About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 40
|
|
Briedenhann v Nordien N.O (2115/2021) [2024] ZANCHC 40 (26 April 2024)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
Number:
2115/2021
Heard: 29 February 2024
Delivered: 26 April 2024
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
Circulate
to Magistrates: YES /
NO
In
the matter between:
CHRISTO
BRIEDENHANN
APPLICANT
and
YUMNAH
NORDIEN N.O.
RESPONDENT
Coram:
Tyuthuza AJ
JUDGMENT
Tyuthuza
AJ
INTRODUCTION
1.
The applicant herein applied for
leave to appeal to the Full Bench of the Northern Cape High Court,
alternatively
the Supreme Court of Appeal against my judgment delivered on 04
August 2023 in which I made the following order:
a)
The
application for rescission of the default judgment granted on 10 May
2022 is dismissed with costs.
2.
The respondent opposed the
application for leave to appeal.
3.
It is the
applicant’s contention that reasonable grounds for the success
of the appeal exist, in that I had erred in the following
respects:
3.1
By finding
that the rule of practice in this Division of the High Court is that
once a summons is stale, i.e., service thereof has
taken place more
than six months prior to the institution of the action before
proceeding with any further application (i.e. application
for default
judgment), the applicant must serve the notice of set down on the
Respondent;
3.2
By finding that the applicant’s alleged defence of partial
payment was
not a
bona fide
defence to the claim;
3.3.
By not finding that the submissions of the respondent’s
attorney regarding
the probabilities of the applicant’s alleged
defence of partial payment was inadmissible as evidence and therefore
ought
to have been struck from the record;
3.4.
By not finding that the respondent’s version regarding the
alleged settlement
negotiations between the parties were inadmissible
as the very nature thereof would have been without prejudice.
4.
On 28 February
2024 the applicant filed a notice of his intention to amend his its
notice of application for leave to appeal,
by seeking to include a
further ground to
wit
:-
“
[5]
THE APPLICANT’S EXPLANATION FOR
HIS DEFAULT
5.1.
That the honourable Tyuthuza AJ erred in finding that the Applicant
had not given a reasonable and satisfactory
explanation for his
default
.”
5.
Despite the
objection from the respondent to the amendment, I ruled that the
addition of the further ground would not be prejudicial
to the
respondent and allowed the amendment.
6.
The matter
proceeded in terms of the amended notice of application for leave to
appeal, on grounds 1, 2 and 5 thereof.
7.
The
test to be applied in an application for leave to appeal is set out
in
section
17(1)(a)
of
the
Superior Courts
Act
10
of 2013
which
provides that:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion
that-
(a)
(i) the appeal would have a
reasonable prospect of success; or
(b)
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;”
8.
The applicant brought this
application on the ground that the appeal has the reasonable prospect
of success in that another court
may come to a different conclusion.
9.
In
the matter
MEC
for Health, Eastern Cape v Mkhita
[1]
the
Supreme Court of Appeal emphasised the application for the test for
leave to appeal and remarked as follows:
“
[16]
Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is
a reasonable
prospect of success.
Section
17(1)(a)
of
the
Superior
Courts Act 10 of 2013
makes
it clear that leave to appeal may only be given where the judge
concerned is of the opinion that the appeal would have a reasonable
prospect of success; or there is some other compelling reason why it
should be heard.
[17]
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic
chance of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough.There
must be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.
GROUNDS
OF APPEAL:
NORTHERN
CAPE HIGH COURT RULE OF PRACTICE
RE
APPLICATIONS FOR DEFAULT
JUDGMENT AFTER 6 MONTHS OF SERVICE OF SUMMONS
10.
It is common
cause that it is a practice in this Division that a
plaintiff
who has issued summons against a defendant
must
serve
a notice of set down on the defendant before proceeding further with
the litigation if a period of six months has elapsed
since the
service of the summons.
11.
Mr
Eillert submitted that the six months’ period from the date of
service of the summons expired in April 2022, and that the
default
judgment was granted in May 2022, outside of the six months’
period. Thus, the respondent ought to have served the
applicant with
the notice of set down and that the failure to do so resulted in the
default judgment being erroneously sought and
granted in the absence
of the applicant. He submitted that the phrase
“
application
for default judgment”
means the date on which the application serves before the presiding
judge and not the date upon which the application is launched.
12.
It is common cause that:
12.1.
The respondent issued its summons out of this court on 13 October
2021.
12.2.
The Sheriff served the summons on 20 October 2021.
12.3.
The applicant did not file a notice of intention to defend.
12.4.
On 19 April 2022, the respondent applied to the Registrar of this
court for default judgment against the applicant.
12.5.
Default judgment was granted against the applicant on 10 May 2022.
13.
On the
applicant’s interpretation a notice of set down was to have
been served on the applicant, because the matter was only
to be
adjudicated on 10 May 2022.
14.
Mr Olivier
submitted that the date for the calculation of the six month period
should be the date of the application for default
judgment and not
the date upon which the judgment is granted and that if the
applicant’s interpretation was to be applied
it would produce
absurd results.
15.
I
am in agreement with the respondent’s submission that the
correct interpretation of the practice is the date of the application
being made and not the date upon which the judgment is granted. Thus
the respondent need not have served a notice of set down as
the
application was launched within six months from the service of the
summons on the applicant.
16.
In the circumstances I find that
there is no
merit
to this ground of appeal.
EXPLANATION
OF DEFAULT
17.
Mr
Eillert submitted in his heads of argument that the applicant’s
default in entering an appearance to defend was not wilful
or due to
gross negligence. He referred to
Grant
v Plumbers (Pty) Ltd
[2]
wherein the Court stated: “
He
must give a reasonable explanation for 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
.”
[3]
18.
It
is common cause that when applying for the relief as sought by the
applicant (
rescission
of default judgment
),
the applicant must set out the reasons for the default and this
explanation must be set out with sufficient particularity to
enable
the Court to understand how it really came about that the applicant
was in default and to assess the applicant’s conduct
and
motives.
[4]
19.
Despite the
applicant’s explanation regarding what had happened between
October 2021 when he was served with the summons to
December 2021,
there is no explanation for the applicant’s lack of action from
December 2021 to the time that the default
judgment was granted.
20.
In
Harris v
ABSA Bank Ltd t/a Volkskas
[5]
the Court held as follows:
“
Before an
applicant in a rescission of judgment application can be said to be
in ‘wilful default’ he or she must bear
knowledge of the
action brought against him or her and of the steps required to avoid
the default. Such an applicant must deliberately,
being free to do
so, fail or omit to take the step which would avoid the default and
must appreciate the legal consequences of
his or her actions. A
decision freely taken to refrain from filing a notice to defend or a
plea or from appearing, ordinarily
will weigh heavily against
an Applicant required to establish sufficient cause. . .”
21.
I have dealt extensively with the
applicant’s explanation for his default in the judgment. It is
clear therefrom that the
applicant had been aware of the summons
since October 2021. From October 2021 to December 2021, there were
attempts to resolve
the matter through discussions, but it seems none
of those envisaged discussions actually materialised. From January
2022, the
applicant did nothing, he explains that he forgot about the
meeting on 7 January 2022, and that he had missed many calls due to
being busy and that he doesn’t listen to voicemails. It is
clear that the applicant had, from at least December 2021, done
nothing to try and resolve this matter and remains mum on the actions
he had taken between January 2022 and September 2022 when
he was
served with the writ of execution.
22.
I remain of the view that despite
the applicant being aware of the action instituted against him, he
had failed to take an active
interest in his case and I am therefore
not persuaded that the applicant has given a reasonable and
satisfactory explanation for
his default.
23.
In the circumstances I find no
merit in this ground.
BONA
FIDE DEFENCE TO CLAIM
24.
The
Constitutional Court in the matter of
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State and Others
[6]
emphasised that two requirements for the granting of an application
for rescission of a default judgment need to be satisfied under
the
common law; first, the applicant must furnish a reasonable and
satisfactory explanation for its default. Second, it must show
that
it has a bona fide defence which
prima
facie
carries some prospect of success on the merits. Proof of these
requirements is taken as showing that there is sufficient cause
for
an order to be rescinded. A failure to meet one of them may result in
the refusal of the request to rescind the default judgment.
25.
Mr Elliert
submitted that by making the findings, I assessed the merits of the
matter and the balance of probabilities to the extent
that a trial
court would have, and required the applicant to produce evidence to
show that the probabilities were in his favour.
He further submitted
that I failed to apply the correct test regarding the requirement of
a
bona fide
defence in respect of an application for rescission of judgment. The
applicant submits that there exists a reasonable possibility
that
another Court will arrive at the conclusion that
prima
facie,
the
applicant had established a bona fide defence.
26.
In
the matter of
Minister
of Police v Lulwane
[7]
,
the
Court observed thus:
“
It
should be borne in mind that the
discretion to rescind the judgment must always be exercised
judicially and is primarily designed
to enable courts to do justice
between the parties. ‘Good cause’ means that:
‘
(a)
the defendant has a reasonable explanation for the default. Wilful
default is normally fatal but gross negligence may be condoned.
“Wilful” default in this context connotes knowledge of
the action and its legal consequences and a conscious decision,
freely taken to refrain from entering an appearance, irrespective of
the motivation.
(b)
The application is bona fide and not made with the mere
intention to delay the plaintiff’s claim.
(c)
The defendant can show that he has a bona fide defence to
the plaintiff’s claim and that he has a bona
fide intention to raise the defence if the application is
granted.’
The
court may also take into account the prejudice to the parties.
The bona fide defence needs to be established prima
facie only and it is not necessary to deal fully with the merits
of the case or to prove the case. It is sufficient to set
out the
facts, which if established at the trial, would constitute a good
defence. The defence must have existed at the time of
the judgment.
The court has a wide discretion in evaluating “good cause”
in order to ensure that justice is done between
the parties. A good
defence can compensate for a poor explanation and vice versa.”
See: Zealand v Milborough
1991 (4) SA 836
(SE) at 838 C-E;
Carolus and Another v Saambou Bank Ltd
2002 (6) SA 346
SE at 349B-E.
27.
In
deciding whether ‘good cause’ exists, the court will
exercise its discretion based on the merits of each individual
case
and cannot consider the explanation for the Applicant’s default
in isolation.
[8]
In the matter
of
De
Witts Auto body Repairs (Pty) Limited v Fedgen Insurance CO
Limited
[9]
the
Court stated as follows:
“
The
correct approach is not to look at the adequacy or otherwise of the
reasons for the failure to file a plea in isolation. Instead,
the
explanation, be it good, bad, or indifferent, must be considered in
the light of the nature of the defence, which is an all-important
consideration, and in the light of all the facts and circumstances of
the case as a whole. In this way the magistrate places himself
in a
position to make a proper evaluation of the Defendant’s bona
fides, and thereby to decide whether or not, in all the
circumstances, it is appropriate to make the client bear the
consequences of the fault of its attorneys as in Saloojee and Another
NNO v Minister of Community Development
1965 (2) SA 135
(A). An
application for rescission is never simply an enquiry whether or not
to penalise a party for his failure to follow the
Rules and
procedures laid down for civil proceedings 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 judgment 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, bearing in mind
the considerations referred to in Grant v Plumbers
(Pty) Ltd (supra)
and HDS Construction (Pty) Ltd v Wait (supra) and also any prejudice
which might be occasioned by the outcome
of the application. 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.”
28.
The
applicant and the deceased entered into a written agreement, wherein
the applicant agreed to pay the deceased an interest-free
amount of
R861 555.72 to the deceased over a period of five years. In the main
application, the applicant contended that the agreement
entered into
in 2015 was merely an addendum to the initial agreement entered into
in June 2012, further that the addendum is an
unlawful agreement in
terms of section 89 of the National Credit Act.
[10]
The applicant contends that he entered into an oral agreement with
the deceased in October 2018, and in terms of the agreement,
payments
would be made in cash and part in kind. The applicant alleges to have
made partial payment on three occasions wherein
an amount of R632
000.00 was paid in total. The applicant has also sought to undertake
payment of the balance should the court
declare the addendum to be
lawful. The respondent disputes that partial payment was done based
on the fact that the alleged proof
of payment does not bear a
signature of the deceased, the applicant failed to provide any
substantiation for the allegation that
he and the deceased orally
agreed that the payments be made in cash and further that the
deceased sold the farm by October 2018.
Having considered the
facts, I view these to constitute triable issues
29.
It is trite law that an applicant for rescission of
judgment is not required to illustrate a probability of success, but
rather
the existence of an issue fit for trial.
30.
Despite
not being satisfied that the applicant has proffered a reasonable and
acceptable explanation for the default, having considered
the
application as a whole and the applicant’s defence, I am of the
considered view that the applicant’s case may constitute
a
defence insofar as the applicant disputes the amount owed to the
deceased. It is sufficient that in his evidence he shows a
prima
facie
case which raises triable issues.
[11]
31.
I therefore make the following
order:
1.
Leave to appeal is granted to the full
court of this Division against the judgment and order of 4 August
2023.
2.
Costs of the application for leave to
appeal are costs in the appeal.
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the Applicant:
Adv
A Eilliert
On
the instruction of:
Louw
& Da Silva Attorneys
c/o
Duncan & Rothman Attorneys
On
behalf of the Respondent:
Adv
JL Olivier
On
the instruction of:
Oosthuizen,
Sweetnam, Rietz & Fourie Attorneys
c/o
Elliot Maris Attorneys
[1]
2016
JDR 2214 (SCA)
[2]
1949
(2) SA 470
(O) at
476–7.
[3]
See also
Coetzee
& Another v Nedbank Ltd
[2010] JOL 26260
(KZD) at para 1.
[4]
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353A.
[5]
2006 (4) SA 527
(T) at 530A-B.
[6]
(CCT
52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17 September 2021)
at para 71.
[7]
429/20200
[2023] ZAECMHC; [
2023]
JOL 59222
(ECM); 2023 JDR 1492 (ECM)
at
para 46 (footnote omitted).
[8]
Mothabeng v Mothabeng
[2022] JOL 53925
(FB) at para 16.
[9]
1994
(4) SA 705 (E).
[10]
34
of 2005
[11]
Olisa trading as African Vibes v Tupa 2012 (Pty) Ltd
[2023] JOL
57260
(GJ) at para 10-12.