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Moleleki AJ
[1] This is an appeal arising from a judgment granted by the Magistrates’ Court,
Mbombela (the court a quo ) handed down on 3 October 2024, in which it
dismissed an application for the rescission of a default judgment brought in
terms of Rule 49(1) of the Magistrates’ Court.
[2] In terms of Rule 49(1) an application for rescission of judgment should be
brought within 20 (twenty) days after obtaining knowledge of judgment. The
application was brought 64 days from the date on which the appellant became
aware of the default judgment against it. As a result, the appellant had
simultaneously with the application for rescission, filed an application for
condonation of the late filing of the rescission application.
The Facts
[3] On 9 November 2020 the respondent delivered his motor vehicle, an Audi TT
Coupe to the appellant’s workshop due to a gearbox and clutch malfunction.
The respondent instructed the appellant to identify the problem in the vehicle.
The appellant conducted tes ts and established that both the mechatronic unit
and gearbox were damaged. The appellant presented the respondent with a
quotation for the necessary repairs which the respondent duly accepted. Upon
completion of the repairs, the appellant discovered that the vehicle also had an
electrical fault. The respondent instructed the appellant to attend to the
electrical fault. Further to that, the wiring of the vehicle was faulty. The
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respondent resolved to take the vehicle to a third party for further repairs. The
appellant ceased all further work on the vehicle.
[4] On 12 November 2021 the respondent’s attorneys dispatched a letter to the
appellant demanding payment of the amount of R60 000 (Sixty Thousand
Rand) for the work allegedly not done by the appellant pertaining to the
respondent’s motor vehicle. On 8 December 2021 the appellant’s attorneys
sent correspondence to the respondent’s attorneys setting out the appellant’s
defence. On 11 April 2023 the respondent caused summons to be served on
the appellant’ director, Mr. Dirk Cornelius Human (Mr Human). On 31 May 2 024
the respondent sought default judgment against the appellant. The default
judgment was granted in light of the failure of the appellant to enter appearance
to defend the action pursuant to service of the summons on the appellant’s
director.
[5] The relevant sub rules for purposes of this appeal are sub -rules (1) and (3) of
Rule 49, which read as follows:
(1) A party to proceedings in which a default judgment has been given, or any
person affected by such judgment, may within 20 days after obtaining
knowledge of the judgment serve and file an application to court, on notice to
all parties to the proceedings, for a rescission or variation of the judgment and
the court may, upon good cause shown, or if it is satisfied that there is good
reason to do so, rescind or vary the default judgment on such terms as it deems
fit: Provided that the 20 days' period shall not be applicable to a request for
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rescission or variation of judgment brought in terms of sub -rule (5) or (5A).
[emphasis added]
(2) …
(3) Where an application for rescission of a default judgment is made by a
defendant against whom the judgment was granted, who wishes to defend the
proceedings, the application must be supported by an affidavit setting out the
reasons for the defendant’s abse nce or default and the grounds of the
defendant’s defence to the claim.
[6] It is trite that for an application for rescission of a default judgment to be
successful as contemplated in Rule 49, the court must be satisfied that an
applicant has proven that there is good cause for the court to rescind the
judgment and that the applicant has a substantial d efence to the action.1
The Rescission Application
[7] The respective contentions of the parties pertaining to the rescission application
will not be dealt with in detail. The judgment will be confined to those matters
and submission that are deemed to be relevant for purposes of this appeal .
[8] The appellant furnished a lengthy explanation for its failure to defend the action,
and gave a detailed account of what is contended to constitute bona fide
defences to the respondent’s claim.
[9] A reasonable explanation for the default
1 Jones and Buckle: The Civil Practice of the Magistrates ‘Courts in South Africa 10th ED, 2022.
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[10] Mr Human, the appellant’s sole director stated under oath that, having
received the summons, he instructed the administrative manager in the employ
of the appellant the attend to claims against the appellant and to pay service
providers. Unbeknown to Mr Hu man, the administrative manager failed to do
as instructed. While the respondent obtained default judgment against the
appellant on 31 May 2024, the appellant became aware of the default judgment
on 24 June 2024 when it received correspondence from the res pondent’s
attorneys to which a copy of the default judgment was attached. At this point in
time the administrative manager of the appellant had long resigned (six months
prior). The appellant’s attorneys were approached regarding the default
judgment. Only then did it become apparent to Mr Human that the matter was
never defended. The attorneys sought all the information pertaining to the
matter. Mr. Human encou ntered difficulties in gathering all the information as
the administrative manager had already left the employ of the appellant. The
necessary information was ultimately found on 25 July 2024 and was handed
over to the attorneys on 26 July 2024. As a result, an application for rescission
of judgment was brought out of time.
[11] As stated, the requirements for rescission of default judgment are
twofold. First, a reasonable and satisfactory explanation for the default must be
furnished. Second, it must be shown that on the merits there is a bona fide
defence which prima facie carries some prospects of successes.2. The court in
Chetty v Law Soc, TVL3 stated that:
2 Government of the Republic of Zimbabwe v Fick 2013(5) SA 325 (CC) at 85.
3 Chetty v Law Soc, TVL 1985(2) SA 756 (A) at 765 .
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“it is not sufficient if only one of these two requirements is met; for obvious reasons a
party showing no prospects of success on the merits will fail in an application for
rescission of a default judgment against him, no matter how reasonable and convincing
the explanation of his default. An ordered judicial proces s would be negated if, on the
other hand, a party who could offer no explanation of his default other than his disdain
of the Rules was nevertheless permitted to have a judgment him rescinded on the
ground that he had reasonable prospects of success on the merits. The reason for my
saying that the appellant’s application for rescission falls on its own demerits is that I
am unable to find in his lengthy founding affidavit or elsewhere in the papers, any
reasonable or satisfactory explanation of his default and total failure to offer any
opposition whatever…”
At 767J to 768:
“As I have pointed out, however, the circumstance that there may be reasonable or
even good prospects of success on the merits would satisfy only one of the essential
requirements for rescission of a default judgment. It may be that in certain
circumstance s, when the question of the sufficiency or otherwise of a defendant’s
explanation for his being in default is finely balanced, the circumstance that his
proposed defence carries reasonable or good prospects of success on the merits might
tip the scale in h is favour in the application for rescission.4 But this is not to say that
the stronger the prospects of success the more indulgently will the Court regard the
explanation of the default.”
Bona fide Defence
4 Melane v Santam Insurance Co Ltd 1962(4) SA 531 (A) at 532 .
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[12] The second enquiry is whether the appellant has raised a bona fide
defence to the respondent’s claim against it. A plethora of authorities confirm
that a court seized with an application for rescission of judgment should not, in
determining whether good or sufficient cause has been proven, look at the
adequacy or otherwise of the explanation of the default or failure in isolation,
instead …, must be considered in the light of the nature of the defence, which
is an important consideration, and in the light of all the facts and circumstances
of the case as a whole5.
[13] The defences raised by the appellant may be summarised as follows:
a. Summons were defective as the parties were not accurately identified;
b. the respondent, as a party relying upon an oral contract, failed to
accurately state the date upon which it was concluded, by whom and the
terms thereof;
c. The respondent failed to clearly and sufficiently distinguish different
claims that he purported to bring against the appellant in respect of two
different motor vehicles ;
d. The respondent failed to furnish the court with evidence, either orally or
by affidavit detailing the nature and extent of his claim, to ensure that the
court had sufficient information to make an informed decision about the
amount of damages payable;
e. The deponent of the respondent’s purported ‘damages affidavit’ lacked
the necessary expertise, did not lay the factual basis for his conclusions
nor did he explain his reasoning to the court and cannot be accepted as
5 Mokgatle v Allegiance JHB South (PTY) Ltd (47615/2020) [2024] ZAGPPHC 661 (2 July 2024)
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damages affidavit. There was therefore no basis upon which the
respondent could claim from the appellant.
[14] In the matter before us, there is no doubt that the appellant has not
sufficiently explained its failure to defend the action, particularly because Mr
Human was not only served personally with the summons, but rather, had been
aware of looming litigation as far back as 12 November 2021 wh en the
appellant received a letter of demand from the respondent. The letter of
demand was handed to the appellant’s attorneys for a response. It is apparent
that this is a classic case of a client that failed to keep conta ct with its legal
representatives. This is evidence d by the fact that the attorney’s accounts for
work previously done on behalf of the appellant, were never settled.6 The
documents pertaining to this matter were misplaced and not attended to in the
appellant’s own offices, in what appears to be inexcusable inefficiencies on the
part of its administrative manager.
[15] The appellant’s version that it became aware of the default judgment on
24 June 2024 remains uncontested. The court is therefore satisfied that
appellant has, at least, shown prima facie that it has good defences to the
action. The weak explanation proffered is therefore, cancelled out by the
appellant having put up several bona fide defences, which do not merely have
some prospects, but reasonable prospects of success.7
Application for Leave to Appeal
6 Bristow v Hill 1975(2) SA 505 (N) at 507E -G.
7 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003(6) SA 1 (SCA) at par 12.
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[16] In its notice to appeal, the appellant averred that the court a quo erred
and/or misdirected itself in the following respects:
a. By failing to place the relevant amount of weight on the merits of the
defences that were advanced by the appellant, despite that to a great
degree such merits remained unchallenged;
b. By failing to accept that good cause, alternatively sufficient cause was
shown for the rescission of judgment;
c. By failing to find that the appellant was not in wilful default;
d. By failing to accept that it would be sufficient for the appellant to make
out a prima facie defence in the sense of setting out averments which, if
established at trial would entitle the appellant to the relief sough ;
e. By failing to take proper regard that the respondent failed to comply with
the various provisions of the Rules and that, had these aspects been
taken into proper regard, the application for rescission of judgment would
have succeeded;
f. By failing to accept that: the respondent did not prove locus standi; the
evidence accepted was not of an expert nature; the appellant was held
liable for the damages under circumstances where damage was caused
by a totally different person; the respondent failed to separate claims
where they should have been separated.
[17] The appellant in the rescission application dealt thoroughly with the
defences to the claim. The respondent elected not to deal with the defences at
all in its answering affidavit. Instead, the only issue s the respondent dealt with
relate to the appellant’s failure to present reasonable and acceptable
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explanation for its default and that the appellant was in wilful default. The
respondent went as far as conceding that, the appellant may have a valid
defence but has not given a plausible and cogent reason for the default.
Essentially, in considering whether a good cause has been shown, a question
that entails prospects of success on merits of the case, the only version before
the court is that of the appellant.
[18] The averments set out by the appellant, if established at the trial, would
constitute good defences. Consequently, the appellant is entitled to an order
upholding the appeal .
Order
[19] The following order is made:
19.1 The appeal succeeds.
19.2 The order of the Magistrates’ Court, Mbombela ; is set aside and replaced
with the following:
a) The late filing of the condonation application brought by the
applicant is condoned .
b) The default judgment granted on 31 May 2024 under case
number: 844/2023 is rescinded and set aside;
c) Leave is granted to the applicant to defend the action;
d) The applicant is to deliver a plea within 20 (twenty) court days
from the date of this order;
e) Costs in cause .
19.3 The respondent i s ordered to pay the costs of this appeal.
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