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2024
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[2024] ZAKZPHC 128
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Halle v Downs and Another (AR111/23) [2024] ZAKZPHC 128 (30 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR111/23
In
the matter between:
FELICITY
DELIA HALLE
APPELLANT
and
ANITHA
HILDA DOWNS
FIRST RESPONDENT
SHERIFF
LADYSMITH
SECOND
RESPONDENT
ORDER
On
appeal from
: Ladysmith Magistrate’s Court (sitting as the
court of the first instance):
The
appeal is dismissed with costs.
JUDGMENT
Chithi
AJ (Sibiya J concurring):
Introduction
[1]
This is an appeal against an order of the Ladysmith Magistrate’s
Court dismissing an application for rescission of judgment against
the appellant on 25 January 2023. A period of 17 years
had
elapsed between the time the judgment was granted on 9 April 2005 and
the time the rescission application was instituted on
23 September
2022. The sheriff of Ladysmith, who is cited as the second respondent
in these proceedings, was merely cited as an
interested party,
however, he never partook in the proceedings nor is he participating
in this appeal.
Background
[2]
This case has its origin from the damages action, which
was
instituted by the first respondent against the appellant in the
Ladysmith Magistrate’s Court on 9 November 2000. In the
action,
the first respondent claimed payment in the sum of R228 523.18,
interest thereon at the rate of 16% per annum and
costs of suit as
between attorney and client. This action arose from the alleged
breach of contract by the appellant in relation
to the purchase and
sale of a portion of the farm Danse Kraal in Ladysmith. On 6 December
2001 pursuant to the issue of liability
having been set down for
determination the court
a quo
found the appellant liable to
the first respondent. The issue of quantum stood over to be
determined at a later date.
[3]
On 9 April 2002 the matter was set down on the issue
of quantum.
However, before the hearing the parties concluded a settlement
agreement, settling the matter in its entirety, as follows:
‘
The
parties agree to settle the matter on the following basis:
1.
The defendant is to pay the plaintiff the
amount of R35 000.00
together with plaintiff’s attorney and client costs, such costs
to be agreed or taxed.
2.
The amount referred to in paragraph 1 above
will be paid in the
following manner:
2.1
R10 000.00 on or before 30 April 2002;
2.2
The balance to be paid by way of monthly installments of R500.00
per
month, the first instalment being payable on or before 31 May 2002
and subsequent instalments on or before the last day of
each
succeeding month.
3.
The amounts referred to in paras 2.1 and 2.2
will be subject to the
payment of 10% collection commission.
4.
Interest will be payable on the outstanding
balance from time to time
at the rate of 15.5% per annum calculated from 1 May 2002.
5.
Should the
defendant default in any of the aforesaid payments, the full
outstanding amount will become payable forthwith.’
[1]
[4]
According
to the appearance sheet on 9 April 2005 Mr Louw appeared for the
first respondent, while Mr Combrink appeared for the
appellant. The
court a quo recorded that in terms of rule 27(8) of the Magistrates’
Courts Rules (MC Rules) the action was
settled, as set out in the
deed of settlement attached to the appearance sheet.
[2]
[5]
It is common cause that the appellant failed to maintain
the payments
in terms of the settlement agreement. The last payment which the
appellant made was on 6 December 2004. As a result
of the appellant’s
failure to maintain the payments on 26 April 2005 the first
respondent instituted an application in terms
of rule 27 of the MC
Rules, which she set down for hearing on 25 May 2005. In the
application the first respondent sought payment
in the sum of
R39 958.92, interest thereon at a rate of 15.5% per annum from 1
April 2005 to the date of payment and costs
of the application.
[6]
On 25 May
2005 the appellant attended court in person. On this occasion, the
case was postponed to 1 June 2005 to enable the appellant
to inform
the attorney, Mr Ramkhelawan of Ramkhelawan Incorporated, who was the
appellant’s attorney on record, either to
withdraw as an
attorney of record or to attend court. According to the court
appearance sheet
[3]
on 1 June
2005 Mr Ramkhelawan appeared for the appellant while Mr Stemmet
appeared for the first respondent. Mr Stemmet asked for
judgment
against the appellant as set out in the application papers. Mr
Ramkhelawan on the other hand only remarked that he had
received
instructions the previous day and perused the papers. According to
him there was no valid ground to defend the application.
Judgment was
thereafter accordingly granted in favour of the first respondent in
terms of paragraphs 1 to 3 of the notice of application.
According to
the appellant she was informed by Mr Ramkhelawan of the outcome of
the application on 1 June 2005, which was the very
same day of the
hearing. On 27 July 2005 the first respondent instituted proceedings
in terms of s 65A(1)
[4]
of
the Magistrates’ Court Act 32 of 1944 (the Act). On 17 July
2006 an emolument attachment order was granted against the
appellant.
[5]
Appellant’s
founding affidavit
[7]
In the founding affidavit the appellant contends that
during July
2022, while her husband was accompanying his business partner to the
office of the appellant’s current attorneys
of record, Ms Parak
of Thasneem Parak & Associates, in respect of a different matter,
the appellant’s husband mentioned
this matter to Ms Parak.
During the conversation between Ms Parak and the business partner a
discussion in relation to the
in duplum
rule arose. The
appellant’s husband understood the
in duplum
rule to
have the effect that interest on a debt would cease to run where the
total amount of arrear interest has accrued to an
amount equal to the
outstanding principal debt. The appellant’s husband then
enquired from Ms Parak if it was possible that
the appellant would
still owe a sum of R31 632.34 if she had already paid over
R100 000.00 in respect of a settlement
amount of R35 000.00.
In reaction to this enquiry Ms Parak requested the appellant’s
husband to make an appointment
with her to assess the appellant’s
rights.
[8]
An appointment was then arranged for 5 July 2022, which
the appellant
and her husband attended. In this consultation, the appellant handed
over to Ms Parak all the relevant documents
including the settlement
agreement, the application in terms of rule 27 of the MC Rules and
the emolument attachment order. After
considering the case, Ms Parak
advised the appellant that it was impossible for a judgment to have
been granted in terms of rule
27 of the MC Rules. On the appellant’s
instructions, Ms Parak did not only call Mr Ramkhelawan on 5 July
2022 but they also
directed a letter to him enquiring as to the
circumstances under which the judgment was obtained against the
appellant. However,
Mr Ramkhelawan did not have any independent
recollection of the matter.
[9]
On 17
August 2022, Ms Parak, the appellant’s attorney served upon the
first respondent’s attorneys a notice of appointment
as
attorneys of record and had the same filed at court. On 18 August
2022, the appellant’s attorney directed a letter to
the first
respondent’s attorneys in which they
inter
alia
requested
them to consent to the rescission of the judgment, which was granted
on 1 June 2005. On 19 August 2022, the appellant’s
attorneys
directed a reminder to the first respondent’s attorneys. On 31
August 2022 the first respondent’s attorneys
declined to
consent to the rescission of the judgment. The first respondent’s
attorneys contended that the settlement agreement
was made an order
of court on 1 June 2005 and the order was therefore valid for 30
years. In addition, the first respondent’s
attorneys denied
that there were any irregularities in the application in terms of
rule 27 of the MC Rules and that the appellant
had paid the debt in
full. The first respondent’s attorneys attached to their
response the court a quo’s appearance
sheet to which the
handwritten settlement agreement was attached and the judgment
against the appellant was inscribed.
[6]
The appellant claims she only found out for the first time that
judgment was granted against her in terms of rule 27 of the MC
Rules
on 31 August 2022.
[10]
On 23 September 2022 the appellant instituted an application for the
rescission
of the judgment, granted against her on 1 June 2005, in
terms of s 36(1)
(a)
and
(b)
of the Act, read with
rule 49(7) and 49(8) of the MC Rules.
The
grounds upon which the appellant sought to rescind the judgment
[11]
The grounds upon which the appellant sought to rescind the judgment
were as
follows:
(a)
The judgment was void
ab origine
because when the judgment was
granted the provisions of rule 27 of the MC Rules as it read in 2005
were not complied with in that:
(i)
The settlement agreement itself did not make provision for it to be
made an order of court
as was required in terms of rule 27(9); and
(ii)
The settlement agreement had to be recorded in terms of rule 27(6) -
(8) before judgment could
be granted in terms of rule 27(9).
(b)
The judgment was obtained by fraud in that when the first
respondent’s erstwhile attorneys deposed to the affidavit in
support of the application in terms of rule 27 of the MC Rules,
they
fraudulently stated that the settlement agreement was handed up in
court and noted by the court at the request of the parties.
The
appellant contended that this never happened as the settlement
agreement was only concluded after lunch and only reduced into
writing by the first respondent’s erstwhile attorneys after the
appellant’s counsel had already left.
(c)
The R35 000.00 provided in the settlement agreement was
in full and
final settlement of all legal matters. Interest and taxed costs would
only have applied if the appellant breached the
settlement agreement.
The addition of extra costs and interest was never part of the
agreement. She was tricked by the insertion
of those clauses in
the agreement.
(d)
The
appellant contended that it was never her intention to pay anything
additional to the R35 000.00, which was purely for
the costs of
the litigation in the matter. R15 000.00 of this amount was for the
estimated costs under this case and R20 000.00
were costs that
rounded off in respects of the appellant’s parents in law,
which they had incurred in an unrelated case.
[7]
(e)
When she had paid R10 000.00 the settlement amount was immediately
reduced from R35 000.00 to R25 000.00. Thereafter she paid 31
instalments in the sum of R500.00 per month totalling to R15 500.00.
The lump sum payment of R10 000.00 plus R15 000.00 amounted to R25
500.00 which meant that the only outstanding balance in terms
of the
settlement agreement when she stopped paying was R9 500.00.
(f)
In February 2022 when the first respondent’s
attorneys demanded
payment in the sum of R31 632.34 after she paid the debt for 20 years
in terms of the emoluments attachment
order she stopped paying as she
believed the debt was finally extinguished.
(g)
The appellant contended that she had paid three times over
the
settlement amount.
(h)
The case number in the bill of costs annexed to the rule 27
application is not the case number in respect of this case. In the
circumstances it should never have been considered as an amount
to be
included or added to the outstanding settlement amount as any court
documents where the citation is incorrect is void
ab origine
.
(i)
Since the settlement agreement between the parties
did not make
provision for it to be made an order of court and was not recorded in
terms of rule 27(6) – (8) of the MC Rules
it therefore
constituted a new cause of action. Upon the breach of the settlement
agreement, the first respondent had to commence
a new action based on
the settlement agreement. The first respondent was therefore
precluded from proceeding based on the settlement
agreement to obtain
judgment against the appellant. Since the appellant last made payment
in terms of the settlement agreement
on 6 December 2004, any claim
against the appellant for the outstanding balance in terms of the
settlement agreement had prescribed.
(j)
At the time when the judgment was granted in terms
of rule 27 of the
MC Rules there was no longer any live issue between the parties in
the main action. The court a quo as a creature
of statute when it
granted the judgment it acted outside the powers conferred upon it by
the Act and the rules.
[12]
What was unusual about the appellant’s rescission application
is that
the grounds upon which the appellant sought to have the
judgment rescinded were couched in the form of points
in limine
.
The
first respondent’s opposing affidavit
[13]
The first respondent opposed the application for rescission of
judgment and
the grounds as set out in her answering affidavit were
as follows:
(a)
The provisions of rule 27 of the MC Rules as it read in 2005
did not
require that the settlement agreement in terms of which judgment is
sought had to have been made an order of court prior
to judgment
being sought. What was required was only a breach of the settlement
agreement.
(b)
On 9 April 2002, in the presence of the legal representatives
of both
parties, the court a quo recorded that in terms of rule 27(8) of the
MC Rules, the action was settled as set out in the
deed of
settlement, which was attached to the court record. Therefore, there
was compliance with rule 27(7) and 27(8) of the MC
Rules.
(c)
The terms of the settlement agreement provided for the
future
fulfilment by the appellant of the stated conditions in that
settlement agreement.
(d)
On 6 December 2004 the appellant breached the settlement agreement
as
she fell into arrears in relation to the agreed payments.
(e)
On 26 April 2005 within 12 months from the date of the appellant’s
default the first respondent instituted an application in terms of
rule 27(9) of the MC Rules.
(f)
The
application in terms of rule 27(9) was served on the appellant’s
husband on 4 May 2005.
[8]
(g)
On 1 June 2005 the court a quo granted judgment against the
appellant
in terms of rule 27(10)
(b)
of the MC Rules and on the
appellant’s own version judgment was given in the presence of
her attorney.
(h)
Once judgment was obtained, the judgment would only prescribe
after
30 years.
(i)
In relation to the common law
in duplum
rule a cap is placed
on interest charges only and not on the other costs. The interest
that can be charged on the capital amount
is not to exceed the
capital amount. The interest as reflected in annexure “ADH3”
was limited to the sum of R39 958.92,
which is less than the
capital amount, which includes R35 000.00, together with the
taxed bill of costs in the sum of R20 654.64.
(j)
In terms of the settlement agreement the appellant
was not only
liable for the amount of R35 000.00 but also for costs, interest, and
collection commission.
(k)
By the time that the emolument attachment was issued
the capital
amount outstanding including the attorney and client costs was R39
958.92, interest in the sum of R22 710.01 and collection
commission
in the sum of R7 442.96 had accrued of which R3 103.66 had already
been paid and various costs were added to the amount
bringing the
total due to R75 724.11.
(l)
The appellant was informed of the outcome of the
application in terms
of rule 27 of the MC Rules on 1 June 2005, yet she did not take any
steps for 17 years to rectify what she
perceived to be a wrong
committed against her.
(m)
Following
the judgment, there was a s 65 enquiry
[9]
and when the appellant received notice of the s 65 enquiry, she never
took any steps to have the judgment rescinded.
(n)
The amount of R35 000.00 specified in the settlement agreement
was
not in respect of any litigation costs but instead was in respect of
the costs of the subdivision of the immovable property,
the erection
of game fencing around the portion of the property the appellant
intended purchasing and registration of a water servitude
in respect
of a borehole.
(o)
While it was true that the case number in the bill of costs
to the
rule 27 application was incorrect there was absolutely no doubt that
the bill related to the case if one had regard to items
110 - 112 for
9 April 2002, it was patently clear that they related to this case.
(p)
The discussion about the amount of money that the applicant
still
owed to the first respondent and the
in duplum
rule brought
about the rescission application.
The
appellant’s replying affidavit
[14]
In the replying affidavit, the appellant put the authenticity of the
order
of 9 April 2002 in dispute. The appellant denied that it
existed in the court file up to and including 20 September 2022 the
last
date in which her attorneys inspected the court file and having
done so at least four times before.
[15]
The appellant contended that she was personally uncertain as to when
she signed
the settlement agreement. However, after being
reminded by her husband that the settlement agreement was presented
to her
husband when her husband went to pay the R10 000.00 to
the first respondent as per clause 2.1 of the settlement agreement,
the appellant suggested that it was possible that she did not sign
the settlement agreement on 9 April 2002 but the settlement
agreement
was pre dated.
The
judgment of the court a quo
[16]
On 24 January 2023 the court
a quo
refused rescission of
judgment and awarded costs against the appellant on a party and party
scale. It is this judgment which the
appellant seeks to assail.
[17]
In dismissing the application, the court
a quo
held, as
paraphrased by this court, that:
(a)
An application in terms of s 36(1) of the Act had to be instituted
within one year after the party acquired knowledge that the judgment
was void or obtained by fraud or mistake common to the parties.
The
period starts running when the party, and not his or her attorneys
become aware of the judgment that was against him
or her.
(b)
The parole evidence rule prescribes that no extrinsic evidence
is
allowed in a dispute to interpret a written agreement between the
parties.
(c)
A court may on good cause shown or if it is satisfied
that there is
good reason to do so, rescind or vary a default judgment, on such
terms as it may deem fit. Good cause will include
the existence of a
substantial defence.
The requirement of good cause
cannot be satisfied unless there is evidence not only of the
existence of a substantial defence, but,
in addition of the
bona
fide
held desire on the part of the
applicant for the relief, actually to raise the defence concerned in
the event of the judgment being
rescinded
.
(d)
An applicant should whenever he or she realizes that he or
she has
not complied with a rule of the court apply for condonation as soon
as possible.
(e)
The truth is that the applicant has failed to provide a plausible
or
acceptable explanation for her default.
(f)
The reasons upon which the court arrived at this
conclusion are that
the applicant was throughout the proceedings aware of the judgment
against her. In paragraph 41 of her founding
affidavit the applicant
stated that she paid the debt for 20 years as per the emolument
attachment order. In the court
a quo
’s view the
application was brought about because of the applicant’s belief
that the debt was extinguished and the discussion
about the amount of
money that the applicant still owed to the first respondent as well
the
in duplum
rule.
(g)
On 9 April 2002 the court granted an order in terms of rule
27(8) of
the MC Rules as it was empowered to do so.
(h)
There was compliance with the provisions of rule 27(9) and
27(10) and
on 1 June 2005 the court granted judgment as a result of the breach
of the agreement.
Grounds
of appeal
[18]
The appellant in her grounds of appeal alleges that the learned
magistrate
misdirected himself in respect of the following issues:
(a)
In refusing to rescind the judgment of 1 June 2005 when the
settlement agreement was not made an order with judgment being
granted as a result of a rule 27 application.
(b)
In holding that the amount for which judgment was granted was
in
accordance with the settlement agreement.
(c)
In refusing to rescind the judgment when the application
in terms of
rule 27 of the MC Rules included a taxed bill of costs under a
different case number in an unrelated matter, which
was instituted 1
year before the summons was issued in this case as part of the
additional amount to the alleged outstanding balance
in respect of
the settlement agreement.
(d)
In holding that compliance with the provisions of rule 27(6)
of the
MC Rules was not a pre-condition before an application in terms of
rule 27(9) could be made.
(e)
In refusing to rescind the judgment when the court a quo, in
granting
judgment on 1 June 2005, allowed interest at the rate of 15.5% over
and above the interest on the capital sum, and allowing
interest to
be added on the interest accumulated and on the taxed bill of costs.
(f)
In refusing to rescind the judgment when the appellant’s
attorney was not afforded an opportunity to file any answering papers
to the first respondent’s application in terms of rule
27 of
the MC Rules and granting judgment against the appellant merely upon
the appellant’s attorney’s concession that
there appeared
to be no valid defence to the settlement agreement.
(g)
In refusing to rescind the judgment when the amount claimed
in the
application in terms of rule 27 of the MC Rules was in excess of the
amount recorded in the settlement agreement.
(h)
In holding that the appellant was required to make a substantive
application for leave to file the confirmatory affidavits which
already formed part and parcel of the appellant’s founding
affidavit.
(i)
In holding that the appellant was required to make
an application for
condonation in respect of his application for rescission of judgment
when the appellant brought the application
within 1 year after she
learnt for the first time on 5 July 2022 that the judgment was
granted in error.
(j)
In accepting what purported to be an order noting
the settlement
agreement in terms of rule 27(8) of the MC Rules on 9 April 2005
despite it not being stamped and its authenticity
being put in
dispute.
(k)
In awarding costs against the appellant in respect of
the application
for condonation for the late filing of the first respondent’s
answering affidavit while also awarding costs
against the appellant
in respect of the application for rescission of judgment.
Provisions
of rule 27(6) - 27(10) of the MC Rules as they read in 2005
[19]
In order to understand the full context of the thrust of the
appellant’s
complaint it is convenient to consider the
provisions of rule 27(6) to 27(10) of the MC Rules as they read in
2005, which I reproduce
verbatim below:
‘
(6)
Application may be made to the court by any party at any time after
entry of appearance and before judgment to record the terms
of any
settlement of an action without entry of judgment agreed to by the
parties. If the terms of settlement so provide, the court
may make
such settlement an order of court.
(7) Such application
shall be on notice, except when the application is made in court
during the hearing of any proceeding in the
action at which the other
party is represented or when a written waiver (which may be included
in the statement of the terms of
settlement) by such other party of
notice of the application is produced to the court.
(8) At the hearing of the
application the applicant shall lodge with the court a statement of
the terms of settlement signed by
all parties to the action and, if
no objection thereto be made by any other party, the court shall note
that the action has been
settled on the terms set out in the
statement and thereupon all further proceedings in the action shall,
save as hereinafter provided,
be stayed.
(9) When the terms of
settlement provide for the future fulfilment by any party of stated
conditions and such conditions have not
been complied with by the
party concerned, the other party may at any time within 12 months
after the first mentioned party has
so failed to comply, apply for
the entry of judgment in terms of the settlement. Such application
shall be on notice to the party
alleged to be in default, setting
forth particulars of the breach by the respondent of the terms of
settlement.
(10) After hearing the
parties the court may-
(a)
dismiss the application;
(b)
give judgment for the applicant as specified in
the terms of settlement;
(c)
set aside the settlement and give such directions
for the further prosecution of the action as it may deem fit;
(d)
make such order as may be just as to the costs of
the application.
’
The
party’s submissions
[20]
Mr
Gevers
who
appeared for the appellant confirmed having approached Mr
Combrink
SC to establish the circumstances surrounding the conclusion of the
settlement agreement on 9 April 2002. Consequently, he abandoned
the
appellant’s contention that the judgment was obtained by fraud.
However, he persisted with the remainder of the argument
that the
judgment was obtained by a mistake common to the parties. Mr
Gevers
argued that in terms of rule 49(8) of the MC Rules the knowledge must
be of the fraud or mistake not of the judgment. He therefore
contended that the appellant only came to know of the judgment when
she consulted with her attorney. According to the appellant,
this was
on 31 August 2022.
[10]
Mr
Gevers
further argued that even if Mr Ramkhelawan did not consent to the
judgment his actions could reasonably be perceived as consenting
when
he was not authorised to do so by the appellant.
[21]
Mr
Gevers
referred
the court to the schedule attached to the rule 27 application, namely
Annexure “ML2.” He pointed out that the
first respondent
added interest at the rate of 15.5% to the capital amount. Relying on
Euro
Blitz 21 v Secena Aircraft Investments CC
[11]
and
Miloc Financial Solutions (Pty) Ltd v Logistic Technologies (Pty)
Ltd
[12]
he argued that the first respondent was precluded from claiming any
compound interest when there was no provision in the settlement
agreement.
[22]
He pointed out further that the amounts which the first respondent
claimed
in respect of collection commission were above the rate of
10% collection commission. As an example, he referred the court to
the
entry in respect of 28 June 2002 when the appellant had made
payment in the sum of R500.00 and the first respondent claimed
collection
commission in the sum of R57.00 instead of R50.00.
[23]
Additionally, Mr
Gevers
pointed out that the judgment, which
was granted on 1 June 2005 in the amount of R39 958.92, included
a taxed bill of costs
covering the period August 1999 to April 2003
amounting to R15 169.76. However, thereafter the first
respondent’s attorneys
still added the taxed bill of costs of
R15 169.76 to the amount of R39 958.92, and they thereafter
charged interest on
the erroneous duplication. The first respondent’s
attorneys thereafter included an additional bill of costs for the
period
of April 2000 to November 2000 (which is a period covered by
the previous bill of costs, already included twice) in the amount of
R20 654.64, and charged interest thereon.
[24]
Mr
Gevers
further argued that before a settlement agreement
could be made an order of court, rule 27 of the MC Rules, as it read
in 2005,
required the following:
(a)
that the settlement agreement itself should make provision
for it to
be made an order of court before it could be made an order of court
in terms of rule 27(9) or
(b)
that the settlement agreement be recorded in terms of rule
27(6) -
(8) before judgment could be granted in terms of rule 27(9).
The
failure by the court a quo to comply with the provisions of rule 27
of the MC Rules therefore rendered the judgment void
ab origine
as
the court acted outside its jurisdiction in granting the judgment. In
conclusion, Mr
Gevers
argued that the settlement amount was
paid off and that in fact it was paid at least three times over.
[25]
Ms
van Jaarsveld
for the first respondent on the other hand
argued that since the appellant had abandoned her contention that the
judgment was obtained
by fraud and did not persist with her
contention that the first respondent’s claim had prescribed the
appellant’s case
was therefore watered down. The appellant’s
case therefore only revolved around the issue of compound interest
and the authorities
thereon which the appellant did not refer to in
the papers or the appellant’s heads of argument.
[26]
Ms
van Jaarsveld
further argued that there was a logical
reason for the distinction between rule 27(6) and rule 27(9). Rule
27(6) of the MC Rules
contemplated two scenarios. The first scenario
is the recordal of the settlement of the action without entry of
judgment agreed
to by the parties. The second scenario contemplated
the court making such settlement agreement an order of court if the
terms of
the settlement agreement so provided. On 9 April 2002 the
court a quo noted the settlement agreement as it was required in
terms
of rule 27(8) that the action was settled as set out in the
deed of settlement. In doing this the court a quo recorded the terms
of the settlement agreement as provided for in rule 27(6), which is
what is contemplated in the first scenario. The provisions
of rule
27(9) of the MC Rules were only triggered once there was a breach of
the conditions of the settlement agreement relating
to the future
obligations by the appellant. In the circumstances, the first
respondent only made the application upon the appellant’s
default after 6 December 2004.
[27]
Ms
van Jaarsveld
furthermore argued that the appellant could
not possibly have only come to know of the mistake in the judgment on
31 August 2022
for the following reasons:
(a)
On 25 May 2005 she attended court in person. At this stage
all the
facts must have been known to the appellant. The schedule, annexure
“LM2”, was already a part of the application
papers.
(b)
On 1 June 2005 the appellant was informed by Mr Ramkhelawan
of the
outcome of the application.
(c)
After the judgment was granted on 1 June 2005 the first
respondent
instituted proceedings in terms of s 65A of the Act, which
resulted in an emolument attachment order being granted
against the
appellant in respect of which she made payment close to two decades.
[28]
Ms
van Jaarsveld
pointed out that even if the amounts, which
are set out in annexure “FA12”, were incorrect, this
annexure was not used
and played no part in the application in terms
of rule 27(9) of the MC Rules. In conclusion, Ms
van
Jaarsveld
argued that the appellant had not made out any case
that the settlement amount was paid off. The appellant failed to set
out in
her founding affidavit how payment was discharged.
The
law
[29]
To answer the question of whether there was any misdirection on the
part of
the court
a quo
, apart from the provisions of rule
27(6) to 27 (10) of the MC Rules, which I have referred to above, it
is convenient to refer
to the relevant provisions upon which the
appellant’s application for rescission of judgment was founded,
namely s 36
(1) of the Act, rules 49(5A)
(a)
, 49(7) and
49(8) of the MC Rules.
[30]
Section 36 of the Act provides:
‘
(1)
The court may, upon application by any person affected thereby, or,
in cases falling under paragraph
(c)
,
suo motu
-
(a)
rescind or vary any judgment granted by
it in the absence of the person against whom that judgment was
granted;
(b)
rescind or vary any judgment granted by
it which was void
ab origine
or
was obtained by fraud or by mistake common to the parties;
(c)
correct patent errors in any judgment
in respect of which no appeal is pending;
(d)
rescind or vary any judgment in respect
of which no appeal lies.
’
[31]
Rule 49(5A) of the MC Rules provides:
‘
(a)
Where a judgment debt, the interest
thereon at the rate granted in the judgment and the costs have been
paid in full, a court may,
on application by the judgment debtor or
any other person affected by the judgment, rescind that judgment.
(b)
The application contemplated in
paragraph
(a)
-
(i) must be made on a
form corresponding substantially with Form 5C of Annexure 1;
(ii) must be accompanied
by an affidavit with annexures providing reasonable proof that the
judgment debt, the interest and the
costs have been paid; and
(iii)
must be served on the judgment creditor not less than 10 days prior
to the hearing of the application
.’
[32]
Rule 49(7) of the MC Rules provides:
‘
All
applications for rescission or variation of judgment other than a
default judgment must be brought on notice to all parties,
supported
by an affidavit setting out the grounds on which the applicant seeks
the rescission or variation, and the court may rescind
or vary such
judgment if it is satisfied that there is good reason to do so.
’
[33]
Rule 49(8) of the MC Rules provides:
‘
Where
the rescission or variation of a judgment is sought on the ground
that it is void from the beginning, or was obtained by fraud
or
mistake, the application must be served and filed within one year
after the applicant first had knowledge of such voidness,
fraud or
mistake.
’
Was
the judgment void
ab origine
for want of compliance with rule
27(6)-(8)?
[34]
The
requirements of s 36(1)
(a)
and
(b)
are markedly distinct.
[13]
Section 36(1)
(a)
is intended ‘to be and is operative for the benefit solely of
the litigant who was in default at the time of the granting
of
judgment’.
[14]
Section
36(1)
(b)
is intended to cover a scenario where judgment granted was void
ab
origine
or was obtained by fraud or by mistake common to the parties. The two
subsections permit a disjunctive interpretation and so too
are the
three distinct elements of sub-paragraph
(b)
.
[35]
The appellant abandoned her case in relation to the issue of the
judgment having
been obtained by fraud. The alleged fraud related to
the first respondent’s attorney’s deposition that the
settlement
agreement was handed in court and noted by the court at
the request of the parties.
However, despite
abandoning this issue, the appellant persisted with her argument that
the court a quo was wrong in holding that
compliance with the
provisions of rule 27(6) of the MC Rules was not a pre-condition
before an application in terms of rule 27(9)
could be made.
[36]
The appellant’s argument that the court
a quo
acted
outside its jurisdiction in granting the judgment was founded on the
allegations of fraud, particularly, that the settlement
agreement was
handed in court and noted by the court at the request of the
parties. In my view, once the appellant abandoned
her case in
relation to issue of the judgment having been obtained by fraud, the
appellant could no longer validly argue that the
court
a quo
acted outside its jurisdiction in granting the judgment. The effect
thereof being that the judgment was recorded in terms of rule
27(6) -
(8) of the MC Rules.
[37]
Even if I
am wrong in arriving at this conclusion when this court had an
occasion to delve into the interpretation of the provisions
of rule
27 in
Khwela
and another v Dlamini
[15]
it held as follows:
‘
[7]
The significance of this assertion is stated by the respondents as
follows. Because “the Applicant did not lodge a statement
of
the terms of settlement signed by all the parties to the action as
envisaged in Rule 27(8)”, “the present application
cannot
succeed”. This point requires a brief overview of Rule 27 and a
brief analysis of Rules 27(7), (8) and (9). The clear
underlying
rationale for Rule 27 is that where litigious matters are settled, a
mechanism is provided for judgements to be granted
in terms of the
settlement without having to begin ab initio with an action based on
the settlement agreement. If the rule was
not in place, a matter
which had been settled by way of a compromise, and where a party did
not reserve the right to proceed on
the original causes of action,
would require the party concerned to commence a new action to sue on
the settlement agreement. I
will deal below with the requisites for a
compromise. This is because the settlement agreement would constitute
a fresh cause of
action. The Rule provides a means to obtain an
expeditious judgement where the terms of a settlement agreement have
not been complied
with. In the circumstances dealt with under the
Rule, judgement can be granted on a settlement agreement which has
compromised
the original cause of action pursuant to the provisions
of Rule 27(9) without a fresh action being instituted.
[8] I now turn to a brief
analysis of Rule 27 (7), (8) and (9) . . .
Within
the context of Rule 27 and the Rule 27(9) application, the following
is the effect of these sub-rules. First, Rule 27(7)
was complied with
in the present case because the original application had been set
down for hearing on the day the recordal was
made. Rule 27(8)
requires the lodging of a statement signed by all the parties at the
hearing of an application in terms of Rule
27(6). The respondents say
that no such statement was lodged. Within the context of the Rule
27(9) application, this was not contradicted
by the applicant in
reply. On the face of it, therefore, the recordal in terms of Rule
27(6) should not have been made for want
of compliance with the
provisions of Rule 27(8). However, Rule 27(9) does not itself require
the settlement agreement to have been
signed by the parties. It
simply requires a prior recordal to have been made under Rule 27(6).
That recordal was made on 26 September
2011.
[9] The only defence
raised by the respondents is to the effect that the recordal under
Rule 27(6) was not competent for want of
compliance with Rule 27(8).
This provides no defence to the Rule 27(9) application. This is
because, in fact, the settlement agreement
had been recorded under
Rule 27(6), whether rightly or wrongly. That jurisdictional fact was
all that was required to entitle the
court to consider an application
under Rule 27(9). The court hearing the Rule 27(9) application was
not entitled to consider whether
the recordal of the settlement
agreement under Rule 27(6) had been properly made. Unless and until
that recordal is set aside,
it remains binding. This is so regardless
of the nature of a recordal in terms of Rule 27(6). If the
recordal is regarded
as an administrative measure, it is valid until
set aside according to the principles set out in
Oudekraal Estates
(Pty) Ltd v City of Cape Town & others
. If it is regarded as
a judgment, it is valid until set aside according to the principles
set out in
Jacobs & others v Baumann NO & others
. For
the purposes of this appeal it is not necessary to decide whether
such a recordal amounts to an administrative act or a judgment
although I incline to the latter. The crucial fact is that the
respondents have not even to date appealed or brought under review
or
in any other way set aside the recordal of the settlement agreement
in terms of Rule 27(6). That recordal then stands as a jurisdictional
fact upon which the court was entitled to rely for the purposes of
the Rule 27(9) application.
[10]
It is therefore unnecessary to analyse in detail precisely what is
required before the court is entitled to make a recordal
in terms of
Rule 27(6). It may be that the recordal would have been vulnerable to
a challenge. I say may because it is not necessary
to make a finding
that such a challenge would have succeeded and I therefore do not do
so. The issue of whether the parties did
or did not sign the
settlement agreement was therefore irrelevant to the Rule 27(9)
application and did not constitute a defence
to it.
[11] As mentioned,
accordingly, Rule 27(9) requires only two jurisdictional facts before
an application may be brought and an order
can be granted. The first
is the recordal of a settlement agreement in terms of Rule 27(6). The
second is the failure of one of
the parties to comply with the stated
conditions in the settlement agreement. The first requirement is
clearly satisfied by the
recordal of the settlement agreement
consented to by the parties on 26 September 2011. I turn, therefore,
to consider whether the
applicant made out a case that the
respondents had failed to comply with one of the stated conditions of
the settlement agreement.’
(references omitted)
[38]
In view of my conclusion the only remaining aspect on the issue on
whether
the judgment was void
ab origine
is the second leg of
s 36(1)
(b)
being whether the judgment was obtained by
mistake common to the parties. This issue can be determined with
reference to the following
question.
Was
the judgment obtained by mistake common to the parties?
[39]
In
Tshivhase
Royal Council v Tshivhase
[16]
it was held:
‘
In
relation to subrule
(c)
thereof,
two broad requirements must be satisfied. One is that there must have
been a
“
mistake
common to the parties”. I conceive the meaning of this
expression to be what is termed, in the field of contract,
a common
mistake. This occurs where both parties are of one mind and share the
same mistake; they are, in this regard,
ad
idem
. . . Secondly, there must be a
causative link between the mistake and the grant of the order or
judgment; the latter must have
been “as the result of”
the mistake.’
[40]
There has not been any suggestion in the papers on the record that
the judgment
was obtained by mistake common to the parties. Mr
Gevers
also did not advance any argument to that effect.
In my view the appellant did not make out a case that the judgment
was
granted based on a mistake common to the parties. Therefore, once
the appellant abandoned her argument that the judgment was obtained
by fraud that was the end of the case in so far as appellant sought
to rely on s 36(1)
(a)
and
(b)
of the Act.
Consequently, I do not see any reason why this court should upset the
court
a quo
’s judgment based on this ground.
Was
there any default on the part of the appellant?
[41]
Default judgment in terms of MC rule 2 is defined as meaning ‘
a
judgment entered or given in the absence of the party against whom it
is made
.’ Furthermore, the words ‘plaintiff’,
‘defendant’, ‘applicant’, ‘respondent’
and ‘party’ are defined to ‘
include
the attorney or counsel appearing for any such party and the officer
of any local authority nominated by it for the purpose
.’
[42]
At the time when the judgment was granted the appellant’s
attorney Mr.
Ramkhelawan was present. In the circumstances, the
judgment was not granted in the appellant’s absence. Therefore,
the provisions
of s 36(1)
(a)
were inapplicable. Again, I
do not see any reason why this court should upset the court
a
quo
’s judgment based on this ground.
Was
the judgment obtained by consent?
[43]
This court
cannot agree with Mr.
Gevers
that the judgment was granted by consent in circumstances when Mr.
Ramkhelawan was not authorised to consent to judgment. The
appellant’s contention to this end is not borne out by the
record. The fact that Mr. Ramkhelawan could not distil any defence
on
the face of the settlement agreement does not mean that he consented
to the judgment let alone without authority. The authorities
upon
which Mr.
Gevers
sought to place reliance, are not an authority for the proposition he
sought to advance. In fact, they provide for the opposite.
While it might have been salutary if the court
a
quo
had
permitted the appellant to file opposing papers in the matter,
however, the appellant neither filed a notice to oppose the
application nor did she request the court
a
quo
for
an opportunity to file opposing papers. Had the appellant
requested an opportunity to file opposing papers it might have
been a
different thing altogether as a failure to give the appellant an
opportunity to file opposing papers might have amounted
to a denial
of the appellant’s right of access to court in terms of s 34
of the Constitution.
[17]
After all, it was the court
a
quo
’s
duty to balance the competing interests of the parties to ensure that
in the absence of a valid defence the appellant did
not unnecessarily
delay the first respondent in obtaining judgment. In the
circumstances, this court cannot fault the court
a
quo
for
granting judgment against the appellant.
Was
the debt paid in full?
[44]
It is trite
that when a judgment debt, as well as the interest thereon at the
rate granted in the judgment and the costs have been
paid in full,
then, irrespective of whether or not the judgment creditor consented
to the rescission of the judgment, a court may,
on application by the
judgment debtor or any other person affected by the judgment, rescind
that judgment.
[18]
[45]
For the appellant to succeed in the rescission application the
appellant was
required to have attached to her affidavit the
requisite proof that the judgment debt, the interest, and costs had
been paid.
There was no such proof attached to the appellant’s
affidavit.
[46]
On the
contrary, on the appellant’s version after she made the lump
sum payment of R10 000.00 and paid 31 instalments there
was an
outstanding balance of R9 500.00.
[19]
In any event, the appellant never raised the issue of the debt having
been paid at the time she applied for rescission of
judgment.
Consequently, the appellant was not entitled to raise this issue for
the first time on appeal. For these reasons, I cannot
fault the court
a quo
in its refusal to grant the rescission of the default judgment.
Were
the amounts claimed for collection commission above the permitted
rate and was the first respondent entitled to claim compound
interest?
[47]
In terms of clause 3 of the settlement agreement the lump sum payment
of R10 000.00
and the monthly instalments of R500.00 were
subject to the payment of 10% collection commission. Collection
commission is a fee
charged by a collection agent, who if he is a
registered VAT vendor, is entitled to charge VAT on the commission.
There was therefore
no irregularity in any of the amounts claimed in
respect of collection commission being above the rate of 10%
collection commission
as such amounts included VAT which was
calculated at the rate of 14% at the time.
[48]
In relation to the bill of costs which was attached to the
application in terms
of MC rule 27 bearing a different case number to
the current case, the court a quo must have been satisfied by the
first respondent’s
explanation if everything was considered it
was patently clear that the bill of costs related to this case and
the case number
was merely a clerical error. For this reason,
this court cannot interfere with the court a quo’s judgment on
this ground.
[49]
As far as
interest is concerned, it is trite that compound interest may only be
claimed if there is a provision in the agreement
for such interest to
be charged. There was no provision in the settlement agreement
for the first respondent to claim compound
interest. It appears that
in annexure “LM2” the first respondent may have claimed
compound interest when she was not
entitled to. While the claim of
compound interest by the first respondent might have been irregular
and could possibly constitute
a ground of appeal, the claim for
compound interest did not render the judgment void
ab
origine
.
[20]
Although the claim of compound interest by the first respondent is an
issue of law, in my view it is an arithmetical error which
the court
a quo could have corrected
suo
motu
in
terms of s 36(1)
(c)
of the Act had the appellant correctly identified the issue for
determination.
Could
the judgment have been rescinded on the basis of rule 49(7)?
[50]
In order
for the court a quo to have exercised its discretion in terms of rule
49(7) of the MC Rules the appellant had to satisfy
the court a quo
that there was good cause to do so. To show good cause the applicant
is required (a) to give a ‘reasonable
explanation of his
default’; (b) to show that his ‘application is made
bona
fide
’;
and (c) to show that he has ‘a
bona
fide
defence to the plaintiff's claim, which
prima
facie
has
some prospect of success’.
[21]
[51]
Although the appellant’s application for rescission of judgment
was founded
on s 36(1)
(a)
and
(b)
of the Act read
with rule 49(8) of the MC Rules, the appellant also relied on rule
49(7). To succeed with an application
in terms of this rule the
appellant was required to bring the application within 20 days from
the date she became aware of the
judgment and show good cause.
[52]
It is common cause that the appellant’s application was filed
hopelessly
outside the 20-day period prescribed by rule 49(1) of the
MC Rules and the appellant did not apply for condonation. The
appellant
in her application contented herself with the fact her
application was based on s 36(1)
(a)
and
(b)
of the
Act read with rule 49(8) of the MC Rules, which had to be launched
within one year after the applicant first had knowledge
of voidness,
fraud, or mistake. The appellant did not apply for condonation in the
alternative in the event the court a quo did
not find the judgment
void as contemplated in s 36(1)
(a)
and
(b)
of the
Act. The appellant did not apply for condonation while she also
relied on the provisions of rule 49(7) of the MC Rules in
her
application. The inevitable consequence of this stance, is that she
had to stand and fall by the averments that the application
fell with
the ambit of s 36(1)
(a)
and
(b)
read with rule
49(8) of the MC Rules. For this reason, I cannot fault the court a
quo for having held that the appellant was required
to have applied
for condonation to the extent that the appellant sought to rely on
the provisions of rule 49(7) of the MC Rules.
Declaration
of confirmatory affidavits
pro non scripto
[53]
It is trite
that a confirmatory affidavit is necessary where a deponent refers to
crucial evidence originating from another person.
[22]
The appellant in support of her application for rescission of
judgment attached to her founding affidavit confirmatory affidavits
of her current attorney of record and Mr. Ramkhelawan. However, the
court a quo considered these confirmatory affidavits
pro
non scripto
and held that the appellant was required to have brought a
substantive application to file these affidavits.
[54]
It seems that the court a quo in doing this was motivated by the fact
that
the confirmatory affidavits did not go far to specify the facts
which they confirmed even though the appellant in her founding
affidavit insinuated some impropriety on the part of the court a quo
and the first respondent’s attorneys. For example, the
affidavit of Mr Ramkhelawan merely stated ‘I have read the
founding affidavit of Felicity Delia Halle together with annexures
marked FA1 until FA15 and I confirm the contents in so far and
whenever they make reference or apply to me.’
[55]
This
practice has long been discouraged and disapproved by our courts. A
hearsay statement by a deponent merely supported by a confirmatory
affidavit such as the one of Mr. Ramkhelawan, on a crucial aspect of
the case, has been held to lose cogency.
[23]
In other instances, an affidavit couched in that fashion would even
be considered
pro
non scripto
[24]
as the court
a
quo
has
done in this case. This court therefore cannot fault the court
a
quo
in
considering such confirmatory affidavits
pro
non scripto
.
However, the court
a
quo
was
wrong though to hold that appellant required the leave of the court
a
quo
to
file the confirmatory affidavits which already accompanied the
founding affidavit. Nevertheless, such misdirection, does not
go far
enough to warrant an interference by this court of what is otherwise
a judgment which is not impeachable.
Costs
[56]
The appellant contends that the court a quo was
wrong in
awarding a cost order against her in respect of the first
respondent’s application for condonation for the late delivery
of the first respondent’s answering affidavit while also
awarding a cost order against the appellant in respect of the
dismissal
of the appellant’s rescission application.
[57]
It is trite
that the general rule is that costs follow the event and are
pre-eminently in the discretion of the court which discretion
the
court must exercise judiciously. The court would therefore be
entitled to depart from the general rule and exercise its discretion
and make any order as to costs as it deems fit including an order
that there would be no order as to costs. A court of appeal will
not
readily interfere with the exercise of that discretion.
[25]
In any event the costs order against the appellant by the court
a
quo
was
general. The court a quo in its costs order against the appellant did
not specify that the costs were awarded against the appellant
in
respect of any of the three applications, which were heard
simultaneously by the court a quo. However, the court a quo remarked
that the outlandish and outrageous statements, which were made by the
appellant, were a trigger that caused the first respondent’s
attorneys to appoint counsel in the matter. In the circumstances, the
court a quo was of the view that the appellant should pay
costs of
counsel. Consequently, this court cannot fault the court a quo’s
reasoning and interfere with the exercise of its
discretion.
[58]
For all these reasons this appeal must fail.
The
appeal record
[59]
The way the appeal record was prepared in this case merits some
comment.
Perhaps in doing so it is apposite to preface such
comment by the remarks of the court a quo wherein the learned
magistrate stated:
‘Given the state of the record, it took this
court an enormous amount of time to shift wheat from the chaff to
dissect what
the issues in dispute are.’
[60]
The appeal record comprises 6 volumes totalling to 791 pages. Some of
the pages
are barely legible and illegible as some of those pages
are, in addition, they were printed in portrait format. This made the
reading
of this part of the record difficult and straining to the
court. This record, apart from comprising the parties’
heads
of argument in the rescission application, also comprised the
oral submissions which the parties rendered during the hearing of
the
rescission application. In addition, the record also comprised the
parties’ heads of argument in the condonation application
in
respect of the late filing of the first respondent’s answering
affidavit as well as the oral submissions of the parties,
which the
parties rendered during the hearing of the condonation application.
Moreover, the record also comprised the evidence,
which was led
during the determination of the issue of liability and the respective
oral submissions of the parties. What was most
puzzling is that in
relation to the portions of the record this court was required to
read it was requested by the appellant to
read among others the heads
of argument in the condonation application and the heads of argument
in the rescission application
and the transcript of the hearing.
Almost half of what forms this appeal record was not essential to the
determination of
this appeal. The inclusion of what was not
essential to the determination of this appeal equally made the
reading of the
appeal record difficult as the essential portions were
in between what this court considers not to have been essential.
This
court had to shuffle between the essential and the non-essential
portions.
[61]
Uniform rule 50(7) provides that the record shall contain a
correct and
complete copy of the pleadings, evidence and all
documents necessary for the hearing of the appeal, together with an
index thereof,
and copies lodged with the registrar shall be
certified as correct by the attorney or party lodging the same or the
person who
prepared the record. On the other hand, uniform rule
50(8), which I reproduce verbatim below:
‘
(a)
Save in so far as these affect the merits of an appeal, subpoenas,
notices of trial, consents to postponements, schedules
of documents,
notices to produce or inspect, and other documents of a formal nature
shall be omitted from the copies of the record
prepared in terms of
the aforegoing subrule. A list thereof shall be included in the
record.
(b)(i)
With the written consent of the parties any exhibit or other portion
of the record which has no bearing
on the point in issue on appeal
may be omitted from the record.
(ii)
If a portion has been so omitted from the record, the written consent
signed by or
on behalf of the parties and noting the omission shall
be filed, together with the incomplete record, with the Registrar.
(iii)
Notwithstanding the provisions of subparagraphs (i) and (ii) the
court hearing the appeal
may at any time request the complete
original record and take cognisance of everything appearing therein.
(c)
When an appeal is to be decided exclusively on a point of law, the
parties may agree
to submit such appeal to the court in the form of a
special case, as referred to in rule 33 of the Rules, in which event
copies
may be submitted to the court of such portions only of the
record which in the opinion of the parties may be necessary for a
proper
decision of the appeal: Provided that the court hearing the
appeal may request that the entire original record of the case be
placed
before the court.’
[62]
In terms of Practice Directive 33.8.3.2 of the Practice Manual of the
KwaZulu-Natal
Division of the High Court the argument at the
conclusion of the application or trial shall not form part of the
record unless
essential for the determination of the appeal, and the
parties agree thereto in writing. In Uniform rule 50(7) and (8)
there
is no provision that the parties’ heads of argument
should form part of the appeal record, let alone the parties’
argument
during the hearing of the application or at the conclusion
of the trial. To include the record of the previously concluded
proceedings as part of the appeal record in respect of the issue of
liability only aggravated the view which this court took. As
much as KZN High Court Practice Directive 33.8.3.2. is applicable to
full court appeals and not to full bench appeals I do not
see why by
parity of reasoning it should not be deemed to apply to full bench
appeals as well. In my view the appeal record
as was filed by
appellant was filed in direct contravention of Uniform rule 50(7) and
(8) and by extension in contravention of
KZN High Court Practice
Directive 33.8.3.2. This court strongly discourages this
practice.
Order
[63]
In the result the appeal is dismissed with costs.
CHITHI AJ
APPEARANCES
Counsel
for the Appellant:
Mr.
A. J. Gevers
Instructed
by:
Thasneem
Parak & Associates
Counsel
for the First Respondent:
Ms.
M. E. Van Jaarsveld
Instructed
by:
Maree
& Pace, Mpulo Attorneys
Dated
of hearing:
31
May 2024
Date delivered:
30
August 2024
[1]
Record:
Vol. 1: Page 44-45.
[2]
Record:
Vol.
4: Page 415
3
Record: Vol.
4: Page 430.
Vol 1: Page 62.
[4]
Record:
Vol. 4: Pages 431-432.
[5]
Record:
Vol. 5: Page 52.
[6]
Record: Vol.
1: Page 60
- 61.
[7]
These costs were apparently in respect of the eviction proceedings
which were brought before the Ladysmith Magistrates’
Court
under case no.:235/2000 against the appellant’s parents in
law. The appellant’s parents in law were previously
the
owners of the farm before it was acquired by the first respondent.
The appellant’s parents in law were permitted
to live on the
portion of the farm in which they previously lived before the
acquisition of the farm by the first respondent
provided, they paid
rent. When they failed to pay rent the eviction proceedings
were instituted against them under case
no.:235/2000. However,
those proceedings were settled in terms whereof the appellant agreed
to buy the portion of the farm
where her parents in law resided.
It is the sale of that portion of land which founded the damages
action resulting in
the judgement against the appellant on 9 April
2005 which is the subject of this appeal.
[8]
Record:
Vol. 4: Page 416.
[9]
Section
65 of the Magistrates’ Court Act 32 of 1944 (the Act).
[10]
Record:
Vol
1: Page 16:
para 54 and Page 17: para 55.
[11]
Euro
Blitz 21 (Pty) Ltd and Another v Secena Aircraft Investments CC
[2015] ZASCA 21.
[12]
Miloc
Financial Solutions (Pty) Ltd v Logistic Technologies (Pty) Ltd
[2008] ZASCA 40
;
2008 (4) SA 325
(SCA);
[2008] 3 All SA 395
(SCA).
[13]
Moholeng
v Bekana and another
[2021] ZAGPJHC 562 para 27.
[14]
First
Consolidated Leasing Corporation Ltd v McMullin
1975 (3) SA 606
(T) at 609A.
[15]
Khwela
and another v Dhlamini
[2013] ZAKZPHC 46.
[16]
Tshivhase
Royal Council and another v Tshivhase and another; Tshivhase and
another v Tshivhase and another
[1992] ZASCA 185
;
1992
(4) SA 852
(A) at 863A-C.
[17]
Morudi
and others v NC Housing Services and Development Co Limited and
others
[2018] ZACC 32
;
2019 (2) BCLR 261
(CC) para 33.
[18]
Rule
49(5A)
(a)
of the Magistrates’ Courts Rules (MC Rules).
[19]
Record: Vol
1: Page 21:
para 82 and Page 35: para 159.
[20]
Minister
of Police v Mnukwa and others
[2022] ZAECMHC 46 para18.
[21]
Colyn v
Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) para 11.
[22]
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality and another
[2017]
ZASCA 118
;
[2017] 4 All SA 624
(SCA) para 31 (
Drift
Supersand
).
[23]
Drift
Supersand
.
[24]
Elundini
Local Municipality v UNCEDO Taxi Association and others
[2021]
ZAECGHC 86
para
12.
[25]
Eskom
Holdings SOC Ltd v Resilient Properties (Pty) Ltd and others
[2020] ZASCA 185
;
2021 (3) SA 47
(SCA);
[2021] 1 All SA 668
(SCA)
paras 99 - 106.