Maponya v Machoare (CA 20/04) [2005] ZANWHC 14 (10 February 2005)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA 20/04

In the matter between:

MOGALADI

SAMUEL MAPONYA APPELLANT

AND

TOLLY

MACHOARE RESPONDENT

CIVIL

APPEAL

HENDRICKS

J AND SIBEKO AJ

JUDGMENT

SIBEKO AJ:

1. The Appellant appeals against the whole of the judgment and order of the Magistrate of Vryburg, delivered on 17 May 2004, in terms of which an action instituted by the Appellant against the Respondent for payment of damages was dismissed with costs.

2. The Appellant and Respondent in the appeal were the Plaintiff and Defendant, respectively, in the action in the Magistrate’s Court. For purposes of convenience, I shall refer to the parties as they were in the Magistrate’s Court.

3. The Plaintiff had instituted action against the Defendant for payment of damages in the sum of R10 100.00, made up as follows:

3.1 R3 300.00, being monies paid by the Plaintiff to the Defendant pursuant to an oral contract concluded by them in terms of which the Defendant had agreed to effect certain repairs to the plaintiff’s motor vehicle, which oral agreement the Defendant allegedly breached;

3.2 R1 200.00, being the difference between the costs of repair of R3 300.00, in terms of the oral agreement, and the amount of R5 000.00 that the Appellant had to pay to an entity referred to in the papers as Agapor, the firm which eventually carried out the repairs sought to be effected to the Plaintiff’s motor vehicle; and

3.3 R5 000.00, being the fair and reasonable value for the replacement of the crank shaft allegedly removed from the Plaintiff’s motor vehicle by the Defendant.

4. It appears to be common cause, when regard is had to paragraphs 4-6 of the Appellants heads of argument, that:

4.1 The Defendant entered appearance to defend the Plaintiff’s action by filing a notice to that effect with the clerk of the Court;

4.2 The notice of intention to defend that was filed with the clerk of the Court:

4.2.1 had been signed by the Defendant;

4.2.2 reflected the Defendant’s full address, which was apparently within 8 kilometres of the Magistrate’s Court, where he would accept service of process, notices or documents in those proceedings; and

4.2.3 reflected his postal address; and

4.3 By letter dated 14 November 2003, the clerk of the Magistrate’s Court for the district of Vryburg notified the Plaintiff’s attorneys of record in that action that the Defendant had given notice of his intention to defend the action instituted against him.

5. Contrary to what appears at page 5 of the record, and on 24 November 2003, the Plaintiff’s Attorneys caused a notice in terms of Rule 12(2)(b) of the Magistrate’s Court Rules to be delivered to the Defendant, in terms of which the Plaintiff indicated that the Defendant’s notice of intention to defend was defective for the following reasons:

5.1 it had not been properly signed by the Defendant; and

5.2 it did not set out the Defendant’s postal address and an address for service as provided for in Rule 13. The document bears a signature, a physical address and a postal address, all under the heading “Notice of Intention to Defend.

6. In terms of that notice, the Defendant was also required to deliver an amended notice of intention to defend which complied with the provisions of Rule 13(4).

7. In response to the Plaintiff’s notice in terms of Rule 12(2)(b) aforesaid, and on 4 December 2003, a firm of Attorneys practising under the name and style Maphango, Phokompe Attorneys, at 22 De Kock Street, Vryburg, caused a notice entitled “Notice of Instatement as Attorneys of Record” to be served on Plaintiff’s Attorneys. This notice appears at page 10 of the record and it reads “BE

PLEASED TO TAKE NOTICE THAT the offices of Messrs Maphango, Phokompe Attorneys of no. 22 De Kock Street Vryburg are hereby instated as attorneys of record for the Defendant in the above matter.

Take further notice that the Defendant will accept all future processes at the address stated herein”.

7.1 This notice informs the Plaintiff’s Attorneys that Maphango, Phokompe Attorneys will from that time on be acting on behalf of the Defendant (who was previously unrepresented) in the action. It sets out the address at which the Defendant will accept all notices, processes and documents relating to the action. It also bears a signature; and

7.2 This notice was receipted over the Plaintiff’s Attorneys’ stamp and signed on their behalf without any protestation or reservation of the Plaintiff’s rights.

If this notice that has been received by the Plaintiff’s attorneys without any protestation or reservation of rights does not cure the altered defects in the Defendant’s notice of intention to defend, and further demonstrate the Defendant’s unequivocal intention to prosecute his defence of the Plaintiff’s claim, I do not know what else would. The notice addresses every complaint that is raised in the Plaintiff’s rule 12(2)(b) notice.

8. On 20 January 2004, the Defendant’s attorneys caused:

8.1 a request for further particulars; and

8.2 a notice in terms of Rule 15(1), that is a notice calling upon the Plaintiff to supply the Defendant with all copies, documents or receipts or books upon which the plaintiff’s action is based,

to be delivered on Plaintiff’s attorneys.

Once again, these 2 processes were receipted over the Plaintiff’s attorneys’ stamp and signed on their behalf without any indication that they were received with reservation of the Plaintiff’s rights.

9. There followed an unexplained hiatus in the proceedings until 16 March 2003, on which date the Defendant’s Attorneys caused to be delivered a notice in terms of Rule 15(3) on the Plaintiff’s attorneys. In terms of that notice, the Defendant sought that the Plaintiff’s action be dismissed for failing to furnish the Defendant with a reply to his request for further particulars in terms of Rule 15(1). I must point out once again that the Plaintiff’s attorneys acknowledged receipt of that notice without any protestation or reservation of rights. In fact, since the delivery by the Plaintiff’s attorneys of the notice in terms of rule 12(2)(b), on or about 26 November 2003, the Plaintiff’s attorneys did nothing to prosecute the Plaintiff’s claim to finality.

10. If they really were of the view that the Defendant’s notice of intention to defend was fatally defective, one would, at the very least, have expected one of two things to have happened, namely:

10.1 they would have applied for default judgment; alternatively

10.2 they reasonably ought to have protested when the Defendant’s attorneys delivered the processes referred to hereinabove, or they would have acknowledged receipt thereof with some reservation of the Plaintiff’s rights.

That they did neither is, in my view, consistent with an acceptance by them that what might have been a defective notice of intention to defend, was cured by the subsequent delivery by Maphango, Phokompe Attorneys of the notice indicating that they would from that time on be acting on behalf of the Defendant, and that all processes, notice and/or documents in the action would be accepted at their office address. That notice also indicated that the Defendant was unequivocally defending the action instituted against him.

11. The application for the dismissal of the Plaintiff’s action was heard on 12 May 2004, and on 19 May 2004, the Learned Magistrate granted an order dismissing the Plaintiff’s action with costs. It is against this judgment that the plaintiff appeals to this Court. The Learned Magistrate furnished reasons (under the provisions of Rule 5(1) for the dismissal of the Plaintiff’s action. It is not easy to discern, with any approach to clinical accuracy, precisely what those reasons were. She, however recorded the following finding:

“1.1 Summons was served on defendant personally on 10.11.03 at the sheriff’s office.

1.2 He duly entered an appearance to defend, on the summons, which however was never served back on plaintiff’s attorney.

1.3 Clerk of Court sent the latter a letter informing him of defendant’s intention to defend.

1.4 Plaintiff then delivered notice i.t.o R 12(2)(iv) and (b) calling upon defendant to correct notice of appearance to defend.

1.5 Upon receipt thereof, defendant instructed attorney of record who duly gave notice of instatement to plaintiff’s attorney.

1.5.1 Effect of instatement notice was that of a reply to plaintiff’s notice i.t.o R 12(2).

1.5.2 It means plaintiff then knew defendant’s lawyer, place of service and delivery of process.

1.5.3 Defendant could this either file his plea, or exception, or request further particulars r a request i.t.o R 15(1) failing which plaintiff could ask for summary judgment or even default judgment.

1.6 Indeed defendant issued R 15(1) notice as well as a request for further particulars. Both served on plaintiff on 20.01.04 at 10h14.

1.7 What was the plaintiff’s response thereto? None whatsoever.

1.8 On 16.03.04 defendant filed notice of application for dismissal of action i.t.o R 15(3). That was appropriate. Application heard on 12.05.04.”

With regard to the appropriateness of the delivery by the Defendant’s attorneys she concluded as follows:

“When reading the particulars of claim attached to the summons, defendant is sued for amounts of R3 300, R1 200 and R5 600 respectively plus interest and costs, i.e according to par.

11.

In particular claim 2 of R1 200 is not clearly spelt out in par. 10 when read with par. 3 of the said particulars of claim. Defendant then asked for documentation on which action is based i.a.w R15. This was never replied to. It is my finding that the R15 notice was in order and the matter has to consequently be disposed off i.t.o R15(3).”

13. It seems to me apposite, before dealing with the submissions made in support of the appeal to have regard to the important principle set out in Pugin v Pugin 1963 (1) SA 791 (W) at 794F-G that:

“Although the entry of appearance may thereby have become irregular the plaintiff cannot ignore it and proceed as if there was no appearance at all … and while that appearance to defend stands, documents will have to be served on the defendant himself in accordance with rules 29 and 42, which give effect to the common law principle that a person who has entered an appearance to defend cannot be condemned without being heard.”

(My underling for emphasis)

14. In Mthanthi v Pepler 1993 (4) SA 368 (D & CLD) at 372 A-J, applying the principle set out in the Pugin decision, Hurt J said the following:

“I can do no better on this aspect than to quote what was said by Tindall J in Modesi v Mosiga 1927 TPD 150, an appeal against the refusal by a magistrate to grant rescission of a default judgment. In that case the defendant, after delivering a notice of intention to defend, had delivered a request for particulars out of time. The plaintiff’s attorney had apparently ignored the request and made application for default judgment, which had been granted by the magistrate. Tindall J had the following comments to make on the propriety of this procedure (at 153-4):

‘That being so there is no doubt that owing to the failure of the appellant’s attorney to observe the Rules either by filing a plea or asking for further particulars within the prescribed time limit, the Rule in force in magistrates’ courts entitled the respondent to approach the Court for a default judgment without notice to the appellant. It is unfortunate that the Rules of the lower court should afford such opportunities to the astute practitioner to seize on a slip made by his opponent in order to snatch a judgment against a defendant who has entered appearance only ten days before, whose attorney has requested further particulars, and who obviously intends to defend the case. And it is a matter for regret that practitioners in the lower court should resort to such tactics, and that when they do this the Court has no power to make the offending attorney pay the wasted costs himself. In the Supreme Court the Rules provide that where the defendant had entered appearance, a default judgment cannot be taken against him on his failure to file a plea, without giving him notice of set down. It is high time that Magistrates’ Court Rules were amended so as to contain a similar provision.

But although the respondent was entitled to apply ex parte for default judgment it does not follow that, if the true facts had been brought to the magistrate’s notice, the magistrate would have had no alternative but to grant the order. Order 10, Rule 3(1) provides that where the defendant has failed to enter appearance, the magistrate may give judgment as requested or refuse judgment or make such order as he may deem fit. But for some reason which only the Rules Board will be able to fathom, when the defendant has duly entered appearance but had not delivered his plea within the prescribed time, the Rule does not in terms give similar powers to the magistrate. Rule 3(2) states that in such a case the clerk of the court may on request of the plaintiff ex parte enter a default judgment against the defendant in the same manner as if the defendant had failed to enter an appearance to defend. But I do not agree with the contention that the word “may” must be interpreted to mean that the clerk of the court or the magistrate is bound to grant judgment by default. The absurd results which the interpretation suggested by counsel for the respondent would lead to are sufficient to show that the rule was not intended to have that meaning . . . It seems to me clear, therefore, that in the present case the magistrate ought not to have granted default judgment. If the magistrate had

knowledge that the appellant’s attorney had asked for further particulars, though the request was three days late, that should have induced the magistrate not to grant default judgment without notice to the appellant. And if such notice had been given there is not the slightest doubt that the appellant would have applied for an extension of time for the delivery of the plea; and upon such application being made default judgment should not have been granted. On the other hand if the magistrate was not aware of the request for further particulars, the respondent’s attorney was to blame for not particularity drawing his attention to the fact. It is no answer to say that the request for further particulars was lying in the record. In ex parte applications the utmost good faith is expected of practitioners and the respondent cannot now be in a better position than if her attorney had done his duty.’”

15. The principle in the Pugin case (supra) was also applied in Trustees Indertyd van M & L Trust v Jason Lucas [1996] 4 ALL SA 237 (E). Although the decisions referred to above dealt with defects in appearances to defend unlike the present case, I am of the considered view that the principle set out herein applies with equal force to the present case.

16. From the authorities referred to hereinabove, the principle to be distilled is that non-compliance with the provisions of Rule 13 is not, without further ado, fatally defective. Consequently, the submission made on behalf of the Plaintiff that the Defendant had not properly entered appearance to defend, without the Plaintiff having applied for default judgment, alternatively, making protestations, further alternatively, accepting further processes delivered by the Defendant’s attorneys without any reservation of the Plaintiff’s rights, leads one to the inescapable conclusion that the Plaintiff, through his attorneys, accepted that the Defendant was properly before the Court a quo, in that he had properly complied with the provisions of Rule 13(4) read with Rule 12(2). The submission that the defendant had not properly entered appearance to defend the Plaintiff’s action is not consistent with this conclusion, and falls to be rejected.

17. At page 18 of the heads of argument filed in support of the appeal, which submissions were persisted with at the hearing of this appeal, the main thrust of the Plaintiff’s case is set out in the following terms:

“1. The Appellant’s case was that as the Respondent had failed, neglected and/or refused to duly comply with the provisions of Rule 13(1) and (4) of the Rules that the Respondent had not entered an appearance to defend and that the Respondent was therefore not entitled to apply in terms of Rule 15(1) of the Rules to the Appellant for copies of the accounts or documents upon which the Appellant’s action was founded.

2. The Appellant’s case further entailed that as he was relying on a verbal contract as the cause of action that there was therefore no accounts or documents upon which his action was founded and that the Respondent was therefore not entitled to apply in terms of Rule 15 (1) of the Rules for copies and that it was not necessary for him to reply to the Respondent’s notice in terms of Rule 15(1) of the Rules.”

I shall deal with these bases seriatim.

18. I have already analysed the issue relating to the Defendant’s conduct earlier in this judgment relating to:

18.1 his filing of the notice of intention to defend;

18.2 the apparent acceptance by the Plaintiff of such entry of appearance to defend, as appears from page 2 paragraph 4 of the heads of argument filed on behalf of the Plaintiff;

18.3 the despatch by the clerk of the court and the receipt (without protestation) by the Plaintiff’s attorneys of the letter at page 7 of the record, informing them that the Defendant had entered appearance to defend. The entering of appearance to defend finds support in the endorsement at page 5 of the record;

18.4 the Plaintiff’s attorneys’ lack of protestation and receipt of subsequent processes filed, served or delivered by the Defendant’s attorneys after they (the Plaintiff’s attorneys) had caused to be delivered on the defendant, the notice in terms of Rule 12(2)(b); and

18.5 the Plaintiff’s attorneys’ failure to apply for default judgment if they genuinely, alternatively, honestly, further alternatively, reasonably believed that the Defendant had failed to comply with the provisions of Rule 13, or that the notice of intention to defend was fatally defective, especially that the defendant had not responded to the notice delivered in terms of Rule 12(2)(b).

19. In coming to the conclusion that the Plaintiff’s conduct, alternatively, that of his attorneys is not consistent with an acceptance that the Defendant had not delivered a notice of intention to defend as contemplated in the notice in terms of Rule 12(2)(b), my conclusion was informed by what is set out in Jones & Buckle “The Civil Practice in the Magistrates’ Court in South Africa”, where at p 13-4 to 13-6 the learned author say the following with regard to defective notices of intention to defend:

“An entry of appearance can be irregular or defective in one or more of the following ways:

1. It is not marked with the number of the case as required by rule 3(2). The clerk is obliged to reject it and will not receive it until it is correctly numbered; and it has been held that in the mean time the plaintiff is entitled to default judgment if he applies for it.

2. It has not been properly delivered as required by rule 12(2)(a)(i). This is not a defect entitling the plaintiff to immediate default judgment, however, for in terms of rule 12(2) he must call upon the defendant to deliver a memorandum (notice) of entry of appearance in due form within 5 days. ‘Improper delivery’ in terms of this paragraph would include the case where the defendant files his notice of intention to defend with the clerk, but omits to serve a copy on the plaintiff as is required by the definition of ‘deliver’ in rule 2(1).

3. It has not been properly signed as required by rule 13(4)(a) read with rule 12(2)(a)(ii). This defect, too, is not immediately fatal – see para 2. above.

4. It does not set out the postal address of the person signing it or an address for service as provided for in rule 13(4). If the defendant does not comply with one or the other of the requirements of rule 13(4) as to address, his entry of appearance is defective but not fatally – see para 2. above.

5. The notice of entry of appearance is regular initially, but the attorney acting for defendant, whose office was the address for service, subsequently ceases to act.

There is no procedure in magistrates’ courts practice whereby an entry of appearance can be set aside by reason of the attorney’s subsequent withdrawal and the resultant lack of a service address. However, a defendant should immediately advise the plaintiff and any other parties that his former attorney’s address is no longer the address appointed for service in terms of rule 13(4), for if he fails to do so, any service which takes place at the office of that attorney after the termination of the mandate is bad service. If the defendant fails to appoint another attorney or does not give an address where the documents can be served on him, documents will have to be served on the defendant himself. If such service cannot be effected in the usual manner, the plaintiff must approach the court for directions as to some form of substituted service.

If the defendant has entered appearance by an attorney and the case proceeds, but the attorney ceases to act in any time before the conclusion of the trial, and thereafter there is nobody to represent the defendant and he is absent from the hearing himself, the proceedings become converted into an application for judgment by default. The matter then falls to be dealt with in terms of rule 32(2), which deals with the case where a defendant fails to appear in court.

6. The entry of appearance is made on behalf of a company but it is evident to the clerk of the court that the resolution authorizing it is invalid by reason of having been passed by less than the quorum of the board of directors, who have failed to give the remainder of the board notice of the meeting called for the purpose of passing the resolution. If in the circumstances the resolution cannot be validated ex post facto by a later resolution duly passed, the entry of appearance is defective. There is nothing that the clerk can do under rule 12(2)(a) to prevent default judgment being taken in the magistrate’s court; but it is submitted that the court itself can (and should) act in terms of rule 12(7)(f) and allow the defendant time in which to file a properly authorized entry of appearance. This naturally implies that the clerk should refer to the court, under rule 12(7), any request for default judgment based on the provisions of rule 12(1)(a) where the alleged default is the abovementioned.

In the case of defects (2),(3) and (4), or where there is a combination of any number of these, or where there is any defect of form, the plaintiff is not entitled to immediate entry of default judgment but must first give the defendant five days within which to deliver a notice of entry of appearance in due form. After this, if the defendant is still in default, the clerk may enter judgment against him. The clerk must notify the plaintiff in writing of a defective memorandum of entry of appearance entered by a defendant who is not represented by an attorney and in what respect such entry of appearance is defective.”

20. In the light of what is set out herein before, I find that this ground of appeal that the defendant’s entry of appearance to defend was irregular and/or defective, has no merit and falls to be rejected.

21. I now turn to the second ground of appeal that the Plaintiff’s cause of action in the court a quo was based on an alleged breach of an oral agreement (to render services for an agreed amount) and consequently that the Defendant’s notice in terms of Rule 15(1) was not competent.

22. At paragraph 13 page 25 of the heads of argument, there is an acceptance that the purpose of Rule 15, like Rule 16, is to enable the Defendant to obtain information which is necessary before he can plead properly, and I might add, to make a tender. In this regard, reliance is placed on, among others, the decision in Service Master Eastern Transvaal (Pty) Ltd v VGS Engineering (Pty) Ltd t/a VGS Precision Motor Engineering 1983 (1) SA 540 (T) at 543B.

23. It is further submitted that the procedure in Rule 15(1) is a specialised one and should not be confused with the machinery for obtaining discovery and production by Rule 23, and which can be brought into operation only after close of pleadings. Consequently, so the submission goes, as the Plaintiff’s cause of action was based on a breach of an oral agreement. It was not required of the Plaintiff to supply copies of documents which are merely incidental or collateral to the action or are merely of evidential character to the Plaintiff’s claim.

24. I have already indicated that the Plaintiff’s attorneys receipted the notice in terms of Rule 15(1) that was caused to be delivered by the Defendant’s attorneys without any protestation or reservation of the Plaintiff’s rights. If the Plaintiff’s attorneys honestly and reasonably held the view that the delivery of this notice was irregular, one reasonably would have objected to the notice or have brought to the attention of the Defendant’s attorneys what their views were regarding that notice. This they did not do.

25. In any event, it appears from the decision in the Service Master Eastern Transvaal case at p 543B-F that if the Plaintiff’s attorneys honestly or reasonably believed that the action was not founded on any documents, it was incumbent on them to deliver a notice to that effect.

26. For the reasons set out above, I am of the view that the failure by the Plaintiff or his attorneys to respond to the Rule 15(1) notice entitled the Defendant to apply for the dismissal of the Plaintiff’s claim, and that on the basis of the documents that the Learned Magistrate had to consider, exercised her discretion to dismiss the action. There is nothing on the record that suggests that the exercise by the Learned Magistrate to dismiss the Plaintiff’s action was improper. No submission was made to persuade me that the exercise of the discretion by the Learned Magistrate in the manner she did was improper.

27. In the result, the appeal must fail.

Consequently, I make the following order:

1. The appeal is dismissed.

______

L

T SIBEKO

ACTING JUDGE OF THE HIGH

COURT

I agree

____

R

D HENDRICKS

JUDGE

OF THE HIGH COURT

DATE OF HEARING : 4 FEBRUARY 2005

DATE OF JUDGMENT : 10 FEBRUARY 2005

APPEARANCES:

Counsel for the Appellant : ADV ZWIEGELAAR

Counsel for the Respondent : NO APPEARANCE

Attorneys for the Appellant : SMIT STANTON INC.

Attorneys for the Respondent : MAPHANGO, PHOKOMPE

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