REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2023-020677
In the matter between:
CAL-CO (PTY) LTD Applicant/plainfiff
and
CHANTELLE MACKINNON Respondent/defendant
JUDGMENT
[1] The applicant makes application for default judgment in terms of Rule 31(5) in
the following circumstances:
a. The defendant was duly served with copies of the combined summons, at
her chosen domicile and place of residence on 24 April 2023;
b. the time for the defendant to enter an appearance to defend expired on 11
May 2023; and
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ __________
DATE
6 Dec 2024
c. the defendant failed to enter an appearance to defend within the stipulated
time period.
[2] The claim is based on a written acknowledgement of debt signed by defendant
in favour of the plaintiff on 23 August 2016.
[3] Rule 31 (5) provides as follows, in relevant part:
“(5)(a) Whenever a defendant is in default of delivery of notice of intention to
defend …, the plaintiff, who wishes to obtain judgment by default, shall where
each of the claims is for a debt or liquidated demand, file with the registrar a
written application for judgment against such defendant: ….
(b) The registrar may — …
(vi) require that the matter be set down for hearing in open court.”
[4] The matter was referred by the registrar for hearing in open court.
[5] The certificate of balance issued in accordance with the acknowledgement of
debt records the amount claimed as due, in the sum of R 1 087 717.50 as of 23
February 2023. It follows that the claim is for “a debt or liquidated demand” as
required by Rule 31(5), i.e. a claim for a fixed, certain or ascertained amount.
1
[6] When the matter was first called in this court, the Defendant appeared in person
raising the following defences in her opposing “ affidavits” dated 18 and 20
November 2023 (which do not comply in all respects with the formal requirements
for affidavits) – the list excludes allegations which manifestly do not qualify for
serious consideration as viable defences:
a. The plaintiff continued supplying goods on credit despite her inability to
repay thus “drowning (her) in debt” which caused her to opt for “voluntary
debt review”;
b. She tried to pay but earns too little to afford payment of plaintiff's claim;
c. She is married in community of property and her husband was “never
present at any AOD (acknowledgement of debt) signing” which she signed
1 See Erasmus, Commentary at RS 23, 2024, D1 Rule 31-18.
“on both of our behalfs”. She concedes that plaintiff’s attorney offered that
she could have her own lawyer present. She was advised that the AOD is
void;
d. Some credits in her favour have been overlooked and never addressed;
[7] I ma de allowance for the fact that the respondent appear ed in person and
approached the matter as follows:
a. if the defendant desired to raise a valid defence to the claim, such defence
is required – in terms of the rules – to be raised by way of a plea. The
defendant is required in her plea to either admit or deny or confess and
avoid all the material facts alleged in the combined summons or state which
of the said facts are not admitted and to what extent and shall clearly and
concisely state all material facts upon which she relies.
b. a s matters stood at that stage, the defendant ha d not applied for
condonation for the late filing of any cognisable defence.
[8] These are fundamental requirements which underpin the civil procedure of the
courts in South Africa. I refer, in this regard, to Imprefed (Pty) Ltd v National
Transport Commission 1993 (3) SA 94 (A) at page 107C-E:
“At the outset it need hardly be stressed that:
'The whole purpose of pleadings is to bring clearly to the notice of the Court
and the parties to an action the issues upon which reliance is to be placed.'
(Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082.)
This fundamental principle is similarly stressed in Odgers' Principles of
Pleading and Practice in Civil Actions in the High Court of Justice 22nd ed at
113:
'The object of pleading is to ascertain definitely what is the question at
issue between the parties; and this object can only be attained when each
party states his case with precision.'
The degree of precision obviously depends on the circumstances of each
case.”
[9] At the court’s request, counsel for the plaintiff produced helpful supplementary
heads of argument – at short notice – concerning the question whether the
acknowledgement of debt is subject to the NCA. It is clear from these
submissions that the question is complex and would require careful analysis of
several decisions which may be in conflict. The proper application of the NCA is
not straightforward and depends, largely, on the facts of a particular transaction.
Defences based upon the NCA requires pleadings crafted with a high degree of
precision.
[10] There was however no plea and none was proposed. All there was at that stage
were a few random general passages, cut and pasted into defendant’s opposing
submissions from an unknown source. This effort was, unsurprisingly, lacking in
precision and fell woefully short of what is required for a viable defence in
compliance with the civil practice of the High Court to which all litigants are
subject.
[11] Parties cannot be allowed to ignore the rules to the point where defences are
raised, as they were in this case, haphazardly and without precision without any
regard for the rules . If parties are allowed to cast the basics aside, the justice
system will descend into chaos and inevitably cause injustice.
[12] I had sympathy for the defendant who was not legally represented. I considered
that, if the defendant had a viable defence which could in due course be pursued,
she would have enjoyed some protection under Rule 31(6) which provides for
rescission of a judgment granted by default in the following circumstances:
“(6)(a) Any person affected by a default judgment which has been granted,
may, if the plaintiff has consented in writing to the judgment being rescinded,
apply to court in accordance with Form 2B of the First Schedule to rescind the
judgment, and the court may upon such application rescind the judgment.
(b) A judgment debtor against whom a default judgment has been granted, or
any person affected by such judgment, may, if the judgment debt, the interest
at the rate granted in the judgment and the costs have been paid, apply to
court to rescind the judgment, and the court may on such application by the
judgment debtor or other person affected by the judgment, rescind the
judgment.”
[13] Rule 31(6) protection was however only available after payment was made of the
debt which offered no real consolation in practice. In the exercise of my
discretion, I then decided to afford the defendant a final opportunity by
postponing the matter to 5 December 2024 on condition that she filed an
application for condonation, a plea and limited heads of argument by not later
than 15 November 2024 and the applicant was afforded the right to respond.
[14] In the event, the defendant mandated qualified lawyers to represent her and she
complied with the order of 1 November 2024.
[15] Importantly, the defendant delivered a notice to defend as well as a plea by the
deadline of 15 November 2024. Counsel for the defendant submitted that the
delivery of a notice to defend rendered an application for condonation
unnecessary because of Rule 19(5) which provides as follows:
“Notwithstanding the provisions of sub- rules (1) and (2) a notice of intention to
defend may be delivered even after expiration of the period specified in the
summons or the period specified in sub- rule (2), before default judgment has
been granted: Provided that, the plaintiff shall be entitled to costs if the notice of
intention to defend was delivered after the plaintiff had lodged the application for
judgment by default.” [my underlining]
[16] I do not agree. What this argument overlooks is the fact that at the time when the
defendant was granted the indulgence on 1 November 2024 (requiring the
application for condonation) no notice to defend or plea had been filed. In fact,
the defendant was in serious jeopardy of suffering a default judgment. The
defendant was afforded an indulgence by being granted a final opportunity to
avert the catastrophe of judgment by default as explained already. The obligation
to bring an application for condonation a rose from the order made on 1
November 2024. Rule 19(5) is irrelevant in this regard.
[17] Be that as it may, the defendant complied with the 1 November 2024 order and
duly filed an application for condonation which I find to be compelling.
[18] The acknowledgment of debt signed by defendant renders her liable for
applicant’s costs on the attorney the attorney and client scale and there is no
reason to deviate from the approach to costs that was applied in the 1 November
order.
[19] In the result, the following order is made:
1. Condonation is granted to defendant for the late filing of her notice of
intention to defend and plea, to the extent it is required, in terms of the order
made on 1 November 2024;
2. The defendant is ordered to pay the applicant’s (plaintiff’s) costs on the scale
as between attorney and client.
_______ ___
BADENHORST AJ
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Adv K Blair instructed by Gerings Attorneys
For the Respondent: Initially in person and on 5 December 2024, Adv .J J Marais
instructed by Schoemand & Massyn Attorneys.