Lee v Road Accident Fund (22812/2020) [2023] ZAGPJHC 1068; 2024 (1) SA 183 (GJ) (26 September 2023)

Lee v Road Accident Fund (22812/2020) [2023] ZAGPJHC 1068; 2024 (1) SA 183 (GJ) (26 September 2023)

A judgment or order granted in default of appearance is not appealable because it remains rescindable. The Supreme Court of Appeal in Pitelli v Everton Gardens Projects CC established that only final orders are appealable, and default judgments are not final as they may be rescinded. The contrary decision in Moyana v Body Corporate of Cottonwood is incorrect and should not be followed, as High Courts are bound by Pitelli. Arguments that could be raised on appeal may also be advanced in rescission proceedings, and there is no procedural advantage to appealing a default judgment. The respondent's application for leave to appeal is therefore an irregular step and must be set aside.

Citation
[2023] ZAGPJHC 1068
Parties
Applicant: Alexandra Lee; Respondent: Road Accident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 September 2023
Case Number
22812/2020
Procedural Posture
Leave to Appeal / Application to Set Aside Leave to Appeal Against Default Judgment
Outcome
The respondent's application for leave to appeal against the default judgment is set aside as an irregular step. The respondent is ordered to pay the costs of the application, including the costs of two counsel where so employed.
Judges
S D J Wilson
Legal Topics
Default Judgment, Rescission of Judgment, Irregular Step, Leave to Appeal
Civil Procedure Default Judgment Rescission of Judgment Irregular Step Leave to Appeal

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Parties

Alexandra Lee

Applicant

Road Accident Fund

Respondent

Procedural Posture

Leave to Appeal / Application to Set Aside Leave to Appeal Against Default Judgment

Legal Issues

  1. 1 Is a judgment or order granted in default of appearance appealable.
  2. 2 Is an application for leave to appeal against a default judgment an irregular step.
  3. 3 Should the contrary decision in Moyana v Body Corporate of Cottonwood be followed.

Ratio Decidendi

A judgment or order granted in default of appearance is not appealable because it remains rescindable. The Supreme Court of Appeal in Pitelli v Everton Gardens Projects CC established that only final orders are appealable, and default judgments are not final as they may be rescinded. The contrary decision in Moyana v Body Corporate of Cottonwood is incorrect and should not be followed, as High Courts are bound by Pitelli. Arguments that could be raised on appeal may also be advanced in rescission proceedings, and there is no procedural advantage to appealing a default judgment. The respondent's application for leave to appeal is therefore an irregular step and must be set aside.

Court Disposition

The respondent's application for leave to appeal against the default judgment is set aside as an irregular step. The respondent is ordered to pay the costs of the application, including the costs of two counsel where so employed.

Orders

  • The respondent's application for leave to appeal against the default judgment of Lenyai AJ dated 3 March 2022 is set aside as an irregular step.
  • The respondent is directed to pay the costs of this application, including the costs of two counsel, where two counsel were employed.