Case No. 1127/2000
Plaintiff Mr. Z. Magagula
Defendant No appearance
is an application of rescission of judgment essentially. I have read
the papers and pondered over the problems raised by the applicant.
The chief reason why the applicant says he did not enter the
appearance to defend timeously was because he was not able to raise a
deposit to engage attorneys.
speaking this is not an acceptable or excusable reason for being in
default. It is always open to each litigant to appear in person and
to, if necessary, approach the Registrar to see what has to be done.
there are other considerations which apply. It does seem as though a
notice for intention to defend had been filed even before default
judgment had been granted and in those circumstances it is proper to
at least give the defendant further notice to afford him an
opportunity of applying for condonation if this is to be done.
amount of judgment in this matter is a big award and it is true that
the applicant as she claims is in dire need, having been injured in
an accident which she says was the fault of the applicant in this
matter, nevertheless it does not seem to me as though the judgment is
going to help her if the debtor this is the person who even found
difficulty of finding E350.00 to instruct an attorney bearing in mind
that the judgment is in excess of E1 million.
be that as it may this is a case which I think the proper way to be
dealt with is that rescission should be granted and the defendant
would be ordered to file a plea within seven days and once a plea has
been filed the plaintiff would be free to call a meeting in terms of
Rule 33 bis in order to determine a date for the hearing of the case.
In this connection also as it seems that the plaintiff's defence will
rest on technical matters the evidence of the technical expert is to
be filed within 7 days of the plea.