IN THE HIGH COURT OF SOUTH AFRICA

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					                                     FORM A
              FILING SHEET FOR EASTERN CAPE JUDGMENT

                                                        ECJ no : 71

PARTIES:

ERIC DONDASHE t/a DONDASHE BUSINESS TRUST                      APPLICANT

AND

METCASH TRADING LTD t/a METRO CASH AND CARRY                   RESPONDENT

REFERENCE NUMBERS -


       Registrar: 563/2005
       Magistrate:
       Supreme Court of Appeal/Constitutional Court:


DATE DELIVERED:          11 NOVEMBER 2005

JUDGE(S):

LEGAL REPRESENTATIVES -
Appearances

:
       for the State/Applicant(s)/Appellant(s): ADV. GLOVER
       for the accused/respondent(s):            ADV. DAVE DE LA HARPE



Instructing attorneys:
       Applicant(s)/Appellant(s): WHEELDON RUSMERE & COLE
       Respondent(s): Z. P. MARONGO & CO



CASE INFORMATION -
    Nature of proceedings : OPPOSED APPLICATION


       Topic: APPLICATION FOR RESCISSION OF JUDGMENT



       Keywords:
                                       2



IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)


                                           CASE NO:563/2005
                                           DATE HEARED: 3/11/05
                                           DATE DELIVERED:11/11/2005


In the matter between:


ERIC DONDASHE t/a DONDASHE BUSINESS TRUST                     APPLICANT


and


METCASH TRADING LTD t/a METRO CASH & CARRY                    RESPONDENT


______________________________________________________________
Application for the rescission of a judgment granted by default against
the applicant – Requirements for rescission set out – Applicant failing to
establish good cause for rescission – Application dismissed with costs


                                 JUDGMENT




PLASKET, J


[A] INTRODUCTION


[1] The respondent, as plaintiff, was granted default judgment against the
applicant, as defendant, in the amount of R118 811.03. In this application, the
applicant applies for the rescission of that default judgment, an order that the
warrant of execution issued subsequent to the default judgment ‘be and is
                                           3


hereby withdrawn or cancelled’, and an order for costs. This application is
opposed by the respondent.


[2] Rule 31(2) of the Uniform Rules applies to this matter. This rule provides:
          ‘(a)    Whenever in an action the claim or, if there is more than one
                  claim, any of the claims is not for a debt of liquidated demand
                  and a defendant is in default of delivery of notice of intention to
                  defend or of a plea, the plaintiff may set the action down as
                  provided in subrule (4) for default judgment and the court may,
                  after hearing evidence, grant judgment against the defendant or
                  make such order as to it seems meet.
          (b)     A defendant may within 20 days after he or she 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, set aside the default judgment on such terms as to it
                  seems meet.’


[B] THE APPLICABLE PRINCIPLES


[3] An applicant for rescission of a judgment must establish good cause for
the rescission. This means that he or she must provide a satisfactory
explanation for his or her default and show that he or she has a defence to the
claim on which the default judgment was founded.


[4] In Silber v Ozen Wholesalers (Pty) Ltd1 Schreiner JA dealt with the
concept of good cause. He held that in order to establish good cause, an
applicant for rescission had to ‘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’.2




1
    1954 (2) SA 345 (A).
2
    At 353A.
                                           4


[5] When an applicant sets out his or her defence it is not necessary to deal
fully with the merits. In Grant v Plumbers (Pty) Ltd3 Brink J set out the
requirements for rescission, including those relating to the defence, in the
following terms:4
       ‘Having regard to the decisions above referred to, I am of opinion that
       an applicant who claims relief under Rule 43 should comply with the
       following requirements:
               (a) He 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 out 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.’


[6] These requirements are, however, not to be applied formalistically. In De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd5 Jones J held:
       ‘The correct approach is not to look at the adequacy or otherwise of the
       reasons for the failure to file a plea in isolation. Instead, the
       explanation, be it good, bad, or indifferent, must be considered in the
       light of the nature of the defence, which is an all-important
       consideration, and in the light of all the facts and the circumstance of
       the case as a whole. In this way the magistrate places himself in a
       position to make a proper evaluation of the defendant’s bona fides, and
       thereby to decide whether or not, in all the circumstances, it is
       appropriate to make the client bear the consequences of the fault of its
       attorneys as in Saloogee and another NNO v Minister of Community

3
  1949 (2) SA 470 (O).
4
  At 476-477.
5
  1994 (4) SA 705 (E), 711D-H.
                                      5


      Development 1965 (2) SA 135 (A). An application for rescission is
      never simply an enquiry whether or not to penalize a party for his
      failure to follow the rules and procedures laid down for civil
      proceedings in our courts. The question is, rather, whether or not the
      explanation for the default and any accompanying conduct by the
      defaulter, be it wilful or negligent or otherwise, gives rise to the
      probable inference that there is no bona fide defence, and hence that
      the application for rescission is not bona fide. The magistrate’s
      discretion to rescind the judgments of his court is therefore primarily
      designed to enable him to do justice between the parties. He should
      exercise that discretion by balancing the interests of the parties,
      bearing in mind the considerations referred to in Grant v Plumbers
      (Pty) Ltd (supra) and HDS Construction (Pty) Ltd v Wait (supra) and
      also any prejudice which might be occasioned by the outcome of the
      application. He should also do his best to advance the good
      administration of justice. In the present context this involves weighing
      the need, on the one hand, to uphold the judgments of the courts which
      are properly taken in accordance with accepted procedures and, on the
      other hand, the need to prevent the possible injustice of the judgment
      being executed where it should never have been taken in the first
      place, particularly where it is taken in a party’s absence without
      evidence and without his defence having been raised and heard.’


[7] I turn now to consider the facts in the light of these statements of the
applicable law.


[C] THE APPLICANT’S CASE


[8] The applicant is the proprietor of a shop. He is supplied by the respondent
with stock for his shop. The respondent had issued summons against him for
the recovery of R118 811.03 in respect of goods sold and delivered at the
applicant’s instance and request.
                                        6


[9] The summons in this matter was the third to be served on the applicant by
the respondent in respect of the same debt. The first two initiated proceedings
in the Magistrate’s Court. The first summons superannuated and the second
was withdrawn after the applicant filed a notice of exception. Before the third
summons, which initiated proceedings in the High Court, was served on the
applicant personally on 28 April 2005, a copy of the already issued summons
was sent to the applicant’s attorney by the respondent’s attorney by letter
dated 25 April 2005.


[10] Despite this the applicant did not enter an appearance to defend and, on
15 June 2005, default judgment was granted against him. On 20 June 2005,
the Sheriff served a writ of execution on the applicant.


[11] The applicant stated that he met with his attorneys on 29 April 2005, the
day after the summons was served on him. They discussed the matter. The
letter to which the copy of the summons was attached was shown to the
applicant and he ‘noticed that the copy of the summons was the same as that
which had been served on me on the previous day by the Sheriff of this
Honourable Court’. Despite this, he failed to tell his attorneys that the
summons had been served on him for two reasons. He stated:
       ‘(a)   I could see there and then that they already had a copy of the
              same summons forwarded to them by the respondent’s attorney;
              and
       (b)    I had inadvertently forgotten the copy given to me by the Sheriff
              in a motor vehicle I was travelling in and which, by that time,
              was being driven somewhere around the CBD of Grahamstown
              to make various purchases for my spaza shop’.


[12] He then stated that he discussed ‘the latest developments’ with his
attorneys, he ‘acted on their advice’ and he gave them instructions to defend
the matter. After that, he was in ‘constant communication with Mr Marongo of
my said attorneys and, whether it be at their offices or elsewhere, he would
inform me of progress in their handling of the respondent’s action, in particular
the one that had been withdrawn, for which its costs were to be taxed’.
                                        7



[13] Despite this constant communication and what appear to have been
regular progress reports, the applicant stated that he ‘did not find it necessary
to enquire specifically about progress of the High Court case’. It was only after
the writ of execution was served on him that he discussed the matter with his
attorneys. He stated in this regard:
       ‘It is during this consultation with Mr Marongo that it emerged, for the
       first time, that I ought and should have told my attorneys of the other
       summons that had been served on me by the Sheriff on the 28th April
       2005. Mr Marongo informed me that they could have known when to
       serve and file a notice to defend the action on my behalf only if and
       when summons had been formally served.’


[14] The applicant summarised the problem by stating that ‘whereas I had
approached and given instructions to my attorneys to defend the respondent’s
main action in the proceedings, however, I [was] mistaken in not informing my
attorneys that the relevant summons was formally served on me’. This
omission, he claimed, was bona fide and was ‘in no way meant to nor aimed
at undermining the processes of actions instituted in this Honourable Court’.


[15] The applicant’s attorney filed an affidavit in support of the application. He
stated in respect of the applicant’s explanation:
       ‘The applicant always meant to defend all the litigation against him by
       the respondent, including the one in respect of which these
       proceedings are founded. However, in the current litigation our office
       could not serve nor file any appearance to defend until the summons
       was served, and we had no knowledge of that process occurring, and
       only assumed same to have occurred when the respondent’s attorneys
       furnished us with a copy of the default judgment.’


[16] In his replying affidavit the applicant reiterated his explanation, saying
that even though he recognised the courtesy copy of the summons sent to his
attorney to be a copy of the summons served on him the previous day, and
that he instructed his attorney at that stage – a day after service of the
                                         8


summons – to defend the action, he did not know that he should have
mentioned that the summons had indeed been served on him. This
information was, however, ‘exactly what my attorneys needed to know in
order to be able to ascertain as to when the relevant notice of appearance to
defend is to be filed and served’. He also stated that his attorney and the
respondent’s attorney were in ‘constant and continued interaction’ concerning
the dispute between him and the respondent at the time.


[17] In his founding affidavit, when commenting on the summons, the
applicant set out his defence in the following terms:
       ‘With regard to paragraphs 6, 7 and 8 thereof, I deny that the alleged
       “various goods” were delivered at my “special instance” and, therefore,
       the amounts of purchases and interest alleged to have been debited to
       my “running account” were wrong. I deny liability to the respondent in
       the amount of R118 811.03 … hence my continued refusal or failure to
       heed the respondent’s demand for such amount.’


[18] In his replying affidavit, however, the applicant dealt with his defence in
different terms. This is what he said:
       ‘Paragraphs 26 and 27 of my founding affidavit are a sufficient
       response to the allegations in the summons, and I did not have to
       necessarily disclose my entire case or defence. Nonetheless, I am
       willing to elaborate herein that whereas the respondent’s particulars of
       claim’s annexure POC2 reflect the cause of action as debts incurred
       between 10th November 2003 and 30th December 2003, however no
       regard is had to the fact during that period that I made the following
       payments, inter alia: R5 000.00 on 10th November 2003; R7 000.00 on
       12th November 2003; R5 000.00 on 14th November 2003; R10 000.00
       on 15th November 2003; R5 950.00 on 18th November 2003; R4
       000.00 on November 2003; R4 300.00 on 21st November 2003; R7
       000.00 on 22nd November 2003.
       I further submit herein that the business I run is not a supermarket in a
       large city or township but only a spaza shop situated in Joza,
       Grahamstown, a small township. The dispute between me and the
                                         9


       respondent was about the frequently high amounts of debt, sometimes
       being more then R7 000.00 when on the average my business needs
       stock of no more then R4 000.00, noting that stock is almost on a daily
       basis. I queried the high amounts and asked same to be looked into
       but no result. As much as I tried [to] repay the debt, it kept rocketing.
       Accordingly, I deny the debt alleged by the respondent against me and
       I intend to defend the action and it is my submission that I do have a
       bona fide defence.’


[19] The applicant then filed what he described as a supplementary replying
affidavit. In this he also dealt with his defence. He stated:
       ‘9.    Further, I beg this Honourable Court’s leave to respond to
              respondent’s allegations at paragraph 22.17.2 of its answering
              affidavit, where the respondent has annexed invoices (“AG14”)
              as apparent proof of my indebtedness to the respondent.
       10.    It was an inflexible rule with the respondent that I was never
              permitted to take a single item away from their premises without
              first personally signing an acknowledgment of debt in respect of
              that purchase on account.
       11.    The acknowledgment of debt was printed on a narrow format
              and had two parts. I would have to sign the bottom part which
              was then torn off and retained by the respondent. The top part
              would be stapled to my copy of the invoice after which I was free
              to leave with the goods. I annex an example hereto marked
              “AD5”.
       12.    Accordingly, I deny that I am liable on any invoices of the
              respondent which are not accompanied by an acknowledgment
              of debt signed by myself according to the practice demanded by
              the respondent.’


[D] ANALYSIS OF THE EXPLANATION AND DEFENCE
                                          10


[20] I turn now to consider the applicant’s explanation and his defence so that
I can determine whether, in his application for rescission, it can be said that
he has shown good cause.


[21] The explanation that he and his attorney tendered is ludicrous. It is an
explanation that is so bereft of logic and so improbable that it is, on its own
terms, to be rejected as unacceptable. It raises a strong doubt as to the good
faith of the applicant.


[22] When the defence of the applicant is considered, the problem that
confronts one is that the applicant has changed his version in each of the
three affidavits he has made.


[23] In his founding affidavit he denied that the goods in question were
delivered at his special instance and that, consequently, the amounts debited
to his account were wrong. He denied liability in the amount claimed. It is not
clear from this whether he admitted that the goods were delivered but not at
his request – in which event he would be liable to return them or pay for their
value – or that his version is that the goods were never delivered – in which
event he would not be liable at all.


[24] In his replying affidavit, he stated that he made certain payments to the
respondent, that he believed he may have been overcharged and that, as he
‘tried to repay the debt, it kept rocketing’. This version tends to undermine the
first version to the effect that the goods were not ordered by the applicant as
he admits in his replying affidavit that he was indebted to the respondent, but
he does not say to what extent.


[25] In his supplementary affidavit the applicant stated that he was only liable
to   pay   those    invoices    in   respect   of   which   the   respondent   has
acknowledgements of debt signed by him. Once again this is a far cry from
the denial of liability set out in his founding affidavit and even from the
admission of liability set out in his replying affidavit.
                                       11


[26] In applying for the rescission of a judgment, an applicant seeks an
indulgence. The least that one would expect in these circumstances is that the
applicant would be frank, open and honest in setting out his explanation and
defence. In this case, however, a patently inadequate explanation has been
given and the applicant has demonstrated a lack of candour in setting out the
nature of the defence. These fundamental defects lead me to the conclusion
that the applicant had not displayed the good faith that the law expects in
circumstances such as these.


[27] It is clear to me, from the vague and unsatisfactory nature of the denial of
liability in the founding affidavit and the shifting nature of the applicant’s
attempt to set out a defence in the three affidavits that he deposed to, viewed
in the context of the wholly inadequate explanation for his default and the
applicant’s lack of candour in general, that the applicant has, in truth, no
defence to the respondent’s claim, that this application is nothing more than
an attempt to delay the respondent’s claim and that the applicant’s default
was wilful.


[E] CONCLUSION


[28] My conclusion is thus that the applicant has not established good cause
for the rescission of the judgment against him. To rescind the judgment in
such circumstances would be to undermine the due administration of justice
without advancing any countervailing value.


[29] In consequence, the application is dismissed with costs.




____________________
C. PLASKET
JUDGE OF THE HIGH COURT

				
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