THE
HIGH COURT OF SWAZILAND
JAMES
BRYNE
Applicant
And
RMS
TIBIYO (PTY) LTD
Respondent
Civil
Case No. 1220/2002
Coram S.B.
MAPHALALA - J
For
the Plaintiff MR. MATSEBULA
For
the Defendant Advocate P. FLYNN (Instructed
By
Rodrigues and Associates)
JUDGMENT
(On
application for rescission of a judgement granted by default)
(04/04/2003)
The
Relief sought
In
this matter the Applicant seeks an order inter alia that the
Respondent should restore to the Applicant the motor vehicle
registered SD 697 FN Opel Corsa bakki approximately E60, 000-00 which
was by consent released to the Applicant; staying the execution,
2
condoning
the late filing of the Defendant's notice to defend; setting aside
the default judgement granted in favour of 1st Respondent/Plaintiff
on the 11th October 2002; and cost of suit at attorney and/or
client's scale as the default judgement application was not necessary
because the parties were still negotiating settlement.
Background.
The
summons in this matter was served on the Applicant on the 10th May
2002. A notice of Intention to Defend was filed on the 7th August
2002. The Applicant contends that negotiations were in progress. The
Respondent filed a Rule 30 notice in respect of the late filing of
Intention to Defend. According to annexure "B" being a
letter dated the 21st August 2002, from the 1st Respondent to the
Applicant's attorneys, the former agreed to hold the proceedings in
abeyance for a further two weeks with a view to settlement including
costs.
According
to the Respondent the Applicant was granted several postponement of
the matter. The matter was postponed to the 27th September 2002, by
consent and on that date the Rule 30 notice was disposed of.
According to the Respondent further the Applicant made no application
for condonation thereafter and did nothing until default judgement
was granted.
The
Applicant has filed a founding affidavit in which it alleges inter
alia that the default judgement granted in favour of the 1st
Respondent by this court on the 11th October 2002, be set aside in
terms of Rule 31 (3) (b) and Rule 42 (1) (a) of the Rules of this
court as well as further and/or alternative relief.
On
the other hand the Respondent contends that the Applicant has not
made out a case in terms of Rule 31 (3) (b). Rule 42 is not
applicable in the circumstances of the case. Further, that the
Applicant does not have a bona
fide
defence to the action.
The
applicant's submissions.
3
The
Applicant contends that it has satisfied the requirements of Rule 31
and 42 of the Rules of court in establishing a prima facie case
warranting a rescission and/or setting aside of the judgment of this
court dated the 10th October 2002, for the following reasons:
Rule
31 (3) (b).
It
is contended under this head that the Applicant has within a period
of 21 days as set out in the above-mentioned rules launched the
present application and showed a good cause for setting aside the
same after having given reasonable explanation why default judgement
should not have been granted in this matter in that the Applicant was
not in wilful default as envisaged by this particular rule. The
Applicant has demonstrated that the delay in filing the notice to
defend has always been on account of the wish of both parties to
settle the matter out of court to minimise the unnecessary escalation
of costs as more fully set out in the parties' respective papers
filed in respect of this particular application in so far as the
period before and after the issuance of summons and before the
granting of the default judgement is or are concerned. This is also
confirmed by the Respondent in his answering affidavit with
particular reference to page 67 of the Book of Pleadings namely
paragraphs 6.2, 6.3 and paragraph 6.8.
The
Applicant submitted further that the application is bona
fide
without the intention of delaying the Plaintiff's claim. To this end
Mr. Matsebula directed the court's attention to correspondence which
exchanged between the parties prior to the judgment being granted.
It
is contended further that the Respondent's allegation that Applicant
filed the notice to defend late due to wilful disregard of the rules
of court overlook important factors. Firstly, at page 67 of the Book
of Pleadings, the Respondent at paragraph 6.2 stated the following:
4
"It
has always the intention of the Plaintiff to keep this matter out of
the courts. I beg to refer to the confirmatory affidavit of the
Respondent".
Secondly,
that the delays were due to that and that it was not a two-way
negotiations but it involved more than three parties, namely, the
Applicant, the Broker and the Insurer. In this regard the court was
referred to annexure JB1 to 5 on pages 78 and 84 to the effect that
all these parties had to do investigations and consultations to make
informed opinions on the settlement agreement.
It
was contended further that had it not been for the crafty manner in
which the default judgement was secured by the Plaintiff, the
Applicant had high prospects of succeeding in its intended
application for condonation of the late filing of the notice to
defend, notwithstanding that it had been filed out of time since the
Respondent had not yet applied for default judgement and as such, no
prejudice would have been suffered by the Respondent at that stage.
To buttress this point Mr. Matsebula cited the cases of Washaya vs
Washaya 1990 (4) S.A. 41 and Foster vs Carlis and another 1924 T.
P.
D.
47.
Lastly,
under this head Mr. Matsebula argued that courts have afforded
Defendants the opportunity to defend claims launched against them
even in instances where default judgment has already been granted
unlike in the present case where nothing had been done by Plaintiff
after issuing the summons. The court was referred to the case of
Msibi vs Mlaula Estates Ltd 1970 - 76 S.
L.
R.
34 to support this proposition.
Rule
42.
Under
this head it is contended on behalf of the Applicant that the default
judgement itself was granted in error within the provision of Rule 42
in that the affidavit in proof of damages was signed by the
Respondent himself yet in damages action the usual mode of proving
damages is by means of medical expert evidence on affidavit or
orally. In casu the Respondent has an interest in the case and cannot
be taken as an independent witness
5
and
cannot impartially assess the fair and reasonable damages to be
awarded in his own case. To support this point the court's attention
was directed to the dictum in the case of Schimper vs Monastery
Corporation and another 1982 (1) S.A. 612 at 615 C to E.
It
was argued that in the present case Plaintiff failed to place prima
facie evidence before court justifying the award as the courts have
recognised that the mere placing of documents and medical before them
is not enough proof of reasonable damages and placed the court in an
anomalous position in assessing the fair award to be made in a given
case. That at the most, the alleged Doctor Jere's medico - legal
report annexed to Plaintiff's affidavit in proof of damages, amounts
to a medical document placed before court without oral or sworn
medical evidence being led. The court was referred to the case of
Sekgota vs South African Railways and Harbours 1974 (3) S.A. 310 at
311 E that this procedure creates extreme difficulties for the Judge
to make a proper assessment of an adequate award of damages,
notwithstanding that in that case the document had been placed before
court by consent.
In
consequence, it is contended that Plaintiff's failure to produce
adequate and prima facie proof of its damages the court erroneously
awarded him the full amount claimed without giving due affect to all
the factors which should properly have been entered into the
assessment of what is due to him in respect of special and general
damages. Mr. Matsebula cited the case of Madzinane MS vs Swaziland
Guards (Pty) Ltd and another (unreported) H.C. Civil Case No.
2909/2000 wherein no notice to defend had been filed at all by
defendants but Sapire CJ stated that this being a damages claim, oral
evidence had to be led to ascertain how much was due to the
Plaintiff.
Lastly,
it was submitted on behalf of the defendant that the court should
exercise its wide discretion in terms of the rules and the common law
and grant the application for rescission to enable defendant to
defend the action both on the merits and quatum or at least on quatum
only.
6
The Respondent's submissions.
It
was contended on behalf of the Respondent that the route in terms of
Rule 30 was taken up with the court after the Respondent had afforded
the Applicants an opportunity to enter into real and concerted
settlement negotiations. The Applicant was afforded a period of two
weeks from the 21st August 2002, referred to as annexure "B"
of the Applicant's founding affidavit. The Applicant was granted
several postponements of the matter. The matter was postponed to the
27th September 2002, by consent and on that day the Rule 30 notice
was disposed of. The Applicant made no application for condonation
thereafter and did nothing until default judgment was granted.
Mr.
Flynn in the main argued that the Applicant has not made out a case
in terms of Rule 31 (3) (b). Rule 42 is not applicable in the
circumstances. The court was referred to Herbstein and Van Winsen
(supra) in support of the Respondent's case.
The
above are the issues in this matter.
I
have considered the arguments advanced by counsel for both parties. I
have to decide whether the Applicant is entitled to a rescission of
the default judgement either in terms of Rule 31 (3) or Rule 42 of
the High Court Rules. I shall proceed to examine the issues
sequentially, viz a) Rule 31 (3) and Rule 42, thus:
a) Whether
Rule 31 (3) is applicable in casu. Rule 31 (3) (b) of the High Court
Rules reads as follows:
"A
Defendant may, within twenty-one days after he has 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 judgement and of such application to a maximum
of E200-00, set aside the default judgement on such terms as to it
seems fit".
7
According
to Erasmus, Superior Court Practice (Juta) at B1 - 201. The sub-rule
does not require that the conduct of the Applicant for rescission of
a default judgement be not wilful, but it has been held that it is
clearly an ingredient of the good cause to be shown that an element
of wilfulness is absent (see Maujean T/A Audio Video Agencies vs
Standard Bank of S.A. Ltd 1994 (3) S.A. 801 (c) at 803 J). Hence the
element of wilfulness is one of the factors to be considered in
deciding whether or not an Applicant has shown good cause. The
requirements for an application for rescission under this sub-rule
have been stated to be as follows (see Grant vs Plumbers (Pty) Ltd
1949 (2) S.A. 470 (o) at 476 -7):
a) He
(i.e the 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;
b) His
application must be bona fide and not made with the intention of
merely delaying Plaintiff's claim.
c) He
must show that he has a bona fide defence to Plaintiff's claim. It is
sufficient if he makes a
prima
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".
The
above therefore is the premise within which the instant case is ought
to be decided. It appears to me that the Applicant has in casu
demonstrated that the delay in filing the notice to defend has always
been on account of the wish of both parties to settle the matter out
of court to minimise legal costs. There is a plethora of
correspondence between the parties before and after the issuance of
summons up to when the default judgement was granted which bears that
out. The Respondent in its answering affidavit confirms this state of
affair at page 67 of the Book of Pleadings at paragraph 6.2, 6.3 and
paragraph 6.8, the said paragraphs read as follows:
AD
Paragraph 6.2.
It
was always the intention of the Plaintiff to keep this matter out of
the courts. I
beg
to refer to the confirmatory affidavit of the Respondent.
8
6.3. Several
letters were sent to the Defendant's as early as 21st October 2001
regarding the Plaintiff's claim with a hope that the claim would be
referred to Defendant's insurers under its Public Liability Insurance
Policy.
Enclosed
herewith is batch of the letters referred to marked "JB1"
to "JB6". Further on,
"6.8
Despite summons being issued there was still an attempt to keep the
matter out of the court in the hope of settlement. I beg to refer to
annexure "JB6"."
It
appears to me further that the Applicant 's application is bona
fide
and I cannot detect any intention of delaying the Plaintiff's claim.
There is ample correspondence between the parties which attest to
this fact viz, the Applicant's attorneys fax dated 20th August 2002
addressed to Respondent's attorneys which demonstrate its willingness
to have the matter settled out of court. Applicant's attorney further
addressed a letter dated 11th September 2002, stating that it had
prevailed upon his client to ignore the issue of the merits of the
matter and just concentrate on the quatum thereof to get the matter
out of the way as soon as possible. This showed Applicant's bona
fides in settling the matter as possible.
From
the papers before me, it cannot be said that Applicant filed the
notice to defend late due to wilful disregard of the rules of court.
This is so for the following reasons: Firstly, at page 67 of the Book
of Pleadings, the Respondents concedes that the parties intended to
keep the matter out of the courts and were to try to settle it
amicably. Secondly, the delays, it would appear to me were as a
result of the fact that the negotiations in this matter were involved
where more than two people were participating, viz the Applicant, the
Broker and the Insurer. This fact is evidenced by annexures "JB1
to 5".
It
appears to me, from the totality of the facts presented before me,
that despite the facts that default judgement was secured by the
Respondent the Applicant had a high prospects of succeeding in its
intended application for condonation of the late filing of the notice
to defend, notwithstanding that it had been filed out of time since
the Respondent had not yet applied for default judgement and as such,
no prejudice would have been suffered by
9
the
Respondent at that stage (see Washaya vs Washaya 1990 (4) S.A. 41 and
Foster vs Carlis and another 1924 T.
P.
D.
47).
For
the above-mentioned reasons I would allow the application for
rescission in terms of Rule 31 (3) (b).
b)
Whether Rule 42 is applicable in casu.
In
view of the finding I have made above viz, under Section 31 (3) (b) I
am of the considered opinion that proceeding further with an
examination whether the Applicant satisfies the requirements of Rule
42 would be an academic exercise, though I would express my
reservations whether Applicant would have succeeded under this Head.
c) The
court order.
The
following order is therefore recorded:
i) The
judgement granted in favour of the 1st Respondent/Plaintiff on the
11th
October
2002 is set aside; and ii) The costs to follow the event. Costs to be
levied on the ordinary scale.
S.B.
MAPHALALA
JUDGE
