IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU NATAL LOCAL DIVISION, DURBAN
CASE NO: 11918/2016
In the matter between:
AVIS RENT A CAR, A DIVISION OF BARLOWORLD
SA (PTY) LTD PLAINTIFF
and
KIRK HIMUNCHUL FIRST DEFENDANT
KURT LUBBE SECOND DEFENDANT
This judgment was handed down electronically by circulation to the parties’ representatives by email,
and released to SAFLII. The date for hand down is deemed to be 10 March 2026 at 12:30am.
ORDER
1. By consent between the plaintiff and the first defendant:
(a) The plaintiff is granted leave to withdraw its claim against the first defendant;
(b) Each party shall pay their own costs in respect of the claim.
2. The plaintiff’s claim for judgment against the second defendant is adjourned
sine die to open court for evidence to be led in respect of the quantification of
plaintiff’s claim.
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3. The hearing of the plaintiff’s claim for judgment against the second defendant
must be preceded by personal service on the second defendant of the notice of set
down.
4. There is no order of costs against the second defendant in respect of the
adjourned proceedings set down from 16 to 19 February 2026.
JUDGMENT
CHETTY J
[1] The plaintiff (Avis) instituted action against the first and second defendants, who
were employees of the plaintiff. The claim instituted by Avis arises from the employees’
breach of their employment contract in circumstances where it is claimed that the first
and second defendant engaged in the excessive consumption of alcohol after which
the second defendant took possession of a 2010 BMW 125i, bearing registration
number ZBV693 GP, belonging to the plaintiff, drove it at excessive speed resulting in
a collision. Avis proceeded to sue the defendants, jointly and severally, for the
damages sustained, being the replacement costs of the vehicle.
[2] According to the particulars of claim the first defendant was employed as a
manager of Avis’ car sales division in Balito, KwaZulu-Natal, with the second defendant
employed as a sales representative. It is alleged that the second defendant drove the
vehicle while under the influence of alcohol and at an excessive speed. He failed to
keep the vehicle under his control, causing him to collide with an immovable property
in the vicinity of Blackburn and Umhlanga Rocks Drive, Durban.
[3] As a result of the collision, the BMW vehicle was damaged beyond repair,
causing the plaintiff to suffer damages in the amount of R216 000 being the
replacement value of the vehicle. Avis further contends that the cause of action is
based on the breach by the first and second defendants of their respective contracts
of employment in that they committed gross misconduct by failing to exercise care for
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the plaintiff’s property, and wilfully and negligently caused damage thereto. In light of
their wrongful conduct, Avis claimed payment of R216 000 from the first and second
defendants, jointly and severally, the one paying the other to be absolved.
[4] Upon service of the summons, the first defendant (Mr Himunchul) entered an
appearance to defend and in due course filed a plea in which he denied that he was
in breach of his contract of employment, and further alleged that the second defendant
(Mr Lubbe) had stolen or unlawfully removed the keys to the said BMW motor vehicle,
and drove the vehicle w ithout his permission or knowledge. In the circumstances he
denied the negligence attributed to him and disputed liability for the amount of
damages claimed.
[5] The second defendant proceeded to file a notice to abide, dated 4 June 2017 ,
in which he acknowledged that he was solely responsible for having caused the
damage to the BMW motor vehicle owned by the plaintiff and of ‘having caused any
or all consequent damages suffered by the plaintiff in the above action’.
[6] The plaintiff proceeded with its action against the first defendant, w hich
eventually proceeded to trial in 2019, after which it became part -heard. It was again
set down for trial in February 2026. On the first day of the part-heard trial, Mr Shapiro
SC, who appeared on the behalf of the plaintiff , informed me that the matter had
become settled after discussions between the plaintiff and the first defendant.
[7] The first defendant was present in court at the time with his attorney and
confirmed that the action had been withdrawn against him on the basis that each party
would be liable for their own costs. I was not presented with a copy of the settlement
agreement although I was advised by counsel for the plaintiff that the settlement
agreement would be made available.
[8] At the time of moving for the withdrawal of the action to be recorded by the
[8] At the time of moving for the withdrawal of the action to be recorded by the
court, Mr Shapiro informed me that the plaintiff was seeking an order in the following
terms:
‘1. By consent between the plaintiff and the first defendant, it is ordered that:
1.1 the plaintiff is granted leave to withdraw its claim against the first defendant.
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1.2 each party shall pay their own costs in respect of the claim.
2. Judgment is granted in favour of the plaintiff and against the second defendant for:
1.3 payment of the sum of R216,000.00 (two hundred and sixteen thousand
rand);
1.4 interest thereon at the legal rate of interest of 10.25% per annum from date of
service of summons to date of final payment;
1.5 costs of suit on Scale B.’
[9] During the course of my exchange with Mr Shapiro I enquired whether the
second defendant, Mr Lubbe, was aware that the matter had been set down as a part-
heard trial and whether he was aware that the matter was being settled as between
the plaintiff and Mr Himunchul, and more particularly that judgment w as now being
sought against him. The answers to all my enquiries were in the negative. As I did not
have a complete set of the pleadings available ,1 I informed counsel that I had no
objection to recording the withdrawal of the action between the plaintiff and the first
defendant, however, I was not satisfied as to whether I could grant judgment against
the second defendant in his absence, and without him being given notice that
judgment was being sought against him as part of the settlement agreement between
the plaintiff and the first defendant.
[10] Counsel for the plaintiff drew to my attention that the notice to abide filed by the
second defendant clearly indicated that the second defendant had no intention to
defend the plaintiff’s claim.
[11] I accordingly turn to consider the plaintiff’s request for judgment against the
second defendant. I indicated to counsel that I intended to reserve judgment as
regards the prayer for relief against the second defendant and requested counsel to
furnish me with written submissions as to why judgment should be entered against the
second defendant, in his absence.
[12] Mr Shapiro responded, advancing a similar argument to that canvassed above
and submitted that the notice to abide was equivalent to a consent to judgment in all
and submitted that the notice to abide was equivalent to a consent to judgment in all
1 The file had been taken by the plaintiff’s attorney to be indexed and paginated and had not been
returned at the time of the hearing.
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material respects. It was submitted that the second defendant had conceded in writing
that he caused the damage to the plaintiff’s motor vehicle and was responsible for all
consequent damages suffered by the plaintiff. As I understood this submission, it
suggested that the second defendant had conceded liability on the merits as well as
the quantum of the damages claimed. On this basis, it was contended there was
enough to grant judgment against the second defendant.
[13] Essentially the contention of Avis is that the second defendant has forsaken
any opportunity to oppose the granting of an order for default judgment against him in
light of the filing of his notice to abide. I disagree for the reasons below.
[14] The first is that the notice to abide was filed almost nine years ago. The plaintiff
chose to proceed to trial against the first defendant, making no attempt at the inception
of the trial on 9 September 2019 to apply for judgment against the second defendant.
No explanation was advanced for why judgment was not sought earlier against Mr
Lubbe and why A vis only sought to c hange focus after concluding a settlement
agreement with the first defendant. As part of that agreement, the first defendant has
agreed to testify against the second defendant in any proceedings that may arise. To
grant judgment against Mr Lubbe, under these circumstances, would in my view be
unfair. He has no knowledge of the arrangement between the plaintiff and the first
defendant. He has not participated in these proceedings for close to nine years. At a
minimum, if the plaintiff intended to proceed with a default judgment application
against the second defendant, it was obliged to have given him notice. It did not.
[15] Secondly, I have had regard to the decision of Dlodlo J (as he then was ) in
Clairison’s CC v MEC for Local Government, Environmental Affairs and Development
Planning and Another2 which shed some light on the effect of the filing of a notice to
Planning and Another2 which shed some light on the effect of the filing of a notice to
abide, and whether such notice prevented a litigant from filing an “explanatory affidavit”
at a later stage. I have also had regard to the recent decision in Ngiri Auto (Pty) Ltd v
Bux and Others 3 where the court considered the implications of a notice to abide in
Clairison’s case, but where the facts were somewhat different to this matter. In
2 Clairison’s CC v MEC for Local Government, Environmental Affairs and Development Planning and
Another 2012 (3) SA 128 (WCC) (Clairison’s).
3 Ngiri Auto (Pty) Ltd v Bux and Others [2024] ZAGPJHC 968.
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Clairison’s the applicant sought to review a decision to refuse an application to change
the land use of certain property. The municipality filed a notice to abide and only after
the applicant filed its replying affidavit, did the municipality seek to file an explanatory
affidavit, in essence siding with the applicant. This was objected to on the basis that
the municipality clearly conveyed the intention earlier not to enter the fray, similar to
the position by Mr Lubbe in the current matter. However, unlike the municipality in
Clairison’s, Mr Lubbe did not seek to enter the fray from the time he filed the notice to
abide. Dlodlo J however allowed the municipality to file its affidavit, noting that he could
find no rule or reason of principle, precluding any party to the litigation from filing an
affidavit and placing its position on record. Likewise, it appears to me that no prejudice
can be claimed by the plaintiff if the request for default judgment were to be postponed
to enable proper service of the notice of set down to be served on the second
defendant.
[16] There is a further reason why judgment should not be granted against the
second defendant as matters stand . The plaintiff’s claim for R216 000 is an
unliquidated amount, based on the vehicle being damaged beyond economical repair.
The amount of damages suffered by the plaintiff is the replacement value of the BMW.
The particulars of claim do not disclose any further details as to how the amount is
arrived at. It is a well -established r ule that where damages are claimed, judgment
(even in default) will only be granted where evidence has been led or the amount of
damages has been quantified to the satisfaction of the court.
[17] In as much as it is contended that the notice to abide constitutes a confession
to judgment, a perusal of the said notice reveals that it does not meet the formal
requirements of a confession to judgment as contemplated in Uniform r ule 31(1).
requirements of a confession to judgment as contemplated in Uniform r ule 31(1).
There is no verification of the second defendant’s signature by means of an affidavit
(rule 31(1) (b)). Having regard to the date when the purported “confession” was
forwarded to the plaintiff’s attorney, it is not clear to me why the attorneys did not seek
to obtain judgment at that stage rather than wait almost nine years , and after
withdrawing its claim against the first defendant.
[18] There is yet a further reason why I am not persuaded that it would be in the
interest of justice to grant judgment in favour of the plaintiff , in the absence of notice
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to him. The particulars of claim refer to a “further claim” arising in the event of third
parties, whose property was damaged as a result of Mr Lubbe colliding with an
immovable property as well as the consequent damage to four other vehicles parked
on the property. The amount claimed by the insurer on behalf of the third parties was
approximately R193 000. It is not clear whether payment of such further damages will
be claimed against the second defendant, in addition to the amount of R216 000.
[19] Lastly, the usual purpose for a party filing a notice to abide is to signify to all
other parties that he or she has no intention to enter the fray and will respect the
outcome of the court’s determination. It is also done to avoid the risk of costs
escalating and being granted against it. The draft order presented to me however
seeks costs and interest against Mr Lubbe . His notice cannot be interpreted as
consenting to these aspects of the order prayed.
Order
[20] Accordingly, I am of the view that the interest of justice would be best served
by the following order being made:
1. By consent between the plaintiff and the first defendant:
(a) The plaintiff is granted leave to withdraw its claim against the first defendant.
(b) Each party shall pay their own costs in respect of the claim.
2. The plaintiff’s claim for judgment against the second defendant is adjourned
sine die to open court for evidence to be led in respect of the quantification of
plaintiff’s claim.
3. The hearing of the plaintiff’s claim for judgment against the second defendant
must be preceded by personal service on the second defendant of the notice of set
down.
4. There is no order of costs against the second defendant in respect of the
adjourned proceedings set down from 16 to 19 February 2026.
__________________
CHETTY J
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Appearances
Counsel for the Plaintiff : W Shapiro SC
Instructed by : Macgregor Erasmus Attorneys Inc
Address: 1st Floor, Bond Square
12 Browns Road
Tel: 031 201 8955
Ref: JM Klingbiel/sv/BAR4/0028
Email: justin@meattorneys.co.za
sandra@meattorneys.co.za
Counsel for First Defendant : Mr Kirk Himunchul (In person)
Address: : 10 Yellowfin Crescent
Newlands East
Cell: 083 786 9146
Email: Kirk.himunchul@gmail.com
Date of Hearing : 16 February 2026
Date of Judgment : 10 March 2026