Introduction
[1] This is an application for leave to appeal against an order of this court
handed down on 1st November 2024.
[2] On 22nd January 2025, the day of the appeal hearing, the defendant filed their
condonation for the late filing of the intention to oppose. The applicant did not
object to the respondent's late filing of the notice of intention to oppose the
leave to appeal.
[3] As a result, the court granted condonation for the late filing of the intention to
oppose.
Background
[4] This matter was on the default judgment roll on 3rd September 2024 which
was standing down until 6 September 2024. The reason why this matter was
standing down is for the Respondent to prepare and bring an application for
condonation or to make a fair and reasonable offer for the Plaintiff.
[5] On 6 September 2024 this matter proceed by way of default judgment with no
appearance of the Respondent . The Court refused the default judgment
application, because there was no proper application for default judgment
served on the Respondent (RAF).
Applicant ’s submissions
Counsel for the applicant, Adv Zidel SC submitted as follows:
[6] Plaintiff Counsel, referred and read to the Court , Rule 31(4), which is
the applicable rule with regards to a default judgment application. Rule 31(5)
do not apply here.
[7] Rule 31(2) and Rule 31(4) is the applicable Rule for a default judgment
application.
[8] Adv Zidel (SC) further reported that he has not seen the revised consolidated
practice directive 1 of 2024 as amended on 12 June 2024.
[9] Counsel submitted the Supplementary Heads of Argument via email on
22nd of January 2025, after the hearing had taken place. As the Defendant did
not have the opportunity to address the court regarding these Supplementary
Heads of Argument, the Court is unable to accept the aforementioned Heads
of Argument submitted after the hearing. Counsel submit ted the Heads of
Argument on 22nd of January 2025, without the permission of the court.
Respondent ’s submissions
[10] The State Attorney, Mrs Davis apologized for not being at court on 6th
September 2024, as she was on maternity leave.
[11] Mrs Davis further reported that she consented to the judgment. Mrs Davis
referred the court to the revised consolidated practice directive 1 of 2024 as
amended on 12 June 2024, pg 00-117, paragraph 5 which reads as follows:
“A notice of motion informing the RAF of the bringing of this application
together with a founding affidavit fully setting out the grounds on which
application for default judgment is being thought has been uploaded to the
Caselines ” [1]
[12] Mrs Davis reported that Rule 31(5) is the correct rule to apply to bring a
default judgment application. The court has a discretion to make a decision.
[13] Mrs Davis further submitted to the court that the attorney should be personally
liable for the costs, or that the costs should be awarded on an attorney and
client scale.
The Law
[14] In terms of Section 17(1) of the Superior Courts Act No 10 of 2013 Act, [2]
there are two grounds upon which leave to appeal can be granted.
First, the Judge who granted an order must be of an opinion that the appeal
would have a reasonable prospect of success. [3] It goes without saying that
there is always a possibility of another judge reaching a different conclusion.
However, that is not the test. The test is a subjective view of the judge who
decided the matter of whether the appeal would have a reasonable prospect
of success, and not “may” or “could” have a reasonable prospect of success.
Is the decision not to give judgme nt by default appealable?
[15] It is important to note that this Court had not given a default judgment
sought by the applicant but refused to give a default judgment. It can also not be
said that this Court had issued an order granting an absolution from the instance.
Therefore, the judgment has the same effect as if it were removed from the roll.
APPEARANCES:
For the Plaintiff : Adv Zidel SC
Instructed by : De Broglio Attorneys Inc
Ref: M4060/Prishani Singh/Moses
email: prishani@onlinelaw.co.za
For Defendant : Mrs Davis
Instructed by : Road Accident Fund
The State Attorney
Link no: 4981943
Date of hearing : 22 January 2025
Date of judgment : 25 March 2025
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[1] Caselines 00: Opposition of leave to appeal, item 2, pg 00-117
[2] 10 of 2023
[3] Section 17(1) (a)(i) of the Superior Courts Act
[4] Unreported judgment case number A121/2018 dated 21 June 2019
[5] 2004 (6) SA 410 (T) at 416 C