REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 1691/2020
In the matter between :
SPEAKER OF LIMPOPO PROVINCIAL LEGISLATURE APPLICANT
And
ROBERT TOOLEY RESPONDENT
_______ _____
JUDGEMENT
KGANYAGO J
[1] The respondent has instituted an action against the applicant claiming gratuity
payment of R759 969.44 being in respect of the alleged two periods which the
(1)
(2)
(3) REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . SIGNATURE: ............ .
respondent has served as a member of the Limpopo Provincial Legislature.
According to the resp ondent, he was erroneously paid R723 191.98 which
was for one term instead of R1 410 827.00 . The applicant had defended the
respondent’s action. Pleadings were closed and the respondent applied for a
trial date. The applicant was represented by the Office of the State Attorney.
The matter was set down for the 20th to 21st February 2023. The set down
was served at the Office of the State Attorney on 22nd February 202 2. On the
trial date the applicant and his legal representative failed to attend court and
the respondent obtained a default order on 20th February 2023 .
[2] The applicant launched his rescission application on 16th August 2023. The
rescission application was brought in terms of rule 42 of the Uniform Rules of
Court (Rules) and in terms of common law. In the founding affidavit the
applicant alleges that he became aware of the default judgment on 30th June
2023 throug h an email sent to him. The applicant submit s that even though
the set down shows that it has been duly served, the State Attorney was not
aware of the date of trial, as the set down was served during the time when
the Covid 19 regulations were still in pl ace. During the Covid 19 period, all
documents at the State Attorney were served through the security personnel
at the ground floor wherein they will be stamped and put in a box. The State
Attorney ’s personnel will check documents in the box. That the set down of
the 20th and 21st February 2023 might have been misfiled or not diarized
properly or error in service. The State Attorney never notified the applicant
about the trial date.
[3] After obtaining the default order, the respondent sent the court or der to the
Office of the State Attorney per their letter dated 31st March 2023. State
Attorney only sent a letter to the applicant notifying him of the court order on
30th June 2023 after the respondent had sent a reminder to the State Attorney
seeking swi ft action . The applicant decided to investigate the circumstances
that led to the default order, and on 10th July 2023, the applicant decided to
seek the services of an external attorney s. The external attorney s requested
the documents of the matter from the respondent’s attorney s. The external
attorneys received the documents from the respondent’s attorneys of 17th July
2023 and finalised drafting the rescission application on 10th February 2023
which was served and filed on 16th August 2023. The applicant submit that he
was not in wilful default.
[4] The applicant submit that he had a bona fide defence to the respondent’s
claim. According to the applicant, the respondent was a member of the
Limpopo Provincia l Legislature from 1994 until 2007 when he resigned. The
gratuity payment for non -returning members was introduced after the 2009
elections which was published in the provincial gazette notice 1565, 2008,
and it did not apply retrospectively for the period before 2008. The respondent
returned to the Provincial Legislature and served the period from 6th May 2014
to 7th May 2019. The respondent was paid gratuity of R723 191.98 been for
the period 6th May 2014 to 7th May 2019. The respondent is not entitled to
gratuity payment for the period within which the government notice for
payment of benefits was n ot in operation. Mphahlele Ramabu from the Office
of the State Attorney had deposed a confirmatory affidavit confirming the
applicant’s founding affidavit wher e it relates to him.
[5] The respondent is opposing the applicant’s rescission application. In his
answering affidavit the respondent has raised a point in limine that the
applicant has failed to make a condonation application for late filing of his
rescission application. The respondent had submitted that the default order
was obtained on 20th February 2023, and brought to the attention of the
applicant on 31st March 2023. The applicant was again served with the default
order on 29th June 2023. It is the respondent’s contention t hat the applicant
had brought his rescission application outside the 20 days period without the
consent of the respondent or condonation application.
[6] On merits the respondent has submitted that the proper case which justified
the default judgment was presented through oral evidence during the trial.
According to the respondent he was entitled to gratuity payment for the period
27th April 1994 to 28th February 2007, a nd also for the period 6th May 2014 to
7th May 2019. The respondent denies that the default judgment of the 20th
February 2023 was erroneously obtained. The notice of set down was
properly served of the applicant ’s legal representatives, and at all materia l
times from the 22nd February 2022 the applicant was aware that the matter
has been set down for hearing from 20th to 21st February 2023.
[7] The applicant has committed a pure domestic negligence through his attorneys
of record, and that the applicant is the author of h is own misfortune. The State
Attorney was served with an index and pagination for trial hearing on 16th
February 2023. The index and pagination included the notice of set down. The
16th February 2023 was after the Covid -19 regulations were lifted. The
warrant of execution against the property was served on the applicant on 8th
August 2023, and the applicant brought h is rescission application on 16th
August 2023. The reasonable inference to be drawn is that the applicant only
brought the rescission application after he was served with the warrant of
execution.
[8] The letter dated 9th July 2019 from the Office of The Sec retary of the Limpopo
Legislature state that the respondent be paid an amount of R723 191.98 for
out of office gratuity for the two periods, being the 27th April 1994 to 28th
February 2007, and 6th May 2014 to 7th May 2019. The applicant’s submission
that the provincial gazette does not cover the period below 2008 and that the
respondent was only paid a gratuity for a term he assumed office from 6th May
2014 to 7th May 2019 in the sum of R723 191.98 is completely i ncorrect, and
is meant to mislead the court.
[9] In his replying affidavit, the applicant has stated that his rescission application
is not been brought in terms of rule 31(2)(b) of the Rules, but in terms of rule
42 of the Rules and common law. The 20 days period is applicable if the
application is brought in terms of rule 31(2)(b), but an application in terms of
rule 42 and common law must be brought within a reasonable time.
[10] For the applicant to succeed with a rescission of judgment under com mon law
must show good cause, and generally the grounds for that include fraud,
justus error, and in exceptional circumstances when new documents have
been discovered. In terms of common law, a court has a discretion to grant
rescission of judgment where s ufficient or good cause has been shown and
the applicant must present a reasonable and acceptable explanation for
his/her default . On the merits, under common law the applicant has to show a
bona fide defence, which prima facie, carries some prospects of s uccess.
Rule 42(1) of the Rules provides that the High Court may in addition to any
powers it may have, mero motu or upon application of any party affected,
rescind or vary an order or judgment erroneously sought or granted in the
absence of a party affect ed by that order. In terms of rule 42 of the Rules, the
applicant has to show good cause , which includes giving a reasonable
explanation for his/her default; that the application is brought bona fide; and
that there is a bona fide defence or substantial de fence against the claim
grounding the impugned judgment. (See Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape )1. In terms of rule 31(2) a party wishing to apply for
rescission of judgment must do so within 20 days of acquiring knowledge of
the judgment upon good cause shown.
[11] In Chetty v Law Society, Transvaal2 Miller JA said:
“But it is clear that in principle and in the long standing practice of our Courts
two essential elements of “sufficient cause” for res cission of a judgment by
default are:
(i) that the party seeking relief must present a reasonable and acceptable
explanation for his default; and
(ii) that on merits such a party has a bona fide defence, which prima facie
carries some prosp ects of success ”.
[12] The respondent has raised a point in limine arguing that the applicant’s
rescission application is out of time, and that the applicant has failed to bring a
condonation application. The respondent point in limine is based on rule
31(2)(b) which requires a party bringing a rescission application to do so
within 20 days of acquiring knowledge of such judgment. However, the
1 2003 (6) SA 1 (SCA)
2 1985 (2) SA 756 (A) at 765B -C
applicant has brought his rescission application in terms of rule 42 of the
Rules and common law which will require a party bringing such application to
do so within a reasonable time of becoming aware of the default judgment.
The respondent’s point in limine is misplaced , has no merit and stands to fail.
[13] Throughout the proceedings before the default judgment, the applicant was
represented by the Office of The State Attorney , Polokwane. It is not in
dispute that the notice of set down was served at the Office of the State
Attorney on 22nd February 2022 notifying them of the trial date which was for
the 20th to 21st February 2023. From the applicant’s founding affidavit which
was confirmed by Mr Ramabu from the Office of the State Attorney, it is not
clear as to what would have happened to the set down after it was served on
them. It is alleged that there might have been a misfiling or failure to diarise
properly or possible error in service process.
[14] The set down has been duly signed and stamped with the stamp from the
Office of the State Attorney, and it can therefore not be said that there was
any possible error in service. As it was still during the covid -19 period, service
was done at the designated area hence the set down was duly signed and
stamped. If the set down was not properly diarised, that could have been
easily detected, as on perusal of the diary, Ramabu would have found the
wrong date on which it was diarised. However, the applicant has failed to
state the wrong date on which the ma tter was not properly diarised. With
regard to misfiling, that is where there might be some challenges. However,
even if there were some misfiling, not properly been diarised or error in
service, the Office of the State Attorney on 16th February 2023 a week before
the trial date was served with index and pagination for the trial date. That
index and pagination contained the set down, and service for that was done
long after the covid -19 regulations were relaxed. Even in his replying affi davit
the applicant has failed to deal with the issue of the index and pagination
containing the set down been served on them. Ramabu had read the
applicant’s founding affidavit and confirmed it despite the deficiencies I have
pointed out. He agreed with t he applicant’s founding affidavit despite it
showing that he might have acted negligently, and did not try and correct any
element that point to him acting negligently. Taking into consideration the
circumstances surrounding this matter, the only conclusio n to arrive at is that
Ramabu who was assigned to handle the applicant ’s matter did not fulfil his
professional responsibility and had handled this matter in a negligent manner.
[15] In Webster and Another v Santam Insurance Co Ltd3 Kotze JA said:
“A lay client, like each of the appellants, is ordinarily entitled to regard an
attorney duly admitted to the practice of the law as a skilled professional
practitioner. Ordinarily he places considerable reliance upon the competence,
skill and know ledge of an attorney and he trusts that he will fulfil his
professional responsibility. It is, of course, not unknown for an attorney or his
firm to be negligent in carrying out professional duties, but that is not usual,
and a fortiori to the lay client it would be a most unusual and unexpected
occurrence. Consequently, in considering whether the neglect of an attorney
constitute a special circumstances within the meaning of that phrase in sec.
24(2)(a) of the Act, the correct approach sho uld always be to regard it as a
relevant factor and to recognize that such neglect by an attorney may
frequently be special circumstances on its own vis -à-vis his client. To hold
without qualification … that a client is bound by the negligent of his legal
advisor is in my respectful view, wrong … It may well be that to attribute to a
client the negligence of his attorney would be justifiable in cases where he
(client ) is partly to blame through his supineness or otherwise for his
attorney’s dilatoriness”.
[16] The applicant had entrusted the Office of the State Attorn ey to represent him
in a professional way, and was relying on the ir competence, skill and
knowledge of their profession . He expected the Office of the State Attorney to
update him of the prog ress of his case timeously at all times. Since the Office
of the State Attorney alleges that the notice of set down was not brought to
the attention of the person who was assigned to the applicant’s matter, it is
clear that the applicant was at no stage no tified of the date of hearing. Without
3 1977 (2) SA 874 (A) at 883G -884A
been notified of the date of hearing, the applicant would not have known that
his matter was proceeding on 20th and 21st February 2023. There is no
evidence that the applicant was also partly to blame for his failure to attend
court on the stipulated date. The applicant can therefore not be associa ted
with manner in which the Office of The State Attorney has handled his matter
which led to the respondent obtaining a default judgment and order.
[17] In Occupiers, Ber ea v De Wet4 Mojapelo JA said:
“…the High Court did not discharge its duty to enquire into all the relevant
circumstances. This resulted in the Court being unaware of essential issues of
fact when granting the order. The Court was for instance not aware that there
were 180 occupants who were absent when it granted the eviction order. The
Court was further not aware that those who purported to confirm the
agreement on the side of the applicants have no mandate to bind the absent
180 applicants. The basis for granting the eviction order wa s that all the
parties had consented thereto. The 180 absent applicants had however not
consented thereto and were not bound by anybody present in court. The
eviction order was thus erroneously granted in the absence of the 180
applicants.
[18] The basi s upon which the default judgment and order was granted on 20th
February 2023 , was on the basis that there was a proper service of the set
down on the applicant’s attorneys, and also a letter dated 9th July 2019 from
the Office of the Secretary of the Limp opo Legislature which state that the
respondent’s calculation of his gratuity was for the two periods from 27th April
1994 to 28th February 2007 and 6th May 2014 to 7th May 2019. The court was
unaware that the applicant was at no stage notified of the tria l date. The
provincial gazette notice 1565 was not brought to the attention of the court. In
terms of the gazette, the effective date for gratuity payment for non -returning
members of the Provincial Legislature who have served a period of 5 years or
4 2017 (5) SA 346 (CC) at 366F -367A
less w as the 1st April 2008. There is no provision in the gazette that it was
applying retrospectively.
[19] Generally , the gazette will super sede the letter of the 9th July 2019. The
gazette shows that on merits the applicant has a bona fide defence which
prima facie carries some prospects of success. Had the court been aware that
the applicant was not notified of the trial, and also the effective date of
payment of the gratuity t o non -returning members of the Provincial
Legislature, I doubt whether is would have granted the default judgment. The
default judgment and order of the 20th February 2023 was thus erroneously
granted in the absence of the applicant.
[20] In the result the following order is made:
20.1 The respondent’s point in limine is dismissed.
20.2 The default judgment and order granted against the applicant on 20th
February 2023 is hereby rescinded and set aside.
20.3 The mat ter is referred for trial.
20.4 The respondent to pay the applicant’s costs .
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION , POLOKWANE
APPEARANCE S:
Counsel for the appellant : Adv KJ Masutha
Instructed by : Clarence Mangena Inc
Counsel for the respondent : JM Manale
Instructed by : Letsela Nkondo Associate Inc
Date heard : 3rd February 2025
Electronically circulated on : 26th February 2025