Government Employees Pension Fund v Kuppen and Another In re: Kuppen and Another v Government Employees Pension Fund (26669/05) [2006] ZAGPHC 88 (5 September 2006)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)ReportableREVISED JUDGMENTCase Number:26669/05In the matter between:THE GOVERNMENT EMPLOYEESPENSION FUNDAPPLICANTandKUPPEN, GPFIRST REPONDENTKUPPEN, LSECOND RESPONDENTIn re:KUPPEN, GPFIRST APPLICANTKUPPEN, LSECOND APPLICANTandTHE GOVERNMENT EMPLOYEESPENSION FUNDRESPONDENT_____________________________________________________________________JUDGMENT_____________________________________________________________________MOKGOATLHENG AJIntroduction[1] This is an application fortherescissionof the judgment granted by Legodi J on the 14thof August 2005,interms whereof the applicant was ordered to pay the first respondentwithin 14 days;(a)hispensionfund benefitsas contemplated in the Government Employees Pension Law,1996, including interestthereon, as fromthe28thApril 2005,and(b)thecosts of the application on a party and party scale.[2] The applicant is a pension fund established in terms of section 3 of the Government Employees Pension Law, 1996toadminister and provide pension benefits to its members.[3]The first respondentis an educatorformerly employed by the KwaZulu-Natal Provincial Departmentof Arts, Education and Culture, andwasuntilhis resignation onthe 28thof February 2005a member of the applicant.[4]On his resignationfromthe applicantthe first respondentbecame entitled to certain pension benefits payable in accordance with section 26 of the Government Employees Pension Law,1996,(“The Law”).[5] Section26of “The Law”governsthe payment of pension benefitsandprovides that;(1) “Notwithstanding anything to the contrary in any law contained, a benefit payable in terms of this Law shall be paid to the member, pensioner orbeneficiaryentitled to such benefit within a period of 60 daysafter the date on which the Board receives a duly completed statement before the date on which the benefits becoming payable to the member, pensioner or beneficiary,concerned in terms of this Law, within a period of60 daysafter the date on which such benefit is so payable,(2)if a benefit is not paid within the period referred to in subsection (1),interest shall be paid by the Fund to the member, pensioner or beneficiary on anypartof the amount of the benefit not paid withinthe period of60 days referred to in subsection (1)at the rate prescribed”.[6] The first respondentcomplied with the requirements of section 26 of “TheLaw.” He hasduly submitted thecompleted statement in the prescribed form.On the 26thofJune 2005he elected the mode of his payment as required in terms of Rule 14.4.1A.[7]The applicant instituted an urgent applicationon the 1stof August 2005.On the 4thof August 2005 heobtained an ordercompellingthe applicant to effect payment of his pension benefits including the accrued interestthereon.On the 5thof August 2005 the first respondent’s pension benefitswere paidinto his banking accountby the applicant.THE RULE 42 (1) (a) APPLICATION[1]The applicant instituted this application in terms of Rule 42(1)(a) fortherescission ofthejudgment issued on the 4thof August 2005. This application ispremised on the ground that the judgment was erroneously sought by the first respondent or erroneously granted bythe learnedJudge.[2]The reasons proffered by the applicant in support of this applicationas averred byEsti De Witt,the applicant’slegal advisorare the following;(a)theurgent application was servedontheapplicanton the1stAugust 2005,(b)on the 2ndof August 2005she scrutinised the Notice of Motion, and thoroughly studied the firstrespondent’s founding affidavit,(c) she intended togiveinstructions to theapplicant’s attorneysbefore the 9thof August 2005to oppose the urgent application,(d)sheunderstoodthatthe first respondent intended approachingthis court onthe 10thof August 2005 for an order onan urgent basis,(e) on the4thof August 2005whilstpreparing instructionsshe became awarethatdefaultjudgment had been granted against the applicant,(f)she was stunned,onacloser scrutinyofNotice of Motionshediscoveredthat it was statedthat unless the applicantnotedits intention to opposeon or before the3rdof August 2005, the first respondent wouldapproach this court on the4thof August 2005 on an unopposedbasis,(g)when she first scrutinized the Notice of Motionshedidnot discernthe import of the above describedparagraph, and(h)the applicant contendsthat the Notice of Motion isdefective,does not comply withRule 6(4)(a)of the Uniform Rules of Court and does notconform to Form 2.[3]In order to determine whether this application has meritit is apposite to consider the factual matrix upon which it is predicated.THE APPLICANT’S GROUNDS FOR THERESCISSION OF JUDGMENT[1]The applicant contends that the firstrespondent’surgentapplication had no merit,that had the applicantopposed sameitwould havesucceeded with a punitive costsorder against the first respondent.[2] Theapplicant argues that thefirstrespondent’sapplication is not thecausathat obligeditto pay thefirstrespondent’spension benefits;consequentlythe application did not serve any purpose in furthering thefirstrespondent’scase.[3] Theapplicantstates thattheprocess of calculatingthepensionbenefits payable to the first respondent is triggered once the applicantis furnished with thedulycompletedstatement in the prescribed form.[4]The applicant contends that, prior toit being aware of theurgentapplication, the process ofcalculating andeffectingpayment ofthe first respondent’s pension benefitswasalreadyinitiated.[5] The applicantavers that itbecame aware of thecourt order after the payment processwas already completed,and argues thatthe first respondent would have received hispension benefit irrespective of the court order,andsubmitsit was not necessary for the first respondent to have instituted thisurgentapplication.[6] The applicant argues that the first respondent was aware that it disputedhisversionand submitsthat therespondenterroneously sought the order,andthat the learned Judge erroneously grantedthe order,hadthelearned Judgebeenaware of theabove describedfacts he would not have issued the order.THE APPLICABLE LEGAL PRINCIPLES[1]The application fortherescissionof judgment is premisedonlyonRule 42 (1)(a), this in my viewdoes not preclude the Courtfromdeterminingthe application in terms of the common lawif the applicant does notsucceed under Rule 42(1)(a).[2]In the High Court, a judgment may be rescinded in terms of Rule 31 and Rule 42 of the Uniform Rules of Court or the common law.SeeDe Wet and Others v Western Bank Ltd1977 (4) SA 770(T )at D-F.Rule 31(5)(d)isnot relevant in the present matter. The provisions of the Rules relevant in the present matter are the following:[3]Rule 31 (2) (b) provides as follows;“the 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, the court may upon good cause shown, set aside the default judgment on such terms as to it seems meet.”[4]Rule42(1)provides that;“The Court may, in addition to other powers it may have,mero motuor upon the applicationof any other party affected, rescind or vary –(a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby …”[5] In my view, it seems that an ordermay be said to havebeen erroneously granted if at the time of its issuingthere wasaprocedural irregularity or errormade duringthe proceedingswhich is patentinthe record.See Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)2003 (6) SA 1SCA.THE ANALYSIS OF EVIDENCE AND ARGUMENTIN RESPECT OFTHE RULE 42 (1) (a) APPLICATION[1] I turn now to considerwhetherthe grounds proffered by the applicantinjustification ofthe rescission of the default judgmenthave merit.[2] The applicant does not dispute that it had a legal obligation to pay the first respondent’s pension benefits. The payment of the pension benefits and the appropriate interest was effected on the 5thof August 2005.[3] The applicant argues that thecourtorder does not compel the payment of the first respondent’s pension benefits;and submits thatit compelsthepayment of the first respondent’spensionbenefits within 14 days of the courtorderthatwhichis in conflict withsection 26 of “The Law”.[4] The applicant argues that the first respondent has wrongly caused this Courttoissueanordercreatinga precedent thatcouldseverely prejudice the applicant, and contends that shouldthe order not be rescinded,itwill entitle the applicant’s members to simply approach the urgent court for an order to compel payment from the applicantwithin 14 days.[5] The applicant contends thatthefirst respondent does not dispute that;(a) the court order is incorrect,(b) the applicant initiated the payment process andpayment of the first respondent’s pension benefits prior to and without being aware of thecourtorder,(c) the applicant is by law barred from effecting any payment unless the first respondent clearly and in the prescribed manner informs the applicant of its election to receive payment either in terms of Rule 14.4.1A or 14.4.1B.[6] The applicantstatesthat the first respondentreceived all his pension benefits prior to the granting of thecourt order and argues that it is clear that theurgentapplicationdidnotin any mannerinfluence orexpeditethepaymentof the pension benefits.[7] The applicantsubmitsthat the prayersin theNotice of Motion have been fulfilled and adhered to in full prior to theCourt’s sanctioning thereof,and thatthere is no reason for an unwarranted judgment against it.[8] The applicant arguesthat the first respondent’s application had nomerit in that had it opposed same it would have been successful because of the following facts;(a) the first respondent’s application is not thecausafor the consequent payment by the applicant,(b) the payment of the first respondents pension benefits was initiated prior to the 1stof August 2005without the applicant having been aware of the urgent application,paymentwas effectedbefore default judgment was granted,(c) if thecourt was aware that the first respondent’s pension benefits were paid on the 4thof August 2006 thecourt would not have granted the order,(d) if thecourt was aware that the first respondent had not furnished the applicant with the duly completed statement in the prescribed form,and hadnotmade an election in terms of Rule 14.4.1Ait would not have granted the order.[9] In my view,the narration of theabovementioned reasonsonwhich the applicant’s failure to oppose the urgent applicationis predicated, and the grounds which the applicant enunciates in support of the rescission of judgment,do not disclose a procedural irregularity or mistake in respect of the issuing of the order.[10]It is not possible to conclude that the order was erroneously sought by thefirst respondent,or erroneously granted by the learned Judge. Intheabsence of an answering affidavit from theapplicant,there was no good reason precluding Legodi J to grant default judgment.It cannot be cogently argued that theorderwas erroneously sought by the first respondent or erroneously granted by Legodi J.See Colyn (supra) at 8 para 9 G - H[11] I turn now to consider whether the reasonsproffered by the applicant are sufficient to establish good cause for the rescission of the judgment as required by the common law.THERESCISSION OF JUDGMENTUNDER THE COMMON LAW[1]It seems the provisions of Rule31(2)(b)are analogous to,and resonate the common law requirementsthat an applicant in ordertosucceed mustshow“sufficient cause”andfurnisha reasonable,satisfactory explanationin support of therescission of adefault judgment.[2] In terms of the common law a default judgment may be set aside on the grounds of fraud orjustus error. SeeChilderley Estate Stores v Standard bank of South Africa Ltd1924 OPD 163. InDe Wet and Others v Western Bank Ltd1979 (2) SA 1031(A)at1041Bet seqTrengrove AJA, (as he then was), had occasion to consider the common law provisions relating to the rescission of judgments. The learned judge remarked as follows;The Courts of Holland, as I have mentioned, appear to have had a relatively wide discretion in regard to the rescission of default judgments, and a distinction seems to have been drawn between the rescission of default judgments which had been granted without going into the merits of the dispute between parties, and the rescission of final and definitive judgments,whether by default or not, after evidence had been adduced on the merits of the dispute.(Cf Athanassiou v Schultz1956 (4) SA 357(W) at 306 G, and Verkoteren v Savage1918 AD 143at 144).In the former instance the Court enjoyed relatively wide powers of rescission whereas in the latter event the Court was, generally speaking regarded as been functus officio, and judgments could only be set aside on the limited grounds mentioned in theChilderleycase. ….the learned judge at 1042 F continued and stated that “Thus, under common law the Courts ofHollandwere, generally speaking, empowered to rescind judgments obtained on default of appearance, on sufficient cause shown. This power was entrusted to the discretion of the Court. Although rigid limits were set as to the circumstances which constituted sufficient cause … the Courts nevertheless laid down certain general principles, for themselves, to guide them in the exercise of their discretion. Broadly speaking, the exercise of the Court’s discretionary power appears to have been influence by considerations of justice and fairness, having regard to all the facts and circumstances of a particular case. Theonusof showing the existence of sufficient cause for relief was on the applicant in each case, and he had to satisfy the Courts, inter alia, that there wasareasonably, satisfactory explanation why the judgment was allowed to go by default. It follows from what I have said that the Court’s discretion under the common law extended beyond, and was not limited to, the grounds provided for in Rules 31 and 42 (1), and those specifically mentioned in theChilderleycase.”[3]Theapplicant is obliged to disclose thereasons for hisdefault because it is relevant to the question whether the applicant’s default was wilful or not.Before a person can be said to be in wilful default the following must be shown;(a)knowledge that the action is being brought against him,(b)a deliberate refraining from entering appearance though free to do so, and(c)a certain mental attitude towards the consequences of the default[4]InGrant v Plumbers (Pty) Ltd1949 (2) SA 470(0)Brink J held that the following requirements should be complied with in order to show“good cause”;“(a) An applicant must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance,(a)The application must be bona fide and not made with the intention of merely delaying plaintiff’s claim, and(b)The applicant must show that he has a bona fide defence to the plaintiff’s claim. It is sufficient if he makes out a prime facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.”[5] Smallberger JinHDSConstruction (Pty) Ltd v Wait1979 (2) SA 298(E)at 300H – 301Astated that;“When dealing with words such as “good cause” and “sufficient cause”.In other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairn’s Executors v Gaarn1912 AD 181at 186;Silber v Ozen Wholesalers (Pty) Ltd1954 (2) SA 345(A)at 352“The Court’s discretion must be exercised after a proper consideration of all the relevant circumstances”[6] A court will not come to the assistance of a defendant whose default was wilful or due to gross negligence.InChetty v Law Society, Transvaal1985 (2) SA 756(A)at page 765 A-EMiller J A had occasion to deal with the expression“sufficient cause”or“good cause”,and statedthat:“these concepts defy precise or comprehensive definition, for many and various factors require to be considered.”[7] The learned Judge stated that it is clear that in principlethetwo essential elements of“sufficient cause”for rescission of a judgment by default are:“(i) that the party seeking relief must present a reasonable and acceptable explanation for his default; and(ii)that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success.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 judgement against him, no matter how reasonable and convincing the explanation of his default. An orderly 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 the Rules was nevertheless permitted to have a judgement against him rescinded on the ground that he had reasonable prospects of success on the merits.”[8] In relation to the element of wilfulness, King J.held–Maunjean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994(3) SA 801 (C)that;“(a) Wilful connotes deliberateness in the sense of knowledge or the action or consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend (or file a plea), whatever the motivation for his conduct might be.”THE NOTICE OF MOTION IS DEFECTIVE[1] In considering whether the applicant has shown “good cause” for its default,or its failure to deliver its answering affidavit or whether the applicant has a reasonable,satisfactory and acceptable explanation, I am enjoined to determine whether the reasons proffered by the applicant justify the rescission of the default judgment.[2] The applicantcontends that the first respondent’sNotice of Motiondoes not comply with theRules, it argues that itisdefective and it is a nullity because it was not drafted in accordance with Rule 6(4)(a).[3]In my view,there is no merit in thiscontention. TheNotice of Motionis in a form as near as may be in accordance with Form2, and complies with the Practise Direction 1 of 1991 issued by Flemming DJP.SeeGallagher v Norman Transport Lines (Pty) Ltd1992 (3) SA 500at 502 E-H.THE COURT ORDERISINCORRECT[1] The applicant contends that because thecourt order reflected the incorrect scale of costs asgrantedonanattorney and client scale instead oftheparty and party scale, this aspectargues the applicantis a ground for rescinding the order.[2]It has been held that,“In exceptional circumstances a Court may recall its order eithermero motoor on an informal application by a partytosupplement or clarify its order”.This principle is not applicable in this matter.SeeFirestoneSA (Pty) Ltd v.Genticuro AG1977 (4) SA 298A at 306 H - 308 A;andDe Wet and Others v Western Bank Ltd1979 (2) SA 1031(A)at 1044E-1045G.[3] The order granted by Legodi J is clear and unambiguous. The orderwas subsequently obviouslyincorrectly typed by theoffice of theRegistrar,to reflect anincorrect costsorder, but this does not render theorderissued bythe learnedJudge incorrector nugatory. In any event the applicant has not suffered any prejudice as a result oftheincorrectly typed order.THE LEGAL ADVISOR’S EXPLANATION[1] The applicant’s legal advisorexplains that“she scrutinised the Notice of Motionand thoroughly studied the founding affidavit”.The New ShorterOxfordEnglishDictionary Volume 2,4theditiondefines the verb“scrutinize”asbeing,tosubject to a methodical examination,toinspect with close attention,ortoundertakeaninquiry or examination”.[2] If the applicant’s legal advisorscrutinizedthe Notice of Motionas she alleges, it isinexplicable why she did not discernthat the application was set down for the 10thof August 2005.[3] The question is whether the applicant’s legal advisor’s conduct wasgrosslynegligentas a consequence of her failureto correctly read andunderstandtheimport of aNotice of Motion.[4] In my view,the applicant’s legal advisor’s conductthoughnotconforming to the conduct expected of a reasonable legal advisor, cannot be construed asgrosslynegligentin the circumstancesas it appears that she committed a bona fide mistake.[5] The second issue to consider is whether the applicant has a bona fide defence to the first respondent’s claim,andif so,whether the averments set out by the applicant,make out a prima facie case which carriessomeprospects of success which entitlesit to the relief it seeks.DOES THE APPLICANT HAVE A BONA FIDE DEFENCEINSUFFICIENT INFORMATION BY THE EMPLOYER[1] The applicant contends that it did not receive proper and complete information fromthe first respondent’s employerto enable it to process the payment ofhispension benefits, and says the first respondentdid notindicate whether he elects that his benefits be paid into;(a)his personal bank accountin terms of the Rule 14.4.1A or(b) the bank account of an approved external fund, as provided for in terms of Rule 14.4.1B.[2] The applicant contends that prior to such election, or choiceitis precludedby section 26 of “TheLaw”from paying any benefits.[3]Theapplicantreceived the required informationon the 26thof June 2005.Itsubsequently processed the information andpaidthe benefits on the 5thof August 2005.[4] The provisions of section 26(1) of “The Law” are peremptory. There is a duty on the applicant to promptly initiate the processing and payment as soon as a member resigns.[5]It is patent that since the first respondent’sresignationon the 28thofFebruary2005, the applicant has failed to diligently and expeditiously process and effectpaymentofhispension benefitsas contemplated bysection 26(1)of “TheLaw”.[6] In my view,the applicant initiated the pension benefits payment process on the 1stof August 2005, this is patent from the documents generated by the applicant’s civpen computer system.[7] The applicant has not profferedanyreasonable explanation regarding the steps it took to deal with the first respondent’s application for the paymentofhis pension benefits from the 26thof June 2005 to the 31stof July 2005.[8]In my view,the applicant cannot be saved by its contention that it had 60 days from the 26thofJune 2005 to process the firstrespondent’s pension benefits payments, that it paid accrued interest to the first respondent from the 1stof March 2005 to the 1stof August 2005.[9] In my view,the first respondentwasprejudicedas a result of the applicant’s dilatorinessand negligenceinnottimeouly processing andeffecting payment of hispension benefitsas demonstrated by the litany of the first respondent’s creditors foreclosing against him.[10] In my view, the first respondent was justified and entitled to launch the urgent application as he was unjustly compelled to do so by the applicant’s negligent and dilatory conduct.DOES THERESCISSIONENJOIN THE COURT WITH SOMETHING WORTHY OFCONSIDERATION[1] Thequestion is whetherthe order soughtby the applicantwill haveapractical effect or result, in the sense that persons will be affected therebyorin that therewill bea justiciable issue beforeCourt after the rescission of the judgment.[2] In the case ofPres Ordinary Court Martial v Freedom of Expression Institute[1999] ZACC 10;1999 (4) SA682at688F,Langa DP(as he then was)held,“that a courtshould consider whether any order it may make will have any practical effect either on the parties or on others.”[3] The applicantconcedes that it was legally obligedin terms of section 26 of “TheLaw”to paythe first respondent’spension benefits.In my view,thecausathat precipitated the first respondent’s urgent application has been extinguished by the applicant’s payment of the first respondent’s pension benefits.[4]The objectivede jure and de factorealityis that the applicant has complied with the order issued by Legodi J.In my view,there is therefore no“causalconnectionbetween thecircumstances which gave rise to the claimand therescissionofthe judgment”.SeeSwadif (Pty.)Ltd. v. Dyke,N.O.1978(1)928 AD 939D-F.[5] The gravamen of thematter is whether there is a “triable issue or something deserving of consideration”predicating the applicationfor the rescission of judgment in the sense that;(a) “n geskilpunt wat, indien dit aan die hand van die getuienis watdie applikant in sy aansoek in die vooruitsig stel, bewys word, lewensvatbaar of relevant souwes; of(b) ‘n geskilpunt wat op die waarskynklikhede deur die getuienis wat aldus in die voooruitsig gestel word, bewys souwees”.See CIBA – Geigy (Pty) Ltd v Lushof Farms(Pty) Ltd en ‘n Ander2002 (2) SA 447SCA at 462 J – 463B.[6] In my view,theorder sought by the applicantwill not serve any purpose becausesubsequent theretothere willbenothing worthy of considerationbefore the courtasallthejusticiable issueswill beres judicata.[7]InSaphula v Nedcor Bank Ltd1999 (2) SA 76at 79 C- D,Flemming JP heldthat,“the object of rescinding judgment is to restore a chance to air a real dispute. Ona more technical level, arequirementforthe granting of rescission remain lacking in such cases. It has always beenahallmark of what lawyers abona fide (which has to be established before rescission is granted),that a defendant honestly intendsto pursue beforea Court a set of facts which, if true, will constitute a defence. That requirement is lacking in this case despite the problems which the applicant hasinert commercial instances.”In my view the requirements postulated by the learned Judge are lacking in this case despite the grounds enumerated by the applicant in support of the rescission of the judgment.[8] In my view,the grounds enunciated by the applicant in support of the rescission of the default judgmentand the putative defence espousedare“deprecated as abstract, hypothetical and of academic interestonly”.SeeNaptosa V Minister of Education, Western Cape Government2001 (4) BCLR 388(C)at 398 H-I.[9]InNational Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others[1999] ZACC 17;2000 (2) SA 1(CC);2000 (1) BCLR 39in para (21) fn 18, Ackerman J held that;“A case is moot and therefore not justiciable if it no longer presents an existing or have controversy which should exist if the Court is to avoid giving advisory opinion on abstract propositions of law.”THE FIRST RESPONDENT’S OPPOSITION TO THE APPLICATION FOR RESCISSION OF JUDGMENT[1] I turnnow to consider whetherthe first respondent’s conduct was reasonable in opposing this application, and if so, whether costs should be awarded against him. The other issue to be considered is whether such costs should be borne by the first respondent’sattorney Logan Pillaydebonis propriison an attorneyandclient scale due tohisconductin opposingtheapplication,and in attempting to tax a bill ofcostsonan attorney and client scale well knowingthat the correct ordergranted costson a party and party scale.[2] The questionthe court has to consider,is whether,the first respondent’s opposition to this application is vexatious, frivolous, unreasonable or misconceivedhaving regard to the peculiar circumstances of this matter.[3]Thefirstrespondentstates that he opposed the applicationbecause he was under the reasonable apprehension that consequent to therescission of judgment hewasobliged to refund thepension benefits.[4] The applicantarguedthat the first respondent erroneously sought the default judgmentbylaunchingthe urgentapplicationwithout any justification,because the first respondentcould not suffer any prejudice as his pension benefits andtheinterest accruingtheretohad been fully paid.[5] In my view,the applicant’s avermentsin its founding affidavitimpugnedthe first respondent’s honour andintegrity. The applicant portrayed the first respondent as the author of his own misfortune by being negligent in not providing the applicant with the full required information in the prescribed form.[6] The applicant is enjoined in terms of section 195(1)(a),(b)and (f)of the Constitution of theRepublicofSouth Africa Act108 1996 to respond to the needs of the first respondentbypracticing and adhering toa high standard ofprofessionalethics and accountability.SeePresident of theRepublicofSouth Africaand Others v South African Rugby footballUnionand Others2000 SA 1(CC)(1999 (10) BCLR 1059)at para [133].[7] The first respondent has a constitutional right tojust administrative action, dignity andrespect.In my view,thefirst respondent’sconductwasreasonable inopposing thisapplication.WASATTORNEYLOGANPILLAY’S CONDUCTUNETHICAL AND UNCONSCIONABLE[1] The applicant contends that theconduct of the first respondent’s attorneywas mala fide in that;(a)despite the fact thatno attorney and client cost order was granted,the first respondent’s attorneyirregularly attempted to executeattorney and clientscalecostswhenat all relevanttimes he was aware that the correct order issued was on a party and party scale,(b) notwithstanding these facts, and even after the application for rescission hadalreadybeenlaunched, the first respondent’s attorney still attemptedto taxand executeabillof costson an attorneyandclient scale.[2]On the 26thof October2005attorneyLogan Pillaymade asettlementproposal totheapplicanton thefollowingbasis;(a) the first respondentwould not oppose the application forrescissionif the applicantpays the costs of the application granted on the 4thof August 2005 on the scale as between party and party,and(b)the applicant should advise which itemsin the bill of costsit was disputing.[3]In determining whether attorney Logan Pillay’s conduct was mala fide it must be borne in mind that he instructed a correspondent to attend court onhisbehalf on the 4thofAugust 2005.[4] It is possible that on the 4thof August 2005when attorney Logan Pillay received the faxed court order helaboured under the bona fide but erroneous impression that the costs order granted, ordered the applicant to pay costs on an attorney and client scale.[5]The applicant’s attorneys on the 4thand 21stof November 2005respectivelyengagedattorney Logan Pillayseeking an explanation regarding hisconduct in attempting to enforce a bill of costs drawn on an attorney and client scale.[6]In my view,theperceived misunderstanding surrounding the costsissue was clarified on the 26thof October 2005. Thesetting down of thetaxation of the bill of costson the 9thof March2005 and 7thof April 2005did not of interfere with or impede the conduct of theproceedings.[7]This is not a case where a bill of costs was paid in pursuance of an incorrect costs order.The crux of the matter is that the attorney and client bill drafted by attorney Logan Pillay’scosts consultantwas not taxed, the bill of costs forallintents and purposes is a nullity.The applicant hasnot suffered any prejudice.[8] In my view,attorneyLogan Pillaymay have beenprecipitate andnegligent in attempting to enforce an incorrect costs order, but there is noevidence thathisconductwasgrossly negligent,wilfulorintentional inpursuanceofafraudulentmotive.[9]Iam notpersuaded thatattorneyLogan Pillay’sconductin attempting to enforce, andin setting down the bill of costs drafted on an attorneyandclient scale,can be construed as grossly negligent or reprehensibleto the extent ofentitling this Court to show its disapproval by ordering costs againstattorneyLogan Pillay on an attorney andclient scalehaving regard to the circumstancesof this matter.SeeVisser v Visser1974 (3) SA 356at 357E-F.[10] In exercising my discretion in the allocation of costs I am of the view that the applicant was unreasonable in instituting these proceedings in pursuance of acausawhich had been extinguished.[11] In the premises the applicant is ordered to pay the first respondents costsof opposing this application for rescission of judgment on a party andparty scale.________________________________________MOKGOATLHENG AJACTING JUDGE OF THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE OF HEARING:

31STOF MAY 2006DATE OF JUDGMENT:5thOF SEPTEMBER 2006APPEARANCESFOR THE APPLICANT: ADV. ROELOF DU PLESSIS SCINSTRUCTED BY: GROENEWALD VAN DYK INC.APPLICANT’S ATTORNEYS101 OPTI-PLAN HOUSE232 BRONKHORST STREETBROOKLYNTEL: 012- 460 5430REF: C GROENEWALD/G409FOR THE RESPONDENT:ADV. JPF DE KLERKINSTRUCTED BY:LOGANPILLAY & KANTHAPADAYACHEE, ATTORNEYSC/O MARAIS & STUARTINC.755 PARK STREETARCARDIAPRETORIAREF: SMARAISTEL: 012-343 0267

IN THE HIGH COURT OF

SOUTH AFRICA

(TRANSVAALPROVINCIAL DIVISION)

(

TRANSVAAL

PROVINCIAL DIVISION)

Reportable

REVISED JUDGMENT

Case Number:

26669/05

THE GOVERNMENT EMPLOYEESPENSION FUND

KUPPEN, GP

KUPPEN, L

In re

THE GOVERNMENT EMPLOYEES

PENSION FUND

JUDGMENT

MOKGOATLHENG AJ

Introduction

[1] This is an application fortherescissionof the judgment granted by Legodi J on the 14thof August 2005,interms whereof the applicant was ordered to pay the first respondentwithin 14 days;

[1] This is an application for

the

rescission

of the judgment granted by Legod

i J on the 14

th

of August 2005,

in

terms whereof the applicant was ordered to pay the first respondent

within 14 days

;

(a)hispensionfund benefitsas contemplated in the Government Employees Pension Law,1996, including interestthereon, as fromthe28thApril 2005,and

(a)

his

pension

fund b

enefit

s

as contemplated in the Government Employe

e

s Pension Law

,

1996, including interest

there

on

, as from

28

April 2005,

and

(b)thecosts of the application on a party and party scale.

(b)

costs of the application on a pa

rty and party scale.

[2] The applicant is a pension fund established in terms of section 3 of the Government Employees Pension Law, 1996toadminister and provide pension benefits to its members.

[

2

] The applicant is a pension fund established in terms of section 3 of the Government Employees Pension Law

, 1996

to

administer and provide pension benefits to its members.

[3]The first respondentis an educatorformerly employed by the KwaZulu-Natal Provincial Departmentof Arts, Education and Culture, andwasuntilhis resignation onthe 28thof February 2005a member of the applicant.

[3

]

The first respondent

is an educator

formerly employed by the KwaZulu-Natal Provincial Department

of Arts, Education and Culture, and

was

until

his resignation on

the 28

of February 2005

a member of the applicant

.

[4]On his resignationfromthe applicantthe first respondentbecame entitled to certain pension benefits payable in accordance with section 26 of the Government Employees Pension Law,1996,(“The Law”).

[4

O

n his r

esign

ation

from

the applicant

the first respondent

became entitled to certain pension benefits payable in accordance with section 26 of the Government Employees Pension Law

1996

“

The L

aw”

)

[5] Section26of “The Law”governsthe payment of pension benefitsandprovides that;

[5

] Section

26

of “The L

govern

the payment of pension benefits

provides that

(1) “Notwithstanding anything to the contrary in any law contained, a benefit payable in terms of this Law shall be paid to the member, pensioner orbeneficiaryentitled to such benefit within a period of 60 daysafter the date on which the Board receives a duly completed statement before the date on which the benefits becoming payable to the member, pensioner or beneficiary,concerned in terms of this Law, within a period of60 daysafter the date on which such benefit is so payable,

(1

) “N

otwithstanding anything to the contrary in any law c

ontained, a benefit payable in terms of this L

aw shall be paid to the member, pensioner or

beneficiary

entitled to such benefit within a period of 60 days

after the date on which the Board receives a duly completed statement before the date on which th

e benefits becoming payable to the member, pensioner or beneficiary,

concerned in terms of this Law, within a period of

60 days

after the date on which such benefit is so payable,

(2)if a benefit is not paid within the period referred to in subsection (1),interest shall be paid by the Fund to the member, pensioner or beneficiary on anypartof the amount of the benefit not paid withinthe period of60 days referred to in subsection (1)at the rate prescribed”.

(2

if a benefit is not paid within the period referred to in subsection (1),

interest s

hall be paid by the F

und to the member, pensioner or beneficiary on any

part

of the amount of the benefit not paid within

the period of

60 days referred to in subsection (1)

at the rate prescribed”.

[6] The first respondentcomplied with the requirements of section 26 of “TheLaw.” He hasduly submitted thecompleted statement in the prescribed form.On the 26thofJune 2005he elected the mode of his payment as required in terms of Rule 14.4.1A.[7]The applicant instituted an urgent applicationon the 1stof August 2005.On the 4thof August 2005 heobtained an ordercompellingthe applicant to effect payment of his pension benefits including the accrued interestthereon.On the 5thof August 2005 the first respondent’s pension benefitswere paidinto his banking accountby the applicant.

[6

] The first respondent

complied with the requirements of section 26 of “

T

he

L

aw.” He has

duly submitt

ed the

completed statement in the prescribed form

On the 26

of

June 2005

he elected the mode of his payment as required in terms of Rule 14.4.1A

[7

The a

pplicant instituted an urgent application

on the 1

st

of August 2005

On the 4

of August 200

5 he

obtained an order

compel

ling

the applicant to effect payment of his pension benefits including the accrued interest

thereon

On the 5

of August 2005 the first respondent’s pension benefits

were paid

into his banking account

by the applicant

THE RULE 42 (1) (a) APPLICATION

[1]The applicant instituted this application in terms of Rule 42(1)(a) fortherescission ofthejudgment issued on the 4thof August 2005. This application ispremised on the ground that the judgment was erroneously sought by the first respondent or erroneously granted bythe learnedJudge.

1

The applicant instituted this appl

ication in terms of Rule 42(1)

(a) for

rescission of

judgment issued on the 4

of August 2005. This application is

premised on the ground that the judgment was erroneously sought by the first respondent or erroneously granted by

the learned

J

udge

[2]The reasons proffered by the applicant in support of this applicationas averred byEsti De Witt,the applicant’slegal advisorare the following;

[2

he reasons proffered by the applicant in support of this application

as averred by

Esti De Witt

the applicant’s

legal advisor

are the following;

(a)theurgent application was servedontheapplicanton the1stAugust 2005,(b)on the 2ndof August 2005she scrutinised the Notice of Motion, and thoroughly studied the firstrespondent’s founding affidavit,

urgent application was served

applicant

on the

August 2005

(b

on the 2

nd

she scrutinised the Notice of Motion, and thoroughly studied the first

respondent

’

s founding affidavit,

(c) she intended togiveinstructions to theapplicant’s attorneysbefore the 9thof August 2005to oppose the urgent application,(d)sheunderstoodthatthe first respondent intended approachingthis court onthe 10thof August 2005 for an order onan urgent basis,

c

) s

he intended to

give

instruct

ions to the

s at

torneys

before the 9

to oppose the urgent application

(d)

she

understood

that

the first respondent intended approach

ing

this court on

the 10

of August 2005 for an order on

an urgent basis

(e) on the4thof August 2005whilstpreparing instructionsshe became awarethatdefaultjudgment had been granted against the applicant,

(e

) on the

4

whilst

preparing instruction

she became aware

default

judgment had been grante

d against the applicant

(f)she was stunned,onacloser scrutinyofNotice of Motionshediscoveredthat it was statedthat unless the applicantnotedits intention to opposeon or before the3rdof August 2005, the first respondent wouldapproach this court on the4thof August 2005 on an unopposedbasis,(g)when she first scrutinized the Notice of Motionshedidnot discernthe import of the above describedparagraph, and

(f

she was stunned,

a

closer scrutiny

Notice of Motion

discovered

that it was stated

that unless the applicant

note

d

its int

ention to oppose

on or before the

3

rd

of Augu

st 2005, the first respondent would

approac

h this c

ourt on the

of August 2005 on an unopposed

basis,

g

when she first scrutinized the Notice of Motion

id

not discern

the import of the above described

paragraph

, and

(h)the applicant contendsthat the Notice of Motion isdefective,does not comply withRule 6(4)(a)of the Uniform Rules of Court and does notconform to Form 2.

(h

the applicant contends

that the Notice of Motion is

defective

does not comply with

Rule 6

(4)(a)

of the Uniform Rules of Court and does not

conform to Form 2

[3]In order to determine whether this application has meritit is apposite to consider the factual matrix upon which it is predicated.

In order to determine w

ther this application has merit

it is apposite to consider the factual matrix upon which it is predicated.

THE APPLICANT’S GROUNDS FOR THERESCISSION OF JUDGMENT

THE APPLICANT’S GROUNDS FOR THE

RESCISSION OF JUDGMENT

[1]The applicant contends that the firstrespondent’surgentapplication had no merit,that had the applicantopposed sameitwould havesucceeded with a punitive costsorder against the first respondent.[2] Theapplicant argues that thefirstrespondent’sapplication is not thecausathat obligeditto pay thefirstrespondent’spension benefits;consequentlythe application did not serve any purpose in furthering thefirstrespondent’scase.[3] Theapplicantstates thattheprocess of calculatingthepensionbenefits payable to the first respondent is triggered once the applicantis furnished with thedulycompletedstatement in the prescribed form.

pplicant contends that the first

respondent’s

urgent

application had no merit,

that had the applicant

o

pposed same

it

would have

succee

ded with a punitive cost

order against the first respondent.

] The

applicant argues that the

first

application is not the

causa

that obliged

to pay the

pension benefits

consequently

the application did not serve any purpose in furthering the

case.

states that

process of calculati

ng

benefits payable to the first respondent is triggered once the applica

nt

is furnished with the

duly

completed

statement in the prescribed form.

[4]The applicant contends that, prior toit being aware of theurgentapplication, the process ofcalculating andeffectingpayment ofthe first respondent’s pension benefitswasalreadyinitiated.

The applicant contends that

, prior to

it being aware of the

application, the process of

calculating and

effecting

pay

ment of

’s pension benefits

already

initiated

[5] The applicantavers that itbecame aware of thecourt order after the payment processwas already completed,and argues thatthe first respondent would have received hispension benefit irrespective of the court order,andsubmitsit was not necessary for the first respondent to have instituted thisurgentapplication.

5

] The applicant

avers that it

became aware of the

ourt order after the payment process

was already c

omplete

and argues that

the first respondent would have received his

pension benefit irrespective of the c

ourt order

submits

it was not necessary for the first respondent to have instituted this

application

[6] The applicant argues that the first respondent was aware that it disputedhisversionand submitsthat therespondenterroneously sought the order,andthat the learned Judge erroneously grantedthe order,hadthelearned Judgebeenaware of theabove describedfacts he would not have issued the order.

6

] The applicant argues that the first respondent was aware that it disputed

version

and submits

that the

erroneously sought the order

that the learned Judge erroneously granted

the order

had

t

learned Judge

be

en

aware of the

above described

facts he would not have issued the order.

THE APPLICABLE LEGAL PRINCIPLES

[1]The application fortherescissionof judgment is premisedonlyonRule 42 (1)(a), this in my viewdoes not preclude the Courtfromdeterminingthe application in terms of the common lawif the applicant does notsucceed under Rule 42(1)(a).

[1]

The applicat

ion for

re

scission

f judgment is premised

ly

Rule 42 (1)(a), this in my view

does not preclude the Court

determin

the application in terms of the common law

if the applicant does not

succeed under Rule 42(1)(a)

[2]In the High Court, a judgment may be rescinded in terms of Rule 31 and Rule 42 of the Uniform Rules of Court or the common law.SeeDe Wet and Others v Western Bank Ltd1977 (4) SA 770(T )at D-F.Rule 31(5)(d)isnot relevant in the present matter. The provisions of the Rules relevant in the present matter are the following:

In the High Court, a judgment may be rescinded in terms of Rule 31 and Rule 42 of the Uniform Rules of Court or the common law.

See

De Wet and Others v Western Ba

nk Ltd1977 (4) SA 770(T )

1977 (4) SA 770

at D-F.

Rule 31(5)(d)

is

not relevant in the present matter. The provisions of the Rules relevant in the present matter are the following:

[3]Rule 31 (2) (b) provides as follows;

[3]

Rule 31 (2) (b) provides as follows;

“the 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, the court may upon good cause shown, set aside the default judgment on such terms as to it seems meet.”

[4]Rule42(1)provides that;

[4]

Rule

42(1)

provides that;

“The Court may, in addition to other powers it may have,mero motuor upon the applicationof any other party affected, rescind or vary –

“T

he C

ourt may, in addition to other powers it may have,

mero motu

or upon the application

of any other party affected, rescind or vary –

(a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby …”

[5] In my view, it seems that an ordermay be said to havebeen erroneously granted if at the time of its issuingthere wasaprocedural irregularity or errormade duringthe proceedingswhich is patentinthe record.See Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)2003 (6) SA 1SCA.

] In my view

, it seems that an order

may be said to have

been erroneously gra

nted if at the time of its issuing

there was

procedural irregularity or error

made during

the proceedings

which is patent

the record

See Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (

C

ape

2003 (6) SA 1SCA.

2003 (6) SA 1

THE ANALYSIS OF EVIDENCE AND ARGUMENTIN RESPECT OFTHE RULE 42 (1) (a) APPLICATION

THE ANALYSIS OF EVIDENCE AND ARGUMENT

IN RESPECT OF

[1] I turn now to considerwhetherthe grounds proffered by the applicantinjustification ofthe rescission of the default judgmenthave merit.[2] The applicant does not dispute that it had a legal obligation to pay the first respondent’s pension benefits. The payment of the pension benefits and the appropriate interest was effected on the 5thof August 2005.[3] The applicant argues that thecourtorder does not compel the payment of the first respondent’s pension benefits;and submits thatit compelsthepayment of the first respondent’spensionbenefits within 14 days of the courtorderthatwhichis in conflict withsection 26 of “The Law”.[4] The applicant argues that the first respondent has wrongly caused this Courttoissueanordercreatinga precedent thatcouldseverely prejudice the applicant, and contends that shouldthe order not be rescinded,itwill entitle the applicant’s members to simply approach the urgent court for an order to compel payment from the applicantwithin 14 days.[5] The applicant contends thatthefirst respondent does not dispute that;(a) the court order is incorrect,

[1] I turn now to consider

whether

the grounds proffered by the applicant

justif

ication of

the rescission of the default judgment

have merit.

] The applicant does not dispute that it had a legal obligation to pay the first respondent’s pension benefits. The payment of the pension benefits and the appropriate interest was effected on the 5

of August 2005.

] The applicant argues that the

ourt

rder does not compel the payment of the first respondent’s pension benefits;

and submits that

it compels

payment of the first respondent’s

benefits within 14 days of the c

rder

which

is in conflict with

section 26 of “The L

aw”.

] The applicant argues that the first respondent has wrongly caused this Court

issu

an

order

creating

a precedent that

could

severely prejudice the applicant

, and contends that should

the order not be rescinded,

will entitle the applicant

s members to simply approach the urgent court for an order to compel payment from the applicant

.[

] The applicant contends that

first respondent does not dispute that;(a) the court order is incorrect,

(b) the applicant initiated the payment process andpayment of the first respondent’s pension benefits prior to and without being aware of thecourtorder,(c) the applicant is by law barred from effecting any payment unless the first respondent clearly and in the prescribed manner informs the applicant of its election to receive payment either in terms of Rule 14.4.1A or 14.4.1B.

(b) the applicant initi

ated the payment process and

payment of the first respondent’s pension benefits prior to and without being aware of the

rder,(c) the applicant is by law barred from effecting any payment unless the first respondent clearly and in the prescribed manner informs the applicant of its election to rece

ive payment either in terms of R

ule 14.4.1A or 14.4.1B

[6] The applicantstatesthat the first respondentreceived all his pension benefits prior to the granting of thecourt order and argues that it is clear that theurgentapplicationdidnotin any mannerinfluence orexpeditethepaymentof the pension benefits.[7] The applicantsubmitsthat the prayersin theNotice of Motion have been fulfilled and adhered to in full prior to theCourt’s sanctioning thereof,and thatthere is no reason for an unwarranted judgment against it.[8] The applicant arguesthat the first respondent’s application had nomerit in that had it opposed same it would have been successful because of the following facts;

] The applicant

states

that the first respondent

received all his pension benefits prior to the granting of the

ourt order and argues that it is clear that the

did

no

in any manner

influence or

expedite

payment

of the pension benefits.

that the prayers

in the

Notice of Motion have been fulfilled and adhered to in full prior to the

s sanctioning thereof,

and that

there is no reason for an unwarranted judgment against it

[8

] The applicant argues

that the first r

espondent’s application had no

merit in that had it opposed same it would have been successful because of the following facts;

(a) the first respondent’s application is not thecausafor the consequent payment by the applicant,(b) the payment of the first respondents pension benefits was initiated prior to the 1stof August 2005without the applicant having been aware of the urgent application,paymentwas effectedbefore default judgment was granted,

(a) the first respondent’s application is not the

for the consequent payment by the applicant,(b) the payment of the first respondents pension benefits was initiated prior to the 1

without the applicant having been aware of the urgent application

was effected

before default judgment was granted,

(c) if thecourt was aware that the first respondent’s pension benefits were paid on the 4thof August 2006 thecourt would not have granted the order,(d) if thecourt was aware that the first respondent had not furnished the applicant with the duly completed statement in the prescribed form,and hadnotmade an election in terms of Rule 14.4.1Ait would not have granted the order.

) if the

ourt was aware that the first respondent’s pension benefits were paid on the 4

of August 2006 the

ourt would not have granted the order,

(d

ourt was aware that the first respondent had not furnished the applicant with the duly completed statement in the prescribed form,

and had

not

made an e

lection in terms of Rule 14.4.1

A

it would not have granted the order.

[9] In my view,the narration of theabovementioned reasonsonwhich the applicant’s failure to oppose the urgent applicationis predicated, and the grounds which the applicant enunciates in support of the rescission of judgment,do not disclose a procedural irregularity or mistake in respect of the issuing of the order.

[9

the narration of the

above

mentioned reasons

which the applicant’s failure to oppose the urgent application

is predicated

, and the grounds which the applicant enunciates in support of the rescission of judgment

do not disclose a procedural irregularity or mistake in respect of the issuing of the order.

[10]It is not possible to conclude that the order was erroneously sought by thefirst respondent,or erroneously granted by the learned Judge. Intheabsence of an answering affidavit from theapplicant,there was no good reason precluding Legodi J to grant default judgment.It cannot be cogently argued that theorderwas erroneously sought by the first respondent or erroneously granted by Legodi J.See Colyn (supra) at 8 para 9 G - H

[1

0

It is not possible to conclude that the order was erroneously sought by the

first respondent

or erroneously granted by the learned Judge. In

absence of an answering affidavit from the

there was no good reason precluding Leg

odi J to grant default judgment.

It cannot be cogently argued that the

was erroneously sought by the first respondent or erroneously granted by Legodi J.

See Colyn (supra) at 8 para 9 G - H

[11] I turn now to consider whether the reasonsproffered by the applicant are sufficient to establish good cause for the rescission of the judgment as required by the common law.

[11

] I turn now to consider whether the reasons

proffered by the applicant are sufficient to establish good cause for the rescission of the judgment as required by the common law.

THERESCISSION OF JUDGMENT

THE

UNDER THE COMMON LAW

[1]It seems the provisions of Rule31(2)(b)are analogous to,and resonate the common law requirementsthat an applicant in ordertosucceed mustshow“sufficient cause”andfurnisha reasonable,satisfactory explanationin support of therescission of adefault judgment.

It seems t

he provisions of Rule

31(2)

are analogous to

and resonate the common law requirements

that an applicant in order

succeed must

show

sufficient cause

”

furnish

a reasonable

satisfactory explanation

in support o

f the

rescission of a

default judgment

[2] In terms of the common law a default judgment may be set aside on the grounds of fraud orjustus error. SeeChilderley Estate Stores v Standard bank of South Africa Ltd1924 OPD 163. InDe Wet and Others v Western Bank Ltd1979 (2) SA 1031(A)at1041Bet seqTrengrove AJA, (as he then was), had occasion to consider the common law provisions relating to the rescission of judgments. The learned judge remarked as follows;

] In terms of the common law a default judgment may be set aside on the grounds of fraud or

justus error

. See

Childerley Estate Stores v Standard bank of South Africa Ltd1924 OPD 163

1924 OPD 163

. In

De Wet and Others v Western Bank Ltd1979 (2) SA 1031(A)

1979 (2) SA 1031

at

1041B

et seq

Trengrove AJA

, (as he then was)

, had occasion to consider the common law provisions relating to the rescission of judgments. The learned judge remarked as follows;

The Courts of Holland, as I have mentioned, appear to have had a relatively wide discretion in regard to the rescission of default judgments, and a distinction seems to have been drawn between the rescission of default judgments which had been granted without going into the merits of the dispute between parties, and the rescission of final and definitive judgments,whether by default or not, after evidence had been adduced on the merits of the dispute.(Cf Athanassiou v Schultz1956 (4) SA 357(W) at 306 G, and Verkoteren v Savage1918 AD 143at 144).In the former instance the Court enjoyed relatively wide powers of rescission whereas in the latter event the Court was, generally speaking regarded as been functus officio, and judgments could only be set aside on the limited grounds mentioned in theChilderleycase. ….the learned judge at 1042 F continued and stated that “Thus, under common law the Courts ofHollandwere, generally speaking, empowered to rescind judgments obtained on default of appearance, on sufficient cause shown. This power was entrusted to the discretion of the Court. Although rigid limits were set as to the circumstances which constituted sufficient cause … the Courts nevertheless laid down certain general principles, for themselves, to guide them in the exercise of their discretion. Broadly speaking, the exercise of the Court’s discretionary power appears to have been influence by considerations of justice and fairness, having regard to all the facts and circumstances of a particular case. Theonusof showing the existence of sufficient cause for relief was on the applicant in each case, and he had to satisfy the Courts, inter alia, that there wasareasonably, satisfactory explanation why the judgment was allowed to go by default. It follows from what I have said that the Court’s discretion under the common law extended beyond, and was not limited to, the grounds provided for in Rules 31 and 42 (1), and those specifically mentioned in theChilderleycase.”

The Courts of Holland, as I have mentioned, appear to have had a relatively wide discretion in regard to the rescission of default judgments, and a distinction seems to have been drawn between the rescission of default judgments which had been granted without going into the merits of the dispute between parties, and the rescission of final and definitive judgmen

whether by default or not, after evidence had been adduced on the merits of the dispute.

(Cf Athanassiou v Schultz1956 (4) SA 357(W) at 306 G, and Verkoteren v Savage1918 AD 143at 144).

1956 (4) SA 357

1918 AD 143

In the former instance the Court enjoyed relatively wide powers of rescission whereas in the latter event the Court was, generally speaking regarded as been functus officio, and judgments could only be set aside on the limited grounds mentioned in the

Childerley

case. ….the learned judge at 1042 F continued and stated that “Thus, under common law the Courts of

Holland

were, generally speaking, empowered to rescind judgments obtained on default of appearance, on sufficient cause shown. This power was entrusted to the discretion of the Court. Although rigid limits were set as to the circumstan

ces which constituted sufficient cause … the Courts nevertheless laid down certain general principles, for themselves, to guide them in the exercise of their discretion. Broadly speaking, the exercise of the Court’s discretionary power appears to have been influence by considerations of justice and fairness, having regard to all the facts and circumstances of a particular case. The

onus

of showing the existence of sufficient cause for relief was on the applicant in each case, and he had to satisfy the Courts, inter alia, that there was

reasonably, satisfactory explanation why the judgment was allowed to go by default. It follows from what I have said that the Court’s discretion under the common law extended beyond, and was not limited to, the grounds provided for in Rules 31 and 42 (1), and those specifically mentioned in the

case.”

[3]Theapplicant is obliged to disclose thereasons for hisdefault because it is relevant to the question whether the applicant’s default was wilful or not.Before a person can be said to be in wilful default the following must be shown;

The

applicant is obliged to disclose the

reason

s for his

default because it is relevant to the question whether the applican

t’s default was wilful or not.

Before a person can be said to be in wilful default the following must be shown

knowledge that the action is being brought against him,(b)a deliberate refraining from entering appearance though free to do so, and(c)a certain mental attitude towards the consequences of the default

knowledge that the action is being brought against him,

a deliberate refraining from entering appearance though free to do so, and

(c)

a certain mental attitude towards the consequences of the default

[4]InGrant v Plumbers (Pty) Ltd1949 (2) SA 470(0)Brink J held that the following requirements should be complied with in order to show“good cause”;

In

Grant v Plumbers (Pty) Ltd1949 (2) SA 470(0

1949 (2) SA 470

Brink J held that the following requirements should be complied with in order to show

“good cause”

“(a) An applicant must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance,

The application must be bona fide and not made with the intention of merely delaying plaintiff’s claim, and

The applicant must show that he has a bona fide defence to the plaintiff’s claim. It is sufficient if he makes out a prime facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.”

[5] Smallberger JinHDSConstruction (Pty) Ltd v Wait1979 (2) SA 298(E)at 300H – 301Astated that;

] Small

berger J

HDS

Construction (Pty) Ltd v Wait1979 (2) SA 298(E)

1979 (2) SA 298

at 300H – 301A

stated that;

“When dealing with words such as “good cause” and “sufficient cause”.

In other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (

Cairn’s Executors v Gaarn1912 AD 181

1912 AD 181

at 186;

Silber v Ozen Wholesalers (Pty) Ltd1954 (2) SA 345(A)

1954 (2) SA 345

at 352

“The Court’s discretion must be exercised after a proper consideration of all the relevant circumstances”

[6] A court will not come to the assistance of a defendant whose default was wilful or due to gross negligence.InChetty v Law Society, Transvaal1985 (2) SA 756(A)at page 765 A-EMiller J A had occasion to deal with the expression“sufficient cause”or“good cause”,and statedthat:

] A court will not come to the assistance of a defendant whose default was wilful or due to gross negligence.

Chetty v Law Society, Transvaal1985 (2) SA 756(A)

1985 (2) SA 756

at page 765 A-E

Miller J A had occasion to deal with the expression

“sufficient cause”

or

“good cause”,

and stated

that:

“these concepts defy precise or comprehensive definition, for many and various factors require to be considered.”

[7] The learned Judge stated that it is clear that in principlethetwo essential elements of“sufficient cause”for rescission of a judgment by default are:

7

] The learned J

udge stated that it is clear that in principle

two essential elements of

for rescission of a judg

ment by default are:

“(i) that the party seeking relief must present a reasonable and acceptable explanation for his default; and

(ii)

that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success.

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 judgement against him, no matter how reasonable and convincing the explanation of his default. An orderly 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 the Rules was nevertheless permitted to have a judgement against him rescinded on the ground that he had reasonable prospects of success on the merits.”

[8] In relation to the element of wilfulness, King J.held–Maunjean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994(3) SA 801 (C)that;

] In relation to the element of wilfulness, King J.

held

–

Maunjean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994(3) SA 801 (C)

that;

“(a) Wilful connotes deliberateness in the sense of knowledge or the action or consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend (or file a plea), whatever the motivation for his conduct might be.”

THE NOTICE OF MOTION IS DEFECTIVE

[1] In considering whether the applicant has shown “good cause” for its default,or its failure to deliver its answering affidavit or whether the applicant has a reasonable,satisfactory and acceptable explanation, I am enjoined to determine whether the reasons proffered by the applicant justify the rescission of the default judgment.

[1] In considering whether the applicant has shown “good cause” for its default

or its failure to deliver its answering affidavit or whether the applicant has a reasonable

satisfactory and acceptable explanation, I am enjoined to determine whether the reasons proffered by the applicant justify the rescission of the default judgment.

[2] The applicantcontends that the first respondent’sNotice of Motiondoes not comply with theRules, it argues that itisdefective and it is a nullity because it was not drafted in accordance with Rule 6(4)(a).

contends that the first respondent’s

does not comply with the

R

ules

, it argues that it

defective and it is a nullity because it was not drafted in accordance with Rule 6(4)(a)

[3]In my view,there is no merit in thiscontention. TheNotice of Motionis in a form as near as may be in accordance with Form2, and complies with the Practise Direction 1 of 1991 issued by Flemming DJP.SeeGallagher v Norman Transport Lines (Pty) Ltd1992 (3) SA 500at 502 E-H.

In m

y view

there is no merit in this

contention. The

is in a form as nea

r as may be in accordance with F

orm

, and complies with the P

ractise Direction 1 of 1991 issued by Flemming DJP

Galla

her v Norman Transport Lines (Pty) Ltd1992 (3) SA 500at 502 E-H

1992 (3) SA 500

THE COURT ORDERISINCORRECT

THE COURT ORDER

IS

INCORRECT

[1] The applicant contends that because thecourt order reflected the incorrect scale of costs asgrantedonanattorney and client scale instead oftheparty and party scale, this aspectargues the applicantis a ground for rescinding the order.

[1] The applicant contends that because the

ourt order reflected the incorrect scale of costs as

granted

attorney and client scale i

nstead of

party and party scale, this aspect

argues the applicant

is a ground for rescinding the order.

[2]It has been held that,“In exceptional circumstances a Court may recall its order eithermero motoor on an informal application by a partytosupplement or clarify its order”.This principle is not applicable in this matter.SeeFirestoneSA (Pty) Ltd v.Genticuro AG1977 (4) SA 298A at 306 H - 308 A;andDe Wet and Others v Western Bank Ltd1979 (2) SA 1031(A)at 1044E-1045G.[3] The order granted by Legodi J is clear and unambiguous. The orderwas subsequently obviouslyincorrectly typed by theoffice of theRegistrar,to reflect anincorrect costsorder, but this does not render theorderissued bythe learnedJudge incorrector nugatory. In any event the applicant has not suffered any prejudice as a result oftheincorrectly typed order.

It has been held that,

In exceptional circumstances a Court may recall its order either

mero moto

or on an informal application by a party

supplement or clarify its order

This principle is not applicable in this matter.

Firestone

SA (Pty) Ltd v

Genticuro AG1977 (4) SA 298A at 306 H - 308 A

1977 (4) SA 298

at 1044

E-1045

G

] The order granted by Legodi J is clear and unambiguous. The order

was subsequently obviously

incorrectly typed by the

office of the

Registrar

to reflect an

incorrect cost

order, but this does not render the

issued by

udge incorrect

or nugatory

. I

n any event the applicant has not suffered any prejudice as a result of

incorrectly typed order.

THE LEGAL ADVISOR’S EXPLANATION

[1] The applicant’s legal advisorexplains that“she scrutinised the Notice of Motionand thoroughly studied the founding affidavit”.The New ShorterOxfordEnglishDictionary Volume 2,4theditiondefines the verb“scrutinize”asbeing,tosubject to a methodical examination,toinspect with close attention,ortoundertakeaninquiry or examination”.[2] If the applicant’s legal advisorscrutinizedthe Notice of Motionas she alleges, it isinexplicable why she did not discernthat the application was set down for the 10thof August 2005.[3] The question is whether the applicant’s legal advisor’s conduct wasgrosslynegligentas a consequence of her failureto correctly read andunderstandtheimport of aNotice of Motion.

] The applicant’s legal advisor

explains that

“she s

crutinised the Notice of Motion

and thoroughly studied the founding affidavit

The New Sho

r

ter

Oxford

English

Dictionary Volume 2

edition

defines the verb

scrutinize

as

being

subj

ect to a methodical examination,

inspect with close attention,

undertake

inquiry or examination

] If the applicant’s lega

l advisor

the Notice of Motion

as she alleges

, it is

i

n

explicable why she did not discern

that the application was set down for the 10

] The question is whether the applicant’s legal advisor’s conduct was

grossly

negligent

as a consequence of her failure

to correctly read and

understand

import of a

[4] In my view,the applicant’s legal advisor’s conductthoughnotconforming to the conduct expected of a reasonable legal advisor, cannot be construed asgrosslynegligentin the circumstancesas it appears that she committed a bona fide mistake.

the applicant’s legal advisor’s conduct

though

conforming to the conduct expected of a reasonable legal advisor, cannot be construed as

in the circumstances

as it appears that she committed a bona fide mistake

[5] The second issue to consider is whether the applicant has a bona fide defence to the first respondent’s claim,andif so,whether the averments set out by the applicant,make out a prima facie case which carriessomeprospects of success which entitlesit to the relief it seeks.

] The second issue to consider is whether the applicant has a bona fide defence to the first respondent’s claim,

if so,

whether the averments set out by the applicant

make out a prima facie case which carries

some

prospects of success which entitle

it to the relief it seeks.

DOES THE APPLICANT HAVE A BONA FIDE DEFENCE

INSUFFICIENT INFORMATION BY THE EMPLOYER

[1] The applicant contends that it did not receive proper and complete information fromthe first respondent’s employerto enable it to process the payment ofhispension benefits, and says the first respondentdid notindicate whether he elects that his benefits be paid into;

[1] The applicant contends that it did not receive proper and complete information from

’s employer

to enable it to process the payment of

, and says t

he first respondent

did not

indicate whether he elects that his benefits be paid into;

(a)his personal bank accountin terms of the Rule 14.4.1A or(b) the bank account of an approved external fund, as provided for in terms of Rule 14.4.1B.

his personal bank account

in terms of the Rule 14.4.1A or(b) the bank account of an approved external fund, as provid

ed for in terms of Rule 14.4

1B.

[2] The applicant contends that prior to such election, or choiceitis precludedby section 26 of “TheLaw”from paying any benefits.

] The applicant contends that prior to such election, or choice

is precluded

by section 26 of “

from paying any benefit

s.

[3]Theapplicantreceived the required informationon the 26thof June 2005.Itsubsequently processed the information andpaidthe benefits on the 5thof August 2005.

received the required information

on the 26

of June 2005

It

subsequently processed the information and

paid

the benefits on the 5

[4] The provisions of section 26(1) of “The Law” are peremptory. There is a duty on the applicant to promptly initiate the processing and payment as soon as a member resigns.[5]It is patent that since the first respondent’sresignationon the 28thofFebruary2005, the applicant has failed to diligently and expeditiously process and effectpaymentofhispension benefitsas contemplated bysection 26(1)of “TheLaw”.

[4] The provisions of section 26(1) of “The Law” are peremptory. There is a duty on the applicant to promptly initiate the processing and payment as soon as a member resigns.

[5]

It is patent that since the first respondent’s

resign

on the 28

February

2005, the applica

nt has failed to diligently and expeditiously process and effect

ment

as contemplated by

section 26

(1)

of “

[6] In my view,the applicant initiated the pension benefits payment process on the 1stof August 2005, this is patent from the documents generated by the applicant’s civpen computer system.[7] The applicant has not profferedanyreasonable explanation regarding the steps it took to deal with the first respondent’s application for the paymentofhis pension benefits from the 26thof June 2005 to the 31stof July 2005.[8]In my view,the applicant cannot be saved by its contention that it had 60 days from the 26thofJune 2005 to process the firstrespondent’s pension benefits payments, that it paid accrued interest to the first respondent from the 1stof March 2005 to the 1stof August 2005.[9] In my view,the first respondentwasprejudicedas a result of the applicant’s dilatorinessand negligenceinnottimeouly processing andeffecting payment of hispension benefitsas demonstrated by the litany of the first respondent’s creditors foreclosing against him.

[6] In my view

the applicant initiated the pension benefits payment process on the 1

of August 2005, this is patent from the documents generated by the applicant’s civpen computer system.

[7] The applicant has not proffered

any

reasonable explanation regarding the steps it took to deal with the first respondent’s application for the payment

his pension benefits from the 26

of June 2005 to the 31

of July 2005.

[8]

In my view

the applicant cannot be saved by its contention that it had 60 days from the 26

June 2005 to process the first

respondent’s pension benefits payments, that it paid accrued interest to the first respondent from the 1

of March 2005 to the 1

9

prejudice

as a result of the applicant’s dilatoriness

and negligence

timeouly processing and

effecting payment of h

as demonstrated by the litany of the first respondent’s creditors foreclosing against him.

[10] In my view, the first respondent was justified and entitled to launch the urgent application as he was unjustly compelled to do so by the applicant’s negligent and dilatory conduct.

[10

] In my view, the first respondent was justified and entitled to launch the urgent application as he was unjustly compelled to do so by the applicant’s negligent and dilatory conduct.

DOES THERESCISSIONENJOIN THE COURT WITH SOMETHING WORTHY OFCONSIDERATION

DOES THE

RESCISSION

ENJOIN THE COURT WITH SOMETHING WORTHY O

F

CONSIDER

ATION

[1] Thequestion is whetherthe order soughtby the applicantwill haveapractical effect or result, in the sense that persons will be affected therebyorin that therewill bea justiciable issue beforeCourt after the rescission of the judgment.

question is whether

the order sought

will have

practical effect or result

, in the sense that persons will be affected thereby

in that there

will be

a justiciable issue before

ourt after the rescission of the judgment

[2] In the case ofPres Ordinary Court Martial v Freedom of Expression Institute[1999] ZACC 10;1999 (4) SA682at688F,Langa DP(as he then was)held,“that a courtshould consider whether any order it may make will have any practical effect either on the parties or on others.”

[2] In the case of

Pres Ordinary Court Martial v Freedom of Expression Institute[1999] ZACC 10;1999 (4) SA

[1999] ZACC 10

1999 (4) SA

682

688F

,Langa DP(as he then was)

“that a court

should consider whether any order it may make will have any practical effect either on the parties or on others

[3] The applicantconcedes that it was legally obligedin terms of section 26 of “TheLaw”to paythe first respondent’spension benefits.In my view,thecausathat precipitated the first respondent’s urgent application has been extinguished by the applicant’s payment of the first respondent’s pension benefits.

concedes tha

t it was legally obliged

in terms of section 26 of “

to pay

’s

pension benefits.

that precipitated the first respondent’s urgent application has been extinguished by the applicant’s payment of the first respondent’s pension benefits

[4]The objectivede jure and de factorealityis that the applicant has complied with the order issued by Legodi J.In my view,there is therefore no“causalconnectionbetween thecircumstances which gave rise to the claimand therescissionofthe judgment”.SeeSwadif (Pty.)Ltd. v. Dyke,N.O.1978(1)928 AD 939D-F.

The objective

de jure and de facto

reality

is that the applicant has complied with the order issued by Legodi J

I

n my view

there is therefore no

causal

connection

between the

circumstances which gave rise to the claim

and the

the judgment”.

Swadif (Pty

Ltd. v. Dyke,

N.

1978

(1)928 AD 939D-F.

928 AD 939

[5] The gravamen of thematter is whether there is a “triable issue or something deserving of consideration”predicating the applicationfor the rescission of judgment in the sense that;

5] The gravamen of th

matter is wh

ether there is a “triable issue or something deserving of consideration”

predicating the application

for the rescission of judgment in the sense that;

(a) “n geskilpunt wat, indien dit aan die hand van die getuienis watdie applikant in sy aansoek in die vooruitsig stel, bewys word, lewensvatbaar of relevant souwes; of(b) ‘n geskilpunt wat op die waarskynklikhede deur die getuienis wat aldus in die voooruitsig gestel word, bewys souwees”.

(a) “n geskilpunt wat, indien dit aan die hand van d

ie getuienis wat

die applikant in sy aansoek in die vooruitsig stel, bewys word, lewensvatbaar of relevant so

u

wes; of(b) ‘n geskilpunt wat op die waarsky

klikhede deur die getuienis wat a

l

dus in die voooruitsig g

estel word, bewys sou

wees”.

See CIBA – Geigy (Pty) Ltd v Lushof Farms(Pty) Ltd en ‘n Ander2002 (2) SA 447SCA at 462 J – 463B.

See CIBA – G

eigy (Pty) Ltd v Lushof Farms

(Pty) Ltd en ‘n Ander2002 (2) SA 447SCA at 462 J – 463

2002 (2) SA 447

B.

[6] In my view,theorder sought by the applicantwill not serve any purpose becausesubsequent theretothere willbenothing worthy of considerationbefore the courtasallthejusticiable issueswill beres judicata.

order sought by the applicant

will not serve any purpose because

subsequent thereto

there will

nothing worthy of consideration

before the court

all

justiciable issues

res judicata

[7]InSaphula v Nedcor Bank Ltd1999 (2) SA 76at 79 C- D,Flemming JP heldthat,“the object of rescinding judgment is to restore a chance to air a real dispute. Ona more technical level, arequirementforthe granting of rescission remain lacking in such cases. It has always beenahallmark of what lawyers abona fide (which has to be established before rescission is granted),that a defendant honestly intendsto pursue beforea Court a set of facts which, if true, will constitute a defence. That requirement is lacking in this case despite the problems which the applicant hasinert commercial instances.”In my view the requirements postulated by the learned Judge are lacking in this case despite the grounds enumerated by the applicant in support of the rescission of the judgment.

Saphula v Nedcor Bank Ltd1999 (2) SA 76at 79 C

1999 (2) SA 76

- D,

Flemming JP held

that,

“the object of rescinding judgment is to restore a chance to air a real dispute

. On

a more technical level, a

requirement

for

the granting of rescission remain lacking in such cases

. It has always been

hallmark of what lawyers a

bona fide (which has to be established before rescission is gran

ted),

hat a defendant honestly intends

to pursue before

a C

ourt a set of facts which, if true, will constitute a defence. That requirement is lacking in this case despite the problems which the applicant has

inert commercial instances.”

In my view the requirements postulated by the learned Judge are lacking in this case despite the grounds enumerated by the applicant in support of the rescission of the judgment.

[8] In my view,the grounds enunciated by the applicant in support of the rescission of the default judgmentand the putative defence espousedare“deprecated as abstract, hypothetical and of academic interestonly”.SeeNaptosa V Minister of Education, Western Cape Government2001 (4) BCLR 388(C)at 398 H-I.[9]InNational Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others[1999] ZACC 17;2000 (2) SA 1(CC);2000 (1) BCLR 39in para (21) fn 18, Ackerman J held that;“A case is moot and therefore not justiciable if it no longer presents an existing or have controversy which should exist if the Court is to avoid giving advisory opinion on abstract propositions of law.”

the grounds enunciated by the applicant in support of the rescission of the default judgment

and the putative defence espoused

are

deprecated as abstract, hypothetical and of academic interest

only

Naptosa V Minister of Education, Western Cape Government2001 (4) BCLR 388(C)

2001 (4) BCLR 388

at 398 H-I

[9]

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others[1999] ZACC 17;2000 (2) SA 1(CC);2000 (1) BCLR 39in para (21) fn 18

[1999] ZACC 17

2000 (2) SA 1

2000 (1) BCLR 39

, Ackerman J held that;

“A case is moot and therefore not justiciable if it no longer presents an existing or have controversy which should exist if the Court is to avoid giving advisory opinion on abstract propositions of law.

THE FIRST RESPONDENT’S OPPOSITION TO THE APPLICATION FOR RESCISSION OF JUDGMENT

[1] I turnnow to consider whetherthe first respondent’s conduct was reasonable in opposing this application, and if so, whether costs should be awarded against him. The other issue to be considered is whether such costs should be borne by the first respondent’sattorney Logan Pillaydebonis propriison an attorneyandclient scale due tohisconductin opposingtheapplication,and in attempting to tax a bill ofcostsonan attorney and client scale well knowingthat the correct ordergranted costson a party and party scale.

[1] I turn

now to consider whether

the first respondent’s conduct w

as reasonable in opposing this a

pplication, and if so, whether costs should be awarded against him

. T

he other issue to be considered is whether such costs should be borne by the first respondent

attorney Logan Pillay

de

bonis propriis

on an attorney

client scale due to

conduct

in opposing

and in attempting to tax a bill of

costs

an attorney and client scale well knowing

hat the correct order

granted costs

on a party and party scale.

[2] The questionthe court has to consider,is whether,the first respondent’s opposition to this application is vexatious, frivolous, unreasonable or misconceivedhaving regard to the peculiar circumstances of this matter.

[2] The question

the court has to consider

is whether

the first respondent’s opposition to this application is vexatious, frivolous, unreasonable or misconceived

having regard to the peculiar circumstances of this matter

[3]Thefirstrespondentstates that he opposed the applicationbecause he was under the reasonable apprehension that consequent to therescission of judgment hewasobliged to refund thepension benefits.

states that he opposed the application

because he was under the reasonable ap

prehension that consequent to the

rescission of judgment he

obliged to refund the

[4] The applicantarguedthat the first respondent erroneously sought the default judgmentbylaunchingthe urgentapplicationwithout any justification,because the first respondentcould not suffer any prejudice as his pension benefits andtheinterest accruingtheretohad been fully paid.[5] In my view,the applicant’s avermentsin its founding affidavitimpugnedthe first respondent’s honour andintegrity. The applicant portrayed the first respondent as the author of his own misfortune by being negligent in not providing the applicant with the full required information in the prescribed form.[6] The applicant is enjoined in terms of section 195(1)(a),(b)and (f)of the Constitution of theRepublicofSouth Africa Act108 1996 to respond to the needs of the first respondentbypracticing and adhering toa high standard ofprofessionalethics and accountability.SeePresident of theRepublicofSouth Africaand Others v South African Rugby footballUnionand Others2000 SA 1(CC)(1999 (10) BCLR 1059)at para [133].

] The applicant

argued

that the first respondent erroneously sought the default judgment

by

launching

the urgent

without any justifi

cation

because the first respondent

could not suffer any prejudice as his pension benefits and

interest accruing

thereto

had been fully paid

s averments

in its founding affidavit

impugned

the first respondent’s honour and

integrity. The applicant portrayed the first respondent as the author of his own misfortune by being negligent in not providing the applicant with the full required information in the prescribed form.

] The applicant is enjoined in terms of section 195(1)

and (f)

of the Constitution of the

Republic

South Africa Act

108 1996 to respond to the needs of the first respondent

practicing and adhering to

a high standard of

professional

ethics and accountability.

President of the

South Africa

and Others v South African Rugby football

Union

and Others2000 SA 1(CC)(1999 (10) BCLR 1059)at para [133].

2000 SA 1

(1999 (10) BCLR 1059)

[7] The first respondent has a constitutional right tojust administrative action, dignity andrespect.In my view,thefirst respondent’sconductwasreasonable inopposing thisapplication.

] The first respondent has a constitutional right to

just administrative action, dignity and

respect

reasonable in

oppos

ing this

WASATTORNEYLOGANPILLAY’S CONDUCTUNETHICAL AND UNCONSCIONABLE

WAS

ATTORNEY

LOGAN

PILLAY’S CONDUCT

UNETHICAL AND UNCONSCIONABLE

[1] The applicant contends that theconduct of the first respondent’s attorneywas mala fide in that;

[1] The applicant contends that the

conduct of the first respondent’s attorney

was mala fide in that;

(a)despite the fact thatno attorney and client cost order was granted,the first respondent’s attorneyirregularly attempted to executeattorney and clientscalecostswhenat all relevanttimes he was aware that the correct order issued was on a party and party scale,

despite the fact that

no attorney and client cost order was granted

s attorney

irregularly attempted to execute

attorney and client

scale

when

at all relevant

times he was aware that the correct order issued was on a party and party scale,

(b) notwithstanding these facts, and even after the application for rescission hadalreadybeenlaunched, the first respondent’s attorney still attemptedto taxand executeabillof costson an attorneyandclient scale.

b

) notwithstanding these facts, and even after th

e application for rescission had

been

launched, the first respon

dent’s attorney still attempted

to t

ax

and execute

bill

of costs

client scale

[2]On the 26thof October2005attorneyLogan Pillaymade asettlementproposal totheapplicanton thefollowingbasis;

of October

200

attor

ney

Logan Pillay

made a

settlement

proposal to

following

basis;

(a) the first respondentwould not oppose the application forrescissionif the applicantpays the costs of the application granted on the 4thof August 2005 on the scale as between party and party,and

(a) the first respondent

w

ould not oppose the application f

if the applicant

pays the costs of the application granted on the 4

of August 2005 on the scale as between party and party,

(b)the applicant should advise which itemsin the bill of costsit was disputing.

the applicant should advise which items

in the bill of costs

it was disputing

[3]In determining whether attorney Logan Pillay’s conduct was mala fide it must be borne in mind that he instructed a correspondent to attend court onhisbehalf on the 4thofAugust 2005.

In determining whether attorney Logan Pillay’s conduct was mala fide i

t must be borne in mind that he instructed a correspondent to attend court on

behalf on the 4

[4] It is possible that on the 4thof August 2005when attorney Logan Pillay received the faxed court order helaboured under the bona fide but erroneous impression that the costs order granted, ordered the applicant to pay costs on an attorney and client scale.

] It is possible that on the 4

when attorney Logan Pillay received the faxed court order he

laboured under the bona fide but erroneous impression that the costs order granted, ordered the applicant to pay costs on an attorney and client scale.

[5]The applicant’s attorneys on the 4thand 21stof November 2005respectivelyengagedattorney Logan Pillayseeking an explanation regarding hisconduct in attempting to enforce a bill of costs drawn on an attorney and client scale.

he applicant’s attorneys on the 4

and 21

of November 2005

respectively

engaged

seeking an explanation regarding h

conduct in attempting to enforce a bill of costs drawn on an attorney and client scale.

[6]In my view,theperceived misunderstanding surrounding the costsissue was clarified on the 26thof October 2005. Thesetting down of thetaxation of the bill of costson the 9thof March2005 and 7thof April 2005did not of interfere with or impede the conduct of theproceedings.

perceived misunderstanding surrounding the cost

issue was clarified on the 26

of October 2005. The

setting down of the

taxation of the bill of costs

on the 9

of M

arch

2005 and 7

of April 2005

did not of interfere with or impede the conduct of th

proceedings

[7]This is not a case where a bill of costs was paid in pursuance of an incorrect costs order.The crux of the matter is that the attorney and client bill drafted by attorney Logan Pillay’scosts consultantwas not taxed, the bill of costs forallintents and purposes is a nullity.The applicant hasnot suffered any prejudice.

[7]

his is not a case where a bill of costs was paid in pursuan

ce of an incorrect cost

s order.

The crux of the matter is that the attorney and client bill drafted by attorney Logan Pillay

costs consultant

was not taxed, the bill of costs for

intents and purposes is a nullity.

he applicant ha

not suffered any prejudice.

[8] In my view,attorneyLogan Pillaymay have beenprecipitate andnegligent in attempting to enforce an incorrect costs order, but there is noevidence thathisconductwasgrossly negligent,wilfulorintentional inpursuanceofafraudulentmotive.[9]Iam notpersuaded thatattorneyLogan Pillay’sconductin attempting to enforce, andin setting down the bill of costs drafted on an attorneyandclient scale,can be construed as grossly negligent or reprehensibleto the extent ofentitling this Court to show its disapproval by ordering costs againstattorneyLogan Pillay on an attorney andclient scalehaving regard to the circumstancesof this matter.SeeVisser v Visser1974 (3) SA 356at 357E-F.

8] In my view

attorney

may have been

precipitate and

negligent in attempting to enforce an incorrect costs order, but there is no

evidence that

grossly negligent,

wilful

intentional in

pursuan

ce

f

fraudulent

motive

am not

persuaded that

Logan Pillay’s

in attempting to enforce, and

in setting down the bill of costs drafted on an attorney

can be construed as grossly negligent or reprehensi

ble

to the extent of

entitling this C

ourt to show its disa

pproval by ordering costs against

Logan Pillay on an attorney and

having regard to the circumstances

of this matter

Visser v Visser1974 (3) SA 356at 357E-F

1974 (3) SA 356

[10] In exercising my discretion in the allocation of costs I am of the view that the applicant was unreasonable in instituting these proceedings in pursuance of acausawhich had been extinguished.

0] In exercising my discretion in the allocation of costs I am of the view that the applicant was unreasonable in instituting these proceedings in pursuance of a

which had been extinguished.

[11] In the premises the applicant is ordered to pay the first respondents costsof opposing this application for rescission of judgment on a party andparty scale.

11

] In the premises the applicant is ordered to pay the first respondents costs

of opposing this application for rescission of judgment on a party and

party scale.

________________________________________MOKGOATLHENG AJ

________________________________________

ACTING JUDGE OF THE HIGH COURT OFSOUTH AFRICA

ACTING JUDGE OF THE HIGH COURT OF

DATE OF HEARING:

31STOF MAY 2006DATE OF JUDGMENT:5thOF SEPTEMBER 2006

DATE OF HEARING:

31

ST

OF MAY 2006DATE OF JUDGMENT:

OF SEPTEMBER 2006

APPEARANCES

FOR THE APPLICANT: ADV. ROELOF DU PLESSIS SC

FOR THE APPLIC

ANT: ADV. ROELOF DU PLESSIS SC

INSTRUCTED BY: GROENEWALD VAN DYK INC.APPLICANT’S ATTORNEYS101 OPTI-PLAN HOUSE232 BRONKHORST STREETBROOKLYNTEL: 012- 460 5430REF: C GROENEWALD/G409

INSTRUCTED BY: GROENEWALD VAN DYK INC.APPLICANT’S ATTORNEYS101 OPTI-PLAN HOUSE

232 BRONKHORST STREET

BROOKLYN

TEL: 012

- 460 5430REF: C GROENEWALD/G409

FOR THE RESPONDENT:

ADV. JPF DE KLERK

INSTRUCTED BY:LOGANPILLAY & KANTHAPADAYACHEE, ATTORNEYS

INSTRUCTED BY:

PILLAY & KANTHA

PADAYACHEE, ATTORNEYS

C/O MARAIS & STUARTINC.755 PARK STREETARCARDIAPRETORIAREF: SMARAISTEL: 012-343 0267

C/O MARAIS & STUART

INC

755 PARK STREET

ARCARDIA

PRETORIA

REF: SMARAIS

-

343 0267