IN THE SUPREME COURT OF SWAZILAND
Civil Appeal Case No.18/13
In the matter between:
MBUKENI MAZIYA Appellant
THE MOTOR VEHICLE ACCIDENT FUND Respondent
Neutral citation: Mbukeni Maziya vs The Motor Vehicle Accident Fund (18/13)  [SZSC 16] (31May 2013)
Coram: A.M. Ebrahim JA
Dr. S. Twum JA
M.C.B. Maphalala JA
For the Appellant: S.C. Dlamini
For the Respondent: S. Masuku
Heard: 13 May 2013
Delivered: 31 May 2013
Summary: Civil appeal – Civil procedure – Rescission of default judgment - When granted Rule 31(3)(b) and Rule 42(1) of the High Court Rules – Respondent showed good cause for not entering its defence – Basis of a bona fidedefence established – Appeal dismissed with costs.
 The appellant obtained a default judgment against the Respondent in the High Court on the 30th July 2012 for the payment of E275, 000.00.
 The Respondent applied for the rescission of that judgment on the 10th August 2012 but for some unexplained reason judgment on this application was only delivered on the 12th April 2013.
 The Respondent was successful in its application and was granted rescission.
 The Appellant appeals against this decision.
 The Appellant was involved in a collision with a motor vehicle on the 19th January 2011 at about 20.20 hours as he crossed the MR3 public road, highway, at or near the Ezulwini Satellite area.
 It was the Appellant’s case that he suffered serious injury and sustained damages as a result amounting to a total of E275,000, being E200, 000 for general damages (permanent disability) and E75, 000 for estimated medical expenses.
 It is not in dispute that the Appellant issued a summons against the Respondent who failed to file a notice to defend the matter. Following this failure the Appellant secured a default judgment against the Respondent.
 In its application for rescission of this judgment the Respondent asserted that it only became aware of the existence of this judgment when the Deputy Sheriff came to execute the warrant on its property to satisfy payment of E275, 000 in favour of the Appellant.
 The Respondent’s reasons for seeking the rescission of the judgment are reflected in its founding affidavit thus:
“Ad Reasons for Default
It appears from the application for judgment by default that the order was granted on the basis that no Notice of Intention to Defend was served and filed by the Applicant. The Applicant submits that it was not in wilful default by failing to serve and file a Notice of Intention to Defend and state the reasons below why it failed to defend the action:
14.1 The summons was served to Minenhle Zwane at Applicant’s premises, who is a Personal Assistant to me. She received the summons and passed it on to the filing department for proper filing in the correct file and apparently it was misled and as such it never reached the processing department;
14.2 Not much movement occurred thereafter for any of the Applicant’s staff members to notice that there was now a court process;
14.3 The Respondent’s attorneys only wrote on the 28th November, 2011, stating that the Applicant should make his client an offer to settle the claim or else legal action shall be taken against the Applicant. Leave is sought to attach the letter and mark it “HMV5”;
14.4 I am advised and verily believe that our attorneys called to enquire about the matter after a purported pre-trial conference with the Respondent’s attorneys on other matters. No summons was found in the file. It probably had been misfiled and the only time when we realised that there was service was when we were served with the Writ of Execution on 31st July, 2012.
Had our Claims Manager been furnished with the summons in the appropriate file and on time, the Applicant would have defended the action for reasons set out in the paragraphs set out below.
Ad bona fide Defence
I submit that the Applicant has a bona fide defence which, prima faciecarries some prospects of success in the merits in as much as:
16.1 The Applicant had repudiated the claim prior to the issuance of the summons for reasons that the Respondent (a pedestrian) crossed the MR3 public road (a highway) at or near Ezulwini Satellite area on the 19th January, 2011 at about 20:20 hours. He negligently crossed the road when it was extremely dangerous to do so next to an overhead pedestrian crossing bridge when he ought to have used the overhead bridge;
16.2 As it happened, the Respondent was knocked down by the insured vehicle, Nissan X-trail, SD303RL, driven by Henry Fana Dlamini;
16.3 According to the police report, the Respondent was charged for contravening section 80(5) of the Road Traffic Act No.6/2007read together with section 122(7) (for jaywalking). I beg leave to attach the police report and mark it “HMV6”.
On the 11th November, 2011 the Applicant repudiated Respondent’s claim on the basis that he had sneaked through an open hole of the road fence to gain access into the highway without a proper lookout when it was not safe to do so. The Applicant alleged that if the Respondent had used the overhead pedestrian bridge which was a few metres from where he crossed the roadway, the collision would not have occurred. Leave is sought to attach the letter repudiating Respondent’s claim and mark it “HMV7”.
In the alternative, I submit that the Applicant would have raised the contributory negligence defence and asked the Honourable Court to apportion fault between the Applicant and the Respondent in terms of the Apportionment of Damages Act, 1975 for reasons that perhaps the insured vehicle failed to exercise due care in the circumstances. The Honourable Court granted the judgment by default without apportioning fault”.
 The Appellant also took issue with the quantum of damages claimed by stating:
QUANTUM OF DAMAGES
In his particulars of claim the Respondent alleged to have sustained damages amounting to a whopping E275, 000.00 (two hundred and seventy five thousand Emalangeni) made up of the following:-
19.1 General damages (permanent disability) _ E200, 000.00
19.2 Estimated medical expenses - E 75,000.00
Which he was asked by the court to prove by affidavit.
The amount of E275, 000.00 (two hundred and seventy five thousand Emalangeni) claimed and ‘proved’ by the Respondent is way in excess to the findings of the orthopaedic surgeon who examined the Respondent. In section D of the report Dr. Jere (orthopaedic surgeon) suggests under what constitute general damages (pain and suffering, amenities of life and disability, paragraphs 2, 3 and 5 of the report) that:-
20.1 The Respondent suffered severe pain from the fracture which would have subsided after stabilisation in the cast. He suffered moderate pain during rehabilitation for three (3) to four (4) months and no significant pain was expected after complete healing of the fracture;
20.2 Amenities of life, the report says he will not suffer permanent set back regarding activities of daily living;
20.3 On disability, the fracture of the left tibia/fibula had united completely and the report describes his condition as mild residual disability expected to improve over six (6) months. There was no permanent disability as alleged in his affidavit in proof of damages.
I submit that had this report been filed together with the affidavit in proof of damages before the Honourable Court, judgment in the full amount claimed in the particulars of claim of E275, 000.00 (two hundred and seventy five thousand Emalangeni) (which in most cases is without medico-legal support) would not have been sustained but at least lesser amount duly apportioned per the apportionment of Damages Act under the circumstances.
The rescission or setting aside of this judgment will give the Applicant and/or the parties an opportunity to properly vet these issues and come to an appropriate compensation. The Applicant and/or the parties would also have an opportunity to refer to precedents of similar cases which formed the basis of the repudiation. Applicant is duty bound to assess the claims satisfactory.
The Respondent claimed an amount E75, 000.00 (seventy five thousand Emalangeni) as estimated future medical expenses both in the particulars of claim and affidavit in proof of damages. The Honourable Court will however notice that paragraph 6 of the medico-legal report states that the Respondent does not require any medication or in the future.
I submit that if the report was filed together with the affidavit in proof of damages, the Honourable Court would not have awarded the Respondent the amount of E75,000.00 (seventy five thousand Emalangeni) under the head ”future medical expenses”. I beg the leave of court to attach the medico-legal report and mark it “HMV8” and the affidavit in proof of damages ‘HMV9’”.
 These assertions found favour with the judge a quo who granted the rescission sought by the Respondent.
 I am satisfied that she was correct in doing so.
 In terms of section 31(3)(b) of the High Court Rules (the Rules) it was open to the Respondent to apply for the rescission of the judgment which it discovered had been obtained against it, following its default in entering a notice to defend the matter.
 Section 31(3) (b) provides:
(3) (a) ...
(b) A defendant may, within twenty-one days after he has had knowledge of such judgment, apply to court upon notice to the plaintiff to set aside such judgment and the court may upon good cause shown and upon the defendant furnishing to the plaintiff security for the payment of the costs of the default judgment and of such application to a maximum of E200, set aside the default judgment on such terms as to it seems fit”.
 Section 42(1) is also pertinent and provides for as follows:
“42(1) The court may, in addition to any other powers it may have, mero mutuor upon the application of any party affected, rescind or vary:
An order or judgment erroneously granted in the absence of any party affected thereby;
An order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;
An order or judgment granted as the result of a mistake common to the parties”.
 In the case of Msibi v Mlaula Estates (Pty) Ltd, Msibi v G M Kalla and Co 1970-1976 SLR 345 (HC) Nathan CJ as he then was stated at 348D–H to 349A-B:-
“It is noted that the court has a discretion in the matter and that “good cause” must be shown. The requirements which must be satisfied before the court will grant a rescission of a default judgment have been discussed in a number of cases, of which I may mention Grant v Plumbers (Pty) Ltd 1949(2) SA 470(O); Smith NO v Brummer NO and Another 1954(3) SA 352(O); Silber v Ozen Wholesalers (Pty) Ltd 1954(2) SA 345 (A).
I quote from the headnote to Smith’scase, supra. The judgment is in Afrikaans. “In an application for removal of bar [and the same principles apply in applications for rescission of judgment] the Court has a wide discretion which it will exercise in accordance with the circumstances of each case. The tendency of the Court is to grant such an application where (a) the applicant has given a reasonable explanation of his delay; (b) the application is bona fideand not made with the object of delaying the opposite party’s claim; (c) there has not been a reckless or intentional disregard of the Rules of Court; (d) the applicant’s action is clearly not ill -founded; and (e) any prejudice to the opposite party could be compensated for by an appropriate order as to costs. The absence of one or more of these circumstances might [Afrikaans mag – I prefer ‘may’] result in the application being refused”.
The judgment of Schreiner JAin Silber’scase, supra, is also of great importance. At page 352G the learned judge said, “It seems clear that by introducing the words ‘and if good cause be shown’ the regulating authority was imposing upon the applicant for rescission the burden of actually proving, as opposed to merely alleging, good cause for rescission, such good cause including but not being limited to the existence of a substantial defence (cf. Du Plessis v Tager, 1953(2) SA 275at 278(O).
At pages 278-9 of the judgment in Du Plessis v Tager, supra, which is in Afrikaans, Van Blerk Jstressed that in addition to having to establish a prima faciedefence an applicant for rescission must furnish good reasons for his default.
In Silber’scase, supra, at page 353A, Schreiner JAcontinued to say, in regard to the “good cause” which must be shown, “It is enough for present purposes to say that the defendant must at least furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about, and to assess his conduct and motives”. And at page 353G, “The onuslay upon the defendant to prove good cause and in my view the bare allegation of forgetfulness made by Nathan Ozen was of little value in discharging that onus. An allegation that is too bald may for that reason carry little weight”.
See also the judgment of Fannin Jin Kajee and Others v G and G Investment and Finance Corporation (Pty) Ltd 1962(1) SA 575 (D)at page 577E-F(which was approved in Roopnarain v Kamalapathy and Another 1971(3) SA 387 (D)at page 389C): “It seems to me that what is required in a case such as this is that the applicant must explain his default. He cannot simply claim the Court’s indulgence without giving an explanation. The explanation must be reasonable in the sense that that phrase was used in Naidoo’s case [1956(3) SA 244(N)] and Grant’s case, supra, namely that it must not show that his default was wilful or was due to gross negligence on his part. If the explanation passes that test, then the Court will consider all the circumstances of the case, including the explanation, and will then decide whether it is a proper case for the grant of indulgence”.
Finally I may refer to the recent decision in Vincolette v Calvert 1974(4) SA 275(E) in which Kotze J, at page 277B, said that an attitude of disregard of the process of the court is one upon which the court cannot place its stamp of approval”.
See also P.E. Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980(4) SA 794 (A).
 I turn now to consider the facts pertaining to this case against the background of the above cited authorities.
 The reasons for the Respondent’s default was outlined in the affidavit filed on its behalf by the Helmon Vilakati, the Chief Executive Officer of the Respondent in paragraphs 14 to 18 of his affidavit. These details have been alluded to in paragraph  of this judgment. His submissions were supported by Minenhle Zwane in her affidavit filed in addition to Vilakati’s affidavit.
 Applying the tests outlined in the authorities I have cited above, I find myself unable to hold that the Respondent has not shown “good cause” for the setting aside of the judgment, subject of course to it being able to show that it has a bona fide defence.
 I have to say, that I am not impressed by the fact that an institution such as the Motor Vehicle Accidents Fund failed in ensuring that papers filed with it, did not go astray. It is hoped that this does not happen again. Having said that, I am satisfied, that by no stretch of the imagination, can it be said that the Respondent was reckless or grossly negligent in its conduct or indeed, wilful. That however, is not the end of this enquiry, as it remains for the Respondent to show that it has a bona fide defence.
 To determine this I have had regard to what Vilakati deposed in paragraphs 16 to 18 of his affidavit, the contents of which are reflected in paragraphs  of this judgment. This amply establishes that at least there may be basis of a bona fide defence.
 There would also appear to be room for debate to the issue of damages sought by the Appellant.
 Here I make reference to the contents of Vilakati’s affidavit at paragraphs 19 to 24 which in my view shows that the issue of damages calls for further investigation. Paragraphs 19 to 24 of Vilakati’s affidavits are contained at paragraph  supra of this judgment.
 Reviewing all the circumstances of this case it is my view that the judge a quo was indeed correct in allowing the rescission of the judgment challenged by the Respondent.
 The Appellant also takes issue with the fact that the court erred by not holding that the Appellant had waived its rights by causing the Appellant to undergo a “medico-legal examination” in order to ascertain the extent of the injuries suffered by the Appellant. I find myself unable to understand the logic in this submission. Common sense dictates that, rather than paying out any claim made against it, without properly investigating the demand made, would have been to say the least unwise. The Respondent’s conduct can hardly be said to amount to a “waiver”.
 The issue of the costs order made by the judge a quo was discretionary and I see no basis for interfering with the way she exercised her discretion. There is merit in the Respondent’s submission that the Appellant has not been denied the opportunity of putting a proper case for costs in due course.
 The Appellant also complains that the judge a quo erred by finding that the Respondent’s office is a busy one as this issue was not pleaded nor argued. This is hardly a matter that I would have expected to be pleaded by the Respondent particularly in the light of the responses tendered in seeking rescission.
 Accordingly the appeal is dismissed with costs.
JUSTICE OF APPEAL
DR. S. TWUM
JUSTICE OF APPEAL
JUSTICE OF APPEAL