Browde JA:
On 5th July 1999 the High Court gave judgment in an action in favour of the appellant in terms of which it ordered the respondent to pay
to the appellant the sum of E14000 as damages arising from the unlawful occupation of the appellant’s property by the respondent.
At the time that the matter was heard in the High Court the respondent was not represented in court either by one of its own or by
any legal representative. The case had been properly set down and a notice of set-down duly served on the respondent. Before giving
judgment in the aforesaid terms Maphalala J heard the evidence of the appellant which justified the order sought in the pleadings
which, incidentally, had been properly closed long before the date of trial.
That judgment was later challenged by the respondent in an application to court for its rescission on the basis of both the common
law and Rule 42 of the High Court rules. Rescission was granted. It is against that order for rescission that the present appeal
is brought before us.
Rule 42 of the High Court Rules gives the court power to rescind “an order or judgment erroneously granted in the absence of
any party affected thereby.” (This is the only provision of the Rule which is relevant to this case).
In order to substantiate its contention that the order was erroneously granted, the respondent relied on the fact that in January
1997, that is almost four years after the issue of the combined summons, a third party notice was prepared and served by the respondent’s
attorney to join a company called Driveways (Pty) (Ltd) (“ODI”) in the action. This was done since it was the contention
of the respondent that it was that company which occupied the property in dispute and not the respondent. ODI did not react to the
notice and it is common cause that on 14th March 1997, without any notice to the respondent, the appellant applied for and was granted judgment by the court against ODI with
costs. The pleadings in the action between the appellant and respondent were closed, as I have set up above, the matter ultimately
set down for trial and default judgment was entered in favour of the appellant in the absence of the respondent.
The point taken in argument concerning the question of whether or not the judgment against the respondent was erroneously granted,
was that a default judgment taken by the appellant against ODI is a bar to appellant’s also taking judgment against the respondent
because there is some form of res judicata operating. There is, however, ample authority for the proposition that when a defendant serves a third party notice on someone, that
does not create a lis between the plaintiff and the third party but merely enables the defendant to avoid a multiplicity of actions
and get an indemnity from an outsider to the main action, or an order apportioning liability between them – in other words,
a decision as between the pair of them as to who should be obliged to pay the plaintiff what he is owed or some portion thereof. There is no basis in law on which the judgment
so obtained can have any bearing on the relationship between the plaintiff and the defendant or as in this case, the appellant and
the respondent. See for example SWART VS SCOTTISH UNION AND NATIONAL INSURANCE CO. LTD & OTHERS 1971(1) SA384 (WLD)
GEDULD LANDS LIMITED VS UYS 1980(3) SA335
ABSA BANK LIMITED VS BOKSBURG TRANSITIONAL LOCAL GOVERNMENT 1997(2) SA415(W)
It follows from what I have said that there is no substance in the submission that because of the third party proceedings the judgment
was granted erroneously. There is no other ground on which a valid submission can be based that the judgment was erroneously granted.
As I have said the pleadings were closed, the trial date obtained, the trial properly set-down and the notice of set-down properly
served on the respondent. The evidence was led in the usual manner and, although the appellants claimed damages in the sum of E24,000.00
Maphalala J after due consideration, granted judgment for E14,000.00 only. There was thus no ground for rescission in terms of the
rules and the court a quo was in my view totally at fault in dealing with the matter as though the default judgment against the respondent had been granted
in error, and to hold that it was consequently unnecessary for the respondent to establish “ good cause” before being
entitled to rescission.
To succeed in obtaining rescission under the common law, it was necessary for the applicant to prove on a balance of probabilities
that he had a reasonable and acceptable explanation for his default and also that he had a valid and bona fide defence to the claim.
In my judgment the respondent failed at the first hurdle. There is no doubt from the affidavit filed that the matter was properly
set down for hearing on the 5 and 6th July 1999 and according to the deponent for the respondent he relied heavily on what he called a “further pre-trial conference”
which he hoped to arrange. This was not held and when the date for the trial was fast approaching during the week of the 28th June to 1st July the attorney was “exclusively engaged” in an arbitration hearing and could not attend his office in
that period. This is no excuse whatsoever, having regard to the fact that he knew that he had a trial in the High Court which required
his attention. No explanation was given as to why he could not delegate the arbitration so as to focus his attention on the upcoming
trial. The allegation in the founding affidavit that it had been agreed to hold a pre-trial conference is based on hearsay and the
attorney’s affidavit is replete with vague generalities. He states that he mistakenly diarised the trial for the 6th and 7th and not the 5th which is the date referred to in the notice of set down and “labouring under this apprehension but conscious of the fact that
the trial was drawing closer, I had occasion to contact client to take further instructions with a view to making the necessary arrangements
and establish the availability of witnesses in preparation for the trial.” It seems no witnesses were made available for the
trial and the attorney was completely unprepared for it whether it was to start on the 5th of July or the 6th July. As already referred to he was away from his office because of the arbitration in which he was involved and when he returned
to his office on the 6th July 1999 i.e. the date on which he thought the trial was to commence, he states that he was “anxious to make contact with
Mr. Dlamini (that is the attorney for the plaintiff) to follow-up on the agreement to have a pre-trial conference and to deal with
the practical question on what was to be done regarding the trial.” He goes on to say that on the following day i.e. 6th July (according to him it would have been the first day of the trial) he called Mr. Dlamini at about 8.30am and again at 9.15am to
find out what his attitude was regarding the trial.
I find that a most extraordinary attitude to trial work which requires diligent preparation and early consultation with witnesses.
He did not even bother to read the notice of set-down which had been served on him in good time. His involvement in other matters
demonstrates in my view scant regard for either the opposition or the court both of whom he expected to meet his convenience. In
his affidavit, his attempt to shift the blame on to Mr. Dlamini, is, in the circumstances, quite unacceptable. In what amounts to
a masterpiece of understatement, the learned Judge a quo, in referring to the default of the respondent as having been “amply demonstrated” in the papers states that “such
default in my view is not wilful but due to a certain mistake or misunderstanding on the defendant’s part..” In my judgment,
the explanation is not a reasonable one and certainly is not sufficient to ground an application for rescission under the common
law. In CHETTY VS LAW SOCIETY TRANSVAAL, 1985(2) SA756 (A) at 757D the judgment reads:-
“Ordered judicial process would be negated if a party who could offer no explanation for his default other than his disdain
of the Rules was nevertheless permitted to have a judgment against him rescinded on the ground that he had a reasonable prospect
of success on the merits.”
In the circumstances I do not intend to deal with whether or not the respondent had a bona fide defence to the appellant’s claim. See too DE WET AND OTHERS VS THE WESTERN BANK LTD 1977(4) SA770 (T) which deals with the negligence of the attorney.
In my opinion the appeal should be allowed with costs and the order of
Maphalala J substituted by the order “the application is dismissed with costs.”
J. BROWDE JA
I AGREE
:
L. VAN DEN HEEVER JA
I AGREE
:
D.L.L. SHEARER JA
Delivered on this day of June 2001.
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