a result of the failure
of his first attorney to inform him about the date allocated for the
“hearing” he was not
in a position to attend the hearing.
Whether or not Mr. Barnard had advised him, is debatable. What is
not debatable is the fact
that Mr. De Lange did advise him about the
setdown seventeen days beforehand. He had ample time to book the
flight or to make other
suitable arrangements in order to attend
court particularly because he understood that the matter had been
enrolled for hearing.
[55] There are amazing
features of his conversation with Mr. Barnard. In the first place,
it suggested that he was still in touch
with Mr. Barnard, despite the
termination of his mandate. In the second place and this is very
important, he did not inform Mr.
Barnard that there was no need for
him to attend the trial in Bloemfontein because the matter would no
longer proceed in view of
the direct settlement reached. In the
third place, he did not call Mr. De Lange to make doubly sure that
the respondent had confirmed
the settlement and that the settlement
would be made an order of court or that the matter would simply be
removed from the roll.
Instead of doing any of these things, he
quickly tried to book a flight to Bloemfontein. What for?
[56] In an attempt to
explain the paucity of his averments, in his founding affidavit, the
applicant makes the following averments
in his replying affidavit:
“4.40
AD
PARAGRAPH 11
I have made a case for condonation to
be granted. Extensively explanations with regards to the filing of
pleadings, correspondence
and communication between both the
respective parties and the attorneys, were given. De Lange, on the
version presented on behalf
of the respondent, pave the way for the
applicant to explain with precision why it took so long to file the
application for rescission
of judgement.
Not
only have I given substantial explanation as to why condonation
should be granted, but have I also explained to the Honourable
Court
why it should be just and equitable to grant me the opportunity to
have this matter to proceed to trial.”
[57] At
par. 4.42 of the replying affidavit the applicant avers:
ADPARAGRAPH 13
I have already explained as to why
I was misguided about the enrollment of the application for
delivery of the discovery affidavit.
I was always under the
impression that the matter was enrolled for hearing on 2 October
2003. I was not previously aware
of the fact that the matter was
enrolled for 20 January 2004.”
It
must be accepted that on the applicant’s own version he was aware
or to use his expression, he was under the impression that
the matter
had been enrolled for trial on 2 October 2003. But Mr. Barnard, as
an attorney, certainly knew that the matter was supposed
to be tried
or heard on 20 January 2004 and that all the applicant had to do to
get out of trouble, was to make and file his discovery
affidavit on 2
October 2003 at the very latest.
[58] It
is also not quite clear to me as to where Mr. Barnard suddenly came
from at the eleventh hour. It will be recalled that sixteen
days
earlier the applicant had told Mr. De Lange that he would appoint a
new attorney. The impression made was that Mr. Barnard’s
mandate
had already been terminated by then. The matter becomes even more
puzzling in his replying affidavit when the applicant
says the
following at par. 4.18:
“
4.18.1 I was under the impression
that the matter was enrolled for hearing on 2 October 2003.
4.18.2 I
was not aware of the fact that the application would be granted and
that the result would be fatal.
4.18.3 I
was assured by my previous attorney that they would attend to the
matter and therefore left it in what I thought was their
capable
hands.”
[59] Indeed
leaving the matter, he did. The question is in whose hands and for
how long? We know that from 2 October 2003, when
the court orders
were made, until 10 June 2004, when the writ was served, the
applicant was still in the dark as to what had transpired
in
Bloemfontein. In my view, it was incumbent upon him to contact his
attorney, in whose capable hands he had placed the matter,
to
ascertain what had transpired the day before. This he failed to do.
He did not care to find out a day after the hearing. Nine
months
afterwards he still did not care to know. It appears to me he would
not have bothered to know had the sheriff not served
the writ upon
him over nine months later. Even then he apparently made no attempt
whatsoever to seek any explanation from his previous
attorney who had
assured him that he would travel to Bloemfontein to sort out the
problem on his behalf.
[60] He claims in his
founding affidavit that, after receiving the writ, which we now know
was on 10 June 2004, he immediately instructed
Messrs. Schuld Inc. to
have the judgment rescinded. Notwithstanding his immediate action it
appears that the first letter from his
new attorneys, Messrs. Schuld
Inc. to Messrs. Vermaak & Dennis, the respondent’s attorney,
was written on 16 November 2004.
Again the applicant makes no
attempt to explain such a long delay of over five months.
[61] It
is impermissible for a litigant in motion proceedings to raise new
grounds in a replying affidavit in order to make out a
case which he
failed to make out in his founding affidavit. The weak and fleshless
skeleton in the founding affidavit cannot be
fortified by adding fat
flesh, strong muscles and fresh blood by way of belated supplies in
the replying affidavit.
DIRECTOR
OF HOSPITAL SERVICES v MISTRY
1979 (1) SA 626
(NPD) at 635 H – 636 B.
[62] The
applicant’s version is fraught with acts of omission. Yet he
blames his first attorney for his omissions immediately prior
to the
judgment. He wants me to believe that he is in a dilemma and that
his dilemma is due to the remissness of his first two attorneys.
But
I thoroughly dissected his own version and I am not persuaded. Our
courts are slow to penalise a litigant on account of his
attorney’s
remissness.
R
v CHETTY
1943 (AD) 321 and
REINECKE
v INCORPORATED GENERAL INSURANCES LTD
1974 (2) SA 84
(AD) at 92 F. In this case, however, the record shows
that the applicant’s acts of omission depict him as a grossly,
careless
and exceptionally negligent litigant.
[63] The discursiveness
of his founding affidavit is alarming. The vagueness of his replying
affidavit and its contradictions are
disturbingly amazing. The
discord between the two is incredible. His elaborate and accusative
narrative suggests that he lacked
an honest zeal to resist the case
against him. His gross acts of omission, both prior to the judgment
and subsequent thereto, move
me to say that whatever remissness there
might have been on the part of his previous attorneys, was totally
eclipsed by his own gross
carelessness or indifference as far as this
litigation is concerned. His explanation fails on its own demerits.
[64] The applicant blames
all the lawyers for his disdainful violation of the rules. His first
attorney, Mr. Barnard, did not involved
him when he drafted his plea
and counterclaim; did not make him understand the discovery process;
did not advise him to be in Bloemfontein
on 2 October 2003 for
hearing; did not attend the court in Bloemfontein on the same day
despite saying he would and did not advise
him what transpired
afterwards. The respondent’s attorney, Mr. De Lange, undertook to
furnish him and his second attorney, Mr.
Schuld, with copies of the
pleadings. He failed to do so despite his undertaking and proceeded
to take judgment against him. Mr.
Schuld failed to find alternative
means of obtaining copies of the pleadings. His third attorney, Mr.
Botha, drafted his founding
affidavit without the pleadings which is
why his founding affidavit is so imprecise. He did not launch this
application timeously
because he first tried to settle the dispute.
[65] Mr. Daffue argued
that the applicant default was brought about by lack of
communication. The blame for the lack of communication
had to be
placed on the shoulders of the remissive first attorney. But Mr.
Fischer submitted that the applicant had presented no
reasonable and
acceptable explanation for his default. In the circumstances I am
persuaded by Mr. Fischer. I am also persuaded
by Mr. Fischer’s
final submission that the most probable reason as to why this
application was launched almost two and a half years
after the
judgment sought to be rescinded is to be found in the applicant’s
own replying affidavit namely that he owns an undivided
half share in
a fixed property which the respondent has now caused to be judicially
attached which share he reckons to be much more
than the value of the
respondent’s claim. Therefore, as regards the second requirement,
as well, of the legal concept of sufficient
and good cause I find
against the applicant.
[66] Seeing that the
applicant has failed to prove sufficient and good cause for the
relief of rescission it follows that his application
should fail and
the judgment should stand.
[67] The general rule of
cost should apply. No reason was advanced as to why it should not.
I can find no reason either.
[68] Before I pen off,
let me make brief comments about two things relative to this
application. The first comment relates to the
applicant’s
application for condonation. Strictly speaking there were no good
grounds to condone the late filing of the application.
All the same
I condoned the applicant’s lateness. I did so not on the merits
but out of pure desire, to put this long dispute
to rest by
considering its substance.
[69] The
second comment relates to the point raised
in
limine
by the applicant. I considered the point. I then decided to rule in
favour of the respondent. I did not sustain the objection
for two
reasons. In my view, Mr. De Lange, as an agent of the respondent,
was not precluded from deposing of an answering affidavit
on behalf
of his client. He was, after all, more familiar than the respondent
with the applicant’s acts of omissions in particular
and the
history of the matter in general. Moreover, the applicant’s
replying affidavit was substantially informed by the very
answering
affidavit he wanted struck off. Striking the answering affidavit
off, would have completely left the replying affidavit
as an empty
shell. The applicant cannot eat his cake and still have it. Even if
no answering affidavit was filed, the application
would still have
failed for the reasons already advanced elsewhere in the course of my
judgment. There were simply no adequate material
allegations of fact
to sustain it.
[70] In
the circumstances I have no choice but to strike out the averments
contained in the following paragraphs of the replying affidavit:
4.4.1 and 4.4.2 on p. 78 of the record as well as 4.15 and 4.16 on p.
84 of the record. A replying affidavit is not like an intensive
care
unit at a hospital where every effort has to be made to resuscitate
even the terminally ill or the fatally wounded.
[71] Accordingly
I make the following order:
71.1 The
applicant’s application for condonation is granted.
71.2 There shall be no
order of costs relating to such an application.
71.3 The
applicant’s application for the rescission of the judgment and the
orders granted against him on 2 October 2003 under
case no. 3964/2001
is dismissed.
71.4 The
applicant is ordered to pay the costs of the respondent’s
pertaining to the opposition of the application for rescission.
______________
M.H. RAMPAI, J
On
behalf of the applicant: Adv. J. P. Daffue
Instructed
by:
Israel
Sackstein Matsepe Inc.
BLOEMFONTEIN
and
Botha
Willemse & Wilkinson
PRETORIA
On
behalf of the respondent: Adv. P.U. Fischer
Instructed
by:
Vermaak
& Dennis Inc.
BLOEMFONTEIN
/sp