Emalahleni Local Municipality v Kleynhans (85183/2015) [2021] ZAGPPHC 777 (8 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

CASE NO: 85183/2015

In the matter between:

EMALAHLENI LOCAL MUNICIPALITY

Applicant

And

MARK PAUL KLEYNHANS

Respondent

JUDGMENT

NYATHI AJ

A. INTRODUCTION

[1] This is an interlocutory application for rescission of this Court’s order which was granted in the absence of the Applicant.

[2] The Applicant is the Emalahleni Local Municipality and is the Defendant in the main action.

[3] The Respondent, Mr Kleynhans is the Plaintiff in the main action. He was involved in a motor vehicle accident involving a pothole in the area under the control of the Applicant.

[4] The Applicant (Defendant in the main action) applies to have a court order by her ladyship Mokose J, dated 31 July 2019 rescinded.

[5] Despite the Defendant being duly served with the ‘striking out of defence’ application, the Defendant remained in default to oppose the relief sought. The court made the following order:

1. The merits and quantum of the Applicant's action under case number 85183/2015 are separated in terms of Uniform Rule 33(4]

2. The Respondent's defence in the same action is struck out.

3. The Respondent is ordered to pay 100% of the Applicant's proven or agreed damage in the same action, wherein he was injured in an accident on 18/3/14.

4. The quantum is postponed sine die.

5. The Respondent must pay the Applicant's costs of this application on an attorney and own client scale.

[6] The Applicant relies in the alternative, on the provisions of Uniform Rules 42(1)(a), 31(2)(b), and/or the common law, in support of its application for rescission.

[7] It is submitted on behalf of the Applicant that the court order that is subject of this application, was erroneously sought and granted in Applicant's absence, under circumstances where Applicant has a bona fide defence, which prima facie has some prospects of success, will have a devastating effect on Applicant should it not be set aside, which would not serve the interests of justice.

[8] On 29 October 2015 summons was served via the Sheriff on the Applicant, as Defendant in the main case.

[9] On 5 November 2015 the Applicant entered appearance to defend. a plea was served on the 19 May 2016, this was only after a notice of bar was served on the Defendant on 12 May 2016.

[10] Clearly, the Applicant had adopted the posture of a reluctant and lethargic litigant at all material stages of this litigation. This fact was not lost on the Respondent, who had to use the Rules of court, for example, to compel discovery and answers to pre-trail questions.

[11] Applicant’s attorneys attended a second pre-trial conference on the 6 November 2017, only after an order to compel was granted on the 26 October 2017 by Baqwa J. At this meeting the parties agreed to separate merits from quantum.

[12] With Applicant’s efforts at discovery having stretched more than a year and a half and being largely unsatisfactory, Respondent filed a Rule 35 (3) notice to compel compliance. This was served on the Applicant on 26 September 2018. Applicant simply ignored this Rule 35(3) Notice and a Rule 30A for non- compliance with the Rules of Court was served on the Applicant on 11 October 2018.

[13] After the Applicant remained in default, an application to compel was served on the Applicant on 18 January 2019. The Notice of Motion did not move the Applicant to comply with the Rules of court. Neither did the subsequent court order compelling such compliance.

[14] The application to compel was heard by Vorster AJ on the 38 March 2019 and an order was granted in terms of which the Applicant was enjoined to file their reply to the Rule 35(3) Notice within 10 days from the date of service of said order. The court order was served on the Applicant on 14 April 2019.

[15] When even after the court order and a subsequent courtesy letter from the Respondent, no response was forthcoming, Respondent then contemplated an order to strike out the defence.

[16] The Respondent thus takes issue with Applicant’s submission that it had the intention to defend the action. At the point of exasperation, the Respondent applied for the defendant’s defence to be struck out. Hence the order that was granted on 31 July 2019, which is at issue here.

[17] The Applicant seeks to lay the blame at the doorstep of its attorneys, more particularly the correspondent attorneys in Pretoria, but fails to explain what it did to take the matter forward from the inception of the matter in 2015 up to the 31 July 2019 when the defence was struck out.

APPLICATION FOR RESCISSION

[18] Rule 31 (2) (b) provides as follows:

“A defendant may within 20 days after he or she has knowledge of such judgment apply to Court upon notice to the plaintiff to set aside such judgment and the Court may, upon good cause shown, set-aside the default judgment on such terms as to it seems meet.”

[19] In terms of Rule 42 (1) the court may either mero motu or on application by one of the parties set aside or vary one of its judgments or orders. The Rule provides for variation in the following instances:

1. An order or judgment was erroneously sought or erroneously granted in the absence of any party affected thereby.

2. An order or judgment in which there is ambiguity, or a patent error or omission in the order or judgment, but only to the extent of such ambiguity, error, or omission; and

3. An order or judgment granted as the result of a mistake common to the parties.

[20] The Applicant seeks rescission on the ground that Mokose J’s order, which is subject of this rescission application, was erroneously sought or erroneously granted.

[21] The Applicant premised its submission that the judgment was erroneously granted on the basis that the order was granted without any evidence being led. This, it contended, was because the action was a delictual claim and not based upon a liquidated document or a liquidated amount. Further, a factual dispute was evident on a reading of both the particulars of claim and the plea. The Applicant based this approach on the case of Minnaar v Van Rooyen N.O.[1]

[22] Minnaar v Van Rooyen is distinguishable on the facts from the instant case. In Minnaar the court was called upon to make a finding of recklessness by a director as contemplated in section 424 (1) of the Companies Act 61 of 1973. This the court had to do on a balance of probabilities, without evidence being led. None of the allegations of recklessness were supported by evidence. No evidence was led, yet default judgment for relief under section 424 (1) was granted by the court aquo. The Supreme Court of Appeal ordered rescission of that order on that basis.

[23] In Abraham v City of Cape Town[2] the Applicant for a rescission of judgment raised a similar argument to that of the Applicant’s in casu. The applicant argued that because the court had heard no evidence on the merits of a delictual claim (damages arising out of a motor vehicle accident), the judgment was erroneously granted as provided for in Rule 42(1)(a). Steyn J rejected this argument and held that:

23.1 the fact that the court did not call for evidence does not equate to the court not having considered the necessity or redundancy of oral evidence on the merits. The court had before it, inter alia, the pleadings which made much explicit grounds for negligence.

23.2 the court has a clear and unfettered discretion in terms of the Rules Court to decide whether or not to hear oral evidence on any issue or not.

23.3 that it was not practice in his division (Western Cape) to hear evidence on the merits. A similar situation obtains in this division.

23.4 each judicial officer may decide for himself or herself, depending on the facts, whether oral evidence is necessary or not. A mere possibility of an apportionment of damages would not be sufficient to move a court to insist on oral evidence rigidly.

23.5 the court, having read the papers quite justifiably decided to grant the relief sought without hearing oral evidence, including evidence as to how the accident occurred.

23.6 not hearing oral evidence on the merits can therefore not fall in the ambit of erroneously granted judgment and rule 42 is not invoked.

[24] The order granted by Mokose J clearly state that the court “Having heard counsel for the applicant and having read the papers …” (my emphasis).

[25] In Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)[3], the requirements for a rescission of judgment application were laid out as follows:

“Court generally expect an applicant to show good cause (a) by giving reasonable explanation of his default; (b) by showing that his application is made 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.”

[26] In Chetty v Law Society, Transvaal 1985 (2) SA 756 (AD) Miller JA, on behalf of the unanimous Court, when dealing with the term “sufficient cause” or “good cause”

when used in the context of an application for rescission of a Judgement. At 765 D-E he said:

“For obvious reasons a party showing no prospect 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 process would be negated if, on the other hand, a party who could offer no explanation of his default other than his disdain of rules was nevertheless permitted to have a judgment against him rescinded on the grounds that he had reasonable prospects of success on merits.”

[27] In its attempt to explain away its tardiness to comply with the rules of court and comply with the various notices served upon it, the Applicant’s attorneys Matsepe Attorneys shift the blame to their correspondent attorneys Makhanya Attorneys of Pretoria. This was elaborately tabulated in a chronology of events wherein blame is allotted to Makhanya Attorneys for the non-delivery of documents and some documents having been “swallowed up” in their offices and not sent on to them at Emalahleni (formerly, Witbank). This was submitted as a cause of the Applicant’s default and thus a reasonable explanation.

[28] In Silverstone and Another v ABSA Bank Limited[4] the court dismissed an application for rescission in circumstances where the attorneys had failed to do what they were retained to do. As in this case various notices were delivered. For some inexplicable reason the service of these notices was not brought to the attention of the Applicant’s attorneys by the correspondent attorneys. The application for default judgment was similarly not brought to the attention of their attorney by the correspondent attorney. In the Silverstone matter, the attorneys even had an arrangement in which their driver called on the offices of the correspondent attorneys no less than twice a month to collect any pleadings that may have been served for himself but was not advised of any notices or applications that were in existence.

[29] In Salojee & Another NNO v Minister of Community Development[5] the court referred to Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (AD) with approval and held that where the delay was due entirely to the neglect of the Applicant’s attorney, such neglect should not in the circumstances of the case, debar the Applicant from relief that he is entitled to. The court further stated that:

"There is a limit beyond which a litigant can escape the results of his attorney’s lack of diligence, or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations

ad misericordiam should not be allowed to become an invitation to laxity.... The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

[30] In Superb Meat Supplies CC v Maritz[6] it was held that: "It has never been the law that invariably a litigant will be excused if the blame lies with the attorney. To hold otherwise might have a disastrous effect on the observance of the rules of this court and set a dangerous precedent. It would invite or encourage laxity on the part of practitioners. The courts have emphasised that the attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation or failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of such failure are."

[31] The court in Superb Meat Supplies (Supra) was also dealing with an application for rescission of a default judgment. It was held that the applicant must show ‘good cause’ for the rescission of the judgment. The court re-emphasized the test as being that the applicant must give a reasonable explanation of his default; his application must be made bona fide, and he must show that he has a bona fide defence to the plaintiff’s claim. Most importantly the court stated that the defence must have existed at the time of the judgment.

[32] Applying the test expounded in the decisions above and having carefully exercised the discretion accorded the court in rule 31 (2) (b), I come to the determination that the applicant has not shown good cause for the rescission of the order granted by Mokose J on 31 July 2019.

The application is dismissed with costs, including costs occasioned by the employment of two counsel.

J.S. NYATHI

Acting Judge of the High Court

Gauteng Division, Pretoria

Date of Hearing : 06 August 2021

Date of Judgment: 08 November 2021

On behalf of the Plaintiff: Adv BP Geach SC

Adv Kerhahn

Instructed by: GSG ATTORNEYS

995 JUSTICE MAHOMED STREET

BROOKLYN

PRETORIA

TEL: 012 3467832

REF: GSG0668/MK/G GARDEN

Email: : mariska@gsgattorneys.co.za; geach@geach.co.za; ferdinandhh@gmail.com

On behalf of the Defendant: Adv T Strydom SC

Adv L Kotze

Instructed by:

Matsepe Attorneys

Office 06 Old Witbank News Building

C/o Botha and Northey Streets

Witbank

Tel: 013 656 3261

c/o MAKHANYA ATTORNEYS

313 VAN ERKOM BUILDING

Pretorius Street

0001

REF: MR MATSEPE/ELM93-15/CVL

Emails: : matsepeattorneys@gmail.com; tstrydom@gkchambers.co.za; liakotze@clubadvocates.co.za

[1] 2016 (1) SA 117 (SCA)

[2] 1995 (2) SA 319 (C)

[3] 2003 (6) SA 1 (SCA)

[4] (66156/12) [2018] ZAGPPHC (10 May 2018)

[5] 1965 (2) SA 135 (A)

[6] (2004) 25 ILJ 96 (LAC)