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[2020] ZASCA 147
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Van Heerden v Bronkhorst (846/19) [2020] ZASCA 147 (13 November 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 846/19
In
the matter between:
MELISSA
VAN
HEERDEN APPELLANT
and
ANNALISE
BRONKHORST RESPONDENT
Neutral
citation:
Van
Heerden v Bronkhorst
(Case
no 846/19)
[2020] ZASCA 147
(13 November 2020)
Coram:
SALDULKER and MOLEMELA JJA and
EKSTEEN AJJA
Heard
:
28 August 2020
Delivered
:
This judgment was handed down
electronically by circulation to the parties' representatives via
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 10h00 on
13 November 2020.
Summary:
Rescission of
judgment – rule 42(1)
(a)
– notice of motion a hybrid between form 2 and form 2(a) –
form condoned – no prejudice to any affected party
–
notice of hearing delivered to electronic address provided by
respondent, but not received – not constituting procedural
error – judgment not erroneously sought or erroneously granted.
Rescission in terms of common law – good cause –
must allege facts which, if proved, would constitute a defence valid
in law, with some prospect of success – bona fide defence not
made out.
ORDER
On
appeal from:
Mpumalanga
Division of the High Court, Mbombela (Msibi AJ sitting as court of
first instance):
The appeal is dismissed with costs.
JUDGMENT
Eksteen
AJA (Saldulker JA concurring)
[1]
This appeal is against the dismissal of an application for rescission
of an order in the High Court, Mbombela (the high court)
authorising
the Master of the high court to accept an unsigned draft will of
Willem Jacobus Bronkhorst (the deceased) for purposes
of the
administration of his estate. Two issues arise, firstly, whether the
order ought to have been rescinded in terms of rule
42(1)
(a)
and, secondly,
whether the appellant had shown sufficient cause for rescission under
the common law.
[2]
I shall consider first the application of rule 42(1)
(a)
.
The facts leading to the application for rescission are as follows.
Ms Van Heerden (the appellant) was the third respondent in
an
application issued by Ms Bronkhorst (the respondent), as applicant,
for the relief set out above. I shall refer herein, for
convenience,
to the appellant as the third respondent and the respondent as the
applicant.
[3]
The applicant was married to the deceased in August 1993 and the
marriage subsisted until his death on 30 August 2014. The third
respondent is the daughter of the deceased from a previous marriage.
The applicant alleged that she and the deceased had executed
a joint
will during August 1998 in the terms set out in the draft will. When
the deceased died the original signed will could not
be found.
However, the unsigned draft was found amongst the documents in his
office. Hence the main application.
[4] The notice of motion in the main application, which
was issued on 18 June 2018, recorded in the opening paragraph:
‘
Take notice that the Applicant will make
application to the above Honourable Court on 30/07/2018 at 10h00 or
as soon thereafter
as counsel for the Applicant may be heard for an
order in the following terms:
1.
.
. .’
[5]
After setting out the relief which the applicant sought, the notice
of motion followed closely the wording of form 2(a) annexed
to the
Uniform Rules of Court (the rules), save that the final paragraph
recorded: ‘The application is set down and will
be made on
30/07/2018 at the above Honourable Court.’
[1]
The date for the hearing was, on a reading of the notice of motion,
predetermined.
[6]
Upon receipt of the application the third respondent, through her
attorney, notified the applicant on 29 June 2018 of her intention
to
oppose the application. The notice of intention to oppose did not
comply with the provisions of rule 6(5)
(d)
in that it failed
to set out an address within 15 km of the office of the registrar
[2]
where the third respondent would accept service of documents, but it
did reflect an electronic mail address at ‘email:
esme@steenkampatt.co.za
’
.
Thereafter the third respondent failed to serve or file opposing
papers. The applicant’s attorneys therefore addressed a
letter
to the third respondent’s attorneys, which was transmitted
electronically to the address provided in the notice of
intention to
oppose, on 25 July 2018, in the following terms:
‘
We note that you filed a Notice of
Intention to Oppose the above application.
You will note from the notice of motion that the matter has been set
down on the unopposed roll on 30 July 2018 and that you were
required
in terms of the rule to file your opposing affidavit within 15 days
after the date of service of the Notice of Intention
to Oppose. You
have failed to file an opposing affidavit and the matter remains
unopposed.
Unless we receive your opposing affidavit before closing of business
today, together with an application for condonation, we will
proceed
to index the Court file and prepare for argument of the matter on the
unopposed roll of Monday, 30 July 2018.’
The
letter elicited no response and the matter was therefore dealt with
on the unopposed roll. The order set out in para 1 above
was granted
accordingly.
[7]
The third respondent explained in the rescission application that the
letter of 25 July 2018 was not received by her attorneys
as the
address provided in the notice of intention
to
oppose was that of a secretary, Esme, who had unexpectedly resigned
from her employment with third respondent’s attorneys
early in
July 2018. In her founding papers in the rescission application two
procedural issues relevant to rule 42(1)
(a)
were raised. The first was that the court’s practice directive
does not provide for a mechanism for a party to set down an
opposed
application on the unopposed roll. The second was that the applicant
had failed to serve any set down. During argument
of the appeal,
however, the third respondent’s main contention relating to the
set down was focused on the form of the notice
of motion which she
contended was irregular as it did not comply with form 2(a) annexed
to the rules. It was, so the argument went,
an unauthorised hybrid
between form 2 and 2(a).
[3]
The point in respect of the form of the notice of motion was not
raised in the founding papers.
[8]
On behalf of the third respondent it was argued that the
predetermined date of set down reflected in the notice of motion
constituted
an irregularity as the rules of court require an
application to be made to the registrar to allocate a date of hearing
where no
opposing papers are filed.
[4]
[9] In
Colyn v Tiger Foods Industries Ltd t/a Meadow
Feeds Mills (Cape)
2003 (6) SA 1
(SCA) (
Colyn
) this court
considered the application of rule 42(1). It held:
‘
[4] . . . The guiding principle of the
common law is certainty of judgments. Once judgment is given in a
matter it is final. It
may not thereafter be altered by the Judge who
delivered it. He becomes
functus officio
and may not ordinarily vary or rescind his own judgment . . . . That
is the function of a Court of appeal. There are exceptions.
After
evidence is led and the merits of the dispute have been determined,
rescission is permissible only in the limited case of
a judgment
obtained by fraud or, exceptionally,
justus
error
. Secondly, rescission of a
judgment taken by default may be ordered where the party in default
can show sufficient cause. . . .
[5] It is against this common-law background, which imparts finality
to judgments in the interests of certainty, that Rule 42 was
introduced. The rule caters for mistake. Rescission or
variation does not follow automatically upon proof of a mistake. The
Rule gives the courts a discretion to order it, which must be
exercised judicially . . . .
[6] Not every mistake or irregularity may be
corrected in terms of the rule. It is, for the most part at any rate,
a restatement
of the common law. It does not purport to amend or
extend the common law. That is why the common law is the proper
context for
its interpretation. Because it is a rule of court its
ambit is entirely procedural.’
[5]
[10]
Generally a judgment is erroneously granted if there existed at the
time of its issue a fact of which the court was unaware,
which would
have precluded the granting of the judgment and which would have
induced the court, if aware of it, not to grant the
judgment.
[6]
[11]
What emerges from the aforesaid, as I understand the authorities, is
that not every procedural violation of the rules results
in an order
‘erroneously sought and erroneously granted’. It has
often been stated that the rules exist for the court
not the court
for the rules.
[7]
Rule 27(3) provides for a court to condone non-compliance with the
rules. It has been held that rule 6(5)
(a)
,
which requires a notice of motion to be ‘as near as may be in
accordance with form 2(a) of the first schedule’, is
peremptory.
[8]
Similarly, it has been held that rule 6(5)
(f)
(i)
and (ii), (which requires an application to the registrar for the
allocation of a date where form 2(a) has been used) is peremptory.
[9]
However, even peremptory provisions of the rules may, in appropriate
circumstances, be condoned.
[10]
The test, it seems to me, is whether any potential prejudice results
to a party affected.
[12]
I turn to consider the form of the notice of motion. In
Simross
Vintners (Pty) Ltd v Vermeulen; VRG Africa (Pty) Ltd v Walters t/a
Trend Litho; Consolidated Credit Cooperation (Pty) Ltd
v Van der
Westhuizen
1978 (1)
SA 779
(T), Coetzee J considered the consequence of using form 2
instead of form 2(a). He pointed out
[11]
that form 2(a) (unlike form 2) contains a description of the
procedural rights of a respondent after service of the notice of
motion. These rights, it was said, are considerable and substantial.
He concluded, accordingly, that the use of form 2 where form
2(a) was
prescribed rendered the notice of motion a nullity.
[12]
The position in the present matter, however, is different. The notice
of motion is, as I have said, a hybrid between form 2 and
2(a). It
gave unequivocal notice of the date upon which the matter would be
heard, whether opposing papers were filed or not. All
the procedural
rights provided for in form 2(a) were included in the notice of
motion and it allowed sufficient time for all those
rights to be
exercised. It recorded that the matter had been set down. The notice
of motion and the notice of intention to oppose
were placed before
the presiding judge in the high court. He approved of it, as he was
entitled to do, and made the order sought.
It cannot be said that it
was a mistake or that it was clearly wrong. I can conceive of no
prejudice which could arise from the
condonation of the form of the
notice of motion.
[13]
The gravamen of the third respondent’s complaint was that no
notice of set down was given. This court has repeatedly
held that the
failure to give notice of proceedings where such notice was required
constitutes an irregularity which justifies
rescission of the order
granted.
[13]
[14]
In
Lodhi
[14]
this court remarked:
‘
Where notice of proceedings to a party is
required and judgment is granted against such party in his absence
without notice of proceedings
having been given to him such judgment
is granted erroneously. That is so not only if the absence of proper
notice appears from
the record of the proceedings as it exists when
judgment is granted but also if, contrary to what appears from such
record proper
notice of the proceedings has in fact not been given.
That would be the case if the sheriff’s return of service
wrongly indicates
that the relevant document has been served as
required by the rules whereas there has for some other reason not
been service of
the document. In such a case the party in whose
favour the judgment is given is not entitled to judgment because of
an error in
the proceedings. If, in these circumstances, judgment is
granted in the absence of the party concerned judgment is granted
erroneously.’
In such circumstances service, as is required, did not
occur at all.
[15]
In
Top Trailers
[15]
a notice of motion in accordance with form 2
(a)
had been duly issued. No opposing papers were filed. The applicant
therefore proceeded to set the matter down on the unopposed
roll and
obtained judgment without further notice to the respondent. In an
application for rescission he contended that he was
procedurally
entitled to the judgment. He denied that the appellants were not
aware of the date of set down and contended that
his notice of motion
had informed the appellants of the steps that they were required to
take if they intended to oppose the application.
The appellants, so
the argument went, failed to comply with the time limits specified in
the notice of motion.
[16]
Top Trailers
related to a judgment of the
Gauteng North Division of the high court. This court held that para
13.10 of the Gauteng: Pretoria
Practice Manual regulated the
enrolment of applications in that court where a notice of intention
to oppose had been filed, but
no opposing papers. It provided for the
application to be set down and stipulated:
‘
The notice of set down of such an
application must be served on the respondents’ attorneys of
record.’
The
prescribed procedure requiring delivery of a notice of set down had
not been complied with and no notice had been given to alert
the
respondent that the matter would be heard. This court therefore
rescinded the order.
[17]
In this case, however, there is no corresponding rule of practice in
Mpumalanga. The notice of motion recorded the fact that
the matter
had been set down to be heard on 30 July 2018. I am not persuaded
that further notice was required, however, by virtue
of the
conclusion to which I have come it is not necessary for purposes of
this judgment to make a final pronouncement in that
regard.
[18]
As recorded earlier, the third respondent failed to comply with the
provisions of rule 6(5)
(d)
and no address was
provided in the notice of intention to oppose within 15 km of the
court. An electronic address was, however,
provided. Rule 4A provides
that service of all documents not falling under rule 4(1)
(a)
[16]
may be affected by electronic mail to the address provided by a party
under rule 6(5)
(d)
(i).
The letter of 25 July 2018, which unequivocally gives notice that the
matter had been set down and would be heard on 30 July
2018, was
transmitted in accordance with rule 4A to the address so nominated.
Notice was accordingly delivered in terms of the
rules. The
explanation for the non-receipt thereof is set out earlier. It
relates to the internal affairs of the third respondent’s
attorneys. That is not a mistake in the proceedings and is not a
procedural irregularity, nor an error in respect of the issue
of the
order.
[17]
At the time of the issue of the order there was no fact of which the
court was unaware, which would have precluded the granting
of the
order. In the circumstances I consider that the respondent was
procedurally entitled to the relief which she obtained. In
the result
the order was not erroneously sought and erroneously granted.
[19]
That brings me to relief under the common law. An applicant for
rescission of judgment taken by default against him is required
to
show good cause.
[18]
Whilst the courts have consistently refrained from circumscribing a
precise meaning of the term ‘good cause’,
[19]
generally courts expect an applicant to show ‘good cause’
(a) by giving a reasonable explanation of his default; (b)
by showing
that his application is
bona
fide
; and (c) by
showing that he has a
bona
fide
defence to the
plaintiff’s claim which,
prima
facie,
has some
prospect of success.
[20]
[20]
The third respondent provided no explanation at all for her failure
to file answering affidavits within the time period provided,
save
that she was ‘busy preparing the opposing affidavit and
gathering information from her father’s friends and other
family members’. The explanation for her default of appearance
at the hearing of the matter is set out earlier. It is that
her
attorneys did not receive the letter of 25 July 2018 which gave
notice of the hearing on 30 July 2018. There is no explanation
for
the failure to have complied with rule 6(5)
(d)
(i)
in providing an address within 15 km from the seat of the court at
which service of documents would be received. As I have said,
the
letter of 25 July was delivered to the address provided. No
explanation is provided for the failure to provide an alternative
address for service when the secretary in the offices of her attorney
had resigned.
[21]
I accordingly have my reservations about the reasonableness of the
explanation. In
Colyn
this court noted, at para 12, that:
‘
While
courts are slow to penalise a litigant for his attorney’s inept
conduct of litigation, there comes a point when there
is no
alternative but to make the client bear the consequences of the
negligence of his attorneys (
Saloojee
and Another NNO v Minister of Community Development
).
Even if one takes a benign view, the inadequacy of the explanation
may well justify the refusal of rescission on that account
unless,
perhaps, the weak explanation is cancelled out by the defendant being
able to put up a
bona
fide
defence which has not merely some prospect, but a good prospect of
success (
Melane
v Santam Insurance Co. Ltd
).’
[22]
[21]
I turn therefore to consider the defence raised by the third
respondent. In order to do so it is necessary to have regard briefly
to the applicant’s case as set out in the main application. She
alleged that the deceased resigned from his employment with
the
Department of Finance during 1998 and received a significant package.
He accordingly approached his broker at Bankcorptrust
Limited
[23]
for advice
in respect
of the investment of the money. His broker advised, amongst other
things, that a new will should be drawn. It is common
cause that at
that time the previous will executed by the deceased had been in
1992, before his marriage to the applicant. On the
instructions of
the deceased and the applicant a joint will was prepared by
Bankcorptrust in which it was nominated as the executor
of the joint
will.
[22]
Mr Jacques Pierre Rossouw, currently employed as a manager at Absa
Trust Limited in its National Will Drafting Service in Pretoria,
deposed to an affidavit in support of the main application. He said
that he had been provided with the unsigned draft will and
a copy of
the deceased’s identity document. He investigated the origins
of the unsigned draft will which reflects a bar code
at the top
right-hand side of each page. Mr Rossouw verified that the
document originated with Bankcorptrust Limited. He was
able to
establish this from the barcode and inscription on the top right-hand
corner of each page, which was commonly used within
the Wills
Division of the bank at the time. From the records of Bankcorptrust
he was able to link the barcode with the identity
number of the
deceased. The inscription below the barcode reflects the date 19
August 1998, which Rossouw states was the date of
its preparation.
[23]
Shortly after the preparation of the joint will, the applicant
alleged, it was signed at their home. Their broker, she stated,
delivered the document to their home and left shortly thereafter. The
deceased, the applicant and two family friends, Mr and Mrs
Havenga
were present. Mr and Mrs Havenga signed as witnesses to the will
while they were seated in the kitchen. During these
events, she
alleged, her daughter from a previous marriage, Cyzelle Fincham,
arrived at the home and enquired as to the events
occurring there. Mr
and Mrs Havenga and Mrs Fincham all deposed to supporting
affidavits confirming these events.
[24]
The applicant alleged further that the deceased advised that he would
deliver the document to Absa Bank. She bears no knowledge
as to the
events thereafter, however, as recorded earlier, upon his death the
original document could not be found. The unsigned
draft will, being
a copy of the original, was however located.
[25]
In the rescission application two defences to the applicant’s
case were raised. The first is a factual issue whilst the
second is a
matter of law. In respect of the first, the third respondent
denied that the signature of the document ever occurred.
In respect
of the second, she contended that the relief granted was incompetent
as the jurisdictional requirements of
s 2(3)
of the
Wills Act 7 of
1953
, had not been established. I shall consider each of these
defences below.
[26]
A
bona fide
defence needed to be established
prima facie
only.
[24]
It was accordingly not necessary to deal fully with the merits of the
case in order to prove the case. It would be sufficient to
set out
facts, which if established at the trial, would constitute a defence
valid in law.
[25]
The facts alleged, as in any other application, must be primary
facts. As Harms explained: ‘Primary facts are those capable
of
being used for the drawing of inferences as to the existence or
non-existence of other facts. Secondary facts, in the absence
of
primary facts on which they are based, are nothing more than the
deponents own conclusions.’
[26]
[27]
It is against this background that the factual defence raised should
be measured. The third respondent alleged that the applicant
has
‘made up a fictitious “coffee meeting” story’
about how, apparently in 1998, the deceased signed ‘some
sort
of document’. She said that she is gathering affidavits from
her grandmother, her aunt and from her husband to ‘put
to bed
any notion’ that the original of the draft will ‘would
ever have been signed’ by the deceased. Hence,
she contended
that there would be a dispute of fact which would have to proceed to
oral evidence.
[28]
The resignation of the deceased from his employment in 1998 and the
payment of a package was not challenged in any manner at
all. There
was no dispute about the evidence of Mr Rossouw, which goes a long
way to establishing that the document was prepared
at the instance of
the deceased. The third respondent did not disclose what would emerge
from the affidavits of her grandmother,
her aunt or her husband,
which, if established in the main application, would constitute a
defence. Her assertion that the events
deposed to by the applicant
and her witnesses are fictitious can at best be described as a
secondary fact unsupported by any primary
facts. There was nothing in
the rescission application which could foreshadow a
bona
fide
dispute of
fact in the main application such as to require a reference to
evidence.
[27]
[29] I accept that there may be cases in application
proceedings where a respondent makes an averment which, if proved,
would constitute
a defence to the applicant’s claim, but is
unable to produce an affidavit that contains allegations which
prima
facie
establishes that defence. Hence, in
Plascon-Evans Paints
this court stated:
‘
In certain instances the denial by
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or
bona fide
dispute of fact . . . If in such a case the respondent has not
availed himself of his right to apply for the deponents concerned
to
be called for cross-examination under Rule 6(5)
(g)
of the Uniform Rules of Court . . . the Court . . . may proceed on
the basis of the correctness thereof . . .’
[28]
[30]
However, in
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
[29]
this Court commented on the invocation of the provisions of rule
6(5)
(g)
in
such circumstances. It stated:
‘
It would be essential in the situation
postulated for the deponent to the respondent’s answering
affidavit to set out the
import of the evidence which the respondent
proposes to elicit (by way of cross-examination of the applicant’s
deponents
or other persons he proposes to subpoena) and explain why
the evidence is not available. Most importantly, and this requirement
deserves particular emphasis, the deponent would have to satisfy the
court that there are reasonable grounds for believing that
the
defence would be established. Such cases would be rare, and a court
should be astute to prevent an abuse of its process by
an
unscrupulous litigant intent only on delay or a litigant only intent
on a fishing expedition to ascertain whether there might
be a defence
without there being any credible reason to believe that there is
one.’
As
I have said, in the rescission application the third respondent did
not raise anything which could create a bona fide dispute
of fact in
the main application, nor were there averments which could satisfy a
court that there are reasonable grounds to believe
that her denial of
the signature of the document would be established. In the
circumstances, if I have reference to all the information
placed
before this Court the third respondent’s case was
insufficiently made to establish good cause.
[31]
The legal defence raised, which is set out earlier, may be briefly
dealt with. In the notice of motion in the main application
the
applicant sought the order which was ultimately granted and is set
out earlier. In the alternative, she sought an order ‘that
the
draft will annexed . . . to the applicant’s founding affidavit
be accepted as a validly executed will in terms of
s 2(3)
of the
Wills Act 7 of 1953
’. The relief granted did not relate to the
provisions of
s 2(3)
of the
Wills Act. It
is an order based on the
reconstruction of the original will. This may be done by proving that
a valid will was in fact executed
and what its terms were. Upon such
proof the court may under the common law powers, direct that the
estate be administered in accordance
with such terms.
[30]
The order which was made was in terms of the common law. There
is accordingly no merit in the legal defence raised and it
is not
necessary to have regard to the jurisdictional requirements of
s 2(3)
of the
Wills Act.
[32
] In the result, the appeal is dismissed with costs.
__________________________
J W EKSTEEN
ACTING JUDGE OF APPEAL
Molemela
JA (Dissenting)
[33]
I have read the judgment of my brother Eksteen AJA (the first
judgment). For the reasons that follow, I am unable to agree
with the
first judgment’s reasoning and conclusion.
[34]
This is a matter in which both parties did not, in one way or the
other, strictly comply with the Uniform Rules of Court. The
extent of
their non-compliance has already been canvassed in the first judgment
and need not be repeated here. The first judgment
found that the
letter dated 25 July 2018 indeed served to give notice that the
matter had been set down and would be heard on 30
July 2018.
[31]
That seems to me to be an acceptance
that the applicant indeed had to notify the respondent about the
hearing. In any event, as
far as I am aware, it has never been the
practice of our courts to simply ignore a Notice of Intention to
Oppose merely because
an Answering Affidavit had not been filed. It
is therefore quite significant that counsel for the applicant
indicated, during the
hearing of the appeal, that he represented the
applicant in the proceedings of the main application before
Engelbrecht AJ
and that he duly advised the learned Judge that
the respondent had been notified by e-mail dated 25 July 2018 about
the fact that
the application would be heard on 30 July 2018. That
being the case, what Engelbrecht AJ was apprised of takes centre
stage and
the parties’ non-compliance with the Uniform Rules
fades into the background.
[35]
As mentioned earlier, Engelbrecht AJ was apprised that the respondent
was advised of the hearing via the e-mail dated 25 July
2018. For her
part, the respondent averred that her attorney of record did not
receive the e-mail in question. Her attorney has
deposed to an
affidavit confirming that he indeed did not receive the e-mail and
explaining that the reason for the non-receipt
thereof was that the
e-mail address furnished in the Notice of Opposition was that of his
secretary, who had unexpectedly left
the employ of his firm before 25
July 2018.
[36]
As I see it, the crisp question is whether that specific e-mail
reached the intended recipient (the respondent’s attorney)
and
whether, the facts on which the respondent relies give rise to any
sort of error that may entitle the respondent to a rescission
of the
order on the basis that it was erroneously granted within the
contemplation of Rule 42(1)
(a)
or in terms of the
common law
.
[37]
It is quite telling that notwithstanding that the respondent
mentioned why her attorney did not receive the e-mail dated 25
July
2018 and also filed a confirmatory affidavit deposed to by the
attorney, the court a quo simply found that the respondent
‘has
not given a satisfactory explanation why [she] did not respond to the
[applicant’s] letter’. Purporting
to rely on a dictum in
Bakoven Ltd v GJ
Howes (Pty) Ltd (Bakoven)
,
[32]
the court a quo found that the
respondent was not justified in complaining that the order was
erroneously granted because she had
not given a satisfactory
explanation why (she) did not respond to the applicant’s e-mail
and had merely ‘folded her
hands’. It seems to me that
the court quo was unaware that the
Bakoven
dictum it relied upon was overruled in
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd
(Lodhi)
,
[33]
where this Court stated as follows:
‘
I
agree that Erasmus J in
Bakoven
adopted too narrow an interpretation of the words “erroneously
granted”. Where notice of proceedings to a party is
required
and judgment is granted against such party in his absence without
notice of the proceedings having been given to him such
judgment is
granted erroneously. That is so not only if the absence of proper
notice appears from the record of the proceedings
as it exists when
judgment is granted but also if, contrary to what appears from such
record, proper notice of the proceedings
has in fact not been given.
That would be the case if the sheriff’s return of service
wrongly indicates that the relevant
document has been served as
required by the rules whereas there has
for
some or other reason not been service of the document
.
In such a case, the party in whose favour the judgment is given is
not entitled to judgment because of an error in the proceedings.
If,
in these circumstances, judgment is granted in the absence of the
party concerned the judgment is granted erroneously.’
[34]
(Own emphasis.)
For
reasons set out hereunder, I am of the view that the present case is
one such as envisaged in this dictum.
[38]
My understanding of that dictum (the
Lodhi
dictum) is that a
judgment
is erroneously granted if there existed at the time of its issue a
fact which the court was unaware of, which would have
precluded the
granting of the judgment and which would have induced the court, if
aware of it, not to grant the judgment. There
is no closed list of
what these facts might or ought to be.
Under
this rubric, what is crucial is the established non-receipt of the
required notice. I am therefore not persuaded that the
non-receipt of
the notice on account of “internal affairs”
[35]
of an attorney can, without more,
fall outside the purview of the category of circumstances envisaged
in the
Lodhi
dictum.
As Engelbrecht AJ was specifically advised by the applicant’s
counsel during the hearing that a notification had been
sent via
e-mail dated 25 July 2018 and was unaware of the fact that the e-mail
in question had not been successfully transmitted
to the respondent’s
attorney, she granted the order labouring under the erroneous
impression that service had been effected
on the respondent. Her
order was therefore erroneously granted as envisaged in Rule 42(1)
(a)
of the Uniform
Rules of Court. The respondent was therefore entitled to have the
judgment rescinded. On that ground alone the appeal
ought to succeed.
[39]
As the respondent had indicated that her application for rescission
was also brought in terms of the common law, the court
a quo
considered whether the requirements of an application grounded on the
common law had been met. It is to that aspect that
I now turn. The
applicable common-law principles have been correctly set out in the
first judgment and need not be repeated in
this part of the judgment.
I consider next whether the applicable principles were correctly
applied by the court a quo. It should
be pointed out from the outset
that there is nothing in the papers that suggests that the
respondent’s application for rescission
of judgment is not bona
fide. The application was launched soon after she had been advised
about Engelbrecht AJ’s order.
[40]
In its consideration whether good cause was shown, the court a quo
failed to adequately interrogate the reasons advanced for
the
non-receipt of the e-mail of 25 July 2018. It paid no regard to the
fact that it was not disputed that the e-mail address furnished
in
the notice of opposition indeed bore the first name of the secretary
as a username and that it was undisputed that the secretary
in
question had resigned unexpectedly before the e-mail notification was
dispatched to her e-mail address. Without interrogating
the reasons
for non-delivery of the e-mail dated 25 July 2018, the court a quo
remarked that the respondent had not provided a
satisfactory
explanation for not responding to the e-mail dated 25 July 2018 and
that she had merely ‘folded her arms’.
Logic dictates
that the e-mail in question could not have been responded to, if it
had not been received. It is clear that the
court a quo did not
properly apply its mind to the explanation proffered by the
respondent for the default. The wrong premise from
which it
considered the explanation unfortunately permeated its weighing of
whether ‘good cause’ had been shown for
the default in
filing the answering affidavit.
[41]
I know of no general rule that precludes a court from accepting an
attorney’s unsatisfactory ‘internal affairs’
as a
reasonable explanation for defaulting in filing the necessary
pleadings or processes on behalf of its client.
[36]
At the end of the day, each case must
be considered on its own facts. This Court in
Colyn
v Tiger Foods
Industries Ltd t/a Meadow Feeds Mills (Cape)
[37]
observed that courts are slow to
penalise a litigant for his attorney’s inept conduct of
litigation but warned that there
comes a point when there is no
alternative but to make the client bear the consequences of the
negligence of his attorneys. I do
not believe that the present case
falls into the latter category.
[42]
The first judgment found that the respondent ‘provided no
explanation at all’ for her failure to file an answering
affidavit within the stipulated time period. No matter how weak the
respondent’s explanation that she was busy gathering
information from her father’s friends and other family members
may be considered to be, it cannot, in my view, be equated
to having
given no explanation at all. To the extent that the respondent’s
explanation may be considered weak, it is ‘cancelled
out’
by the bona fide defence she has raised.
[38]
[43]
The first judgment addressed itself to the applicant’s case and
concluded that the respondent had not raised a bona fide
defence. I
am not persuaded that that is the case. What follows hereunder are
important aspects that were not taken into consideration
by the court
a quo when it considered the application. First, the applicant in her
founding affidavit disclosed that she knew that
the respondent
disputed her version regarding the deceased’s wishes and about
the deceased having executed and signed the
Will attached to the
applicant’s application. This is a relevant consideration when
determining whether the respondent’s
version raises a genuine
dispute of fact. The following remarks by this Court ring true:
‘There will . . . be instances where
a bare denial meets the
requirements because there is no other way open to the disputing
party and nothing more can therefore be
expected of him’.
[39]
[44]
Second, although the broker who allegedly advised the deceased to
make the Will, prepared it and had it delivered at the applicant’s
home and subsequently took the signed will to the bank for
safe-keeping was still alive, namely Mr Arnold Hugo, this independent
witness’ affidavit giving his account of events was not
attached to the application and no reason was advanced for not doing
so. The applicant merely mentioned that her current broker had
advised her that Mr Hugo had stated that due to the long lapse of
time, he could not recall the facts as he had dealt with many wills.
[45]
The applicant’s version is that after Mr Hugo’s
departure, she and the deceased signed the Will and their friends,
the Havengas, signed as witnesses, whereupon the deceased undertook
to give the Will to Mr Hugo for safekeeping. What seems rather
odd is
for Mr Hugo to have taken the trouble of personally delivering the
Will at the applicant’s home after hours, only
to leave it
there without seeing to it that the applicant and the deceased had
signed it, whereas he knew he would have to personally
deliver the
signed Will to the bank for safe-keeping. I state this only to
illustrate the importance of Mr Hugo’s affidavit
and how its
absence has a bearing on the context in which the respondent’s
averments must be considered.
[46]
In my view, the first judgment’s criticism that the applicant
did not disclose any facts which may emerge from the affidavits
of
her relatives fails to take into account that the respondent averred
that the deceased had personally told her that he would
not appoint
the applicant as a beneficiary in terms of a Will because he had
already made provision for her by way of policies.
The respondent had
thus set out the import of the defence she proposed to rely on. She
did not have to deal fully with the merits
of the case and produce
evidence showing that the probabilities were in her favour.
[40]
[47]
Significantly, the respondent’s assertion about the existence
of policies that benefitted the applicant, an aspect vehemently
denied by the applicant in her answering affidavit, is borne out by a
print-out attached to the replying affidavit, which mentions
three
policies in addition to the Momentum investment policy that the
applicant had alluded to. Despite this, the court a quo found
that
the respondent’s version was unsubstantiated.
[48]
In relation to the respondent’s ‘legal defence’
alluded to in the first judgment, sight must not be lost
of the fact
that the respondent’s assertion that the applicant had not
fulfilled the requirements of
s 2(3)
of the
Wills Act emanated
from
the fact that the applicant’s Notice of Motion stated that she
was relying on
s 2(3)
of the
Wills Act in
relation to the alternative
order she was seeking. As correctly pointed out in the first
judgment, an applicant seeking the reconstruction
of a Will based on
common law principles would have to show that the valid will was
executed by the deceased.
[41]
The difficulty for the applicant is
the unexplained absence of a confirmatory affidavit from Mr Hugo, who
on the basis of having
prepared the Will on behalf of the deceased,
delivered it for signature and bore the responsibility of delivering
the signed Will
to the bank, is a key independent witness in relation
to whether or not the deceased had indeed signed the Will.
[42]
I therefore cannot agree with the
first judgment’s conclusion that the ‘legal defence’
raised by the respondent
has no merit.
[49]
Against the background sketched in the foregoing paragraphs, I am of
the view that the respondent’s averments constituted
a bona
defence to the applicant’s claim. In considering the assertions
made by a respondent in order to meet an applicant’s
case,
courts are expected to be mindful of the fact 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.
[43]
The court a quo, in its judgment,
seems to have inexplicably attempted to raise that threshold instead
of properly addressing itself
to whether the respondent had raised a
triable issue.
[50]
It must be borne in mind that a court’s discretion whether or
not to grant rescission of judgment must be influenced
by
considerations of justice and fairness, having regard to all the
facts and circumstances of the particular case.
[44]
Regrettably, the judgment of the
court a quo does not demonstrate that it followed that approach. I am
mindful of the fact that
a court considering whether to rescind a
judgment exercises a discretion. Although the scope for a court of
appeal to set aside
an order made by a lower court in the process of
exercising a discretion is limited, the court of appeal is entitled
to interfere
with the order of the lower court where that court was
influenced by wrong principles or a misdirection of the facts; in
other
words, where its discretion was not judicially exercised.
[45]
[51]
I have already canvassed the facts and circumstances that have led me
to conclude that the respondent has shown sufficient
cause and thus
met the requirements for an order rescinding the judgment in terms of
the common law.
[46]
I have also advanced reasons why I
believe that the court a quo’s discretion was
moved
by wrong principles of law and an incorrect appreciation of the
facts
.
This means that its discretion was not judicially exercised, thus
leaving this Court at large to tamper with its decision. For
all the
reasons stated above, I would uphold the appeal and replace the order
of the court a quo with one rescinding the judgment.
__________________
M B MOLEMELA
JUDGE OF APPEAL
Appearances
For
appellants: L van Gass
Instructed
by: Steenkamp Van Niekerk Attorneys, Irene
Webbers
Attorneys, Bloemfontein
For
respondent: C Smith
Instructed
by: Christo Smith Attorneys Inc, Nelspruit
Phatshoane
Henney Attorneys, Bloemfontein
[1]
Form 2(a) concludes with: ‘If no such notice
of intention to oppose be given, the application will be made on ……
(date) at ….. (time).’
[2]
Rule 6(5)
(d)
(i)
provides that: ‘Any person opposing the grant of an order
sought in the notice of motion must within the time stated
in the
said notice, give applicant notice in writing, that he or she
intends to oppose the application and in such notice appoint
an
address within 15 km of the office of the registrar, at which such
person will accept notice and service of all documents,
as well as
such persons postal, facsimile or electronic mail address where
available.’
[3]
Rule 6(5)
(a)
provides that every application, other than one brought
ex
parte
, must be brought on notice of
motion as near as may be in accordance with form 2(a) of the first
schedule . . .’
[4]
Rule 6(5)
(f)
(i)
provides: ‘[w]here no answering affidavit, or notice in terms
of subparagraph (iii) of para (d) is delivered within
the period
referred to in subparagraph (ii) of paragraph (d) the applicant may
within 5 days of the expiry thereof apply to the
registrar to
allocate a date for the hearing of the application.’
[5]
See also
Kili and
Others v Msindwana In Re: Msindwana v Kili and Others
[2001] 1 All SA 339
(TK) at 345 where it was stated that the rule is
a ‘procedural step designed to correct expeditiously an
obviously wrong
judgment or order’.
[6]
Nyingwa v Moolman NO
1993 (2) SA 508
(TK) at 510D-G;
Naidoo
and Another v Matlala NO and Others
2012 (1) SA 143
(GNP) at 153C;
Rossitter
v Nedbank Limited
(unreported, SCA
case number 96/2014 dated 1 December 2015) para 16;
Thomani
and Another v Sobeka NO and Others
2017 (1) SA 51
(GP) at 58C-E;
Occupiers,
Berea v De Wet NO and Another
2017 (5)
SA 346
(CC) at 366E-367A.
[7]
See for example
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773
(A) at 783A.
[8]
Gallagher v Normans Transport Lines (Pty) Ltd
1992 (3) SA 500
(W) at 502E.
[9]
Nordberg Inc and Another v AQTN Services CC
and Another and Several Other Matters
1998 (3) SA 531.
[10]
See
Motloung and
Another v The Sheriff, Pretoria East and Others
[2020] ZASCA 25
(SCA) para 29, where Govern AJA considered a failure
by the registrar to sign a summons and held: ‘In my view, the
present
clearly falls within the ambit of a peremptory requirement
which breach can be condoned under
Rule 27(3).
Despite not complying
with a peremptory provision of
Rule 17(3)
(c)
it is not visited with nullity. It can
be condoned.’
[11]
At 784.
[12]
A contrary view was expressed in
Mynhardt
v Mynhardt
1986 (1) SA 456
(T);
Gouws
v Scholtz
1989 (4) SA 315
(NC) at
320I.
[13]
Lodhi 2 Properties Investments CC
and Another v Bondev Developments (Pty) Ltd
[2007]
ZASCA 85
;
2007 (6) SA 87
(SCA) para 24; See fn 6
Rossitter
para 16;
Top
Trailers (Pty) Ltd and Another v Kotzé
(1006/2018) [2019] ZASCA 141.
[14]
Id
Lodhi
para 24.
[15]
See fn 13.
[16]
Rule 4(1)
(a)
relates
to documents initiating legal proceedings.
[17]
See
Colyn
para 9.
[18]
De Wet and Others v Western Bank Ltd
1977
(2) SA 1033
(W) at 1042F-1043C;
Colyn
para 11.
[19]
HDS Construction (Pty) Ltd v Wait
1979 (2) SA 298
(E) at 300-301B.
[20]
Grant v Plumbers (Pty) Ltd
1949
(2) SA 470
(O) at 476;
HDS Construction
at 300F-301C;
Chetty v Law Society,
Transvaal
1985 (2) SA 756
(A) at
764I-765F.
[21]
Rule 4A(2)
provides that an address for service,
or electronic address mentioned in sub-rule (1) may be changed by a
delivery of notice
of a new address and thereafter service may be
affected as provided for in that sub-rule as such new address.
[22]
Citations omitted.
[23]
The predecessor to Absa Trust Limited.
[24]
Standard Bank of SA Ltd v El-Naddaf
and Another
1999
(4) SA 779
(W) at 784;
Trapel Farms CC
and Others v Rodel Financial Services (Pty) Ltd
[2013] JOL 29822
(KZP) para 19;
Ferris
v Firstrand Bank Ltd
[2013] ZACC 46;
2014 (3) SA 39 (CC).
[25]
PLJ van Rensburg en Vennote v Den Dulk
1971 (1) SA 112
(W);
Sanderson
Technitool (Pty) Ltd v Intermenua (Pty) Ltd
1980
(4) SA 573 (W).
[26]
LTC Harms
Civil
Procedure in the Supreme Court
(1990)
at B6.25. See
Die Dros (Pty) Ltd and
Another v Telefon Beverages CC and Others
[2003] 1 All SA 164
(CC) para 28.
[27]
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634G-635A.
[28]
Plascon-Evans
at
634J-635A.
[29]
Minister of Land Affairs and Agriculture and
Others v D & F Wevell Trust and Others
[2007] ZASCA 153
;
2008 (2) SA 184
(SCA) para 56.
[30]
See for example
Nell
v Talbot NO
1972 (1) SA 207
(D) at
209H-210E;
Ex Parte Porter and Another
2010 (5) SA 546
(WCC) para 12.
[31]
See para 18 of the first judgment.
[32]
Bakoven Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 446
at 471E-I.
[33]
Lodhi 2 Properties Investments CC v Bondev
Developments (Pty) Ltd
[2007] ZASCA
85;
2007 (6)
SA 87 (SCA).
[34]
Lodhi
para 24.
That dictum was re-affirmed by this Court in
Rossitter
v Nedbank Limited
(unreported, SCA
case number 96/2014 dated 1 December 2015) para 16 and in
Top
Trailers (Pty) and Another v Kotze
[2019]
ZASCA 141
para 17. Notably, no attempt was made to qualify that
dictum in any way.
[35]
See the first judgment, para 18.
[36]
Hassim v Fab Tanks
[2017] ZASCA 145
;
Ferris and Another v
FirstRand Bank Ltd
[2013]
ZACC 46
;
2014
(3) SA 39
(CC) para 25.
[37]
Colyn v Tiger Foods Industries Ltd t/a Meadow
Feeds Mills (Cape)
2003 (6) SA 1
(SCA).
[38]
Ibid para 12.
[39]
Wightman t/a JW Construction v Headfour (Pty)
Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para 13.
[40]
Compare
Hassim v Fab
Tanks
[2017] ZASCA 145
para 28.
[41]
See para 31 of the first judgment and the
authorities quoted therein.
[42]
The applicant averred that the deceased had
informed her that he would give the signed Will to Mr Hugo.
[43]
Compare
Hassim v Fab
Tanks
[2017] ZASCA 145
para 12;
Sanderson Technitool (Pty) Ltd v
Intermenua (Pty) Ltd
1980 (4) SA 29
(SCA) at 34E-F.
[44]
De Wet and Others v Western Bank Ltd
1979
(2) SA 1031
(A) 1042H.
[45]
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Limited and Another
[2015]
ZASCA 22
;
2015 (5) SA 245
(CC) para 88;
Ferris
and Another v FirstRand Bank Ltd
[2013]
ZACC 46
;
2014
(3) SA 39
(CC) para 28 and 29.
[46]
See
Chetty v Law
Society, Transvaal
1985 (2) SA 756
(A)
at 764I–765 E.